Areas of Liability Alleged Against Precision Arising From Aviation Issues and the Flying of the Helicopter
Submissions of Endeavour Adverse to Precision on Aviation Issues
300In its Amended Statement of Claim, Endeavour pleaded some 47 particulars of negligence against Precision. Given the conduct of the hearing, the cross-examination of witnesses, and submissions made on behalf of Endeavour, the areas of attack by Endeavour upon Precision appear to be somewhat narrow.
301The submissions for Endeavour emphasised the requirement under Clause 215 Civil Aviation Regulations 1988 (Cth) for an operator, such as Precision, to have an Operations Manual. Endeavour noted that Precision's Operation Manual (Exhibit EE2, pages 1261ff) provided for low-flying operations to be conducted in accordance with that Manual. Reference was made to the requirement that, for each flight, the Precision Chief Pilot was to designate one pilot to act as pilot in command. The pilot in command was to have final authority as to the operation of the aircraft. In addition to being responsible for the operation and safety of the aircraft during flight time, the pilot in command was responsible for the safety of persons on board (Exhibit EE2, page 1286).
302As mentioned earlier, Endeavour relied (in a general way) upon Clause 224 Civil Aviation Regulations 1988 (Cth) concerning the obligation placed upon the pilot in command of an aircraft. It was submitted that the pilot in command on 4 April 2006 owed Mr Edwards a very high duty of care, the scope and content of which was identified by the Civil Aviation Regulations 1988 (Cth) and the Precision Operation Manual.
303Endeavour submitted that the aerial work being undertaken at the time (low-level flying) required the exercise of special skill. Section 19.4.9 of the Precision Operations Manual stated:
"Prior to the commencement of low level operations the pilot in command shall carry out an aerial survey of the area to establish an optimum path and aircraft manoeuvring plan for the safe conduct of the operation."
304It was noted that, at all relevant times, Precision held a valid AOC issued by the Civil Aviation Safety Authority ("CASA"), which authorised Precision to conduct aerial work, including power line inspections (Exhibit EE3). Likewise, at all relevant times, Precision held a low-flying permit issued by CASA pursuant to Clause 1.57(4)(b) Civil Aviation Regulations 1988 (Cth), which allowed Precision to fly at a height lower than 500 feet, for the purpose of power line inspections (Exhibit EE4).
305Endeavour pointed to the evidence of Mr Carter of the requirement to carry out an aerial survey to establish the optimum path and aircraft manoeuvring plan (as mandated by s.19.4.9 of the Precision Operations Manual), as being a continuing responsibility throughout the low-level operation, with the height at which the aerial survey was to be conducted depending on the circumstances as encountered during the operation (T156). It was noted that Mr Carter agreed that, if there was an option between operating over sloping land and over open level land, good airmanship required the pilot in command to operate over the open level land (T156).
306Mr Carter had never been to the Inmans' property. He agreed that if he had surveyed the Inmans' property by flying south across the open paddock, before inspecting the power line, he would have had a good view of the terrain around and to the east of the private power line. He agreed that this would not have taken very long and agreed, as well, that had he done so, he would have had an opportunity to see if there was anything near to the east of the Inmans' private power line that might cause an obstruction (T157). Endeavour submitted that it had been established that the terrain east of the Inmans' private power line was sloping, and the terrain to the west was level and open. Mr Carter conceded that his failure to undertake a survey was poor airmanship (T157).
307Endeavour submitted that this conclusion was consistent with the joint report of the aviation experts (Exhibit EE11). Endeavour submitted that cross-examination of the aviation experts on behalf of Telstra had not pointed to a contrary view.
308It was submitted for Endeavour that it was significant that neither Precision's Chief Pilot, nor any of the Precision pilots who had flown the inspection of the power lines on the Inmans' property in previous years, had provided any evidentiary statements, nor was any explanation provided as to why they had not done so.
309Endeavour submitted that Mr Carter's actions were in clear breach of his duty of care to Mr Edwards, and that his breach was causative of Mr Edwards' injuries as, but for his acknowledged poor airmanship, the helicopter would never have been in a position to collide with the catenary wire.
Submissions of Telstra on Aviation Issues
310Telstra submitted that, on the evidence, Precision did not depart from the standard of reasonable care required of it in the provision of helicopter services to Endeavour, for the purpose of low-level aerial inspection of power lines, or in the particular manner in which Mr Carter operated the helicopter on 4 April 2006.
311It was emphasised, for the purposes of planning the subject flight, that Precision had not been provided with any information as to the actual location of the private line on the Inmans' property which was to be flown. As the aviation experts agreed, there was no practical means for Precision to learn of the existence of the catenary wire, and it was entirely reasonable and appropriate for Precision to rely upon Endeavour as to the existence of hazards, such as the catenary wire, in the vicinity of the power lines.
312To the extent that Mr Ogden criticised some aspects of Mr Carter's airmanship during the flight on 4 April 2006, Telstra submitted that his analysis was based upon hindsight, of the type that the courts have warned against, in determining what precautions against a risk of harm a reasonable person should have taken. It was submitted that the evidence of Mr Macarthur-Onslow, to the effect that Mr Carter's actions in proceeding along the Inmans' private line from north to south and then crossing over the line to the east was reasonable in the circumstances, should be preferred.
313By reference to the cross-examination of the aviation experts by senior counsel for Endeavour, Telstra noted there were three alleged deficiencies in Mr Carter's airmanship on 4 April 2006, which Endeavour appeared to assert were breaches of Precision's duty of care. In particular, Mr Ogden referred to a combination of the following factors (T309):
(a)Mr Carter did not follow the requirements of the Operations Manual, which required him to undertake a high level reconnaissance;
(b)Mr Carter flew over land to the east of the power lines, which was not as flat as the land to the west; and
(c)Mr Carter flew the helicopter at too low a height, thus limiting his ability to make a safe or necessary landing if the engine failed.
314Telstra emphasised that none of these alleged failures was causative of the accident and Telstra disputed, in any event, that they should properly be regarded as evidence of breach of duty. Whilst Mr Carter agreed that, in retrospect, it was poor airmanship not to do some form of aerial survey of the private line on the Inmans' property (T156-157), Telstra submitted that it was beyond dispute that even if such an aerial survey had been conducted, it was very unlikely that the catenary wire would have been identified. The joint opinion of the aviation experts on this issue was strongly supported by the fact that the catenary wire had not been identified during low-level aerial surveillance flights in 2003, 2004 or 2005.
315In relation to Mr Ogden's suggestion that it was poor airmanship not to fly to the west of the power lines, where the land was flatter and more viable for an emergency landing in the case of engine failure, whilst Mr Carter conceded that it would have been better to keep the helicopter away from the rising ground (T148), Telstra emphasised that the accident on 4 April 2006 did not involve engine failure, and the sloping ground (which itself flattened out the further south the power lines ran) played no part in the accident, and the manner of Mr Edwards' injuries.
316As Mr Ogden himself acknowledged, Mr Carter was able to control the helicopter, so as to elevate it and bring it back over to the west of the power lines before landing (T308). As there was no engine failure, the sloping land was irrelevant to the cause of the accident.
317Telstra submitted that the height at which Mr Carter was flying, at the time of the accident, was also of itself immaterial to the cause of the accident for the same reason - there was no engine failure, and thus no need to make an engine-off landing.
318Telstra submitted that, from the evidence of the aviation experts, it appears that Mr Carter's choice to fly from north to south along the private line, and to cross over to keep it on his right-hand side, was within the range of decision making which could be exhibited by a competent pilot, exercising a reasonable degree of skill. In particular, Mr Macarthur-Onslow considered that he would himself have elected to continue flying from north to south (T294). He also thought it would be within the range of reasonable choice to cross over the wire (T301). Mr Ogden accepted that, if it was reasonable for the pilot to continue going from north to south, the next step of crossing over the line would have the advantage of freeing up the observer from the task of inspecting the line, and enabling him to resume his function of maintaining a lookout for hazards (T300).
319Telstra submitted that the evidence demonstrated that Mr Carter acted within the norms of his profession, in relying upon the absence of hazard warning with respect to the east side of the private power line. He followed the normal practice of pilots in proceeding upon the basis that no hazard lay in the location, in the absence of information to the contrary from Endeavour (specifically, Mr Edwards).
320If, contrary to its primary submission, Precision was found to have liability arising out of the accident, Telstra submitted that any apportionment would result nonetheless in Endeavour bearing the vast majority of the liability. It was submitted that, when coming to determine apportionment or contribution between defendants, the Court must compare the defendants' culpability (the degree of departure from the standard of the reasonable man), and the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 493-494.
321When considering the relative acts and omissions of Endeavour and Precision (if any) in this case, Telstra submitted that Endeavour stands out as the major contributor to the accident and the injuries sustained by Mr Edwards. Endeavour's breaches of duty involved significant departures from the duty of care it owed Mr Edwards as its employer. Telstra submitted that Endeavour was armed with actual knowledge of the risks inherent in low-level aerial surveillance of power lines, and failed to take any of the necessary steps in order to put in place proper systems, provide proper directions or orders or provide proper equipment so as to eliminate or reduce the risks.
322By way of contrast, any breach found against Precision must be one arising from the manner in which Mr Carter controlled the helicopter on 4 April 2006. Until he flew along the spur line and actually laid eyes on the Inmans' private electricity line, he had no idea of its existence. As a result of Endeavour's failures to put in place any system of ground-based inspection and hazard identification, it was submitted that Mr Carter was navigating (with Mr Edwards' input as observer) by reference to Endeavour maps, which did not show the private line, let alone any relevant hazards such as the catenary wire. In addition, no markers had been placed on Endeavour's poles to warn of any approaching hazards.
323In the result, if there was any error of judgment on Mr Carter's part which amounted to negligence, Telstra submitted that this occurred in a setting wholly of Endeavour's making. Mr Carter was, in effect, forced to make a decision as to how best to undertake the inspection of the Inmans' private electricity line on the run.
324Applying Podrebersek v Australian Iron and Steel Pty Limited, Endeavour's departure from the standard of care was far more serious than any such departure by Mr Carter or Precision, and of far more significant causal potency.
Submissions of Precision
325The submissions of Precision in response to those of Endeavour picked up similar themes to those advanced by Telstra.
326The relevant question is whether Precision has breached its duty of care owed to Mr Edwards and, if so, whether the breach caused any loss. It was submitted that issues of remoteness and foreseeability arise on the question of duty of care. Precision submitted that it was not negligent and that, if there was a finding that its conduct fell short of the required standard of care, the harm suffered by Mr Edwards was not foreseeable and was too remote from any breach by Precision. Further, if Precision was in breach of its duty of care, that breach did not cause Mr Edwards' loss.
327Insofar as there had been a suggestion at one stage of the proceedings that Precision had not complied with its obligations under the Operations Manual, Precision noted that it was not put to Mr Carter that he had failed to comply with the Operations Manual.
328Precision advanced submissions with regard to the three criticisms maintained by Mr Ogden at the conclusion of the oral evidence.
First Criticism - Mr Carter Failed to Perform a High Level Reconnaissance Before Piloting the Helicopter to Inspect the Inmans' Line
329Both Mr Ogden and Mr Macarthur-Onslow, in the second joint report, state that the Precision Operations Manual required high-level surveillance to be conducted, before the route was flown and that proper practice required that this be done.
330Mr Ogden made the point, on a number of occasions in his oral evidence, that Mr Carter, in circumstances where there was a line he had not planned to inspect, and which was not marked on the map shown to him prior to the flight, should have climbed to a safe height to conduct surveillance of the line, before flying down to inspect it. Precision submitted that it was important to Mr Ogden's reasoning that Mr Carter was in a situation where he was aware that there had been a change in plan.
331Mr Ogden rejected a suggestion by senior counsel for Telstra that it was reasonable for Mr Carter to rely on the fact that Mr Edwards had flown the line over the preceding three years without incident, in making his decision to fly the Inmans' line without first conducting high-level surveillance (T289).
332Mr Macarthur-Onslow, on the other hand, said that commonly a pilot in Mr Carter's position, acting reasonably, would have proceeded to inspect the line without first conducting an aerial inspection, and that an aerial inspection should only be done if the observer advised the pilot that he was unfamiliar with the section of the line. He also made the point that it was unlikely that Mr Carter, once in the air, would have known that the Inmans' line had not been marked on the plan (T290, 294-295). It was common ground that Mr Carter did not have any maps in front of him as he piloted the helicopter on 4 April 2006.
333Precision emphasised the agreement of the aviation experts that, even if Mr Carter had conducted a high-level survey, it would have been very unlikely that he would have detected the Telstra wire (T295).
334With respect to this criticism, Precision submitted that the evidence of Mr Macarthur-Onslow that Mr Carter would have been unlikely to have known that the Inmans' line was not marked on the map, and that it was reasonable for Mr Carter to rely upon the observer, Mr Edwards, and immediately inspect the line, should be preferred to the evidence of Mr Ogden.
335However, Precision submitted that it was unnecessary to decide the question of negligence, because it could not be said seriously that any failure to carry out a high-level survey caused Mr Edwards' loss or injury. The aviation experts had agreed that, even if such surveillance was done, it was very unlikely that anyone would have seen the catenary wire. Even if Mr Carter had breached any duty, Precision submitted that his failure was not a necessary condition of Mr Edwards' harm and therefore was not a cause of his loss. Indeed, Precision submitted that any such failure had nothing at all to do with Mr Edwards' loss, because it was highly unlikely that an aerial inspection would have made any difference to the outcome.
336Precision submitted that the evidence of Mr Langerak supported the conclusion of the aviation experts. Mr Langerak had said that he had flown the Inmans' line from south to north in an earlier year. If the pilot or observer on that occasion had seen the catenary wire, it would no doubt have been recorded on the Endeavour map, or been remembered by Mr Edwards. That there was no such recording (and the fact that Mr Edwards had obviously not remembered such a matter) strongly supported a conclusion that, even from low-level surveillance on a prior occasion, no one saw the catenary wire. It was submitted that high-level surveillance was even less likely to have revealed the existence of the wire.
Second Criticism - Mr Carter Piloted the Helicopter at a Height Too Low to Give Him the Ability to Make a Successful Landing if the Engine Failed
337In the aviation experts' first joint report, some criticism was made that Mr Carter appeared to be flying the helicopter "too low to provide a fully adequate view of the top of the assets". The aviation experts expressed the opinion in that report that, "The helicopter was being operated too low to permit sufficient manoeuvrability to cross back over to a flat area should the engine have failed".
338The aviation experts observed that, "The failure to operate in accordance with the Operations Manual and also not choosing the better option of remaining over the flat country or raise the height of the survey indicated poor airmanship".
339However, in the second joint report (Exhibit EE11), the aviation experts effectively withdrew these criticisms. They said:
"Reference to being too low in accordance with the NENS Standard has been removed. There is also no evidence provided that indicates that the pilot was not operating in accordance with the guidance provided in the Precision Helicopter's Operations Manual."
340Precision submitted that the net effect of this was that the relevant criticisms contained in the first joint report were not maintained by the aviation experts, so that these issues cannot assist Endeavour in seeking an adverse finding against Precision in these respects.
Third Criticism - Mr Carter Took the Helicopter to the East of the Inmans' Line Which was Less Suitable Land
341Precision submitted that it was appropriate to consider the evidence of the aviation experts, and the context in which it was given, to allow an understanding of that evidence relating to the conduct of Mr Carter as pilot on 4 April 2006 (T299-301).
342Reference was made, as well, to the cross-examination of the aviation experts by counsel for Precision (T305).
343It was submitted that the evidence of the aviation experts did not support any finding adverse to Mr Carter and Precision.
344With respect to the second and third criticisms, Precision submitted that there are two questions - (1), whether Mr Carter was in breach of a duty and (2), if so, whether the harm suffered by Mr Edwards is too remote from the breach for him to have succeeded against Precision?
345To the extent that Endeavour sought to rely upon Mr Carter's hindsight concession and the criticisms of the aviation experts that the best option would have been to remain west of the line over flat ground, Precision submitted that there are a number of reasons why such reliance is misplaced.
346Firstly, Precision submitted that it was not factually correct to state that all of the land to the east of the Inmans' line was rising, and not flat. Precision submitted that the position was, in fact, that on the east of the Inmans' line from the area immediately to the south of the trees located at the northern end of that line is an area of rising land, and to the west is flat ground. However, this area of rising land to the east did not run the full length of the Inmans' line. Reliance was placed upon observations during the view noted in the transcript (T216-217, 219). It was submitted that a substantial part of the area to the east of the Inmans' line was relatively flat.
347Whilst it was unclear exactly where Mr Carter took the helicopter across to the east of the line, it was likely that it was at about the point where the ground had become flat to the east, or not very far before that point. Accordingly, it was submitted that caution must be exercised in approaching answers by Mr Carter and the experts based upon a faulty assumption.
348Precision submitted that these problems were compounded by the fact that Mr Carter's diagram had incorrectly recorded the trajectory of the Inmans' line, increasing the likelihood that Mr Carter did not have in his mind when he gave evidence, an accurate picture of the topography of the land.
349Precision pointed to the evidence of the aviation experts that it was reasonable for Mr Carter to be on the eastern side of the line, if there was flatter ground ahead of him. Even if Mr Carter crossed to the east before that ground was flat, there was certainly flatter ground ahead of him. On that assumption, it was submitted that the experts' considered opinion, that Mr Carter's decision to cross the line was reasonable, was correct.
350Secondly, Precision submitted that, to the extent that Mr Carter made any concession based on hindsight reasoning, s.5C Civil Liability Act 2002 excludes hindsight reasoning as a possible basis for finding negligence.
351Thirdly, Precision submitted that the criticisms of the aviation experts amounted to no more than an identification that Mr Carter may have had a better option. Section 5C(b) Civil Liability Act 2002 makes it plain that this does not support a finding of negligence. It was submitted that a mere error of judgment, or a mere mistake, does not constitute negligence.
352Fourthly, it was submitted that Mr Edwards was an experienced observer, including having had experience with the line in question, and he did not raise any risk with Mr Carter.
353Fifthly, Precision submitted that the reason for the need to stay on flatter ground was the risk of engine failure, and there had been no indication of any risk of engine failure on the day.
354Sixthly, Precision submitted that Mr Carter was put into a difficult, if not impossible, position because he had no earlier opportunity to plan for this part of the flight.
355Precision submitted that Mr Carter's decision to cross to the eastern side of the line was not negligent.
356If, contrary to Precision's primary submissions, the Court found that Mr Carter's airmanship when crossing from the west to the east of the Inmans' line fell short of the required standard of care, it was submitted that this was not sufficient for Endeavour to establish actionable negligence on the part of Precision. Endeavour must establish that the harm suffered was foreseeable and that the damage suffered by Mr Edwards was not too remote from any breach by Precision.
357It was submitted that the difficulty for Endeavour is that the harm that Mr Carter is said to have failed to take precautions against, was the harm caused by an engine failure leading to an emergency landing. Although Mr Ogden referred to this risk in his evidence, he did not say that the harm to be avoided, by the exercise of reasonable care, was the risk of striking an unmarked Telstra catenary wire.
358Precision submitted that the question then is whether the harm suffered by Mr Edwards was a foreseeable consequence of any failure to take reasonable precautions to deal with the risk of harm that may occur if there was an engine failure. Reference was made to statements of Glass JA in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Limited (1983) 2 NSWLR 268 at 295-6 to the effect that the "remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant". Reference was made to Hughes v Lord Advocate [1963] AC 837 at 845-847 and Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120-121, as well as Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 in support of this proposition.
359Precision submitted that the failure alleged against Mr Carter is that he did not take proper precautions to guard against the risk of engine failure, leading to the potential harm caused by an emergency landing on rising land. If there had been an engine failure, and a consequential emergency landing on rising land, and Mr Edwards had suffered harm as a consequence, then it is obvious that, if there was negligence by Mr Carter, the risk of the harm suffered was foreseeable and not insignificant, and liability would be established under s.5B Civil Liability Act 2002.
360However, Precision submitted that the facts of this case are far removed from that scenario. Firstly, there was no engine failure. What occurred to cause the harm was the presence of an unmarked and unseen Telstra catenary wire.
361Secondly, the helicopter striking the wire did not lead to Mr Carter landing the helicopter on rising ground (even it was established that there was rising ground to the east at the point of impact). He landed the helicopter to the west of the line on flat ground.
362Thirdly, it could not be said that the accident which occurred here, and the harm suffered, was a variant of the foreseeable harm as a result of engine failure, and an emergency landing on rising ground. Harm suffered by an emergency landing on rising ground, caused by engine failure, is not a variant of the harm suffered as a result of an emergency landing on flat land, caused by striking an unmarked and unseen catenary wire, where there is no engine failure. The nature of the harm is very different in character.
363Fourthly, it was submitted that Endeavour had adduced no evidence to suggest that the harm that Mr Edwards was likely to have suffered, if there was engine failure, was similar to the harm that he suffered from this accident.
364Precision submitted that the harm suffered by Mr Edwards was not a foreseeable risk of any failure by Mr Carter to keep the helicopter on the east of the Inmans' line, and that Endeavour's claim failed for that reason.
Decision
365In approaching the claim of negligent aviation against Precision, two matters must once again be kept in mind.
366Firstly, in accordance with ss.5B and 5C Civil Liability Act 2002, and well-known common law principles which remain applicable, hindsight reasoning is not the appropriate pathway to a finding of negligence. The conduct of the parties is not to be seen through the prism of hindsight: Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 441 [16]. The need to avoid hindsight bias has been emphasised. Hindsight bias has been described as the unavoidable tendency of bringing to account the fact that something has occurred when attempting to retrospectively evaluate the likelihood of it occurring: Shire of Gin Gin v Coombe [2009] WASCA 92; 52 MVR 382 at 390 [43]. Recognition of this phenomenon has led to insistence by the High Court of Australia that the assessment of the existence and content of a duty of care is to be undertaken looking forward, from a time before the occurrence of the incident giving rise to a claim, rather than backward from the time of the claim: Vairy v Wyong Shire Council at 443 [60]-[61], 461 [124]-[126]; Shire of Gin Gin v Coombe at 391-392 [45]-[46].
367Secondly, it is necessary to consider this question by reference to the evidence adduced at the hearing, and not some criticism which might be advanced by Endeavour. The evidence concerning alleged aviation negligence, on the part of Precision is relatively concise. It is necessary to keep in mind the nature of the risk which is said to arise from alleged negligence, and the relevance of that risk to the harm done to Mr Edwards in this case.
368I readily accept that Precision and Mr Carter owed a duty of care to Mr Edwards, as a person on the helicopter being flown by Mr Carter.
369There is some difference of opinion as between the aviation experts, Mr Ogden and Mr Macarthur-Onslow, concerning the question of aviation negligence in this case. It is necessary to keep in mind that Mr Ogden referred frequently to the concept of engine failure, as being part of the scenario which attracted criticism on his part. Engine failure had no part to play in these proceedings.
370To the extent of any difference between the opinions of Mr Ogden and Mr Macarthur-Onslow, I prefer the evidence of Mr Macarthur-Onslow. His evidence was more closely related to actual events and did not, to my mind, raise unrelated scenarios.
371Further, the relevant risk, for the purpose of these proceedings, is the risk of the helicopter coming into contact with the catenary wire. It does not seem that the aviation expert evidence, properly understood, provides assistance to Endeavour in its submission that the course of flying by Mr Carter in this case was negligent.
372I accept the submissions of Precision and Telstra that the flying of the helicopter at a higher altitude would not have provided any practical assistance at all in this case. Whatever the general advantages may be of a high-level reconnaissance, such a step would have provided no help in the detection of the low catenary wire on the Inmans' property. The catenary wire would not have been visible.
373To the extent that Endeavour stresses Mr Carter's concession of "poor airmanship", this is a concession based squarely on hindsight. Indeed, Mr Carter expressed it in those terms. I am not satisfied that the course of flying suggested by Endeavour would have made any real difference in this case.
374In approaching the question of aviation negligence on the part of Precision and Mr Carter, it must be kept in mind that the relevant risk was the risk of the helicopter striking the catenary wire. Further, what happened thereafter involved the helicopter landing on flat ground, but rolling over, in the course of which Mr Edwards suffered the tragic injuries to his head.
375A form of critique based upon an engine failure scenario, and the presence or otherwise of sloping ground, seems to have little to do with the risk relevant to this case, let alone the subsequent event which gave rise to the injuries sustained by Mr Edwards.
376Having considered the submissions advanced by Endeavour in support of a finding of aviation negligence against Precision, I am not satisfied that the requirements of the Civil Liability Act 2002 have been made out in this case.
377Accordingly, the point is not reached where it is necessary to consider submissions made, by reference to Podrebersek v Australian Iron and Steel Pty Limited, concerning apportionment between Endeavour and Precision. If that point had been reached, I would have adopted Telstra's submissions (at [320]-[324] above) and concluded that the overwhelming responsibility lay with Endeavour, so that any contribution to be attributed to Precision would have been small.