Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited and anor. v Essential Energy - [2014] NSWSC 1758 - NSWSC 2013 case summary — Zoe

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Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited and anor. v Essential Energy

[2014] NSWSC 1758

Supreme Court of NSW|2013-05-31|Before: Bellew J

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Source facts

Court

Supreme Court of NSW

Decision date

2013-05-31

Before

Bellew J

Source

Original judgment source is linked above.

Judgment (41 paragraphs)

[1]

INTRODUCTION

In early 2006 the Parkes Shire Council ("the Council") engaged South West Helicopters Pty Limited ("South West") to undertake an aerial survey of parts of the area for which it was responsible, for the purposes of determining the presence of noxious weeds. A similar survey had been successfully conducted in 2005.
On the morning of 2 February 2006 a helicopter departed from the Parkes aerodrome to conduct the survey. On board were the pilot, Shane Thrupp (an employee of South West) along with Ian Stephenson and Malcolm Buerckner. Mr Stephenson and Mr Buerckner were each employed by the Council, Mr Stephenson as a noxious weed officer.
At approximately 9.30am on that day, whilst in the vicinity of an area known as "The Dungeons" located approximately 20 kms east of the township of Parkes, the helicopter struck an overhead power line, the property of Essential Energy ("EE"). The helicopter exploded and crashed into a valley. All three persons on board were killed. As a consequence of that accident, a number of separate proceedings have been brought which are summarised below. It should be noted that proceedings brought by the widow of the late Mr Buerckner have been resolved.

[2]

THE STEPHENSON PROCEEDINGS

What I will refer to as the "Stephenson proceedings" encompass a number of separate actions brought by the wife and children of the late Mr Stephenson. For the purposes of summarising the submissions of the parties I have referred to Mrs Stephenson and her children collectively as "the plaintiffs".

[10]

The general area of the accident site

The Parkes aerodrome ("the aerodrome") from which the flight departed is located approximately 6 km east of the township of Parkes (longitude 16 on Ex SW 1). The Parkes-Orange Road ("the road") proceeds in an easterly direction from the aerodrome. It is a major highway in the area, and a likely reference point for air traffic (Ex SW 48 at p. 9). In an area known as Bindogundra, the road proceeds in a south/southeast direction towards what is known as "The Dungeons". The road then proceeds through The Dungeons before sweeping to the right past Bumberry, towards the township of Manildra and beyond that, towards the township of Orange.
The Dungeons is located about 14km east of the aerodrome. The accident site, which is near to the entry point into the Dungeons from the road, is situated within a valley. The road is located on the eastern ridge of that valley.
Just after entering the area of the Dungeons the road runs (generally) at right angles to two parallel power lines, one of which was that struck by the helicopter. Those power lines were approximately 7.9 metres apart, and 38.686m and 36.242m (approximately 120 feet) above the road respectively. They formed a span in excess of 1.2 kms between poles erected at each of the eastern and western ridges of the valley (Ex EE20 paras. 5-15).
At the time of the accident, vegetation had been removed from under the power lines which created a "clearance corridor" or easement (Ex EE20 at paras 17 and 18).
There were no indicators of electricity consumption in the immediate area of the accident site, such as houses, other buildings, dams or pumps (T1064 L31-49).
At the time of the accident, the area in and around the township of Parkes was classified by EE as a "fire prone area". As a consequence, an annual aerial patrol of the area was conducted by EE with the use of helicopters and aeroplanes for the purposes of identifying any potential fire hazards (Ex EE 25 at para. 41 and following).

[11]

The 2005 aerial survey

In 2005 the Council engaged a helicopter company in Dubbo to conduct a survey ("the 2005 survey") for the purposes of detecting the presence of two particular noxious weeds within the Parkes Shire, namely the African Boxthorn and the Blackberry. Mr Stephenson, as the noxious weeds officer for the Council, was primarily responsible for the detection, management and eradication of noxious weeds. Mr Sullivan was Mr Stephenson's immediate supervisor.
The 2005 survey represented the first occasion on which the Council had undertaken aerial surveillance for this (or any other) purpose. It was proposed that the survey be conducted from a height of 500 feet, with the capacity to descend to 330 feet if necessary (Ex PSC 6 at para. 9).
The 2005 survey was conducted on 24 May 2005. I am satisfied, in the absence of any evidence to the contrary, that it was conducted in accordance with the proposal to which I referred (in [23] above). Both Mr Stephenson and Mr Buerckner flew in the helicopter on that occasion. Neither had any training or experience in aerial surveillance work, be it in terms of planning the survey, identifying and addressing safety issues, or carrying out surveillance during the flight.
The route taken in the 2005 survey is set out in Exs. SW 3 and SW 33. It did not involve flying directly over what later became the accident site, but followed a path along the western edge of an area of National Park. The accident site is located on the eastern edge of that National Park, approximately 2 kms from the path taken in the 2005 survey.
A DVD of the 2005 survey is part of the evidence (Ex PSC 3). It is evident that on that occasion, the survey was conducted above the level of the surrounding terrain.
Following the completion of the 2005 survey, Mr Stephenson reported that it had been very successful. In particular, he reported that the survey had identified the presence of noxious weeds in far less time than would otherwise have been the case (Ex PSC 1 at para. 14).

[14]

The role of Mr Stephenson in the conduct of the survey

I have already noted Mr Stephenson's position within the Council and the purposes for which the survey was to be conducted. In the circumstances, there is obviously no direct evidence of the part Mr Stephenson played in the conduct of the survey prior to the accident. However, there is other evidence which bears upon this issue.
The determination of how an aerial weed survey might be conducted was, from the point of view of South West, a determination made having regard to the requirements of the customer. It was the practice that the customer would request the pilot to operate in a particular way in terms of speed, height and direction, although it was obviously up to the pilot to determine whether these requests could be safely met (Ex SW 6 para. 16).
For the purposes of the 2005 survey, the Council purchased a digital camera although it was not necessary to use the camera to detect the presence of the weeds (Ex. PSC 2 at para. 6). The DVD of the 2005 survey (Ex 3) shows the helicopter being piloted by Mr Thrupp.
The procedures of South West included a briefing by the pilot in relation to (inter alia) matters of flight safety. This included those travelling on board being asked to keep a lookout for any hazard which might present itself, including power lines. On a previous similar survey conducted on behalf of another Council, Mr Thrupp had reminded those on board of the necessity to keep a look out (Ex PSC 7 at para. 19).
Further, although the ultimate responsibility remains with the pilot, the very nature of aerial surveys conducted to determine the presence of noxious weeds is such that other person(s) are on board for the purposes of observing the areas in which those weeds are present. The pathway which is flown in such surveys is determined, to some extent, according to the requests and requirements made by the customer in the course of the flight (Ex SW 7 at para. 3). It is not uncommon for the pilot to be asked to fly in a particular direction to enable vegetation to be inspected (Ex SW 7 at para 6). In short, the conduct of an aerial weed survey involves requests being made by those who have the responsibility of carrying out the actual inspection (Ex SW 7 at para.7). Given his position with the Council, I am satisfied that this was to be part of Mr Stephenson's role in the follow up survey.

[15]

The proposed height threshold

Kent Boyd was the General Manager of the Council when the survey was being planned. He was involved in the arrangements for the survey leading up to February 2006 (Ex PSC 1, paras. 15 and 16). According to Mr Boyd, Mr Sullivan (who was Mr Stephenson's immediate supervisor) had informed him (inter alia) about the proposal to conduct the survey and had advised him that the flight would be undertaken "at the same height as the last survey" (i.e. 500ft).
In a second statement made on 26 April 2013 (Ex PSC 2) Mr Boyd explained (at paras. 8 and 9) that the information about the proposed height threshold had been conveyed to him by Mr Sullivan and Mr Stephenson at what he described as an "informal meeting" which had taken place in his office. According to Mr Boyd, this meeting represented his only involvement in the planning for the flight (Exhibit PSC 1 at para. 16).
Prior to making the statements which are Exs PSC 1 and PSC 2, Mr Boyd had made three other statements (Exs. SW 28, SW 29 and SW 30). Exhibit SW 28 was a "joint statement" which he had made with Mr Sullivan to an insurance investigator on 9 February 2006, one week after the accident. Exhibits SW 29 and SW 30 were statements made by Mr Boyd to police on 8 March 2007 and 1 April 2008 respectively. None of these statements made any reference to any meeting having taken place, nor did they make any reference to a discussion about the height at which the proposed survey was to be conducted.
When cross-examined (commencing at T416 L25) Mr Boyd said that paragraph 15 of Ex PSC 1 encapsulated "most" of the discussion which had taken place, although he said that there was "a longer discussion than that". Paragraph 15 of Ex PSC 1 does little more than record a statement said to have been made by Mr Sullivan in which he referred to the proposed survey in the most general terms. If there was a longer discussion, why it was that Mr Boyd did not set it out in his statement remains unexplained.
Mr Boyd agreed that the first occasion on which he had mentioned anything about having had a conversation with Mr Sullivan regarding height levels was in 2012. He also agreed that there was no record, be it in the form of a minute, file note, memorandum, diary note or any other document, of the "informal meeting" to which he referred in Ex PSC 2 (at T419 L15-36).
The absence of any reference, in any of Mr Boyd's earlier statements, to the informal meeting is significant. In particular, Ex SW 28 is a statement made to an insurance investigator on 9 February 2006. This was only one week after the accident. That statement canvasses the circumstances which led to the survey being arranged, approved and undertaken. It is evident that for the purposes of making that statement Mr Boyd's mind was being specifically directed to those issues. It is therefore surprising, to say the least, that when making that statement Mr Boyd completely omitted to make any reference to any discussion about flight thresholds, as well as any reference to an informal meeting, only to then recall such matters several years after the event.
In cross-examination (commencing at T420 L8) Mr Boyd was asked what steps had been taken to ensure that the proposed height threshold was incorporated into a plan for the flight. In response he said: "The officers that discussed it with me in essence assured me that they had researched that, and that is what they were going to do. So I had been assured, if you like, that that had been incorporated into the thinking on this operation".
When asked what he understood had been researched, Mr Boyd said (T420 L17): "They had spoken as I understand, with the - themselves and the pilot. So Ian Stephenson and Peter had discussed it. They indicated that they had spoken to the pilot and then they had spoken to me."
Mr Boyd then said (T420 L49): "I am merely saying that I recollect that they mentioned, or that Ian had mentioned, he had spoken to the pilot."
Mr Boyd was asked (T421 L11) what instructions had been issued to the pilot in relation to flight levels. He responded by saying that he did not know.
It is appropriate, at this point, to make some observations arising from these aspects of Mr Boyd's evidence.
Firstly, as I have previously noted, Mr Boyd's principal evidentiary statement (Ex. PSC 1) contained no reference at all to any meeting having taken place, informal or otherwise. His three previous statements (Exs. SW 28, SW 29 and SW 30) similarly included no such reference. The first reference to any meeting was contained in Ex. PSC 2. That statement was signed in April 2013, more than 7 years after the accident occurred.
Secondly, according to Mr Boyd, what was being discussed involved a proposal to engage in an important exercise, which involved Council expenditure and which necessarily exposed Council employees to a risk of injury. It might reasonably be expected that a meeting of that nature, if it did take place, would have been documented in some way, yet on the evidence before me it was not.
Thirdly, and quite apart from the absence of any reference in Ex. PSC 1 to a meeting, there was no reference in that document (or in any earlier statement made by Mr Boyd) about Mr Boyd being told anything about the proposed height threshold for the survey. That was a matter which emerged for the first time in Ex PSC 2, a statement made years after the event.
Fourthly, Mr Boyd's evidence as to what was said about height thresholds was at best vague, and in one important respect, contradictory. As I have set out (at [44] above) he initially said that he had been told that "they" (i.e. Mr Sullivan and Mr Stephenson) had spoken with the pilot. He then shifted from this position and said that Mr Stephenson had told him that he had spoken to the pilot. The precise terms of any such discussion were not made clear.
Mr Sullivan agreed (T474 L31 and following) that in addition to Ex PSC 6 he had made: 1. a joint statement with Mr Boyd on 9 February 2006; 2. a statement to the police on 22 March 2007; and 3. a file note which was made the day after the accident.
Mr Sullivan's evidence (Ex. PSC 6 para. 21) was that Mr Stephenson had informed him that the flight would be conducted at the same height level as the 2005 survey. When cross-examined (T477 L45-47) he maintained that this had occurred in a discussion which had taken place in Mr Boyd's office. He conceded (T517 L38-43) that there was no reference in any of the statements in [52] above to having made enquires, or having had discussions with Mr Stephenson, about height levels. When it was put to him that he had not had any such discussions with Mr Stephenson, Mr Sullivan said (T474 L4): "My understanding was that the flight was to be conducted at the same height above ground level as the Dubbo flight. The reasoning is because Ian, after the Dubbo flight, said that 500 feet was more than adequate to identify weeds."
Mr Sullivan's use of the word "understanding" is telling. It is consistent with evidence he had previously given before the Coroner (T517 L18 and following) when he said: "Ian I believe made investigations into their qualifications. We, I was under the impression that we would not be going below the heights as specified in the 2005 flight. "
Mr Sullivan may have been under an "impression" about height levels. However, on neither of the occasions referred to in [53] and [54] above did he make reference to having had a discussion about the matter.
Mr Sullivan also agreed (T517 L45 - T518 L1) that he gave the following evidence before the Coroner: "Q. And you would agree that approval seems to have been given for the 2006 flight without any reference to height limitations? A. Yeah, but once again the fact was that we understood that the flight would not go below the previous flight. Q. This seems to have been understood but never stated? A. Yes."
Mr Sullivan's concession before the Coroner that the proposed flight level was "understood but never stated" runs contrary to his evidence (in [53] above) that Mr Stephenson had actually informed him the flight would be conducted at the same height level as the 2005 survey. I am satisfied that no discussion whatsoever took place between Mr Stephenson and Mr Sullivan regarding the height threshold for the flight. I am also satisfied that such threshold was not documented in any way at all. That omission was, as Mr Sullivan conceded, a significant failure of Council policy (T 515 L25).
The first suggestion Mr Sullivan made about a discussion having taken place with Mr Stephenson concerning the height threshold was in May 2012 when he signed Ex. PSC 6. In the previous 6 year period, he had made two statements and prepared one file note in relation to the accident. It is evident from the terms of Ex SW 28 that for the purposes of making that statement Mr Sullivan (and for that matter, Mr Boyd) had been asked to call to mind matters leading up to the accident. In those circumstances, the failure of each of them to record discussions that they now say took place is obviously significant.
I am satisfied that Mr Sullivan assumed that the height level for the survey would be the same as was the case with the 2005 survey, but that he did not discuss it. As he told the Coroner, it was something which was understood but never stated.
I am satisfied that neither Mr Boyd nor Mr Sullivan had any discussion, with Mr Stephenson or anyone else, about height thresholds when preparing for the flight. I am also satisfied that no meeting, informal or otherwise, ever took place, and that neither Mr Boyd nor Mr Sullivan took any steps to: 1. properly ascertain the proposed height levels of the flight; and/or 2. ensure, by giving a direction to Mr Stephenson, that a particular minimum threshold be maintained; and/or 3. ensure, by giving a direction to the pilot (be it through Mr Stephenson or otherwise) that a particular minimum threshold be maintained.
I am satisfied on the evidence that both Mr Boyd and Mr Sullivan simply assumed, absent any discussion or enquiry, that the flight for the proposed survey would be the same as was the case with the 2005 survey. Neither of them took any step(s) to ensure that this would be the case.

[17]

The Council's risk assessment

Annexure F to Ex. PSC 1 is a document entitled "Local Government Occupational Health and Safety Handbook". It was issued by the Council and bears a date of 12 December 2004. It was thus operative at the date of the accident.
Page 4 of Annexure F, under the heading "Parkes Shire Council Safety Policy Statement" includes the following: "PURPOSE To ensure a safe workplace for all through consultation with staff and by implementing policies, procedures and risk management principles including hazard identification and control into the daily activities of Council. MANAGEMENT RESPONSIBILITY The promotion and maintenance of Occupational Health and Safety is primarily the responsibility of management. Management at all levels is required to contribute to the health, safety and welfare of all persons in the workplace. To this end, it is management's responsibility to develop, implement and keep under review, in consultation with its employee's (sic), the Organisations OHS program."
The document then deals with specific responsibilities of contractors and sub-contractors, and states: "(d) CONTRACTORS & SUB-CONTRACTORS All contractors and sub-contractors engaged to perform on Council's premises or locations are required, as part of their contract, to comply with the Occupational Health and Safety Acts, Regulations, Council Policy, programs and procedures and Council's Sun Protection Policy and to observe directions on health and safety from designated officers of the organisation. Failure to comply or observe directions will be considered a breach of the contract and maybe (sic) considered sufficient grounds for termination of the contract."
Mr Boyd accepted (T457 L49 - T458 L4) that a risk assessment was required in any case where a Council employee was required to work near overhead wires. Obviously, Mr Stephenson and Mr Buerckner were going to be in that position when the survey was being undertaken.
By reference to Annexure F to Ex PSC1, Mr Boyd said (T422 L23) that he believed "everyone had a role" in the process of risk management in respect of the proposed survey. He conceded (T424 L44) that he gave no consideration, in preparing for it, to any information which the Council might have held regarding the presence of power lines in the area in which the flight was to be undertaken. He said that whilst he was not sure whether the Council had such information available to it, he did not turn his mind to the question of whether or not it should have been sought and obtained for planning purposes (T425 L28).
Mr Boyd then gave the following evidence (commencing at T425 L35): "Q. This is the situation, isn't it, in 2006. Noone in council instructed Ian Stephenson as to minimum heights? A. I don't believe he was instructed, no. Q. And noone in council instructed the pilot as to minimum heights? A. I don't know the answer to that. Q. Noone in council instructed Ian Stephenson to instruct the pilot as to minimum heights? A. I didn't. Q. Noone checked that those instructions were all complete? A. I didn't, sir, no. Q. The risk management, such as it was, was just left to Mr Stephenson, wasn't it? A. Well, I think we did the substantial portion of the risk management in my office between Ian Stephenson, Peter Sullivan, and myself.
For the reasons already outlined, I am satisfied that no discussion ever took place in Mr Boyd's office. A discussion of the kind described by Mr Boyd, even if it had occurred, would have fallen substantially short of constituting a "substantial portion of the risk management".
Mr Boyd accepted that: 1. the ultimate responsibility for occupational health and safety issues rested with him, and that this required that risks be identified and managed (T433 L1); 2. before entering any contractual relationship with a service provider, either a risk assessment or a safe work method statement should be in existence (T438 L35-43); 3. notwithstanding (ii), and notwithstanding his acknowledgment that documentation is an important aspect of management and elimination of risks, neither a risk assessment (T438 L1-8) nor any safe work method statement (T438 L21) could be located as having been prepared in respect of the proposed flight.
When asked whether he considered it acceptable that no risk assessment was undertaken in advance of the flight, Mr Boyd said (T440 L31 and following): "With small projects, unfortunately it's not necessarily uncommon. HIS HONOUR Q. Is that another way of saying that the smaller the project the less scrutiny that's applied to matters of this nature? A. Unfortunately, your Honour, sometimes that's the case. "
Clearly, Mr Boyd regarded the proposed survey as a "small project", in the sense of being one which involved what he considered to be small expenditure on the part of the Council (T440 L6-18). As a consequence, the scrutiny which he applied to assessing and managing the risk(s) associated with it was commensurately small, to the point of being largely non-existent. The folly of such an approach is self-evident. In my view, it represented a significant departure from what was required.
Mr Boyd also gave evidence (commencing at T441 L21) that it was the Council's practice for any prospective contractor to be asked to provide particular documentation before any expenditure was authorised. This included any relevant licence or authority required to perform the work, as well as evidence of insurance cover. He agreed that absent such material, a contract should not be allowed to proceed.
Notwithstanding this, he conceded (commencing at T443 L14) that at the time of engaging South West, the Council had not asked South West to provide: 1. verification of its licence; 2. verification of any insurances it held; 3. a risk assessment; or 4. a safe work method statement.
According to Mr Boyd, it was open (and apparently acceptable to the Council) to conduct a risk assessment at the aerodrome shortly prior to take-off (T440 L22-27). On the evidence, the only representatives of the Council who it anticipated would be present at the aerodrome prior to take-off were Mr Stephenson and Mr Buerckner. Their experience, such as it was, was limited to flying on the 2005 survey. Neither had any experience in assessing risk, nor was such assessment the responsibility of either of them.
The only available conclusion is that Mr Boyd apparently thought it acceptable to delegate the task of risk assessment to either or both of Mr Stephenson and Mr Buerckner, in circumstances where such assessment was to be conducted at the aerodrome immediately prior to the flight. It was completely inappropriate to delegate that responsibility to an employee. Even if it could be regarded as appropriate, Mr Boyd not give any relevant instructions about how the assessment might be conducted and, in particular, what might happen in the event that a risk was identified. In particular, he gave no instructions to either Mr Buerckner or Mr Stephenson to convey anything to the pilot about the minimum height threshold.
Mr Boyd said that despite all of these matters, he nevertheless believed that "the procedures were followed" (T446 L21-23). When asked (commencing at T446 L27) why he held that view, he said: "A. Because when we discussed it, that there was discussion about insurances, certification, experience, qualifications. Q. OH&S risk assessment? A. OH&S, well certainly experience and qualifications and insurance, so we discussed those things and that's largely what these documents prescribed."
Mr Boyd's evidence was that he had a single discussion about the flight. For the reasons previously set out I am satisfied that no such discussion ever took place. I am further fortified, in coming to that view, by the fact that there is no reference in any of Mr Boyd's statements to any discussion having taken place in respect of the insurances, certifications, experience or qualifications of South West as the contractor. In the absence of any such reference(s) I do not accept that such matters were ever the subject of discussion with Mr Boyd at any time. Once again, Mr Boyd's evidence in this respect emerged years after the event.
I am also unable to accept Mr Boyd's evidence that the "procedures were followed". Mr Boyd had the ultimate responsibility for the identification and management of relevant risks associated with the flight. He failed to discharge that responsibility. He accepted that a risk assessment was required but did not perform it. He left it all to Mr Stephenson, a person with little experience in aerial weed surveys.
I am satisfied that these various failures on the part of Mr Boyd stemmed from his determination that the proposed flight was a "small project". He expressly conceded that on occasions, less scrutiny was applied to the necessity to conduct risk assessments because the expenditure on the project was low. Such an approach is completely at odds with the proper discharge of the duty imposed upon an employer to ensure the safety of its employees.
Mr Sullivan also had responsibilities in this regard. He supervised and managed both Mr Stephenson and Mr Buerckner. He accepted that as their supervisor and manager he was required to ensure that the Council's policy in respect of safety issues was effectively implemented. He specifically conceded (T483 L36) that he was responsible for ensuring compliance with the relevant OH&S program. He agreed that Annexure F to Exh. PSC 1 stipulated, amongst other things, that all relevant hazards be identified. For the reasons I have stated, these issues were not addressed.
Mr Sullivan was well aware of the danger posed by power lines in a project which involved aerial surveillance (T484 L21 and following). In the context of the proposed survey he was specifically aware that: 1. there were wires present in the area in which the survey was to be conducted; 2. they included a single long span; 3. such span ran higher than the average power line in the vicinity of the Dungeons.
Mr Sullivan conceded (commencing at T483 L45) that no "specific sit down" risk assessment was conducted in respect of the 2006 flight. His explanation for that was in the following terms: "I was advised that the same flight conditions would apply, and we believed that, or we were confident that power lines would not come into play at that height. "
For the reasons stated, I am satisfied that Mr Sullivan was not advised about, and did not discuss, height levels. His statements make no reference to ever discussing power lines, or the risk they posed. I am satisfied that he did not discuss such matters but that he assumed that the previous procedure would be followed again.
Mr Sullivan approved the expenditure for the flight in the absence of any documented safe work method statement or risk assessment being provided by South West (commencing at T494 L1). He said that Mr Stephenson had informed him that such documents "would be coming with the helicopter and that he would view them prior to take off" (at T494 L21). When asked why, in all of these circumstances, the flight was allowed to proceed, Mr Sullivan said (commencing at T528 L7): "A. Once again, the documentation Ian informed me was coming over with the pilot and he would view them before take off. So for a contract of this size, it was common practice to view their insurances and safe work method statements prior to them undertaking the work."
For the reasons I have already stated, it was not Mr Stephenson's responsibility to assess whether the flight should proceed in light of such documents as were provided. He had no relevant experience in such matters. Moreover, I am satisfied that Mr Sullivan gave no direction to Mr Stephenson not to take off until such time as those documents had been produced. Mr Sullivan conceded that the failure to procure a risk assessment from South West prior to the departure of the flight was a significant departure from the Council's stated policy (at T515 L23-36). It is no answer to assert that there was some understanding that such matters would be attended to by Mr Stephenson prior to the helicopter taking off.
The suggestion that Mr Stephenson's viewing of documents immediately prior to take off amounted to an appropriate risk assessment overlooks two fundamental considerations. Firstly, it was not Mr Stephenson's responsibility. Secondly, Mr Sullivan could not possibly have thought that Mr Stephenson, a person with no aviation experience, was in a position to determine whether the documentation provided by South West was satisfactory so as to allow the flight to proceed. The responsibility for doing so should never have been delegated to him.
Mr Sullivan then gave the following further evidence (commencing at T528 L15): "Q. What did the size of the contract have to do with anything, Mr Sullivan? A. It was the size of the contract generally stipulates how much investigation or sort of preengagement documentation you have to undertake. Q. Could you please look through this document, and tell his Honour where in the engaging of contractors procedure one is to find a clause that matches the description you have just told us about now? A. Yeah. No, it is not there. Q. It doesn't exist, does it? A. No, it doesn't. HIS HONOUR Q. Does that mean that you pay more attention to contracts that are worth more money than you do to contracts that are worth less money in terms of adhering to your procedure? A. The requirement for documentation is generally increased as the contract size increases, yes."
The evidence of Mr Sullivan in this regard was consistent with that of Mr Boyd. It was submitted that the approach taken by both Mr Boyd and Mr Sullivan, which involved equating expenditure with risk, was indicative of a "culture" within the Council. Without labelling it in that way, I am satisfied that within the Council, projects which were regarded as involving small expenditure attracted substantially less scrutiny, in terms of risk assessment and management, than projects which involved the expenditure of larger sums of money.
Such an approach was necessarily fraught with danger. As a matter of common sense, the fact that expenditure on a project may be small does not mean the risk is commensurately small. The present is a case in point. The proposed survey involved hazardous work, in the carrying out of which two Council employees were to be directly exposed to power lines.
For all of these reasons, and in the respects that I have identified, both Mr Boyd and Mr Sullivan failed to discharge their respective responsibilities to ensure that the risks associated with the proposed survey were identified, assessed and managed prior to the departure of the flight.

[18]

Data available to the Council

Mr White gave evidence (Exs SW 11 and SW 12) about the availability of a computer program in 2005 known as "Map Info", which allowed multiple pieces of topographical information to be obtained from external sources, collated, and effectively reproduced in one document. In the context of the present case, the program permitted data to be obtained from an external source, and then superimposed over an existing map so as to provide a composite topographical picture of a particular area. Mr White demonstrated the process in the course of giving evidence.
For some time EE (and its predecessor Country Energy) maintained a computer-based system recording data about its assets. The data consisted of information identifying the location of (inter alia) poles and power lines. The system allowed such information to be represented on cadastral maps (Ex EE 23 at paragraph 5).
Mr Pallot identified the four poles supporting the power line struck by the helicopter as: 1. P310964; 2. P310965; 3. P310966; and 4. P310967.
Data was provided to the Council on 11 October 2005 which showed an overview of the information provided, as well as a detailed view of the area of the accident (Ex PSC 8 at para 8). It was provided in a form which enabled it to be transposed into the Map Info program operated by the Council (Ex. PSC 8 at para.8; Ex EE 23 at para. 15).
Mr Pallot conceded (paragraph 3 of Ex EE 24) that the data provided to the Council in October 2005 contained inaccuracies. However, he maintained that it was "overall reasonably accurate" in terms of identifying the location of power lines in the area to be covered by the survey. He accepted that when the Council received the data, the location of the poles had not been incorporated into the system and accordingly such material as the Council did receive did not include reference to those locations (T637 L5-13). He could give no indication of the accuracy of the data as at 2006 (T642 L42-44).
Mr Fitzsummons, the Council's Assets Manager, had access to the information which had been provided to the Council by EE. He formed the view that in some respects it was "incomplete and probably inaccurate". This, he explained, was because he noticed areas where poles were depicted but where there was an absence of notification of the presence of wires or conductors running between them (Ex. PSC 8 at para 10; Ex. PSC 9 at para. 5). As a consequence, Mr Fitzsummons was not confident in using the information which had been provided. However, he conceded (T555 L89-41; T559 L23-26) that he had no reason to doubt the accuracy of the data which was produced in relation to the area of the Dungeons.
As the Council's Assets Manager, the primary interest of Mr Fitzsummons (in terms of the data which had been supplied) was the identification of underground assets (T551 L12-14). Although he knew of the 2005 survey (T551 L37-39) he knew nothing of the proposal that a further survey was to be conducted in 2006 (T550 L4-6). In these circumstances he gave no thought to the use to which the data which had been supplied could be put in terms of planning for that survey. No one from the Council made any enquiry of him in relation to it (T551 L41-T552 L6). No criticism can be levelled at Mr Fitzsummons in these respects. He had no role to play in the preparation for the proposed flight. Indeed, he was unaware that it was to take place. His duties and responsibilities within the Council lay in an entirely different area.
However, and in circumstances where Mr Boyd and Mr Sullivan were aware of the danger of a wire strike, it remains the case that there was information regarding the presence of power poles and power lines in the area of the Dungeons which was available to the Council in the period leading up to February 2006. Even though Mr Fitzsummons had some misgivings about its accuracy, they did not extend to the data as it applied to the area of the Dungeons. That data would clearly have been relevant to addressing the risks associated with the proposed flight. The data was not disseminated within the Council once received. Neither Mr Boyd nor Mr Sullivan asked for it to be provided to them for the purposes of preparing for the flight, and assessing the risks associated with it.

[19]

SOUTH WEST'S PLANNING FOR THE SURVEY

Mr Dolby, the Chief Pilot of South West, gave evidence regarding the preparations for the flight which were undertaken by South West. He said that it was commonplace for an organisation who requested a weed survey (in this case, the Council) to take part in a briefing conducted on the same day as the flight. He described that procedure (T64 L40) as "on the spot ad hoc planning" which, he said, was "far more common than getting an intensive briefing or planning in advance" (T64 L39 to T65 L1). Mr Dolby was not present at the Parkes aerodrome on the morning of 2 February 2006. He therefore knew nothing about any briefing on that day.
On 30 January 2006 Mr Dolby met with Mr Thrupp. According to Mr Dolby (Ex SW 5 at paragraph 16): "(Mr Thrupp) told me that along with two other bookings he had a noxious weed survey on behalf of Parkes Shire Council. I was not involved in making the arrangements with Council. The conversation covered a series of surveys and their hazards".
Mr Dolby said that a further conversation took place on the following day, (31 January 2006) at which time he and Mr Thrupp "rehashed a couple of points" (T123 L23). These were the only two occasions on which Mr Dolby had any discussions with Mr Thrupp regarding the proposed survey.
When cross-examined, Mr Dolby explained that during the first of those discussions he and Mr Thrupp spoke about the "dangers of low level weed survey" (T108 L23-29). However, he said that there was no specific discussion concerning the particular survey to be undertaken for the Council (T112 L44). He said that the discussion was conducted over 2 hours (T122 L35) although he later clarified that this 2 hour period was not entirely devoted to discussions about the proposed flight(s) (T122 L46).
What Mr Dolby described as having taken place when he spoke with Mr Thrupp appears to have been an extension of the system of "ad hoc planning" which he said was common. Whilst it may have been common, whether it was adequate is another question entirely. On the evidence before me, it was not. In particular, there is no evidence that the discussion between Mr Dolby and Mr Thrupp covered (for example) the risk posed by flying in an area where there were overhead power lines, or what should be implemented, in terms of a plan for the flight, to address and manage that risk.
Mr Dolby said that there was an expectation on the part of South West that the customer requesting the survey would provide a map showing the area which was to be covered (T114 L25-28). He also said (T147 L25) that South West "was invariably given a map of some description produced by the customer to show where they wished to go". However, he later conceded (T147 L37-40) that situations may have arisen when a flight was permitted to be undertaken without any map being provided at all (although the survey was not necessarily one of them).
Mr Dolby then said (T114 L30) that it was his practice to direct the pilot to obtain a copy of a map of the relevant area prior to any flight being undertaken. He initially said that he could not recall giving such a direction to Mr Thrupp. He later stated (T115 L1-9) that he had not done so, and had not directed him not to commence the flight without a map being available.
The approach taken by Mr Dolby in these respects was unsatisfactory. The notion of allowing a pilot to undertake a flight of this kind without being assisted by a map of the area which was to be overflown reflects a lack of proper planning. Identifying, in advance, the area which was to be the subject of the proposed survey was a fundamental step in addressing any associated risk.
Mr Dolby's approach to planning for the flight also ignored important provisions of the Operations Manual (Ex EE1). Mr Dolby agreed (T91 L47-50) that the Operations Manual contained comprehensive directions concerning procedures and the handling of aircraft operated by South West. He also agreed that as the Chief Pilot of South West he was under a positive duty to comply with all procedures which were specified in it (T97 L45 - T98 L4).
The Operations Manual required (inter alia) that any proposal for an aerial survey be forwarded through Mr Dolby, in his capacity as the Chief Pilot, for the purpose of conducting a "Task Profile Assessment". Mr Dolby initially explained (T118 L34 and following) that he understood that such assessment was an assessment of "the general requirements of the job", which involved considering whether the pilot he intended to assign to the job was "capable of doing it". However, he ultimately accepted (T119 L17) that the conduct of a proper Task Profile Assessment required something more than simply considering the competence of the pilot.
Notwithstanding this, and leaving aside his conversations with Mr Thrupp, the "assessment" he conducted in the present case involved little more than reaching a conclusion that Mr Thrupp was competent to undertake the task of conducting the survey (T119 L33). That conclusion said nothing about, and incorporated no consideration of, the actual task to be undertaken. Those were matters which were fundamental to the conduct of any proper assessment. The assessment performed by Mr Dolby involved no, or no proper, consideration of any attendant risk(s), and thus no determination of the manner in which those risks could be addressed. It follows that the assessment (such as it was) which was carried out by Mr Dolby fell substantially short of what was required.
Mr Dolby asserted that if there was a particular safety requirement of the job that was required to be addressed in advance, it was his policy to deal with it (T65 L3-7). Given the nature of the aerial survey which was to be conducted in this case, the obvious risks associated with such a survey, and the consequent safety considerations which arose, I am unable to accept Mr Dolby's evidence that he had a policy of addressing matters in advance. For the reasons already stated, the assessment he undertook in this case did not involve any proper consideration being given to the requirements of the task which was to be undertaken. Without considering such requirements, he could not possibly have been in a position to identify any particular safety requirement(s) which may have needed to be addressed.
Section D of the Operations Manual contained provisions which were specifically related to aerial spotting and survey operations. Those provisions imposed an obligation upon Mr Dolby, as Chief Pilot, to carry out a briefing with Mr Thrupp prior to the flight. The briefing was required to address (inter alia):

confirmation of the boundaries of the area the subject of the survey;
the location and description of any known hazards or obstacles; and
the identification of restricted, prohibited or dangerous areas within the survey area.

I have already made reference to the two conversations which took place between Mr Dolby and Mr Thrupp in the period leading up to the accident. Mr Dolby's evidence about the content of those conversations contains no reference at all to any of the matters in [115]. Mr Dolby accepted (T122 L12) that addressing those matters was a mandatory requirement imposed by the Operations Manual.
Mr Dolby maintained that he had "discussed some of these issues specifically" with Mr Thrupp (T122 L19). However, his evidence in this regard was vague. His evidence that he addressed "some" of the issues set out in the Operations Manual strongly suggests that he did not address all of them. The issues which were the subject of discussion remain unclear. What is clear however, is that Mr Dolby failed to meet the obligations imposed upon him by the Operations Manual to conduct a proper briefing. In particular, there is no evidence that any briefing addressed the identification of hazards such as overhead wires.
In addition to all of these matters, the planning by South West for the survey (such as it was) did not incorporate the preparation of any written risk assessment or safe work method statement in relation to the flight (T115 L38-50). In the course of being cross examined (T130 L22-30) Mr Dolby gave the following evidence in this respect: Q Are you suggesting that in the absence of a detailed briefing from you Mr Thrupp was able to work this out for himself? A Yes. Q Is it in fact the case that on this occasion, prior to the Parkes flight, that that is what you did, you left those features up to Mr Thrupp to work out for himself? A That's correct. I made a briefing based on the information I had available and left it to Mr Thrupp to pick up the rest.
I am satisfied that, in terms of assessing the relevant risks, Mr Thrupp was left to "pick up" the relevant considerations, Mr Dolby having failed to conduct any proper assessment. That was not adequate. In particular, it did not comply with the requirements of South West's Operations Manual.
Moreover, for Mr Dolby to suggest that he "made a briefing based on the information he had available" ignores the fact that he had not had any dealings with the Council. I am satisfied on the evidence that apart from the fact that the proposed flight was for the purposes of conducting a weed survey, Mr Dolby had little or no information upon which to conduct a briefing. In the absence of a map, he was not even aware of the precise area which was to be overflown. No risk assessment was undertaken. Hazards were not identified. Mr Dolby left all of those matters to Mr Thrupp. This represented a fundamental failure on the part of Mr Dolby to comply with the obligations imposed upon him as the Chief Pilot of South West.

[20]

THE FLIGHT

Mr Stephenson telephoned Mr Sullivan at 8.35am on 2 February 2006 and told him that the helicopter was about to take off (Ex. PSC 6 at para. 28). Mr Dolby's evidence was that generally speaking, flying at 300 ft was a comfortable height for a noxious weed survey (T74 L20-23).
At about 9.30 am, Sgt Park of the NSW Police was driving along the road near the accident site and saw debris. As he did so, he was approached by Russell Schmidt who told him that a helicopter had "just crashed" (Ex. SW 27 at paras 3-5).
Mr Schmidt had been driving in the vicinity of The Dungeons when he first saw the helicopter in front of him. He described (Ex. SW 15 at para. 5) that the helicopter "came from over the hill on the right hand side" before banking around and then flying in the same direction as that in which he was travelling, a manoeuvre he described as being in the nature of a u-turn (commencing at T234 L20).
Mr Schmidt continued (Ex. SW 15 at paras. 5 and 6): "Everything looked normal and it was flying along and I would estimate it was fifty or sixty feet above me. The engine sound (sic) fine at that stage and then I saw the overhead power line and it looked like it was attached to the main propeller. That power line runs straight over the tops of the hills and right across the middle of the road way. The next thing I know there was loud explosion and the helicopter started losing pieces of it. There was debris falling down onto the road in front of me and I had to pull the car up. The helicopter then tipped backwards and fell out of the sky. It fell into the trees on the side of the road."
In further evidence in chief (T217 L37 and following) Mr Schmidt said that when he first saw the helicopter it was "on the turn ... and heading parallel the same way I - that I was travelling". However, after being directed to the terms of Ex. SW 15 (T 217 L45 and following) Mr Schmidt confirmed that he first saw the helicopter when it was to his right, flying towards him.
Mr Schmidt described (T214 L40 and following) a curve in the road that was located "a couple of hundred yards" from the start of The Dungeons. He explained that on the right hand side of the road (in the direction in which he was travelling) there was a property located before The Dungeons which was managed by a Mr Tossetti. By reference to that location he said (T215 L4) that he was "probably at about Tossetti's gate" when he first saw the helicopter, but later agreed that because of the lapse of time since the incident he was no longer sure that this was the case (at T232 L46-48). When he gave evidence before the Coroner, Mr Schmidt said that he had not reached the position of Tossetti's gate when he first saw the helicopter.
In terms of the speed at which he was travelling as he drove along the road, Mr Schmidt initially said (T217 L28) that he was travelling "somewhere between 80 and 100" at the time of seeing the helicopter. When cross-examined (T225 L43) he agreed that he was travelling "at about the speed limit of 100".
Mr Schmidt also agreed (T235 L35 and following) that he had given evidence before the Coroner that the helicopter was approximately 50 feet above the trees after it turned. He said (T236 L8) that the helicopter "dropped a bit" from the time that he first saw it until the time that it had completed its turn and that having completed such turn, it was "pretty much on top" of him. Mr Schmidt said that at that point, he put his head out of the window of his vehicle in order to get a better view of the helicopter, at which time the helicopter "overtook" him and continued along the same line as the road, away from his vehicle. Mr Schmidt continued to watch the helicopter until he saw it contact the wire (T237 L12-14). He described that the contact caused the wire to "bow forward", following which he saw the helicopter tip backwards, and then fall to the ground.
Although it was apparent that Mr Schmidt was not accustomed to giving evidence, I am satisfied that he was doing his best to be truthful and accurate when recalling what had occurred. I am satisfied that he saw the helicopter come towards him, perform what was effectively a u-turn, and then travel in the same direction as that in which he was travelling before coming into contact with the wire and crashing in the manner which he described. I am satisfied it was the contact with the wire which caused the helicopter to crash.
However, Mr Schmidt properly conceded that the events about which he was giving evidence had happened quite some time ago, and that this necessarily had a bearing upon his ability to accurately recall them. The fact that this was so was evident from the variations in his evidence as to a number of matters, including the speed at which he was travelling, his position on the road when he first saw the helicopter, and the path taken by the helicopter after it had first come in to his line of sight.
It is also apparent that once the helicopter came into Mr Schmidt's line of sight, it became the primary focus of his attention. For at least some of the period over which he observed the helicopter, Mr Schmidt had his head out of the window of his vehicle, looking towards the sky whilst driving, and observing the helicopter. For such time as he was doing so, his attention and focus were directed not to the speed at which his own vehicle was travelling, but to the helicopter and its path. In these circumstances, Mr Schmidt's estimate of his speed is not reliable and is deserving of little weight. In my view, it provides no reliable indicator of the speed of the helicopter in the period immediately before the crash, a matter about which I am not able to make any determination.
Mr Schmidt gave evidence ([128] above) of the distance between his vehicle and the helicopter as the helicopter flew above him. He agreed (T236 L8-17) that the helicopter "dropped a bit" to the point where it was "pretty much on top of him". Without intending any disrespect to Mr Schmidt, those descriptions are not particularly helpful in determining, with any degree of precision, the measurements and distances to which he was referring. What is clear, from the fact of the crash and the evidence of the height of the power lines, is that the helicopter was flying at a height of approximately 120 ft when it struck the power line and crashed.
As I have discussed more fully below there is expert evidence, which I accept, that "good airmanship" involves carrying out a high level "fly over" of any area into which it is proposed to descend. There is also evidence, which I accept, that Mr Thrupp was an experienced, cautious and safety conscious pilot (Ex. SW 4 at para 4; Ex. PSC 7 at para. 24; Ex. PSC 10 at para. 30; Ex. PSC 11 at para. 12). In these circumstances, it might be expected that Mr Thrupp would have performed a high level fly over before descending into The Dungeons as he did.
A period of approximately one hour, or perhaps slightly less, elapsed between the time of the helicopter's departure from the aerodrome, and the time at which it struck the wire. The only evidence of any observation of the helicopter within that period was that of Mr Schmidt. I am not able to determine where the helicopter had travelled between the time of its departure and its appearance in the area of The Dungeons when Mr Schmidt saw it.
There was obviously sufficient time for Mr Thrupp to perform a fly over of the area of The Dungeons before descending. However, whether he did so is a matter of speculation. There is simply no evidence about where, and at what height, the helicopter had flown prior to coming into Mr Schmidt's view. In these circumstances the evidence does not enable me to determine whether a high level fly over had been undertaken by Mr Thrupp prior to the accident. To reach a conclusion one way or the other would, in my view, be impermissibly speculative.
A related question is whether Mr Thrupp was engaged in the survey at the time of the crash. The path taken by the 2005 survey did not involve flying into the area where the accident occurred. The closest the path of the 2005 survey came to the accident site was to fly along a route located approximately 2 km to the west.
Roger Garnsey, an Agronomist, gave evidence that inspections of noxious weeds such as the Blackberry and the African Boxthorn can be undertaken by ground or by air (Ex SW 26 para. 2). The advantage of working from the ground is that most noxious weeds are more easily detected from the ground, although this assumes that it is possible to gain vehicular access to the relevant area. Where such access is not possible, aerial surveillance is an option (Ex SW 26 para. 3).
In the present case there were two purposes for which the survey was being conducted (Ex PSC 6 para. 17), namely to: 1. determine the effectiveness of the control programme which had been implemented following the 2005 survey; and 2. identify new weed infestations.
The Council was responsible for weed growth along the edges of the road adjacent to the accident site (Ex. PSC 6 para 16; Ex SW 45 at p. 10). The fact that such weed growth could have been accessed by a motor vehicle does not, of itself, support the conclusion that Mr Thrupp was not engaged in the survey at the time of the accident. It remains the case that one of the purposes of the flight was to detect new weed growth. Deviating from the flight path adopted for the purposes of the 2005 survey, and flying into the area of the accident site, was consistent with that purpose.
In these circumstances I am satisfied that at the time of the accident Mr Thrupp was engaged in the survey.

[21]

THE VISIBILITY OF THE OVERHEAD WIRES IN THE AREA OF THE CRASH SITE

For the reasons I have previously stated, I am satisfied that the helicopter crashed to the ground as a result of coming into contact with an overhead power line. This raises a question of the visibility of the wire at the time.
On 16 May 2007, in company with Mr Hurley and Mr Coppock, Mr Stewart flew a police helicopter to the accident site. Having done so, he identified (Ex SW 17 para. 5) the two power lines running at right angles to the road. He then flew around the accident site at various altitudes. At paragraph 6 and following of Ex SW17 Mr Stewart said: "On one of the orbits I positioned the helicopter adjacent to where the power lines crossed the road and I noted that the height indicated on the radar altimeter was 180 feet. Of particular note was the fact that despite observing the position of the wires from other angles, and as a result maintaining an awareness of their position and separation, I formed the opinion that the wires were impossible to see when approached from the direction of travel of the aircraft that was involved in the accident. I recall that when we flew in the vicinity of the wires we did so in replication of the flight as flown by the accident aircraft just prior to the accident occurring. During our replication, which was recorded on video by Senior Constable Coppock, I flew the aircraft at 10 knots forward speed and at an approach height of 180 feet, stopping just prior to where I believed the wires to be however I was still unable to sight them until very close. The wires were not marked for identification in any way."
He was also asked about the presence of power poles (T265 L29-38): "Q. At some stage on the flight that you took on 16 May 2007 did you have an opportunity to observe the power poles that were on the easterly side of the accident siting, in other words the ones that contained the span that Mr Thrupp hit? A. Yes. Before descending down to the level of the power poles I did what we refer to as a high level reconnaissance. So I over flew the area about 500 feet, which is well above the height of any potential wires, and did an orbit and observed from that altitude you can see the easements and you can see the power poles, but once we descended down to the level of the actual wire these things were obscured."
Mr Stewart said that in his experience, power poles which were painted at the top in colours contrasting with the colour of the surrounding vegetation were generally easier to see than poles that were not so painted (T268 L18-30).
Mr Stewart also flew to the accident site with the Coroner in the course of the inquest. When asked (T262 L36 and following) what he saw on that occasion he said: "... What I did on this occasion, with the Coroner on board, was identified a point on the road that indicated to me where the actual wire was and I flew fairly slowly straight towards the wire and stopped at a predetermined point and the wire was more or less at eye level. And the problem with wires is that you have no depth perception, your Honour, and you normally sort of, when you do see them, your eyes tend to play tricks and you don't know if it is a thick wire further away or a thin wire up close. And I can't describe optically how it works but, when you are looking at an (sic) wire with no other reference, the wire appears to move in and out of your vision, move closer and further away. Q. And from the position that you were in when you I withdraw that. As you approached the wire in the portion of the flight that you have just referred to, that is from the level portion of the flight that you have just referred to, did you have occasion to observe whether, at that point, you could see either of any easements, power line easements, on either side of the valley that you were going into? A. No, they are not visible from that position, the easements, because we are at the easements, through the trees, are obscured by the trees at that level."
Mr Stewart (T270 L3-7) described as a "survival technique" the process of undertaking a thorough investigation from a high altitude before descending to a low level area where there may be wires. When asked (T270 L33) whether part of that practice involved looking for indicators other than wires themselves, he said: "A. No, not totally, because sometimes I mean, you always look for indicators, like power poles and buildings, that may have powers running to them, and adjacent to larger grid lines you always look for spurs running off them but sometimes the distance between poles can be fairly large, and it is a common technique that is sort of passed by word of mouth, if you like, in the industry I don't know that I have ever done any specific training but to do a 360degree turn over an area where there is a wire; depending on the lighting conditions, cloudy day, sunny days, whatever, that presents itself visually in different ways. So you can actually be looking in any light condition you can be looking straight at a wire and not see it. However, it is a common practice, among myself and my colleagues at least, we do a 360degree turn around an area where we intend to go and at two points in a 360degree turn the wire will become visible (audible sound to demonstrate): You can see it, no you can't; 180 degrees later: (Audible sound to demonstrate) you can see it again. Q. That's because the light reflects differently? A. Yes, and the angle that you see the wire depends on the lighting conditions. Q. It is preferable though, isn't it, to look for other signs other than try and locate the wire? A. We do both."
Mr Stewart agreed (commencing at T279 L46) that as a matter of both common sense and good airmanship a prudent pilot should survey, from a high altitude, any area into which he wishes to fly at a low altitude. However he then said (commencing at T280 L11): "A. Mm. But I'd like to say that having done a survey and not seen any wires, doesn't mean there's none there. We are still subject to human factors and your eye has limitations and you can only do as best you can. I've cleared areas, flown low into areas in the past where I thought were clear of wires and suddenly there's a wire there that none of us had seen previously. It happens. Q. It does happen, but if you've got the presence of power poles? A. Yes. Q. It's a clear indicator there's a wire there, even if you can't see the wire? A. And sometimes you can't see the power poles. Q. I understand that, or straight swathes in vegetation? A. Sometimes there are none. Q. What you're looking for, on your survey that you described to his Honour, is you look, before you fly into an area, you may look for the wires themselves but if you can't see the wires, you look for the indicators; don't you? A. Exactly."
Evidence to a similar effect was given by Mr Coppock (commencing at T 737 L39), Mr Dolby (commencing at T62 L1) and Mr Joyce (commencing at T1065 L22).
I am satisfied that conducting a high level fly over does not always guarantee that hazards will be identified. Conducting such a fly over will therefore not completely eliminate the risk of a wire strike. However, doing so provides an opportunity to look for indicators of the presence of overhead wires.
Mr Coppock gave evidence of the flight which was undertaken with Mr Stewart (Ex SW 39 and SW 40). He was familiar with "round orange ball markers" which could be placed on wires so as to identify their location. Mr Coppock said that in his experience such markers made overhead wires "incredibly more identifiable" (T734 L38). He was unable to recall any distinguishing marks on the poles in the area of the accident site and said that poles painted in colours which contrasted with the vegetation (such as white or orange) rendered them a great deal easier to spot (T735 L10-19). He did not recall the presence of galvanized iron caps on the top of the poles in the area but agreed that such caps could also provide some indicator of the existence of the poles, along with vegetation clearing (T744 L3-19).
Mr Coppock agreed that one of the main dangers of low level flying was the potential to come into contact with power lines because they could be very hard to see (T736 L18-28). He said (commencing at T737 L39) that in a case where low level flying was to be conducted there should be a 360 degree orbit conducted over the area to ascertain the presence of wires. He said that in carrying out that process it was customary to look for the wires themselves along with other major indicators of the presence of wires such as cuttings and power poles (T738 L24-30).
Mr Dolby also gave evidence which was relevant to the question of the visibility of the wires. On 4 May 2006, some months after the accident, he flew over the area of The Dungeons at approximately 1000ft above ground level. He made a point of looking for the power poles on each of the eastern and western ridges which supported the line which was struck in the accident. Mr Dolby was able to see the line from about 750m away, although at certain angles he had difficulty in doing so (Ex SW5 at [18]).
He went on to say (Ex SW5 at [21]): "On this occasion, I descended down near the eastern poles with the intention of flying along the line to check the standard of visibility for my own information. Although I have conducted many low-level power-line surveys, shortly after starting along the line, I lost sight of the wires and immediately pulled up and away from the line to avoid possible contact. Even knowing that the line was there and flying in very close proximity to and parallel with the line, I found it was impossible to remain visual with the wires themselves".
Mr Dolby agreed in cross-examination (commencing at T85 L1) that there was cleared vegetation in the area of the poles (photograph 58 in Ex SW 2) and that he had seen these in May of 2006 when flying over the area. He also agreed (commencing at T85 L39) that he was aware that power and electrical companies cleared vegetation so as to prevent a risk of fire caused by falling branches onto the lines.
The evidence establishes that the wire in question was, to say the least, difficult to see. I am satisfied on the evidence that the helicopter struck the wire because Mr Thrupp did not see it. There were no markings on the wires at the time. Mr Joyce flew over the area in October 2010, at which time there were marker balls on the overhead wires. On that occasion, the wires were able to be seen from a distance of between 300 and 500 metres away (T1081 L44-46).

[22]

THE EXPERT EVIDENCE

Two experts, Timothy Joyce and Daniel Tyler, provided various reports which were tendered in the proceedings and gave concurrent evidence.
In his report (Ex EE28) Mr Joyce was asked to consider a number of aspects of the preparation and conduct of the flight. He expressed the view that some "very basic practices" were overlooked including the fact that: 1. there was no briefing by the Chief Pilot of South West as required by the Operations Manual such that, in the absence of that briefing, the flight should have been abandoned; 2. there was no evidence to suggest that a detailed, high altitude inspection had taken place before the helicopter descended below 500 feet; 3. there was no evidence that a risk analysis had been conducted by either the pilot or the Chief Pilot prior to undertaking the operation to evaluate any relevant risks.
It was Mr Tyler's opinion (Ex SW 48) that (inter alia) the power lines should have been marked with brightly coloured markers or "balls" designed for that purpose and should also have been identified by ensuring that the easement between the two power lines was cleared of vegetation.
Importantly, Mr Tyler (Ex SW 48 p. 9) described the road as "one of the most significant transportation corridors in the area". He went on to say: "It would not be unreasonable to assume that air traffic operating on the visual flight rules (VFR) between Parkes and Orange would generally try to follow that roadway. Aside from the navigational assistance provided by following a linear feature joining two points, pilots of light aircraft and single-engine helicopters frequently follow such corridors so that, in the event of an engine failure forcing them down, the aircraft and its occupants will be accessible by emergency service or maintenance crews. That is not a universal practice but is considered "good airmanship".
Mr Joyce generally agreed with Mr Tyler regarding the necessity to conduct a high reconnaissance of the area to be surveyed. He also agreed, generally speaking, that a "notch" in a tree line could have been indicative of some man-made intervention in the natural environment and, if seen by the pilot, should have prompted a further investigation prior to further descent.
Following the provision of their respective reports, questions were submitted to Mr Joyce and Mr Tyler, resulting in a form of joint report (Ex JT2). That report reflected (inter alia) the following joint positions.
As to Mr Dolby as Chief Pilot of South West the report stated (at para 1): "The Chief Pilot of a company holding an Aircraft Operators Certificate is ultimately responsible for the safe conduct of all aspects of the Company's operations and ensuring that they are conducted in compliance with all relevant Civil Aviation Regulations, Civil Aviation Orders or the conditions of executive instruments granting exemptions from the normal rules and the Company's Operations Manual. In addition, it is the responsibility of the Chief Pilot to ensure that the pilots under his control are aware of their responsibilities with regard to the above."
In terms of pre-flight checks, route plans, flight paths and the like, the joint report stated as follows (at para. 2): "Route plans should have included a perusal of available maps and charts (both aviation and general topographic maps) for the intended route or area; notation of any controlled or restricted air space; notification of any military low-jet routes, exceptional aviation activities, or other hazards to flight that might have been included in the Airservices Australia NOTAM service; consideration of re-fuelling points having Jet A-1 fuel available; the nature of terrain to be overflown, noting - in particular - whether forced - landing areas suitable for a single engine helicopter would be available; and a general appreciation of the lay-out of geographical features in order to maintain orientation and assist navigation. Flight planning should have been sufficient to allow the pilot to monitor fuel consumption; to ensure re-fuelling locations would always be within range; and to ensure the pilot would be able to track from search area to search area efficiently. Most importantly, route information sufficiently detailed to allow a third party to maintain a SARWATCH or SARTIME should have been compiled and submitted. This could have been done by filing a formal flight plan with Airservices Australian nominating a SARTIME for arrival at the intended intermediate or final destination. ... Lastly, inquiries should have been made of the customer regarding the customer's plans and expectations for the conduct of the flight. This should have included asking the customer's representatives whether they were aware of any particular hazards or relevant circumstances impacting the conduct of the flight."
In terms of a high level fly over, the joint responses of the experts in Ex JT2 was as follows (at para. 3): "Prior to operating at a level that close to the ground, a prudent pilot should conduct a high reconnaissance of the survey area (usually at 300' to 500' AGL) to check for the possibility of hazards including wires prior to descending into the wire environment (generally below 300' AGL). This high reconnaissance should have included looking for wires, towers, cleared easements or structures that appeared to require electrical power (e.g. a farm house or irrigation well). Pilots are taught to conduct at least one 360 degree orbit of the survey area in order to experience different lighting angles - as it is well known that wires or structures that cannot be seen from most angles can often be seen from one angle. If any clues as to the existence of power lines are detected in the "high recce" then a more detailed examination to find the exact location of the wires is required. This more detailed examination is sometimes called a "low recce".
Mr Joyce flew to the accident site on 4 October 2010 for the first time (T1048 L34-44). He flew there again in April 2013 (T1049 L37). He explained (commencing at T1051 L34) that having arrived in the general location of the accident site, an observation flyover was conducted which consisted of an orbit around the highest points of the two ridges. He described having done this "quite a number of times" and explained that the purpose behind that was to appreciate the view of the area from all angles.
Mr Joyce was questioned about the presence of marker balls on the wire. He did not agree that the marker balls were visible for almost all of the time of the flyover and explained that you "had to look to locate" them (T1052 L11-12). However Mr Joyce then gave the following evidence (T1052 L14-37): "SPENCER: But if you looked into the valley from any angle on the observation flyover, you could see the marker balls; correct? WITNESS JOYCE: Yes; if you were looking for them. SPENCER: So, if you were looking into the valley for the purposes of understanding whether it was safe to fly in that valley, one of the things that your eye would fall on would be the marker balls; correct? WITNESS JOYCE: Not entirely, no. SPENCER: When you say "not entirely", you're not suggesting, are you, that if you conducted a 360degree orbit of this site for the purpose of investigating whether it was safe to fly in the valley, you wouldn't have sight of the marker balls much of, not all of the time WITNESS JOYCE: I don't agree. I think you would see other indications first, and then, on closer inspection, perhaps notice the marker balls. SPENCER: I am not concerned about what else you might see. At the moment, I am just trying to identify whether the marker balls were visible to you from any point from all of the points on that 360degree orbit. WITNESS JOYCE: They might have been visible, but not easily."
Mr Joyce agreed that when he undertook the survey in 2010 it was possible that the colour of the ground and the adjoining foliage was different than it had been in February 2006 (commencing at T1053 L21).
Mr Joyce agreed (commencing at T1064 L4) that the object of conducting an observation flyover is, in effect, to ensure that there are no hazards present in an area into which he wished to descend. He agreed that the process was one of "exclusion" and that the most important potential hazard for which a pilot would look was an overhead wire (T1064 L23-27). He also agreed that the presence of houses, buildings, damns and pumps maybe indicative of the nearby presence of overhead wires (T1064 L29 and following). He agreed that there were no such indicators at the point where the accident occurred (T1065 L10).
Mr Joyce agreed (T1065 L22-26) that a reconnaissance that is conducted in accordance with principles of good airmanship did not always guarantee that hazards would be identified. He explained (commencing at T1065 L28) that for that reason, even after a high level flyover had been conducted, a subsequent descent was approached in a particular way so as to allow for the possibility of the presence of a hazard that had not previously been identified.
Mr Joyce agreed (commencing at T1066 L4) that one of the reasons for conducting a high level reconnaissance involving a 360 degree orbit of the subject area was to eliminate the possibility that the rays of the sun affected visibility. He agreed (T1066 L8-12) that even when that procedure was conducted, the risk was not necessarily eliminated in its entirety and that it was possible that an experienced and qualified pilot could adopt good practice but still miss "clues" that might indicate the presence of a hazard (T1066 L14-17). He then said (T1066 L19-35): "SPENCER: Now, of course, if a wire is marked with balls, such as the balls that are on the wire that we have been discussing, that's another method or another opportunity for a pilot to identify that there is a wire in the subject area; that's correct, isn't it? WITNESS JOYCE: Yes, that is another method. SPENCER: And it is quite an effective second line of defence in circumstances where the wire might not be spotted by the observation flyover, isn't it? WITNESS JOYCE: I wouldn't agree only a "second line", I would probably say a last line. SPENCER: Well, a significant aid to the pilot in avoiding hitting the wires? WITNESS JOYCE: Particularly when you know the wires are there."
By reference to the area of the accident site Mr Joyce agreed (T1067 L7) that the wire in question was very difficult to see. Whilst he did not agree that it was "impossible" to see, he accepted that there was a necessity to look for other indications of the presence of wires. He also agreed that the higher the position of the wire, the more dangerous it was (T1067 L13-31). He also agreed that if the pole blended in with the surrounding terrain, that was also a contributing factor to any danger which might exist (T1067 L33-41).
Mr Joyce explained that when flying in the area of the accident site he sought to replicate the approach taken by Mr Thrupp (but at a level about 40-50 metres above the wires). He estimated that he saw the marker balls from a distance of between 300 and 500 metres away (T1081 L44-48). He agreed that from that distance, if a helicopter was 120 feet from the ground flying at a speed of 60 knots, it would be capable of flying underneath the wire (T1083 L9-14).
Mr Joyce was taken to the evidence of the discussions which had taken place prior to the departure of the helicopter and considered that there was "probably sufficient time" for all of the relevant matters to be discussed (T1085 L46).
Mr Tyler described a high level reconnaissance as a "staged process". He explained that if there was no indicia of hazard disclosed in the "high reccie", then a pilot could proceed to a lower level but if there were indicia that had become manifest then there was obviously further investigation required. He explained that such further investigation may be constituted by a "low reccie" where a pilot attempts to ascertain the presence of hazards (T1093 L9-16). He explained that if, at the first level of inquiry, no hazards were identified, it would be open to a pilot to proceed directly to the lower level inspection, remaining within the area that had been surveyed at a higher level. If the higher level observation yielded information that required further examination, the conduct of what would occur thereafter would depend on what was seen and where it was (T1093 L18-22).
Mr Tyler agreed that it would not be in accordance with principles of good airmanship for a pilot to descend to a low level without conducting the staged process to which he referred. He regarded the high level flyover as being "mandatory" and explained that if anything was detected in the course of that, then the "second phase" would be required (T1093 L41-50).
Mr Tyler agreed that the reflections from the sun had a bearing on the visibility of power lines, such that they may only be visible at some angles as a result of the lighting. He explained that this was one of the considerations which mandated a high level flyover (T1095 L25-41).
Mr Tyler also agreed that the possibility of wire strike was a "certainly significant" cause of operational helicopter accidents (T1098 L36-37) and that because of that hazard, principles of good airmanship included (commencing at 1099 L39) that: 1. a pilot should never fly lower than is necessary; 2. the assumption should always be made that there are wires below 300 feet; 3. a pilot operating at a low altitude should never descend into a "wire zone" without conducting a high level flyover; and 4. whilst it is prudent to have regard to information that may come to hand from various sources about potential hazards, a prudent pilot will temper that information because of the possibility of it being unreliable.
Mr Tyler also agreed (commencing at T1101 L12) that requests from, or requirements sought to be imposed by, customers of a commercial aircraft operation ought not impeach the obligation of a pilot to comply with fundamental obligations of good airmanship.
I am satisfied, based on the expert evidence as well as that of Mr Stewart, Mr Coppock and Mr Dolby, that it is a fundamental principle of good airmanship that a pilot of any aircraft should conduct a high level fly over of any area before descending to a lower level. For the reasons I have previously expressed, I am not able to determine whether Mr Thrupp performed that manoeuvre in the present case. However, an aerial weed survey can be conducted from an altitude of 300ft. In these circumstances there was no need for Mr Thrupp to descend to the level that he did.
One of the principal dangers of low level flying is the possibility of wire strike. By flying at such a low level, in circumstances where he did not have to do so for the purposes of conducting the survey, Mr Thrupp acted in a manner which was inherently dangerous, and which was contrary to principles of good airmanship. As an experienced pilot, he must have been aware of the nature and extent of the danger in doing so.
Whilst there was a clearance corridor created in the underlying vegetation, there were no nearby indicators of electrical consumption (such as houses of dams) and there were no markers on the wires themselves. I am satisfied that the wire struck by the helicopter was difficult to detect. The only conclusion available on the evidence is that Mr Thrupp simply did not see it. Had marker balls been placed on the wires they would have been visible from a distance of 300m to 500m away.

[23]

Submissions of the plaintiffs

It was submitted on behalf of the plaintiffs that no, or no proper, risk assessment had been undertaken by the Council and that this failure had occurred in circumstances where both Mr Boyd and Mr Sullivan were aware of the risk of a wire strike, and the danger which would eventuate if that risk were to materialise.
Counsel for the plaintiffs submitted that in the event that I found that some form of risk assessment was undertaken by the Council, it was clear that it did not include any instruction being issued to the pilot, either directly or through Mr Stephenson, as to (inter alia) the minimum height at which the survey was to be conducted. It was submitted that any risk assessment which did not include such an instruction was necessarily inadequate.
Counsel for the plaintiffs submitted that these omissions were the result of the approach taken by Mr Boyd and Mr Sullivan as to the "dollar value" of the contract. It was submitted that I should conclude that the Council paid little or no attention to the necessity to address risks because the amount of expenditure was regarded as being low. It was further submitted that I should conclude that the flight had been allowed to depart in circumstances where the Council was aware, through Mr Boyd and Mr Sullivan, that no proper risk assessment had been undertaken.
Counsel for the plaintiffs further submitted that in the circumstances of the present case, a proper risk assessment required the Council to access, and use, information which was readily available to it. It was submitted that the Council had information available to it which was capable of depicting the position of power lines within the relevant area. In this regard counsel pointed, in particular, to the evidence of Mr White, and Exs. SW12, SW13 and SW14. He submitted that even though the available information may not have been entirely accurate, had the Council availed itself of it, it would have demonstrated that the flight was to be undertaken in a "wire environment". Counsel also relied, in this regard, on the fact that the accident site was in close proximity to the township of Parkes. It was submitted that the Council, through Mr Boyd and Mr Sullivan, was (or ought to have been) generally aware of the area which was to be the subject of the survey, and of the presence of wires in that area. It was submitted that the risk of collision with electrical wires should have been at the forefront of the minds of Mr Boyd and Mr Sullivan, and that their respective failures to take any steps to enquire as to the location of such wires by reference to the proposed survey route was a further breach of the Council's duty of care to ensure that Mr Stephenson was working in a safe environment.
It was further submitted that in response to the identified risk, the Council should have (inter alia): 1. directed Mr Stephenson that the survey was to be conducted at a minimum flight threshold of 500ft; 2. directed South West and/or Mr Thrupp in similar terms, either through Mr Stephenson or otherwise.
As against South West, counsel for the plaintiffs submitted that the Operations Manual imposed a number of obligations with which Mr Dolby had not complied, including the obligation to carry out a proper risk assessment. It was submitted that no proper risk assessment had been undertaken. Counsel also submitted that Mr Thrupp had failed to follow basic principles of good airmanship, including ignoring the requirement that he should descent only when necessary. It was submitted that the failure of Mr Dolby to properly conduct a briefing with Mr Thrupp, contributed to the poor airmanship which, in turn, caused the wire strike, and thus the accident.

[24]

Submissions of the Council

It was accepted by the Council that it owed a duty of care to its employees, including Mr Stephenson. However, it was submitted that such duty was not breached. Alternatively it was submitted that if a breach of duty was found, it was not causative of any damage.
It was submitted that the risk that a helicopter might come into contact with an overhead wire had been properly addressed by the Council's selection of an experienced and appropriately qualified provider of aerial survey services (i.e. South West) as the operator of the flight. It was submitted that the risk which materialised was the risk that a highly qualified and experienced helicopter pilot, who was flying a well maintained and air worthy helicopter, would "abandon every fundamental principle of good airmanship", fly into an area of great danger, and thereafter collide with a power line. It was submitted that there was nothing that the Council could reasonably have done to protect against what was described as "aberrant, unexpected and inexplicable conduct" on the part of Mr Thrupp. It was submitted that by the time Mr Thrupp flew through The Dungeons in the way in which he did, matters were well beyond the control of the Council, and that there was no sensible way in which it could have eliminated the risk of a wire strike. Whilst it was accepted that the Council's duty required it to take all reasonable steps which were sensibly available to it to ensure that the flight would be conducted safely, it was submitted that this did not extend to operational matters concerning the piloting of the helicopter.
It was submitted that even if it was concluded that the Council was in breach of its duty, a conclusion that such a breach was causative of what eventuated was not reasonably open. It was submitted that any failure on the part of the Council amounted to little more than a breach of an internal requirement which was not causative of damage.
It was further submitted on behalf of the Council that the risk of flying into power lines at a low level was well known to both South West and Mr Thrupp, and was the greatest risk that a pilot faced. It was submitted that in circumstances where Mr Thrupp knew of such danger, no failure on the part of the Council was in any way material to the cause of the accident. It was submitted that the factual cause of the accident was an inexplicable error on the part of Mr Thrupp who had either failed to see the power lines or, having seen them, had misjudged them. It was further submitted that the negligence of Mr Thrupp constituted a break in the chain of causation and that it was his negligence that produced the harm which eventuated. It was submitted that his conduct was of an unexpected and grossly negligent character, and constituted a breach of obligations that were the sole preserve of a specialist aviator.
It was submitted that the Council could not be properly regarded as having caused the accident, or as having materially contributed to it. It was submitted that the nature of the accident and its cause(s) were so far removed from the exercise that was being undertaken that it would be impermissible to regard any act or omission on the part of the Council as being any more than coincidental.
In terms of its position vis a vis South West, it was submitted on behalf of the Council that it owed no duty of care to South West. It was submitted, in particular, that a distinction was to be drawn between the Council's duty to an employee, and a duty said to be owed by it to some other person or entity. It was emphasised that the fact that the Council might have owed a duty to Mr Stephenson did not automatically lead to the conclusion that it owed a duty to South West, and that the question of whether it did so was to be resolved according to the facts and circumstances of the case, and the circumstances of any relationship which existed between them.
As to the latter issue, it was submitted that any relationship between the Council and South West was to be viewed as one between the hirer of an aircraft (the Council) and a qualified operator of that aircraft (South West). It was submitted that there was no feature of that relationship which gave rise to any duty of care.
In the event that I were to find that the Council did owe South West a duty of care, the Council relied upon its earlier submissions regarding what was said to have been the reasonableness of its actions.

[25]

Submissions of South West

It was submitted on behalf of South West that the Council owed it a duty of care which was "grounded in the law of negligence": Anns v Merton London Borough Council [1978] AC 728. It was submitted that such duty imposed an obligation upon the Council not to cause injury or damage to property.
It was submitted that the Council's degree of control over, and knowledge about, matters pertaining to the flight, substantially determined the scope of that duty. It was emphasised that the Council was in possession of information concerning the location of power lines and that its duty extended to providing that information to Mr Thrupp as the pilot.
Counsel for South West submitted that the accident occurred because Mr Thrupp had not seen the power line, due to the fact that it was essentially invisible as he approached it. It was submitted that it was not open to infer negligence from the fact of the collision, nor from the position of the helicopter at impact: Franklin v Victorian Railways Commissioner [1959] HCA 48; (1959) 101 CLR 197; Bradshaw v McEwans Pty Limited (1951) 217 ALR 1.
It was further submitted on behalf of South West that the risk of a wire being struck by a helicopter engaged in surveillance work was foreseeable, and that the risk was not a low one. It was submitted that the determination of what was an appropriate response on the part of the Council was to be assessed having regard to the fact that the Council: 1. was aware of the hazardous nature of aerial surveillance; 2. had been exposed to those matters as a consequence of the 2005 survey; 3. knew that Mr Stephenson and Mr Buerckner had no prior experience in such matters, other than their participation in the 2005 survey; 4. assumed, without satisfying itself, that a minimum threshold would be maintained. 5. left the arrangements for the flight entirely to Mr Stephenson; and 6. ignored the requirement to undertake risk assessments and observe safety management procedures.
It was submitted that in considering the appropriate response, it was relevant that information was available to the Council which was not properly utilised, and that Mr Boyd and Mr Sullivan had made unsafe and unwarranted assumptions that the flight would be operated at a threshold level of 500 ft. It was submitted that what was required on the part of the Council in all of these circumstances was the giving of a specific direction to Mr Thrupp about the height threshold at which the survey was to be conducted.
In terms of causation, it was submitted that there was no evidence from any of the qualified pilots that a person in the position of Mr Thrupp would not have complied with a direction from the customer about the application of a minimum flight threshold. It was submitted that this supported the conclusion that had the Council conveyed a direction that the helicopter was not to descend below 500 ft, that direction would have been complied with by Mr Thrupp, in which case the accident would never have occurred.
As against EE, it was submitted on behalf of South West that EE owed a general duty of care to pilots, passengers and aircraft owners. It was submitted that EE was necessarily aware of the risk posed to low flying aircraft by the presence of power lines, and that the materialisation of that risk was potentially catastrophic.
South West repeated its submission that the power line struck by the helicopter was not detectable, and further argued that the line had a number of characteristics which rendered it a specific source of risk. These included the extreme length of the span, the absence of any buildings or other indicators of electrical consumption in the area and the knowledge on the part of EE that an aircraft could be expected to fly low over the area.
Although the statement of claim filed by South West pleaded a number of separate particulars of negligence against EE, the focus of the submissions made on behalf of South West concerned the failure of EE to mark the wires in some way. It was submitted that a reasonable response to the risk created was to place markers on the wires so as to designate their presence, and that the creation of a swathe or easement in vegetation underneath the wires was an inadequate response to the risk.
It was submitted that in all of these circumstances, even if Mr Thrupp had been negligent in flying the helicopter as he did (which was denied) such negligence affected neither the existence of a duty of care, nor the question of breach.
In its defence of the Stephenson proceedings, South West raised a discreet issue with which I have dealt separately below.

[27]

General principles of liability - The Civil Liability Act 2002

Sections 30-32 of the CLA govern the nervous shock claims brought in the Stephenson proceedings. Those sections operate to (inter alia) apply certain limitations on recovery for damages for pure mental harm. It was not suggested that any one of the plaintiffs in the Stephenson proceedings was precluded from recovery by the operation of any of those provisions.
The general principles of liability are set out in s. 5B of the CLA in the following terms: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5B(1) sets out three pre-conditions which must co-exist before liability in negligence arises: Roads and Traffic Authority NSW v Refrigerated Loadings Pty Limited [2009] NSWCA 263; (2009) 53 MVR 502 at [173] per Campbell JA. In the event that the three pre-conditions are met, consideration must then be given to s. 5B(2) which sets out a number of matters which must be taken into account when determining whether or not a reasonable person would have taken precautions against the identified risk. It is important to emphasise that the relevant inquiry is what a reasonable person would have done. The inquiry does not involve a retrospective identification of what would have avoided the injury: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124] per Hayne J. This approach necessarily requires that the issues of breach of duty and causation be dealt with separately.
Section 5B is directed towards a consideration of whether or not a person is negligent in failing to take precautions against a risk of harm. It is therefore critical to identify the relevant risk: Annotated Civil Liability Act 2002 (Villa) at [1A.5B.060]. The risk must not be identified in terms which are too narrow: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [26] per Meagher JA; Shaw v Thomas [2010] NSWCA 169 at [42] per Macfarlan JA.
The relevant risk having been identified, the first consideration in terms of s. 5B is whether the risk was foreseeable, or in other words, whether it was a risk of which the defendant knew or ought to have known: s.5B(1)(a).
The second consideration is whether the risk was "not insignificant": s.5B(1)(b). In Wyong Shire Council v Shirt [1980] HCA 12; (1981) 146 CLR 40 Mason J said (at 48): ..." a risk of injury which is remote in the sense that it is extremely unlikely to occur may nevertheless constitute a foreseeable risk. A risk which is not far-fetched or fanciful is real and therefore foreseeable".
The use of the term "not insignificant" in s. 5B(1)(b) imposes a more demanding standard than that described in Shirt, although the degree to which it does so is limited: Shaw (supra) at [44] per Macfarlan JA, Beazley JA (as her Honour then was) and Tobias JA agreeing.
In Benic v State of NSW [2010] NSWSC 1039 Garling J at [101] formulated the following approach to the determination of whether a relevant risk is "not insignificant": 1. the assessment of the risk of harm is one made prospectively and not retrospectively. Hindsight has no part to play; 2. the expression "not insignificant" is of a higher order than the common law test, and this was intended to limit liability being imposed too easily; 3. the expression is intended to refer to the probability of the occurrence of the risk; 4. in the realm of tort law, the probability of an occurrence is both a quantitative measurement, which may, but does not necessarily, reflect a statistical and numerical assessment, and also an evaluative measurement. The statutory phrase is a protean one which depends upon the context of facts, matters and circumstances for its meaning; 5. whether a risk is "not insignificant" must be judged from the defendant's perspective and must be judged on a broader base than a mere reductionist mathematical formula.
If the conclusion is reached that the identified risk was foreseeable and not insignificant, the next consideration is whether a reasonable person in the defendant's position would have taken precautions against the identified risk: s. 5B(1)(c). In determining this question I am required by s. 5B(2) to consider, along with any other relevant matters: 1. the probability that the harm would occur if care were not taken; 2. the likely seriousness of the harm; 3. the burden of taking precautions to avoid the risk of harm; and 4. the social utility of the activity that created the harm.
Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm. Consideration of s. 5B(2) involves weighing the factors set out in ss. 5B(2)(a) and (b) against those in ss. 5B(2)(c) and (d), subject to each of those factors being applicable in the particular circumstances of the case. Section 5B(2)(d) gives expression to the idea that some activities are more worth taking risks for than others: Waverley Council v Ferreira [2005] NSWCA 418 at [50]-[51]. Importantly, s. 5B(2) requires that I consider the probability that the harm would occur if care were not taken. It does not require proof that the harm would probably occur: Ferreira (supra) at [48]-[49].
In the event that negligence is established I must then consider the issue of causation. In that regard, s. 5D is in the following terms: Division 3 - Causation 5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm ("factual causation"), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ("scope of liability"). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
The effect of s. 5D(1) is to divide the determination of causation into two elements, namely factual causation and the scope of liability: Adeels Palace Pty Limited v Moubarak [2009] HCA 48 at [42].
With these matters in mind I turn to consider the respective positions of the parties.

[28]

The position of the Council

The Council owed a non-delegable duty to its employees to ensure (inter alia) a safe system of work, and to take reasonable care for their safety to avoid exposing them to unnecessary risk of injury: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687-688 per Mason J. The employees to whom the Council owed a duty of care obviously included Mr Stephenson.
The submissions made on behalf of the Council suggested that the relevant risk should be identified as being the risk that an experienced and qualified pilot, flying a well maintained and airworthy helicopter, would abandon fundamental principles of good airmanship, fly into an area of great danger, and then collide with a power line. In my view, formulating the risk in those terms is too narrow. In my view, the risk in the present case was that the helicopter would impact with a power line and crash, thereby injuring or killing those on board.
The nature of the task which was being undertaken necessitated low level flying in an area close to the township of Parkes where overhead wires were present. The evidence of Mr Coppock, Mr Joyce and Mr Tyler establishes that one of the main risks of low level flying was the risk of coming into contact with power lines. The risk and danger of wire strikes was known to Mr Boyd. He described it as a "real issue". It was also known to Mr Sullivan. He described it as "important". Their respective assessments stemmed, at least in part, from their awareness of a previous accident in a nearby town which occurred as the consequence of a wire strike. In all of these circumstances, the risk was not insignificant and the Council, through Mr Boyd and Mr Sullivan, knew that to be the case. They also knew that if care was not taken, there was a high probability that harm would occur as the consequence of a wire strike. There was an equally high probability that if a wire strike eventuated, the consequences would be serious, if not catastrophic.
In my view, faced with these circumstances, the Council failed to take a number of precautions and, as a consequence, breached its duty of care to Mr Stephenson.
The Council's own safety policy statement expressly recognised that it was the responsibility of management to promote and maintain occupational health and safety. For present purposes, Mr Boyd and Mr Sullivan constituted the management of the Council. In the case of an aerial survey which was to involve low level flying, and which carried with it the risk of a wire strike, an assessment of that risk, and the implementation of an appropriate response, was fundamental to maintaining the safety of the Council's employees who were going to participate in the survey. Despite their awareness of that risk, no assessment of it was conducted by either Mr Boyd or Mr Sullivan. As a consequence, no appropriate response was formulated and put in place.
Mr Boyd and Mr Sullivan understood that a flight threshold of 500 ft would be imposed in accordance with what had been the case in the 2005 survey. Whilst this was understood, it was (as Mr Sullivan conceded) never stated. As a consequence, no flight threshold was imposed, be it as part of a risk assessment or otherwise. The imposition of a flight threshold was not a difficult task. An appropriate instruction could easily have been conveyed to Mr Thrupp, either directly or through Mr Stephenson (or for that matter through Mr Buerckner).
In my view, the imposition of a flight threshold was fundamental to an appropriate response to the identified risk. The Council, through Mr Boyd and Mr Sullivan, knew that the proposed survey activity was dangerous. They also knew that but for his participation in the 2005 survey, Mr Stephenson had no relevant experience in aerial weed surveys. The inherently dangerous nature of the activity which was being undertaken meant that if care were not taken, there was a high probability that harm would occur.
Further, the Council had available to it information which, although not entirely accurate, demonstrated the presence of overhead wires in the relevant area. It should have been obtained and passed on to Mr Thrupp.
There is nothing in the terms of s. 5B of the CLA which suggests that the standard of reasonable care requires the taking of fewer precautions against an acknowledged risk of harm simply because the activity which creates that risk has some social utility: Wilson v Nilepac Pty Limited [2011] NSWCA 63 at [130] per Tobias JA. There is an obvious social utility in undertaking aerial surveys for the purposes or detecting and eradicating noxious weeds. However that utility is not, in my view, sufficiently high to warrant a conclusion that a reasonable person would not have taken the precautions that I have identified.
For all of these reasons, I am satisfied that the Council breached its duty of care to Mr Stephenson by failing to access information available to it regarding the presence of wires in the relevant area, failing to conduct a proper risk assessment and failing to impose, as a condition of the flight, a height threshold of 500f.
That brings me to the issue of causation which, I have noted, involves two components. The first, a determination of factual causation, involves the application of the "but for" test. It requires proof that, but for the negligence alleged, the harm would not have been suffered: Strong v Woolworths Limited (2012) 285 ALR 420 at [18]. In Wallace v Kam [2013] HCA 19 the High Court adopted (at [15]) the statement of principle formulated by Allsop P (as his Honour then was): "The task involved in s 5D(1)(a) is the elucidation of the factual connection between the negligence (the relevant breach of the relevant duty) and the occurrence of the particular harm. That task should not incorporate policy or value judgments, whether referred to as "proximate cause" or whether dictated by a rule that the factual enquiry should be limited by the relationship between the scope of the risk and what occurred. Such considerations naturally fall within the scope of liability analysis in s 5D(1)(b), if s 5D(1)(a) is satisfied, or in s 5D(2), if it is not".
I am not able to accept the submission advanced on behalf of the Council that any breach of duty which might be found did not cause the accident in the relevant sense.
The evidence of Mr Dolby was that in conducting aerial surveys of this nature, South West was, in effect, driven by a customer's requirements. I do not understand that to mean that South West, or more specifically Mr Thrupp, would have blindly agreed to any requirement which was sought to be imposed by a customer, irrespective of whether it compromised safety. However as Mr Dolby stated, it was the practice that the customer would make requests of the pilot to operate the flight in a particular way. Importantly, those requests included requests as to height levels. None of the qualified pilots who gave evidence in the proceedings suggested that if a direction of that nature was given, a pilot would not follow it.
In these circumstances, I am satisfied that had the Council implemented a requirement that the flight not descend below 500 ft, that requirement would have been met and Mr Thrupp would not have descended as he did.
The second consideration in terms of causation is that raised by s. 5D(1)(b), namely the scope of liability. In Monaghan Surveyors Pty Limited v Stratford Glen-Avon Pty Limited [2012] NSWCA 94, Basten JA observed (at [70]) that the normative enquiry under (b) would extend beyond what have been traditionally seen as elements of causation, to cover questions raised by intervening and successive causes, foreseeability and remoteness.
In my view, in terms of s. 5D(1)(b), it is no answer to say that the accident occurred in the course of the flight, and thus at a time when matters were beyond the control of the Council. That proposition overlooks the fact that the Council had the ability, prior to the flight departing, to control the height at which the survey would be conducted. There is nothing unacceptable or unjust, in these circumstances, in concluding that it is appropriate for the scope of the Council's liability to extend to the harm suffered.
For all of these reasons, I am satisfied that the Council's negligence was a cause of the accident.
I am also satisfied that the Council owed a duty of care to South West. Whilst the relationship between the Council and South West was, in general terms, one of hirer and operator, aspects of that relationship gave rise to a duty of care on the part of the Council. In particular, the Council retained some control over the conditions of the flight including, importantly, the height at which it was to be conducted. Mr Dolby's evidence makes this clear. The failure on the part of the Council to impose a height threshold was a breach of its duty of care to South West. That breach was causative of the accident.

[29]

The position of South West

As a provider of commercial air services, South West owed a duty of care to its passengers, including Mr Stephenson. Mr Dolby, the Chief Pilot of South West, was clearly aware of the risk of wire strike. It was the subject of a discussion with Mr Thrupp (albeit one which was completely inadequate for the purposes of risk management). The risk of a wire strike was, from the perspective of South West, not insignificant.
The Operations Manual with which South West was obliged to comply imposed a number of responsibilities on the Chief Pilot. One was to undertake an assessment of the task which was to be performed (in this case the aerial survey). In my view, a proper assessment required a precise determination of the work which was required to be carried out, the route which was to be undertaken, and the identification of any hazards. In the present case, the assessment consisted of nothing more than Mr Dolby's determination that Mr Thrupp was appropriately qualified to do the job of piloting the survey.
The Operations Manual also required Mr Dolby, as Chief Pilot, to conduct a briefing with Mr Thrupp prior to the flight being undertaken. Importantly, that briefing was required to address the boundaries of the area which was the subject of the survey, and identify any hazards or obstacles. No proper briefing was ever conducted.
Mr Dolby spoke with Mr Thrupp on two occasions before the flight departed. The first was on 30 January 2006 when, according to Mr Dolby, there was a discussion about "surveys and their hazards". The detail of what was discussed is not apparent on the evidence. Significantly, Mr Dolby was not involved in any of the arrangements which had been made with the Council in respect of the conduct of the survey. He therefore knew little, if anything, of the detail of those arrangements, including the precise area over which the aerial survey was to be performed. Whilst Mr Dolby might have spoken with Mr Thrupp about the "dangers of low level weed survey" he knew nothing of the detail of the survey which was to be undertaken. Speaking about such dangers is one thing. Actually assessing risk, and appropriately responding to it, is quite another.
The second discussion between Mr Dolby and Mr Thrupp was a matter of a couple of days after the first. On that occasion, according to Mr Dolby, they "rehashed a couple of points". Again, what was said is not able to be determined on the evidence. However, what is clear is that Mr Dolby did not have a map of the relevant area and did not direct Mr Thrupp to obtain one. In my view, a map was a basic necessity for an appropriate task assessment. Without it, the route could not have been ascertained and hazards could not have been identified. It may well be, as Mr Joyce said, that the discussions between Mr Dolby and Mr Thrupp, and the subsequent discussions between Mr Thrupp and Mr Stephenson before the flight departed, were sufficient in terms of time to discuss any relevant matters. However, what is important are the terms of the discussions. Discussing the dangers of low level weed surveys, and later "rehashing a couple of points" fell substantially short of what was required.
I have already made reference to the likelihood of the probability of harm eventuating if care were not taken, and its likely seriousness. These factors must have been known to an experienced aviator such as Mr Dolby. The failure to conduct a proper briefing was a breach of South West's duty to Mr Stephenson.
Mr Thrupp also owed a duty of care to Mr Stephenson as his passenger. I accept the submission made by counsel for South West that it is not open to infer that Mr Thrupp was negligent from either the fact of the collision or the position of the helicopter at impact. However, as a qualified and experienced pilot, Mr Thrupp must have known not only of the risk of a wire strike, but of the significant consequences which were likely to eventuate if that risk materialised. The obvious precaution which he should have adopted was to fly at an appropriate height above the power lines. The survey in question was capable of being conducted from a height of 300ft. Mr Thrupp descended to a height of approximately 120ft. For the purposes of conducting the survey, that was simply not necessary. In descending to the level he did, Mr Thrupp breached one of the fundamental principles of good airmanship, namely that a pilot should not descend to a level lower than that which is necessary. In doing so, he breached his duty of care to Mr Stephenson.
Had a proper assessment been conducted by Mr Dolby, and had a proper briefing been carried out with Mr Thrupp, the hazard posed by overhead wires in the area would have been identified and Mr Thrupp would have been on notice not to descend as he did. Had Mr Thrupp not descended as he did and struck the wire, the accident would not have occurred. I am satisfied that these respective breaches of duty were also causative of the accident.
For all of these reasons, I am satisfied that South West, through the acts and omissions of Mr Dolby and Mr Thrupp, was negligent. I am also satisfied that those acts and omissions were causative of the damage occasioned by the plaintiffs.

[30]

The position of EE

The principal submission advanced on behalf of EE was that it did not owe a duty of care to South West. In Caltex Refineries (supra) Allsop P (at [102]) noted the "rejection of any particular formula or methodology which will yield an answer to the question of whether there exists, in any given circumstance, a duty of care". His Honour proceeded to observe that such rejection had been "accompanied by the identification of an approach to be used to assist in drawing the conclusion whether, in novel circumstances, the law imputes a duty of care and, if so, in identifying its scope or content. His Honour continued: "If the circumstances fall within an accepted category of duty, little or no difficulty arises. If, however, the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the "salient features" or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury. [103] These salient features include: (a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law.
His Honour made it clear that it was not compulsory, in any given case, to make findings about all of these factors. In addition, he specifically stated that the list was not exhaustive, but provided a "non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content" (at [104]). Basten JA observed (at [172]) that the multifactorial approach to the question of whether a duty of care existed was not to be treated as a "shopping list". Adopting this approach to the present case, a number of factors support the conclusion that EE owed a duty of care to South West.
Firstly, the harm which could arise as a consequence of a helicopter striking an overhead wire was foreseeable. Although there is no evidence that EE had actual knowledge of the fact that the survey was to be conducted, the area was regarded by EE as fire prone, a factor from which it must have known that low level flying in the area would be likely.
Secondly, the nature of the harm which would be likely to eventuate from that circumstances was obviously serious, if not catastrophic. As a provider of energy services EE must have been aware that this was the case.
Thirdly, although for the reasons already set out the Council and South West had some control over the avoidance of the risk of a wire strike, that control was not exclusive to them. In the present case, the wire struck by the helicopter was obviously difficult to see and was located adjacent to a roadway which, on the evidence was likely to be used by pilots for the purposes of navigating the area. The length of the span was such that there was a considerable distance between the supporting poles and there was nothing in the immediate vicinity of the crash site which indicated the presence of anything which might require the supply of power, and thus put a pilot on notice as to the possibility of the presence of wires.
In my view, a combination of these circumstances was such as to impose a duty upon EE, not only to aircraft owners but to all persons who could sustain damage as a consequence of a pilot flying low in the area of The Dungeons: Sheather v Country Energy [2007] NSWCA 179 at [73].
The risk of wire strike was not insignificant. Creating a "corridor" or "easement" by clearing vegetation was not sufficient. The evidence establishes that the wire struck by the helicopter was essentially invisible. The evidence also establishes that the placement of markers on the wire would have made them visible from 300m away, thus providing a pilot with an adequate opportunity of seeing them and taking evasive action so as not to collide with them. That, in my view, was an appropriate response to the risk. The failure of EE to implement it constituted a breach of its duty of care, to both South West and Mr Stephenson.
The breach was, in my view, a cause of the accident. On the evidence, the presence of markers on the wires would have enabled them to be seen from several hundred feet away.

[32]

The legislative scheme

Before going to the specific statutory provisions, it is appropriate to set out a summary of the scheme that they create. The written submissions of South West set out such a summary and whilst there is an obvious issue as between South West and the plaintiffs in the Stephenson proceedings about whether the CAA applies to the facts of this case, counsel for the plaintiffs did not, as I understood it, take issue with South West's summary of the scheme. The following draws upon the written submissions of South West in this respect.
The scheme created by the CAA in relation to the liability of a carrier for damages has its origins in the Warsaw Convention to which Australia is a party. The Warsaw convention was amended by the Hague Protocol in 1955 and the amended convention is contained in Schedule 2 to the CAA. Subsequently, the Warsaw Convention was amended by the Montreal Protocol No 4 which is contained in Schedule 5 of the CAA, although that occurred after the accident which is the subject of these proceedings. The conventions have the force of law in Australia in relation to carriage by air to which they apply.
The Commonwealth Parliament has exercised the powers available to it to extend, by the provisions contained in Part IV of the CAA, an analogous regime to inter-state and other carriage by air within Australia, leaving it to the States to exercise their legislative power to fill the gap which would otherwise exist in relation to intra-state flights. That State legislative power has been exercised by the enactment of ss 4 and 5 of the Civil Aviation (Carrier's Liability) Act 1967 NSW ("the NSW Act"). Those provisions are set out in full below.
One of the purposes of the scheme is to provide certainty for passengers who may wish to bring an action for damages against a carrier. By virtue of the legislation, passengers are given the benefit of a statutory scheme without the associated trouble or expense of having to establish negligence against the carrier. As a consequence, if damage is sustained during the carriage of a passenger, and that damage falls within the scope of the scheme which is created, the CAA legislates that liability will be in favour of that injured passenger. In the event of the passenger's death, liability is legislated in favour of such of the passenger's family members as sustained damage by reason of his or her death. A form of strict liability is imposed in substitution for any civil liability of the carrier under any other law. The scheme limits the liability of the carrier, but also prohibits the carrier from contracting out of such liability.
In Swiss Bank Corporation v Brink's MAT Ltd [1986] QB 853, Bingham J (as his Honour then was) cited two fundamental purposes of the similar scheme operating in the United Kingdom. The first was to enable a plaintiff to recover damages even though, absent the legislation, he might have no cause of action which would entitle him to succeed. The second was to enable a defendant carrier to limit its liability by imposing a global limitation upon the total monetary sum which such carrier might find itself liable to pay.
Similar observations were made by Hope LJ in Sidhu and Abnett (known as Sykes) v British Airways Plc [1997] AC 430 at 447: "...the purpose is to ensure that, in all questions relating to the carrier's liability, it is the provisions of the Convention which apply and that the passenger does not have access to any other remedies, whether under the common law or otherwise, which may be available within the particular country where he chooses to raise his action. The carrier does not need to make provision for the risk of being subjected to such remedies, because the whole matter is regulated by the Convention."
The right of a person to damages under Part IV of the CAA is extinguished if the proceedings are not brought within two years of the accident. There is no issue in the present case that the proceedings brought by Mr Stephenson and her children were commenced in the District Court on 7 January 2009, well after the expiration of that two year limitation period.

[33]

The relevant statutory provisions

Section 4 of the NSW Act is in the following terms: 4 Carriage to which Act applies The carriage to which this Act applies is the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in the State and another place in the State or from a place in the State back to that place, not being: (a) carriage to which Part IV of the Commonwealth Act applies, or (b) carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies, or (c) carriage to which the provisions of another convention, protocol or treaty apply, being provisions that have the force of law under the Commonwealth Act and that are prescribed for the purposes of this paragraph by the regulations under this Act.
Section 5 of the NSW Act is in the following terms: 5 Application of provisions of Parts IV and IVA of the Commonwealth Act The provisions of Parts IV and IVA of the Commonwealth Act (other than sections 27, 40, 41 and 41J (8)) and, subject to section 7 of this Act, the provisions of the Commonwealth Regulations apply to and in relation to carriage to which this Act applies and matters connected with the carriage, as if those provisions were incorporated in this Act and as if, in those provisions as so incorporated: (a) general references to Parts IV and IVA of the Commonwealth Act were references to this Act, (b) a reference in one of those provisions to another of those provisions were a reference to that other provision as applying by virtue of this Act, (c) the reference in subsection (5) of section 29 of the Commonwealth Act to carriage referred to in subsection (4) of section 27 of that Act were a reference to the carriage of a passenger where: (i) the carriage of the passenger between two places was to be performed by two or more carriers in successive stages, (ii) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts, and (iii) this Act would have applied to that carriage if it had been performed by a single carrier under a single contract, and (d) the references in the Commonwealth Act to the regulations relating to certain matters were references to the provisions of the Commonwealth Regulations relating to those matters as applying by virtue of this Act.
The terms "airline licence", "charter licence" and "commercial transport operations" are defined in s. 26 of the CAA as follows: "airline licence" means: a) an international airline licence in force under the Air Navigation Regulations; b) an Air Operator's Certificate in force under the Civil Aviation Act 1988 authorising airline operations; or c) a New Zealand AOC with ANZA privileges (as identified in section 3 of the Civil Aviation Act 1988) authorising airline operations. "charter licence" means: a) a charter licence in force under the Air Navigation Regulations; b) an Air Operator's Certificate in force under the Civil Aviation Act 1988 authorising charter operations; or c) a New Zealand AOC with ANZA privileges (as identified in section 3 of the Civil Aviation Act 1988) authorising charter operations. "commercial transport operations" means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo.
Part IV of the CCA encompasses ss. 26 to 41 and is headed "Other carriage to which this Act applies". Section 27 is in the following terms: Application of Part (1) This Part applies to the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations, or in an aircraft being operated in the course of trade and commerce between Australia and another country, under a contract for the carriage of the passenger: (a) between a place in a State and a place in another State; (b) between a place in a Territory and a place in Australia outside that Territory; (c) between a place in a Territory and another place in that Territory; or (d) between a place in Australia and a place outside Australia; not being carriage to which the 1999 Montreal Convention, the Warsaw Convention, the Hague Protocol, the Montreal Protocol No. 4 or the Guadalajara Convention applies. (3) For the purposes of this section, where, under a contract of carriage, the carriage is to begin and end in the one State or Territory (whether at the one place or not) but is to include a landing or landings at a place or places outside that State or Territory, the carriage shall be deemed to be carriage between the place where the carriage begins and that landing place, or such one of those landing places as is most distant from the place where the carriage begins, as the case may be. (4) For the purposes of this section, where: (a) the carriage of a passenger between two places is to be performed by two or more carriers in successive stages; (b) the carriage has been regarded by the parties as a single operation, whether it has been agreed upon by a single contract or by two or more contracts; and (c) this Part would apply to that carriage if it were to be performed by a single carrier under a single contract; this Part applies in relation to a part of that carriage notwithstanding that that part consists of carriage between a place in a State and a place in the same State.
Section 28 of the CAA is in the following terms: Liability of the carrier for death or injury Subject to this Part, where this Part applies to the carriage of a passenger, the carrier is liable for damage sustained by reason of the death of the passenger or any bodily injury suffered by the passenger resulting from an accident which took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Section 31 prescribes monetary limitations in respect of a carrier's liability.
Section 35 makes provision for liability in respect of death and is in the following terms: Liability in respect of death (1) The provisions of this section apply in relation to liability imposed by this Part on a carrier in respect of the death of a passenger (including the injury that resulted in the death). (2) Subject to section 37, the liability under this Part is in substitution for any civil liability of the carrier under any other law in respect of the death of the passenger or in respect of the injury that has resulted in the death of the passenger. (3) Subject to the next succeeding subsection, the liability is enforceable for the benefit of such of the passenger's family members as sustained damage by reason of his or her death. (4) To the extent that the damages recoverable include loss of earnings or profits up to the date of death, or funeral, medical or hospital expenses paid or incurred by the passenger before his or her death or by his or her personal representative, the liability is enforceable for the benefit of the personal representative of the passenger in his or her capacity as personal representative. (6) The action to enforce the liability may be brought by the personal representative of the passenger or by a person for whose benefit the liability is, under the preceding provisions of this section, enforceable, but only one action shall be brought in respect of the death of any one passenger, and such an action, by whomsoever brought, shall be for the benefit of all persons for whose benefit the liability is so enforceable who are resident in Australia or, not being resident in Australia, express the desire to take the benefit of the action. (7) The damages recoverable in the action include loss of earnings or profits up to the date of death and the reasonable expenses of the funeral of the passenger and medical and hospital expenses reasonably incurred in relation to the injury that resulted in the death of the passenger. (8) In awarding damages, the court or jury is not limited to the financial loss resulting from the death of the passenger. (9) Subject to the next succeeding subsection, the amount recovered in the action, after deducting any costs not recovered from the defendant, shall be divided amongst the persons entitled in such proportions as the court (or, where the action is tried with a jury, the jury) directs. (10) The court may at any stage of the proceedings make any such order as appears to the court to be just and equitable in view of the provisions of this Part limiting the liability of the carrier and of any proceedings which have been, or are likely to be, commenced against the carrier, whether in or outside Australia.
Section 37 expressly does not exclude certain liabilities and is in the following terms: Certain liabilities not excluded Nothing in this Part shall be deemed to exclude any liability of a carrier: (a) to indemnify an employer of a passenger or any other person in respect of any liability of, or payments made by, that employer or other person under a law of the Commonwealth or of a State or Territory providing for compensation, however described, in the nature of workers' compensation; or (b) to pay contribution to a tort-feasor who is liable in respect of the death of, or injury to, the passenger; but this section does not operate so as to increase the limit of liability of a carrier in respect of a passenger beyond the amount fixed by or in accordance with this Part.

[36]

Consideration

In Edwards and ors v Endeavour Energy and ors. (No. 4) [2013] NSWSC 1899 Johnson J considered the application of the NSW Act to a helicopter flight which had been conducted for the purposes of inspecting power lines. The helicopter struck a wire and crashed, causing catastrophic injury to one of those on board.
His Honour said (commencing at [105]): [105] It is necessary to consider the nature of the activity upon which the helicopter and its occupants were engaged on 4 April 2006. The relevant flight operation involved low-level aerial work inspecting power lines, being conducted by Precision as part of its contractual arrangement with Endeavour, and involving both Precision and Endeavour personnel on board. [106] It is difficult to see how this activity fits within the concept of intrastate airline and charter operations of the type caught by s 4 Civil Aviation (Carriers' Liability) Act 1967 (NSW). On 4 April 2006, the helicopter was engaged in aerial work operations, in the form of a power line inspection, under Precision's AOC (Ex EE3). These aerial work operations involved low-flying activities, for the purpose of power line inspections, as allowed under Precision's low-flying permit (Ex EE4). [107] It should be kept in mind that the carriage to which the New South Wales Act applies involves carriage by the holder of an airline licence or a charter licence, in the course of commercial transport operations under a contract, for the carriage of a person or persons between one place and another within the State. The activity being undertaken by the Precision helicopter on 4 April 2006 does not sit comfortably with this statutory formula. It seems far removed from any notion of "commercial transport operations" by the holder of a "charter licence". [108] There is considerable force in Endeavour's primary submission on this issue, which I am inclined to accept.
In my view, those observations are directly applicable to the present case. The aerial survey being conducted by South West involved low level flying which was being conducted pursuant to its Air Operators Certificate. Even if Mr Stephenson was properly regarded as a passenger (and for the reasons discussed more fully below it is my view that was not) the helicopter was being used for an aerial weed survey, not for the carriage of passengers or cargo. It was not, therefore, engaged in commercial transport operations as defined.
For these reasons, I am satisfied that the work which was being undertaken fell outside the operation of the NSW Act, and thus Part IV of the CAA. It follows that the scheme described above has no application to the Stephenson proceedings insofar as they are brought against Southwest.
However, as I have previously noted, a further submission was made on behalf of the plaintiffs in the Stephenson proceedings based upon the proposition that the scheme did not apply because Mr Stephenson was not a "passenger" at the time. For the reasons set out below I am satisfied that this is the case. This constitutes a further reason why the CAA has no application to the Stephenson proceedings.
The word "passenger" is not defined in the CAA. Counsel for the plaintiffs drew my attention to ordinary English meaning of the word which, it was submitted, tended completely against the conclusion that Mr Stephenson was a passenger. Counsel for the plaintiffs pointed out that in its ordinary usage, a passenger is "someone who travels by some form of conveyance" (Macquarie Concise Dictionary 4th Edition 2006). The word "travel" means "to go from one place to another; make a journey".
In Fellowes (or Herd) v Clyde Helicopters [1997] AC 534, the respondents supplied helicopters for use by police in surveillance operations, as well as pilotage, maintenance services and full ground facilities. The duties of police officers on board the helicopters were to direct the surveillance operations and to give necessary instructions to the pilots, the pilots being solely responsible for flying the helicopters.
The deceased and two colleagues were carrying out their policing duties on board a helicopter when it encountered a snow storm and collided with a block of flats. The deceased received fatal injuries and his widow, acting on behalf of their four children and his mother, brought a claim against the respondents alleging common law negligence on the part of the pilot. The respondents maintained that their liability was governed by the Warsaw Convention as amended as applied by the Carriage by Air Acts (Application of Provisions) Order 1967.
Article 17 of the order was in the following terms: "The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking" (my emphasis).
In dismissing an appeal against an order entering judgment in favour of the respondents, it was held that since the deceased was on board the helicopter for the purpose of carrying out his police duties, and because he had no responsibility for the operation of the helicopter, he was properly regarded as a passenger.
Having cited the provisions of Article 17, Lord Mackay of Clashfern LC said (at 542): "In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He is therefore properly regarded as a passenger."
In reaching this conclusion his Lordship considered the decision in Societe Mutuelle d'Assurance Aerien c. Veuve Gauvain (1967) 21 RFDA 436 in which a flying instructor was giving tuition to a trainee pilot. At the end of the lesson, he gave a demonstration of low flying in the course of which the aircraft struck an overhead wire. Both the instructor and the trainee pilot were killed. In considering this case his Lordship said (at 546): "In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention in so far as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event".
Fellowes was considered in Disley v Levine t/as Airtrak Levine Paragliding [2001] EWCA Civ 1087; (2002) 1 WLR 785. In that case, the plaintiff was injured in a paraglider accident whilst undertaking tuition from the defendant in preparation for applying for her elementary pilot certificate. The Court concluded that she was not a "passenger" for the purposes of the relevant order. Henry LJ, having referred to the decision in Fellowes, observed (at [52]: "It cannot be said that Ms Disley contributed nothing to the flight. True it is that, as set out in the agreed statement of facts, during the flight Ms Disley watched the defendant demonstrate various flight manoeuvres, but she did not practice controlling the glider, or play any part in its operation during the flight. However, the flight could not have taken place without the contribution she made with her legs both on take-off and landing. But over and above that, she was not on the flight as a passenger, nor on the flight under a contract of carriage, but on the flight as a pilot under instruction, and so as one of the crew.
Buxton LJ, having referred to the passage from Fellowes at [292] above, said (at [67]): "That observation was however directed at the particular facts of the Herd case, where it had been argued that Sergeant Herd was not a passenger because he was empowered to give directions to the pilot as to where the helicopter should fly. In every other respect, however, Sergeant Herd was on the helicopter for the purpose of being conveyed from one place to another, albeit places that he determined while he was in the air rather than in advance when he was on the ground. He therefore fulfilled the normal understanding of the word "passenger". That is also the purposive meaning of the word when it is used in a Convention directed at commercial air transport".
In Edwards (supra) Johnson J referred to the decisions in Fellowes and Disley before concluding that Mr Edwards, a tree management officer, was not a passenger on the flight. His Honour said (at [132]: " .... Mr Edwards discharged functions including assisting the pilot with navigation of the aircraft, both by directing him to the power lines which he was to fly near to, and by looking out for, and warning of hazards which he was to avoid. In these ways, Mr Edwards was so closely involved in the conduct of the flight, that the conclusion ought be reached that he was a member of the crew, and not a mere passenger. If Mr Edwards had not been present to act as "observer", the low-level aerial surveillance flight could not have taken place at all.
In my view, the same applies to Mr Stephenson. It was part of Mr Stephenson's role to act as an observer, and to direct Mr Thrupp to particular areas which were required to be inspected for the presence of noxious weeds. His presence on the flight was essential to the conduct of the survey. He was not a passenger being conveyed from one place to another.
For all of these reasons, I am satisfied that Mr Stephenson was not a "passenger". This is a further reason why the NSW Act and the CAA do not apply to the Stephenson proceedings insofar as those proceedings are brought against South West.

[38]

The decision in Magnus

In Magnus, an aircraft ditched in the waters of Botany Bay shortly after taking off from Sydney Airport. Almost three years after the accident (and thus outside of the 2 year limitation period imposed under the CAA) the respondent instituted representative proceedings on behalf of a group of persons including passengers (who were students) and their parents.
The appellants had sought summary dismissal of the proceedings on the grounds that the claims had been extinguished upon the expiration of the two-year limitation period contained in s. 34 of the CAA. Three preliminary questions were stated for the consideration of the Full Federal Court, the third of which was expressed in the following terms: "Does Part IV of the CAA operate to exclude the causes of action pleaded in the amended statement of claim in respect of claims by non-passengers for psychological injuries independent of any physical injury?"
It will be apparent from the terms of that question that the claims brought by the non-passengers in that case were akin to the nervous shock claims brought by the plaintiffs in the Stephenson proceedings.
The majority (Sackville and Hill JJ) concluded that Part IV of the CAA was not intended to be a complete code in respect of non-passengers who suffer loss or damage as a result of an air accident, and that s. 36 of the CAA was not intended to preclude claims by non-passengers seeking damages for nervous shock under the general law.
Sackville J formulated the second of those matters in the following terms (at 462): "...whether a non-passenger who suffers psychological harm ... (for example, a parent of a passenger who sustains nervous shock on hearing that an aircraft has crashed) is ... barred from claiming damages in respect of that harm, except in accordance with and subject to the CA Act".
His Honour said (at 479): "It is important to appreciate that the separate questions pose issues of construction of Part IV of the CA Act, not of the Warsaw Convention. Part IV concerns carriage of passengers by air, not being carriage to which the Warsaw Convention applies: s. 27(1). It is true that Part II of the CA Act provides for the provisions of the Warsaw Convention to have the force of law in Australia in relation to any carriage by air to which the Convention applies: s. 11. It is also true that the context in which Part IV of the CA Act should be construed includes Parliament's expressed intention that the Warsaw Convention should form part of Australian domestic law so far as the international carriage of persons by aircraft is concerned. But these considerations do not necessarily mean that expressions such as "personal injury" when used in the CA Act must be given the same meaning as similar, but not identical expressions used in the English text of the Warsaw Convention."
His Honour went on to say (at 480): "Part IV of the CA Act establishes a regime for certain air travel outside the scope of the Warsaw Convention. It does not simply apply the terms of the Convention to the forms of air carriage identified in s. 27. Instead, Part IV sets out the provisions governing liability of carriers in respect of death or personal injuries suffered by a passenger."
His Honour then said (at 487): "The question is therefore whether the context in which ss. 35(2) and 36 of the CA Act appear suggests that those provisions, having regard to their "natural" or "primary" meaning, extend to a non-passenger's claim for nervous shock...There is no doubt that s. 36 of the CA Act applies to some claims by non-passengers. Section 35, like s. 12, is clearly intended to bring fatal accident claims and claims on behalf of the estate of a deceased passenger within the structure created by Part IV of the Act. Plainly, s. 36 is intended to prevent such claims from pursued outside Part IV(and therefore outside the limits of liability imposed by s. 31). But I do not think that s. 35 is intended to create an entitlement in non-passengers to claim damages for nervous shock occasioned by the death of a passenger. Nor do I think that s. 36 is intended to preclude claims by non-passengers seeking damages for nervous shock under the general law. I have referred to the historical origins of s. 35 of the CA Act. In my opinion, the section is concerned to provide for fatal accidents claims and claims by legal representatives of a deceased passenger, as those concepts have been generally understood under Australian Law. The history of s. 35 of the CA Act suggests that the section was designed to bring fatal accident claims and claims by the legal representatives of a deceased passenger within the scheme created by Part IV of the CA Act."
His Honour concluded (at 488): "It is, however, one thing to say that the rights of some non-passengers may be affected by Part IV of the CA Act. It is quite another to say that particular rights or entitlements of a non-passenger, such as a right to claim damages for nervous shock arising out of an aircraft accident involving a relative of the non-passenger, are exclusively within Part IV. For the reasons that I have given, I do not think that Part IV has that operation or effect."
Hill J categorised (at 460) the question as being one of construction of the CAA. He concluded (at 461) that there was nothing in the Act which suggested that it was intended to govern claims by non-passengers of the kind under consideration. His Honour continued (at 461): "Although, therefore, it seems clear that neither the conventions nor the CA Act were intended to be a complete code governing all claims against airlines and particularly all claims for damages suffered by non-passengers, it is possible to say that each constitutes a code in respect of claims by non-passengers to the extent that those claims relate to the death or personal (bodily) injury of a passenger. But once it is seen that the Conventions and the CA Act are concerned with questions of contractual limitation of liability and notice thereof it is not difficult to conclude that the rational for the Conventions or the Act being a code dealing with some, although not all, liabilities of airlines to non-passengers falls away. I therefore agree with Sackville J and for the reasons which his Honour has given (supplemented by the above comments) that the CA Act has no application to claims for psychological injury to non-passengers arising out of injuries occurring to passengers as the result of an accident on board an aircraft."
Beaumont J dissented from the majority. His Honour said (at 446): "As has been noted, Pt II of the CA Act adopts the Warsaw Convention in the case of international carriage by air. Part IV, in dealing with domestic carriage, does not in terms, or otherwise, adopt the convention. Yet, while Pt IV is a free-standing provision, it is similar to the convention in some respects."
His Honour then said (at 458): "Turning next to the more difficult questions arising in the case of the claims by persons other than passengers, there is a threshold issue to be resolved in the application of s 28 in such case: that is, whether s 28 is capable of making a carrier liable to persons other than passengers. It will be recalled that s 28 is expressed to operate "where this Part applies to the carriage of a passenger"; and that it is expressed to impose liability "for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger". All of this suggests, naturally, that the primary focus of s 28 is upon the passenger, certainly in the event of his or her being injured. The position in the event of death is perhaps not so clear. Yet, it will have been noted that s 28 speaks of a liability "for damage sustained by reason of the death ... or ... injury". The section does not, at least in terms, purport to limit its operation to damage sustained by the passenger. Nor does s 36. It follows that, taken literally, a person other than a passenger could fall within s 28 or s 36, or otherwise within Pt IV, if he or she sustained psychological damage by reason of the death or personal injury of a passenger. Is there any reason, by adopting a purposive method of interpretation, why such a literal construction should not be adopted? In my view, there is not. It is apparent that Pt IV was intended to operate exclusively, as a code, in the event of the death or personal injury of a passenger in an aircraft accident. In that area, Pt IV provides some benefits not available under the general law, yet is also restrictive of the rights of a plaintiff at common law in some respects. While the position is not so clear as in the case of a claim by a passenger, I think that it is preferable to apply the "seamless web" approach in this context also as a matter of assumed legislative purpose. The policy considerations mentioned by Lord Hope are equally pertinent here, notwithstanding the absence of a contract of carriage between the carrier and this class of claimants. Like Bingham J, who was confronted with an equally difficult question of interpretation on an analogous topic, the construction which I would put upon Pt IV may not be irresistible. Nonetheless, it is, I think, the best one, and there is no square authority on Pt IV, or any authoritative writing, which leads me to think that my provisional preference should be overridden (see Swiss Bank Corp v Brink's MAT Ltd [1986] 1 QB 853 at 860). It follows that I would also declare that the rights of these claimants to damages, if any, were extinguished after the two year period had expired."
Counsel for South West submitted that the decision of the majority reflected a failure to read s. 36 in the context of the entirety of the CAA. It was further submitted that the majority had failed to give proper consideration to the decision Sidhu (supra) and that more recent decisions in Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189, Agtrack (NT) Pty Limited v Hatfield (2005) 223 CLR 251 and Air Link Pty Limited v Paterson [2005] HCA 39; (2005) 223 CLR 283 all supported the construction of Beaumont J. It was further submitted that the decision of the Supreme Court of the United States in El Al Israel Airlines v Tseng 525 US 155 (1999) specifically approved and followed the decision in Sidhu and that the decision of the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited (2012) 260 FLR 37 provided further support for the dissenting judgment of Beaumont J.

[39]

Consideration

In Sidhu an action was brought by passengers arising out of having been detained by foreign forces when a flight on which they were travelling had landed in Kuwait. The primary judge concluded that the plaintiffs had no rights other than those which arose under the relevant Convention and that any such rights that they may have had under that Convention had been extinguished after the expiration period of the limitation of two years. The House of Lords dismissed an appeal against that decision.
Lord Hope of Craighead said (at 441): "It should be recorded also that all parties were agreed that if a passenger had a claim under article 17 against the carrier, there was no concurrent common law remedy. It is common ground therefore that a passenger who has a claim for bodily injury caused by an accident which took place on board the aircraft, or in the course of any of the operations of embarking or disembarking, cannot maintain a separate claim at common law for any loss, injury or damage not covered by article 17 of the Convention. That seems to follow inevitably from provisions of article 24(2), which declares that in the cases covered by Article 17 any actions of damages, however founded, can only be brought subject to the conditions and limits set by the Convention. So the stark issue which is before us in this appeal is whether a passenger who has sustained damage in the course international carriage by air due to the fault of the carrier, but who has no claim against the carrier under article 17 of the Convention, is left without a remedy."
His Lordship concluded that a purposive construction should be applied in determining that issue, and concluded (at 447): "On the one hand the carrier surrenders his freedom to exclude or limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 - which is the issue in the present case - seems to be entirely contrary to the system which these two articles were designed to create."
The decision in Sidhu was referred to by the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 260 FLR 37. In that case, the respondent sought to recover, from the applicant, compensation paid to an employee who was injured whilst a passenger on a flight conducted by the applicant. The Court (Allsop P, Macfarlan JA and Handley AJA) concluded that a right of action for contribution or indemnity was not covered by the Warsaw Convention and that the right of indemnity contained in s. 37 of the CAA was not subject to the two year limitation period. Allsop P said (at [96]): "The applicant relied strongly on Sidhu v British Airways Plc. [1997] 1 AC 430. That case can be accepted fully for what it decided: that from a consideration of the whole purpose of the Warsaw Convention, it can be taken to prescribe the circumstances, being the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air. No other action was available to the passenger."
Having referred to the judgment of Lord Hope in Sidhu his Honour went on to say (at [96]): "His Lordship was speaking of the unity and comprehensiveness of the actions given by the Warsaw Convention to the passenger (extending also to wrongful death claims). Those actions were given to the passenger, all others were removed from him or her and those that were given were subject to the conditions and limits of the Convention."
The decision in Povey stemmed from a claim by the appellant for damages under the CAA for injuries said to have arisen from Deep Vein Thrombosis caused by the conditions of an overseas flight on which he was a passenger. The principal issue was whether the claim which has been brought identified an "accident" within the meaning of Article 17 of the Warsaw Convention which created liability in the carrier "if the accident which caused the damage so sustained took place on board the aircraft ...". The High Court concluded (by majority) that the suffering of Deep Vein Thrombosis was not an "accident".
The majority observed (at [24]) that it was important that international treaties be interpreted uniformly by contracting states. That is consistent with the approach taken in Sidhu (at 444). Equally however, the Court identified the ultimate questions as being firstly, what did the relevant treaty provide, and secondly, how was that international obligation carried into effect in Australian municipal law. The Court did not consider the decision in Magnus.
Agtrack (NT) involved a claim by a widow of a passenger on a charter flight who was killed when the aircraft crashed. The statement of claim commencing the proceedings was filed within 2 years of the accident but made no reference to the CAA. After the expiration of the limitation period an application was made to amend the statement of claim to make it clear that Part IV of the CAA was relied upon. The carrier denied that the original pleading had brought an action under the CAA and contended that the claim had been extinguished. The High Court concluded that the facts alleged in the original statement of claim demonstrated that Part IV applied and that there was no requirement to specifically plead reliance upon Part IV.
The Court observed (at 257) that where Part IV imposes a liability in respect of the death of a passenger, the liability is expressed by s. 35(2) as being in substitution for any civil liability of the carrier under any law in respect of that death. Again the Court was not called upon to consider the decision in Magnus.
In Air Link a passenger on an intra-state flight in NSW claimed damages for injury suffered in the course of disembarking. The statement of claim which was filed did not invoke a right to claim damages under Part IV of the CAA. A defence filed after the expiration of the 2 year limitation period pleaded that the claim was subject to Part IV and that accordingly, the pleaded claim was not maintainable. The passenger was then granted leave to amend the statement of claim to rely exclusively upon Part IV. The High Court held that the original statement of claim was maintainable since the facts alleged demonstrated that Part IV applied and the action had been brought within the limitation period. Kirby J made two references to the decision in Magnus. The first (at 300) was in the context of the difficulty in the language adopted in the Warsaw Convention. The second (at 312) was in the context of the need to give a purposive approach to its construction. His Honour did not, in making those references, suggest that the decision in Magnus was wrong.
Finally, in El Al Israel Airlines a passenger brought proceedings against a foreign airline alleging that she sustained personal injury arising from a security search. The parties agreed that the circumstances giving rise to the claim did not fall within the ambit of the term "accident" within the meaning of the Warsaw Convention and the question which arose was whether the Convention correspondingly excluded the passenger from maintaining an action under another source of law (in this case, New York tort law). The majority concluded that recovery for personal injury suffered on board an aircraft, or in the course of any of the operations of embarking or disembarking, if not permitted under the Convention, was not permitted at all.
Justice Ginsburg, delivering the opinion of the majority, observed (at 671-672) that the cardinal purpose of the Warsaw Convention was to achieve uniformity of rules governing claims from international air transportation.
In Magnus Sackville J made reference (at 472-473) to the purposive approach to construction adopted in Sidhu and acknowledged (at 484) that such decision reflected the view of the House of Lords that the Warsaw Convention was intended to be a uniform international code which afforded certainty to carriers. In doing so, his Honour acknowledged that such factors suggested that the Convention should be read as excluding claims for nervous shock by relatives of passengers. However his Honour went on to say (at 485): "Other considerations point in a different direction. While art 24 contemplates that some claims under the Warsaw Convention might be made by non-passengers, that does not necessarily mean that the Convention is concerned to eliminate all claims by non-passengers regardless of their juridical character or purpose."
His Honour then pointed out (at 485): "From a contractual perspective, the non-passenger is ordinarily in a very different position from that of a passenger. The non-passenger does not receive a ticket and thus does not receive direct notice of the limitations on the carrier's liability imposed by the Warsaw Convention. The non-passenger does not ordinarily have the same opportunity as the passenger to insure against the relevant risk. In Sidhu, Lord Hope stressed the importance of the restrictions on the "great principle" of freedom of contract as an element in the reasoning supporting the conclusion that the Warsaw Convention is, in effect, a code governing the carrier's liability to a passenger injured or killed in the course of aircraft operations. That consideration does not apply in the case of non-derivative claims by non-passengers. It is of course true, from a carrier's perspective that any exposure to unlimited liability increases the unpredictable risks associated with the conduct of an airline. Yet, on any view, some risks are outside the scope of the Warsaw Convention... the question is where the line should be drawn. In my opinion is not necessary to resolve that question in the present case, which ultimately turns on the construction of Part IV of the CA Act."
The authorities to which counsel for South West referred all involved factual scenarios which were quite different from the circumstances of the present case. A number of them involved claims by passengers as opposed to non-passengers. None of them involved any consideration at all of the decision in Magnus.
In my view, the judgment of Sackville J in Magnus does not, as was suggested by counsel for South West, reflect an error in approach. His Honour expressly acknowledged the view, expressed by the House of Lords, that the Warsaw Convention was intended to be a uniform code which afforded certainty to carriers. His Honour also properly pointed out that the issue in that case was one which fell to be resolved according to construction of the CAA. I am not persuaded that his Honour's conclusion was wrong. In particular, I am not satisfied that the authorities to which I was referred support the dissenting judgment of Beaumont J. None of those authorities required consideration of this specific question.
Further, the additional reasoning adopted by Hill J in Magnus is in my view persuasive. His Honour acknowledged the weight of authority in support of the proposition that the Convention was intended to be a complete code with respect to passengers. However he cited (at 461) a number of practical examples of situations in which claims might be made against a carrier arising from circumstances falling outside the terms of any Convention. He concluded that such examples demonstrated that at least to the extent of those claims, it could not be said that the Conventions were intended to be a complete code in respect of non-passengers.
His Honour went on to say that although it may be possible to conclude that the Conventions and the CAA did constitute a Code in relation to claims by non-passengers in respect of the death or bodily injury of a passenger, the CAA was concerned with questions of contractual limitation of liability. A non-passenger receives no notice of such limitation.
For all of these reasons the decision of the majority in Magnus should be followed. Even if the CAA was otherwise applicable, the nervous shock claims would survive at common law in any event.

Legislation Cited (4)

Civil Aviation (Carrier's Liability) Act 1967(NSW)

Civil Aviation (Carrier's Liability) Act 1959(Cth)

Civil Aviation (Carriers Liablity) Act 1959(Cth)

Civil Aviation (Carriers' Liability) Act 1967(NSW)

Cases Cited (40)

SWCA 158. Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 Monaghan Surveyors Pty Limited v Stratford Glen-Avon [2012] NSWCA 94 Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189 Roads and Traffic Authority NSW v Refrigerated Loadings Pty Limited [2009] NSWCA 263; (2009) 77 NSWLR 360; (2009) 53 MVR 502 Ruddick v Taylor [2003] NSWCA 262 Shaw v Thomas [2010] NSWCA 169 Sheather v Country Energy [2007] NSWCA 179 Sidhu and Abnett (known as Sykes) v British Airways Plc [1997] AC 430 Societe Mutuelle d'Assurance Aerien c. Veuve Gauvain (1967) 21 RFDA 436 South Pacific Air Motive Pty Limited & anor v Magnus [1998] FCA 1107; (1998) 157 ALR 443 Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 Swiss Bank Corporation v Brink's MAT Ltd [1986] QB 853 United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 260 FLR 37 Vairy v Wyong Shire Council (2005) 223 CLR 422 Wallace v Kam [2013] HCA 19 Waverley Council v Ferreira [2005] NSWCA 418 Wilson v Nilepac Pty Limited [2011] NSWCA 63 Wyong Shire Council v Shirt [1980] HCA 12; (1981) 146 CLR 40 Texts Cited: Annotated Civil Liability Act 2002 (Villa) Macquarie Concise Dictionary 4th Edition 2006 Category: Principal judgment Parties: Southwest Helicopters Pty Limited Essential Energy (formerly Country Energy) Parkes Shire Council Ingrid Stephenson Jay Stephenson Natalee Stephenson Representation: Counsel: Mr R Williams QC and Mr A Spencer - South West Helicopters Pty Limited

(2009) 239 CLR 420

(2005) 223 CLR 251

(2005) 223 CLR 283

(1951) 217 ALR 1

(2009) 75 NSWLR 649

(1959) 101 CLR 197

(1984) 154 CLR 672

(2005) 223 CLR 189

(2009) 77 NSWLR 360

(2009) 53 MVR 502

(1998) 157 ALR 443

(2012) 246 CLR 182