Sheather v Country Energy

Court of Appeal (NSW)|2008-02-08|Before: Hodgson JA, Ipp JA, Tobias JA

Reported Decision: (2007) Aust Torts Reports 81-901 Appeal Outcome: Special leave refused with costs by the High Court - 8 February 2008

CITATION: Sheather v Country Energy [2007] NSWCA 179

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 51; Tobias JA at 78

CATCHWORDS: TORT- NEGLIGENCE - Duty of care - Content of duty - Relevance to content of duty of negligence or other fault of plaintiff - Helicopter crashes into unmarked power lines - Pilot found to have been engaging in unlawful low-level flying - Helicopter owner sues power company - Whether conduct of pilot relevant to existence or content of duty of care, or to voluntary assumption of risk, contributory negligence, or causation. D

LEGISLATION CITED: Civil Aviation Regulations 1988 (Cth), Reg157

Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 Francis v Lewis [2003] NSWCA 152 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Liverpool City Council v Millett (2004) 43 MVR 193 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 CASES CITED: Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Rundle v State Rail Authority of NSW [2002] NSWCA 354; (2002) Aust Torts Reports 81-678 Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Volman v Lobb [2005] NSWCA 348 Whittlesea City Council v Merie [2005] VSCA 199 Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Louis Sheather - appellant Country Energy - respondent

COUNSEL: Mr. R. McIlwaine SC with Mr. C. McKeown for appellant Mr. P. Garling SC with Mr. J. Stewart for respondent

SOLICITORS: Baker Deane & Nutt, Queanbeyan for appellant Phillips Fox, Sydney for respondent

LOWER COURT FILE NUMBER(S): DC 1739/06 (Sydney); DC 41/03 (Queanbeyan)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40455/06 DC 1739/06 (Sydney) DC 41/03 (Queanbeyan)

HODGSON JA IPP JA TOBIAS JA

Tuesday 24 July 2007 SHEATHER V. COUNTRY ENERGY Judgment 1 HODGSON JA: On 23 June 2006, Walmsley DCJ gave a verdict and judgment for the respondent (Country Energy) in proceedings in which the appellant (Mr. Sheather) had sued Country Energy for damages for the loss of his helicopter, caused by its crashing into one of Country Energy's power lines on 20 February 1999. 2 Mr. Sheather appeals from that decision.

CIRCUMSTANCES 3 The accident occurred at Chinaman's Gap, about 30 kilometres south-east of Holbrook. It is on a ridge in a hilly area separating flatter grazing land. A road (Jingellic Road) runs east-west over the ridge, crossing it at Chinaman's Gap, which is a cutting through a shallow saddle in the apex of the ridge. There was no clear evidence as to the height of the ridge above the flatter land on either side, but a contour map in evidence suggests it was of the order of 100-150 metres above that land, and about 500 metres above sea level. 4 Country Energy was the supplier of energy in the area. One of its main power lines ran along the northern side of Jingellic Road, parallel to it. At a point near the apex of the ridge, a spur line ran south across Jingellic Road from the main power line, consisting of two three-stranded 2.75 millimetres steel core galvanised conductors. The spur line was suspended between two poles, 899 metres apart, the northern pole serving both the main power line and the spur line. The spur line crossed the road 170.47 metres to the south of this pole, and at that point was about 31 metres above road level. The line cleared the tree canopy on either side of the road by between 3 and 5 metres, the width of the gap in the tree canopy being about 44 metres. 5 Country Energy had cleared the bushes and trees from under the main power line, but there was no such clearing under the spur line. There were in 1999 inexpensive commercially available markers that could be attached to powerlines to draw attention to them, but there were no such markers on the spur line. Prior to the accident, Mr. Sheather had lent his helicopter to his cousin, an experienced pilot, so that his cousin could use it to fly his sister to her wedding at a property two and a half to three kilometres beyond Chinaman's Gap. On the way to this property, the helicopter crashed into the spur line near Jingellic Road at Chinaman's Gap. Both the pilot and the passenger were killed, and the helicopter was destroyed.

STANDARDS AND REGULATIONS 6 The primary judge referred to Australian Standards applying to the construction of powerlines, as they affect air navigation: 14. AS 3891.1-1991 had this scope: "This standard specifies requirements for aircraft warning markers for use on overhead cables and their supporting structures. Nothing in this standard shall prevent the marking of cables not specified in this standard, considered by their owner to require marking, provided that the markings are consistent with the colours and devices detailed in this standard". 15. The standard then provided that markers of alternating colours were to be used on any section of cable whose height exceeded 90 m, (about 245 feet). However the requirement did not apply in any area not within 40 kilometres of landing areas, or within 20 kilometres of any railway line or major road classified as a national highway. 16. The other relevant standard was AS 3891-2-1992. Its scope was to specify "requirements for permanent and temporary marking of overhead cables and their supporting structures for visual warnings to pilots of aircraft involved in low-level flying operations. Typical flying operations would be agricultural, mustering, media and ballooning". 17. Clause 5.2 says "Permanent markers are desirable where regular low-level flying operations take place". 7 He also referred to a Commonwealth regulation: 23. In 1999 there was in force a Commonwealth Regulation which governs the height above ground at which aircraft are permitted to fly. It is common ground that on the day of the accident Mr Paffard (sic) was bound to comply with that regulation. The regulation is Regulation 157 of the Civil Aviation Regulations. 1988. It provides: (1) An aircraft must not fly over: (a) a city, town or populous area at a height lower than 1000 feet; or (b) any other area at a height lower than 500 feet. Penalty: 50 penalty units (2) A height specified in subregulation (1) is the height above the highest point of the terrain, and any object on it, within a radius of: (a) in the case of an aircraft other than a helicopter - 600 metres; or (b) in the case of a helicopter - 300 metres; (3) Paragraph (1)(a) does not apply in respect of a helicopter flying at a designated altitude within an access lane details of which have been published in the AlP or NOTAMS for use by helicopters arriving at or departing from a specified place. (4) Subregulation (1)(a) does not apply if. (a) through stress of weather or any other unavoidable cause it is essential that a lower height be maintained; or (b) the aircraft is engaged in private operations or aerial work operations, being operations that require low flying, and the owner or operator of the aircraft has received from CASA either a general permit for all flights or a specific permit for the particular flight to be made at a lower height while engaged in such operations; or (c) the pilot of the aircraft is engaged in flying training and flies over a part of a flying training area in respect of which low flying is authorised by CASA under subregulation 141(1); or (d) the pilot of the aircraft is engaged in a baulked approach procedure, or the practice of such procedure under the supervision of a flight instructor or a check pilot; or (e) the aircraft is flying in the course of actually taking-off or landing at an aerodrome,. or (f) the pilot of the aircraft is engaged in: (i) a search; or (ii) a rescue; or (iii) dropping supplies; in search and rescue operation; or (g) the aircraft is a helicopter: (i) operated by, or for the purposes of, the Australian Federal Police or the police force of a State or Territory; and (ii) engaged in law enforcement operations; or (h) the pilot of the aircraft is engaged in an operation which requires the dropping of packages or other articles or substances in accordance with directions issued by CASA.

DECISION OF PRIMARY JUDGE 8 After reviewing the evidence in the case, including expert evidence, the primary judge made the following findings: (a) The plaintiff's aircraft was destroyed at about 5.55pm on 20/2/99 when it collided with the defendant's conductors at Chinaman's Gap NSW; (b) The conductors were about 31 m (or 100 feet) above the level of the ground, unmarked and dull and difficult to see against a bush background; (c) The place of impact was immediately above Jingellic Road, as it passed through a cutting in Chinaman's Gap; (d) Jingellic Road at that point ran west/east; (e) The pilot of the helicopter was highly competent and experienced; (f) Shortly before the collision the pilot, with his sister as passenger, took off from a point west of Chinaman's Gap intending to fly to a point to the east of Chinaman's Gap; (g) Before commencing the climb up the hill to Chinaman's Gap the pilot took his sister on a journey over several farms at a low level, flying at times just above the height of power lines; (h) The pilot continued to fly the helicopter at that low level as the helicopter approached Chinaman's Gap. (i) The danger power lines present to pilots of low flying aircraft is well-known to pilots; (j) The risk that a collision might occur with an unmarked power line if the helicopter flew at such a low height would have been obvious to the pilot; (k) The pilot used Jingellic Road as a reference point to aid him in navigation. Thus, he followed Jingellic Road up the hill towards Chinaman's Gap; (l) The pilot was unaware of or had forgotten the presence of the spur line, and did not see it in time to take evasive action; (m) Had markers been attached to the spur line the pilot would have seen them and reacted in sufficient time to take evasive action, and avoid the collision; (n) Had the spur line been erected to the east or west of its position, away from the ridge of Chinaman's Gap, the pilot would have managed to avoid colliding with the spur line; (o) The defendant was made aware by Mr Doake in about 1994 that in Mr Doake's view the spur line should be marked, as it was a potential aviation hazard; but it did not place markers on the line; (p) The defendant could, at minimal cost, and without affecting function, have placed markers on the spur line at any time after its construction; further, it could, without affecting function, have placed the spur line to the east or west of its position so it was not on the high point of the ridge, however at what cost, the evidence does not permit me to find. (q) In flying the helicopter at the level it was when the collision occurred, the pilot was in breach of Regulation 127 Civil Aviation Regulations 1988, the helicopter being at least 400 feet below the minimum permitted flying level in the circumstances; (r) Pilots are trained to fly in accordance with such civil aviation regulations, and to know of them. 9 The primary judge found it was foreseeable that the spur line might cause injury or loss to Mr. Sheather or a class of persons (aircraft owners) of whom he was a member; and that Country Energy owed a duty of care to pilots and aircraft owners, including pilots and owners of carelessly-flown aircraft. However, he did not consider that a reasonably prudent authority in Country Energy's position was required to do more than it did, giving the following reasons, relying among other things on the case of Vairy v. Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 922: (a) The dangers to helicopters of flying low and striking power wires are well-known to pilots; (b) Reg. 157 provides relevantly that helicopters are not permitted to fly below 500 feet except when landing or taking off or in an emergency; none of those exceptions applied here; (c) The spur line was only 100 feet above ground level, and just a few feet above tree level. The helicopter was thus at no more than 20% of the minimum permissible height when it struck the spur line: it was simply flying far too low; (d) Pilots are trained to fly in accordance with and know the regulations; "It is only reasonably to be expected that people will conduct themselves according to dictates of common sense...": Mulligan v Coffs Harbour City Council [2005] HCA 63 @ [80] (Callinan and Heydon JJ). (e) The only Australian Standard imposing a requirement for power line markers has a 90m requirement but that does not apply in country areas such as Chinaman's Gap. Thus no Australian Standard required or recommended markers for a power line at the height and place the spur line was; (f) The pilot was not engaged in agricultural flying: he was on a social flight, with no apparent reason to fly below the minimum regulated height; since I am satisfied he had been flying well below the minimum height permitted by Reg. 157 when seen by Ms Leary, and I have inferred he continued at this low level as he began his climb, I am satisfied he deliberately flew at that level, knowing it was well below what the Regulation permitted, and the danger of low flying; see Vairy [216] (Callinan and Heydon JJ); Vairy involved a physical recreational activity; this was a different variety of activity; but the pilot, like the voluntary participant in sport, is assumed to know the rules and appreciate the risks of very low flying: see for a discussion of risk of sporting activities: Agar v Hyde (2000) 201 CLR 552 at [127] per Callinan J. (g) Though there was a history of aircraft activity in the area and of aircraft flying below 500 feet, there was no record of any accidents involving this or any other line at such a low height, and no history of any aircraft flying a mere 100 feet above ground level in the area of the spur line or anywhere else; (h) Though there had been a complaint from Mr Doake, that did not make it incumbent on the defendant to take action: Vairy [150], (Hayne J); (i) Though there were alternatives, such as markers, and placing the line elsewhere, which would have prevented the collision, and at least one, the markers, would have cost a very small amount, that does not mean the defendant was acting unreasonably by not adopting one of them: Derrick v Cheung [2001] HCA 48 @ [13]. A plaintiff does not prove negligence merely by pointing to a method by which the accident could have been avoided.

GROUNDS OF APPEAL 10 Mr. Sheather relies on the following grounds of appeal: 1. The Trial Judge erred in not finding the Respondent in breach of its duty of care because of its failure to attach markers to the conductor of the spur line between the poles on the north and south of the Jingellic Road. 2. The Trial Judge erred in not finding the Respondent in breach of its duty of care because of its failure to erect the spur line to the east or west of the two high points on the ridge where the Jingellic Road passed through the cutting in the ridge at Chinaman's Gap. 3. The Trial Judge erred in concluding that the Respondent was not required in the discharge of its duty of care to act differently than it did:- (a) in relation to the position of the spur line: and (b) in relation to enhancing visibility of the conductors. 4. The Trial Judge erred in concluding that the Respondent in the discharge of its duty of care was not required to do more than it did because:- (a) the dangers to helicopters of low flying and striking power wires was well known to pilots; (b) reg 157 of the Civil Aviation Regulation 1988 did not permit helicopters to fly below 500' except when landing, taking off or in an emergency; (c) the subject helicopter was being flown too low; (d) pilots are trained to fly in accordance with and know the Civil Aviation Regulations and are expected to use common sense; (e) no Australian Standard required or recommended markers on the conductors with which the subject helicopter collided; (f) the pilot of the subject helicopter deliberately flew at the low level being flown at the time of and leading up to the collision with the conductors; (g) there was no record of collision with the subject conductors or similar power lines; (h) there was no history of any aircraft flying at 100 feet above ground level in the area of the subject spur line or anywhere else; (i) despite the complaint by Mr Doake it was no incumbent on the Respondent to take action; (j) though there were alternatives, such as attaching markers and placing the spur line to the east or west of the ridge, the Respondent did not act unreasonably in not doing so. 5. In finding the Respondent was not in breach of its duty the Trial Judge erred in failing to act upon and give proper effect to his findings:- (a) that the conductors were difficult for pilots to see; (b) that had markers been attached to the conductors the pilot would have seen the conductors and avoided colliding with them; (c) that had the spur line been erected to the east or west of its position the helicopter would probably not have collided with the conductors. 6. The Trial Judge erred in failing to act upon and give effect to his finding that it was foreseeable the spur line might cause loss to the Plaintiff or a class of which he was a member. 7. The Trial Judge erred in failing to act upon and give effect to his finding that the Respondent owed a duty to pilots and aircraft owners including pilots and owners of carelessly flown aircraft and the duty extended to have regard for inadvertence and thoughtlessness. 11 Country Energy filed a Notice of Contention, claiming that the primary judge's decision should be upheld on the ground that Country Energy did not owe a duty of care to Mr. Sheather.

SUBMISSIONS 12 The principal submissions of Mr. McIlwaine for Mr. Sheather were that the primary judge failed to consider or adequately consider and balance the factors referred to in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8; and that he was overly influenced by the apparent breach of Regulation 157 of the Civil Aviation Regulations by the pilot. In particular, Mr. McIlwaine submitted, the primary judge failed to take into account the evidence of the respondent's knowledge of significant aviation activity in the area, the substantial possibility of aircraft legitimately flying at 30 metres above the road in this area, the total absence of any cues to the existence of this line, and the ease with which the risk could have been minimised. 13 For Country Energy, Mr. Garling made the following submissions: 7. The pilot of the helicopter was competent and experienced and the danger of power lines to pilots of low flying aircraft is well known to pilots. The risk of collision with an unmarked power line if the helicopter was flown at the height the subject machine was being flown would have been obvious to the pilot. 8. The Court found that pilots were trained to fly in accordance with Civil Aviation Regulations and know of them. With exceptions which were found to be not relevant, Regulation 157 of the Regulations made pursuant to the Civil Aviation Act, 1988 proscribes flight by a helicopter lower than 500 feet above the highest object within a radius of 300m below the helicopter. The helicopter was being flown at least 400 ft below the minimum permitted by the Regulation. 9. It is submitted that the helicopter was in fact being flown about 17m above the top of the tree canopy within that radius. 10. At the point at which the collision with the line occurred, the helicopter had been flown at a low level from at least the point at which it was observed by the witness Leary. There was no evidence that it flew at that level in circumstances to bring it within any of the exceptions contained in Regulation 157 nor was there any evidence to suggest it could not have been flown in accordance with the Regulation and at a safe height. 11. The Appellant did not assert AS3891.1 - 1991 or 3891.2 - 1992 which set out the standards for the marking of overhead cables had not been complied with. 12. The effect of the findings of the Court was that the pilot chose to embark on a flight path which carried with it risks, in particular the risk of collision with an obstacle in circumstances where there was no evidence that flight at a higher altitude clear of potential obstacles was not available. The Appellant submits that the line was a "trap". No such finding was made. Rather, the finding was that the pilot deliberately flew at the low level he did knowing it was well below that Regulation 157 permitted and knowing the danger of low flying. The analogy was drawn, correctly it is submitted, between the activity being carried out which was a social flight with no apparent reason to fly below the minimum regulated height and the participant in a voluntary sport who was assumed to know the risks. 13. The Court considered each of the matters relevant in determining that no response by the Respondent to the risk was necessary. In Mulligan v Coffs Harbour City Council (2005) HCA 63 (21/10/05), Callanan and Heydon JJ said: "Obviousness of a risk very much conditions the response, or even the necessity for any response at all to it. " 14. In Woods v Multi-sport Holdings Pty Ltd (2002) 208 CLR 460; (2002) HCA 9, Gleeson CJ with whom Hayne J agreed expressed the view that obviousness was decisive in recreational activities in considering whether a response should be made to a risk. 15. Callanan J referred to his judgment in Agar v Hyde (2000) 201 CLR 552 at 600 - 601 ([125] -[127]) where he said that sports injuries and duties of care owed by those involved in sport cannot be approached in the same way as non-recreational or involuntary activities. 16. It is submitted that the finding of the Court was that the loss of the helicopter arose from the pilot's deliberate or reckless behaviour. In those circumstances, the Appellant was not required to take steps to guard against the risk: Morgan v Shelton Pty Ltd (1999) 46 NSWLR 141 at 144; [1999] NSWCA 60; Rundle v State Rail Authority of NSW (2002) NSWCA 354; Ratcliffe v McConnell (1999) 1 WLR 67 at 683. 17. Alternatively, the point was raised in submissions but not referred to in the judgment that if the collision was caused by breach of duty on the part of the Defendant, it is submitted that the breach of duty was not a necessary condition of the harm and that it is inappropriate for the scope of the Respondent's liability to extend to the damage caused. 14 Mr. Garling also submitted that what the pilot was doing was not a foreseeable risk against which Country Energy should have taken precautions, and was in a different class from those who had a legitimate reason to fly at a low altitude. Thus, no relevant duty was owed to the pilot, and the owner was in no better situation, having entrusted the helicopter to this pilot. Further, the inexcusably bad conduct of the pilot would in any event be a novus actus interveniens, breaking any causal link to any breach of duty by Country Energy.

ERROR BY PRIMARY JUDGE? 15 In my opinion, the primary judge did consider and balance the factors referred to in Shirt, and if there is error in his judgment, it can only arise from the weight he placed, in par.(f) of his reasons for his conclusion on breach, on the circumstance that the pilot's flying well below the minimum height permitted by Regulation 157 was deliberate, and his reliance on cases concerning the voluntary exposure to risks. If those matters were irrelevant to the question of breach in this case, then in my opinion the primary judge's reliance on them would vitiate his decision, and require this Court to make its own decision on breach or else send the case back for a new trial. 16 Both parties supported the view that if this Court did find error, it should attempt to determine the matter itself.

HOW COULD THE PILOT'S DELIBERATE CONDUCT BE RELEVANT? 17 The circumstance that the pilot was deliberately engaging in unlawful low-level flying could conceivably be relevant in a number of different ways: (1) to the existence of a duty of care; (2) to the content of the duty of care; (3) to the question of breach; (4) to the question of voluntary assumption of risk; (5) to the question of contributory negligence; (6) to the question of causation. 18 In relation to each of these ways, there could be need to consider whether Mr. Sheather, who is the owner and not the pilot, is in any different position from that of the pilot. 19 Since the first three matters are closely interrelated, I will consider them together. Then I will consider in turn each of the other three matters.

EXISTENCE AND CONTENT OF DUTY, AND BREACH 20 Cases of negligence generally raise three broad issues, the second of which tends to be bracketed either with the first or third: (1) the existence of a duty of care; (2) the content of the duty; and (3) the breach of the duty. 21 I believe the preferable view is that it is (2) and (3) that should be bracketed together, as making up the totality of the question of whether a duty of care is breached. This is consistent with the view that the existence or otherwise of a duty of care is a question of law, and that its formulation should be left in general terms as a duty to take reasonable care to avoid injury; and that the determination of what the duty requires in a particular case is a particular fact to be addressed when considering the question of breach: Graham Barclay Oysters Pty. Limited v. Ryan [2002] HCA 54, (2002) 211 CLR 540, at [106] and [192]. 22 However, the question or questions of fact involved in determining issues (2) and (3) must be determined in accordance with legal requirements, in particular the considerations referred to by Mason J in Wyong Shire Council v. Shirt (1980) 146 CLR 40 at 47-8: In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant's position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man's response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant's position. 23 In some discussions, issue (2) appears to be bracketed with issue (1) rather than issue (3), but this does not appear to make any material difference to the reasoning or the result. 24 For example, in Rundle v. State Rail Authority of NSW [2002] NSWCA 354, a 15 year old boy travelling on a train was badly injured when his head struck an object outside the train, at a time when he was spraying graffiti onto the roof of the carriage while the top half of his body was squeezed through an upper window of the carriage. In the leading judgment of Heydon JA, under the heading "Conclusions on Duty of Care", Heydon JA accepted the following statement of Dixon and McTiernan JJ in Henwood v. Municipal Tramways Trust (SA) (1938) 60 CLR 438 at 466: We think that the obligation of the Trust was to exercise due care for the safety of passengers from dangers likely to arise out of the ordinary use of the tram which might reasonably be expected and that the case should not be treated as one where the danger consists in defective premises or a dangerous structure. 25 Heydon JA then said this: 53 When the plaintiff in the instant case projected his body outside the window, he did not do so instinctively, impulsively, forgetfully or as a result of illness or other physical condition. Any duty on the defendant to prevent that conduct was fulfilled by the provision of a window only capable of being opened 235 mm. Further, what the plaintiff did was not part of the "ordinary use" of the carriage, and the danger to him was not "likely to arise out of the ordinary use of the carriage". The defendant had taken precautions against dangers arising from the ordinary use of the carriage, for example by passengers desiring to put their heads out of the window for a better view or air or to relieve illness, or by passengers desiring to put their arms out. The defendant's duty did not extend so far as to oblige it to take precautions against passengers seeking to sit on the window edge with their entire torso and head outside with a view to damaging the defendant's property. 26 Then, when Heydon JA came to consider the question of breach, he concluded at [61] that "even if there was a duty it was not breached". He went on to say this: 62 The defendant submitted that even if there were a relevant duty and it had been breached, the plaintiff would still have failed to establish causation, because in practical terms the real cause of the injury was the conduct of the plaintiff. In view of what has been said above it is not necessary to consider this argument. 27 In the present case, the primary judge found there was a duty of care owed by Country Energy to "pilots and aircraft owners, including pilots and owners of carelessly flown aircraft". However, as I have noted, the primary judge did not consider whether or not that duty was breached, except in relation to a pilot who deliberately flew at a low level, knowing it was well below what the regulation permitted and knowing the danger of low flying. Thus, the question is starkly raised whether this is a circumstance that affects issue (2), the content of Country Energy's duty of care to the plaintiff, or a class of persons including the plaintiff. 28 There is no suggestion that Country Energy was aware of the plaintiff's existence or of any prospect that his particular helicopter would fly in the vicinity of the powerlines, so the question must be the content of the duty owed by Country Energy to a class of persons including the plaintiff. There appears to be no hard and fast principle for determining the identification of classes such as this, and in my opinion the identification of class or classes must be undertaken having regard to the nature of what is being considered, namely what is the class or what are the classes of persons, including the plaintiff, as to which a reasonable person in the position of the defendant would have foreseen that its conduct involved a risk of injury. 29 One possible class is pilots or owners of aircraft (including helicopters) flying low over Chinaman's Gap. That there may be persons in that class seems clear, and it also seems clear that the possibility of there being such persons was something Country Energy, as a reasonable person, would have been aware of. There was evidence that low cloud sometimes gathered around the hills, such as could compel an aircraft on visual flight rules to fly low. The road was a navigation aid, and Chinaman's Gap was in a shallow saddle, so that it was a likely place where an aircraft forced to fly low would cross the ridge. Aircraft could legitimately fly low there for other reasons, such as emergencies of various kinds: helicopters could fly low there, and even land in the vicinity, on search and/or rescue missions, or on police work. Also, Mr. Doake had specifically drawn to Country Energy's attention that aircraft, including ultra-light aircraft, flew low in that area, and that the lines constituted a danger to them. The probability of an aircraft or a helicopter flying as low as 30 metres over Chinaman's Gap could reasonably have been seen as quite small, but the consequences of a collision with the wires would be catastrophic. There were no visible cues to the existence of the wires: one pylon supporting them was a pylon of the main line, the other was over 850 metres away from the road, and there was no clearing of the tree-line to suggest the existence of a power line. To put markers on the lines was a very obvious way of greatly reducing risk, and the cost of putting markers on the lines was minimal when they were erected, and quite small later on after Mr. Doake's communication. 30 In those circumstances, there was in my opinion quite a powerful case that a reasonable person in Country Energy's position would have foreseen a possible risk to the class of persons I have identified, namely pilots and owners of aircraft flying low over Chinaman's Gap, and would have taken the step of putting markers on the line. 31 The question then is whether the circumstance that, in the events that actually happened, the pilot of Mr. Sheather's helicopter was acting unlawfully and knowingly taking a great risk, could take Mr. Sheather out of that class, or could in some other way reduce the extent of the duty owed to Mr. Sheather. As a matter of principle, I do not see that it could. Any fault in the conduct of Mr. Sheather, or even of the pilot, seems to me to go to the other questions, that is, voluntary assumption of risk, contributory negligence and causation. I do not see that this circumstance would make Mr. Sheather other than a member of the class of pilots or owners of aircraft flying low over Chinaman's Gap. 32 It could be argued that cases such as Rundle, and also Brodie v. Singleton Shire Council [2001] HCA 29, (2001) 206 CLR 512, suggest that the deliberate or even negligent conduct of a particular plaintiff can narrow the scope of the duty of care owed by a defendant. I do not think that those decisions, properly understood, have that effect. 33 In my opinion, Brodie does not establish that if a plaintiff is otherwise within a class of persons to whom a duty is owed and breached, negligence of the particular plaintiff takes the plaintiff out of that class. Rather, it establishes that the relevant risks to road-users in general, and pedestrians in particular, that reasonable road authorities would have regard to in maintaining roads, and against which they would take reasonable measures, are the risks of injury to persons exercising reasonable care for their own safety. That is, reasonable road authorities cannot reasonably be expected to maintain roads in such a way as to avoid risks to persons who are not exercising reasonable care for their own safety. 34 I have previously supported that view in Temora Shire Council v. Stein [2004] NSWCA 236 at [57]-[61], Sutherland Shire Council v. Henshaw [2004] NSWCA 386 at [19]-[21], and Volman v. Lobb [2005] NSWCA 348 at [30]-[31]. The view is also supported by Giles JA in Stein at [36]-[42], and Bryson JA in Henshaw at [62]-[63]. See also Francis v. Lewis [2003] NSWCA 152 at [40] per Mason P, and Clarke v. Coleambally Ski Club Inc. [2004] NSWCA 376 at [19] and [26]-[33] per Ipp JA. 35 As regards Rundle, there was no class of persons that included the plaintiff, which would be exposed to the risk which came home to the plaintiff, other than a class acting as did the plaintiff, by sitting on the window edge with their entire torso and head outside the carriage; and there was no realistic likelihood that anyone would be in that position for any other purpose than to do something like what the plaintiff was doing. So there it was not the fact that the particular plaintiff was acting deliberately that disentitled him, but the fact that there was no class including the plaintiff to which a relevant duty extended. 36 Similar comments apply to the cases of Agar v. Hyde [2000] HCA 41, (2000) 201 CLR 552 and Vairy v. Wyong Shire Council [2005] HCA 62, (2005) 223 CLR 422, referred to by the primary judge in par.(f) which I am considering. 37 In Agar, two players of rugby football suffered spinal injuries during games played in New South Wales, and they sued members of the Board that had the power to make and change the rules of that game, claiming that these members owed them a duty to take care in monitoring the operation of the rules to provide they did not provide for circumstances where risks of serious injury were taken unnecessarily. The High Court held that no duty of that kind was owed to the players. In par.[127] of the report, referred to by the primary judge, Callinan J said that when adults voluntarily participate in such a sport they may be assumed to know the rules and to have an appreciation of the risks of the game; and similar views were expressed by other judges of the High Court. In those circumstances, the Court held there was no duty on the defendants to reduce those risks by changing the rules. 38 That case is quite different from the present in that the only persons exposed to the relevant risks in that case were persons who voluntarily exposed themselves to those risks, or who at least must, as reasonable persons, be taken to have done so. That is, there was no class, including the plaintiffs, of persons exposed to the risks which was wider than the class of those who voluntarily exposed themselves. 39 In Vairy, a man had dived into the sea from a natural rock platform, and because of the shallowness of the water at that point had suffered severe injury when his head hit the seabed. He sued the local council, alleging that it should have erected signs prohibiting diving from the rock platform or warning of its dangers. At par.[216]-[217], referred to by the primary judge, Callinan and Heydon JJ applied Callinan J's statement in Agar, saying that adults diving into the sea from a rock platform may be assumed to appreciate the risks. The High Court, by a majority, found against the plaintiff. 40 Theoretically, in Vairy there could have been a question of whether there was a class of which the plaintiff was a member, that is a class of all persons including children, which was wider than the class of adults who could be presumed to appreciate the risks and to have voluntarily exposed themselves to them. However, particularly since the negligence alleged in Vairy was a failure to warn, there would be very different considerations operating as between the Council and children from those as between the Council and adults. And in so far as the Council as a reasonable person needed to consider risks in relation to children as a class, it would give them separate consideration from adults. On the other hand, in the present case, the risk is relevantly the same to all aircraft flying low, whether this is being done lawfully or unlawfully, and the steps appropriate to reduce the risk are the same; so there is no reasonable basis to distinguish two classes. 41 Another analogy discussed during oral submissions was a case where a road authority knows that a particular area or public road is much used by blind persons, and where there is in that area something that is a hazard to blind persons but not to sighted persons. In those circumstances, there may be a breach of the authority's duty to blind persons if it does not eliminate that hazard, where this would not be a breach of its duty to sighted persons. Then, if in a particular case, through carelessness, a sighted person was injured by this feature of the road, the sighted person would not establish a breach of duty by the road authority. This would not be because the particular sighted person was careless on this particular occasion, but rather because there are such different considerations affecting the risk in question as between the two classes of persons, and also affecting what was reasonably required to deal with it, that it was appropriate to treat them as two separate classes, and accordingly not to regard the sighted person as being within a class to which the relevant duty extended. 42 In the present case, in my opinion the circumstance that what the pilot did by way of low flying was done deliberately was irrelevant to the question of duty and to the question of breach. In my opinion, this is so in relation to the pilot, and is so a fortiori in relation to Mr. Sheather, the owner of the helicopter. Accordingly, in my opinion the primary judge's reliance on this factor vitiates his conclusion on breach. 43 In my opinion, this Court can reach its own conclusion on breach. The factors referred to in par.[29] above justify the conclusion that Country Energy did breach its duty of care to Mr. Sheather. I appreciate that the lines were at a height and at a location well outside parameters prescribed by the Australian Standards as cases where marking is necessary, and I appreciate also that there are an enormous number of lines within Country Energy's area of responsibility that are also outside those parameters, and do not have markers. However, there is in my opinion a striking combination of circumstances concerning this particular power line, and particularly the 44 metre section of it that is clear of the tree canopy as it crosses Jingellic Road at Chinaman's Gap, that makes it a particular source of risk, for the reasons given earlier. 44 For those reasons, I would find that Country Energy did breach its duty of care to Mr. Sheather.

VOLUNTARY ASSUMPTION OF RISK 45 It is clear in my opinion that there was no relationship between the pilot and Mr. Sheather such as could make Mr. Sheather vicariously liable for the negligence of the pilot: Scott v. Davis [2000] HCA 52, (2000) 204 CLR 333. Further, the only relevant conduct of Mr. Sheather himself was to entrust the helicopter to a competent and experienced pilot. 46 In those circumstances, I see no basis on which Mr. Sheather could be precluded from recovery on the basis of voluntary assumption of risk. I am doubtful that even the pilot would be so excluded, because although he must have been aware of the general risks of low flying, it is not clear that he should be found to have been aware of the particular risks of unmarked power lines in this location. It is, however, not necessary to decide this question.

CONTRIBUTORY NEGLIGENCE 47 In relation to contributory negligence also, there is no basis on which Mr. Sheather can be liable for the negligence of the pilot, so as to make him guilty of contributory negligence within s.9 of the Law Reform (Miscellaneous Provisions) Act 1965. 48 It was not contended for Country Energy that Part 4 of the Civil Liability Act 2002 applied to this case, and no reliance was placed on it. If that part had applied, it seems to me that this would have been an apportionable claim within s.34(1)(a), and thus that Country Energy's liability could have been substantially reduced pursuant to s.35(1), by reason of the extent to which the pilot was responsible for the loss.

CAUSATION 49 Although the pilot's actions can be considered reckless as well as unlawful, the physical circumstances of the accident are not relevantly different from what they would have been if the aircraft had been flying low for a legitimate reason. I see no basis on which it can be said that, as a matter of common sense, the actions of the pilot were such that Country Energy's breach of duty did not cause the accident.

CONCLUSION 50 For those reasons, in my opinion the following orders should be made: 1. Appeal allowed. 2. Verdict and judgment below set aside. 3. In lieu thereof, verdict and judgment for Mr. Sheather for $160,250.00 plus interest at District Court rates from 20 February 1999, and Country Energy to pay Mr. Sheather's costs of the proceedings. 4. Country Energy to pay Mr. Sheather's costs of the appeal. 51 IPP JA: I have had the benefit of reading the reasons to be published by Hodgson JA. I gratefully adopt his Honour's statement of the relevant facts and circumstances and agree with the orders his Honour proposes. The lucidity with which his Honour exposes the critical issues enables me to express my reasons relatively briefly. 52 This appeal turns on whether Country Energy should have placed markers on the spur line over Chinaman's Gap. It raises the question whether a power authority, Country Energy, should have taken reasonable steps to warn a pilot of a low-flying helicopter, careless of his own safety, of the existence of the spur line. 53 In attempting to answer this question, I have found the principles of the law of negligence as they apply to the duty of care owed by road authorities to pedestrians to be of assistance (by way of analogical reasoning). 54 The question whether, in any given case, a defendant should have given some kind of a warning to the plaintiff, concerns the scope or content of the duty of care (Vairy v Wyong Shire Council (2005) 223 CLR 422 (at 442, [58] per Gummow J)). 55 In Brodie v Singleton Shire Council; Ghantous v Hawkesbury City Council (2001) 206 CLR 512 ("Ghantous"), Gaudron, McHugh and Gummow JJ said (at 581, [163]): "In general, [pedestrians] are more able to see and avoid imperfections in a road surface. It is the nature of walking in the outdoors that the ground may not be as even, flat or smooth as other surfaces … [P]ersons ordinarily will be expected to exercise sufficient care by looking where they are going and perceiving and avoiding obvious hazards, such as uneven paving stones, tree roots or holes. Of course some allowance must be made for inadvertence." 56 There is, presently, a difference in the New South Wales Court of Appeal as to the effect of these observations and, in particular, as to whether obviousness of the risk is relevant to the existence of a duty of care owed by a road authority to pedestrians or whether it goes only to breach of duty. Burwood Council v Byrnes [2002] NSWCA 343 and Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 are examples of cases that hold that the obviousness of the risk is relevant to the existence of a duty of care. The Victorian Court of Appeal is also of this view: Whittlesea City Council v Merie [2005] VSCA 199. Temora Shire Council v Stein (2004) 134 LGERA 407, Sutherland Shire Council v Henshaw [2004] NSWCA 386 and Volman v Lobb [2005] NSWCA 348 are examples of cases that hold that obviousness of risk bears only on breach of duty. 57 The obviousness of the risk in cases involving pedestrians who are injured on footpaths, roadways, etc, is relevant to the scope or content of the duty (as it affects the boundaries of the duty). The same might be said about diving cases such as Vairy. The difference of opinion in this Court as to the application of the remarks of Gaudron, McHugh and Gummow JJ in Ghantous (at 581, [163]) is, essentially, a difference as to whether content applies to the existence of a duty or its breach. 58 For my part, I understand the remarks of Gaudron, McHugh and Gummow JJ in Ghantous (at 581, [163]) to mean that the duty of care owed by a road authority to a pedestrian is limited by reference to those persons who exercise "sufficient care by looking where they are going". In my view, considerations of reasonableness explain the limitation so imposed on such a duty of care. 59 In my view (see Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 (at [18] to [33]), considerations of reasonableness also explain the limited content of the duty of care ordinarily owed by public authorities who occupy public areas where persons swim and dive (Vairy v Wyong Shire Council; Mulligan v Coffs Harbour City Council (2005) 223 CLR 486) or visit national parks (Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133). See also the discussion in this respect by Tobias JA in Liverpool City Council v Millett (2004) 43 MVR 193 (at [77] to [92]). 60 The content of the duty of care in these particular categories of case may be affected by the obviousness of the risk involved; the relevant question being whether it was reasonable for the public authority to assume that users of the footpath or roadway, or visitors to the public area, would take sufficient care to avoid the obvious risks by looking after themselves. 61 In Sutherland Shire Council v Henshaw, Bryson JA (at [70]) said: "As a generalisation, cases based on tripping hazards where there are height discrepancies in the order of 25 mm or 1 inch between otherwise regular paving slabs generally do not succeed; discrepancies treated as tripping hazards are usually greater and often are highly irregular or have some other unusual features." 62 Underlying this generalisation is an acceptance that obvious defects of this order are generally what one would expect to find in public footpaths in city and suburban areas. Therefore, it is reasonable for road authorities to take the view that pedestrians keeping a proper lookout should be able to observe and avoid such defects (and it is unnecessary for road authorities to remove them). This approach is consistent with the notion, referred to in Ghantous (at 526, [7] per Gleeson CJ) that: "A highway is not to be criticised by the standards of a bowling green." 63 On the other hand, the content of a road authority's duty of care may extend to the taking of reasonable steps to remove more dangerous defects in public footpaths, etc. By "more dangerous" defects I mean defects that are more serious than those described in the previous paragraph and which pedestrians may not be able to avoid by the exercise of reasonable care. The more dangerous defects of this kind may be concealed traps; they may also be obvious hazards: see Henshaw (at [33]). Their common factor is that they are dangerous defects that one would not ordinarily expect to find on public footpaths. 64 The fact that pedestrians, injured by the more dangerous defects of the kind referred to in the previous paragraph, may themselves have not kept a proper lookout, does not affect the question whether the road authority owed those pedestrians a duty of care. Established principle does not suggest that, where a pedestrian is injured by a concealed trap or a dangerous (albeit, obvious) hazard in the footpath, the road authority will not owe a duty of care to the pedestrian simply because the pedestrian has not taken reasonable care for his or her own safety. Thus, where a careless pedestrian has been injured by such a defect the road authority may be held liable in negligence and the damages of the pedestrian will be apportioned by reference to the degree of contributory negligence that has been established. 65 Accordingly, there are two categories of defects in public footpaths that give rise to different consequences in law. The first category comprises defects of a minor and commonplace kind. The content of the duty of care owed by a road authority to pedestrians will usually not encompass the taking of reasonable steps to avoid injury from such defects. The second category comprises unusual and more dangerous defects. The content of a road authority's duty of care to pedestrians may encompass the taking of reasonable steps to avoid injury from such defects, irrespective of whether the pedestrians do not exercise reasonable care for their own safety. 66 The point I wish to emphasise is that circumstances may be such that the content of a road authority's duty of care may require it to take reasonable steps to avoid injury not only to pedestrians who exercise reasonable care for their own safety but also to those who do not. 67 Assume that a pedestrian is carrying a valuable and fragile vase owned by someone else and, while walking along a public footpath, trips over a 20 mm bump in the footpath (this being a bump of a kind to be expected on footpaths in the area) and drops the vase. The pedestrian is injured and the vase is destroyed. Assume that the pedestrian would have seen and avoided the bump had he or she exercised reasonable care. The authority would then owe no duty of care to the pedestrian. In my view, the owner of the vase, also, would not have a claim against the road authority, as the authority's duty of care would not extend to loss caused by unreasonable use of the footpath by pedestrians (even if the loss were to be caused to an innocent third party). 68 On the other hand, if the pedestrian falls on a footpath by reason of a more dangerous hazard or concealed trap, the owner of the vase may be able to claim from the road authority even though the pedestrian was not keeping a proper lookout at the time of the fall. This is because the authority's duty of care may extend to loss sustained by third parties caused by pedestrians tripping or falling as a result of this category of defects, even if the pedestrians were not taking reasonable care for themselves at the time. 69 In the application of these principles to the present case, the starting point is to note that the facts and circumstances of the present case are different, in principle, to those in Ghantous. In Ghantous, the road authority was held not to owe a duty of care to the plaintiff pedestrian as the defect in the footpath that caused the plaintiff to be injured was an obvious defect that should have been avoided by any pedestrian exercising reasonable care for his or her own safety. This is to be contrasted with the spur line in the present case. As Hodgson JA points out (at [29]): "[Jingellic Road] was a navigation aid, and Chinaman's Gap was in a shallow saddle, so that it was a likely place where an aircraft forced to fly low would cross the ridge. Aircraft could legitimately fly low there for other reasons, such as emergencies of various kinds: helicopters could fly low there, and even land in the vicinity, on search and/or rescue missions, or on police work."

The spur line across Jingellic Road and Chinaman's Gap was about 31 metres (or 100 feet) above the level of the ground. It was unmarked and almost invisible to pilots. 70 In the circumstances, the spur line at that point was not a defect equivalent to commonplace height discrepancies in roadways of the order of 25 mm or one inch that pedestrians should expect and, by taking reasonable care, should see and avoid. On the contrary, the spur line was an extremely dangerous hazard and the equivalent of a concealed trap. 71 Thus, unlike the defect in the roadway in Ghantous, the defect in this case was not a defect that the authority could reasonably assume could be avoided by the use of reasonable care. The spur line constituted a risk to low-flying aircraft even when the pilots used reasonable care. Country Energy's attention had specifically been drawn to the fact that aircraft flew low in that area and the spur line constituted a danger to all such aircraft. The spur line was a "defect" equivalent to the second category of defects referred to in [65] above. 72 It follows, I think, that Country Energy owed all pilots of low flying aircraft in the vicinity of Chinaman's Gap a duty to take reasonable care to avoid injury to them. Such pilots constituted a class of persons to whom the duty was owed, and it was owed irrespective of whether the pilots, themselves, took reasonable care for their own safety. The pilot of Mr Sheather's helicopter fell into that class. 73 Just as a road authority may owe a duty of care to pedestrians walking along a pathway, the content of which requires the authority to take reasonable care to protect pedestrians from injury from dangerous defects even when those pedestrians are careless of their own safety, so, in my view, did Country Energy owe low flying pilots in the vicinity of Chinaman's Gap a duty of care the content of which required it to take reasonable care to make the spur line reasonably visible to the pilots concerned. Further, in my view, Country Energy owed a duty of care to all persons who could sustain damage in consequence of pilots flying low above Chinaman's Gap and colliding with the spur line. The owner of the helicopter in the present case is in the same position as the owner of the vase in the second example discussed in [68] above. 74 I do not think that Rundle v State Rail Authority of NSW (2002) Aust Torts Reports 81-678 is inconsistent with the views I have expressed. I agree with the explanation for this case given by Hodgson JA (at [35]). 75 I would add that, while I accept, for the purposes of these reasons, that the pilot deliberately (in the sense of knowingly) flew the helicopter in a way that contravened the applicable regulations, it must be remembered that he did not deliberately fly into the spur line. His conduct in so doing was merely negligence on his part. In principle, the mere fact that a person disobeys the law of the land does not mean that others may not owe a duty of care towards that person. Road users, for example, are expected to take reasonable care for others who drive contrary to the traffic laws. 76 In my view, applying the evaluation process required by Wyong Shire Council v Shirt (1980) 146 CLR 40, Country Energy breached its duty of care. The risk to low flying aircraft from the spur line was foreseeable and, for a long time before the accident occurred, it was well-known that the spur line constituted a danger. Country Energy had been specifically warned of the danger and had done nothing about it. The expense of placing markers on the line was relatively minimal. I agree with what Hodgson JA has stated in this regard (at [43]). 77 I agree with what Hodgson JA has stated under the headings "Voluntary Assumption of Risk", "Contributory Negligence" and "Causation". 78 TOBIAS JA: I agree with the orders proposed by Hodgson JA for the reasons given by both he and Ipp JA. As to the apparent difference between their Honours as to whether the content of the duty of care is relevant only to the existence of that duty or to its breach, I adhere to what I said in Liverpool City Council v Millett (2004) 43 MVR 193; [2004] NSWCA 340. As I there indicated, whichever approach is adopted, the result will be the same: see at [74]. So it is in the present case. **********

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

(2004) 134 LGERA 407

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