Recent court decision - Power company obligations to low flying helicopter confirmed:

Published March 2008

The High Court has recently refused special leave sought by the power utility Country Energy against a NSW Court Of Appeal decision that upheld the duty of care which power utilities owe to low flying aircraft.

In the afternoon of Saturday 20 February 1999 at about 6.00pm summer time, a Bell 47 Helicopter was flying in the Holbrook area in NSW. It was being flown by a very experienced Australian Naval pilot. This pilot had been specifically trained in England by the RAF for low flying.

This day he was on leave from his duties on the occasion of his sister's wedding. He borrowed the helicopter from his cousin Louis Sheather. Sheather lived just a bit north of Holbrook. He had owned this helicopter for seven years and actually learnt to fly a helicopter on this very machine. I'm told it was a fine example of the machines used in the Vietnam and Korean wars, camouflage painted with the wide cabin bubble. It was Sheather's pride and joy. The pilot was of course a very much more experienced pilot than Sheather, but Sheather still said that he had to take it up for a fly alone and around the paddocks before taking it away to collect the bride. Sheather told the pilot that he had to organise his own insurance on the machine as it was not insured. It was too expensive to cover the machine all year with the relatively small amount of flying Sheather did.

Having collected his sister in the helicopter and she wearing her wedding dress, the two of them made off for the wedding and a rendezvous with the wedding car carrying the bridesmaids. This rendezvous was so as to get the timing correct for arrival at the site of the wedding on the slopes of the bride's parent's farm looking out over the Murray Valley near Jingellic.

The helicopter was seen flying low along the flats west of the ridge that contained a cutting known as Chinaman's Gap. It was flying to the east and had to fly over Chinaman's Gap and down the other side to the rendezvous point. Chinaman's Gap is the point where the Holbrook Jingellic road cuts through a ridge at 90 degrees to the ridge. This road cutting forms a visible V in the ridge when viewed from west of Chinaman's Gap.

There is a very visible power line just to the north and running parallel with this Holbrook/Jingellic road as it climbs over and down the other side of the ridge. This is visible because there are the usual power poles with their usual T cross members supporting the wires and there is the usual cleared easement under the wires. It was truly a usual line of power poles and wires.

As the road cuts through the top of the ridge there is, mainly to the south of the road, but also where the road is, a natural saddle in the ridge. This saddle is therefore the preferred area where a low flying aircraft would cross the ridge in poor weather. On the hill forming the southern edge of the saddle is a lone homestead. This homestead was required to be connected to the grid supply. The power company completed the connection in 1994.

Instead of the usual poles with a clearing underneath, the power company went for the cheaper option of utilising the natural saddle in the ridge to swing two wires across to the homestead off the mentioned usual line. Wires came off a pole near the top of the ridge, spanning 899 metres to a single pole up on the southern side of the saddle near the homestead. The wire span utilised the open space of the saddle above the canopy of trees, thus requiring no clearing underneath because it was so high and of course needed no other supporting poles. It was swung virtually along and parallel with the apex of the ridge line within the saddle. Had it been spanned away from the high point of the saddle say to the west or east, the wire would have been away from the high point of the ridge. Also, had it been installed using the normal poles, it would have been low and close to the then cleared ground underneath and thus less dangerous because it would have been low and visible.

The wires were about 31 metres above the roadway at Chinaman's Gap. While this is, you might think, not a high wire, it is in fact about the height of a ten storey building over the road.

The fact that the bride was arriving by helicopter was not generally announced. The plan was that it would touchdown as the wedding car arrived with the bridesmaids. Sheather was standing with the other quests waiting for the party to arrive. No wedding car arrived and no helicopter. Sheather began to get concerned when, 20 minutes after the appointed time, there was no sign of the bridal party. He looked west towards Chinaman's Gap to see a black pawl of smoke hanging in the air above the Gap. Six days later the guests of the wedding went to two funerals.

The Coroners' inconclusive findings

About 22 months after the accident the coroner delivered his findings. Death by multiple injuries was the finding for both deaths. In addition some recommendations were made involving CASA and the training of pilots so that pilots advise CASA if they see a danger to aviation presented by power lines. The power company escaped any adverse findings, relying on the Australian Standard 3891.1-1991 which only required markers to be on wires that were 90 metres high. This standard, however, also states that there was nothing stopping markers being installed on lower wires if they are thought to be a danger. The writer acted for the owner of the helicopter at this inquest and in the later Court proceedings. Upon a brief visit to Chinaman's Gap, like many others, I formed the view that these wires should have had markers because they were an obvious danger to aviation. An unsatisfactory outcome of the inquest was that the Coroner made no recommendations or findings about the power company's failure to install markers. There was no doubt the victims of the crash died from multiply injuries, that's what crash victims usually die from, but why did they receive their injuries? The Coroner said it was because the pilot was flying low. In the writer's opinion, the low flying, whilst not irrelevant to the cause of the accident, was in the circumstances of this very qualified pilot, secondary to the fact that there were no markers on this cheaply constructed span of wires.

Helicopter owner seeks damages

Sheather took the power company on issuing proceedings in the NSW District Court for the loss of his helicopter. The families of the victims took no action and the pilot's estate was not joined as a party to the proceedings.

On 16 June 2006 after a near two week trial, the judge in the District Court found, amongst other things, the following facts.

• The danger power lines present to pilots of low flying aircraft is well-known to pilots.
• The fact that the poles were so far apart and that one was also used for the main line would have made the spur line more difficult for a pilot to see it.
• By reason of the oxidation process, which had occurred since their installation in 1994, the wires had become dull and would have been difficult for a pilot to see, especially against a background of trees.
• 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.
• 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.
• The power company was made aware in 1994 that, in the view of a local pilot, the spur line should be marked as it was a potential aviation hazard, but the power company did not place markers on the line.
• The power company could have at minimal cost placed markers on the spur line at any time after its construction.

However, the trial judge went on to conclude that the power company was not required to do more than it did, which was nothing, and this was because amongst other things;

• The dangers to helicopters of flying low and striking power wires are well known to pilots.
• Reg 157 of the Civil Aviation Regulations 1988 requires helicopters [and aircraft] to not fly below 500 feets except when landing or taking off or due to stress of weather. None of these applied to this case and the pilot was below 500 feet.
• The pilot deliberately flew at that level knowing it was well below what the regulations permitted, and knowing the danger of low flying.
• hough the complaint about the lack of markers was made by a pilot in 1994, that did not make it incumbent on the power company to take action.
• Though the power company could have put markers on the lines cheaply or put the wires off the ridge, this does not mean the power company was acting unreasonably by not adopting one of them.
• It was foreseeable that the spur line might cause injury or loss to the plaintiff or a class of persons (aircraft owners) of whom the plaintiff was a member.
• Given that it built, owned and maintained the spur line, and was an electricity authority, it owed a duty to pilots and aircraft owners, including to pilots and owners of carelessly flown aircraft. However, the duty was not absolute.

Sheather lost his case and was ordered to pay the power company indemnity costs. The District Court found in essence that the power company owed no duty of care to a pilot flying so low. Sheather contemplated bankruptcy but appealed the decision to the NSW Court of Appeal.

Owner appeals to Court of Appeal

The Court of Appeal delivered its judgement on 24 July 2007. In three separate judgements the Appeal Court provided an authoritative exposition of the law regarding the existence of a duty to both pilots and owners of aircraft, and what constitutes a breach of that duty (1).

Justice Hodgson

Separate duty to owner of aircraft

The presiding judge, Justice Hodgson, dealt with the deliberate conduct of the pilot and the issue of how this might be relevant to the owner of the helicopter who had nothing to do with how the helicopter was being flown. His Honour said 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. His Honour said the primary judge did not consider whether or not the duty was breached, except in relation to the pilot who deliberately flew at a low level. His Honour said "…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. 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." His Honour went on to say: "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."

"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 [the pilot who complained to the power company] communication."

His Honour said "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."

Unlawful conduct of pilot not determinative

His Honour said "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."

"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."

Particular circumstances required markers

After addressing the fact that the lines were outside the prescribed standards requiring marking and that there are an enormous number of lines within Country Energy's area of responsibility that are also outside these standards and do not have markers, his Honour said "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. For these reasons I would find that Country Energy did breach its duty of care to Mr Sheather."

"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 204 CLR 333. Further, the only relevant conduct of Mr Sheather himself was to entrust the helicopter to a competent and experienced pilot."

On the question of causation his Honour said "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." His Honour allowed the Appeal.

Justice Ipp

Power utilities have a duty to warn

Justice Ipp said the case 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. After dealing with the duty of road authorities to pedestrians and the difference between first, minor or usual defects and secondly, unusual or more dangerous defects, and the fact that the more dangerous defects may be concealed traps and obvious hazards, his Honour said "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." [If the second category applies].

His Honour gives the example of a pedestrian walking along a public footpath carrying a fragile vase. If the pedestrian trips on a bump expected on footpaths in that area and drops the vase, the authority would owe no duty of care to the pedestrian and the owner of the vase would not have a claim 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). Then 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."

"In the circumstances, the spur line at that point was not a defect equivalent to commonplace height discrepancies in roadways of the order of 25mm 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."

"…the defect in this case was not a defect that the [power] 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… The spur line was a "defect" equivalent to the second category of defects referred to above."

Justice Ipp said "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."

"…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 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 above."

"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 expenses of placing markers on the line was relatively minimal." Justice Ipp allowed the appeal.

Justice Tobias

The third judge on the Appeal bench, Justice Tobias, agreed with the other two judges and allowed the appeal. There was a difference between their Honours Hodgson and Ipp concerning whether the conduct of the pilot is relevant to the existence of the duty, or the question of breach. Justice Tobias said this distinction would make no difference to the outcome of this case.

High Court refuses special leave from Court of Appeal

Sheather having won the appeal unanimously then faced an application by the power company to the High Court for special leave to appeal. Country Energy did not file their application within the set time limit but advised Sheather they would be seeking leave out of time and gave that notice on the last day within the time limit. The power company ran their leave argument in the High Court on 8 February 2008. Sheather's legal team were not called on. The application was dismissed with costs payable by the power company. Sheather at last is placing an order for another Bell 47. Five weeks after Country Energy's hearing in the High Court, they had not paid Sheather.

Lessons for power utilities and my conclusions

This case is an overdue wake up call to power companies in Australia. The wire in this case is a good example of a power company taking the cheaper option of using the topography of the land to swing their wires to a customer rather than installing the usual poles. The case also signals that pilots should inform a power company and CASA whenever there exists a wire like the one at Chinaman's Gap. I hope we now see more markers and balls on non standard power lines. That is in my opinion, the critical issue, non standard or different to existing wires around that location. A single wire earth return (S.W.E.R.) type of wire, while not involved in the Sheather case, is usually a hazard to aviation given the facts that there is only one wire and there are long swans between the poles. I mention this type of wire only for completeness.

In no particular order, one might consider the points below which, in my opinion, may make the wire a danger to aviation, and thus require balls or other devices installed to make them more visible.

• The wire is at a height above the ground significantly greater than the same wire either side of that location.
• The wire traverses a known or likely navigation point for aircraft at a height significantly above the vegetation or tree canopy in the immediate vicinity.
• The wire runs parallel with and in the vicinity of the top of a line of high land, e.g. along a ridge line, and is at a height significantly above the vegetation or tree canopy in the immediate vicinity.
• The wire shares a pole in a visible line of poles but the wire then goes to a pole which is at a greater distance than the spacing of the poles in the visible line (S.W.E.R. lines sometimes do this).
• The wire shares a pole in a visible line of poles supporting multi wires and the wire coming away from the pole in the visible line is of a different type (eg S.W.E.R.) which is not as visible as the multi wire lines.
• There is a change in the pole spacing at that location.
• There is not a cleared area under the wire or wires.
• The wire is not shown on the area's WAC map.

C. P. McKeown

Specialist Aviation Barrister

Blackburn Chambers

Canberra

March 2008

(1) The actual Court of Appeal decision can be viewed at: lawlink.nsw.gov.au