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Power company obligations to low flying helicopter confirmed:
Published March 2008
The High Court has recently refused special leave to appeal sought by a power utility company Country Energy, against a NSW Court of Appeal decision that upheld the duty of care which power utilities owe to low flying aircraft.
The Facts:
In the late 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. The pilot had been specifically trained in England by the RAF in low flying.
This day he was on leave from his duties for 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 required his cousin to take it up for a fly alone, around the paddocks and do some hovering, before taking it away to collect his sister to go take her to her wedding.
Having collected his sister, she wearing her wedding dress, the two of them made off for the wedding and to a rendezvous with the wedding car carrying the bridesmaids. This rendezvous was required 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 across to the Murray Valley near Jingellic.
The helicopter was seen flying low along the flats west of a ridge containing a cutting known as Chinaman's Gap. It was flying to the east following the road which went over Chinaman's Gap. The rendezvous point with the wedding car was down the other side of the gap. Chinaman's Gap is a point where the Holbrook to Jingellic road cuts through the ridge. This road cutting forms a V in the ridge.
A very visible power line with its poles runs just to the north of and parallel with this road as it climbs over and down the other side of the ridge. Its visibility is enhanced given the usual power poles with their T cross members supporting the wires, as well as the usual cleared area under the wires. It was truly your usual line of power poles and wires.
Where the road cuts through the ridge there is a natural saddle. This saddle is a preferred area for low flying aircraft to cross the ridge – particularly in poor weather.
On the hill forming the southern side of the saddle, stands a single homestead. In 1994 the homestead was connected to the power grid. Instead of the usual poles and clearing underneath, the power company went for the cheaper option - utilising the natural saddle in the ridge to swing two wires across to the homestead off the mentioned usual line. Two wires came off a pole on top of the ridge, to span the 899 metres to a single pole up on the other side of the saddle and near the homestead.
These wires utilised the open space of the saddle above the road and canopy of trees, thus requiring no clearing underneath because it was so high and without supporting poles. It was swung along and parallel with the apex of the ridge line. Had they been spanned away from the high point of the ridge and saddle, say to the west or east, the wires would have been away from the high point of the ridge. Also, had it been installed using normal poles rather then a long high span, it would have been low and close to the then cleared ground underneath - presenting a less dangerous obstacle.
The wires were about 31 metres above the road 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 bride’s arrival by helicopter was not generally known – it was intended as a spectacular arrival. The plan was to touchdown as the wedding car arrived with the bridesmaids. Sheather was standing with the other quests waiting for the bride. At the intended time, there was no helicopter or wedding car. Then the wedding car arrived but no helicopter. Sheather was concerned! He looked west towards Chinaman's Gap – a pall of black smoke rose into the air above Chinaman’s Gap. Six days later the guests at the wedding went to two funerals.
The coroners’ weak and inconclusive findings:
About 22 months after the accident a coroner delivered his findings. Death by multiple injuries was the cause of both deaths. 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 which were 90 metres high. This standard however, also stated there was nothing stopping markers being installed on lower wires if they are thought to be a danger. Clearly these wires were a danger but the coroner said nothing other than the pilot was flying too low.
Upon a brief visit to Chinaman's Gap, like many other people, I formed the view that these wires should have had markers. They were a classic for marker balls. These wires were an obvious danger to aviation. A most unsatisfactory outcome of the inquest was the absence of any coronial recommendations touching 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. The question was 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 over a known air navigation point. It took a court of law to get to the relevant issue.
Helicopter owner seeks damages:
Sheather took the power company on; issuing proceedings in the NSW District Court for the loss of his helicopter. The pilot had not locked in insurance cover which could be proved. Sheather did not have the machine continuously insured, preferring to get cover only for the days he flew. He unfortunately left this for the pilot to effect on that day – a decision he lived to regret.
The families of the victims took no part in Sheather’s action. They had not issued proceedings against the power company. While the estate of the pilot was in existence, it would have been joined as a Third Party by the power company. Sheather’s action commenced very close to the six-year time limitation. The pilot’s estate had been wrapped up.
On 16 June 2006 after a two-week trial, a judge in the District Court found, amongst other things, the following facts.
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;
Sheather lost the case in the District Court. He was ordered to pay the power company their indemnity costs, given the power company had made an offer to settle which Sheather refused. The District Court found in essence that the power company owed no duty of care to a pilot flying so low. Sheather contemplated bankruptcy. After some encouragement, along the lines of ‘in for a penny in for a pound,’ Sheather appealed to the NSW Court of Appeal.
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
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. He noted 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, on the question of breach. Justice Tobias said this distinction would make no difference to the outcome of this case.
The Full Court allowed the appeal and ordered the power company to pay Sheather’s costs of the Appeal on the usual basis, but the District Court costs had to be paid on indemnity basis, because Sheather had made an offer to settle which the power company refused.
High Court refuses special leave to power company:
Sheather having unanimously won the appeal now faces 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 on 8 February 2008. After hearing their arguments for leave, the High Court Bench did not need to hear from Sheather's legal team. Their application was dismissed with costs payable by the power company.
Lessons for power utilities - 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 cheap 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 pilots should inform a power companies 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 fact there is only one wire and the long swans between 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 a wire a danger to aviation, and thus require balls or other devices installed to make them visible.
C. P. McKeown
March 2008
(1) The Court of Appeal decision can be viewed at: lawlink.nsw.gov.au