Christopher McKeown LL.B.  M.C.I.L.T.  
Barrister

Helicopter pilot not negligent in wire strike

On 29 January 2009 a Eurocopter EC 120B was flying to Sydney from Scone.  The aircraft collided with a power line which was about 10 metres above the ground which had no visual aids (balls) installed.  The power company had repaired the very same wire after it was struck by another helicopter in 1994. The power company, some might say unbelievably, failed to install balls when they repaired this wire.  Fortunately unlike most helicopter wire strikes, no one was injured in this accident though there were a few cuts when the Perspex broke on taking the force of the wire.  The helicopter made a normal powered landing.

The weather was not good. The cloud base was getting lower and was coming from behind and from the west. It was around 8.00am. There were some fog patches. The pilot believed he should turn east where it was clearer but as the Court found, he was low due to the cloud and his need to remain visual.  It was a VFR flight. By turning left he flew into a military Restricted Area.

The case involved the owners of the helicopter suing in the NSW District Court the company which had operated the helicopter on that day.  The insurer paid up on the repairs. However, the owners sued the operator for the insurance excess payment of $70,000, lost profit and reduced value.

The plaintiff company relied on a couple of alleged breaches of the Regulations. They were flying through a restricted area (Reg 140) and low flying (Reg 157).  (The plaintiff did not sue the power company or Airservices Australia at the same time).

The Court said "However, in a civil claim based on non-compliance with such statutory provisions, without more, any such non-compliance with statutory regulation provisions does not constitute absolute or strict proof of negligence, nor does it establish an entitlement to damages so as to confer a private right of action upon an aggrieved party."

We see in the judgment what is in my opinion a welcome view of not accepting hindsight expert evidence which fails to appreciate the situation pilots find themselves in at the time.

There was expert evidence to the conclusion that the pilot should not have entered military restricted airspace, should have turned around, landed or obtained a clearance to enter the restricted area. In dealing with this expert evidence, the Court said "In my view, for the reasons which follow, those criticisms go well beyond the response of what would be expected of a reasonable person faced with the dilemma with which (the pilot) was confronted at that time. In my view, those criticisms involve a counsel of perfection and rely for their support, on an inappropriate hindsight analysis which paid insufficient regard to the reasonable prospective judgement (the pilot) was required to make at the time he was confronted with the problematic circumstances."  Further in the judgment the Court said in relation to the expert opinions that they "…have only become available through the more leisurely considerations revealed through the opportunity of hindsight analysis, rather than through a prospective analysis of the kind that confronted (the pilot) at the time." "…(the pilot) was in a better position than the experts for the purpose of making judgments concerning the significance of weather observations, including perceptions of depth, and including the perception that the weather was closing in as (the pilot) described."

The Court reminded us of the fact that section 30 of the Civil Aviation Act 1988 provides a defence if it is established, and on the balance of probabilities, that the offence was due to weather conditions (the section actually speaks of extreme weather conditions) or other unavoidable cause. The Court held the circumstances of the alleged breach of Reg 140 fell within the terms of section 30. The same defence was held to be made out for the alleged breach of Reg 157.

The Court held that the pilot was not negligent in relation to striking the power line.

In the event the defendant had been held liable the defendant pleaded Part 4 of the Civil Liability Act 2002 (Proportionality). For the sake of completeness the Court held that had the pilot been found negligent there would have been proportionality to the extent that the defendant's liability would have been reduced to 20%.  Interestingly, the Court held that Airservices Australia would have carried 40% of the blame (for not showing the wire on their map) along with 40% to the power company.  With great respect to the Court, I have difficulty with this percentage of liability. 

Some might say (of which I am respectfully one) surely it was the power company's negligence which was the primary negligence when it failed to install balls on the wire and therefore should carry more responsibility than a shared responsibility with Airservices.  One has to ask, what would it have taken to get the power company to open its corporate eyes and put balls on the wire after the 1994 accident?

The Court held that the fact the wire was in a restricted area did not reduce the power company's duty to put balls on the wire.  This makes good sense.  It might be assumed that no one will intentionally penetrate a restricted area. So when they do, they surely don't need to be faced with a hidden danger. 

The case was heard in Sydney in 2012. Judgment was delivered 7 December 2012 - see AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd 2012 NSWDC 220.

The plaintiff has appealed to the NSW Court of Appeal.  We wait with interest. I shall report again when the Court of Appeal delivers its judgement.

C. McKeown
21 May 2013.