ACQ Pty Limited v Cook Aircair Moree Pty Limited v Cook [2009] HCA 28 5 August 2009 S107/2009 & S108/2009
ORDER
Matter No S107/2009
1. Appeal dismissed.
2.Appellant to pay the costs of the first respondent.
Matter No S108/2009
1. Appeal dismissed.
2.Application for special leave to cross-appeal dismissed.
3.Appellant to pay the costs of the first respondent of both the appeal and the application for special leave to cross-appeal.
On appeal from the Supreme Court of New South Wales
Representation
B W Walker SC with G Curtin for the appellants in both matters (instructed by Riley Gray-Spencer Lawyers)
P Menzies QC with G Giagios for the first respondent in both matters (instructed by Whitelaw McDonald)
Submitting appearances for the second respondent in both matters
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
ACQ Pty Limited v Cook Aircair Moree Pty Limited v Cook
Aviation – Liability for damage caused by aircraft – Crop dusting aircraft collided with conductor in cotton field – Electrical linesman dispatched to repair conductor tripped or fell near it – Injury occurring after electric arc – Whether injury "caused by ... something that is a result of an impact" with an aircraft in flight – Damage by Aircraft Act 1999 (Cth), s 10(1).
At about 5.30am on 28 December 2000 a crop dusting aircraft was spraying a cotton field known as Field 19 about 21.5km north of Moree. The aircraft was owned by ACQ Pty Limited. It was operated by Aircair Moree Pty Limited, a company which employed the pilot[1]. Field 19 had a power line – a 22kV conductor – passing over it. At the lowest point the line was about 6.2m above the ground. In the course of flying under the conductor, the aircraft collided with it and caused it to drop to a height of about 1.5m from the ground at its lowest point. NorthPower (now known as Country Energy), which was responsible for the conductor, was informed of the incident at about 6.04am. Less than a quarter of an hour later NorthPower despatched two of its employees, Mr Cook ("the plaintiff") and Mr Buddee, to deal with the problem. They each arrived at about 6.45am. They agreed that Mr Buddee would drive to a links site seven kilometres away and isolate the conductor. They also agreed that the plaintiff would wait until the conductor was isolated before commencing his assessment. Despite that agreement the plaintiff entered the field before the conductor was isolated in order to see what…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
ACQ Pty Ltd v Cook [2009] HCA 28
Case
[2009] HCA 28
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered appeals by ACQ Pty Limited and Aircair Moree Pty Limited against a decision concerning liability for injuries sustained by Mr Cook. Mr Cook, an electrical linesman, was dispatched to repair a damaged conductor in a cotton field after a crop-dusting aircraft collided with it. While working near the damaged conductor, Mr Cook suffered an injury from an electric arc. The central dispute revolved around whether Mr Cook's injury was covered by section 10(1) of the *Damage by Aircraft Act 1999* (Cth), which imposes strict liability for damage caused by aircraft.
The primary legal issue before the Court was the interpretation of section 10(1)(d) of the *Damage by Aircraft Act 1999* (Cth). Specifically, the Court had to determine whether Mr Cook's injury, which occurred after a series of events following the aircraft's impact with the conductor, constituted damage "caused by ... something that is a result of an impact" with an aircraft in flight. The appellants argued for a narrow construction, contending that the injury must be directly and immediately caused by a singular event stemming from the impact, rather than a narrative of intermediate events.
The Court reasoned that the appellants' submission for a narrow interpretation of "caused by" was not supported by the legislative text or the concession they made regarding a fire fighter injured by a fire caused by an aircraft crash. The Court found no material difference between the role of a fire fighter responding to a peril and the role of Mr Cook, a linesman, who was also responding to and working to abate a peril posed by the damaged conductor. The Court rejected the distinction drawn by the appellants between a rescuer and a person attending to rectify a dangerous situation, finding that the damaged conductor did indeed present a peril. Consequently, the Court held that Mr Cook's injury was a result of something that stemmed from the aircraft's impact.
The appeals were dismissed, with the appellants ordered to pay the costs of the first respondent.
Orders
Orders of the court
Matter No S107/2009
1. Appeal dismissed.
2. Appellant to pay the costs of the first respondent.
Matter No S108/2009
1. Appeal dismissed.
2. Application for special leave to cross-appeal dismissed.
3. Appellant to pay the costs of the first respondent of both the appeal and the application for special leave to cross-appeal.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HEYDON, CRENNAN AND BELL JJ
The appellants further submitted that for s 10(1)(d) to operate, there had to be injury caused by "something" – not a series of things or a narrative of intermediate events or "the whole ensemble of circumstances that combined to bring [the plaintiff] from his home to within 60mm of the conductor." Paragraph (d) of s 10(1) had "to be useful and to add something", in the singular, and "caused by" did not "include … multistage narrative to link the impact with the outcome." Section 10(1)(d) added one more permissible stage between the impact and the outcome, but only one. Narrow basis of this decision The words of the legislation are brief and general. The circumstances to which arguably they may or may not apply are very numerous and diverse. The arguments of the parties raised for consideration many factual possibilities other than the one before the Court. This is, it seems, the first case in which it has been necessary for curial analysis to be given to the construction of the legislation. The field of debate, causation, is one of the most difficult in the law, and one about which abstract discussion is seldom valuable for courts and those who practise in them. It is thus undesirable to deal with possible applications of the legislation which are not essential for the decision of this case. Most cases on s 10(1) are likely to be intensely fact-specific. Certainly the present one is. Hence no endeavour should be made to resolve other cases while deciding this one. The appellants' concession and its consequences In the course of illustrating the scope of s 10(1) as they submitted it to be, the appellants gave an illustration of a plane exploding on landing, thus setting alight structures nearby and causing death or injury to a plaintiff whose house is burned down. They conceded that a fire fighter who was summoned to fight the fire and who was injured by it would be within s 10(1)(d), even if the scene of the fire was some distance from the fire station. That concession was correct because, as the appellants accepted, there was no reason not to conclude that the fire fighter's injury was caused by "something" that was a result of an impact between the aircraft and the ground, namely the fire. The appellants, however, distinguished that case from the present one: "There is the world of difference between a rescuer who is answering the call of either nature or society to save another person … from peril, on the one hand, and on the other hand, a person who comes to a scene of evident danger precisely because the danger is evident and because of their skills, experience and position, occupation, in order to repair or rectify that dangerous position where there is no peril to another person … requiring the risks to be undertaken in order to answer the calls of nature or social duty." The distinction is not a valid ground on which to deny liability in the present case. First, it cannot be said that the damaged conductor involved "no peril to another person". One of the reasons why the plaintiff and Mr Buddee were sent to the scene was to nullify a peril to agricultural workers and others who might approach it. Secondly, given that the conductor did involve a peril to agricultural workers and others, there is no difference between the role of fire fighters in reducing perils from the fire and the role of linesmen in reducing and overcoming perils from the damaged conductor. The plaintiff was engaged in activities incidental to the reduction and abatement of those perils – inspecting the damage and assessing what repair work was necessary. He may have been negligent in breaching his agreement with Mr Buddee and in other ways, but, as noted above, the appellants did not contend that his negligence was such as to be the true or sole cause of his injuries.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HEYDON, CRENNAN AND BELL JJ