Reported Decision: 72 NSWLR 318 Appeal Outcome: Special leave application granted by the High Court 1 May 2009 (S499/2008 & S500/2008)
ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (S107/2009) Appeal dismissed by the High Court 5 August 2009 (S108/2009) Appeal dismissed by the High Court 5 August 2009
New South Wales
Court of Appeal
CITATION: ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161 HEARING DATE(S): 7-8 April 2008
JUDGMENT DATE:
16 July 2008JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 3 DECISION: Pilot of aircraft owes no duty of care, concerning manner in which he flies, to an electricity worker who is nowhere near the place where the flying occurs, but who is a type of person likely to come to the scene if negligent flying brought a power line down. Section 10(1)(d) Damage by Aircraft Act (DAA) extends to indirect or consequential results of an impact that falls within s 10(1)(a), (b) or (c). Aircraft owner and operator liable to plaintiff under DAA for injury he suffered in consequence of collision between aircraft and power line. Contributory negligence of plaintiff not a partial defence to an action under s 10(1)(d) DAA. No voluntary assumption of risk by plaintiff. No breach of employer’s duty of care by plaintiff’s employer. CATCHWORDS: TORT – negligence – duty of care – linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft – whether duty of care owed by employer – whether duty of care owed by pilot of aircraft – whether operator of aircraft vicariously liable for actions of pilot – whether direct application of notion of proximity is a safe guide to when duty of care exists – whether causal connection between impact and injuries – whether finding of causation is consistent with finding of no duty - AVIATION – Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight – s 10 and s 11 Damage by Aircraft Act 1999 (Cth) – construction of expression “caused by” in s 10(1)(d) Damage by Aircraft Act – whether narrow construction of provision appropriate – whether common law concept of causation applicable – whether voluntary assumption of risk available as defence to action for damages under s 11 – whether contributory negligence available as complete defence or defence to action for damages under s 11 – whether circumstances falling within s 10(1) of Act amount to a “wrong” within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 – whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings – circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant – whether owner and operator of aircraft…
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Details
- AGLC
- ACQ Pty Ltd v Cook [2008] NSWCA 161
- Case
- [2008] NSWCA 161
- Decision Date
CaseChat Overview and Summary
ACQ Pty Ltd (the owner and operator of an aircraft) and the pilot of that aircraft appealed against a judgment in favour of Mr Cook, a linesman employed by a power company. Mr Cook suffered injury from an electric shock after a power line, dislodged from its supporting pole when struck by the aircraft, fell and made contact with him. The dispute concerned whether the pilot owed Mr Cook a duty of care, whether ACQ was vicariously liable for the pilot's actions, and the application of the *Damage by Aircraft Act 1999* (Cth) (DAA).
The court was required to determine several legal issues. These included whether the pilot owed a duty of care to a linesman who was not in the immediate vicinity of the aircraft's flight path but was a foreseeable potential victim of negligent flying. The court also had to consider whether the owner and operator of the aircraft were vicariously liable for the pilot's actions, and the scope of the statutory liability imposed by the DAA, particularly the meaning of "caused by" in section 10(1)(d). Further issues involved the applicability of common law defences such as voluntary assumption of risk and contributory negligence to claims under the DAA, and whether the employer of the linesman owed a duty of care to Mr Cook.
The court held that the pilot owed no duty of care to Mr Cook concerning the manner in which he flew the aircraft, as Mr Cook was not in the proximity of the flight path. However, the court found that section 10(1)(d) of the DAA extended to indirect or consequential results of an impact that fell within other subsections of section 10(1). Consequently, ACQ, as the owner and operator, was liable to Mr Cook under the DAA for his injuries, which were a consequence of the collision between the aircraft and the power line. The court also determined that contributory negligence was not a partial defence to an action brought under section 10(1)(d) of the DAA, and that Mr Cook had not voluntarily assumed the risk. Furthermore, there was no breach of the employer's duty of care.
The court ordered that the appeal by ACQ Pty Ltd be allowed in part, with the finding that the pilot owed no duty of care to Mr Cook being upheld. However, ACQ remained liable to Mr Cook under the *Damage by Aircraft Act 1999* (Cth) for the injuries he suffered.
The court was required to determine several legal issues. These included whether the pilot owed a duty of care to a linesman who was not in the immediate vicinity of the aircraft's flight path but was a foreseeable potential victim of negligent flying. The court also had to consider whether the owner and operator of the aircraft were vicariously liable for the pilot's actions, and the scope of the statutory liability imposed by the DAA, particularly the meaning of "caused by" in section 10(1)(d). Further issues involved the applicability of common law defences such as voluntary assumption of risk and contributory negligence to claims under the DAA, and whether the employer of the linesman owed a duty of care to Mr Cook.
The court held that the pilot owed no duty of care to Mr Cook concerning the manner in which he flew the aircraft, as Mr Cook was not in the proximity of the flight path. However, the court found that section 10(1)(d) of the DAA extended to indirect or consequential results of an impact that fell within other subsections of section 10(1). Consequently, ACQ, as the owner and operator, was liable to Mr Cook under the DAA for his injuries, which were a consequence of the collision between the aircraft and the power line. The court also determined that contributory negligence was not a partial defence to an action brought under section 10(1)(d) of the DAA, and that Mr Cook had not voluntarily assumed the risk. Furthermore, there was no breach of the employer's duty of care.
The court ordered that the appeal by ACQ Pty Ltd be allowed in part, with the finding that the pilot owed no duty of care to Mr Cook being upheld. However, ACQ remained liable to Mr Cook under the *Damage by Aircraft Act 1999* (Cth) for the injuries he suffered.
Orders
Orders of the court
Pilot of aircraft owes no duty of care, concerning manner in which he flies, to an electricity worker who is nowhere near the place where the flying occurs, but who is a type of person likely to come to the scene if negligent flying brought a power line down. Section 10(1)(d) Damage by Aircraft Act (DAA) extends to indirect or consequential results of an impact that falls within s 10(1)(a), (b) or (c). Aircraft owner and operator liable to plaintiff under DAA for injury he suffered in consequence of collision between aircraft and power line. Contributory negligence of plaintiff not a partial defence to an action under s 10(1)(d) DAA. No voluntary assumption of risk by plaintiff. No breach of employer's duty of care by plaintiff's employer.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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