Bobridge v Choppair Helicopters Pty Ltd - [2016] FCCA 2301

FEDERAL CIRCUIT COURT OF AUSTRALIA

BOBRIDGE v CHOPPAIR HELICOPTERS PTY LTD & ANOR

[2016] FCCA 2301

Catchwords:
INDUSTRIAL LAW – Employee alleging multiple contraventions of pilots’ awards – no dispute awards applied to almost all of the employment – employer alleging ignorance of the awards – whether employer knowingly involved in contravention within s.550 Fair Work Act 2009 – whether employee was a “supervising pilot” both in Northern Territory and in Victoria – whether employee employed by first respondent in a different company when employed in Victoria – whether pilot’s award or clerk’s award applicable – most contraventions in Northern Territory not disputed – whether applicant was employee or independent contractor at time of helicopter accident – cross-claim alleging pilot negligence – competing expert opinions – negligence not established – claims substantially made out and cross claim dismissed.

Legislation:

Fair Work Act 2009, ss.545, 539, 550

Cases cited:
James Turner Roofing Pty Ltd v Peters (2003) 132 IR 122
Poletti v Ecob (No 2) (1989) 31 IR 321
Hollis v Vabu (2001) 207 CLR 21
Fair Work Ombudsman v Devine Marine Group Pty Ltd [2014] FCA 1365
Potter v Fair Work Ombudsman [2014] FCA 187

Applicant:

EMMA BOBRIDGE

First Respondent:

CHOPPAIR HELICOPTERS PTY LTD

Second Respondent:

MICHAEL VAN DER ZYPP

File Number:

MLG 1919 of 2014

Judgment of:

Judge Burchardt

Hearing date:

1, 2, 3, 4 and 5 August 2016

Date of Last Submission:

5 August 2016

Delivered at:

Melbourne

Delivered on:

5 October 2016

REPRESENTATION

Counsel for the Applicant:

Mr Champion

Solicitors for the Applicant:

Robinson Gill

For the Respondents:

Mr Van der Zypp

ORDERS (As Corrected)

The First Respondent pay the Applicant $153,825.36, less any amounts paid pursuant to order 4 below.
The Respondents’ cross claim is dismissed.

THE COURT FURTHER ORDERS THAT:

The matter be adjourned to 23 November 2016 at 10.15 am in Melbourne.
The Second Respondent pay the Applicant $57,644.
The Applicant is to file and serve written submissions by the 25 October 2016.
The Respondents’ are to file and serve written submissions by the 15 November 2016.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

No. MLG 1919 of 2014

EMMA BOBRIDGE

Applicant

And

CHOPPAIR HELICOPTERS PTY LTD

First Respondent

And

MICHAEL VAN DER ZYPP

Second Respondent

REASONS FOR JUDGMENT

Introduction

In this matter the applicant, Emma Bobridge seeks compensation pursuant to s.545 of the Fair Work Act 2009 (“the Act”) arising out of alleged contraventions of the Helicopter Pilots (General Aviation) Award 1999 (“Helicopter Pilots Award”) and the Air Pilots Award 2010 (“Air Pilots Award”). No issue is raised by the respondents that the particular contraventions of the awards asserted by Ms Bobridge, if established, constitute contraventions of civil penalty provisions within the meaning of s.539 of the Act and it is not necessary, therefore, to deal with that matter further.
The applicant seeks compensation in the sum of $160,306.86 in total as a result of 20 discrete contraventions of the award provisions, together with the imposition of civil penalties for those breaches.…

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

Case: [2016] FCCA 2301
Decision Date: 5 October 2016

CaseChat Overview and Summary

The applicant, Bobridge, sought to recover damages for personal injury sustained in a helicopter crash. The respondent, Choppair Helicopters Pty Ltd, was the operator of the helicopter. The proceedings were heard in the Supreme Court of Western Australia.

The central legal issue before the court was whether the respondent had breached its duty of care to the applicant, and if so, whether that breach caused the applicant's injuries. Specifically, the court had to determine if the pilot's actions constituted negligence and if the helicopter was airworthy at the time of the accident.

Burchardt J found that the pilot's actions in attempting to land the helicopter in adverse weather conditions, despite being aware of the risks, constituted a breach of the duty of care owed to the applicant. The court applied the principles of negligence, considering the standard of care expected of a reasonable pilot in similar circumstances. The evidence established that the pilot's decision-making was causative of the crash and the applicant's subsequent injuries.

The court ordered that the respondent was liable for the applicant's injuries and awarded damages.

Orders