Cook v Modern Mustering Pty Ltd

Case [2017] NTCA 1

Cook & Ors v Modern Mustering Pty Ltd & Ors [2017] NTCA 1

PARTIES:COOK, Robert Thomas

And:

SAVAGE, Robert John, SAVAGE, Lillian Rose, COOK, William John and COOK, Letitia Valerie

T/as Suplejack Pastoral (NT)

v

MODERN MUSTERING PTY LTD

(ACN 112 371 543)

and:

HAYES HOLDINGS (NT) PTY LTD

(ACN 105 519 695) in its capacity as the Trustee of the Seven H Trust and in its own capacity

and:

LESLIE, Zebb Raymond

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:No AP 2 of 2016 (21132488 and 21132442)

DELIVERED:  23 June 2017

HEARING DATE:  31 May 2016

JUDGMENT OF:  SOUTHWOOD, BLOKLAND and HILEY JJ

APPEALED FROM:  KELLY J

CATCHWORDS:

AVIATION – Civil Aviation Regulations 1988 (Cth) – helicopter accident – helicopter flying at low altitude when engine failed – whether pilot permitted to fly below 500ft by Regulation 157 and Civil Aviation Order 2910 – whether appellant was a “crew member” within the meaning of Regulation 2– appellant working as a ‘spotter’ and performing a duty on the helicopter – appellant a “crew member” – whether pilot engaged in “aerial stock mustering operations” at the time of the accident – flight type under Regulation 2(6) remains the same for the duration of the flight – pilot engaged in “aerial stock mustering operations” – pilot not in breach of Regulation 157(1) and entitled to fly below 500ft – pilot not in breach of Regulation 173(2) as not shown practicable for the helicopter to fly above 500 feet at the relevant time

NEGLIGENCE – Duty of care – breach of duty – whether pilot breached his duty to the appellant by flying under 500ft– Wyong Shire Council v Shirt (1980) 146 CLR 40 – no evidence of probability of helicopter engine failure – no evidence on which to base the assessment of what a reasonable pilot would have done in the circumstances – sound operational reasons for flying below 500ft near cattle – no evidence that the pilot was not performing a task which required flight below 500 feet – appellant did not establish that a reasonable pilot would not have flown below 500 feet in the circumstances – breach of duty not established

NEGLIGENCE – Causation – loss of chance – mere possibility of a better outcome had the pilot flown higher – causation not established

Civil Aviation Act 1988 (Cth)

Civil Aviation Regulations 1988 (Cth)

Civil Aviation Order 20.10

Interpretation Act 1901 (Cth) s 15AA

Workers Rehabilitation and Compensation Act (NT)

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486; Tabet v Gett (2010) 240 CLR 537; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175; Australian Tea Tree Oil Research…

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AGLC
Cook v Modern Mustering Pty Ltd [2017] NTCA 1
Case
[2017] NTCA 1
Decision Date

CaseChat Overview and Summary

The case of Cook v Modern Mustering Pty Ltd was heard by the Court of Appeal in Australia. The appellant, Robert Thomas Cook, was injured in a helicopter accident that occurred during a cattle mustering operation on Suplejack Station. The respondents included the station, the helicopter owner, and the operator under whose certificate the flight was conducted. The appellant argued that the pilot, Leslie, breached his duty of care by flying below the mandated height of 500 feet and that this breach caused his injuries. The primary legal issues concerned whether the flight was exempt from the height regulation, whether the pilot breached his duty of care, and if so, whether that breach caused the appellant’s injuries.

The Court of Appeal examined whether the flight was exempt from the Civil Aviation Regulations 1988, specifically Regulation 157, which generally prohibits flying below 500 feet. The court found that the flight was engaged in aerial stock mustering operations, an activity that qualifies for exemption under the regulation. This determination was based on the nature of the operation and the necessity of low-level flying for effective cattle mustering. Regarding the duty of care, the court held that the appellants failed to demonstrate that a reasonable pilot would have flown at 500 feet or higher in the given circumstances. There was no evidence suggesting that flying at a higher altitude would have prevented the accident, which was caused by an engine failure and the subsequent impact with a hidden object. Concerning causation, the court concluded that the appellants did not establish that a higher flight altitude would have led to a safer landing or reduced the severity of the injuries.

Ultimately, the appeal was dismissed as the appellants could not prove that the pilot’s actions constituted a breach of duty or that such a breach caused the injuries. The Court of Appeal upheld the trial judge's findings and reasoning, affirming that the pilot was not in breach of any regulations and that the accident resulted from an unforeseeable event.

Orders

Orders of the court

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Background

Background to the litigation

On 10 December 2015, the Supreme Court ordered that there be judgment for the respondents in both proceedings. This appeal is against those judgments.Background Suplejack Station is a cattle station in the Northern Territory. It is operated by a partnership between members of the Cook family and the Savage family trading as Suplejack Pastoral (NT). Mr Rob Cook is a son of Mr William John Cook and Ms Letitia Valerie Cook. He was employed on the station along with other members of both families. On 30 September 2008 Mr Rob Cook was badly injured in a helicopter accident on the station. All of the proceedings have been brought because of that accident. In September 2008 cattle were mustered on Suplejack Station using helicopters. At the start of each muster Mr Rob Cook or his father would use the station map to show the helicopter pilots the areas on the station where the cattle were located. They would discuss where they wanted the cattle directed and concentrated, and how far out from a particular place they wanted the pilots to start directing the cattle. Someone who knew the area, the cattle and how far the cattle would walk from water would then go up in the helicopters with the pilots to ‘spot’ the cattle. One of Mr Rob Cook’s jobs on 30 September 2008 was to fly in one of the helicopters as a ‘spotter’ with the pilot to locate the cattle that were to be directed and concentrated. He also mustered cattle by flying a gyrocopter. On 30 September 2008 one of the helicopters used in the mustering was a Robinson 22 (VH-HQM) belonging to Hayes Holding (NT) Pty Ltd. The helicopter was flown by Mr Leslie, an employee of Hayes Holding (NT) Pty Ltd. He flew the helicopter under an Air Operator’s Certificate held by Modern Mustering Pty Ltd. There was a contract in place between Suplejack Station and Hayes Holding (NT) Pty Ltd for provision of helicopter mustering services and a commercial arrangement between Hayes Holding (NT) Pty Ltd and Modern Mustering Pty Ltd for the operation of the helicopter under Modern Mustering Pty Ltd’s Air Operator’s Certificate. The certificate authorised Modern Mustering Pty Ltd to conduct “aerial work operations” for the “aerial work purpose[s]” of “aerial stock mustering”, “aerial surveying” and “feral and diseased animal control”. On 30 September 2008 the employees of Suplejack Station set up a stock camp with portable stockyards about 50 kilometres south west of the homestead. Mr Rob Cook did some mustering in his gyrocopter and then flew in the Robinson R22 helicopter as a spotter with Mr Leslie as the pilot. They flew wide around the northern side of a ‘lake’ (a dry swamp bed) on the station, heading east. The cattle were following a pad,[1] heading north-west along the lake. Mr Rob Cook showed Mr Leslie where he had been mustering the cattle in his gyrocopter. They flew at an altitude of somewhere between 200 and 500 feet above ground level. When they located the tail[2] of the cattle, Mr Rob Cook saw the cattle were strung out too far. This meant they could wander off from the rest of the “mob”[3] too easily, and they would keep stopping. Mr Rob Cook and Mr Leslie hovered above the tail at about 80 to 100 feet above ground and got them moving. Then Mr Rob Cook asked Mr Leslie to take him back to the portable stockyards so he could fly his gyrocopter to assist Mr Leslie keep the mob of cattle moving and Mr Leslie could muster other cattle towards the lake.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Her Honour the trial Judge was correct in concluding that the appellants had failed to prove that a reasonable pilot in Mr Leslie’s position would have flown at 500 feet above ground level.Conclusion For the above reasons, the appeal should be dismissed as it was not established that Mr Leslie breached his duty of care. Aerial stock mustering is a dangerous activity which, by definition, involves low level flying and, as Mr Rob Cook acknowledges in his book, Mr Leslie flew the helicopter in a skilful manner in order to try and avoid the accident which came about as a result of a hidden object. In the circumstances, it is not necessary to deal with the other grounds of appeal. However, I have had the benefit of reading a draft of Blokland and Hiley JJ’s reasons for decision and I agree with their Honours’ reasons and conclusions.BLOKLAND and HILEY JJ:Introduction The appellant[8] Robert Thomas Cook (Cook) was badly injured in a helicopter accident at Suplejack Station on 30 September 2008. At the time he was employed by the other appellant Suplejack Pastoral (NT) (Suplejack).[9] Mr Cook, and the third respondent Zebb Raymond Leslie (Leslie), had been engaged in helicopter mustering in a Robinson R22 helicopter (VH-HQM) (the helicopter) owned by the second respondent Hayes Holdings (NT) Pty Ltd (Hayes) under a commercial arrangement between Hayes and the first respondent Modern Mustering (NT) Pty Ltd (Modern Mustering). Leslie was the pilot of the helicopter and Cook was in the passenger seat. Following a sudden loss of power (sometimes referred to during the proceedings as “engine failure”) the pilot executed an emergency landing by autorotation. This resulted in the helicopter skidding along the ground and being tipped onto its side after hitting a hidden obstacle or soft earth (the crash). At the time of the engine failure the helicopter was being flown at a height of approximately 250 feet above ground level. The appellants’ primary contention at trial was that had the helicopter been flying above 500 feet the emergency landing could have been safely executed. The appellants also contended that the pilot was in breach of Regulation 157 (CAR 157) of the Civil Aviation Regulations 1988 (Cth) (the Regulations) which prohibits the pilot of an aircraft flying at a height lower than 500 feet, subject to certain exceptions, one of which is where the aircraft is engaged in aerial work operations that require low flying. The trial Judge dismissed the appellants’ claims because:(a)the helicopter was engaged in aerial stock mustering operations when the accident occurred and it was, therefore, not in breach of CAR 157 for Mr Leslie to be flying below 500 feet[10];(b)the appellants failed to prove that a reasonable pilot in Mr Leslie's position would, in the circumstances, have flown the helicopter at 500 feet or more above ground level to guard against the risk of injury to Mr Cook, and therefore the appellant had not satisfied the onus of establishing that it was a breach of Mr Leslie's duty to Mr Cook to be flying at less than 500 feet above ground level in the circumstances,[11] and(c)the appellants did not establish that, given the opportunity from 500 feet, a reasonably competent pilot would have chosen an alternative landing site rather than the one chosen,[12] and, even if this was established, causation was not proved because a hidden hazard on the ground might possibly have been present at any other landing site.[13]Grounds of appeal

Ratio Decidendi

Legal Principle Established

The Notice of Appeal included a number of sub grounds or particulars in relation to Ground 4, namely that “[t]he trial judge erred in failing to find that the defendants’ breach of duty materially contributed to the crash and was a cause of the injuries sustained by Rob Cook.” They were:4.1 The evidence was that the pilot apparently ran out of room, did not achieve a zero speed landing and was travelling across the ground at speed and clipped a tree before crashing. With greater height, and in any event, at zero speed there were alternative landing sites available to the pilot in the immediate vicinity of the crash site, Reasons [96] - [99].4.2 In addition, the evidence showed that with a greater height the pilot had a greater travel distance, more time and more alternative landing sites from which to choose, including areas 300 to 500 metres away which were open and relatively level and 100 metres wide, Reasons [106]; 4.3 The joint expert report referred to by the trial judge was not based on the evidence actually before the Court and, unlike the supplementary report of Mr Allan, did not consider the evidence before the Court regarding the alternative landing sites, Reasons [86] - [90];4.4 The trial judge erroneously mischaracterised the plaintiffs’ case as one concerning the loss of a chance in circumstances where alternative landing sites were proved to exist. The possibility of a low lying tree or other object at those other sites did not displace the plaintiffs’ proof, on the balance of probabilities, that the defendants’ breach was causative, Reasons [100] - [104]. This finding was reinforced by the absence of evidence from the defendants (including the pilot) that the apparently suitable alternative sites were not safe, Reasons [106].Consideration In order to establish causation it would be necessary for the Court to conclude “as a matter of evidence and inference that, more probably than not, the taking of [the action which the appellants say should have been taken, namely flying at a height of at least 500 feet] would have prevented or minimised the injuries the plaintiff sustained.”[114] As her Honour pointed out at [100] of the Reasons the plaintiffs’ primary contention in relation to causation was that if the helicopter had been flown at 500 feet or more the pilot would have had more time and more options in relation to landing areas. There would have been alternative landing sites that the pilot could have chosen which were devoid of trees and other obstacles and thus more suitable than the site where the helicopter did land. This was the main point made by the appellants in their submissions. Counsel contended that, contrary to her Honour’s findings set out in [217] - [219] above, there was evidence that there were several other better landing sites:(a)“an area immediately adjacent to the area [where the helicopter did land] being the area circled in red in Annexure A to the Pugh Affidavit, which comprised some 15 metres in diameter”;[115](b)“the area in which Andrew Scott's R22 was landed when the photograph was taken by Dr Manders from the approaching R44 as shown in Exhibit P10”;[116](c)“the area where Andrew Scott's R22 was landed to drop off Michelle Gough and her equipment, being an area about 500 metres from the crashed helicopter”,[117] and(d)open areas of more than 100 metres diameter within 300 - 500 metres of the location of the crashed helicopter.[118]