Cook v Modern Mustering Pty Ltd and Ors and Savage and Ors v Modern Mustering Pty Ltd and Ors
[2015] NTSC 82
•10 DECEMBER 2015
Cook v Modern Mustering Pty Ltd & Ors and Savage & Ors v Modern Mustering Pty Ltd & Ors [2015] NTSC 82
PARTIES:COOK, Robert Thomas
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
and
ROBERT JOHN SAVAGE, LILLIAN ROSE SAVAGE, WILLIAM JOHN COOK AND LETITIA VALERIE COOK TRADING AS SUPLEJACK PASTORAL (NT) (A FIRM)
AND BETWEEN: ROBERT JOHN SAVAGE, LILLIAN ROSE SAVAGE, WILLIAM JOHN COOK AND LETITIA VALERIE COOK TRADING AS SUPLEJACK PASTORAL (NT) (A FIRM)
v
MODERN MUSTERING PTY LTD
(ACN 112 371 543)
and
HAYES HOLDINGS (NT) PTY LTD (ACN 105 519 695) in its capacity as Trustee of the Seven H Trust in its own capacity
and
LESLIE, Zebb Raymond
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:12 of 2011 (21132488) and
119 of 2011 (21132442)
DELIVERED: 10 DECEMBER 2015
HEARING DATES: 19, 20, 22 and 23 OCTOBER 2015
JUDGMENT OF: KELLY J
CATCHWORDS:
AVIATION – Civil Aviation Regulations 1988 (Cth) – Helicopter accident – Helicopter flying at low altitude when engine failed – Whether pilot (Third Defendant) permitted to fly below 500ft by Regulation 157(1) – Whether Plaintiff was a “crew member” within the meaning of Regulation 2– Plaintiff working as a ‘spotter’ and performing a duty on the helicopter – Plaintiff a “crew member” – Whether pilot (Third Defendant) 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” – Third Defendant not in breach of Regulation 157(1) and entitled to fly below 500ft
NEGLIGENCE – Duty of care – Breach of duty – Whether pilot (Third Defendant) breached his duty to the Plaintiff 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 – Plaintiff has not established that a reasonable pilot in 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 (Third Defendant) flown higher – Causation not established
CASA Direction 524/04
Civil Aviation Order 29.01
Civil Aviation Regulations 1988 (Cth) r 2(6); 2(7); 157(1)(b); 206; 215
Workers Rehabilitation and Compensation Act s 54
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; New South Wales v Fahy (2007) 232 CLR 486; Tabet v Gett (2010) 240 CLR 537; Vairy v Wyong Shire Council (2005) 223 CLR 422; Wyong Shire Council v Shirt (1980) 146 CLR 40, applied
Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201; Jones v Dunkel (1959) 101 CLR 298; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, referred to
REPRESENTATION:
12 of 2011 (21132488)
Counsel:
Plaintiff:M Livesey QC with S Brownhill SC
First & Second Defendants: R Newlinds SC with M Crawley
Third Defendant: A Wyvill QC with T Brown
Third Party: M Livesey QC with S Brownhill SC
Solicitors:
Plaintiff:Hunt & Hunt as town agents for Curwoods Lawyers
First & Second Defendants: Paul Maher agent for Norton White
Third Defendant: Ward Keller
Third Party: Hunt & Hunt as town agents for Curwoods Lawyers
119 of 2011 (21132442)
Counsel:
Plaintiff:M Livesey QC with S Brownhill SC
First & Second Defendants: R Newlinds SC with M Crawley
Third Defendant: A Wyvill QC with T Brown
Solicitors:
Plaintiff:Hunt & Hunt as town agents for Curwoods Lawyers
First & Second Defendants: Paul Maher agent for Norton White
Third Defendant: Ward Keller
Judgment category classification: B
Judgment ID Number: KEL15021
Number of pages: 47
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCook v Modern Mustering Pty Ltd & Ors and Savage & Ors v Modern Mustering Pty Ltd & Ors [2015] NTSC 82
No. 12 of 2011 (21132488) and 119 of 2011 (21132442)
BETWEEN:
ROBERT THOMAS COOK
Plaintiff
AND:
MODERN MUSTERING PTY LTD
(ACN 112 371 543)
First Defendant
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
Second Defendant
AND:
ZEBB RAYMOND LESLIE
Third Defendant
AND:
ROBERT JOHN SAVAGE, LILLIAN ROSE SAVAGE, WILLIAM JOHN COOK AND LETITIA VALERIE COOK TRADING AS SUPLEJACK PASTORAL (NT) (A FIRM)
Third Party
AND BETWEEN:
ROBERT JOHN SAVAGE, LILLIAN ROSE SAVAGE, WILLIAM JOHN COOK AND LETITIA VALERIE COOK TRADING AS SUPLEJACK PASTORAL (NT) (A FIRM)
Plaintiff
AND:
MODERN MUSTERING PTY LTD
(ACN 112 371 543)
First Defendant
AND:
HAYES HOLDINGS (NT) PTY LTD (ACN 105 519 695) in its capacity as Trustee of the Seven H Trust in its own capacity
Second Defendant
AND:
ZEBB RAYMOND LESLIE
Third Defendant
CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 10 December 2015)
Background
Suplejack Station is a large cattle station in the Tanami Desert in the Northern Territory – close to the Western Australian border. It is operated by a partnership between members of the Cook family and the Savage family.
The son of the Cook partners, Mr Rob Cook, 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, as a result of which these proceedings have been brought, described in more detail below.
Cattle were mustered on the station using helicopters. Mr Cook gave evidence about how that is done. Mustering involves bringing cattle which are spread out over an area together at the place where you want them to be.
Before the start of each muster, Mr Cook or his father would use the station map to show the pilots where they were headed for the mustering and what the game plan was. They would discuss with the pilots where the cattle were likely to be, where they wanted them pushed, how far out from a particular place they wanted the pilot to hunt them up, and matters of that nature.
On the day of the muster, before the actual mustering starts, the first task is to find where the cattle are, and to see how far out the helicopters need to go to muster them. Someone who knows the area, knows the cattle, and knows how far the cattle will walk from water (called a “spotter”) will go up in the helicopter with the pilot. The spotter and the pilot locate the waterhole where the cattle go to drink and use the cattle pads (tracks) to work out which direction the majority of the cattle will be and how far out they are walking for feed.
Once the cattle have been located and the mustering plan communicated to the pilot by the spotter, the pilot drops the spotter off and conducts the actual muster.
Cattle move away from the noise of the helicopter, and the goal is to move the cattle calmly and quietly, just using that noise. That way the cattle are not spooked when they get to the yards and they can be drafted and handled more easily. However, sometimes, if there is a stubborn beast hiding up under a tree or refusing to move, the pilot might have to fly lower and use the dust created by the helicopter’s blades to hunt it out.
One of Mr Cook’s duties during a muster was to fly in one of the helicopters with the pilot as a “spotter”. He also played a part in the actual mustering by flying a gyrocopter.
On 30 September 2008, helicopter mustering was taking place on the station using two helicopters. One of these was a Robinson R22 (VH-HQM) belonging to Hayes Holdings (NT) Pty Ltd (“Hayes”) and flown by Zebb Leslie. Mr Leslie was an employee of Hayes. He was flying the helicopter pursuant to an Air Operator’s Certificate (“AOC”) held by Modern Mustering Pty Ltd (“Modern Mustering”). There was a contract in place between the Suplejack partners and Hayes for the provision of helicopter mustering services and a commercial arrangement between Hayes and Modern Mustering for the operation of the helicopter pursuant to Modern Mustering’s AOC, details of which are not relevant.
The other helicopter was also a Robinson R22 supplied by Heli-Muster NT Pty Ltd (“Heli-Muster”) and flown by Andrew Scott.
The accident
The details of what actually happened on the day of the accident are largely not in dispute, and I find them to have occurred essentially in the way described by Mr Cook.[1]
The Suplejack partners and employees set up a stock camp with portable stockyards about 50km south west of the house.
That morning, Mr Cook had done some mustering in his gyrocopter. Later he flew in the helicopter with Mr Leslie, acting as spotter.
His plan was to show Mr Leslie where he had mustered in the gyrocopter earlier that morning, so he would not need to waste time going over that area again. He also wanted to locate the tail of the cattle, to get a general idea of how well the cattle were travelling and to point out to Mr Leslie roughly where they were headed with them.
They flew wide around the northern side of a lake on the station, heading east. The cattle were following a pad, heading north-west along the lake. Mr Cook showed Mr Leslie where he had been mustering in the gyrocopter. They also discussed what cattle to leave behind (aged cows with young calves, and old bulls which would cause problems in the yards). They were flying somewhere between 200 and 500 feet.
When they located the tail of the cattle, Mr Cook saw that they were strung out too far, which meant they could wander off from the rest of the mob too easily, and they kept stopping. They hovered above the tail of the mob at about 80 to 100 feet above ground and got them moving again. Then Mr Cook asked Mr Leslie to take him back to his gyrocopter (at the temporary yards) so Mr Cook could help Mr Leslie keep the mob walking and then Mr Leslie could get on to mustering the others towards the lake.
Mr Leslie turned the helicopter, gained altitude and increased speed to about 60 to 70 knots to take Mr Cook back to his gyrocopter. They were flying in a north-north east direction. They did not fly in a straight line towards the yards (which were north-west) because that would have involved flying over the mob and scaring the cattle in the wrong direction. The wind that day was predominantly from the east swinging from north-east to south-east and gusting at times.
They were looking at tracks and pads as they flew, and about one to two minutes before the accident, they came upon a troublesome animal and moved it along. (I take it that this happened as they were hovering above the tail or very shortly thereafter.)
They had ceased working the tail and had been cruising at about 250 feet above ground for between one and two minutes when Mr Cook felt the helicopter “lag”, that is, it seemed to slow right down. It felt to Mr Cook as though Mr Leslie had backed the throttle off to stop, head lower, or hover. In fact the helicopter had suddenly completely lost power.
Mr Lesley said words to the effect of, “We’re going down”. He turned the helicopter through about 90 degrees – towards south east – and attempted a landing in a manoeuvre known as an autorotation, which is described in more detail below.
The area they were flying over was wooded and Mr Leslie attempted to land in the only clearing that Mr Cook could see from the height they were flying.
As the helicopter came down, the tail rotor clipped a tree and broke off. The helicopter landed on the skids without the tail, slid forward for about seven metres, then tipped forward until the rotor hit the ground. It is probable that one of the skids dug into the soft ground or hit a concealed obstacle, causing the helicopter to tip over. Once the rotor hit the ground, the helicopter flopped around, landing on the passenger side.
Mr Cook sustained multiple catastrophic injuries to his spine. Those injuries have resulted in permanent loss of movement and sensation below the C4 vertebrae, including his left arm and both legs. He retains a limited ability to move his right arm. The pilot, Mr Leslie, was uninjured.
Proceedings
Mr Cook commenced proceedings against Suplejack seeking statutory benefits pursuant to the Workers Rehabilitation and Compensation Act (NT) (“the Act”) (“the Work Health proceeding”) and later commenced a common law action[2] against Hayes, Modern Mustering and Mr Leslie (“the common law proceeding”).
Suplejack settled the Work Health proceeding for a lump sum payment to Cook of $10.5 million (inclusive of Suplejack’s liability for future payments)[3] and commenced proceedings[4] to recover the payments made under that settlement from Hayes, Modern Mustering and Mr Leslie (“the recovery proceeding”).
On 11 March 2015, the Court ordered that the common law proceeding and the recovery proceeding be heard together, that the evidence in each proceeding be evidence in the other, and that liability be determined before the quantum of Mr Cook’s damages (if any). There are also claims for contribution, but it has been agreed that the determination of these be postponed until after liability has been determined in the principal proceeding.
In the common law proceeding, the claim is based on breach of a duty of care owed by Mr Leslie to Mr Cook. Both Hayes and Modern Mustering are alleged to be vicariously liable for Mr Leslie’s breach of duty.
All three defendants have admitted the existence of a duty of care owed by Mr Leslie to Mr Cook, but have denied that Mr Leslie breached that duty of care. Hayes admitted in its defence that it would be vicariously liable for any breach of duty by Mr Leslie. In its defence, Modern Mustering denied vicarious liability, but conceded the issue at the trial. The defendants have also denied that any breach of duty caused the injuries suffered by Mr Cook.
Issues
The issues at the trial, therefore, were whether Mr Leslie breached the duty of care he owed to Mr Cook and, if so, whether that breach of duty was a cause of the injuries to Mr Cook.
The plaintiff, Mr Cook,[5] has pleaded that Mr Leslie’s duty of care to Mr Cook included a duty not to fly the helicopter at a height less than 500 feet from the ground while carrying a passenger unless taking off or landing, or otherwise forced to, or performing a task in which it was necessary.[6] In his pleaded particulars of negligence,[7] the plaintiff alleges (in summary):
(a)that Mr Leslie flew below 500 feet during the return flight (ie at 100 – 200 feet); and
(b)that this was in breach of reg 157(1)(b) of the Civil Aviation Regulations and not permitted by Civil Aviation Order 29.01.
The “return flight” is defined as that part of the flight after Mr Cook asked Mr Leslie to return him to the stockyards (to his gyrocopter).
It is common ground that:
(a)regulation 157(1) of the Civil Aviation Regulations1988 (Cth) makes it an offence to fly a helicopter at a height lower than 500 feet unless (relevantly) the aircraft is engaged in aerial work operations, that require low flying, and the owner or operator of the aircraft has a permit to fly at a lower height while engaged in such operations;[8]
(b)Civil Aviation Order 20.10 (made under reg 157) grants permission for a helicopter to fly at a height lower than 500 feet whilst engaged in aerial stock mustering operations authorised by an aerial work licence; and
(c)Modern Mustering had permission from the Civil Aviation Authority to fly below 500 feet while engaged in aerial work operations that require low flying[9] and Mr Leslie had the relevant licences and endorsements and approval from the Civil Aviation Authority to conduct aerial mustering operations.[10]
Emergency landing of a helicopter by autorotation
What is involved in an emergency landing of a helicopter by means of an autorotation is likewise uncontroversial. Evidence was given by both Mr Allan (the helicopter aviation expert engaged by the plaintiff) and Mr Ogden (the helicopter aviation expert engaged by the first and second defendants) describing what is involved. It was also described in a joint expert report prepared by the two experts after they had conferred in accordance with a pre-trial direction that they do so. A basic understanding of the process is necessary for an understanding of the effect of the expert evidence as it relates to causation.
Autorotation is a manoeuvre performed by a helicopter pilot to enable a helicopter to make a controlled descent to achieve a safe landing following an engine failure. In normal powered helicopter flight, the engine turns the rotor. This draws in air from above and blows it downward, generating lift. During autorotation, the main rotor of the helicopter is driven only by the action of air moving up through the rotor as the helicopter descends, rather than engine power. This upward flow of air through the rotor system provides sufficient thrust to keep the rotor moving with enough speed to control the rate of descent and enable some manoeuvring of the helicopter.
At the instant of engine failure, the main rotor blade is producing lift (and therefore drag) due to the pitch of the blades and also thrust. The pilot enters autorotation by immediately reducing the pitch (“collective”) of the rotor blades (to reduce drag and prevent the rotor blades slowing to a dangerously low speed) and manipulating the controls to maintain the helicopter’s heading and counter the tendency for the helicopter to pitch nose down. The pilot is trained to do these things instinctively and concurrently within one to two seconds. When the pitch of the rotor blades is lowered, lift and drag are reduced and the helicopter enters descent.
Once the helicopter is established in autorotation the pilot must make some rapid decisions. He must locate a suitably sized area to land (preferably one that is into wind),[11] and then establish the appropriate “profile” (ie determine the rate of descent and forward speed with which he will try to land.) The pilot will want to land with as low a rate of descent and as little forward speed as possible (ideally zero), and into a clear area, but this is not always achievable.
To successfully perform a touchdown during an autorotative landing, the pilot must first perform a flare. Flaring involves the pilot pitching the nose of the helicopter up shortly before landing. This manoeuvre slows the forward speed of the helicopter, reduces its rate of descent, and stores energy in the rotors. The pilot then increases the pitch of the rotor blades to further reduce the descent rate and cushion the touchdown.
The pilot must assess the height at which to initiate the flare and then assess the development rate depending on the helicopter’s airspeed, rate of descent, and the wind velocity at time of entry into the flare. Flaring too high can result in a high rate of descent and correspondingly heavy impact that could cause significant aircraft damage and injury to the occupants. Flaring too low can result in the tail of the helicopter striking the ground or too great a forward ground speed for the available landing area.
There are many variables that the pilot must consider, assess and adjust for when the helicopter is in autorotation including:
(a)the height at which the helicopter entered autorotation;
(b)the speed at which the helicopter entered autorotation;
(c)wind speed and direction during the descent and on the surface including turbulence;
(d)the availability of a suitable landing area and its distance, size and other characteristics;
(e)the ability for the pilot to manoeuvre the helicopter into wind, given the height at which the engine fails, the direction of the available landing site relative to the wind and other factors; and
(f)the weight of the helicopter – the higher the weight, the higher the rate of descent and rotor RPM.
All this must be accomplished in a matter of seconds.
Was the third defendant engaged in aerial stock mustering operations at the time of the engine failure?
The plaintiff contends that Mr Leslie was not conducting “aerial mustering operations” while on “the return flight”, and that therefore it was a breach of reg 157(1) for Mr Leslie to be flying below 500 feet at the time of the accident. The plaintiff relies on the definition of “aerial stock mustering” in Order 29.10 as “the use of aircraft to locate, direct and concentrate livestock while the aircraft is flying below 500 feet above ground level and for related training operations”, and contends that the helicopter was only engaged in aerial stock mustering while actually mustering (and perhaps “spotting” – the plaintiff’s position on this is not clear). Once a decision had been made to fly Mr Cook back to the yards, the helicopter was not engaged in aerial mustering and was not permitted to fly under 500 feet.
The plaintiff points out that the Low Flying Permit issued to Modern Mustering under reg 157(4)(b) only permits aircraft operated by Modern Mustering to fly at a height lower than 500 feet on condition (inter alia) that “persons other than crew members are not carried”. Regulation 2 defines “crew member” to mean a person assigned by an air operator for duty on an aircraft. As Mr Leslie was flying the helicopter under Modern Mustering’s Air Operator’s Certificate, the air operator was Modern Mustering. The plaintiff contends that there was no evidence capable of supporting a conclusion that Mr Cook was a crew member within that definition; he was an employee of Suplejack. If that contention were correct, then it would not be permissible for the helicopter to fly lower than 500 feet with a spotter on board. I do not think that can be correct. The evidence of Mr Cook is that he was on board as a spotter and that at times they were hovering about 80 to 100 feet above ground. He agreed with Mr Leslie that the first stage of the muster (looking for the cattle and at the lay of the land) is conducted at “up to” 1,000 feet, depending on the lay of the land. The evidence of Mr Ogden (referred to at [63] below) is that it is common practice within the mustering industry to maintain the helicopter lower than 500 feet, usually 100 to 250 feet, when near cattle. There is evidence (discussed at [54] below) that the spotting phase and the mustering phase can overlap and this is what happened on the day of the accident. Mr Leslie and Mr Cook were spotting the cattle. When they came upon the tail of the mob they hovered low (at around 80 to 100 feet) to look and to get the mob moving. Mr Cook also gave more detailed evidence about the need for low flying around cattle and the reasons for that (set out at [66] and [67] below.) There is also evidence from the experts (set out at [65] below) that helicopter musterers regularly do fly at under 500 feet when not actively engaged in moving the cattle.
I consider that while the helicopter is engaged in aerial mustering operations the person accompanying the pilot as spotter comes within the definition of crew member. The spotter is performing a duty on the aircraft for the purpose of the aerial muster. The pilot is the delegate of the air operator for the purpose of assigning a person for duty on the helicopter, and there can be no doubt that the pilot would have the right to refuse to carry a person as spotter if he did not believe the person to be suitable.
The next question is whether the helicopter was engaged in aerial mustering operations while on what the plaintiff has described as “the return flight”. The plaintiff draws a sharp distinction between “mustering in the strict sense” (ie specific manoeuvres to move or direct cattle) and “spotting”, and a further distinction between “spotting” and ferrying Mr Cook back to the temporary yards, an activity which, the plaintiff contends, started when the helicopter turned and increased speed and altitude.
Mr Wyvill QC for the third defendant contended that although Order 29.10 defines “aerial stock mustering” in the terms set out in [40] above, it does not define “aerial stock mustering operations” (the term used in the permission given by Order 29.10), or “aerial work operations” (the term used in the Low Flying Permit issued to Modern Mustering). Mr Wyvill pointed out that the term “operations” has a specific meaning within the context of the Civil Aviation Regulations.
The Regulations refer to “private operations” and “commercial operations”, and to different sub-categories of commercial operations.
Regulation 2(6) provides:
(6)For the purposes of these Regulations, an aircraft shall be classified in accordance with the type of operations in which it is being employed at any time, as follows:
(a)when an aircraft is being employed in aerial work operations, it shall be classified as an aerial work aircraft;
when an aircraft is being employed in charter operations, it shall be classified as a charter aircraft;
(c)when an aircraft is being employed in regular public transport operations, it shall be classified as a regular public transport aircraft;
(d)when an aircraft is being employed in private operations, it shall be classified as a private aircraft. [emphasis added]
Regulation 2(7) provides:
(7)For the purposes of these Regulations:
(a)an aircraft that is flying or operating for a commercial purpose referred to in paragraph 206(1)(a) shall be taken to be employed in aerial work operations;
Regulation 206 sets out commercial purposes which are prescribed for the provisions of the Act relating to Air Operators Certificates. It distinguishes between “aerial work purposes” [set out in reg 206(1)(a)], “charter purposes” [set out in reg 206(1)(b)], and (exhaustively described) regular public transport purposes [set out in reg 206(1)(c)].
Safety requirements are then specified by reference to types of “operations”. For example, reg 215 provides :
Operations manual
(1)An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator.
(2)The operator must ensure that the operations manual contains such information, procedures and instructions with respect to the flight operations of all types of aircraft operated by the operator as are necessary to ensure the safe conduct of the flight operations…
As a further example, CASA Direction 524/04, entitled “Helicopter Mustering Operations – Flight Time and Duty Time” limits the total number of hours over particular periods which a pilot may spend “engaged in helicopter mustering operations”. It defines “helicopter mustering operations” as:
…activities related to the aerial supervision and control of livestock, that are carried out by helicopter and includes:
(a)aerial stock mustering;
(b)aerial stock spotting;
(c)animal culling;
(d)flying training to carry out such activities.
Mr Wyvill contended that the term “aerial stock mustering operations” in Order 29.10 (and “aerial work operations” in Modern Mustering’s Low Flying Permit) must be construed in the context of this legislative regime. The term “aerial stock mustering operations” refers to the purpose for which the aircraft is being flown on a particular flight and therefore is not restricted to the specific activity of moving cattle with a helicopter, but includes all aerial operations that are related to that function and which occur during the course of a flight for that purpose, for example refuelling, or flying Mr Cook to the yards to get his gyrocopter so he could assist in the muster.
I agree. If the term “aerial stock mustering operations” (which it is clear from the regulatory scheme form a sub-set of “aerial work operations”) were to be given the narrow construction urged by the plaintiff, then the pilot would potentially be changing regulatory requirements mid-flight (for example in relation to the part of the operations manual applicable to the flight, records to be kept, maximum hours of allowed flying, and flying height restrictions). That would be unworkable and would not seem to me to accord with the legislative purpose in the regulatory framework.
Supporting evidence for the construction contended for by the third defendant came from the other helicopter pilot engaged in mustering on the station that day, Mr Andrew Scott from Heli-Muster. Mr Scott gave evidence that he had always understood that an aircraft was engaged in a particular “operation”, for example a charter operation or an aerial stock mustering operation, from the beginning of the flight until the end of the flight. He said he understood that “you can’t choose bits of a flight”; you plan a whole flight and it remains the same type of operation throughout the flight.
Moreover, in practical terms, the evidence does not support the sharp distinction between the purposes of different parts of the flight contended for by the plaintiff. The evidence of Mr Cook is that he would be keeping an eye out for stock and observing pads the whole time; that they took the route they did (rather than a direct route to the yards) so as to avoid flying over the mob and scaring the cattle in the wrong direction; and also that the pilot had moved on a stubborn beast one to two minutes before the accident. In his second affidavit, Mr Cook agreed with the proposition deposed to by Mr Leslie that the stages of helicopter mustering he referred to (ie getting an understanding of the area, working out a plan for aggregating the cattle and putting it into practice, and then ensuring the mob remains controlled) may not necessarily be always distinct. He also agreed with this statement by Mr Leslie: “During a muster it might be necessary for me to fly out of the immediate area where the cattle being mustered are located and, for example, refuel or collect or drop off a person engaged in the muster.”
I conclude that the helicopter was engaged in aerial stock mustering operations when the accident occurred and that it was, therefore, not in breach of reg 157 for Mr Leslie to be flying the helicopter below 500 feet. (Counsel for the plaintiff relied on the evidence of Sergeant Chalk of the Northern Territory Police that Mr Leslie told him two days after the crash that he was not “mustering” at the time of the crash. This does not mean that he was not engaged in aerial stock mustering operations.)
Was the third defendant in breach of his duty of care to the plaintiff in flying below 500 feet in the circumstances?
That conclusion, of course, is not determinative of whether Mr Leslie was in breach of his duty of care to Mr Cook. A pilot can be negligent while not being in breach of the regulations and, conversely, though breach of a regulation may be some evidence of negligence, a pilot may be non-negligent though in breach of a regulation.
Was it a breach of Mr Leslie’s duty of care to Mr Cook to have been flying below 500 feet even though he was not required by the regulations to do so? The answer to this question depends upon an analysis in terms of the “Shirt calculus”.
In deciding whether there has been a breach of the duty of care the tribunal of fact must first ask itself whether a reasonable man in the defendant’s position would have foreseen that his conduct involved a risk of injury to the plaintiff or to a class of persons including the plaintiff. If the answer be in the affirmative, it is then for the tribunal of fact to determine what a reasonable man would do by way of response to the risk. The perception of the reasonable man’s response calls for a consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have. It is only when these matters are balanced out that the tribunal of fact can confidently assert what is the standard of response to be ascribed to the reasonable man placed in the defendant’s position.[12]
In New South Wales v Fahy[13] Gleeson CJ referred to and quoted the explanation in Vairy v Wyong Shire Council,[14] as to why it is wrong to focus exclusively upon the way in which the particular injury of which a plaintiff complains came about, when considering whether there has been a breach of duty.
[T]he apparent precision of investigations into what happened to the particular plaintiff must not be permitted to obscure the nature of the questions that are presented in connection with the inquiry into breach of duty. In particular, the examination of the causes of an accident that has happened cannot be equated with the examination that is to be undertaken when asking whether there was a breach of a duty of care which was a cause of the plaintiff’s injuries. The inquiry into the causes of an accident is wholly retrospective. It seeks to identify what happened and why. The inquiry into breach, although made after the accident, must attempt to answer what response a reasonable person, confronted with a foreseeable risk of injury, would have made to that risk. And one of the possible answers to that inquiry must be “nothing”.
Gleeson CJ continued:
It is only if the examination of breach focuses upon “what a reasonable man would do by way of response to the risk” (emphasis added) that it is sensible to consider “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.[15] [citations omitted]
In my view, the relevant risk was the risk of injury to Mr Cook if there was a sudden loss of power or other mechanical failure in the helicopter. The risk of injury should this occur in a helicopter flying at any height is obvious. However, in this case there is no evidence from either expert of the probability of its occurrence. There is therefore an absence of information to form the basis for an assessment of what a reasonable pilot would have done in the circumstances, if one assumes that flying higher would have generally reduced the risk (although perhaps increasing the risk for some types of mechanical failure), but would have carried its own costs in terms of expense and inconvenience (for example, spreading the noise of the helicopter over a wider area and possibly making the muster more difficult, time consuming, and expensive).
Nor is there a great deal of evidence in relation to these two latter factors (ie the extent to which flying higher would have reduced the risk and the potential costs involved in doing so).
Focusing on the extent to which flying at 500 feet rather than 250 feet would have reduced the risk of injury to Mr Cook, the evidence of the experts in their joint report is simply that height would have provided the pilot with more time and more options to select a suitable landing area if an alternative one had been available, depending also on other variables such as wind. Mr Ogden (the expert engaged by the first and second defendants) gave evidence in his report and Mr Allan (the expert engaged by the plaintiff) gave evidence in cross-examination, that being higher could cause problems as well. For example, if there was a gear box failure, a pilot would want to be lower to the ground because he would want to get down quickly, so there is a trade off in terms of risk. It is fair to say, nevertheless, that Mr Allan was of the opinion that flying higher was generally more desirable from a safety point of view.
In relation to the question of the potential expense and inconvenience of flying higher, in his report dated 31 August 2014, Mr Ogden expressed this opinion.
Noise Management
Based on discussions with pilots who have experience in aerial mustering, I understand that cattle can often be affected by noise and the higher the helicopter, the larger its noise footprint (to a point). Consequently based on those discussions I understand that it is common practice within the mustering industry to maintain the helicopter lower than 500ft Above Ground Level, usually 100 to 250ft when near cattle to lessen the noise impact.
The evidence of the other expert, Mr Allan, in cross-examination, was that animals move away from the noise of a helicopter; the lower the helicopter, the noisier it is directly underneath, but the higher the helicopter, the further the noise will spread. He agreed that if the person mustering has a mob of cattle moving the way he wants them to move, the last thing he would want would be to do anything to put them off course – for example, by distracting them with helicopter noise. He agreed that how best to fly to accomplish what was needed would be a matter for the judgment of the pilot.
The experts expressed the following opinions (agreed to by both) in their joint report.
Question 14: Do these minimum height requirements[16] represent widely accepted practice amongst ordinary competent commercial helicopter pilots engaged in aerial stock mustering?
14.1It is both our observations that pilots engaged in mustering have a strong propensity to fly below 500ft even when not directly engaged in mustering operations given most of the areas in which they operate are remote and away from the public awareness.
14.2It is also common practice for mustering pilots that when operating near cattle and even when not actively engaged in mustering cattle, pilots fly low to minimise the helicopter’s noise footprint. In the case of the latter, seemingly few if any adhere to the alternate view that flight at a considerably greater height would also achieve the same goal, and at the same time provide more time should an emergency occur.
14.3In our opinion, it is a widely accepted practice in remote areas that commercial pilots often fly below 500ft even when not actively engaged in mustering cattle.
In his second affidavit, Mr Cook agreed with the following explanation given by Mr Leslie:
I know from my experience that cattle are highly sensitive to noise and that, as a result, when mustering, helicopters must be flown with that fact in mind. The careful management of helicopter noise is critical for a successful muster. Helicopter noise is the principle [sic] driver of the cattle. It has to be managed carefully to ensure that the cattle fall into mobs and are effectively moved to their destination. This is particularly the case with bush cattle which have not often been mustered. Misdirected helicopter noise can add several hours to the time taken to complete a muster. An R22 uses approximately 26 to 30 litres of fuel per hour. There is also the cost of the helicopter itself and the pilot. If there are a number of helicopters engaged in a muster, the extra mustering hours caused by poor helicopter noise management can increase wasted costs even higher.
Mr Cook also agreed with the following deposed to by Mr Leslie:
…it is always important to fly an appropriate route and at appropriately low levels to keep the stress levels of the mob low, to keep building the mob and to keep it moving forward.
Mr Cook’s evidence (again agreeing with what Mr Leslie had said) was that the crash occurred about one mile from where they had been hovering over the tail of the mob, and that the flying time between those two points was about one to two minutes. (They were travelling at about 60 knots or more.)
To summarise:
(a)The evidence seems to indicate that flying higher is generally considered to be safer in an emergency because it gives the pilot more time and more options, although there are some emergencies in which flying lower would be safer.
(b)Commercial helicopter pilots engaged in helicopter mustering operations generally fly below 500 feet even when not actively engaged in moving cattle.
(c)There are sound operational reasons for this in some circumstances because low flying minimises the noise footprint of the helicopter and bad management of noise can scare the cattle off in the wrong direction and substantially increase the cost of the muster.
(d)The crash happened about one mile (and one to two minutes) from the tail of the cattle being mustered.
(e)There is no evidence of how long it would have taken the pilot to climb to 500 feet after he turned to fly back to the yards.
(f)There is no evidence of whether flying at 500 feet, in the circumstances as they existed at that time and place, would have been likely to scare the mob off the route they were on, or how soon the pilot could have started to climb without a real risk of scaring them off that route.
(g)There is no evidence of how likely helicopter engine failure is to enable the Court to balance that risk (and the possible additional safety margin achievable by flying higher) against the possible costs in terms of hindering the muster.
(h)No-one expressed the opinion that in the circumstances as described in the evidence of Mr Cook it was not necessary or desirable for operational reasons for the helicopter to be flying at 250 feet when the engine failed.
I am therefore unable to be satisfied 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. It follows that the plaintiff has not satisfied the onus of establishing that it was a breach of Mr Leslie’s duty to Mr Cook for him to be flying less than 500 feet above ground level in the circumstances.
Counsel for the plaintiff submitted that the missing evidence could have been supplied by the third defendant, Mr Leslie, and Mr Armstrong, the chief pilot of the second defendant Modern Mustering, and that, accordingly, I should apply the principle in Jones v Dunkel[17] and conclude that their evidence on these matters would not have assisted the defendants.
I disagree. First, although Mr Leslie could have given evidence about what he did and why, whether flying at 500 feet would have been likely to scare the mob off the route they were on, and how soon the pilot could have started to climb without a real risk of scaring them off that route are not matters about which Mr Leslie’s opinions or motivations would have been determinative. They are matters about which expert evidence could have been adduced, given the evidence of Mr Cook about the conditions on the day. The only evidence which bears on these issues is Mr Allan’s evidence that, given the importance of not distracting the cattle moving in the right direction with helicopter noise, how best to fly to accomplish what was needed would be a matter for the judgment of the pilot. The plaintiff called no evidence to suggest that Mr Leslie’s judgment of how high to fly on the day was erroneous and that it would not have been impractical from a cattle management point of view for him to have been flying at 500 feet.
Further, how long it would have taken to climb to 500 feet and how often helicopter engines fail are matters of objective fact and not matters within the peculiar knowledge of either Mr Leslie or Mr Armstrong.
Finally on this point, although the absence of evidence from a party (or a witness who might have been expected to be called by a party) entitles the court to more readily draw an inference which can fairly be drawn from other evidence in the case,[18] “it cannot be used to make up any deficiency in the evidence”.[19]
The plaintiff pleaded[20] that it was negligent of Mr Leslie to fly below 500 feet “unless performing a task which required such flight and in respect of which he was authorised to fly below 500 feet above ground level”. I am satisfied that Mr Leslie was performing a task (namely engaging in aerial mustering operations) in respect of which he was authorised to fly below 500 feet. The plaintiff has failed to adduce evidence that Mr Leslie was not performing a task which required flight below 500 feet.
In any event, the plaintiff’s case that Mr Leslie ought to have been flying at 500 feet above ground level is based on the assumption that that is what the regulations required. As I have found that the regulations did not so require, there would seem to be no reason to choose 500 feet as the height at which Mr Leslie had a duty to fly, rather than some other height, higher or lower than 500 feet. The plaintiff relied on reg 173 which, the plaintiff contended, had the effect that the helicopter ought to have been cruising at approximately 1200 feet above ground level.[21] However, the amended statement of claim did not plead breach of this regulation as a particular of negligence and, as I have found that Order 29.10 allowed Mr Leslie to be flying under 500 feet at the time, it follows that reg 173 did not require him to be flying at 1200 feet.
As I have found that Mr Leslie was not in breach of his duty of care to Mr Cook, it is not necessary for me to consider the other issues in the case; however, for the sake of completeness, I will do so.
Causation
The plaintiff pleaded that it was Mr Leslie’s breach of duty (ie his failure to fly at or above 500 feet above ground level) that caused the injuries to Mr Cook.
(i) Pleading
The plaintiff’s causation case is pleaded[22] in the following terms.
As a result of flying at 100-200 feet above ground level, the area of ground upon which Zebb Leslie could land the Helicopter when the Helicopter first began losing height was a small area which was covered in trees to such an extent that any emergency landing in that area carried a significant risk or alternatively a certainty of the Helicopter colliding with one or more trees.
If Zebb Leslie had flown the Helicopter at a height of 500 feet above ground level or higher on the Return Flight, then the area of available ground in which he could have selected a site to land the Helicopter during the emergency landing would have been greater and would have included areas in the vicinity of the site of the Crash which were devoid of trees and other obstacles and which were suitable for a safe emergency landing, including the area referred to in [24] above, upon which he could have safely landed the Helicopter without colliding with any trees or without injuring Robert Cook, or alternatively, without injuring Robert Cook to the degree he was actually injured.
In essence, the plaintiff asserts that:
(a)if the helicopter had been flying at 500 feet or higher the pilot could have selected an alternative landing site devoid of trees and other obstacles;
(b)if the pilot had landed at such an alternative landing site, Mr Cook would not have been injured, or not so badly injured.
(ii) Principles
The plaintiff relies on the test for causation established in March v E & MH Stramare Pty Ltd:[23] it is necessary for the plaintiff to prove that the defendant’s breach was a cause, not the sole cause, of the plaintiff’s loss. However, when assessing whether the breach (assuming it had been a breach to fly under 500 feet) was a cause of the plaintiff’s loss, it is not sufficient to apply a “but for” test in a process of ex post facto reasoning. As Hayne and Bell JJ said in Tabet v Gett:[24]
For the purposes of the law of negligence, “damage” refers to some difference to the plaintiff. The difference must be detrimental. What must be demonstrated (in the sense that the tribunal of fact must be persuaded that it is more probable than not) is that a difference has been brought about and that the defendant’s negligence was a cause of that difference. The comparison invoked by reference to “difference” is between the relevant state of affairs as they existed after the negligent act or omission, and the state of affairs that would have existed had the negligent act or omission not occurred.
In that case the appellant was diagnosed with a brain tumour after suffering a seizure, and after a CT scan and EEG were performed. The trial judge found that the respondent was negligent in failing to order a CT scan a day earlier. The trial judge did not conclude that this negligence caused or contributed to the seizure and deterioration which occurred. Rather, his Honour found that the appellant had lost a chance of a better medical outcome had the brain tumour been detected a day earlier – as it would have been if the CT scan had been performed that day. The High Court held that loss of a chance of a better outcome was not actionable. Hayne and Bell JJ continued:[25]
In this case, saying that a chance of a better medical outcome was lost presupposes that it was not demonstrated that the respondent’s negligence had caused any difference in the appellant’s state of health. That is, it was not demonstrated that the respondent’s negligence was probably a cause of any part of the appellant’s brain damage.
As Gummow A-CJ explains, to accept that the appellant’s loss of a chance of a better medical outcome was a form of actionable damage would shift the balance hitherto struck in the law of negligence between the competing interests of claimants and defendants. That step should not be taken. The respondent should not be held liable where what is said to have been lost was the possibility (as distinct from probability) that the brain damage suffered by the appellant would have been less severe than it was.
Counsel for the plaintiff relied on the following statement by Kiefel J in Tabet v Gett:[26]
The general standard of proof applied by the common law and applied to causation is relatively low. It does not require certainty or precision. It requires that a judge be persuaded that something was probably a cause of the harm the plaintiff suffered. Historically the standard may have been chosen in order to minimise errors in civil jury trials, but it nevertheless serves to accommodate a level of uncertainty in proof. [emphasis added]
The key word in that passage is “probably”.
The defendants submit that the plaintiff has not proved any “detrimental difference” and that the plaintiff’s case is essentially such a “loss of a chance” case. The plaintiff can only demonstrate a bare possibility that there may have been a different outcome if the helicopter had flown higher. The pilot might have chosen a different landing site and the helicopter might not have caught its skid on a snag and flipped. The plaintiff cannot establish that either of these two eventualities would probably have occurred. I agree.
(iii) The expert evidence
The relevant parts of the joint expert report in relation to these issues are as follows.
Question 10: To what extent was the height variable significant in this instance in ensuring the selection of the most suitable landing site?
10.3If the pilot had been flying higher at the time of the engine failure, then he would have had more time to select a suitable landing area depending on the wind and available areas.
10.4It is not known if there were more suitable areas available however the general area is best described as being scrubby and based on observations made by Mr Ogden of the general area several years after the accident, there were few large areas that were suitable for an autorotative landing.
10.5Consequently, although more height would have provided the pilot with more options and time to consider where to land, in our opinion – in this instance – it is not possible to say that the height variable in isolation (ie having more height) would have made a significant difference to the outcome.
Question 11: How suitable was the actual landing site? Are there any factors which suggest the pilot might have selected an alternative landing site?
11.1If the ground had not been soft or a possible obstruction been hidden in the ground, the helicopter would have likely remained upright and not rolled over. The landing site appeared to have been large enough and the area relatively clear of obstructions.
11.2There was no evidence that a more suitable site was available and given that the other helicopter landed some distance from the accident site, this suggests that there were few if any, areas large enough within the immediate vicinity that were suitable for an autorotative landing. The landing area needed for a powered helicopter that can hover is far less than the area needed for a helicopter to land without power.
11.3Given the lack of an immediate in-depth investigation and the paucity of information about the accident site and the surrounding area at the time, it is our opinion that it is not possible to properly evaluate the availability of other alternative landing sites that might have been available to the pilot at the moment of the engine failure. On the balance of probability, however, noting the distance at which the other aircraft landed from the accident site, it is unlikely there was a more suitable landing site within the immediate area.
Question 16: What do you consider the likely outcome to have been if the helicopter had been flying at or above 500 feet above ground level at the time it lost power?
16.1Evaluating a likely outcome based on the height variable tends to ignore the roles played by the other variables. The question is also presuming that the experts are cognisant of the landing options that were available in the area at the time.
16.2Height would have given the pilot more time and more options to select a suitable landing area – if one was available. With an increase in altitude, other locations may have been available to be exploited but we are unaware if such areas existed at the time.
16.3If the landing site that was actually selected was the only one available even with an increase in altitude, the benefit of extra height may have permitted time to manoeuvre the helicopter to position it for a landing that was directly into-wind rather than a slight crosswind, however that ignores that being into the wind may not have been aligned with the landing area’s longest orientation.
16.4Again, the variability of the unknowns is such that in our opinion, while it is not possible to provide a firm indication as to the likely outcome if the helicopter was higher at the time of the engine failure, the potential did exist for the pilot to be offered a greater range of choice.
In summary, the evidence of the experts is that if the helicopter had been flying at 500 feet, the pilot would have had more time to select a landing site and a larger available area of ground from which to choose. However, they did not believe that flying at a greater height would have made a significant difference in the outcome for these reasons.
(a)The landing site chosen appeared to have been large enough and the area relatively clear of obstructions.
(b)They did not think there was a suitable alternative landing site available nearby.
(c)There are too many other variables (for example wind speed and wind direction relative to the orientation of the long axis of the landing site) to enable them to say that a greater height would have affected the outcome.
(iv) Discussion of expert evidence in relation to a zero speed landing profile
Mr Allan, the expert engaged by the plaintiffs, was asked to prepare a further report after the joint report, making different assumptions. One of the assumptions he was asked to make was that there were other landing sites within approximately 500 metres of the area where the helicopter landed. These were said to include:
(a)an area immediately adjacent to where the helicopter crash landed (shown in photos tendered at the trial, in some of which a man in a red shirt was standing);
(b)open and level areas 100 metres wide about 500 metres away;
(c)another area where a red helicopter is shown as having landed (shown in a photograph tendered at the trial); and
(d)“one or two areas within 300 to 500 metres of the crash site”.
Mr Allan produced a further report, commenting on some of the opinions in the joint report on the altered assumptions. His further report placed somewhat more emphasis on the fact that a greater height would have given the pilot more time and more options and quantified the extent of ground available for landing from a height of 500 feet by saying the distance covered in a landing from that height could be between 540 and 720 metres, (as distinct from about 200 to 350 metres at 250 feet)[27] but otherwise did not contradict any of the opinions expressed in the joint report. Moreover, in cross-examination, Mr Allan agreed that the opinions expressed in several key passages of the joint report remained his opinions. (See [98](f) and (g) below.)
Mr Allan’s further report commented upon another matter that was not pleaded as a particular of negligence in the amended statement of claim. He said that a greater height would have given the pilot more time and hence a better opportunity to set up a “zero speed landing profile” – that is to say, to attempt to land the helicopter with no forward speed. He was also asked this question: “As to Question 8 in the Joint Expert Report, please answer the question taking into account the damage sustained to the airframe and landing gear of the helicopter as depicted in the photos in Exhibits P8 and P7”.
The question and opinions in Question 8 of the joint report are as follows.
Question 8: What rate of descent, in this instance, was achieved on landing the helicopter?
8.1The actual rate of descent at landing cannot be achieved without an analysis of the damage sustained to the airframe and more importantly the skid-type landing gear.
8.2It is assessed however that the rate of descent at touchdown was not excessive given that the pilot was uninjured and that the injuries suffered by the other occupant were unlikely to have been caused by the rate of descent at touchdown.
8.3In the opinion of both Mr Allan and Mr Ogden, the rate of descent at touchdown was low enough to rate the accident as survivable.
Mr Allan’s answer to the question asked of him for the purpose of his further report (set out in [90] above) was as follows.
The damage depicted in the photographs suggests that the left hand skid contacted the obstacle during the ground run, and was consequently bent, with cracking in the junction with the forward cross tube. There does not appear to be significant damage to the right hand skid, and in my opinion there is no evidence of an abnormally heavy landing.
The question of whether a zero speed landing would have resulted in a safe landing in the circumstances of this case was the subject of Question 9 in the joint report. The experts did not produce a joint conclusion on that question. They expressed the following opinions jointly:
9.1In achieving a zero speed touchdown, the pilot may have had to commence the initial flare higher to better fully develop the manoeuvre. This may have resulted in the helicopter arriving at the level attitude far higher above the ground and landing heavily.
…[9.2 and 9.3 gave technical details.]
9.4If the pilot had managed to achieve a zero ground speed at a suitably low enough height for the conditions of the day and the weight of the aircraft and had sufficient energy stored in the rotor, a zero speed touchdown may have resulted in a safer landing.
9.5Although as noted the landing may have resulted in less injury if a zero-speed touchdown was achieved, alternatively, in doing so there is also a chance that in attempting to achieve a zero-speed touchdown, the landing impact could have been much higher and therefore the injury could have been worse.
Their separate conclusions were as follows.
9.6Mr Ogden is of the opinion that given the range of variables and their interplay it is not reasonable to make a firm position about whether a zero speed touchdown would have resulted in a safe landing.
9.7Mr Allan is of the opinion that a properly executed zero speed termination could have resulted in a safe landing with the proviso that the landing area was level and reasonably firm. The situation would have been further improved had the landing been completed into wind.
Mr Allan was also asked to revisit the opinions in that question in his further report. The question asked was: “As to Question 9 in the Joint Expert Report, if the helicopter had been flying at 500 feet what is your opinion as to whether a competent pilot would have been able to safely land the helicopter?” Mr Allan’s response was:
Yes. In my opinion a competent pilot would have been able to safely land the helicopter.
Mr Allan did not give any reasons for this change of opinion in his answer to that specific question, but looking at the sequence of questions and answers in the further report, the reasoning is fairly clear. The left skid was bent and the right one wasn’t, therefore the landing was not heavy. The damage was done by the forward motion of the helicopter, therefore a landing without forward motion would have been safer. Flying at 500 feet would have given more time to achieve a zero speed landing, therefore a pilot flying at 500 feet or more would have been able to achieve a safe landing.
This line of reasoning is missing several key steps: the fact that a higher altitude would have allowed the pilot more time to achieve a zero speed profile for landing does not necessarily mean that with greater altitude the pilot would have chosen to land with zero forward speed; and if he did, it does not mean that he would have been successful.
In cross-examination, Mr Allan agreed:
(a)that a successful autorotation does not necessarily involve landing on the ground with no forward speed;
(b)that depending on the circumstances one may land in autorotation with forward speed quite safely;
(c)that the R22 is an unforgiving helicopter with low rotor inertia (which on other evidence makes an autorotation landing at zero speed more problematical);
(d)that there are risks involved in attempting an autorotation with zero speed touchdown (including, on other evidence in the joint report, the risk of a heavier touchdown carrying the risk of injury);
(e)that because of the risks, a pilot really only adopts a zero speed touchdown profile when it is absolutely vital to do so;[28]
(f)that he remained of the opinion (set out in the joint expert report) that the height of the helicopter when the engine failure occurred had no significance to the question of whether the pilot achieved a zero speed profile or not;
(g)that he remained of the opinion (set out in the joint expert report) that the pilot had sufficient height to adopt any termination profile he wanted to, including a zero speed profile;
(h)that the area where the helicopter landed “seemed fine”;
(i)that the thing the helicopter hit which tipped it over could not be identified from the air;
(j)that there was nothing to say that an alternative site which might have been chosen might not have had similar hidden objects;
(k)that he does not know whether the pilot attempted to land with zero speed and failed or whether he decided to land with some forward speed; and
(l)that there was nothing wrong with the pilot’s judgment if he had decided to land at that spot with some forward speed.
From this, it is apparent that the plaintiff has not established that Mr Leslie was flying too low for any reason having to do with the ability to adopt a zero speed landing profile, or that it was in breach of Mr Leslie’s duty to Mr Cook to land at that location with some forward speed. (Although discussed here for the sake of convenience, in the context of an examination of the expert evidence, this is really a question of breach rather than causation. During the trial the plaintiff sought leave to further amend the amended statement of claim to include as a particular of negligence the failure to adopt a zero speed landing profile. Leave was refused. However, the plaintiff nevertheless made submissions along those lines. For the reasons set out above, such a case would not have succeeded.)
(v) The plaintiff’s primary case on causation
The plaintiff’s primary contention in relation to causation is that if the helicopter had been flying at 500 feet or more, the pilot would have had more time and more options in relation to landing areas. In closing submissions, counsel for the plaintiff identified the following as available areas for landing :
(a)the area where the helicopter actually touched down;
(b)the area immediately adjacent to it which appears in photographs taken that day to be larger and more clear of scrub;[29]
(c)an area where Mr Scott’s helicopter landed after the accident about 500 metres from the crashed helicopter;[30]
(d)open areas more than 100 metres in diameter within 300 to 500 metres of the crashed helicopter.[31]
The plaintiff’s case boils down to this: that if the helicopter had been flying higher it might have landed somewhere else and if it had landed somewhere else it would not have struck the hidden object and turned over as it did. (The amended statement of claim pleads that a more suitable site devoid of trees could have been chosen and that a safer landing could have been achieved in that the tail rotor would not have hit a tree, but the evidence points to the cause of the helicopter flipping over having nothing to do with hitting the tree and losing the rotor. The evidence was that it happened when one skid snagged on a hidden object.)
The case for causation put by the plaintiff involves ex post facto reasoning and is not sufficient to establish that flying the helicopter at the height it was flown (assuming that was in breach of duty) caused the injuries to Mr Cook.
The plaintiff has not established that, given the opportunity, a reasonably competent pilot would have chosen an alternative site rather than the one chosen. The joint opinion of the experts is to the contrary:
If the ground had not been soft or a possible obstruction been hidden in the ground, the helicopter would have likely remained upright and not rolled over. The landing site appeared to have been large enough and the area relatively clear of obstructions.[32]
Mr Allan expressed the view that the skid snagged on a hidden object, not soft ground. He agreed that the hidden obstacle could not be identified from the air. There is no evidence that any of the alternative landing sites had soil that was less soft, and lacked hidden obstacles, and that these qualities could be identified from the air so as to make it probable that the alternative site would have been chosen in preference to the one that was chosen.
Moreover there is no evidence that the chosen site looked unsuitable (or less suitable than any of the others) from the air. Mr Allan’s evidence was that it looked all right. Mr Scott gave evidence that when he lost radio contact with Mr Leslie, he flew his helicopter in to look for him. When he found the crash site he saw that the place where Mr Leslie had landed was the best clearing in the area for an emergency landing. Mr Scott said he flew around looking for a place to land and found one about 30 to 50 metres away. He could just land in it (in a powered descent) because he was the only one on board. When he came back with a passenger he landed about 50 to 70 metres away.
Even if the plaintiff had established that another site would likely have been chosen (because, for example, it had less trees), that would not suffice to establish causation, because trees were not the cause of the helicopter tipping and injuring Mr Cook. All that would have established is that there was a bare possibility of a different outcome, in other words, a loss of opportunity for a different outcome. A hidden hazard on the ground might have been present at any landing site.
In summary my findings are:
(1)The third defendant was engaged in aerial stock mustering operations at the time of the accident.
(2)It was therefore not unlawful for the third defendant to be flying at less than 500 feet above ground level at the time the helicopter lost power.
(3)The plaintiff has not proved on the balance of probabilities that the third defendant was in breach of his duty of care to the plaintiff.
(4)Even if the third defendant had been in breach of his duty of care in flying under 500 feet, the plaintiff has not shown that his doing so was a cause of the plaintiff’s injuries.
There will be judgment for the first, second and third defendants in both proceedings.
---------------------------------
[1] Mr Cook described what happened in an affidavit dated 2 October 2015. He swore another affidavit on the same day, responding to matters deposed to in an affidavit of Mr Zebb Leslie. Mr Leslie was not called to give evidence and his affidavit was not tendered. However, for convenience, extracts from Mr Leslie’s affidavit referred to by Mr Cook in his second affidavit were tendered in order to make sense of Mr Cook’s second affidavit. Mr Cook was also cross-examined, by reference to the events as described by Mr Leslie and the contents of a book written by Mr Cook about the accident and its aftermath: Rob Cook with Carl Curtain, When the Dust Settles (ABC Books, 1st ed, 2013). Chapter 10 (‘Free Fall’) from the book was tendered.
[2] Proceeding 12 of 2011
[3] Under the deed of settlement of the Work Health proceeding, the employer’s insurer is to pay Mr Cook a total of $10,500,000; Mr Cook must co-operate with the insurer in the recovery action and the insurer will pay his reasonable expenses in doing so; Mr Cook must appoint a solicitor nominated by Suplejack’s Work Health insurer to conduct the common law proceeding; and the insurer will pay any costs liability incurred by Mr Cook in the common law proceeding after the settlement date. If Mr Cook recovers compensation or damages he must pay the insurer the amount of the damages he receives or an amount calculated by reference to s 54 of the Workers Rehabilitation and Compensation Act (NT), whichever is less.
[4] Proceeding 119 of 2011
[5] The trial was conducted as a trial of the common law proceeding which will, in practice, also determine the recovery proceeding.
[6] Proceeding 12 of 2011, Amended Statement of Claim at [18]
[7] Proceeding 12 of 2011, Amended Statement of Claim at [26]
[8] Regulation 157(4)(b)
[9] Proceeding 12 of 2011, Amended Statement of Claim at [5](c)
[10] Proceeding 12 of 2011, Amended Statement of Claim at [9]
[11] It is important to land into the wind if possible for two reasons. First, it will reduce ground speed. This reduces the length of the required landing area and reduces the impact forces, if the helicopter hits anything during the landing. Second, a headwind will permit a steeper angle of approach in case there are barriers such as trees on the approach to the landing area.
[12] Wyong Shire Council v Shirt (1980) 146 CLR 40 per Mason J at 47-48
[13] [2007] HCA 20; (2007) 232 CLR 486
[14] [2005] HCA 62 at [124]; (2005) 223 CLR 422 at 461
[15] [2007] HCA 20; (2007) 232 CLR 486 at 506
[16] This refers to the evidence that Regulation 157 prohibits flying at a height lower than 500 feet if not engaged in aerial stock mustering operations but that Order 29.10 allows flying below 500 feet when engaged in aerial stock mustering operations.
[17] (1959) 101 CLR 298
[18] Australian Securities and Investments Commission v Fortescue Metals Group Ltd (No 5) (2009) 264 ALR 201 at [102]
[19] Jones v Dunkel per Menzies J at 312; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 per Gleeson CJ and McHugh J at 143
[20] Proceeding 12 of 2011, Amended Statement of Claim at [18]
[21] This is a regulation that shows the altitudes at which aircraft should fly at in order to achieve separation between aircraft on crossing or reciprocal paths.
[22] Proceeding 12 of 2011, Amended Statement of Claim at [27]
[23] (1991) 171 CLR 506 per Mason CJ at 509 (Toohey and Gaudron JJ agreeing), per Deane J at 521-524
[24] (2010) 240 CLR 537 at [66]
[25] at [67] and [68]
[26] at [145]
[27] These figures were taken from a table in the initial report of Mr Ogden.
[28] Later in cross-examination, Mr Allan changed this opinion and said that if the pilot had doubts about the terrain the safest technique is to employ a zero speed landing. It was put to him that he had not said that in any of his reports. He said it was in paragraph 7.3 of the joint report, and then was forced to admit that it was not. Paragraph 7.3 of the joint report reads: “In the context of the last part, [ie the termination phase of the autorotation] the pilot would normally expect to make an early decision as to the kind of termination profile that would be most appropriate. A zero speed profile could be more suitable for a landing on water, for example, or into a very confined area such as a tennis court in an urban environment. In other words, the zero speed profile is one that is adopted when it is vital to touch down with no forward movement.” He later reversed this reversal of opinion.
[29] The evidence of Mr Scott in relation to this is that that area was not in that condition when the accident occurred. It was cleared after the accident by removing fallen debris and cutting down some trees in order to provide a safe landing site for the larger rescue helicopter that came to take Mr Cook to hospital.
[30] Mr Scott’s evidence was that he initially landed about 30 to 50 metres away (by himself) and later about 50 to 70 metres away (with a passenger). This is well within the available “travel distance” for an autorotation at 250 feet. See [89] above.
[31] There was evidence from a police officer, Sgt Chalk, that he saw such open areas as he was walking in to the accident site some time after the accident.
[32] Joint expert report at [11.1]
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