Edwards v Endeavour Energy; Precision Helicopters Pty Limited v Endeavour Energy; Endeavour Energy v Precision Helicopters Pty Limited (No. 1)

Case •

[2012] NSWSC 1659

•

08 May 2012

Supreme Court


New South Wales

Medium Neutral Citation: Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor (No. 1) [2012] NSWSC 1659
Hearing dates:7 May 2012, 8 May 2012
Decision date: 08 May 2012
Jurisdiction:Common Law
Before: Johnson J
Decision:

See paragraphs [26]-[29]

Catchwords: EVIDENCE - claim for damages, indemnity and contribution arising from helicopter accident - joint report of aviation experts - use by experts of ATSB report - ATSB report not admissible in proceedings - need for further report from aviation experts - need for care in communications with experts to obtain further joint report
Legislation Cited: Transport Safety Investigation Act 2003 (Cth)
Practice Note SC GEN 11 "Joint Conferences of Expert Witnesses"
Cases Cited: KF By Her Tutor RF v Sydney Children's Hospital Specialty Network (known as the Children's Hospital Westmead) and Anor [2011] NSWSC 874
Texts Cited: ---
Category:Interlocutory applications
Parties:

In Matter 2008/289264

Plaintiffs:
Julie Patricia Edwards
Connor James Edwards
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards)

Defendants:
Endeavour Energy
Precision Helicopters Pty Limited
Telstra Corporation Limited
Sydney West Local Health Network trading as Westmead Hospital

In Matter 2009/297468

Plaintiff:
Precision Helicopters Pty Limited

Defendants:
Endeavour Energy
Telstra Corporation Limited
Sydney West Local Health Network trading as Westmead Hospital

In Matter 2010/147165

Plaintiff:
Endeavour Energy

Defendants:
Precision Helicopters Pty Limited
Telstra Corporation Limited
Representation:

Counsel:
Mr KW Andrews (Julie Patricia Edwards,
Connor James Edwards,
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards))

Mr RS McIlwaine SC; Mr BAP Kelleher (Endeavour Energy)

Mr RS Ashton; Mr DA Lloyd (Precision Helicopters Pty Limited)

Mr DJ Fagan SC; Mr J Downing (Telstra Corporation Limited)

Mr SA Woods (Sydney West Local Health Network trading as Westmead Hospital)
Solicitors:
WH Parsons & Associates (Julie Patricia Edwards, Connor James Edwards,
Rubyanna Belle Edwards (by her tutor Julie Patricia Edwards))

Moray & Agnew (Endeavour Energy)

Riley Gray-Spencer Lawyers (Precision Helicopters Pty Limited)

HWL Ebsworth (Telstra Corporation Limited)

Gild Insurance Litigation Pty Limited (Sydney West Local Health Network trading as Westmead Hospital)
File Number(s):
Publication restriction:---

Judgment

  1. JOHNSON J: Yesterday, the Court embarked upon the hearing of civil proceedings arising out of a helicopter crash near St Albans on 4 April 2006. It is not necessary, for the purposes of this judgment, to recite the various parties to the litigation or the various causes of action involved in the proceedings.

  1. It is sufficient to observe that two parties to the litigation are Precision Helicopters Pty Limited ("Precision") and Endeavour Energy ("Endeavour").

  1. For the purpose of the litigation, Precision and Endeavour retained separate aviation experts. Precision retained Mr Lachlan Macarthur-Onslow, Endeavour retained Mr Mark Ogden. Each of the experts provided reports concerning the helicopter crash. In preparation for the two experts to give concurrent evidence at the hearing, and in accordance with usual practice, the experts were provided, in April 2012, with a list of agreed documents and a list of assumption of facts to be made by the experts (MFI5).

  1. Thereafter, the experts met in conclave and a joint report dated 23 April 2012 was signed by each of them (Exhibit EE2, page 74).

  1. Two areas of difficulty have been raised by Mr Lloyd, counsel for Precision, concerning the joint report.

  1. Firstly, it is noted that the experts appear to have utilised a report of the Australian Transport Safety Bureau ("ATSB") concerning the helicopter crash, given certain information concerning the altitude and speed of the helicopter referred to in the joint report, with footnote 2 identifying the ATSB report as the source.

  1. I note that paragraphs 26 and 32 of the factual assumptions contained in MFI5 provided the same material, namely, the same information about altitude and speed of the helicopter, which the experts appear to have sourced to the ATSB report.

  1. A number of provisions in the Transport Safety Investigation Act 2003 (Cth) prohibit or confine the admissibility in civil proceedings of material arising from an investigation under that Act. In particular, s.27 provides that a draft report or a final report of the ATSB is not admissible in evidence in any civil or criminal proceedings.

  1. I observe immediately that the parties did not invite the experts to consider the ATSB report and no party is suggesting (nor could they) that the ATSB report ought be admitted into evidence. The difficulty which has arisen is the use of the ATSB report by the experts, with those experts sourcing certain factual matters to that report, despite the fact that the relevant matters were contained in the factual assumptions which had been provided to them.

  1. In my view, there is a relatively simple answer to this difficulty. The assumed facts contained in the document which the experts were provided is a sufficient source for these matters. I note, in any event, that the pilot of the helicopter, Mr David Carter, is to be called as a witness by Precision. Thus, Precision and Endeavour may invite the experts to rely upon the assumed facts with respect to altitude and speed and those assumed facts alone.

  1. If it has not already been done (and I rather infer from the fact that the experts have referred to the ATSB report that it has not), it would be, to say the least, prudent for the experts to be informed directly that they should not take into account in their deliberations any part of the ATSB report to avoid a recurrence of the difficulty which has been identified.

  1. The second issue raised by Mr Lloyd concerns a further resource apparently utilised by the experts, without the parties having invited them to use the document. At page 4 of the joint report of 23 April 2012, the authors refer to the "no-go zone of the NENS standard", described in footnote 3 as "ENA NENS 08-2006".

  1. Mr McIlwaine SC, for Endeavour, has indicated to the Court that the 2006 standard did not come into force until 21 June 2006 (T35). At the same time, it has been indicated that the 2006 standard is effectively identical to the 2004 standard which is otherwise referred to in the evidence. That is a document entitled "National Guidelines for Aerial Surveillance of Overhead Electricity Networks", ESAA NENS 08-2004 (Exhibit EE2, page 285).

  1. Mr Lloyd accepts that the 2004 guideline is the relevant document. So much is clear from Precision's response in answer to interrogatories, which identify the 2004 guideline as being applicable to its operations at the time of the helicopter crash (Exhibit EE2, pages 148-149).

  1. Accordingly, if the concurrent evidence of the aviation experts is to proceed in an effective manner, it seems clear that the experts should be asked to consider the relevance or otherwise of the 2004 guidelines.

  1. Other matters have also been raised in a letter dated 2 May 2012 from the solicitors for Precision to the solicitors for Endeavour (MFI3). The solicitors for Precision suggested that the experts be provided with a further document, "Guide to the Aerial Inspection and Patrol of Overhead Power Lines", Electricity Association of NSW, 10 November 2001 (MFI4).

  1. In addition, Mr Lloyd submitted that the experts should be provided with information, by way of factual assumption, in the form of certain clauses which form part of the relevant contract between Precision and Endeavour which deal with crew, risk assessment and route and hazard marking (Exhibit EE2, pages 428-430).

  1. A further issue which was raised concerns a report of Mr Ogden dated 20 April 2012. This report was apparently prepared before the conclave, but was served only after the conclave. Accordingly, leave would be required for it to be deployed at the trial.

  1. Mr McIlwaine SC has contended that the 2001 document (MFI4) and the extract from the contractual documentation (Exhibit EE2, pages 428-430) ought not be provided to the experts. With respect to the contractual material, it is said that the requirements of the contract are matters for the Court and not the experts to consider.

  1. I do not think that the division of responsibility between the experts and the Court is that clear cut in this case. The experts have been asked to consider, and will be asked to consider, a range of documents which appear to involve practical steps surrounding the use of helicopters for inspection of overhead power lines. If there are issues concerning the construction of the contract, clearly they will fall to me to determine in due course. However, practical documents of this type may appropriately be placed before the aviation experts for their opinions on operational issues. In the end, if there is controversy in these areas, I will determine the status of the evidence that is given on these matters.

  1. I am satisfied that it is appropriate that this material be provided to the experts.

  1. All of this leads to this position. The current joint expert report has some difficulties surrounding it. Some additional documents need to be provided to the experts for the purpose of obtaining a further joint expert report from them.

  1. There is need for care in this process being undertaken at the present time. Paragraph 27 of Practice Note SC GEN 11 "Joint Conferences of Expert Witnesses" makes clear that, prior to signing a joint report, there are limits upon contact that can take place between the relevant participating experts and the legal representatives for the parties.

  1. Where a point has been reached where the experts will be invited to look again at certain matters and to look at some additional matters, for the purpose of providing a further joint report, there is the need for care in settling the appropriate document which forms the communication from the legal representatives for the parties to the experts.

  1. Considerations of this type were considered, in a different context, in my judgment in KF By Her Tutor RF v Sydney Children's Hospital Specialty Network (known as the Children's Hospital Westmead) and Anor [2011] NSWSC 874 at [7] and following. Indeed, Mr McIlwaine SC submitted that, for reasons disclosed in that judgment, it would not be appropriate for there to be any further contact with the experts in the manner which has been foreshadowed.

  1. I do not accept that submission. It seems to me that the effective preparation of a joint expert report which will be deployed at the hearing, in the context of concurrent evidence, involves the experts having placed before them for proper consideration a range of documents going beyond what they have seen so far, and removing from consideration things which they may have considered so far which are impermissible. The result of this will be a joint expert report which constitutes an appropriate foundation for their evidence when the time comes.

  1. I do not, at this stage, propose to effectively settle the terms of a letter which ought be directed to the two experts, setting out additional documents to be provided and the further issues which they are asked to consider. I do not think that the content of the letter from the solicitors for Precision dated 2 May 2012 (MFI3) or Mr McIlwaine SC's current proposal (MFI7) constitutes an appropriate draft.

  1. The next step will be for the legal representatives for the relevant parties to prepare a draft letter, which identifies the further documents which ought be provided to the experts, being the 2001 guidelines (MFI4), the 2004 guidelines (Exhibit EE2, pages 285-305), the extract from the contract (Exhibit EE2, pages 428-430) and Mr Ogden's further report of 20 April 2012, which should be formally placed before the conclave for consideration.

  1. A draft letter of that type ought be prepared as soon as possible, and provided to me tomorrow morning for consideration and approval. I emphasise that the role of the Court in approving communication is essentially because of the sensitivity raised by the point that has been reached in the joint expert conference process (in light of the Practice Note).

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Decision last updated: 18 February 2014

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