Endeavour Energy v Precision Helicopters Pty Ltd

Court of Appeal
Supreme Court

New South Wales

Case Name:	Endeavour Energy v Precision Helicopters Pty Ltd
Medium Neutral Citation:	[2015] NSWCA 169
Hearing Date(s):	8, 9 and 10 December 2014
Decision Date:	22 June 2015
Before:	Basten JA at [1]; Macfarlan JA at [171]; Sackville AJA at [174]
Decision:	The Court directs that, absent agreement reached within 3 weeks of the delivery of these reasons, as to (i) apportionment, (ii) calculation of amounts payable and (iii) costs, the parties are to file and serve: (a)within 4 weeks, their respective submissions dealing with such of the issues identified above as remain unresolved, such submissions not to exceed seven pages; and (b)within a further 2 weeks, any submission, not to exceed four pages, in reply.
Catchwords:	AVIATION – carriage by air – carrier’s liability – limitation under Civil Aviation (Carriers’ Liability) Act 1959 (Cth), s 31 – electricity supply company contracted for supply of helicopter and pilot to undertake aerial inspection power lines – whether carriage under Civil Aviation (Carriers’ Liability) Act 1967 (NSW) – whether employee of electricity supply company on board helicopter was a “passenger” – whether employee’s role to provide information to pilot about route and hazards made him a crew member – Fellowes (or Herd) v Clyde Helicopters Ltd [1997] AC 534 applied CONTRACT – breach of contract – carrier provided low flying helicopter and pilot to electricity supply company for aerial inspection of power lines – electricity supply company responsible for marking route plan with hazards and briefing pilot and crew – helicopter struck unmarked telecommunication wire – helicopter damaged and employee of electricity supply company catastrophically injured – whether pilot’s performance complied with contractual obligation of reasonable care and applicable laws and standards – whether electricity supply company under duty to mark all hazards – whether electricity supply company should have made relevant inquiries of telecommunication company – whether electricity supply company protected by contractual indemnity where contract provided for apportionment of liability for carrier’s losses resulting wholly or partly from electricity supply company’s actions – interpretation of indemnity clauses NEGLIGENCE – duty of care – aviation accident – carrier provided low flying helicopter and pilot to electricity supply company for aerial inspection of power lines – helicopter struck telecommunication catenary wire – electricity supply company employee suffered catastrophic head injuries – no helmet worn – if helmet worn injuries would have been significantly avoided – whether carrier under general law duty to require wearing of helmets where no enforceable statutory and regulatory requirements – whether employer under duty to require employees to wear helmets NEGLIGENCE – duty of care – aviation accident – during aerial inspection of power lines low flying helicopter struck telecommunication catenary wire – longstanding practice of aerial inspections and public information campaigns but no direct communication with telecommunication company – whether telecommunication company ought reasonably to have known of aerial inspections – breach of duty – whether telecommunication company should have taken steps to avoid risk posed by wire where…