Hevilift Limited v Towers
[2018] QCA 89
•11 May 2018
SUPREME COURT OF QUEENSLAND
CITATION:
Hevilift Limited v Towers [2018] QCA 89
PARTIES:
HEVILIFT LIMITED
(appellant)
v
BRUCE TOWERS
(respondent)FILE NO/S:
Appeal No 13091 of 2016
SC No 180 of 2009DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Cairns – [2016] QSC 267DELIVERED ON:
11 May 2018
DELIVERED AT:
Brisbane
HEARING DATE:
19 June 2017
JUDGES:
Fraser and Philippides JJA and Flanagan J
ORDER:
The appeal should be dismissed with costs.
CATCHWORDS:
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the respondent was a helicopter pilot employed by the appellant – where the respondent was piloting a helicopter that crashed killing three of its six passengers and seriously injuring the respondent – where the primary judge accepted the respondent’s case that the respondent encountered a phenomenon where his helicopter was enveloped by thick cloud that appeared to develop instantaneously – where the primary judge found the appellant liable in damages to the respondent for breaching three of the appellant’s duties of care – where the appellant disputed the trial judge’s acceptance of a meteorologist’s evidence that cloud in that region can form at an out of the ordinary speed even compared to other mountainous regions of the world – whether the primary judge erred in coming to that finding – whether there was evidence that the respondent was aware of this phenomenon – whether the primary judge erred in finding the appellant breached their duties of care
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the primary judge found the appellant owed the respondent four relevant duties of care – where the primary judge held that the appellant had breached these four duties but causation was only established in relation to three of these duties of care – where the appellant alleges to have been denied procedural fairness because the duties of care found by the primary judge were not pleaded by the respondent at trial – where the primary judge had raised at trial the reliance on an “arguably unpleaded breach” – where the respondent did not identify any pleading or statement during trial alluding to the third duty of care found by the primary judge – whether the appellant was denied procedural fairness in relation to the primary judge’s finding of the duties of care owed to the respondent
TORTS – MISCELLANEOUS TORTS – INTERFERENCE WITH CONTRACTUAL AND OTHER RELATIONS – CONTRACTS OF EMPLOYMENT – where the pleadings alleged a duty of care owed in negligence and contract – where the contract of employment included a term requiring the respondent to comply with all applicable law – where it was accepted that “all applicable law” included the Civil Aviation Rules – where the appellant alleged the duties of care found by the primary judge were incoherent with the contract and those statutory obligations – whether the duties of care found were incoherent or inconsistent with the contract and the respondent’s statutory obligations
TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – PARTICULAR CASES – OTHER CASES – where the primary judge held that the respondent was not guilty of contributory negligence – where the primary judge found the appellant liable both for breach of the tortious duties of care and for breach of the same duties under an implied contractual term – where the appellant contended that the implied term is inconsistent with the expressly incorporated statutory obligations – where the contract contained an entire agreement clause – whether the primary judge erred in failing to find the respondent guilty of contributory negligence
EMPLOYMENT LAW – CONTRACT OF SERVICE – TERMS OF CONTRACT – IMPLIED TERMS – where the appellant claimed a set-off – where the respondent failed at trial to establish that the respondent had breached the employment contract – where the appellant argued there was an implied term that the respondent was required to indemnify his employer for the respondent’s failure to exercise reasonable care – where the set-off in oral argument was contended to mean damages in the amount of the appellant’s liability to the respondent – whether the appellant was entitled to a set-off
Papua New Guinea Civil Aviation Rules (PNG)
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied
Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; [2005] HCA 15, cited
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11, appliedCOUNSEL:
G F Crow QC, with J C Trevino, for the appellant
B W Walker SC, with G R Mullins, for the respondentSOLICITORS:
Miller Harris Lawyers for the appellant
Slater and Gordon for the respondent
FRASER JA: The appellant provided air transport for workers in a mining project in the Southern Highlands province of Papua New Guinea. The respondent was employed by the appellant as a helicopter pilot. His role included ferrying workers between various workplaces and camps. On 20 April 2006 the respondent was flying a helicopter that crashed on its approach to one of the camps, Camp 57, killing three of its six passengers and seriously injuring the respondent. After a trial on liability issues the trial judge held that the appellant was liable to the respondent for damages to be assessed, without the set-off for which the appellant had contended. The appellant has appealed from that decision.
Background
Some of the appellant’s helicopters were equipped with the instruments necessary to enable flight pursuant to instrument flight rules (“IFR”) under Papua New Guinea’s Civil Aviation Rules. The appellant was flying a helicopter that was not so equipped. It was certified only for visual flight rules (“VFR”). The effect of Rule 91.301 of the Civil Aviation Rules in this case was that the pilot-in-command was obliged not to operate the aircraft at “a distance from clouds that is less than that prescribed”; the relevant prescription was “clear of cloud and in sight of the surface.”[1] The pilot-in-command was also obliged not to take off, land, or fly “in the vicinity of an aerodrome, under VFR when the flight visibility, or the cloud ceiling is less than” that prescribed; this prescription was a ceiling of 600 feet and visibility of five kilometres.[2]
[1]Rule 91.301(a)(2), Table 4.
[2]Rule 91.301(b)(2), Table 6 (which applies in “uncontrolled airspace”, such as at Camp 57).
An aviation co-ordinator employed by Oil Search Ltd, Moyle, worked at a makeshift control tower at Camp 810. It was part of his role to designate the jobs the respondent was required to perform. On the morning of 20 April 2006 the respondent was required to transport workers from Camp 57 to various work sites. Camp 57 was about 4,500 to 4,850 feet above sea level. Camp 810 was on the same ridge. There was a chain of work sites lower down, named Alpha, Bravo, etc. down to Foxtrot at about 2,500 feet above sea level. At about 4.30 pm, Moyle despatched the respondent to ferry workers from the Foxtrot helicopter pad back up to Camp 57. That flight usually took between five and seven minutes. The trial judge accepted the respondent’s evidence that during the first two transfers the weather conditions at Camp 57 were clear, but during the second run there was “a little bit of wispiness” two or three kilometres away.[3] The trial judge rejected the appellant’s contention, which was based upon evidence by Oil Search’s general manager for exploration, Schofield, that upon the approach to the helipad at Camp 57 during the second trip the respondent flew through thick cloud and lost all visual senses for one to two seconds before landing without incident.[4]
[3]Reasons [25].
[4]Reasons [154]-[161].
Moyle gave the following evidence about radio transmissions occurring in the lead up to the respondent’s third flight to Camp 57: Moyle received a radio call from Camp 57 informing him that the helipad was “closed due to fog”; Moyle radioed the respondent’s helicopter to advise him not to go around Camp 57; and Moyle said that Camp 57 had been reported as being “fogged in”, the respondent should come back around to Camp 810, and Moyle could then run the workers around in a vehicle. The respondent replied that he would have a look and get back to Moyle and get some fuel. The trial judge accepted that that Moyle did radio the respondent’s helicopter but rejected some of Moyle’s evidence about what he said during the call.[5] In particular the respondent was not told that Camp 57 helipad was closed. The trial judge found that the radio transmission occurred in the terms outlined in a statement Moyle signed a few days after the crash. Moyle stated that he told the respondent that “Les from 5-7 called me to say he had fog now, and that it is clear at 8-10 and if need be I will ferry them to 5-7 in a vehicle.”[6] The respondent replied, “no worries I will have a look, and on my next run I will get some fuel from you.” (This occurred at 4.58 pm.) The trial judge considered that the fact that Moyle did not respond suggested that he did not disagree with the respondent’s perception that it was safe for the respondent to go and look at Camp 57. According to Moyle’s statement, one minute after that reply Moyle was asked by someone in the area whether he had a helicopter down and a minute later Schofield told Moyle they had heard a loud noise.
[5]Reasons [163]-[174].
[6]Reasons [166]-[167].
The respondent gave evidence that, “[i]f somebody says there’s cloud there, you might be able to go out there and on the day it’s as clear as a bell but 10 minutes later…it’s fogged-in…you’ve got to…work, you’ve got to be out there and if you can’t get in, you turn around and go back out.” The trial judge found that evidence given by the respondent that he did not hear Moyle’s transmission and if he had heard the transmission he would have gone straight to Camp 810 was unreliable.[7] The latter part of the evidence was at odds with the respondent’s evidence that it would have been standard procedure for him to respond to the message described in Moyle’s statement by saying that he would “have a look”. The respondent flew to Camp 57 knowing that there was fog there and intending to see for himself whether there was a clear flight path into the helipad or whether such fog as was there precluded such a path; upon expert evidence given by one of the appellant’s witnesses, Connolly, that course was uncontroversial. Moyle himself gave evidence that after advising that there was fog it was a matter for the pilot’s discretion how to proceed; he agreed that the weather could change so fast that it could be fogged in at Camp 57 when the respondent was flying past him at Camp 810 and yet be clear by the time the respondent arrived at Camp 57.
[7]Reasons [176].
When the helicopter crashed at Camp 57 it was in thick fog that prevented the respondent from seeing the ground. (Fog is a form of cloud.) A critical factual issue at the trial was whether, as the appellant alleged, the respondent deliberately flew into that fog or whether, as the respondent alleged, the fog suddenly and unexpectedly enveloped the helicopter. The trial judge resolved that issue in the respondent’s favour.
The trial judge observed that it is “a matter of ordinary human knowledge and experience that the incidence and speed of cloud formation is generally higher in mountainous than flat terrain.”[8] The trial judge found, however, that in the late afternoon in the Southern Highlands of Papua New Guinea where the crash occurred, cloud could form in clear air at a speed which is out of the ordinary compared to almost anywhere else in the world.[9] The respondent had inadvertently encountered this meteorological phenomenon:
“…As Mr Towers approached Camp 57, there were areas of both clear air and cloud in the vicinity. Such cloud as there was appeared slow moving. Mr Towers adjusted his short path of final approach to comfortably avoid cloud in the vicinity so that he had, what in his ordinary experience he reasonably assessed would be, a sufficiently wide and safe path of clear flight in to the helipad. However, the phenomenon at that time and place of cloud forming at an out of the ordinary speed within the clear air in that flight path then manifested itself. As he proceeded, ever lower, along the apparently clear and sufficiently wide flight path, cloud formed extremely rapidly within it, enveloping the helicopter suddenly. The helicopter was not flown into a visible, pre-existing cloud. Rather, cloud formed with out of the ordinary speed in the air through which the helicopter was flying, surrounding the helicopter, as if instantaneously.”[10]
[8]Reasons [88].
[9]Reasons [74]-[101], particularly at [100].
[10]Reasons [193].
After the helicopter was enveloped by the fog, the respondent attempted to fly by visual reference to the treetops for guidance, keeping the helicopter under control and level, and attempting to go as slowly as possible. Within about 30 seconds the helicopter struck a tree and crashed.
The trial judge held that the appellant owed the respondent duties of care:
(a)“to investigate and ascertain the risks posed to its pilots by local weather conditions and patterns and to have safe work systems which managed those risks”;[11] and
(b)to warn the respondent of the phenomenon of fast formation of cloud at the time of day and locale in question at an out of the ordinary speed and the consequential risk of inadvertent IMC;[12] and
either:
(c)to monitor weather in the region of Camp 57 and prohibit flight in to it by the appellant’s pilots and divert them to a safe area when prescribed conditions, such as fog or a prescribed humidity level, were forecast or present in the vicinity in the late afternoon, particularly where the aircraft being operated lacked instruments to assist its pilots to escape inadvertent IMC;[13] or
(d)in the alternative to (c), to equip its helicopters with instruments which would reveal the helicopter’s orientation (an attitude indicator, turn and slip indicator, and turn coordinator) and train the respondent in the use of such instruments in an emergency, such as to give the respondent a chance of escaping the otherwise likely fatal consequences of inadvertent IMC.[14]
[11]Reasons [104].
[12]Reasons [104]. “IMC” refers to “instrument meteorological conditions”, being conditions to which IFR apply. “Inadvertent IMC” comprehends a case in which a pilot inadvertently finds himself or herself within a cloud that precludes visual reference to the terrain.
[13]Reasons [105].
[14]Reasons [151]. The trial judge was not prepared to conclude that both (c) and (d) were required by way of additional response to the heightened risk of inadvertent IMC, but considered that at least one of them should have been provided: Reasons [152]-[153].
In relation to the duties in (a) and (b), the trial judge found that there was no evidence that the appellant investigated risks posed to its pilots by local weather conditions or of any systemic approach to managing the meteorological phenomenon.[15] The trial judge analysed the evidence about the appellant’s training and equipping of the respondent and found that: the respondent did not know of the meteorological phenomenon; the appellant either knew, or should have known of it; if acting with reasonable care for pilots and passengers the appellant should have warned the respondent about it; and the appellant breached its duty of care in not so warning him.[16] The trial judge found that if the respondent had been warned of the risk, upon learning from Moyle’s transmission of the presence of fog in the area, he would have concluded that there was an unacceptably high risk of the remaining clear air space clouding in so quickly as to preclude safe flight in the area. He would not have elected to continue towards Camp 57 to “have a look”. Instead he would have altered course and proceeded to Camp 810.
[15]Reasons [104].
[16]Reasons [108]-[126].
In relation to the duty in (c), the trial judge found that there was no system of such monitoring, flight prohibition, and diversion. The radio transmission between Moyle and the respondent shortly before the crash demonstrated the ease with which the appellant could have had such a monitoring and flight prohibition and diversion system. If there were such a system it likely would have resulted in a specific instruction at or before the time of Moyle’s transmission, prohibiting the respondent from proceeding to Camp 57 and diverting him. The trial judge found that the respondent would likely have complied with such an instruction, with the result that the crash would not have occurred.[17]
[17]Reasons [106], [194]-[195].
In relation to the duty in (d), the trial judge found that, given the appellant’s failure to provide a flight prohibition and diversion system, the appellant breached its duty of care by not equipping the helicopter with an attitude indicator, turn and slip indicator and turn coordinator, and training the respondent to use such instruments in an emergency. The trial judge analysed the evidence about the respondent’s qualifications and ability in IFR flight and was not persuaded that the respondent would have avoided crashing the helicopter after his helicopter was enveloped in fog, even if the helicopter had been equipped with the instruments and the respondent had been trained in their use.[18]
[18]Reasons [196]-[206].
Accordingly, the respondent established that the appellant was liable for damages to be assessed for breach of each of the duties in (a), (b) and (c), but not (d). The trial judge summarised the result in the general observation that the failure to warn the respondent of the risk of very rapid cloud formation occurring in the vicinity of Camp 57 in the late afternoon caused the crash and the respondent’s injury.[19]
[19]Reasons [195].
Grounds of appeal
I will first discuss various grounds of appeal which challenge the trial judge’s findings of fact about the circumstances in which the helicopter crashed and the cause of the crash.
Ground (i)The Primary Judge erred in accepting the evidence of meteorologist Russel Morison (who had never been to PNG) as to the speed of formation of cloud in the Southern Highlands of PNG, over the evidence of pilots experienced in flying in PNG brought both in the plaintiff’s case (Mr Timothy Joyce) and the first defendant’s case (Mr Peter Crook, Mr Kym Moyle, Mr Shane Schofield, Mr Allan Dodds).
Ground (i) challenges only the trial judge’s acceptance of Morison’s evidence. The only other challenge to the existence of the phenomenon of extraordinarily fast cloud formation is in ground (l), which relevantly comprehends only a contention that the respondent’s evidence of encountering the phenomenon should be rejected.
The trial judge accepted the respondent’s evidence that upon the final approach to the helipad at Camp 57 he encountered that phenomenon: his helicopter was enveloped by thick cloud that appeared to him to develop instantaneously.[20] The respondent had never before encountered that phenomenon. The trial judge also accepted evidence given by other witnesses which supported the respondent’s evidence of the phenomenon. The trial judge analysed the evidence as follows:
(a)Morison, a meteorologist, opined that: “[i]n the steep topography of the Southern Highlands of Papua New Guinea, in the late afternoon when the temperature is dropping, the relative humidity is approaching 100 per cent and air is moving vertically up or down the steep topography, it is very easy for cloud water droplets to suddenly form, and hence have a rapid onset of cloud…”.[21] Morison explained that “rapid” meant “tens of seconds”, the onset of dense clouds could occur “very quickly”, and cloud formation “can almost appear instantaneous”. The trial judge referred to Morison’s acknowledgement that in a still environment when temperature change is slow it ordinarily takes minutes for dense cloud to form as temperature cools, but “the point well explained by his evidence is that perturbation by vertical air movement caused in steep topography in the late afternoon as temperature drops in a region of already very high specific humidity may result in the very quick formation of dense cloud”;[22] “[t]he fast speed with which cloud may form in this way in the Southern Highlands of Papua New Guinea is out of the ordinary compared to almost anywhere else in the world by reason of the unique influence of the two rainfall convergence zones in this region of steep topography.”[23]
(b)Joyce, a pilot and aviation company manager with experience in piloting helicopters in mountainous regions of Papua New Guinea in the 1980s and 1990s gave evidence that this region of Papua New Guinea was prone to very quick cloud formation. “[H]e had been close to being caught out on a number of occasions when ‘white out’ occurred ‘very, very quickly’”; “…often no more than a minute”.[24] Joyce said that sometimes, especially in a breeze, cloud would form up a slope “almost immediately”: “…you might be flying towards a gap and the gap’s closed, and you’ll keep going and suddenly it will be open and you’ll have…a window to get through. And sometimes you can see it’s clear, and by the time you get there it’s closed in.”[25] Joyce had not experienced such rapid formation of white-out anywhere else. He referred to two or three occasions when he found himself in cloud without having intended to fly into it, an experience known in the aviation industry as “inadvertent IMC”. Joyce observed the phenomenon particularly occurred over rainforest jungle areas at altitude.
(c)Moyle had stayed at Camp 57 for some time in 2005 and for a couple of months before the crash. In cross-examination he agreed that he had noticed that the cloud could descend really quite quickly in that area. Camp 57 can be clear when the helicopter pilot is flying down but be fogged in by the time the pilot gets there within 60 seconds.[26]
(d)Schofield lived at Camp 57 for six or seven months and was there at the time of the crash. The trial judge referred to his evidence that on the hill where Camp 57 was located, the weather changes from clear to foggy “very very quickly”.[27]
[20]Reasons [193].
[21]Reasons [80].
[22]Reasons [81].
[23]Reasons [82].
[24]Reasons [91].
[25]Reasons [91].
[26]Reasons [97].
[27]Reasons [98]-[99].
The trial judge referred to the evidence of two other witnesses which suggested that the phenomenon did not exist in the Southern Highlands or at all:
(a)Dodds was a very experienced pilot, trainer and examiner for commercial licences. He had provided some training to the respondent. He had flown in the vicinity of Camp 57 and had never unintentionally entered or been enveloped by cloud. Dodds agreed in cross-examination that he was familiar with inadvertent IMC, but he also gave evidence that “you can’t inadvertently go IMC”: “I can’t understand how you can inadvertently go IMC. You’re looking out the window, you can see the cloud, why would you want to fly into it?”[28] He gave that evidence notwithstanding that for six years the appellant’s multi-engine crews had undergone training for exiting from inadvertent IMC. The trial judge considered that Dodds’ reluctance to see the obvious detracted from his creditability.
(b)A very experienced pilot, Crook, who gave expert evidence, agreed in cross-examination that the concept of inadvertent IMC had been around for longer than 20 years. He agreed that in the relevant area in Papua New Guinea cloud can form very rapidly. He volunteered that there were places in Australia where clouds can form just as quickly. When it was suggested to him that the subject area had a particular atmospheric circumstance that gave rise to rapidly forming cloud he volunteered that it was not different to any other part of Papua New Guinea. When the trial judge asked whether the atmospheric circumstances gave rise to rapidly forming cloud, Crook volunteered that he did not think that it formed more rapidly than in other places of Papua New Guinea or Australia. When asked in cross-examination whether he disagreed with the proposition that this area did not particularly have rapid forming cloud and he was saying it was across all of Papua New Guinea, Crook responded that it was across a lot of Papua New Guinea. The trial judge considered Crook was determined not to concede that Papua New Guinea was unique in the speed with which cloud formed. He gave non responsive answers about cloud forming just as quickly in Australia. The trial judge also referred to Crook’s concession that new pilots to Papua New Guinea should be told that cloud can form rapidly there.[29]
[28]T5-50, L30-35; Reasons [95].
[29]Reasons [96].
The trial judge concluded that some of the evidence supported, and none occasioned doubt about, Morison’s expert evidence to the effect that “the speed with which cloud may form in the late afternoon, in the region in which Mr Towers flew, is out of the ordinary compared to what pilots would ordinarily experience flying in the mountainous terrain of other countries in the world.”[30] This phenomenon foreseeably heightened the risk of inadvertent IMC.
[30]Reasons [100].
The main theses of the appellant’s argument about the phenomenon are reflected in four general propositions. Three of those propositions are: (1) the finding that the relevant locale was unusually dangerous because it was susceptible to the rapid formation of cloud was contrary to the uniform and compelling evidence of every witness called in the case; (2) the existence of the phenomenon is inconsistent with the evidence given by the most experienced pilot called to give evidence, Crook, that flying in Papua New Guinea was not necessarily different to other parts of the world; and (3) Crook’s evidence was unchallenged, uncontroversial, and compelling evidence.
That the first and third propositions are incorrect is sufficiently demonstrated by so much of the trial judge’s analysis as is summarised in [16] and [17](b) of these reasons. As to the second proposition, the trial judge did not accept so much of Crook’s evidence as conflicted with the evidence of the phenomenon given by the respondent, Morison, Joyce and Moyle. The respondent and Joyce were also very experienced pilots.
Joyce’s evidence in particular supported the existence of the phenomenon which the respondent said he encountered. Joyce had previously both flown helicopters in the region and trained newly employed pilots when he worked for the appellant. He gave evidence that he piloted helicopters in mountainous regions of Papua New Guinea in the 1980s, between 1990 and 1992 he worked for the appellant, between about 1994 and about 1997 he was chief pilot for the appellant[31] in its Australian operations, and in the latter period he did further flying in Papua New Guinea, including in the Southern Highlands. As already mentioned, Joyce gave evidence that he had not experienced such rapidity of formation of white-out anywhere else and there were two or three occasions when he found himself inadvertently in cloud without having intended to fly in it. Tellingly, he also gave the following evidence:
(a)He had inadvertent entry into IMC, possibly on more than two or three occasions, but two or three occasions were very concerning. Two occurred during the period from about 1984 to 1987 and the third occasion was probably when he was employed by the appellant.
(b)He felt that he was handling the challenge better by the second era when he flew in Papua New Guinea. “I came to realise that if you see the cloud starting to form in the top of the trees, you know the dew point and the temperature were almost matched, and the situation was right for the whole area to become basically a white out or turned to fog which, of course, is low cloud.”[32]
(c)Joyce referred to not having experienced almost instantaneous white-out outside Papua New Guinea and said that in the course of training the appellant’s pilots employed in Papua New Guinea, he instructed them that cloud “can close in very, very quickly”.[33]
[31]Joyce described his employer as Hevilift (PNG) Pty Ltd. The trial judge found, with reference to evidence given by Dodds that in the two periods in the 1990s despite changes in the company name there had been continuity from Hevilift (PNG) Pty Ltd through to it operating as the appellant: Reasons [128].
[32]Reasons [93].
[33]T3-37 - T3-40; Reasons [91].
Moyle’s answer in cross-examination mentioned in [16](c) of these reasons also supports the trial judge’s finding, particularly when it is it contrasted with evidence given by Morison that cloud formation in mountainous terrain generally occupies a number of minutes.
The fourth general proposition advanced by the appellant is that upon a proper reading of Morison’s evidence it does not support the existence of the phenomenon described by the respondent. Consistently with the terms of ground (i), this was a focus of the appellant’s argument upon the issue concerning the existence of the phenomenon. Morison gave only expert evidence of a theoretical basis for the existence and uniqueness of the phenomenon in the Southern Highlands. Rejection of that evidence would not necessarily imply that the phenomenon did not exist or was not unique to the region. It is not necessary to explore that topic further, because I do not accept that the trial judge erred by accepting Morison’s evidence as support for the existence of the phenomenon.
The appellant argued that it is impossible to decide what is an “out of the ordinary” speed of cloud formation in a particular mountainous area, given that it is well known that clouds often form more quickly in mountainous terrain than in other areas. But the trial judge used the expression “out of the ordinary speed” to convey that in certain conditions cloud may form in the Southern Highlands of Papua New Guinea very much more quickly than it may occur in mountainous terrain almost anywhere elsewhere in the world. That clearly was supported by evidence. Morison opined that the much greater speed of cloud formation in the Southern Highlands of Papua New Guinea in certain conditions is attributable to a combination of matters which include the unique influence of two rainfall convergence zones. That opinion is consistent with the evidence of Joyce, a pilot with very extensive experience and knowledge of the conditions in the Southern Highlands and elsewhere, that he had experienced the phenomenon only in the Southern Highlands and did not believe it occurred anywhere else in the world.
The appellant submitted that Morison’s evidence was instead to the effect that the phenomenon occurred in the whole of Papua New Guinea but that the import of the trial judge’s reasons was that the phenomenon was unique to Camp 57. That submission does not accurately reflect Morison’s evidence or the trial judge’s reasons. The evidence of Moyle and Schofield summarised by the trial judge was specifically concerned with Camp 57 but the trial judge found that the phenomenon occurred in the Southern Highlands of Papua New Guinea and observed that the area within those highlands that was relevant in the present case was the region where Camp 57 was located.[34] Morison did refer to Papua New Guinea being unique, but that was referable to its location in a zone into which moisture flows from two rainfall convergence zones, producing extraordinarily wet conditions in the Southern Highlands.[35]
[34]Reasons [89].
[35]T 3-78.
The appellant pointed out that Morison referred to “steep topography going up to 4000 metres” whereas the crash site was at about 1,372 metres. But Morison did not suggest that the phenomenon could not occur at such an altitude. Morison was not given the exact location of the site of the crash. His report refers both to topographical information showing very steep gradients and peaks and ridges in the region of about 2,000 to 3,000 metres above sea level, and to temperature, rainfall and humidity data from three airports in the region at elevations of 966 metres, 835 metres, and 1,673 metres. Morison expressed his conclusion in general terms: the phenomenon occurred in “the steep topography of the southern highlands of Papua New Guinea.”[36] The evidence to which the Court was referred demonstrated that there was very steep topography adjacent to the flat area of Camp 57.
[36]Mr Morison’s Report dated 22 December 2014 at [24].
The appellant argued that Morison’s evidence that cloud sometimes might appear to form instantaneously concerned only cloud of a kind that differed from the cloud the respondent encountered at Camp 57. Morison referred to three kinds of cloud: “helicopter perturbation cloud” (cloud generated in certain conditions by the rotation of helicopter rotor blades), “orographic cloud” (also called topographic or ridge cloud), and “general mountain cloud”. There was no challenge to Morison’s theoretical reasoning about helicopter perturbation cloud but the trial judge found that on the whole of the evidence it was more likely that the cloud in which the helicopter was enveloped resulted from natural, rather than man-made, perturbation.[37] It is not necessary to consider that topic further.
[37]Reasons [87].
The appellant argued that the cloud that enveloped the respondent’s helicopter was general mountain cloud rather than orographic cloud. The appellant endorsed the trial judge’s summary of Morison’s evidence that, although orographic cloud appears as stationary cloud pocketed against a mountain ridge, in fact the cloud is rapidly forming on one edge and rapidly disappearing on the other edge “such that cloud is forming almost instantaneously as the air moves vertically over the particular topography.”[38] The effect of this evidence is not that when orographic cloud forms for the first time it may appear to do so almost instantaneously. Rather, the evidence concerns only the process by which apparently stationary cloud adjacent to a mountain or ridge is continuously regenerated. The appellant argued that the trial judge wrongly treated Morison’s evidence of the almost instantaneous regeneration of orographic cloud as evidence that the different kind of cloud encountered by the respondent might have appeared to form almost instantaneously. In the appellant’s submission, Morison’s evidence placed general mountain cloud in a different category, in which the process of cloud formation occupied a number of minutes.
[38]Reasons [79].
Morison did accept that in mountainous terrain cloud generally takes a number of minutes to form. The appellant’s argument otherwise does not accord with Morison’s evidence. The conclusions in Morison’s report include that “[i]n the steep topography of the southern highlands of Papua New Guinea, in the late afternoon when the temperature is dropping, the relative humidity is approaching 100% and air is moving vertically up or down the steep topography, it is very easy for cloud water droplets to suddenly form, and hence have a rapid onset of cloud/fog (same thing) formation …”[39] and “[s]udden cloud formation can occur in this environment by even a relatively small perturbation in the atmospheric environment.”[40] During cross-examination Morison was asked to ignore the topic of helicopter perturbation and explain what he meant by “rapid onset of cloud…formation”. After referring to the steepness of the topography, the associated temperature gradient, and the water content of the air in the Southern Highlands, Morison answered that cloud could form in “tens of seconds … just in a general environment”.[41] Morison then referred to orographic cloud “as an example”. In relation to an enquiry about the formation of a large bank of cloud in a valley, Morison made it clear that his opinion was that it would “generally” take place over a number of minutes and that “it entirely depends on the causes”. Similarly, when the cross-examiner revisited the topic, Morison agreed that in the late afternoon in the highlands of Papua New Guinea, the formation of cloud close to the canopy or near the ground was “typically” going to take a number of minutes and it would “generally” be more gradual. It was also put to Morison that fog would have been forming for minutes before it was so thick that it could not be seen through by the naked eye. Morison responded that it depended upon the environment; that was to be expected in a still environment because the temperature does not change particularly quickly, but in an environment where there was super-saturated air “the cloud can actually once again form quite quickly”; the suggestion that it would take a number of minutes before fog was thick enough so that it could not be seen through was true “as a general rule” but it entirely depended upon the environment. When it was then put to Morison that if the air was super-saturated, with a relative humidity over one hundred per cent, the cloud could form more quickly Morison answered: “Very quickly. Almost – it can almost appear instantaneous.” He agreed that in a still environment he would expect that cloud would take minutes to form into “dense cloud” because the temperature change was slow, but he also observed that airflow could affect that “very significantly”.
[39]Mr Morison’s Report dated 22 December 2014 at [24].
[40]Mr Morison’s Report dated 22 December 2014 at [35].
[41]T3-79.
Consistently with the trial judge’s conclusion that in the Southern Highlands cloud can form at an out of the ordinary speed, the overall effect of that evidence is that, although the formation of cloud (including fog) in mountainous terrain usually occupies at least a number of minutes, in certain conditions in the Southern Highlands cloud may form within tens of seconds. Morison’s evidence of that “out of the ordinary” speed of cloud formation was not confined to orographic cloud or to windy conditions or where there is significant perturbation. At no point did Morison resile from the statement in his report that sudden cloud formation in the Southern Highlands could occur “by even a relatively small perturbation in the atmospheric environment.” Morison’s evidence also supports the conclusion that if the air is super-saturated cloud may form in the Southern Highlands at such a speed as to make it appear that the cloud formed almost instantaneously, even though in a still environment it usually would take minutes to form into dense cloud.
The appellant referred to the result of a climate forecast system re-analysis performed by Morison that the near surface winds in the region were light. It is evident that Morison took that into account in forming his opinion. There is no obvious inconsistency between light winds and what Morison described as “a relatively small perturbation”. The appellant also argued that the respondent could not have encountered the phenomenon because the effect of Morison’s modelling of the environment was that the relative humidity was only about ninety-five percent, so that the air was not super-saturated. The trial judge accurately summarised Morison’s evidence about the decreasing temperature and increasing relative humidity and referred to his conclusion based upon that exercise that at 5.00 pm (within a minute or so of the crash occurring) the relative humidity was about ninety-five per cent. But the trial judge also accepted Morison’s evidence that his modelling was not exact for precise locations and at 5.00 pm the relative humidity at the accident site might have been higher than ninety-five per cent because of the steep topography in the area.
The trial judge’s finding that the respondent encountered the phenomenon described by Morison was supported by the evidence given by the respondent. The existence of the phenomenon was supported by that evidence and by other evidence, and it was strongly supported by the evidence of Joyce. In these circumstances, and notwithstanding the apparent strength of the evidence-in-chief to the contrary given by Crook and Dodds, the appellant’s arguments do not supply a substantial basis for setting aside the trial judge’s finding that at the time and place of the helicopter crash, cloud could form in clear air at a speed which was out of the ordinary compared to almost anywhere else in the world.
Ground (j)The Primary Judge erred in concluding that the plaintiff was unaware that the cloud could move rapidly, where the plaintiff had himself accepted that he was so aware and in the penultimate flight the Primary Judge accepted the evidence of Mr Schofield that in the helicopter flown by the plaintiff it flew through a cloud which was "incredibly quickly moving" (J.159).
Ground (k)The Primary Judge erred in finding that the plaintiff's ordinary experience of cloud in the area at the subject time was that it appeared slow moving in circumstances where the plaintiff accepted Mr Schofield's evidence that on a previous flight piloted by the plaintiff, the cloud was moving incredibly quickly.
In relation to grounds (j) and (k), the appellant argued that the evidence of the respondent that he encountered the phenomenon was contrary to the accepted evidence of Schofield that on the previous flight into Camp 57 the respondent flew into cloud which was then moving rapidly. The trial judge did not accept that evidence in so far as it was inconsistent with the respondent’s evidence. The appellant did not articulate any ground for challenging the persuasive explanation given by the trial judge for not accepting the appellant’s arguments based on this evidence. In summary, the trial judge’s explanation was as follows. The respondent rejected the suggestion in cross-examination that on the second trip to Camp 57 the respondent had flown into cloud. Schofield did not mention the alleged event in a written statement he gave shortly after the accident. The trip in the helicopter to which Schofield referred might not have occurred in the helicopter piloted by the respondent in the second last flight, because Schofield’s recollection was that the flight to which he referred was returning from a ceremony at a different place. Furthermore, on Schofield’s evidence he was seated in the back left hand corner of the aircraft and his perception was that during the descent the helicopter went thought cloud “very quickly” for “only a second. A second or two”, and he said it was “hard to have sense of time, and it was a very long time ago”.[42] It did not follow from Schofield’s account, that the incredibly quickly moving cloud caused Schofield’s window to white-out for a second or two, that the respondent perceived the same event. If the event did occur, it may have been entirely unnoticed by the respondent from his different perspective at the front of the aircraft or it might have been so inconsequential as not to have registered in his mind as an event causing concern.
[42]Reasons [156]-[157].
Ground (j) cites paragraph 159 of the trial judge’s reasons for the proposition that the trial judge accepted Schofield’s evidence that the helicopter flown by the plaintiff flew through “incredibly quickly moving cloud”. Rather, the trial judge observed that, “on Mr Schofield’s account the passage of the incredibly quickly moving cloud caused his side perspex window to white out for a second or so…”.
In an affidavit the respondent swore on 23 July 2009, he referred to a recollection that he saw clouds “start to slowly come in over a ridge” as he travelled to Camp 57 on the third flight. The respondent swore that when he saw the cloud start to slowly come in over the ridge he negotiated “around the back of the cloud to avoid it” and then it “went into complete whiteout”.[43] The appellant argued that the trial judge found that the respondent’s ordinary experience of cloud was that it appeared slow moving on the basis of the affidavit, but that affidavit was not accepted by the trial judge because it was inconsistent with the respondent’s oral evidence. This argument confuses the speed of cloud movement with the speed of formation of cloud. Whether or not the cloud “could move rapidly”, as ground (j) asserts the respondent accepted, is not the point. The affidavit refers to the movement of clouds slowly over a ridge. The trial judge found that the respondent adjusted his final approach to avoid that cloud, leaving him “a sufficiently wide and safe path of clear flight in to the helipad” and as he proceeded along that flight path “cloud formed extremely rapidly within it, enveloping the helicopter suddenly”.[44] The trial judge accepted the respondent’s rejection in cross-examination of the suggestion that the cloud that he encountered (the cloud that enveloped the helicopter) was slow moving cloud. The trial judge accepted the respondent’s explanation that the cloud that resulted in the accident “developed instantaneously” and “atomised and it was thick”. What was involved was both a slow moving cloud which the respondent avoided and a “complete whiteout” in a cloud that enveloped the helicopter.
[43]Respondent’s affidavit sworn 23 July 2009 at [18]-[19]; Reasons [189].
[44]Reasons [193].
The appellant argued that the respondent’s statement in his affidavit that he “negotiated to around the back of the cloud to avoid it” should not have been accepted, both because it was inconsistent with the evidence of Schofield that on the previous flight the helicopter flew directly through fast moving cloud and because when the affidavit was put the to the respondent he asserted that there was no cloud at Camp 57 at the time of the accident. The suggested inconsistency with the evidence of Schofield has already been discussed. The respondent did state in evidence that there was no cloud at Camp 57. He said that he had “clear air at 5/7 on approach, and right up until that time when it went bang and it went very opaque” and that the cloud referred to in his affidavit was another 1,000 metres further to the south-west. The trial judge considered that the respondent was “seeming to speculate” when he suggested that the cloud was one kilometre to one kilometre and a half away and found that the cloud was so close to Camp 57 that the respondent had to alter his path of approach to avoid that cloud impeding a clear final path.[45] The trial judge also accepted that inconsistencies between the respondent’s evidence-in-chief, his affidavit, and his explanations in cross-examination detracted from his reliability.
[45]Reasons [190]-[191].
Taking those and other matters into account the trial judge nonetheless accepted the respondent’s evidence that on the final approach he was on an apparently clear flight path and did not deliberately fly into cloud.[46] This is an example of a case in which the advantage of the trial judge in seeing and hearing the evidence unfold at trial is particularly significant. I am not persuaded that the trial judge misused that advantage or made any finding that lacked reasonable support in apparently credible and reliable evidence.
[46]Reasons [192].
Ground (l)The Primary Judge erred in fact in finding (at [193]) that as the plaintiff proceeded in the helicopter towards the helipad at Camp 57:
i.cloud formed extremely rapidly within [the helicopter’s flight path] enveloping the helicopter suddenly; and
ii.cloud formed with out of the ordinary speed in the air in which the helicopter was flying, surrounding the helicopter, as if instantaneously;
in circumstances where:
iii.the evidence at trial was that cloud formation was not instantaneous, but rather could take minutes to form; and
iv.the helicopter was being flown at approximately 30 to 35 knots, and was able to travel faster that the rate at which cloud could form in its immediate flight path.
In relation to ground (l), subparagraph (iii) is contrary to the accepted evidence. As appears from the discussion of ground (i), evidence supported the trial judge’s comparison between the well-known event of formation within a number of minutes of cloud in mountainous terrain in many places and the very much faster speed of cloud formation in certain conditions in the Southern Highlands of Papua New Guinea.
In relation to subparagraph (iv) of ground (l), the appellant argued that at the top speed of the helicopter, 120 knots or 62 metres per second, the respondent could always ensure that the helicopter avoided cloud. The appellant did not cite any evidence to support this conclusion. For the similar contention at the trial, the appellant cited a passage of transcript in which it was put to the respondent that a helicopter was always able to outrun cloud or fog.[47] The respondent denied that suggestion. The appellant’s argument overlooks the difference between the rate of movement of cloud and the rate of formation of cloud. In relation to evidence given by some of the appellant’s witnesses that steering clear of cloud was adequate to avoid inadvertent IMC, the trial judge considered that this was common sense where clouds formed and moved at a speed that could be anticipated, but the accident happened in an area where “there was a risk cloud could form so rapidly as to envelope a helicopter being flown in the vicinity by a pilot doing his or her conscientious best to avoid flying in cloud.”[48]
[47]Defendant’s submissions at [2.7]; T3-8, T4-75.
[48]Reasons [101].
The appellant argued that the trial judge arrived at the finding of “instantaneous envelopment” in ignorance of compelling evidence that Camp 57 was fogged in before the helicopter arrived. For this proposition the appellant cited three pieces of evidence. First, the appellant referred to the radio transmission by Moyle that Camp 57 had “fog now”. The appellant did not challenge the trial judge’s decision that the radio transmission was in the terms outlined in Moyle’s contemporaneous statement.[49] In that statement Moyle did not suggest that he communicated to the respondent that Camp 57 was “fogged in”. His communication conveyed only that there was “fog now” at Camp 57. The evidence of the respondent, Connolly and Moyle summarised in [5] of these Reasons strongly supported the conclusion that there was nothing inappropriate about the respondent’s decision to fly to Camp 57 intending to see for himself whether or not such fog as was there precluded a clear flight path into the helipad. The appellant referred also to the evidence of Schofield that he observed heavy fog immediately after hearing the helicopter crash. As the trial judge found, the presence of fog at a point in time after the crash is not inconsistent with the respondent’s account of cloud enveloping the helicopter without warning.[50] Other evidence given by Schofield tended to support the respondent’s account. Schofield testified that he was in his office when he heard the sound of the crash and noticed the fog, but when he had last been aware of the weather, when he arrived on a previous flight, he had noticed when leaving the helicopter that it was “all sunny, just with this passing cloud…it changes very very quickly on that hill as we saw in the…six or seven months we lived there.”[51]
[49]See [4] of these Reasons.
[50]Reasons [182].
[51]T5-87 and T5-88. Reasons [183].
The third piece of evidence upon which the appellant relied was a statement by Mano, who was at Camp 57 when the helicopter crashed. He could not be found in order to give evidence. The appellant relied upon his statement that on the day of the accident at “16:50 pm [sic], I was at my small donga getting ready to go to the main camp mess 5/7X. At that time [writing obscured] area at 5/7 X was totally covered with heavy fog…I got into my uniform and about 2/5 minutes. [sic] I heard the Hevilift chopper heading towards the left end side of the mountain at 5/7X. Approximately 1700 hours I heard the loud crash on the mountain…”.[52] As a result of Mano not giving evidence there was no opportunity to test or clarify his statement. The trial judge concluded that it was unclear what area at the camp was totally covered with heavy fog at the time and whether Mano’s view included a view of the helipad area and the approach to that area, it was uncertain whether Mano knew that an area was covered with heavy fog at the time Mano was getting ready to go outside or whether he only noticed the fog when he was outside, and it was unclear whether Mano was still in his donga when he heard the crash or whether by then he was outside. The appellant did not submit that those conclusions were wrong or did not justify the trial judge in heavily discounting the weight to be attributed to Mano’s statement. It is again evident that the trial judge weighed this evidence in the context of all the evidence upon the relevant issue.
[52]ARB 1528 Ex 42; Reasons [180].
Challenges to finding of fact
These grounds of appeal (and some other grounds discussed below) challenge findings of fact made by the trial judge with reference to oral evidence. The trial judge referred in footnotes to passages of evidence supporting the findings of fact. In each case where the finding is challenged in this appeal, the trial judge’s finding accurately reflects and is supported by the evidence. (It will be apparent that the appellant contends to the contrary only in relation to a very small number of the challenged findings.) Each challenged finding of fact was necessarily informed by the trial judge’s impression of the witnesses whose evidence the trial judge accepted or rejected. An appellate court must conduct a real review of the trial and the trial judge’s reasons, but it must bear in mind the natural limitations existing in any appellate court proceeding. These include the appellate court’s relative disadvantage in respect of the evaluation of witnesses’ credibility and the “feeling” of a case, which is not always revealed by the transcript, and the circumstance that the trial judge has an advantage, derived from the obligation at trial to receive and consider all of the evidence and the opportunity to reflect upon and draw conclusions from it.[53] In particular cases where a trial judge’s conclusions are based on credibility findings, such findings may be demonstrated to be erroneous by reference to incontrovertible facts or uncontested testimony, and in some “quite rare” cases an appellate court might conclude that the trial judge erred because the decision is “glaringly improbable” or “contrary to compelling inferences”.[54] It is evident from the careful and detailed reasons given by the trial judge that his Honour considered all of the relevant evidence before deciding these factual issues in favour of the respondent. Those findings are not glaringly improbable or contradicted by any incontrovertible evidence. No other ground has been articulated that might justify the court in setting them aside.
Duty of Care:
Ground (a)The Primary Judge erred in law in failing to accurately or at all identify the duty of care owed by the first defendant to the plaintiff by failing to take into account the contract of employment between the plaintiff and first defendant and the PNG Civil Aviation Rules.
Ground (e)The Primary Judge erred in finding the first defendant should have investigated and ascertained risks posed to pilots by local weather conditions and patterns and implemented work systems to safely manage that risk when such an allegation of negligence was not brought by the plaintiff against the first defendant.
Ground (g)The Primary Judge erred in concluding the first defendant did not implement a local regime for monitoring weather in the region of Camp 57 in the absence of such a case being brought by the plaintiff against the first defendant and in the face of the evidence of aviation coordinator Mr Kym Moyle.
Ground (h)The Primary Judge erred in finding the first defendant ought to have directed the prohibition of the flight and the diversion to a safe landing area, contrary to the requirements of the PNG Civil Aviation Rules.
[53]Fox v Percy (2003) 214 CLR 118 at 125-127 [23]-[25] (Gleeson CJ, Gummow and Kirby JJ).
[54]Fox v Percy (2003) 214 CLR 118 at 128 [29] (Gleeson CJ, Gummow and Kirby JJ).
Procedural fairness: grounds (e) and (g)
The effect of ground (e) is that the appellant was denied procedural fairness in relation to the trial judge’s conclusion (see [9](a) and (b) of these reasons) that the duty of care owed by the appellant to the respondent included a duty to investigate and ascertain the risks posed to its pilots by local weather conditions and patterns and to have safe work systems which managed those risks. In relation to ground (g), the appellant contends,[55] so far as concerns the duty issue, that the respondent did not bring a case against the appellant that there was a failure by the appellant to implement proper weather monitoring in the region of Camp 57 (see [9](c) of these reasons).
[55]Appellant’s Amended Outline of Argument at [30].
The statement of claim alleged that: the appellant owed the respondent a duty to take reasonable care to ensure the respondent’s safety during the course of his duties as a helicopter pilot and to take reasonable steps to ensure a safe system of work;[56] the appellant knew or ought to have known that the route the respondent travelled to Camp 57 “was a region in which thick cloud might develop very quickly and that a helicopter may be unavoidably enveloped by cloud causing a pilot to lose visibility”; and the respondent’s injury was caused by the appellant’s negligence and breach of contract. I adopt the trial judge’s summary of the substance of the appellant’s breaches pleaded by the respondent:
“(a)failed to provide Mr Towers with a helicopter equipped for flight by reference to instruments, namely an attitude indicator, turn and slip indicator and turn co-ordinator, when flying in a region where there were conditions of the kind prevailing at the time of the ill-fated flight;
(b)failed to advise Mr Towers against flying without such equipment in such circumstances;
(c)failed to ensure Mr Towers was not dispatched to fly without such equipment in such circumstances;
(d)failed to provide a safe system of work;
(e)failed to adequately investigate risk.”[57]
[56]Third Further Amended Statement of Claim at [1.14].
[57]Reasons [38]. References removed.
The trial judge referred to examples of occasions during the trial where the respondent relied upon “an arguably unpleaded breach” of a failure to warn the respondent of the phenomenon that in the late afternoon in the mountainous region where the respondent was working cloud could form and move very quickly. The trial judge held that this alleged failure was sufficiently pleaded as a foundation for liability, because it was an implicit part of the pleaded case: the conditions to be warned of were the circumstances referred to in (a), (b) and (c); such a warning was an implicit part of the advice referred to in (b); “knowledge of the need for it would flow from the adequate investigation alluded to in breach (e)”; and a warning of it would form part of a system mentioned in (d).[58] The appellant did not attempt to identify any error in that analysis.
[58]Reasons [39].
The duty found by the trial judge which is the subject of ground (e), to investigate and ascertain risks posed to pilots by local weather conditions and patterns and implement work systems to safely manage that risk, is implicit in those alleged breaches. Furthermore, the issues raised by that ground clearly were litigated:
(a)In opening the respondent’s case at trial, senior counsel foreshadowed the respondent’s evidence that “all of a sudden he became enveloped in cloud [and] … he had never there experienced anything like it.”[59] Junior counsel for the respondent foreshadowed in his opening that Joyce would give evidence that the cloud would come in “extremely quickly” and could occur in ten or 15 seconds, Joyce himself had been caught in cloud, when he was chief pilot of Hevilift operations in Australia, he appreciated the risks that pilots in Papua New Guinea may find themselves inadvertently in IMC, and he briefed trainee pilots about the consequential risks. Junior counsel also foreshadowed evidence by the respondent that he did not know that in Papua New Guinea a white-out might occur in a very short time, he had received no training or instruction from the appellant in that respect, and if he had known of the risk he would not have proceeded to Camp 57.
(b)On the third day of the trial (which occupied seven days), senior counsel for the respondent described the respondent’s case in terms that comprehended allegations that the appellant should have warned the respondent that in the region in which the appellant operated the helicopter might become enveloped by cloud, with a risk of inadvertent IMC, and the appellant should have advised the respondent not to fly the helicopter in those circumstances. The appellant did not then object to that case being litigated.
(c)On the fourth day of the trial, senior counsel for the respondent acknowledged that the respondent knew that he should keep clear of cloud but submitted that there was no warning of the event that happened; if the appellant had warned him, he would not have flown the helicopter. Junior counsel for the appellant did not the object to that case being litigated but thereafter opened part of the appellant’s case.
(d)The respondent argued in its written submissions at the end of the trial that the appellant owed and breached duties to investigate the risk of inadvertent IMC arising from the rapid development of cloud in Papua New Guinea at certain times of the day and in certain atmospheric conditions, a phenomenon which differed from what the employee pilots might have experienced, and, secondly, to instruct pilots of the phenomenon and ensure that pilots were not placed in situations where they might be enveloped by rapidly descending cloud.
(e)In oral submissions after written outlines had been exchanged, the appellant met each aspect of the respondent’s case on its merits. (Senior counsel did submit that it was never part of the respondent’s case that the particular area of Camp 57 was a “Bermuda Triangle”, but that is not the effect of the trial judge’s findings: see [25] of these reasons.) The appellant’s senior counsel made extensive oral submissions, primarily in support of contentions that the court should reject the evidence of the respondent, find that the respondent had deliberately flown into cloud, and conclude upon the whole of the evidence that there was no phenomenon in which a helicopter could be enveloped by cloud within seconds without leaving an opportunity for the pilot to fly away from the cloud.
[59]T1-10
The trial judge rejected the appellant’s contentions that the respondent’s own negligence caused or materially contributed to the accident in that the respondent failed to fly as required by VFR, failed to operate the helicopter clear of fog or cloud, deliberately flew the helicopter into fog or cloud, failed to heed the warning of Moyle that the helicopter pad at Camp 57 had been affected by fog, failed to divert the helicopter to a clear and safe alternative landing pad, and failed to cause the helicopter to steer clear of fog or cloud. The trial judge observed that the respondent’s decision upon receiving Moyle’s transmission to continue towards Camp 57 to “have a look” did not involve negligence by him in the circumstances that he knew, or he ought reasonably to have known. The ensuing inadvertent IMC was also not the result of his negligence. His approach manoeuvre was “unremarkable but for the fact, of which Hevilift had not warned him, that at that time of day in that region there was a heightened risk of inadvertent IMC because cloud could form at a speed which was out of the ordinary.”[110]
[110]Reasons [215]-[216].
The appellant’s outline of argument advanced various challenges to the trial judge’s decision that the respondent was not guilty of contributory negligence, but at the hearing of the appeal the appellant acknowledged that its arguments upon this topic are all premised upon two assumptions in its favour; first, that the employment contract did not include an implied term corresponding with the duty of care found by the trial judge and, secondly, that the trial judge was wrong in concluding that the respondent’s helicopter was enveloped by cloud that formed at an out of the ordinary speed. The second assumption is incorrect for the reasons given in relation to grounds (i) and (l).
As to the first assumption, the parties agreed at the trial that, unlike the Australian States, Papua New Guinea had not enacted legislation reversing the effect of the decision in Astley v Austrust that, under the common form contributory negligence statutes, contributory negligence is not a ground for reducing the damages awarded to a plaintiff for breach of contract.[111]
[111]Defendants’ submissions, [17.3], [17.4]. The appellant referred to the Wrongs (Miscellaneous Provisions) Act 1975 PNG.
The trial judge held that the appellant was liable both for breach of the tortious duties of care and for breach of the same duties under an implied term that the appellant would take reasonable care not to expose employees to unnecessary risks to their health or safety. The appellant argued that the term should not be implied because it is inconsistent with express terms of the contract. The argument relied upon the same contractual provisions referred to in argument under grounds (a) and (h). In addition, the appellant argued that if the term otherwise should be implied it is excluded by the “entire agreement” provision in clause 22 of the employment contract.
The respondent referred to Wright v TNT Management Pty Ltd,[112] in which the New South Wales Court of Appeal held that a term is implied by law in an employment contract that the employer will take reasonable care to provide a safe system of work. Similarly, in Stubbe v Jensen,[113] the Victorian Court of Appeal held that, subject only to one issue it was not necessary to decide, concurrently with the duty of care under the common law of negligence, there was a term implied by law in employment contracts that the employer would provide a safe system of work and would not unreasonably expose an employee to unnecessary risks. (The issue it was not necessary to decide concerned Deane J’s observation in Hawkins v Clayton[114]that the common law should not imply a contractual term imposing a duty of care when a duty of care is in any event imposed by the common law.[115] That reasoning was rejected by the High Court in Astley v Austrust Ltd.) This Court should follow those decisions.
[112](1989) 15 NSWLR 679 at 687-688 (McHugh JA) and 697-698 (Clarke JA); cf per Mahoney JA at 684 (who accepted that it was arguable but did not decide the point).
[113][1997] 2 VR 439 at 443 (Winneke P, with whose reasons Ormiston and Callaway JJA agreed).
[114](1988) 164 CLR 539.
[115](1988) 164 CLR 539 at 582-586.
A term will not be implied by law if it is excluded by an express provision of the contract or is inconsistent with its terms.[116] The appellant’s argument that the implied term is inconsistent with the express terms concerning the respondent’s expertise and the Civil Aviation Rules should be rejected for the reasons given in relation to grounds (a) and (h).
[116]Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 449 (McHugh and Gummow JJ); Concut Pty Ltd v Worrell (2000) 75 ALJR 312 at [23] (Gleeson CJ, Gaudron and Gummow JJ).
Clause 22 of the employment contract provides that it “records the entire agreement between the parties as to the subject matter and, in relation to that subject matter, supersedes any prior representations, understandings, arrangements, warranties or agreements.” The appellant did not develop its argument that clause 22 excluded the implied term or cite any authority for that proposition. The implied term is plainly not a “prior” representation, understanding, arrangement, warranty or agreement. Presumably the appellant’s argument relies upon the statement that the employment contract “records the entire agreement between the parties as to the subject matter.” An indistinguishable clause was held to be ineffective to exclude an implied term in National Roads Motorists’ Association v Whitlam.[117] Campbell JA, with whose reasons Beazley JA and Handley AJA agreed, observed that it “is not an agreement that there are no implied terms in the deed: Hart v MacDonald (1910) 10 CLR 417 at 421 per Griffith CJ 427 per O’Connor J, 430 per Isaacs J.”[118] Whitlam and Hart v MacDonald were not concerned with a term implied by law, but Campbell JA’s analysis is applicable.
[117](2007) 25 ACLC 688.
[118](2007) 25 ACLC 688 at [97].
The decision in Hope v RCA Photophone of Australia Pty Ltd[119] that an entire agreement clause excluded the term sought to the implied is distinguishable. In that case the clause was much broader that clause 22. In addition to providing that the agreement contained the parties’ entire understanding with reference to the subject matter, it provided that “there is no other understanding agreement warranty or representation express or implied in any way binding extending defining or otherwise relating to the equipment or the provisions hereof on any of the matters to which these presents relate.” Another ground for distinguishing the decision is that the implication in that case did not arise from the express words of the contract.[120]
[119](1937) 59 CLR 348.
[120]See Sai Teys McMahon Real Estate Pty Ltd v Queen Street Apartments Pty Ltd [2007] QSC 264 at [75] (Chesterman J) and Etna v Arif [1999] 2 VR 353 at 371 [46] (Batt JA) (Charles and Callaway JJA agreeing).
The language of clause 22 is wholly inapt to exclude a term implied by law in the employment contract.
It follows that ground (m) must be rejected.
Ground (n)The Primary Judge erred in failing to find the plaintiff was in breach of contract and was liable to a set-off to be quantified.
The trial judge referred to the appellant’s summary in its written submissions at trial of the respondent’s alleged breaches of contract, as breaches flowing from a failure to fly the helicopter with reasonable care and skill.[121] After noting that the appellant’s arguments relied significantly upon inferences that the respondent flew deliberately or negligently into cloud, the trial judge observed that he had rejected that notion, found that the respondent did not fly into cloud, and concluded that the helicopter became enveloped by cloud which formed around it; it was not a case of a pilot recklessly flying into too narrow a gap between existing cloud and finding cloud moving into the path of the aircraft.[122] If the respondent had known the cloud could form so quickly around his helicopter, it might readily be accepted that the respondent had failed to exercise reasonable care and skill by attempting to fly into Camp 57, but he did not know of such a phenomenon and it was out of the ordinary for pilots not used to flying in the region. Although the respondent had been warned of the presence of fog at Camp 57, his decision to approach the area to ascertain whether a safe flight path was precluded by fog was made without demur by Moyle and in ignorance of the phenomenon of extraordinary formation of cloud in that region and at that time of day; and there was in fact a sufficiently broad path of clear air to apparently allow a safe flight path. The envelopment of the helicopter was the result of the appellant not warning the respondent about the phenomenon and the accompanying increased risk of inadvertent IMC. It was not a consequence of a want of reasonable care and skill by the respondent, with the result that the respondent had not breached the contract.[123]
[121]Reasons [210].
[122]Reasons [211]-[213].
[123]Reasons [214].
In the appellant’s amended outline of argument, the appellant referred to various alleged breaches of contract by the respondent but at the hearing of the appeal the appellant confined its case to two alleged breaches of contract.[124] The first is an alleged breach of a statement which the respondent appeared to accept was in documents the respondent received during training:[125] “Where en route the weather conditions are encountered that prevent the continuation of the planned track…the pilot must be satisfied he has both the necessary fuel and necessary navigational capability for attempting an off-track diversion…if in doubt turn around and go back.” If the appellant gave the respondent a direction to that effect, and if the respondent failed to comply with that direction, the respondent might have been liable for a breach of the provision in clause 3.1(f) of the employment contract, which requires the employee to “comply with all lawful directions of the Company issued from time to time.” But there is no basis in the evidence accepted by the trial judge for a finding that at the relevant time the respondent was not satisfied that he had the necessary navigational capability or that the respondent was in fact in doubt, such as might have required him to “turn around and go back”.
[124]Transcript 19 June 2017 T1-54 L14-33 and T1-57 L42- 47.
[125]Reasons [123].
The second alleged breach of contract upon which the appellant relied was an alleged contravention of clause 3.1(h) of the employment contract. It requires the employee to “comply with all law applicable to the Employee’s position”. The appellant argued that the respondent breached that clause by failing to comply with rules 91.301 and 91.201 of the Civil Aviation Rules. That argument should be rejected for the reasons given in relation to ground (a).
Accordingly the appellant failed to establish either of the breaches of contract upon which it relied in support of ground (n).
There are some other issues that should be mentioned, although it is not necessary to resolve them. Although the appellant’s written submission at trial referred to a counterclaim,[126] the pleading in the appeal book does not include a counterclaim. According to the defence, what is to be set-off against the respondent’s damages are damages for the loss of the helicopter and consequential expenditure, loss of profits and other costs allegedly caused by the alleged breaches of contract,[127] but in oral argument at the hearing of the appeal the appellant contended that it was entitled to counterclaim for an indemnity for breach of contract, which I understood to mean damages in the amount of the appellant’s liability to the respondent for the appellant’s breach of contract. Such a counterclaim was said to be supported by obiter dicta in two paragraphs of the reasons of Ambrose J in Wylie v The ANI Corporation Limited.[128] Ambrose J acknowledged that the point was not argued but observed that he thought it arguable that, where an employee’s injury, loss, and damage resulted in part from the employee’s negligence and breach of contract of employment, it would be open to the employer on the facts of that case to counterclaim for an indemnity to the extent of the contribution found against the employer “or perhaps the whole of its liability to him”. That view was said to be based upon the majority decision in Lister v Romford Ice and Cold Storage Co Ltd[129] that an employer can sue an employee for damages representing the amount of the employer’s vicarious liability for damages for personal injury suffered by a third party where the cause of that liability is the employee’s breach of an implied term of the employment contract to exercise reasonable care. Such a decision could not be made in most jurisdictions in Australia because of the introduction of legislation after Lister’s case precluding such claims for damages by employers against employees in the absence of serious and wilful default.[130] It appears that there is no such legislation in Queensland.[131] The Court was not informed whether or not there is legislation of that kind in Papua New Guinea. Finally, the basis upon which the hypothetical counterclaim for general damages for breach of contract could be the subject of a set-off against the respondent’s entitlement to damages was not explained.
[126]Defendants’ submissions p 47.
[127]Amended defence of the appellant at [33].
[128][2002] 1 Qd R 320 at [80] and [81].
[129][1957] AC 555.
[130]See, Employees Liability Act 1991 (NSW) s 3(1); Law Reform (Miscellaneous Provisions) Act 1955 (ACT) s 21; Wrongs Act 1936 (SA) s 27C; Law Reform (Miscellaneous Provisions) Act 1956 (NT) s 22A; Civil Liability Act 2002 (Tas) s 49B.
[131]AR Griffiths & Sons Pty Ltd v Richards [2000] 1 Qd R 116.
Proposed order
The appeal should be dismissed with costs.
PHILIPPIDES JA: I have had the advantage of reading the reasons for judgment of Fraser JA. I agree with his Honour’s reasons and the order proposed.
FLANAGAN J: I agree with the order proposed by Fraser JA and with his Honour’s reasons.
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