Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited and anor. v Essential Energy (formerly Country..

[2014] NSWSC 1758

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited and anor. v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Limited [2014] NSWSC 1758

Hearing dates:

20, 21, 22, 23, 24, 27, 28, 29, 30, 31 May 2013; 3, 4, 5, 7, 11, 13, 14, 17, 18, 19, 20 June 2013 Written submissions - 23 June; 24 July 2013; Further written submissions - 14, 17 and 18 February 2014

Decision date:

19 December 2014

Before:

Bellew J

Decision:

(1) South West is to provide any further submissions as to the proceedings brought by the Council pursuant to s. 151Z of the Workers Compensation Act 1987 by 4.00 pm on Monday 2 February 2015;

 

(2) The Council is to provide any submissions in reply by 5.00 pm on Friday 6 February 2015;

 

(3) Any party who wishes to make submissions as to the issue of apportionment is to do so by 5.00 pm on 6 February 2015;

(4) I list the matter for delivery of judgment as to damages, and as to the proceedings brought by the Council against South West pursuant to s. 151Z of the Workers Compensation Act 1987, on 27 February 2015 at 10.00 am.

Catchwords:

NEGLIGENCE - helicopter company contracted by local council to conduct an aerial survey - where helicopter struck an overhead power line and crashed into a valley killing all those on board including two council employees - where helicopter flying at an altitude of approximately 120 ft - where swathe cut in vegetation below power lines - where power lines not otherwise marked by energy provider - proceedings brought by members of the family of deceased against the helicopter company and the council - where energy provider joined by cross-claim - proceedings brought by helicopter company against energy provider council for damages to helicopter and loss of profits - council joined by cross claim - liability of parties

 

AVIATION - helicopter company contracted by local council to conduct an aerial survey - where helicopter struck an overhead power line and crashed into a valley killing all those on board including two council employees - whether claims brought by the family of one council employee were governed by legislation limiting the liability of the carrier

  WORDS AND PHRASES - passenger

Legislation Cited:

Civil Aviation (Carrier's Liability) Act 1967 (NSW)
Civil Aviation (Carrier's Liability) Act 1959 (Cth)
Civil Liability Act 2002
Compensation to Relatives Act 1897
Workers Compensation Act 1987

Cases Cited:

Adeels Palace Pty Limited v Moubarak (2009) 239 CLR 420
Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; (2005) 223 CLR 251
Air Link Pty Limited v Paterson [2005] HCA 39; (2005) 223 CLR 283
Anns v Merton London Borough Council [1978] AC 728
Benic v State of NSW [2010] NSWSC 1039
Bradshaw v McEwans Pty Limited (1951) 217 ALR 1
Caltex Refineries v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649
Disley v Levine t/as Airtrak Levine Paragliding [2002] EWCA Civ 1087; [2002] 1 WLR 785
Edwards and ors v Endeavour Energy and ors. (No. 4) [2013] NSWSC 1899
El Al Israel Airlines v Tseng 525 US 155 (1999)
Fellowes (or Herd) v Clyde Helicopters [1997] AC 534
Franklin v Victorian Railways Commissioner [1959] HCA 48; (1959) 101 CLR 197
Hoffman v Boland [2013] NSWCA 158.
Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672
Monaghan Surveyors Pty Limited v Stratford Glen-Avon [2012] NSWCA 94
Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189
Roads and Traffic Authority NSW v Refrigerated Loadings Pty Limited [2009] NSWCA 263; (2009) 77 NSWLR 360; (2009) 53 MVR 502
Ruddick v Taylor [2003] NSWCA 262
Shaw v Thomas [2010] NSWCA 169
Sheather v Country Energy [2007] NSWCA 179
Sidhu and Abnett (known as Sykes) v British Airways Plc [1997] AC 430
Societe Mutuelle d'Assurance Aerien c. Veuve Gauvain (1967) 21 RFDA 436
South Pacific Air Motive Pty Limited & anor v Magnus [1998] FCA 1107; (1998) 157 ALR 443
Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182
Swiss Bank Corporation v Brink's MAT Ltd [1986] QB 853
United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 260 FLR 37
Vairy v Wyong Shire Council (2005) 223 CLR 422
Wallace v Kam [2013] HCA 19
Waverley Council v Ferreira [2005] NSWCA 418
Wilson v Nilepac Pty Limited [2011] NSWCA 63
Wyong Shire Council v Shirt [1980] HCA 12; (1981) 146 CLR 40

Texts Cited:

Annotated Civil Liability Act 2002 (Villa)
Macquarie Concise Dictionary 4th Edition 2006

Category:

Principal judgment

Parties:

Southwest Helicopters Pty Limited
Essential Energy (formerly Country Energy)
Parkes Shire Council
Ingrid Stephenson
Jay Stephenson
Natalee Stephenson

Representation:

Counsel:
Mr R Williams QC and Mr A Spencer - South West Helicopters Pty Limited

 

Mr J Morris and Renee Bianchi - Essential Energy (formerly Country Energy)

 

Mr P Cummings SC - Parkes Shire Council

 

Mr D E Baran and Ms G Mahony - Ingrid Stephenson; Jay Stephenson; Natalee Stephenson
Solicitors:
Norton White - Southwest Helicopters Pty Limited

 

Norton Rose - Essential Energy (formerly Country Energy)

 

Moray and Agnew - Parkes Shire Council

  McIntosh, Emerton and Thomas - Ingrid Stephenson; Jay Stephenson; Natalee Stephenson ounsel:

File Number(s):

2009 / 297846

Publication restriction:

Nil

HEADNOTE

(This headnote is not to be read as part of the judgment)

In early 2006 the Parkes Shire Council ("the Council") engaged South West Helicopters Pty Limited ("South West") to conduct an aerial weed survey in part of the area for which the Council was responsible. The flight departed on the morning of 2 February 2006, piloted by Shane Thrupp, an employee of South West. On board were two Council employees, Malcolm Buerckner and Ian Stephenson.

At approximately 9.30 am on 2 February 2006, the helicopter struck an overhead wire, the property of the electrical supplier (EE) in an area known as the Dungeons. The helicopter crashed into a valley, killing all three persons on board. Various proceedings were brought arising from the crash which are more fully described in the judgment.

HELD:

(1) The Council owed a non-delegable duty of care to ensure a safe system of work and to take reasonable care for the safety of its employees, including Mr Stephenson: [225].

(2) The Council breached its duty of care to Mr Stephenson: [228]; [234].

(3) The failure of the Council to impose a flight threshold was a cause of the accident: [241].

(4) The Council owed a duty of care to South West which was breached by the failure to impose a flight threshold. That failure was a cause of the accident: [242].

(5) South West owed a duty of care to its passengers, including Mr Stephenson: [243].

(6) The failure on the part of the Chief Pilot of South West to conduct a proper briefing with the pilot and the failure to assess the task to be performed was a breach of South West's duty to Mr Stephenson: [244] and [248].

(7) As the pilot of the helicopter, Mr Thrupp also owed a duty of care to Mr Stephenson: [249].

(8) Mr Thrupp breached his duty of care to Mr Stephenson by descending to a level which was lower than was necessary: [249].

(9) The respective breaches of duty on the part of the Chief Pilot and Mr Thrupp were a cause of the accident: [250].

(10) EE owed a duty of care to aircraft owners as well as passsengers who could sustain damage as a consequence of a pilot engaging in low flying. EE therefore owed a duty of care to South West and Mr Stephenson: [257].

(11) EE breached its duty to South West and Mr Stephenson by faling to mark the power lines and that failure was a cause of the accident: [258]-[259].

(12)   Part IV of the Civil Aviation (Carriers Liablity) Act 1959 (Cth) haS no application to the proceedings brought by the members of Mr Stephenson's family: [284];

(13) Mr Stephenson was not a "passenger" for the purposes of the relevant legislation: [297].

(14) The claims for nervous shock brought against South West by the members of Mr Stephenson's family would have survived at common law in any event: [332].

INDEX

INTRODUCTION	[1]
THE STEPHENSON PROCEEDINGS	[4]
Proceedings brought by Ingrid Stephenson	[5]
Proceedings brought by Natalee Stephenson	[7]
Proceedings brought by Jay Stephenson	[9]
THE SOUTH WEST PROCEEDINGS	[11]
THE COUNCIL PROCEEDINGS	[13]
THE WITNESSES	[14]
THE EVIDENCE	[15]
The general area of the accident site	[16]
The 2005 aerial survey	[22]
The decision to conduct a follow up survey	[28]
The operations of Southwest	[30]
The role of Mr Stephenson in the conduct of the survey	[32]
THE COUNCIL'S PLANNING FOR THE SURVEY
The proposed height threshold	[37]
Consideration of the possibility of a wire strike	[62]
The Council's risk assessment	[66]
Data available to the Council	[95]
SOUTH WEST'S PLANNING FOR THE SURVEY	[103]
THE FLIGHT	[121]
THE VISIBILITY OF THE OVERHEAD WIRES IN THE AREA OF THE CRASH SITE	[141]
THE EXPERT EVIDENCE	[156]
THE SUBMISSIONS OF THE PARTIES
Submissions of the plaintiffs	[182]
Submissions of the Council	[188]
Submissions of South West	[196]
Submissions of EE	[207]
CONSIDERATION
General principles of liability - The Civil Liability Act 2002	[212]
The position of the Council	[225]
The position of South West	[243]
The position of EE	[252]
APPLICATION OF THE CIVIL AVIATION (CARRIER'S LIABLITY) ACT 1959 (CTH)	[260]
The legislative scheme	[262]
The relevant statutory provisions	[269]
Submissions of South West	[277]
Submissions of the plaintiffs	[279]
Consideration	[281]
The claims for nervous shock	[298]
The decision in Magnus	[301]
Consideration	[314]
ORDERS	[333]

Judgment

INTRODUCTION

1. In early 2006 the Parkes Shire Council ("the Council") engaged South West Helicopters Pty Limited ("South West") to undertake an aerial survey of parts of the area for which it was responsible, for the purposes of determining the presence of noxious weeds. A similar survey had been successfully conducted in 2005.

2. On the morning of 2 February 2006 a helicopter departed from the Parkes aerodrome to conduct the survey. On board were the pilot, Shane Thrupp (an employee of South West) along with Ian Stephenson and Malcolm Buerckner. Mr Stephenson and Mr Buerckner were each employed by the Council, Mr Stephenson as a noxious weed officer.

3. At approximately 9.30am on that day, whilst in the vicinity of an area known as "The Dungeons" located approximately 20 kms east of the township of Parkes, the helicopter struck an overhead power line, the property of Essential Energy ("EE"). The helicopter exploded and crashed into a valley. All three persons on board were killed. As a consequence of that accident, a number of separate proceedings have been brought which are summarised below. It should be noted that proceedings brought by the widow of the late Mr Buerckner have been resolved.

THE STEPHENSON PROCEEDINGS

4. What I will refer to as the "Stephenson proceedings" encompass a number of separate actions brought by the wife and children of the late Mr Stephenson. For the purposes of summarising the submissions of the parties I have referred to Mrs Stephenson and her children collectively as "the plaintiffs".

Proceedings brought by Ingrid Stephenson

5. Mrs Stephenson is the widow of the late Mr Stephenson. She has brought proceedings against the Council and South West:

1. on her own behalf, for nervous shock; and

2. on her own behalf, as well as on behalf of her two children, Natalee and Jay, pursuant to the Compensation to Relatives Act 1897 ("CRA").

6. In those proceedings:

1. South West has brought a cross-claim against EE;

2. EE has brought a cross-claim against the Council; and

3. South West has brought a cross-claim against the Council.

Proceedings brought by Natalee Stephenson

7. Natalee Stephenson is the daughter of late Mr Stephenson. She has brought proceedings for nervous shock against South West and the Council.

8. In those proceedings:

1. South West has brought a cross-claim against EE;

2. EE has brought a cross-claim against the Council; and

3. South West has brought a cross-claim against the Council.

Proceedings brought by Jay Stephenson

9. Jay Stephenson is the son of the late Mr Stephenson. He has brought proceedings for nervous shock against South West and the Council:

10. In those proceedings:

1. South West has brought a cross-claim against EE;

2. EE has brought a cross-claim against the Council; and

3. South West has brought a cross-claim against the Council.

THE SOUTH WEST PROCEEDINGS

11. South West, and a related entity known as Country Connection Airlines Pty Limited ("CC") have brought proceedings for damages against Country Energy (the predecessor of EE) in respect of (inter alia) the loss of the helicopter and the associated loss of profits. CC was the owner of the helicopter involved in the accident, which was being operated at the time by South West who held the relevant licence(s).

12. In those proceedings EE has brought a cross-claim against the Council.

THE COUNCIL PROCEEDINGS

13. The Council has brought proceedings against South West pursuant to the provisions of s. 151Z of the Workers Compensation Act 1987, seeking recovery of amounts of compensation paid pursuant to that Act. In those proceedings South West has brought a cross claim against Country Energy.

THE WITNESSES

14. The hearing of the matter extended over several weeks, following which I received both written and oral submissions from the parties. Those persons who gave oral evidence before me were as follows:

Name of witness	Position
Kent Robert Boyd	General Manager, Parkes Shire Council
Ian St Andrews Dolby	Chief Pilot, South West Helicopters Pty Limited
Terrence David McKenzie	Director, South West Helicopters Pty Limited
Keith Maxwell Stewart	Helicopter pilot, and Special Constable, Aviation Support Branch, NSW Police
Peter James Sullivan	Former Natural Resources Manager, Parkes Shire Council
Andrew David Cosier	Weeds Co-ordinator, Wellington Council
Clint Joseph Fitzsummons	Assets Manager, Parkes Shire Council
Desmond Alexander Mackey	Noxious weeds and pest species Inspector, Dubbo City Council
Ashley John Bullock	Noxious weeds Officer, Wellington Council
Matthew James Swetland	Design Manager, Parkes Shire Council
Wayne Everett Pallot	Manager, Geographical Information System/Business System, Essential Energy
William Robert Nolland	Group Manager, Network Asset Systems, Essential Energy
Robert Alan Coppock	Helicopter Pilot, and previously a member of the Aviation Support Branch, NSW Police
Russell Schmidt	An eyewitness to the accident
Stephen Michael White	Expert - Location intelligence
Roger Brian Garnsey	Expert Agronomist
Ingrid Stephenson	The wife of the late Ian Stephenson
Jay Stephenson	The son of the late Ian Stephenson
Natalee Stephenson	The daughter of the late Ian Stephenson
Peter Joseph Hunt	Accounting Expert
Lance Warren Kahler	Accounting Expert
Daniel Tyler	Aviation Expert
Tim Joyce	Aviation Expert
Alan John Keown	Spatial Information Contractor

THE EVIDENCE

15. In setting out the evidence below, I have incorporated my principal findings of fact. To a large extent those facts were not in dispute. Where factual issues have arisen on the evidence I have set out how, and for what reason(s), those issues have been resolved.

The general area of the accident site

16. The Parkes aerodrome ("the aerodrome") from which the flight departed is located approximately 6 km east of the township of Parkes (longitude 16 on Ex SW 1). The Parkes-Orange Road ("the road") proceeds in an easterly direction from the aerodrome. It is a major highway in the area, and a likely reference point for air traffic (Ex SW 48 at p. 9). In an area known as Bindogundra, the road proceeds in a south/southeast direction towards what is known as "The Dungeons". The road then proceeds through The Dungeons before sweeping to the right past Bumberry, towards the township of Manildra and beyond that, towards the township of Orange.

17. The Dungeons is located about 14km east of the aerodrome. The accident site, which is near to the entry point into the Dungeons from the road, is situated within a valley. The road is located on the eastern ridge of that valley.

18. Just after entering the area of the Dungeons the road runs (generally) at right angles to two parallel power lines, one of which was that struck by the helicopter. Those power lines were approximately 7.9 metres apart, and 38.686m and 36.242m (approximately 120 feet) above the road respectively. They formed a span in excess of 1.2 kms between poles erected at each of the eastern and western ridges of the valley (Ex EE20 paras. 5-15).

19. At the time of the accident, vegetation had been removed from under the power lines which created a "clearance corridor" or easement (Ex EE20 at paras 17 and 18).

20. There were no indicators of electricity consumption in the immediate area of the accident site, such as houses, other buildings, dams or pumps (T1064 L31-49).

21. At the time of the accident, the area in and around the township of Parkes was classified by EE as a "fire prone area". As a consequence, an annual aerial patrol of the area was conducted by EE with the use of helicopters and aeroplanes for the purposes of identifying any potential fire hazards (Ex EE 25 at para. 41 and following).

The 2005 aerial survey

22. In 2005 the Council engaged a helicopter company in Dubbo to conduct a survey ("the 2005 survey") for the purposes of detecting the presence of two particular noxious weeds within the Parkes Shire, namely the African Boxthorn and the Blackberry. Mr Stephenson, as the noxious weeds officer for the Council, was primarily responsible for the detection, management and eradication of noxious weeds. Mr Sullivan was Mr Stephenson's immediate supervisor.

23. The 2005 survey represented the first occasion on which the Council had undertaken aerial surveillance for this (or any other) purpose. It was proposed that the survey be conducted from a height of 500 feet, with the capacity to descend to 330 feet if necessary (Ex PSC 6 at para. 9).

24. The 2005 survey was conducted on 24 May 2005. I am satisfied, in the absence of any evidence to the contrary, that it was conducted in accordance with the proposal to which I referred (in [23] above). Both Mr Stephenson and Mr Buerckner flew in the helicopter on that occasion. Neither had any training or experience in aerial surveillance work, be it in terms of planning the survey, identifying and addressing safety issues, or carrying out surveillance during the flight.

25. The route taken in the 2005 survey is set out in Exs. SW 3 and SW 33. It did not involve flying directly over what later became the accident site, but followed a path along the western edge of an area of National Park. The accident site is located on the eastern edge of that National Park, approximately 2 kms from the path taken in the 2005 survey.

26. A DVD of the 2005 survey is part of the evidence (Ex PSC 3). It is evident that on that occasion, the survey was conducted above the level of the surrounding terrain.

27. Following the completion of the 2005 survey, Mr Stephenson reported that it had been very successful. In particular, he reported that the survey had identified the presence of noxious weeds in far less time than would otherwise have been the case (Ex PSC 1 at para. 14).

The decision to conduct a follow up survey

28. In early 2006 Mr Stephenson and Mr Sullivan discussed the conduct of a further survey. The purpose of that further survey was twofold, firstly to determine the effectiveness of the eradication program which had been implemented following the 2005 survey, and secondly to identify new areas of weed growth (Ex PSC 6 at para. 17). In the course of their initial discussions, Mr Stephenson told Mr Sullivan that when speaking to persons who were present at a noxious weeds conference in Orange in 2005, he had learned that other councils had used South West to conduct aerial surveys of the kind which was proposed (Ex PSC 6 at para. 18).

28. Based upon a quotation of $750.00 per hour, Mr Sullivan gave approval to Mr Stephenson to engage South West for the purposes of conducting the follow up survey (Ex PSC 6 at para. 20).

The operations of Southwest

30. Since 28 June 2000 South West has conducted helicopter operations pursuant to Air Operator's Certificates ("AOC") issued by the Civil Aviation Safety Authority ("CASA") (Exh SW 9 para. 3). An AOC issued on 6 July 2005 (annexed to Ex SW 9) authorised South West to conduct:

1. charter operations (as set out in Schedule 2); and

2. aerial work operations (as set out in Schedule 3).

31. The conduct of aerial weed surveys formed one aspect of the business of South West, who actively marketed itself as an experienced provider of such services (T294 L22 and following). In that respect, Mr Thrupp had attended a noxious weed conference in Orange in 2005 for the purposes of promoting South West's services as a provider of aerial surveys (T295 L19-31). South West generally, and Mr Thrupp in particular, held the necessary qualifications to undertake surveys of that kind (T55 L10 and following) including authorisation from CASA to fly below 500 ft if required to do so.

The role of Mr Stephenson in the conduct of the survey

32. I have already noted Mr Stephenson's position within the Council and the purposes for which the survey was to be conducted. In the circumstances, there is obviously no direct evidence of the part Mr Stephenson played in the conduct of the survey prior to the accident. However, there is other evidence which bears upon this issue.

33. The determination of how an aerial weed survey might be conducted was, from the point of view of South West, a determination made having regard to the requirements of the customer. It was the practice that the customer would request the pilot to operate in a particular way in terms of speed, height and direction, although it was obviously up to the pilot to determine whether these requests could be safely met (Ex SW 6 para. 16).

34. For the purposes of the 2005 survey, the Council purchased a digital camera although it was not necessary to use the camera to detect the presence of the weeds (Ex. PSC 2 at para. 6). The DVD of the 2005 survey (Ex 3) shows the helicopter being piloted by Mr Thrupp.

35. The procedures of South West included a briefing by the pilot in relation to (inter alia) matters of flight safety. This included those travelling on board being asked to keep a lookout for any hazard which might present itself, including power lines. On a previous similar survey conducted on behalf of another Council, Mr Thrupp had reminded those on board of the necessity to keep a look out (Ex PSC 7 at para. 19).

36. Further, although the ultimate responsibility remains with the pilot, the very nature of aerial surveys conducted to determine the presence of noxious weeds is such that other person(s) are on board for the purposes of observing the areas in which those weeds are present. The pathway which is flown in such surveys is determined, to some extent, according to the requests and requirements made by the customer in the course of the flight (Ex SW 7 at para. 3). It is not uncommon for the pilot to be asked to fly in a particular direction to enable vegetation to be inspected (Ex SW 7 at para 6). In short, the conduct of an aerial weed survey involves requests being made by those who have the responsibility of carrying out the actual inspection (Ex SW 7 at para.7). Given his position with the Council, I am satisfied that this was to be part of Mr Stephenson's role in the follow up survey.

THE COUNCIL'S PLANNING FOR THE SURVEY

The proposed height threshold

37. Kent Boyd was the General Manager of the Council when the survey was being planned. He was involved in the arrangements for the survey leading up to February 2006 (Ex PSC 1, paras. 15 and 16). According to Mr Boyd, Mr Sullivan (who was Mr Stephenson's immediate supervisor) had informed him (inter alia) about the proposal to conduct the survey and had advised him that the flight would be undertaken "at the same height as the last survey" (i.e. 500ft).

38. In a second statement made on 26 April 2013 (Ex PSC 2) Mr Boyd explained (at paras. 8 and 9) that the information about the proposed height threshold had been conveyed to him by Mr Sullivan and Mr Stephenson at what he described as an "informal meeting" which had taken place in his office. According to Mr Boyd, this meeting represented his only involvement in the planning for the flight (Exhibit PSC 1 at para. 16).

39. Prior to making the statements which are Exs PSC 1 and PSC 2, Mr Boyd had made three other statements (Exs. SW 28, SW 29 and SW 30). Exhibit SW 28 was a "joint statement" which he had made with Mr Sullivan to an insurance investigator on 9 February 2006, one week after the accident. Exhibits SW 29 and SW 30 were statements made by Mr Boyd to police on 8 March 2007 and 1 April 2008 respectively. None of these statements made any reference to any meeting having taken place, nor did they make any reference to a discussion about the height at which the proposed survey was to be conducted.

40. When cross-examined (commencing at T416 L25) Mr Boyd said that paragraph 15 of Ex PSC 1 encapsulated "most" of the discussion which had taken place, although he said that there was "a longer discussion than that". Paragraph 15 of Ex PSC 1 does little more than record a statement said to have been made by Mr Sullivan in which he referred to the proposed survey in the most general terms. If there was a longer discussion, why it was that Mr Boyd did not set it out in his statement remains unexplained.

41. Mr Boyd agreed that the first occasion on which he had mentioned anything about having had a conversation with Mr Sullivan regarding height levels was in 2012. He also agreed that there was no record, be it in the form of a minute, file note, memorandum, diary note or any other document, of the "informal meeting" to which he referred in Ex PSC 2 (at T419 L15-36).

42. The absence of any reference, in any of Mr Boyd's earlier statements, to the informal meeting is significant. In particular, Ex SW 28 is a statement made to an insurance investigator on 9 February 2006. This was only one week after the accident. That statement canvasses the circumstances which led to the survey being arranged, approved and undertaken. It is evident that for the purposes of making that statement Mr Boyd's mind was being specifically directed to those issues. It is therefore surprising, to say the least, that when making that statement Mr Boyd completely omitted to make any reference to any discussion about flight thresholds, as well as any reference to an informal meeting, only to then recall such matters several years after the event.

43. In cross-examination (commencing at T420 L8) Mr Boyd was asked what steps had been taken to ensure that the proposed height threshold was incorporated into a plan for the flight. In response he said:

"The officers that discussed it with me in essence assured me that they had researched that, and that is what they were going to do. So I had been assured, if you like, that that had been incorporated into the thinking on this operation".

44. When asked what he understood had been researched, Mr Boyd said (T420 L17):

"They had spoken as I understand, with the - themselves and the pilot. So Ian Stephenson and Peter had discussed it. They indicated that they had spoken to the pilot and then they had spoken to me."

45. Mr Boyd then said (T420 L49):

"I am merely saying that I recollect that they mentioned, or that Ian had mentioned, he had spoken to the pilot."

46. Mr Boyd was asked (T421 L11) what instructions had been issued to the pilot in relation to flight levels. He responded by saying that he did not know.

47. It is appropriate, at this point, to make some observations arising from these aspects of Mr Boyd's evidence.

48. Firstly, as I have previously noted, Mr Boyd's principal evidentiary statement (Ex. PSC 1) contained no reference at all to any meeting having taken place, informal or otherwise. His three previous statements (Exs. SW 28, SW 29 and SW 30) similarly included no such reference. The first reference to any meeting was contained in Ex. PSC 2. That statement was signed in April 2013, more than 7 years after the accident occurred.

49. Secondly, according to Mr Boyd, what was being discussed involved a proposal to engage in an important exercise, which involved Council expenditure and which necessarily exposed Council employees to a risk of injury. It might reasonably be expected that a meeting of that nature, if it did take place, would have been documented in some way, yet on the evidence before me it was not.

50. Thirdly, and quite apart from the absence of any reference in Ex. PSC 1 to a meeting, there was no reference in that document (or in any earlier statement made by Mr Boyd) about Mr Boyd being told anything about the proposed height threshold for the survey. That was a matter which emerged for the first time in Ex PSC 2, a statement made years after the event.

51. Fourthly, Mr Boyd's evidence as to what was said about height thresholds was at best vague, and in one important respect, contradictory. As I have set out (at [44] above) he initially said that he had been told that "they" (i.e. Mr Sullivan and Mr Stephenson) had spoken with the pilot. He then shifted from this position and said that Mr Stephenson had told him that he had spoken to the pilot. The precise terms of any such discussion were not made clear.

52. Mr Sullivan agreed (T474 L31 and following) that in addition to Ex PSC 6 he had made:

1. a joint statement with Mr Boyd on 9 February 2006;

2. a statement to the police on 22 March 2007; and

3. a file note which was made the day after the accident.

53. Mr Sullivan's evidence (Ex. PSC 6 para. 21) was that Mr Stephenson had informed him that the flight would be conducted at the same height level as the 2005 survey. When cross-examined (T477 L45-47) he maintained that this had occurred in a discussion which had taken place in Mr Boyd's office. He conceded (T517 L38-43) that there was no reference in any of the statements in [52] above to having made enquires, or having had discussions with Mr Stephenson, about height levels. When it was put to him that he had not had any such discussions with Mr Stephenson, Mr Sullivan said (T474 L4):

"My understanding was that the flight was to be conducted at the same height above ground level as the Dubbo flight. The reasoning is because Ian, after the Dubbo flight, said that 500 feet was more than adequate to identify weeds."

54. Mr Sullivan's use of the word "understanding" is telling. It is consistent with evidence he had previously given before the Coroner (T517 L18 and following) when he said:

"Ian I believe made investigations into their qualifications. We, I was under the impression that we would not be going below the heights as specified in the 2005 flight. "

55. Mr Sullivan may have been under an "impression" about height levels. However, on neither of the occasions referred to in [53] and [54] above did he make reference to having had a discussion about the matter.

56. Mr Sullivan also agreed (T517 L45 - T518 L1) that he gave the following evidence before the Coroner:

"Q. And you would agree that approval seems to have been given for the 2006 flight without any reference to height limitations?

A. Yeah, but once again the fact was that we understood that the flight would not go below the previous flight.

Q. This seems to have been understood but never stated?

A. Yes."

57. Mr Sullivan's concession before the Coroner that the proposed flight level was "understood but never stated" runs contrary to his evidence (in [53] above) that Mr Stephenson had actually informed him the flight would be conducted at the same height level as the 2005 survey. I am satisfied that no discussion whatsoever took place between Mr Stephenson and Mr Sullivan regarding the height threshold for the flight. I am also satisfied that such threshold was not documented in any way at all. That omission was, as Mr Sullivan conceded, a significant failure of Council policy (T 515 L25).

58. The first suggestion Mr Sullivan made about a discussion having taken place with Mr Stephenson concerning the height threshold was in May 2012 when he signed Ex. PSC 6. In the previous 6 year period, he had made two statements and prepared one file note in relation to the accident. It is evident from the terms of Ex SW 28 that for the purposes of making that statement Mr Sullivan (and for that matter, Mr Boyd) had been asked to call to mind matters leading up to the accident. In those circumstances, the failure of each of them to record discussions that they now say took place is obviously significant.

59. I am satisfied that Mr Sullivan assumed that the height level for the survey would be the same as was the case with the 2005 survey, but that he did not discuss it. As he told the Coroner, it was something which was understood but never stated.

60. I am satisfied that neither Mr Boyd nor Mr Sullivan had any discussion, with Mr Stephenson or anyone else, about height thresholds when preparing for the flight. I am also satisfied that no meeting, informal or otherwise, ever took place, and that neither Mr Boyd nor Mr Sullivan took any steps to:

1. properly ascertain the proposed height levels of the flight; and/or

2. ensure, by giving a direction to Mr Stephenson, that a particular minimum threshold be maintained; and/or

3. ensure, by giving a direction to the pilot (be it through Mr Stephenson or otherwise) that a particular minimum threshold be maintained.

61. I am satisfied on the evidence that both Mr Boyd and Mr Sullivan simply assumed, absent any discussion or enquiry, that the flight for the proposed survey would be the same as was the case with the 2005 survey. Neither of them took any step(s) to ensure that this would be the case.

Consideration of the possibility of a wire strike

62. Mr Boyd was cross-examined about the nature of the risk assessment undertaken by the Council prior to the flight. He said (commencing at T423 L8) that in the course of the informal meeting the possibility of wire strike was discussed in the context of the proposed height threshold.

63. Mr Boyd was clearly aware of the risk of a wire strike (T457 L45-47). In particular, he agreed (T461 L10-12) that as a consequence of a previous helicopter accident at Dunedoo, the possibility of a wire strike was a "real issue" (T461 L9-11). Mr Sullivan agreed, for the same reason, that wire strike was an important issue (T523 L16-17; T533 L18-20).

64. I have already noted that paragraph 15 of Ex. PSC 1 sets out the discussion which Mr Boyd said took place. That paragraph is supplemented by paragraphs 8 and 9 of Ex. PSC 2. None of that material, nor any of the other statements made by Mr Boyd, make any reference at all to ever discussing the possibility of a wire strike. The suggestion that such a subject was discussed emerged for the first time in cross-examination.

65. I have already concluded that no informal meeting ever took place. I am fortified in that view by the manner in which Mr Boyd's evidence of having discussed the possibility of a wire strike emerged. I do not accept Mr Boyd's evidence that the possibility of a wire strike was ever the subject of any discussion. I am satisfied that such an issue was never discussed.

The Council's risk assessment

66. Annexure F to Ex. PSC 1 is a document entitled "Local Government Occupational Health and Safety Handbook". It was issued by the Council and bears a date of 12 December 2004. It was thus operative at the date of the accident.

67. Page 4 of Annexure F, under the heading "Parkes Shire Council Safety Policy Statement" includes the following:

"PURPOSE

To ensure a safe workplace for all through consultation with staff and by implementing policies, procedures and risk management principles including hazard identification and control into the daily activities of Council.

MANAGEMENT RESPONSIBILITY

The promotion and maintenance of Occupational Health and Safety is primarily the responsibility of management. Management at all levels is required to contribute to the health, safety and welfare of all persons in the workplace. To this end, it is management's responsibility to develop, implement and keep under review, in consultation with its employee's (sic), the Organisations OHS program."

68. The document then deals with specific responsibilities of contractors and sub-contractors, and states:

"(d) CONTRACTORS & SUB-CONTRACTORS

All contractors and sub-contractors engaged to perform on Council's premises or locations are required, as part of their contract, to comply with the Occupational Health and Safety Acts, Regulations, Council Policy, programs and procedures and Council's Sun Protection Policy and to observe directions on health and safety from designated officers of the organisation. Failure to comply or observe directions will be considered a breach of the contract and maybe (sic) considered sufficient grounds for termination of the contract."

69. Mr Boyd accepted (T457 L49 - T458 L4) that a risk assessment was required in any case where a Council employee was required to work near overhead wires. Obviously, Mr Stephenson and Mr Buerckner were going to be in that position when the survey was being undertaken.

70. By reference to Annexure F to Ex PSC1, Mr Boyd said (T422 L23) that he believed "everyone had a role" in the process of risk management in respect of the proposed survey. He conceded (T424 L44) that he gave no consideration, in preparing for it, to any information which the Council might have held regarding the presence of power lines in the area in which the flight was to be undertaken. He said that whilst he was not sure whether the Council had such information available to it, he did not turn his mind to the question of whether or not it should have been sought and obtained for planning purposes (T425 L28).

71. Mr Boyd then gave the following evidence (commencing at T425 L35):

"Q. This is the situation, isn't it, in 2006. Noone in council instructed Ian Stephenson as to minimum heights?

A. I don't believe he was instructed, no.

Q. And noone in council instructed the pilot as to minimum heights?

A. I don't know the answer to that.

Q. Noone in council instructed Ian Stephenson to instruct the pilot as to minimum heights?

A. I didn't.

Q. Noone checked that those instructions were all complete?

A. I didn't, sir, no.

Q. The risk management, such as it was, was just left to Mr Stephenson, wasn't it?

A. Well, I think we did the substantial portion of the risk management in my office between Ian Stephenson, Peter Sullivan, and myself.

72. For the reasons already outlined, I am satisfied that no discussion ever took place in Mr Boyd's office. A discussion of the kind described by Mr Boyd, even if it had occurred, would have fallen substantially short of constituting a "substantial portion of the risk management".

73. Mr Boyd accepted that:

1. the ultimate responsibility for occupational health and safety issues rested with him, and that this required that risks be identified and managed (T433 L1);

2. before entering any contractual relationship with a service provider, either a risk assessment or a safe work method statement should be in existence (T438 L35-43);

3. notwithstanding (ii), and notwithstanding his acknowledgment that documentation is an important aspect of management and elimination of risks, neither a risk assessment (T438 L1-8) nor any safe work method statement (T438 L21) could be located as having been prepared in respect of the proposed flight.

74. When asked whether he considered it acceptable that no risk assessment was undertaken in advance of the flight, Mr Boyd said (T440 L31 and following):

"With small projects, unfortunately it's not necessarily uncommon.

HIS HONOUR

Q. Is that another way of saying that the smaller the project the less scrutiny that's applied to matters of this nature?

A. Unfortunately, your Honour, sometimes that's the case. "

75. Clearly, Mr Boyd regarded the proposed survey as a "small project", in the sense of being one which involved what he considered to be small expenditure on the part of the Council (T440 L6-18). As a consequence, the scrutiny which he applied to assessing and managing the risk(s) associated with it was commensurately small, to the point of being largely non-existent. The folly of such an approach is self-evident. In my view, it represented a significant departure from what was required.

76. Mr Boyd also gave evidence (commencing at T441 L21) that it was the Council's practice for any prospective contractor to be asked to provide particular documentation before any expenditure was authorised. This included any relevant licence or authority required to perform the work, as well as evidence of insurance cover. He agreed that absent such material, a contract should not be allowed to proceed.

77. Notwithstanding this, he conceded (commencing at T443 L14) that at the time of engaging South West, the Council had not asked South West to provide:

1. verification of its licence;

2. verification of any insurances it held;

3. a risk assessment; or

4. a safe work method statement.

78. According to Mr Boyd, it was open (and apparently acceptable to the Council) to conduct a risk assessment at the aerodrome shortly prior to take-off (T440 L22-27). On the evidence, the only representatives of the Council who it anticipated would be present at the aerodrome prior to take-off were Mr Stephenson and Mr Buerckner. Their experience, such as it was, was limited to flying on the 2005 survey. Neither had any experience in assessing risk, nor was such assessment the responsibility of either of them.

79. The only available conclusion is that Mr Boyd apparently thought it acceptable to delegate the task of risk assessment to either or both of Mr Stephenson and Mr Buerckner, in circumstances where such assessment was to be conducted at the aerodrome immediately prior to the flight. It was completely inappropriate to delegate that responsibility to an employee. Even if it could be regarded as appropriate, Mr Boyd not give any relevant instructions about how the assessment might be conducted and, in particular, what might happen in the event that a risk was identified. In particular, he gave no instructions to either Mr Buerckner or Mr Stephenson to convey anything to the pilot about the minimum height threshold.

80. Mr Boyd said that despite all of these matters, he nevertheless believed that "the procedures were followed" (T446 L21-23). When asked (commencing at T446 L27) why he held that view, he said:

"A. Because when we discussed it, that there was discussion about insurances, certification, experience, qualifications.

Q. OH&S risk assessment?

A. OH&S, well certainly experience and qualifications and insurance, so we discussed those things and that's largely what these documents prescribed."

81. Mr Boyd's evidence was that he had a single discussion about the flight. For the reasons previously set out I am satisfied that no such discussion ever took place. I am further fortified, in coming to that view, by the fact that there is no reference in any of Mr Boyd's statements to any discussion having taken place in respect of the insurances, certifications, experience or qualifications of South West as the contractor. In the absence of any such reference(s) I do not accept that such matters were ever the subject of discussion with Mr Boyd at any time. Once again, Mr Boyd's evidence in this respect emerged years after the event.

82. I am also unable to accept Mr Boyd's evidence that the "procedures were followed". Mr Boyd had the ultimate responsibility for the identification and management of relevant risks associated with the flight. He failed to discharge that responsibility. He accepted that a risk assessment was required but did not perform it. He left it all to Mr Stephenson, a person with little experience in aerial weed surveys.

83. I am satisfied that these various failures on the part of Mr Boyd stemmed from his determination that the proposed flight was a "small project". He expressly conceded that on occasions, less scrutiny was applied to the necessity to conduct risk assessments because the expenditure on the project was low. Such an approach is completely at odds with the proper discharge of the duty imposed upon an employer to ensure the safety of its employees.

84. Mr Sullivan also had responsibilities in this regard. He supervised and managed both Mr Stephenson and Mr Buerckner. He accepted that as their supervisor and manager he was required to ensure that the Council's policy in respect of safety issues was effectively implemented. He specifically conceded (T483 L36) that he was responsible for ensuring compliance with the relevant OH&S program. He agreed that Annexure F to Exh. PSC 1 stipulated, amongst other things, that all relevant hazards be identified. For the reasons I have stated, these issues were not addressed.

85. Mr Sullivan was well aware of the danger posed by power lines in a project which involved aerial surveillance (T484 L21 and following). In the context of the proposed survey he was specifically aware that:

1. there were wires present in the area in which the survey was to be conducted;

2. they included a single long span;

3. such span ran higher than the average power line in the vicinity of the Dungeons.

86. Mr Sullivan conceded (commencing at T483 L45) that no "specific sit down" risk assessment was conducted in respect of the 2006 flight. His explanation for that was in the following terms:

"I was advised that the same flight conditions would apply, and we believed that, or we were confident that power lines would not come into play at that height. "

87. For the reasons stated, I am satisfied that Mr Sullivan was not advised about, and did not discuss, height levels. His statements make no reference to ever discussing power lines, or the risk they posed. I am satisfied that he did not discuss such matters but that he assumed that the previous procedure would be followed again.

88. Mr Sullivan approved the expenditure for the flight in the absence of any documented safe work method statement or risk assessment being provided by South West (commencing at T494 L1). He said that Mr Stephenson had informed him that such documents "would be coming with the helicopter and that he would view them prior to take off" (at T494 L21). When asked why, in all of these circumstances, the flight was allowed to proceed, Mr Sullivan said (commencing at T528 L7):

"A. Once again, the documentation Ian informed me was coming over with the pilot and he would view them before take off. So for a contract of this size, it was common practice to view their insurances and safe work method statements prior to them undertaking the work."

89. For the reasons I have already stated, it was not Mr Stephenson's responsibility to assess whether the flight should proceed in light of such documents as were provided. He had no relevant experience in such matters. Moreover, I am satisfied that Mr Sullivan gave no direction to Mr Stephenson not to take off until such time as those documents had been produced. Mr Sullivan conceded that the failure to procure a risk assessment from South West prior to the departure of the flight was a significant departure from the Council's stated policy (at T515 L23-36). It is no answer to assert that there was some understanding that such matters would be attended to by Mr Stephenson prior to the helicopter taking off.

90. The suggestion that Mr Stephenson's viewing of documents immediately prior to take off amounted to an appropriate risk assessment overlooks two fundamental considerations. Firstly, it was not Mr Stephenson's responsibility. Secondly, Mr Sullivan could not possibly have thought that Mr Stephenson, a person with no aviation experience, was in a position to determine whether the documentation provided by South West was satisfactory so as to allow the flight to proceed. The responsibility for doing so should never have been delegated to him.

91. Mr Sullivan then gave the following further evidence (commencing at T528 L15):

"Q. What did the size of the contract have to do with anything, Mr Sullivan?

A. It was the size of the contract generally stipulates how much investigation or sort of preengagement documentation you have to undertake.

Q. Could you please look through this document, and tell his Honour where in the engaging of contractors procedure one is to find a clause that matches the description you have just told us about now?

A. Yeah. No, it is not there.

Q. It doesn't exist, does it?

A. No, it doesn't.

HIS HONOUR

Q. Does that mean that you pay more attention to contracts that are worth more money than you do to contracts that are worth less money in terms of adhering to your procedure?

A. The requirement for documentation is generally increased as the contract size increases, yes."

92. The evidence of Mr Sullivan in this regard was consistent with that of Mr Boyd. It was submitted that the approach taken by both Mr Boyd and Mr Sullivan, which involved equating expenditure with risk, was indicative of a "culture" within the Council. Without labelling it in that way, I am satisfied that within the Council, projects which were regarded as involving small expenditure attracted substantially less scrutiny, in terms of risk assessment and management, than projects which involved the expenditure of larger sums of money.

93. Such an approach was necessarily fraught with danger. As a matter of common sense, the fact that expenditure on a project may be small does not mean the risk is commensurately small. The present is a case in point. The proposed survey involved hazardous work, in the carrying out of which two Council employees were to be directly exposed to power lines.

94. For all of these reasons, and in the respects that I have identified, both Mr Boyd and Mr Sullivan failed to discharge their respective responsibilities to ensure that the risks associated with the proposed survey were identified, assessed and managed prior to the departure of the flight.

Data available to the Council

95. Mr White gave evidence (Exs SW 11 and SW 12) about the availability of a computer program in 2005 known as "Map Info", which allowed multiple pieces of topographical information to be obtained from external sources, collated, and effectively reproduced in one document. In the context of the present case, the program permitted data to be obtained from an external source, and then superimposed over an existing map so as to provide a composite topographical picture of a particular area. Mr White demonstrated the process in the course of giving evidence.

96. For some time EE (and its predecessor Country Energy) maintained a computer-based system recording data about its assets. The data consisted of information identifying the location of (inter alia) poles and power lines. The system allowed such information to be represented on cadastral maps (Ex EE 23 at paragraph 5).

97. Mr Pallot identified the four poles supporting the power line struck by the helicopter as:

1. P310964;

2. P310965;

3. P310966; and

4. P310967.

98. Data was provided to the Council on 11 October 2005 which showed an overview of the information provided, as well as a detailed view of the area of the accident (Ex PSC 8 at para 8). It was provided in a form which enabled it to be transposed into the Map Info program operated by the Council (Ex. PSC 8 at para.8; Ex EE 23 at para. 15).

99. Mr Pallot conceded (paragraph 3 of Ex EE 24) that the data provided to the Council in October 2005 contained inaccuracies. However, he maintained that it was "overall reasonably accurate" in terms of identifying the location of power lines in the area to be covered by the survey. He accepted that when the Council received the data, the location of the poles had not been incorporated into the system and accordingly such material as the Council did receive did not include reference to those locations (T637 L5-13). He could give no indication of the accuracy of the data as at 2006 (T642 L42-44).

100. Mr Fitzsummons, the Council's Assets Manager, had access to the information which had been provided to the Council by EE. He formed the view that in some respects it was "incomplete and probably inaccurate". This, he explained, was because he noticed areas where poles were depicted but where there was an absence of notification of the presence of wires or conductors running between them (Ex. PSC 8 at para 10; Ex. PSC 9 at para. 5). As a consequence, Mr Fitzsummons was not confident in using the information which had been provided. However, he conceded (T555 L89-41; T559 L23-26) that he had no reason to doubt the accuracy of the data which was produced in relation to the area of the Dungeons.

101. As the Council's Assets Manager, the primary interest of Mr Fitzsummons (in terms of the data which had been supplied) was the identification of underground assets (T551 L12-14). Although he knew of the 2005 survey (T551 L37-39) he knew nothing of the proposal that a further survey was to be conducted in 2006 (T550 L4-6). In these circumstances he gave no thought to the use to which the data which had been supplied could be put in terms of planning for that survey. No one from the Council made any enquiry of him in relation to it (T551 L41-T552 L6). No criticism can be levelled at Mr Fitzsummons in these respects. He had no role to play in the preparation for the proposed flight. Indeed, he was unaware that it was to take place. His duties and responsibilities within the Council lay in an entirely different area.

102. However, and in circumstances where Mr Boyd and Mr Sullivan were aware of the danger of a wire strike, it remains the case that there was information regarding the presence of power poles and power lines in the area of the Dungeons which was available to the Council in the period leading up to February 2006. Even though Mr Fitzsummons had some misgivings about its accuracy, they did not extend to the data as it applied to the area of the Dungeons. That data would clearly have been relevant to addressing the risks associated with the proposed flight. The data was not disseminated within the Council once received. Neither Mr Boyd nor Mr Sullivan asked for it to be provided to them for the purposes of preparing for the flight, and assessing the risks associated with it.

SOUTH WEST'S PLANNING FOR THE SURVEY

103. Mr Dolby, the Chief Pilot of South West, gave evidence regarding the preparations for the flight which were undertaken by South West. He said that it was commonplace for an organisation who requested a weed survey (in this case, the Council) to take part in a briefing conducted on the same day as the flight. He described that procedure (T64 L40) as "on the spot ad hoc planning" which, he said, was "far more common than getting an intensive briefing or planning in advance" (T64 L39 to T65 L1). Mr Dolby was not present at the Parkes aerodrome on the morning of 2 February 2006. He therefore knew nothing about any briefing on that day.

104. On 30 January 2006 Mr Dolby met with Mr Thrupp. According to Mr Dolby (Ex SW 5 at paragraph 16):

"(Mr Thrupp) told me that along with two other bookings he had a noxious weed survey on behalf of Parkes Shire Council. I was not involved in making the arrangements with Council. The conversation covered a series of surveys and their hazards".

105. Mr Dolby said that a further conversation took place on the following day, (31 January 2006) at which time he and Mr Thrupp "rehashed a couple of points" (T123 L23). These were the only two occasions on which Mr Dolby had any discussions with Mr Thrupp regarding the proposed survey.

106. When cross-examined, Mr Dolby explained that during the first of those discussions he and Mr Thrupp spoke about the "dangers of low level weed survey" (T108 L23-29). However, he said that there was no specific discussion concerning the particular survey to be undertaken for the Council (T112 L44). He said that the discussion was conducted over 2 hours (T122 L35) although he later clarified that this 2 hour period was not entirely devoted to discussions about the proposed flight(s) (T122 L46).

107. What Mr Dolby described as having taken place when he spoke with Mr Thrupp appears to have been an extension of the system of "ad hoc planning" which he said was common. Whilst it may have been common, whether it was adequate is another question entirely. On the evidence before me, it was not. In particular, there is no evidence that the discussion between Mr Dolby and Mr Thrupp covered (for example) the risk posed by flying in an area where there were overhead power lines, or what should be implemented, in terms of a plan for the flight, to address and manage that risk.

108. Mr Dolby said that there was an expectation on the part of South West that the customer requesting the survey would provide a map showing the area which was to be covered (T114 L25-28). He also said (T147 L25) that South West "was invariably given a map of some description produced by the customer to show where they wished to go". However, he later conceded (T147 L37-40) that situations may have arisen when a flight was permitted to be undertaken without any map being provided at all (although the survey was not necessarily one of them).

109. Mr Dolby then said (T114 L30) that it was his practice to direct the pilot to obtain a copy of a map of the relevant area prior to any flight being undertaken. He initially said that he could not recall giving such a direction to Mr Thrupp. He later stated (T115 L1-9) that he had not done so, and had not directed him not to commence the flight without a map being available.

110. The approach taken by Mr Dolby in these respects was unsatisfactory. The notion of allowing a pilot to undertake a flight of this kind without being assisted by a map of the area which was to be overflown reflects a lack of proper planning. Identifying, in advance, the area which was to be the subject of the proposed survey was a fundamental step in addressing any associated risk.

111. Mr Dolby's approach to planning for the flight also ignored important provisions of the Operations Manual (Ex EE1). Mr Dolby agreed (T91 L47-50) that the Operations Manual contained comprehensive directions concerning procedures and the handling of aircraft operated by South West. He also agreed that as the Chief Pilot of South West he was under a positive duty to comply with all procedures which were specified in it (T97 L45 - T98 L4).

112. The Operations Manual required (inter alia) that any proposal for an aerial survey be forwarded through Mr Dolby, in his capacity as the Chief Pilot, for the purpose of conducting a "Task Profile Assessment". Mr Dolby initially explained (T118 L34 and following) that he understood that such assessment was an assessment of "the general requirements of the job", which involved considering whether the pilot he intended to assign to the job was "capable of doing it". However, he ultimately accepted (T119 L17) that the conduct of a proper Task Profile Assessment required something more than simply considering the competence of the pilot.

113. Notwithstanding this, and leaving aside his conversations with Mr Thrupp, the "assessment" he conducted in the present case involved little more than reaching a conclusion that Mr Thrupp was competent to undertake the task of conducting the survey (T119 L33). That conclusion said nothing about, and incorporated no consideration of, the actual task to be undertaken. Those were matters which were fundamental to the conduct of any proper assessment. The assessment performed by Mr Dolby involved no, or no proper, consideration of any attendant risk(s), and thus no determination of the manner in which those risks could be addressed. It follows that the assessment (such as it was) which was carried out by Mr Dolby fell substantially short of what was required.

114. Mr Dolby asserted that if there was a particular safety requirement of the job that was required to be addressed in advance, it was his policy to deal with it (T65 L3-7). Given the nature of the aerial survey which was to be conducted in this case, the obvious risks associated with such a survey, and the consequent safety considerations which arose, I am unable to accept Mr Dolby's evidence that he had a policy of addressing matters in advance. For the reasons already stated, the assessment he undertook in this case did not involve any proper consideration being given to the requirements of the task which was to be undertaken. Without considering such requirements, he could not possibly have been in a position to identify any particular safety requirement(s) which may have needed to be addressed.

105. Section D of the Operations Manual contained provisions which were specifically related to aerial spotting and survey operations. Those provisions imposed an obligation upon Mr Dolby, as Chief Pilot, to carry out a briefing with Mr Thrupp prior to the flight. The briefing was required to address (inter alia):

• confirmation of the boundaries of the area the subject of the survey;

• the location and description of any known hazards or obstacles; and

• the identification of restricted, prohibited or dangerous areas within the survey area.

116. I have already made reference to the two conversations which took place between Mr Dolby and Mr Thrupp in the period leading up to the accident. Mr Dolby's evidence about the content of those conversations contains no reference at all to any of the matters in [115]. Mr Dolby accepted (T122 L12) that addressing those matters was a mandatory requirement imposed by the Operations Manual.

117. Mr Dolby maintained that he had "discussed some of these issues specifically" with Mr Thrupp (T122 L19). However, his evidence in this regard was vague. His evidence that he addressed "some" of the issues set out in the Operations Manual strongly suggests that he did not address all of them. The issues which were the subject of discussion remain unclear. What is clear however, is that Mr Dolby failed to meet the obligations imposed upon him by the Operations Manual to conduct a proper briefing. In particular, there is no evidence that any briefing addressed the identification of hazards such as overhead wires.

118. In addition to all of these matters, the planning by South West for the survey (such as it was) did not incorporate the preparation of any written risk assessment or safe work method statement in relation to the flight (T115 L38-50). In the course of being cross examined (T130 L22-30) Mr Dolby gave the following evidence in this respect:

Q Are you suggesting that in the absence of a detailed briefing from you Mr Thrupp was able to work this out for himself?

A Yes.

Q Is it in fact the case that on this occasion, prior to the Parkes flight, that that is what you did, you left those features up to Mr Thrupp to work out for himself?

A That's correct. I made a briefing based on the information I had available and left it to Mr Thrupp to pick up the rest.

119. I am satisfied that, in terms of assessing the relevant risks, Mr Thrupp was left to "pick up" the relevant considerations, Mr Dolby having failed to conduct any proper assessment. That was not adequate. In particular, it did not comply with the requirements of South West's Operations Manual.

120. Moreover, for Mr Dolby to suggest that he "made a briefing based on the information he had available" ignores the fact that he had not had any dealings with the Council. I am satisfied on the evidence that apart from the fact that the proposed flight was for the purposes of conducting a weed survey, Mr Dolby had little or no information upon which to conduct a briefing. In the absence of a map, he was not even aware of the precise area which was to be overflown. No risk assessment was undertaken. Hazards were not identified. Mr Dolby left all of those matters to Mr Thrupp. This represented a fundamental failure on the part of Mr Dolby to comply with the obligations imposed upon him as the Chief Pilot of South West.

THE FLIGHT

121. Mr Stephenson telephoned Mr Sullivan at 8.35am on 2 February 2006 and told him that the helicopter was about to take off (Ex. PSC 6 at para. 28). Mr Dolby's evidence was that generally speaking, flying at 300 ft was a comfortable height for a noxious weed survey (T74 L20-23).

122. At about 9.30 am, Sgt Park of the NSW Police was driving along the road near the accident site and saw debris. As he did so, he was approached by Russell Schmidt who told him that a helicopter had "just crashed" (Ex. SW 27 at paras 3-5).

123. Mr Schmidt had been driving in the vicinity of The Dungeons when he first saw the helicopter in front of him. He described (Ex. SW 15 at para. 5) that the helicopter "came from over the hill on the right hand side" before banking around and then flying in the same direction as that in which he was travelling, a manoeuvre he described as being in the nature of a u-turn (commencing at T234 L20).

124. Mr Schmidt continued (Ex. SW 15 at paras. 5 and 6):

"Everything looked normal and it was flying along and I would estimate it was fifty or sixty feet above me. The engine sound (sic) fine at that stage and then I saw the overhead power line and it looked like it was attached to the main propeller. That power line runs straight over the tops of the hills and right across the middle of the road way.

The next thing I know there was loud explosion and the helicopter started losing pieces of it. There was debris falling down onto the road in front of me and I had to pull the car up. The helicopter then tipped backwards and fell out of the sky. It fell into the trees on the side of the road."

125. In further evidence in chief (T217 L37 and following) Mr Schmidt said that when he first saw the helicopter it was "on the turn ... and heading parallel the same way I - that I was travelling". However, after being directed to the terms of Ex. SW 15 (T 217 L45 and following) Mr Schmidt confirmed that he first saw the helicopter when it was to his right, flying towards him.

126. Mr Schmidt described (T214 L40 and following) a curve in the road that was located "a couple of hundred yards" from the start of The Dungeons. He explained that on the right hand side of the road (in the direction in which he was travelling) there was a property located before The Dungeons which was managed by a Mr Tossetti. By reference to that location he said (T215 L4) that he was "probably at about Tossetti's gate" when he first saw the helicopter, but later agreed that because of the lapse of time since the incident he was no longer sure that this was the case (at T232 L46-48). When he gave evidence before the Coroner, Mr Schmidt said that he had not reached the position of Tossetti's gate when he first saw the helicopter.

127. In terms of the speed at which he was travelling as he drove along the road, Mr Schmidt initially said (T217 L28) that he was travelling "somewhere between 80 and 100" at the time of seeing the helicopter. When cross-examined (T225 L43) he agreed that he was travelling "at about the speed limit of 100".

128. Mr Schmidt also agreed (T235 L35 and following) that he had given evidence before the Coroner that the helicopter was approximately 50 feet above the trees after it turned. He said (T236 L8) that the helicopter "dropped a bit" from the time that he first saw it until the time that it had completed its turn and that having completed such turn, it was "pretty much on top" of him. Mr Schmidt said that at that point, he put his head out of the window of his vehicle in order to get a better view of the helicopter, at which time the helicopter "overtook" him and continued along the same line as the road, away from his vehicle. Mr Schmidt continued to watch the helicopter until he saw it contact the wire (T237 L12-14). He described that the contact caused the wire to "bow forward", following which he saw the helicopter tip backwards, and then fall to the ground.

129. Although it was apparent that Mr Schmidt was not accustomed to giving evidence, I am satisfied that he was doing his best to be truthful and accurate when recalling what had occurred. I am satisfied that he saw the helicopter come towards him, perform what was effectively a u-turn, and then travel in the same direction as that in which he was travelling before coming into contact with the wire and crashing in the manner which he described. I am satisfied it was the contact with the wire which caused the helicopter to crash.

130. However, Mr Schmidt properly conceded that the events about which he was giving evidence had happened quite some time ago, and that this necessarily had a bearing upon his ability to accurately recall them. The fact that this was so was evident from the variations in his evidence as to a number of matters, including the speed at which he was travelling, his position on the road when he first saw the helicopter, and the path taken by the helicopter after it had first come in to his line of sight.

131. It is also apparent that once the helicopter came into Mr Schmidt's line of sight, it became the primary focus of his attention. For at least some of the period over which he observed the helicopter, Mr Schmidt had his head out of the window of his vehicle, looking towards the sky whilst driving, and observing the helicopter. For such time as he was doing so, his attention and focus were directed not to the speed at which his own vehicle was travelling, but to the helicopter and its path. In these circumstances, Mr Schmidt's estimate of his speed is not reliable and is deserving of little weight. In my view, it provides no reliable indicator of the speed of the helicopter in the period immediately before the crash, a matter about which I am not able to make any determination.

132. Mr Schmidt gave evidence ([128] above) of the distance between his vehicle and the helicopter as the helicopter flew above him. He agreed (T236 L8-17) that the helicopter "dropped a bit" to the point where it was "pretty much on top of him". Without intending any disrespect to Mr Schmidt, those descriptions are not particularly helpful in determining, with any degree of precision, the measurements and distances to which he was referring. What is clear, from the fact of the crash and the evidence of the height of the power lines, is that the helicopter was flying at a height of approximately 120 ft when it struck the power line and crashed.

133. As I have discussed more fully below there is expert evidence, which I accept, that "good airmanship" involves carrying out a high level "fly over" of any area into which it is proposed to descend. There is also evidence, which I accept, that Mr Thrupp was an experienced, cautious and safety conscious pilot (Ex. SW 4 at para 4; Ex. PSC 7 at para. 24; Ex. PSC 10 at para. 30; Ex. PSC 11 at para. 12). In these circumstances, it might be expected that Mr Thrupp would have performed a high level fly over before descending into The Dungeons as he did.

134. A period of approximately one hour, or perhaps slightly less, elapsed between the time of the helicopter's departure from the aerodrome, and the time at which it struck the wire. The only evidence of any observation of the helicopter within that period was that of Mr Schmidt. I am not able to determine where the helicopter had travelled between the time of its departure and its appearance in the area of The Dungeons when Mr Schmidt saw it.

135. There was obviously sufficient time for Mr Thrupp to perform a fly over of the area of The Dungeons before descending. However, whether he did so is a matter of speculation. There is simply no evidence about where, and at what height, the helicopter had flown prior to coming into Mr Schmidt's view. In these circumstances the evidence does not enable me to determine whether a high level fly over had been undertaken by Mr Thrupp prior to the accident. To reach a conclusion one way or the other would, in my view, be impermissibly speculative.

136. A related question is whether Mr Thrupp was engaged in the survey at the time of the crash. The path taken by the 2005 survey did not involve flying into the area where the accident occurred. The closest the path of the 2005 survey came to the accident site was to fly along a route located approximately 2 km to the west.

137. Roger Garnsey, an Agronomist, gave evidence that inspections of noxious weeds such as the Blackberry and the African Boxthorn can be undertaken by ground or by air (Ex SW 26 para. 2). The advantage of working from the ground is that most noxious weeds are more easily detected from the ground, although this assumes that it is possible to gain vehicular access to the relevant area. Where such access is not possible, aerial surveillance is an option (Ex SW 26 para. 3).

138. In the present case there were two purposes for which the survey was being conducted (Ex PSC 6 para. 17), namely to:

1. determine the effectiveness of the control programme which had been implemented following the 2005 survey; and

2. identify new weed infestations.

139. The Council was responsible for weed growth along the edges of the road adjacent to the accident site (Ex. PSC 6 para 16; Ex SW 45 at p. 10). The fact that such weed growth could have been accessed by a motor vehicle does not, of itself, support the conclusion that Mr Thrupp was not engaged in the survey at the time of the accident. It remains the case that one of the purposes of the flight was to detect new weed growth. Deviating from the flight path adopted for the purposes of the 2005 survey, and flying into the area of the accident site, was consistent with that purpose.

140. In these circumstances I am satisfied that at the time of the accident Mr Thrupp was engaged in the survey.

THE VISIBILITY OF THE OVERHEAD WIRES IN THE AREA OF THE CRASH SITE

141. For the reasons I have previously stated, I am satisfied that the helicopter crashed to the ground as a result of coming into contact with an overhead power line. This raises a question of the visibility of the wire at the time.

142. On 16 May 2007, in company with Mr Hurley and Mr Coppock, Mr Stewart flew a police helicopter to the accident site. Having done so, he identified (Ex SW 17 para. 5) the two power lines running at right angles to the road. He then flew around the accident site at various altitudes. At paragraph 6 and following of Ex SW17 Mr Stewart said:

"On one of the orbits I positioned the helicopter adjacent to where the power lines crossed the road and I noted that the height indicated on the radar altimeter was 180 feet. Of particular note was the fact that despite observing the position of the wires from other angles, and as a result maintaining an awareness of their position and separation, I formed the opinion that the wires were impossible to see when approached from the direction of travel of the aircraft that was involved in the accident. I recall that when we flew in the vicinity of the wires we did so in replication of the flight as flown by the accident aircraft just prior to the accident occurring. During our replication, which was recorded on video by Senior Constable Coppock, I flew the aircraft at 10 knots forward speed and at an approach height of 180 feet, stopping just prior to where I believed the wires to be however I was still unable to sight them until very close. The wires were not marked for identification in any way."

143. He was also asked about the presence of power poles (T265 L29-38):

"Q. At some stage on the flight that you took on 16 May 2007 did you have an opportunity to observe the power poles that were on the easterly side of the accident siting, in other words the ones that contained the span that Mr Thrupp hit?

A. Yes. Before descending down to the level of the power poles I did what we refer to as a high level reconnaissance. So I over flew the area about 500 feet, which is well above the height of any potential wires, and did an orbit and observed from that altitude you can see the easements and you can see the power poles, but once we descended down to the level of the actual wire these things were obscured."

144. Mr Stewart said that in his experience, power poles which were painted at the top in colours contrasting with the colour of the surrounding vegetation were generally easier to see than poles that were not so painted (T268 L18-30).

145. Mr Stewart also flew to the accident site with the Coroner in the course of the inquest. When asked (T262 L36 and following) what he saw on that occasion he said:

"... What I did on this occasion, with the Coroner on board, was identified a point on the road that indicated to me where the actual wire was and I flew fairly slowly straight towards the wire and stopped at a predetermined point and the wire was more or less at eye level. And the problem with wires is that you have no depth perception, your Honour, and you normally sort of, when you do see them, your eyes tend to play tricks and you don't know if it is a thick wire further away or a thin wire up close. And I can't describe optically how it works but, when you are looking at an (sic) wire with no other reference, the wire appears to move in and out of your vision, move closer and further away.

Q. And from the position that you were in when you I withdraw that. As you approached the wire in the portion of the flight that you have just referred to, that is from the level portion of the flight that you have just referred to, did you have occasion to observe whether, at that point, you could see either of any easements, power line easements, on either side of the valley that you were going into?

A. No, they are not visible from that position, the easements, because we are at the easements, through the trees, are obscured by the trees at that level."

146. Mr Stewart (T270 L3-7) described as a "survival technique" the process of undertaking a thorough investigation from a high altitude before descending to a low level area where there may be wires. When asked (T270 L33) whether part of that practice involved looking for indicators other than wires themselves, he said:

"A. No, not totally, because sometimes I mean, you always look for indicators, like power poles and buildings, that may have powers running to them, and adjacent to larger grid lines you always look for spurs running off them but sometimes the distance between poles can be fairly large, and it is a common technique that is sort of passed by word of mouth, if you like, in the industry I don't know that I have ever done any specific training but to do a 360degree turn over an area where there is a wire; depending on the lighting conditions, cloudy day, sunny days, whatever, that presents itself visually in different ways. So you can actually be looking in any light condition you can be looking straight at a wire and not see it. However, it is a common practice, among myself and my colleagues at least, we do a 360degree turn around an area where we intend to go and at two points in a 360degree turn the wire will become visible (audible sound to demonstrate): You can see it, no you can't; 180 degrees later: (Audible sound to demonstrate) you can see it again.

Q. That's because the light reflects differently?

A. Yes, and the angle that you see the wire depends on the lighting conditions.

Q. It is preferable though, isn't it, to look for other signs other than try and locate the wire?

A. We do both."

147. Mr Stewart agreed (commencing at T279 L46) that as a matter of both common sense and good airmanship a prudent pilot should survey, from a high altitude, any area into which he wishes to fly at a low altitude. However he then said (commencing at T280 L11):

"A. Mm. But I'd like to say that having done a survey and not seen any wires, doesn't mean there's none there. We are still subject to human factors and your eye has limitations and you can only do as best you can. I've cleared areas, flown low into areas in the past where I thought were clear of wires and suddenly there's a wire there that none of us had seen previously. It happens.

Q. It does happen, but if you've got the presence of power poles?

A. Yes.

Q. It's a clear indicator there's a wire there, even if you can't see the wire?

A. And sometimes you can't see the power poles.

Q. I understand that, or straight swathes in vegetation?

A. Sometimes there are none.

Q. What you're looking for, on your survey that you described to his Honour, is you look, before you fly into an area, you may look for the wires themselves but if you can't see the wires, you look for the indicators; don't you?

A. Exactly."

148. Evidence to a similar effect was given by Mr Coppock (commencing at T 737 L39), Mr Dolby (commencing at T62 L1) and Mr Joyce (commencing at T1065 L22).

[108] There is considerable force in Endeavour's primary submission on this issue, which I am inclined to accept.

283. In my view, those observations are directly applicable to the present case. The aerial survey being conducted by South West involved low level flying which was being conducted pursuant to its Air Operators Certificate. Even if Mr Stephenson was properly regarded as a passenger (and for the reasons discussed more fully below it is my view that was not) the helicopter was being used for an aerial weed survey, not for the carriage of passengers or cargo. It was not, therefore, engaged in commercial transport operations as defined.

284. For these reasons, I am satisfied that the work which was being undertaken fell outside the operation of the NSW Act, and thus Part IV of the CAA. It follows that the scheme described above has no application to the Stephenson proceedings insofar as they are brought against Southwest.

285. However, as I have previously noted, a further submission was made on behalf of the plaintiffs in the Stephenson proceedings based upon the proposition that the scheme did not apply because Mr Stephenson was not a "passenger" at the time. For the reasons set out below I am satisfied that this is the case. This constitutes a further reason why the CAA has no application to the Stephenson proceedings.

286. The word "passenger" is not defined in the CAA. Counsel for the plaintiffs drew my attention to ordinary English meaning of the word which, it was submitted, tended completely against the conclusion that Mr Stephenson was a passenger. Counsel for the plaintiffs pointed out that in its ordinary usage, a passenger is "someone who travels by some form of conveyance" (Macquarie Concise Dictionary 4th Edition 2006). The word "travel" means "to go from one place to another; make a journey".

287. In Fellowes (or Herd) v Clyde Helicopters [1997] AC 534, the respondents supplied helicopters for use by police in surveillance operations, as well as pilotage, maintenance services and full ground facilities. The duties of police officers on board the helicopters were to direct the surveillance operations and to give necessary instructions to the pilots, the pilots being solely responsible for flying the helicopters.

288. The deceased and two colleagues were carrying out their policing duties on board a helicopter when it encountered a snow storm and collided with a block of flats. The deceased received fatal injuries and his widow, acting on behalf of their four children and his mother, brought a claim against the respondents alleging common law negligence on the part of the pilot. The respondents maintained that their liability was governed by the Warsaw Convention as amended as applied by the Carriage by Air Acts (Application of Provisions) Order 1967.

289. Article 17 of the order was in the following terms:

"The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking" (my emphasis).

290. In dismissing an appeal against an order entering judgment in favour of the respondents, it was held that since the deceased was on board the helicopter for the purpose of carrying out his police duties, and because he had no responsibility for the operation of the helicopter, he was properly regarded as a passenger.

291. Having cited the provisions of Article 17, Lord Mackay of Clashfern LC said (at 542):

"In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He is therefore properly regarded as a passenger."

292. In reaching this conclusion his Lordship considered the decision in Societe Mutuelle d'Assurance Aerien c. Veuve Gauvain (1967) 21 RFDA 436 in which a flying instructor was giving tuition to a trainee pilot. At the end of the lesson, he gave a demonstration of low flying in the course of which the aircraft struck an overhead wire. Both the instructor and the trainee pilot were killed. In considering this case his Lordship said (at 546):

"In Gauvain there was a contract of instruction between the parties as a result of which the trainee pilot was on board the aircraft at the time of the accident. This I think is sufficient to preclude application of the Warsaw Convention in so far as the operator of the aircraft had obligations to the trainee pilot over and above those of a carrier in any event".

293. Fellowes was considered in Disley v Levine t/as Airtrak Levine Paragliding [2001] EWCA Civ 1087; (2002) 1 WLR 785. In that case, the plaintiff was injured in a paraglider accident whilst undertaking tuition from the defendant in preparation for applying for her elementary pilot certificate. The Court concluded that she was not a "passenger" for the purposes of the relevant order. Henry LJ, having referred to the decision in Fellowes, observed (at [52]:

"It cannot be said that Ms Disley contributed nothing to the flight. True it is that, as set out in the agreed statement of facts, during the flight Ms Disley watched the defendant demonstrate various flight manoeuvres, but she did not practice controlling the glider, or play any part in its operation during the flight. However, the flight could not have taken place without the contribution she made with her legs both on take-off and landing. But over and above that, she was not on the flight as a passenger, nor on the flight under a contract of carriage, but on the flight as a pilot under instruction, and so as one of the crew.

294. Buxton LJ, having referred to the passage from Fellowes at [292] above, said (at [67]):

"That observation was however directed at the particular facts of the Herd case, where it had been argued that Sergeant Herd was not a passenger because he was empowered to give directions to the pilot as to where the helicopter should fly. In every other respect, however, Sergeant Herd was on the helicopter for the purpose of being conveyed from one place to another, albeit places that he determined while he was in the air rather than in advance when he was on the ground. He therefore fulfilled the normal understanding of the word "passenger". That is also the purposive meaning of the word when it is used in a Convention directed at commercial air transport".

295. In Edwards (supra) Johnson J referred to the decisions in Fellowes and Disley before concluding that Mr Edwards, a tree management officer, was not a passenger on the flight. His Honour said (at [132]:

" .... Mr Edwards discharged functions including assisting the pilot with navigation of the aircraft, both by directing him to the power lines which he was to fly near to, and by looking out for, and warning of hazards which he was to avoid. In these ways, Mr Edwards was so closely involved in the conduct of the flight, that the conclusion ought be reached that he was a member of the crew, and not a mere passenger. If Mr Edwards had not been present to act as "observer", the low-level aerial surveillance flight could not have taken place at all.

296. In my view, the same applies to Mr Stephenson. It was part of Mr Stephenson's role to act as an observer, and to direct Mr Thrupp to particular areas which were required to be inspected for the presence of noxious weeds. His presence on the flight was essential to the conduct of the survey. He was not a passenger being conveyed from one place to another.

297. For all of these reasons, I am satisfied that Mr Stephenson was not a "passenger". This is a further reason why the NSW Act and the CAA do not apply to the Stephenson proceedings insofar as those proceedings are brought against South West.

The claims for nervous shock

298. A separate issue was raised as to whether, in the event that I were to conclude that the legislation did apply, the nervous shock claims brought by the plaintiffs would nevertheless be maintainable. In view of the fact that I heard argument on that issue, it is appropriate that it be considered, notwithstanding the views I have reached about the applicability of the legislation.

299. In short, counsel for the plaintiffs submitted that the decision of the majority in Magnus (supra) supported the proposition that claims for nervous shock were not caught by the operation of the CAA. Counsel for South West submitted to the contrary, and argued that the decision in Magnus ought not be followed.

300. It is therefore appropriate to commence consideration of this issue by a consideration of the decision in Magnus.

The decision in Magnus

301. In Magnus, an aircraft ditched in the waters of Botany Bay shortly after taking off from Sydney Airport. Almost three years after the accident (and thus outside of the 2 year limitation period imposed under the CAA) the respondent instituted representative proceedings on behalf of a group of persons including passengers (who were students) and their parents.

302. The appellants had sought summary dismissal of the proceedings on the grounds that the claims had been extinguished upon the expiration of the two-year limitation period contained in s. 34 of the CAA. Three preliminary questions were stated for the consideration of the Full Federal Court, the third of which was expressed in the following terms:

"Does Part IV of the CAA operate to exclude the causes of action pleaded in the amended statement of claim in respect of claims by non-passengers for psychological injuries independent of any physical injury?"

303. It will be apparent from the terms of that question that the claims brought by the non-passengers in that case were akin to the nervous shock claims brought by the plaintiffs in the Stephenson proceedings.

304. The majority (Sackville and Hill JJ) concluded that Part IV of the CAA was not intended to be a complete code in respect of non-passengers who suffer loss or damage as a result of an air accident, and that s. 36 of the CAA was not intended to preclude claims by non-passengers seeking damages for nervous shock under the general law.

305. Sackville J formulated the second of those matters in the following terms (at 462):

"...whether a non-passenger who suffers psychological harm ... (for example, a parent of a passenger who sustains nervous shock on hearing that an aircraft has crashed) is ... barred from claiming damages in respect of that harm, except in accordance with and subject to the CA Act".

306. His Honour said (at 479):

"It is important to appreciate that the separate questions pose issues of construction of Part IV of the CA Act, not of the Warsaw Convention. Part IV concerns carriage of passengers by air, not being carriage to which the Warsaw Convention applies: s. 27(1). It is true that Part II of the CA Act provides for the provisions of the Warsaw Convention to have the force of law in Australia in relation to any carriage by air to which the Convention applies: s. 11. It is also true that the context in which Part IV of the CA Act should be construed includes Parliament's expressed intention that the Warsaw Convention should form part of Australian domestic law so far as the international carriage of persons by aircraft is concerned. But these considerations do not necessarily mean that expressions such as "personal injury" when used in the CA Act must be given the same meaning as similar, but not identical expressions used in the English text of the Warsaw Convention."

307. His Honour went on to say (at 480):

"Part IV of the CA Act establishes a regime for certain air travel outside the scope of the Warsaw Convention. It does not simply apply the terms of the Convention to the forms of air carriage identified in s. 27. Instead, Part IV sets out the provisions governing liability of carriers in respect of death or personal injuries suffered by a passenger."

308. His Honour then said (at 487):

"The question is therefore whether the context in which ss. 35(2) and 36 of the CA Act appear suggests that those provisions, having regard to their "natural" or "primary" meaning, extend to a non-passenger's claim for nervous shock...There is no doubt that s. 36 of the CA Act applies to some claims by non-passengers. Section 35, like s. 12, is clearly intended to bring fatal accident claims and claims on behalf of the estate of a deceased passenger within the structure created by Part IV of the Act. Plainly, s. 36 is intended to prevent such claims from pursued outside Part IV(and therefore outside the limits of liability imposed by s. 31). But I do not think that s. 35 is intended to create an entitlement in non-passengers to claim damages for nervous shock occasioned by the death of a passenger. Nor do I think that s. 36 is intended to preclude claims by non-passengers seeking damages for nervous shock under the general law.

I have referred to the historical origins of s. 35 of the CA Act. In my opinion, the section is concerned to provide for fatal accidents claims and claims by legal representatives of a deceased passenger, as those concepts have been generally understood under Australian Law. The history of s. 35 of the CA Act suggests that the section was designed to bring fatal accident claims and claims by the legal representatives of a deceased passenger within the scheme created by Part IV of the CA Act."

309. His Honour concluded (at 488):

"It is, however, one thing to say that the rights of some non-passengers may be affected by Part IV of the CA Act. It is quite another to say that particular rights or entitlements of a non-passenger, such as a right to claim damages for nervous shock arising out of an aircraft accident involving a relative of the non-passenger, are exclusively within Part IV. For the reasons that I have given, I do not think that Part IV has that operation or effect."

310. Hill J categorised (at 460) the question as being one of construction of the CAA. He concluded (at 461) that there was nothing in the Act which suggested that it was intended to govern claims by non-passengers of the kind under consideration. His Honour continued (at 461):

"Although, therefore, it seems clear that neither the conventions nor the CA Act were intended to be a complete code governing all claims against airlines and particularly all claims for damages suffered by non-passengers, it is possible to say that each constitutes a code in respect of claims by non-passengers to the extent that those claims relate to the death or personal (bodily) injury of a passenger. But once it is seen that the Conventions and the CA Act are concerned with questions of contractual limitation of liability and notice thereof it is not difficult to conclude that the rational for the Conventions or the Act being a code dealing with some, although not all, liabilities of airlines to non-passengers falls away.

I therefore agree with Sackville J and for the reasons which his Honour has given (supplemented by the above comments) that the CA Act has no application to claims for psychological injury to non-passengers arising out of injuries occurring to passengers as the result of an accident on board an aircraft."

311. Beaumont J dissented from the majority. His Honour said (at 446):

"As has been noted, Pt II of the CA Act adopts the Warsaw Convention in the case of international carriage by air. Part IV, in dealing with domestic carriage, does not in terms, or otherwise, adopt the convention. Yet, while Pt IV is a free-standing provision, it is similar to the convention in some respects."

312. His Honour then said (at 458):

"Turning next to the more difficult questions arising in the case of the claims by persons other than passengers, there is a threshold issue to be resolved in the application of s 28 in such case: that is, whether s 28 is capable of making a carrier liable to persons other than passengers. It will be recalled that s 28 is expressed to operate "where this Part applies to the carriage of a passenger"; and that it is expressed to impose liability "for damage sustained by reason of the death of the passenger or any personal injury suffered by the passenger". All of this suggests, naturally, that the primary focus of s 28 is upon the passenger, certainly in the event of his or her being injured. The position in the event of death is perhaps not so clear. Yet, it will have been noted that s 28 speaks of a liability "for damage sustained by reason of the death ... or ... injury". The section does not, at least in terms, purport to limit its operation to damage sustained by the passenger. Nor does s 36. It follows that, taken literally, a person other than a passenger could fall within s 28 or s 36, or otherwise within Pt IV, if he or she sustained psychological damage by reason of the death or personal injury of a passenger.

Is there any reason, by adopting a purposive method of interpretation, why such a literal construction should not be adopted? In my view, there is not. It is apparent that Pt IV was intended to operate exclusively, as a code, in the event of the death or personal injury of a passenger in an aircraft accident. In that area, Pt IV provides some benefits not available under the general law, yet is also restrictive of the rights of a plaintiff at common law in some respects. While the position is not so clear as in the case of a claim by a passenger, I think that it is preferable to apply the "seamless web" approach in this context also as a matter of assumed legislative purpose. The policy considerations mentioned by Lord Hope are equally pertinent here, notwithstanding the absence of a contract of carriage between the carrier and this class of claimants.

Like Bingham J, who was confronted with an equally difficult question of interpretation on an analogous topic, the construction which I would put upon Pt IV may not be irresistible. Nonetheless, it is, I think, the best one, and there is no square authority on Pt IV, or any authoritative writing, which leads me to think that my provisional preference should be overridden (see Swiss Bank Corp v Brink's MAT Ltd [1986] 1 QB 853 at 860).

It follows that I would also declare that the rights of these claimants to damages, if any, were extinguished after the two year period had expired."

313. Counsel for South West submitted that the decision of the majority reflected a failure to read s. 36 in the context of the entirety of the CAA. It was further submitted that the majority had failed to give proper consideration to the decision Sidhu (supra) and that more recent decisions in Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189, Agtrack (NT) Pty Limited v Hatfield (2005) 223 CLR 251 and Air Link Pty Limited v Paterson [2005] HCA 39; (2005) 223 CLR 283 all supported the construction of Beaumont J. It was further submitted that the decision of the Supreme Court of the United States in El Al Israel Airlines v Tseng 525 US 155 (1999) specifically approved and followed the decision in Sidhu and that the decision of the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited (2012) 260 FLR 37 provided further support for the dissenting judgment of Beaumont J.

Consideration

314. In Sidhu an action was brought by passengers arising out of having been detained by foreign forces when a flight on which they were travelling had landed in Kuwait. The primary judge concluded that the plaintiffs had no rights other than those which arose under the relevant Convention and that any such rights that they may have had under that Convention had been extinguished after the expiration period of the limitation of two years. The House of Lords dismissed an appeal against that decision.

314. Lord Hope of Craighead said (at 441):

"It should be recorded also that all parties were agreed that if a passenger had a claim under article 17 against the carrier, there was no concurrent common law remedy. It is common ground therefore that a passenger who has a claim for bodily injury caused by an accident which took place on board the aircraft, or in the course of any of the operations of embarking or disembarking, cannot maintain a separate claim at common law for any loss, injury or damage not covered by article 17 of the Convention. That seems to follow inevitably from provisions of article 24(2), which declares that in the cases covered by Article 17 any actions of damages, however founded, can only be brought subject to the conditions and limits set by the Convention.

So the stark issue which is before us in this appeal is whether a passenger who has sustained damage in the course international carriage by air due to the fault of the carrier, but who has no claim against the carrier under article 17 of the Convention, is left without a remedy."

316. His Lordship concluded that a purposive construction should be applied in determining that issue, and concluded (at 447):

"On the one hand the carrier surrenders his freedom to exclude or limit his liability. On the other hand the passenger or other party to the contract is restricted in the claims which he can bring in an action of damages by the conditions and limits set out in the Convention. The idea that an action of damages may be brought by a passenger against the carrier outside the Convention in the cases covered by article 17 - which is the issue in the present case - seems to be entirely contrary to the system which these two articles were designed to create."

317. The decision in Sidhu was referred to by the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 260 FLR 37. In that case, the respondent sought to recover, from the applicant, compensation paid to an employee who was injured whilst a passenger on a flight conducted by the applicant. The Court (Allsop P, Macfarlan JA and Handley AJA) concluded that a right of action for contribution or indemnity was not covered by the Warsaw Convention and that the right of indemnity contained in s. 37 of the CAA was not subject to the two year limitation period. Allsop P said (at [96]):

"The applicant relied strongly on Sidhu v British Airways Plc. [1997] 1 AC 430. That case can be accepted fully for what it decided: that from a consideration of the whole purpose of the Warsaw Convention, it can be taken to prescribe the circumstances, being the only circumstances, in which a carrier will be liable in damages to the passenger for claims arising out of his international carriage by air. No other action was available to the passenger."

318. Having referred to the judgment of Lord Hope in Sidhu his Honour went on to say (at [96]):

"His Lordship was speaking of the unity and comprehensiveness of the actions given by the Warsaw Convention to the passenger (extending also to wrongful death claims). Those actions were given to the passenger, all others were removed from him or her and those that were given were subject to the conditions and limits of the Convention."

319. The decision in Povey stemmed from a claim by the appellant for damages under the CAA for injuries said to have arisen from Deep Vein Thrombosis caused by the conditions of an overseas flight on which he was a passenger. The principal issue was whether the claim which has been brought identified an "accident" within the meaning of Article 17 of the Warsaw Convention which created liability in the carrier "if the accident which caused the damage so sustained took place on board the aircraft ...". The High Court concluded (by majority) that the suffering of Deep Vein Thrombosis was not an "accident".

320. The majority observed (at [24]) that it was important that international treaties be interpreted uniformly by contracting states. That is consistent with the approach taken in Sidhu (at 444). Equally however, the Court identified the ultimate questions as being firstly, what did the relevant treaty provide, and secondly, how was that international obligation carried into effect in Australian municipal law. The Court did not consider the decision in Magnus.

321. Agtrack (NT) involved a claim by a widow of a passenger on a charter flight who was killed when the aircraft crashed. The statement of claim commencing the proceedings was filed within 2 years of the accident but made no reference to the CAA. After the expiration of the limitation period an application was made to amend the statement of claim to make it clear that Part IV of the CAA was relied upon. The carrier denied that the original pleading had brought an action under the CAA and contended that the claim had been extinguished. The High Court concluded that the facts alleged in the original statement of claim demonstrated that Part IV applied and that there was no requirement to specifically plead reliance upon Part IV.

322. The Court observed (at 257) that where Part IV imposes a liability in respect of the death of a passenger, the liability is expressed by s. 35(2) as being in substitution for any civil liability of the carrier under any law in respect of that death. Again the Court was not called upon to consider the decision in Magnus.

323. In Air Link a passenger on an intra-state flight in NSW claimed damages for injury suffered in the course of disembarking. The statement of claim which was filed did not invoke a right to claim damages under Part IV of the CAA. A defence filed after the expiration of the 2 year limitation period pleaded that the claim was subject to Part IV and that accordingly, the pleaded claim was not maintainable. The passenger was then granted leave to amend the statement of claim to rely exclusively upon Part IV. The High Court held that the original statement of claim was maintainable since the facts alleged demonstrated that Part IV applied and the action had been brought within the limitation period. Kirby J made two references to the decision in Magnus. The first (at 300) was in the context of the difficulty in the language adopted in the Warsaw Convention. The second (at 312) was in the context of the need to give a purposive approach to its construction. His Honour did not, in making those references, suggest that the decision in Magnus was wrong.

324. Finally, in El Al Israel Airlines a passenger brought proceedings against a foreign airline alleging that she sustained personal injury arising from a security search. The parties agreed that the circumstances giving rise to the claim did not fall within the ambit of the term "accident" within the meaning of the Warsaw Convention and the question which arose was whether the Convention correspondingly excluded the passenger from maintaining an action under another source of law (in this case, New York tort law). The majority concluded that recovery for personal injury suffered on board an aircraft, or in the course of any of the operations of embarking or disembarking, if not permitted under the Convention, was not permitted at all.

325. Justice Ginsburg, delivering the opinion of the majority, observed (at 671-672) that the cardinal purpose of the Warsaw Convention was to achieve uniformity of rules governing claims from international air transportation.

326. In Magnus Sackville J made reference (at 472-473) to the purposive approach to construction adopted in Sidhu and acknowledged (at 484) that such decision reflected the view of the House of Lords that the Warsaw Convention was intended to be a uniform international code which afforded certainty to carriers. In doing so, his Honour acknowledged that such factors suggested that the Convention should be read as excluding claims for nervous shock by relatives of passengers. However his Honour went on to say (at 485):

"Other considerations point in a different direction. While art 24 contemplates that some claims under the Warsaw Convention might be made by non-passengers, that does not necessarily mean that the Convention is concerned to eliminate all claims by non-passengers regardless of their juridical character or purpose."

327. His Honour then pointed out (at 485):

"From a contractual perspective, the non-passenger is ordinarily in a very different position from that of a passenger. The non-passenger does not receive a ticket and thus does not receive direct notice of the limitations on the carrier's liability imposed by the Warsaw Convention. The non-passenger does not ordinarily have the same opportunity as the passenger to insure against the relevant risk. In Sidhu, Lord Hope stressed the importance of the restrictions on the "great principle" of freedom of contract as an element in the reasoning supporting the conclusion that the Warsaw Convention is, in effect, a code governing the carrier's liability to a passenger injured or killed in the course of aircraft operations. That consideration does not apply in the case of non-derivative claims by non-passengers.

It is of course true, from a carrier's perspective that any exposure to unlimited liability increases the unpredictable risks associated with the conduct of an airline. Yet, on any view, some risks are outside the scope of the Warsaw Convention... the question is where the line should be drawn. In my opinion is not necessary to resolve that question in the present case, which ultimately turns on the construction of Part IV of the CA Act."

328. The authorities to which counsel for South West referred all involved factual scenarios which were quite different from the circumstances of the present case. A number of them involved claims by passengers as opposed to non-passengers. None of them involved any consideration at all of the decision in Magnus.

329. In my view, the judgment of Sackville J in Magnus does not, as was suggested by counsel for South West, reflect an error in approach. His Honour expressly acknowledged the view, expressed by the House of Lords, that the Warsaw Convention was intended to be a uniform code which afforded certainty to carriers. His Honour also properly pointed out that the issue in that case was one which fell to be resolved according to construction of the CAA. I am not persuaded that his Honour's conclusion was wrong. In particular, I am not satisfied that the authorities to which I was referred support the dissenting judgment of Beaumont J. None of those authorities required consideration of this specific question.

330. Further, the additional reasoning adopted by Hill J in Magnus is in my view persuasive. His Honour acknowledged the weight of authority in support of the proposition that the Convention was intended to be a complete code with respect to passengers. However he cited (at 461) a number of practical examples of situations in which claims might be made against a carrier arising from circumstances falling outside the terms of any Convention. He concluded that such examples demonstrated that at least to the extent of those claims, it could not be said that the Conventions were intended to be a complete code in respect of non-passengers.

331. His Honour went on to say that although it may be possible to conclude that the Conventions and the CAA did constitute a Code in relation to claims by non-passengers in respect of the death or bodily injury of a passenger, the CAA was concerned with questions of contractual limitation of liability. A non-passenger receives no notice of such limitation.

332. For all of these reasons the decision of the majority in Magnus should be followed. Even if the CAA was otherwise applicable, the nervous shock claims would survive at common law in any event.

ORDERS

333. I have previously noted that the Council has brought proceedings against South West pursuant to s. 151Z of the Workers Compensation Act 1987. In written submissions counsel for South West sought that I allow a further opportunity to make submissions in respect of those proceedings when the parties had been given an opportunity to consider my primary findings as to liability. There also remains the question of the apportionment. In these circumstances I make the following orders:

1. South West is to provide any further submissions as to the proceedings brought by the Council pursuant to s. 151Z of the Workers Compensation Act 1987 by 4.00 pm on Monday 2 February 2015;

2. The Council is to provide any submissions in reply by 5.00 pm on Friday 6 February 2015;

3. Any party who wishes to make submissions as to the issue of apportionment is to do so by 5.00 pm on 6 February 2015;

4. I list the matter for delivery of judgment as to damages, and as to the proceedings brought by the Council against South West pursuant to s. 151Z of the Workers Compensation Act 1987, on 27 February 2015 at 10.00 am.

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Amendments

12 August 2015 - Paragraph numbering amended.

11 August 2015 - Cover sheet amended - Counsel details updated.

Decision last updated: 12 August 2015