Petts v Northern Riverina County Council
[2000] NSWSC 360
•10 May 2000
CITATION: Petts v Northern Riverina County Council [2000] NSWSC 360 FILE NUMBER(S): SC 400014/96 HEARING DATE(S): 12/05/99, 14/10/99, 03/04/00, 4/04/00, 05/04/00, 7/4/00 JUDGMENT DATE: 10 May 2000 PARTIES :
Margaret Petts and Gregory Maxwell Petts v Northern Riverina County CouncilJUDGMENT OF: James J
COUNSEL : C Branson QC/D Conti - Plaintiff
D Nock SC - Defendant
R McIlwaine - 1st and 2nd Cross-DefendantsSOLICITORS: Robb & Associated - Plaintiff
Phillips Fox - Defendant
Connery & Partners - Cross-DefendantsDECISION: Verdict for the Plaintiffs in action; Verdict for cross-defendant in first cross-claim; Verdict for cross-claimant on second cross-claim
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJAMES J
Wednesday 10 May 2000
400014/96 - Petts v Northern Riverina County Council
JUDGMENT
1 HIS HONOUR: This is an action for damages arising out of an accident which occurred on 23 October 1990. In the accident a helicopter being flown by Stephen James Petts in which John Quade was a passenger, struck a power line near the town of Barellan and crashed to the ground. Mr Quade was killed in the accident. Mr Petts was not killed but was seriously injured. In 1996 Mr Petts commenced these proceedings claiming damages for the personal injuries he had suffered in the accident. Subsequently, on 21 June 1996 Mr Petts committed suicide. It was not disputed at the hearing that Mr Petts committed suicide as a result of the pain, anxiety and depression caused by the injuries he had suffered in the accident. On 9 October 1996 probate of Mr Petts’ will was granted to his executors, who were his mother and his brother. These proceedings, which Mr Petts had commenced, were continued by his executors as the plaintiffs.
2 The proceedings which Mr Petts commenced and which his executors continued were brought against the Northern Riverina County Council (“the County Council”). The basis of the claim was that a contract had been entered into between the County Council and Masling Rotor Wing Pty Limited (“Masling”) for the inspection by helicopter of power lines within the area patrolled by the County Council, that Mr Petts had been employed by Masling as chief helicopter pilot, that on the morning of the accident Mr Petts had taken off from a property owned by Mr Quade and that neither Mr Quade nor a Mr McDonald, both of whom were employees of the County Council and both of whom had been at or near the take-off site, had warned Mr Petts of the presence on the property of the power line with which the helicopter collided. The County Council denied liability and alleged that Mr Petts had been guilty of contributory negligence. The County Council brought a cross-claim (“the first cross claim”) against Masling. Masling brought a cross-claim (“the second cross-claim”) against the County Council pursuant to s151Z(1)(d) of the Workers Compensation Act for the recovery of workers compensation paid by Masling.
3 The amount of the damages to which the plaintiffs would be entitled, if they obtained a verdict, was agreed, as was the amount of the workers compensation payments which should be deducted from the amount of any verdict (exhibit “B”).
4 Another action which was mentioned from time to time at the hearing was an action brought pursuant to the Compensation to Relatives Act on behalf of Mr Petts’ dependents. However, although this action was mentioned from time to time, I at no stage embarked on any hearing of it.
5 The hearing of the present proceedings commenced in Albury in May 1999 in the course of a country circuit. The hearing could not be completed during the circuit and had to be adjourned part-heard to Sydney. Because of other commitments, I was unable to resume the hearing for many months.
6 At the trial a volume described as “Brief of Evidence” was admitted as a plaintiffs’ exhibit. This volume included copies of a specification from the County Council, a log book recording flights by Mr Petts, a statement by Mr Petts made on 31 October 1990 and an affidavit by Mr Petts sworn on 4 December 1995 in support of an application for extension of the limitation period, a statement by Owen Thomas Dicker made 30 October 1990 and a statement by Mr Robbins of the Bureau of Air Safety, who conducted an investigation into the accident.
7 Exhibits tendered by the County Council, apart from photographs, maps and plans, some of which were marked by witnesses, included a tender from Masling to the County Council, a report by Daniel E Tyler, a helicopter expert, and copies of some Civil Aviation Orders by the Civil Aviation Safety Authority.
8 Exhibits tendered by Masling included a report by Tim J Joyce, a helicopter expert, and part of a statement made by Mr Petts on 31 January 1991.
9 Oral evidence was given at the hearing by Mr Dicker, Mr McDonald, Mr Darling (another employee of the County Council at the time of the accident) Mr Tyler and Mr Joyce.
10 I have taken all of the evidence, oral and documentary, into account.
The Contract between the County Council and Masling
11 By its specification No.E3/90 the County Council sought tenders to provide transport by helicopter of persons engaged on visual inspection of part of the County Council’s rural electricity distribution and sub-transmission systems.
12 Clause 5 of the specification was headed “Pilot experience and special requirements”. It provided that a pilot would have to be highly skilled and experienced in low level flying. It also provided “it is also a requirement that the pilot is relieved for one week in every four weeks during the period of the contract”. Clause 10 of the specification, which was headed “Safety”, provided in part “while employed by the NRCC (the County Council) safe practices shall take precedence over all else”.
13 Masling submitted a tender on the basis of the guidelines and conditions contained in specification E3/90 for line patrol by helicopter commencing on 17 September 1990. Masling’s tender was accepted by the County Council.
Flying by Mr Petts
14 Mr Petts was employed by Masling as a pilot, and as chief pilot, specifically for the purpose of performing the contract between the County Council and Masling resulting from the specification, the tender and the acceptance of the tender. There was no dispute at the hearing that Mr Petts was a highly skilled helicopter pilot, experienced in low level flying in helicopters.
15 Entries were made in a log book of Masling of the hours flown by Mr Petts in performance of the line patrol contract between the County Council and Masling.
16 The first day on which Mr Petts flew was Monday 24 September. He flew on each day in the first week from Monday 24 September to Friday 28 September. He flew on each of the four days in the second week from Tuesday 2 October to Friday 5 October. He flew on each of the five days in the third week from Monday 8 October to Friday 12 October. He flew on each of the five days in the fourth week from Monday 15 October to Friday 19 October. On 19 October he flew only “2.7”hours. On Monday 22 October Mr Petts flew about seven hours. Mr Petts flew nearly 130 hours in the period of thirty days preceding 23 October 1990.
17 On each flight Mr Petts was accompanied by an “observer”, whose functions included making the actual visual inspection of the County Council’s poles and lines and noting any faults which would require maintenance or repair work. Mr McDonald was the observer on 25 September, 2 October, 4 October, 16 October and 17 October.
Mr McDonald
18 Evidence about helicopter patrols, events up to 22 October 1990 and events on 23 October 1990 itself was given by Mr McDonald.
19 Mr McDonald was employed by the County Council from 1986 to 1996 but by the time of the hearing was no longer employed by the County Council. While employed by the County Council Mr McDonald had been engaged in the maintenance and repair of power lines in a part of the County Council’s area. He had taken part as an observer in the helicopter inspection of power lines since 1986 or 1987.
20 The functions of an observer were to direct the pilot of the helicopter and to note on maps showing the power lines any faults which were detected. The observer could communicate with the pilot of the helicopter by means of an intercommunication system. When a power line was being inspected, the helicopter would be flown about six to eight feet above the line and somewhat to the left of the line (the observer being seated to the pilot’s right in the helicopter).
21 Mr McDonald confirmed that he had first flown with Mr Petts on 25 September 1990 and that before the day of the accident he had flown with Mr Petts on five days.
22 Mr McDonald first flew with Mr Petts in the Barellan area on 16 October. A decision had been made by the County Council, (“as long as it was O.K with the pilot”) to keep the helicopter over-night on the property of Mr Quade, which was a little to the north of the town of Barellan. Mr McDonald was familiar with Mr Quade’s property. The property had not previously been used for the landing of helicopters. So far as Mr McDonald was aware, Mr Petts had not been to the area before.
23 On Mr Quade’s property a main power line ran in an east-west direction to the homestead, where there was a transformer pole, and past the homestead to the west. The proposed departure pad for the helicopter was a little to the south of the homestead. Approximately 350-400 metres to the east of the departure pad was a single wire power line known as a “SWER” line, running in a north south direction, to the Barellan Showground to the south. From the departure pad one could see the pole, where the SWER line left the main east-west line, but the next pole on the SWER line, which was 300 metres closer to the showground, was obscured by trees.
24 On 16 October 1990, between half past three and four o’clock in the afternoon, in good weather conditions, the helicopter which was being flown by Mr Petts and in which Mr McDonald was the observer, approached Mr Quade’s property from the south. Mr McDonald said in evidence:-25 A little later in his evidence the following question and answer occurred:-
“I pointed out that we were going to station at John Quade’s property and when we came in I was pointing out the homestead, the SWER line and adjacent area to the house and Steve made the decision where he would put the helicopter down”.
Q. You finished the inspection of the line on the afternoon of the 16th. After you had done the last inspection, what did you do then?
A. We finished possibly within five minutes of the Barellan township and we proceeded to John Quade’s property, which is on the northern side of Barellan adjacent to the showground. So, we came in over the eastern side of Barellan, basically, over the showground and over the questionable line and would say at a height of probably 100 to 120 feet, because we had finished the inspection line and there were quite a number of trees on the showground. I pointed out where John’s house was and the main line was and where the transformer was and I am also certain that we pointed out the SWER coming back to the showground at that stage.”
26 Mr McDonald explained his use of the pronoun “we” in the last sentence in this part of his evidence, by saying that he and Mr Petts were talking to each other over the intercom.
27 Further on in his evidence Mr McDonald said:-28 Still further on in his evidence Mr McDonald said:-
“I said to Steve, that’s Quade, John’s house is just beyond where that angle is on that line, and I am almost positive at the same time I have stated that that SWER line takes off back to the showground on the next pole”.
“As we came in over the showground. I pointed out the showground; we came across and in the distance I have pointed out John Quade’s house and pointed out the east-west line and the angle at John’s place and, as I have said, and I am almost certain at the same time I have noted to him that spur from the next pole goes back to the showground”.
29 After the helicopter had landed at Mr Quade’s property on the afternoon of 22 October, Mr McDonald and Mr Petts went into the town of Barellan, where Mr Petts spent the night. The helicopter was left overnight at Mr Quade’s property.
30 On 17 October Mr Petts, with Mr McDonald as the observer, made two flights. On each of these flights Mr Petts took off in a westerly direction from the helicopter pad on Mr Quade’s property and returned to the helicopter pad from the north. After landing at the end of the second flight and dropping off Mr McDonald, Mr Petts, who was now alone in the helicopter, flew away in a southerly direction, that is with the SWER line on his left hand or nearside.
31 On the afternoon of Monday 22 October Mr Petts, having left the observer he had been flying with that day at another country town, flew the helicopter to Mr Quade’s property. Mr McDonald, who was at work in the County Council’s office in Barellan, heard the helicopter fly past. Mr Quade drove to his home, picked up Mr Petts and Mr Quade and Mr Petts returned to the County Council’s office in Barellan.
32 There had previously been discussion about Mr Petts taking Mr Quade for a “familiarising flight” in the helicopter, “to familiarise John with it, to see how he would handle it, if he was called on to do aerial patrol” as an observer. The flight was to be “five, six minutes familiarisation”… “to show him - not the normal height - what we do, how we fly along”. So far as Mr McDonald was aware, Mr Quade had never been in a helicopter before.
33 On the afternoon of 22 October there was further conversation between Mr Petts, Mr Quade and Mr McDonald about a familiarisation flight for Mr Quade. There was no discussion about where Mr Petts would take Mr Quade on the familiarisation flight. After the conversation ended on 22 October, Mr Quade took Mr Petts to a hotel in Barellan, where Mr Petts was to spend the night.
34 On the morning of 23 October Mr McDonald picked up Mr Petts from his hotel and took him to Mr Quade’s property. On arrival at Mr Quade’s property, Mr Petts went inside the house to make a telephone call. Mr Quade and Mr Dicker were already at the property, talking to each other. Mr McDonald undid the tie down ropes on the rotor blades of the helicopter. The conditions were “hazy but bright” and it was calm.
35 When Mr Petts came out of the house, he went to the helicopter and started to make his preparations for the flight. Mr McDonald, who had to make some telephone calls himself, went inside the house. Inside the house Mr McDonald made a number of telephone calls on County Council business.
36 When Mr McDonald came outside the house again, the helicopter was lifting off. The helicopter hovered at a height of about two metres and then moved off to the east. According to Mr McDonald, Mr Petts’ take-off was more like a take-off at an airport than a take-off in a paddock, that is the take-off was in a shallow ascent. Mr McDonald was observing the take-off from just outside the house, about 150 to 250 metres north of the helicopter pad.
37 Mr McDonald yelled “‘Get it up. Get it up’, basically because I could see that at the height he was gaining, he wasn’t going to get above it (the SWER line)”.
38 Mr McDonald had had no knowledge of the direction in which Mr Petts would take-off or where Mr Petts would go on the flight with Mr Quade. Mr McDonald had never previously seen Mr Petts take-off into the sun.
39 In cross-examination by counsel for the plaintiff Mr McDonald was asked whether in hindsight he would have done anything differently and he replied “definitely. I would have pointed out the line that morning”. Mr McDonald agreed that the land to the east from the helicopter pad was “flat open terrain, without any apparent obstruction”.
40 In cross-examination Mr McDonald was asked the following questions and gave the following answers:-
“Q. And I want to suggest that if you were standing on the grounds in the vicinity of the pad on Mr Quade’s property and you were unaware of the existence of that line running north/south, you would not necessarily see it, would you?
A. Not to the naked eye.
Q. No. You wouldn’t pick it up against the tree line, for one; do you agree?
A. I would say that you probably have more of a chance seeing it without the tree line.
Q. Then if it was hazy, as it was on the day of the crash, that further compounds the difficulty, would it not?
A. Yes.
Q. Together with any glare that you got from the sun?
A. Yes.
Q. Making due allowance for the haze, correct?
A. That’s correct.
Q. So that if Steve Petts had looked to the east, the probabilities are, he would not have seen the line just before he took off?
A. I would say so”.41 Mr McDonald was asked how far from the ground the SWER line was and he replied “would be an average of 5.5 metres”.
42 Mr McDonald agreed that there was a possibility that the helicopter might take-off in an easterly direction. He agreed that, with the advantage of hindsight, before leaving to make his telephone calls would have been the time to say something to Mr Petts about the SWER line.
Mr Petts
43 Mr Petts of course did not give evidence. However, as I have already noted, the brief of evidence which was admitted, included a statement and an affidavit by Mr Petts.
44 In his affidavit Mr Petts said that “prior to the accident I had not been informed by either Mr Quade or Mr McDonald or anyone else of the existence of the power line to the east of the helicopter site”. In another part of the affidavit he said that he had not been advised by Mr McDonald of a power line to the east of the helicopter site.
45 In his statement Mr Petts said that on 22 October he had gone to bed about 7.30 pm and had woken up about 6 o’clock the following morning. In pars3 and 4 of his statement he said:-46 The statement by Mr Robbins of the Bureau of Air Safety included the following:-
“About 7.30 am that morning I had completed all pre-flight checks and certified the aircraft fit to fly. I had been aware of power lines running east/west of my intended flight path, as I had flown in that area on previous days. After take-off I flew in an easterly direction, towards the sun which by now was getting quite high.
Although I was aware of power lines to my left, I was not aware of any power lines in front of the craft. John was seated in the seat to my far right, I was seated in the Captain’s seat. John had no controls in front of him. At the time there was a moderate breeze and clear sunshine. I had travelled about a quarter of a mile, this I judge from my air speed of 40 to 50 knotts and the fact I had been in the air for about 15 seconds. The only thing I recall is a decay in rotor speed and I heard a bang. That’s all I recall”.
Mr Robbins
47 Part of Mr Dicker’s statement of 30 October 1990 were as follows:
“5.5 The accident site was a large, flat barley paddock with trees up to 10 metres in height around its periphery. A power line lay parallel to the take-off path in an east-west direction. Another single wire power line, supplying the Barellan Showground, ran across the take-off path about 30 feet above the ground. The aircraft struck this single line”.
***
5.8 Weather conditions at the time of the accident were fine. Visibility was in excess of 10 kilometres with light wind and no cloud. The sun was about 21 degrees above the horizon and about 23 degrees north of due east.”
***
5.10 A post accident examination of the aircraft was carried out. No evidence was found to indicate that the aircraft was other than airworthy immediately prior to the accident. The performance of the aircraft was calculated to have been sufficient for an adequate climb gradient to have been achievable during the take-off phase”.
6. Sequence of Events
At about 0730 hours the aircraft took off towards the east, the pilot’s intention being to turn left and depart to the north from the area of the paddock centre. An eyewitness to the accident reported that the aircraft did not climb sufficiently steeply to safely clear the single wire supplying the showground. In the near vicinity of the wire, while still heading east, the aircraft steepened its climb, but at about 30 feet altitude, struck the wire. The wire snapped in the span adjacent to that struck. After contacting the wire the aircraft continued forward for about 60 metres before impacting the ground. The aircraft came to rest five metres beyond the impact point”.
Mr Dicker
“About 7.05 am on Tuesday 23 October 1990 I went to John Quade’s property, ‘Greenvale’ to look at the helicopter that was parked there. The helicopter was being used by the council to check power poles and lines. John Quade came out of his house about 7.10 am and I had a look around the helicopter again with him.
About 7.15 am Neil McDonald and the Pilot Stephen Petts arrived at the farm. I know the pilot’s name because I talked with him the night before at the Commercial Hotel in Barellan, where he was staying. Then Neil and Steve arrived, Steve went into the house to make a phone call and Neil undid the tie down ropes from the rotors on the helicopter. The Pilot came out and did his daily inspection on the helicopter and showed me the controls used to fly it. At no time did I enter the aircraft.
The Pilot then said to John Quade, ‘are you ready?’ John said, ‘Yeh’. The Pilot then took John around and put him in the right hand seat, put his harness on and closed the door. The pilot then sat in his seat, put his harness on and did his pre-take off checks.
Neil then went inside to make a phone call and I moved about 30 metres away from the aircraft. He started it up, ran it for at least two minutes, then he rotated to about 2-3 metres, held it there for several seconds and went forward in a gentle climb in an easterly direction.
I was watching the climb and the line of the aircraft and thought he was going to bank left or right. I started yelling out, ‘the wire. The wire.’ At the last moment the helicopter went into a steep climb, the skids caught the wire, the helicopter flipped over to the left and hit upside down on the front of the canopy”.
48 In oral evidence Mr Dicker said that he had been an old friend of Mr Quade, who had been a linesman employed by the County Council. The SWER line was between 350 and 400 metres from the homestead and 370 of Mr Dicker’s paces from the helicopter pad. Some distance to the east of the helicopter pad there was a line of trees. If you stood at the departure pad and looked towards the east, the SWER line was visible, but not clearly visible, and if you did not know it was there, you could miss it.
49 On the morning of 23 October it was clear and sunny and the wind was insignificant. Mr Dicker had said nothing to Mr Petts about the SWER line, before Mr Petts took off. Mr Dicker did not know in what direction Mr Petts was going to take-off. He gave evidence that he had thought to say to Mr Petts “look out for the wire”. He agreed that the SWER line was about five and a half metres above the ground. Mr Dicker could see the line from where he was, standing adjacent to the helicopter pad and he could tell that the helicopter was heading straight for the SWER line. Mr Dicker confirmed that Mr McDonald had been inside the house, when the helicopter lifted off and that Mr McDonald had come out of the house and had then screamed “get it up. Get it up”.50 Mr Darling gave brief evidence. He was an employee of the County Council who had flown with Mr Petts as an observer. He had observed that Mr Petts had a practice of taking off at a fairly gentle incline, like a normal fixed wing aeroplane. As an observer he did not give any instructions to a pilot about taking off or landing. He agreed that if, as an observer, he was aware of an obstacle but was not sure whether the pilot was aware of it, he could bring it to the pilot’s attention.
Mr Darling
Expert Evidence
51 Two witnesses gave evidence as expert witnesses, Mr Daniel E Tyler, who was called by the County Council, and Tim J Joyce who was called by Masling. Each of Mr Tyler and Mr Joyce made a report and gave oral evidence. Despite challenges made to their qualifications, I am satisfied that each of Mr Tyler and Mr Joyce was well qualified to express opinions about the flying of helicopters.
52 I have taken into account all of Mr Tyler’s report of April 1998. I will quote some of the more salient parts:-
“1.2 Pilot Stephen Petts was suitably qualified and current on type and on task for the flight. He had a two day break from flying over the week-end and adequate rest the night before the flight. But he had flown 6.4 hours on the day before the accident, had flown nearly 130 hours in the preceding 30 days, and had flown about 190 hours on the powerline inspection program since early September, 1990. He had not been relieved of flying duties for one week out of four, as stipulated in the tender specification.
1.3 The hours that the pilot had flown over the previous month suggest the probability of ‘cumulative fatigue’ as that term is understood among air safety professionals. Responsibility for compliance with flight and duty time limits to prevent ‘cumulative fatigue’ lay with the pilot himself - in that capacity and also in his capacity as Chief Pilot of Masling Rotor Wing. Masling Rotor Wind shared that responsibility as the aircraft operator and as employer of the (chief) pilot.
1.6 The pilot adopted a shallower than normal take-off profile on the fatal flight when the helicopter was fully capable of climbing at a steeper angle, which would have easily cleared powerlines about 5.5 metres high and located some 300 to 400 metres east of the departure point. In the event, the helicopter struck those wires, flipped over, and impacted the ground with extreme force.
1.7 The wire which was impacted was extremely difficult to see from the take-off position into the early morning sun. It appears the pilot saw it at the last moment and attempted to climb over it, but the skids became entangled. No pre-take-off inspection of the departure path was made. Evidence on whether the pilot was informed of the existence of those powerlines is contradictory.
1.12 In relation to the carriage of the deceased Quade on the fatal flight, he was, at the highest, only a ‘trainee observer’ or ‘candidate observer’. Mr Quade’s status was more akin to being a passenger than being a crew member. Mr Quade had not yet been fully trained by the operator to crew member status.
1.13 The primary causal factor in the accident was the pilot’s adopting a shallow departure profile over un-surveyed terrain into the early morning sun, which made it difficult for him to see and avoid the powerlines across his flight path.
1.14 There was no reason why it was necessary or advisable to adopt that shallow departure profile in those circumstances. Selection of that departure profile and track was abnormal and imprudent.
3.1.7 Civil Aviation Order 48.1 prescribes mandatory flight and duty time limitations for pilots in commercial operations, such as the operation in question. Limitations include, inter alia, the following:-
‘1.15 - A pilot shall not fly and an operator shall not roster him to fly in excess of 100 hours in 30 consecutive days.
1.16 - A pilot shall not fly and an operator shall not roster him to fly in excess of 30 hours in 7 consecutive days’”.
3.1.8 The file does not indicate whether Masling held any sort of waiver or exemption which permitted different flight and duty time limitations to those in CAO 48.1. Unless such a waiver or exemption were held, then Mr Petts had clearly exceeded his allowable 30 day cumulative flight time limit at the time of the accident; and possibly the 7 day cumulative limit as well.
3.1.9 Thus, while Mr Petts was very ‘current’ on type and on task at the time of the accident, he was likely to be suffering from ‘cumulative fatigue’. The tender specification called for the pilot to be relieved from duties one week out of four. This appears not to have been done.
3.5.2 BASI calculated that the sun was about 21 above the horizon and about 23 north of true east. The take-off track was calculated by BASI as 095 magnetic (about 084 true - ie a heading only 17 to the right of the sun). The probability of glare as a contributing factor was noted by BASI.
3.8.4 Following the normal take-off profile recommended in the flight manual will put the helicopter at a height of 100 to 200 feet (30 to 60 metres) or higher at a distance of 300 metres from the departure point, disregarding the effect of wind. Departing into wind steepens the climb gradient.
3.8.8 Any prudent commercial helicopter pilot who has flown on cattle mustering or other low level operations knows or should know that the Australian countryside is literally criss-crossed with such single-conductor lines on wooden poles that are almost impossible to sight. Therefore the only safe approach is to assume that the airspace within 10 to 20 metres of the ground (higher when following a valley) has such wires in it and to avoid operating in that airspace unless the route or area has been surveyed - or unless extreme caution is exercised along with reduced airspeeds.
3.11.1 It is the pilot’s duty to plan and execute the flight safely. In order to do that, he may enlist the assistance of trained crew members.
4.14 It is the writer’s considered opinion that the decision by the pilot to adopt a shallow profile for a take-off in conditions of difficult visibility and without having made a detailed inspection of the departure flight path was a primary cause of the accident.
4.22 By adopting an unnecessarily flat departure profile and remaining in close proximity to the ground well beyond the periphery of the departure point, the pilot was, in effect, low-level flying, without having surveyed the route for obstacles first. In the writer’s considered opinion, this was neither standard nor prudent practice.”
53 In cross-examination by counsel for the cross-defendant Mr Tyler conceded that he had no formal qualifications in medicine or psychology and had conducted no special studies, such as would have enabled him to express opinions about pilot fatigue. In expressing the opinions he had about pilot fatigue, he had had regard to his own experience as a helicopter pilot and to papers he had read about fatigue.
54 His own personal experience as a helicopter pilot had largely consisted of combat flying in Vietnam, flying on oil fields in the Persian Gulf and flying on Care Flight work which involved rescues but also involved carrying patients between hospitals. He was cross-examined at length, but in my opinion with only limited success, with a view to establishing that there were significant differences between these types of flying and power line flying.
55 Mr Tyler was cross-examined at length about take-off profiles and whether Mr Petts might have chosen to adopt a shallow take-off profile for reasons which had been suggested by Mr Joyce in his report.
56 Mr Tyler accepted that at some stage in the process of training a person as an observer, it would be necessary to assess whether he was comfortable at low altitudes but not, in Mr Tyler’s opinion, at the beginning of the assessment. Flying at low altitudes required an observer and a novice, who had not yet been assessed, could not be relied on to perform the duties of an observer.
57 As regards one reason for adopting a shallow take-off profile which had been suggested by Mr Joyce, Mr Tyler said:-58 Mr Tyler went on to say:-
“If being gentler to the engine were your sole objective and you wanted to be gentler with the engine, you would achieve that by using a shallower departure profile, assuming the air speed at the end of the manoeuvre is the same”.
59 Mr Tyler also said:-
“Well, I have been instructed that he had hit a wire 5.5 metres high that was located some 350-370 metres away and that is a very shallow departure”.
“You can use a very low power setting and still have a very nearly vertical climb or a very steep climb. You have both a slow air speed and a slow rate of climb. You can also use a high power setting and use the same profile, but you have a lot more air speed at the end of it”.
60 Mr Tyler said that in expressing his opinion that Mr Petts was probably suffering from cumulative fatigue, he had assumed that Mr Petts as the chief pilot of Masling had had other duties to perform, apart from flying, but he had not been provided with any information about any such other duties. Mr Tyler had assumed that Mr Petts had been operating on previous days in VFR (visual flight rules) conditions, that is in conditions of good visibility. He accepted that there was no evidence that Mr Petts had made any mistakes in his flying in the previous week.
61 In cross-examination by counsel for the plaintiff Mr Tyler explained that by “surveying” an intended route, Mr Tyler meant ascertaining whether there were any obstacles in the intended flight path. Mr Tyler accepted that all of Mr McDonald, Mr Quade and Mr Dicker would have had the opportunity to warn Mr Petts about the SWER line before he took off. Mr Tyler had not been influenced in forming his opinions by the circumstance that the helicopter had been facing east, when it was parked.
62 In re-examination Mr Tyler gave the following evidence:-63 Further on in his evidence in re-examination Mr Tyler said:-
Q. What would have occurred, if it had been you with Mr Quade and giving him his first flight, first up?
A. I would have climbed to a safe altitude and evaluated his reaction to flight, not only the possibility of motion sickness, but also the possibility that he has just become overawed, either with the amount of sound in the cabin or with the height above the ground. Some people are very frightened of heights and can become incapacitated. So I would evaluate how he reacted, full stop, before I got to anything low level”.64 In his report Mr Joyce said that there were two reasons why Mr Petts might have adopted a shallow take-off profile, namely
“There are a number of reasons why I believe the departure profile which was described and the description of which I relied upon, was inappropriate. First and foremost is that there were, there was a tree line in the distance and because power lines are almost impossible to see against a model background as opposed to against the sky, where they are much easier to spot, I would not have flown through any air space between myself and a tree line for the reason that there could be wires there that I wouldn’t have seen. So my trajectory would have been well above that tree line and it would have been so, because I would have expected to be able to see the lines against the clear sky, but not against the model background of the tree line. So my trajectory would have been much higher than the tree line, which would have necessarily missed the wires.
Secondly, I understand that the winds were latent and variable and there was then the opportunity of going off in a direction not directly into the sun or not nearly into the sun, which I understand the take-off was nearly into the sun, and that made the forward visibility difficult”.
Mr Joyce
65 In connection with the second reason Mr Joyce said:-
“Mr Petts very likely planned to conduct the evaluation flight with Mr Quade at low level for as much of the flight as possible in order to best assess Quade’s aptitude for this type of operation.
* * *
Petts adopted a shallow takeoff profile because this was a planned low level operation and he was using the opportunity to minimize strain on the engine of his helicopter”.
66 In the first part of his report Mr Joyce said:-
“Aviation safety encompasses many different facets. In any given situation it is up to the pilot in command to assess and prioritise. On some occasions it may be considered safer to adopt a shallow departure path, where there is considered to be no risk of striking an obstruction, than to use a high power setting and risk accelerated wear on the helicopter’s engine.
Light piston-engine powered helicopters such as the Hughes 269C are relatively under-powered and less reliable, compared to their turbine powered counterparts. The life and reliability of the engine of a Hughes 269C helicopter can be considerably enhanced by treating the engine gently - not over revving it and minimising the use of high power settings”.
67 In his report Mr Joyce expressed the opinion “that it is highly unlikely that fatigue had anything to do with this accident”. In relation to Civil Aviation Order 48 Mr Joyce said in his report:-
“The fact that Petts was carrying a trained linesman, who was also the owner of the property over which they were flying, would tend to give Petts further confidence that if there were any hard to see SWER that they would be pointed out to him”.
“The amount of flying and/or duty that a pilot may perform is regulated by CASA under Civil Aviation Order 48.1 (CAO 48.1). I believe these regulations are designed to cover a worst case scenario and are not particularly appropriate or applicable to ordinary bush flying operations such as this one.
Notwithstanding that it appears Mr Petts exceeded CAO 48.1 Flight and Duty limitations, if the accident had happened three years later, Masling Rotor Wing would almost certainly be operating under Part 14 of the Standard Industry Exemption and Mr Petts would not have been in breach of any Flight and Duty requirements”.
Mr Joyce also said:-
“I believe other facts about the incident clearly indicate that it would be most unlikely that he would be suffering from cumulative fatigue.
It was the first takeoff of the day.
Mr Petts had had two full days’ rest on the weekend and had only flown about 6 hours on the previous day, Monday, in fine weather.
He reported that he had also had a long and good night’s sleep.
He was reportedly only a light drinker and had not consumed any alcohol for at least 12 hours.
He noted that at the time of the accident he had a happy personal life and was in excellent health.
He was staying in a hotel and did not have to be concerned with cooking meals or excessive travelling to and from work.
He was enjoying his work.
Although Mr Petts appears to have disregarded some of his obligations with regard to compliance with CASA’s flight and duty limits of that time, I would argue that this alone would not necessarily deem him ‘unfit’ to fly due to cumulative fatigue.
From what I can discern there is nothing to suggest that he was suffering from cumulative fatigue”.
68 Mr Joyce gave oral evidence on the voir dire, which by consent I later ordered should be evidence in the trial itself, and he also gave further evidence in the trial.
69 In his evidence on the voir dire Mr Joyce said that after having been instructed to prepare a report he had spoken to a number of people and he gave evidence of what he had been told by those other people. Although evidence of what Mr Joyce said he had been told by these other people became evidence in the trial, I do not consider that I should give such untested hearsay evidence much weight.
70 The basis on which Mr Joyce had expressed his opinions about pilot fatigue had been his own experience as a helicopter pilot, feedback from other helicopter pilots and “what I have read”.
71 Mr Joyce said that his practice when operating a helicopter into and out of private land was:-72 Mr Joyce said in evidence:-
“I do a survey and try to look for signs of possible unseen hazards” but “in a lot of cases you do need to rely on feedback from other people… I would always conduct a visual survey myself. If I had somebody on board, I will always rely on any feedback from them as well”.
73 Mr Joyce said that:-
“I would tend to assume that, if there was a town close by with a showground attached to it, that the wires, without any obvious line of poles, that the power to that showground came from through the town”.
“Yes, the fact that it (the helicopter) was parked facing in that direction I don’t believe has any significance but the fact that he picked it up and stayed pointing in that direction for that period prior to take-off would certainly indicate it, because he would be assessing the winds and planning his departure and so forth from the direction in which he was pointing”.
74 In cross-examination Mr Joyce confirmed that his understanding was that Mr Quade had never been in a helicopter before. He agreed that persons who had never previously been in a helicopter can “perform in all sorts of ways” on their first flight, including “freezing” and “becoming ill”.
75 When asked whether he would have taken off in the same way as Mr Petts had on 23 October, he replied:-
“If I was confident that there was no obstruction and I had limited time to assess his aptitude for low level flight, I don’t see any reason why not”.
The purpose of the familiarisation flight was to test Mr Quade’s aptitude for power line inspection, which is low level flying.
76 Anything less than 30 would be regarded by Mr Joyce as a shallow take-off.
77 The following questions and answers occurred in the cross-examination of Mr Joyce.
“A. In an ideal world, given the time, I would probably have preferred to have taken him through it slowly.
Q. And by slowly you mean take him up, get him used to height, get him used to noise, is that right?
A. That’s right.
Q. And then take him down to inspect the lines, is that right?
A. Yes”.78 Mr Joyce said that, if there was a hazard that was virtually impossible to see, a warning to the pilot about the hazard “would be normally reinforced quite regularly”.
79 A pilot will conduct a visual survey on “an almost every movement basis, but will also rely on feedback from others”.
80 A trained observer such as Mr Petts would recognise that he might not be able to see all objects between himself and a tree line.
81 With reference to Mr Petts and Mr McDonald flying in to Mr Quade’s property on 16 October, Mr Joyce agreed that a pilot would have been taking careful note of all the obstacles he could see and would be listening “to whatever description that he was given” by an observer. If the SWER line had been pointed out, he would have expected a pilot such as Mr Petts to be able to “pick it up”.
Finding of Facts
82 As would be apparent from my survey of the evidence, there was no dispute about the great majority of the facts. In particular, counsel for the plaintiffs did not challenge by far the greater part of Mr McDonald’s evidence and accepted that Mr McDonald was an honest and generally accurate witness.
83 In their written submissions counsel for the plaintiffs submitted that I should make certain specified findings of fact. A number of the suggested findings of fact were not controversial. As submitted by counsel for the plaintiffs, I find that Mr Petts was a competent, experienced pilot; that in Mr McDonald’s opinion Mr Petts had performed competently as a pilot while Mr McDonald had been his observer; that it was the County Council which had chosen Mr Quade’s property as a place where the helicopter could be kept (although with the concurrence of Mr Petts); that the flight on the morning of 23 October was part of the contract between the County Council and Masling; that on the morning of 23 October no person (that is none of Mr McDonald, Mr Quade and Mr Dicker) had given any warning to Mr Petts about the SWER line before Mr Petts took off; and that at no time prior to the helicopter climbing steeply had Mr Quade given any warning to Mr Petts about the SWER line.
84 Counsel for the plaintiffs submitted in this part of their submissions that I should find that it was impossible to see the SWER line from the helicopter pad on Mr Quade’s property. I accept that it was difficult to see the SWER line but it was not impossible. For example, Mr Dicker from a position close to the helicopter pad could see the SWER line. I accept that there were no visual cues indicating the presence of the SWER line and that Mr Petts would have believed that it was likely that power for the showground was supplied from the town of Barellan and not by a spur line from the main east/west line.
85 It is necessary to make findings of fact on some matters, which were the subject of conflicting evidence.
86 As I have already noted, Mr McDonald gave evidence in a number of parts of his evidence that on the afternoon of 16 October, when the helicopter was approaching the proposed site on Mr Quade’s property, he pointed out the SWER line to Mr Petts.
87 On the other hand, Mr Petts in his affidavit of 4 December 1995 said that before the accident he had not been informed by Mr McDonald of the existence of the SWER line.
88 I consider that I should accept Mr McDonald’s evidence. It is true that in parts of his evidence on this subject Mr McDonald qualified his evidence by saying that he was “almost certain” that he had pointed out the SWER line to Mr Petts. However, the consistent tenor of his evidence was that he had pointed out the SWER line to Mr Petts. Mr McDonald was a clearly honest witness, who was no longer employed by the County Council and who, if anything, gave me the impression of wishing to assist the plaintiffs’ case. Mr McDoanld was not cross-examined with a view to showing that his evidence that he pointed out the SWER line to Mr Petts was wrong. That Mr McDonald, as a trained observer, would have pointed out an obstacle of which he was aware to the pilot of a helicopter, as the helicopter approached a site which it was proposed to use as a landing and taking off pad for the helicopter, is highly probable.
89 Mr Petts’ evidence in his affidavit sworn five years after the event is brief and, of course, untested.
90 Subsequently to 16 October, Mr Petts took off three times from the helicopter pad on 17 October and landed twice on the helicopter pad on 17 October and once on the helicopter pad on the afternoon of 22 October. I am not, however, satisfied that I should make a finding that Mr Petts observed the SWER line on any of these occasions. The two patrol flights on 17 October involved taking off to the west from the pad and returning to the pad from the north.
91 Mr McDonald gave evidence that the average height of the SWER line was 5.5 metres. Mr Dicker gave similar evidence. On the other hand, Mr Robbins in his statement said that the SWER line was “about 30 feet from the ground”. I consider that I should prefer Mr McDonald’s evidence. He was an employee of the County Council and an experienced observer of power lines. It would appear from Mr Robbins’ use of the word “about” that he did not himself make any measurement of the height of the SWER line. 5.5 metres, if converted into imperial units, is only about eighteen feet.
92 I accept Mr Dicker’s evidence that just before the impact the helicopter went into a steep climb. I would infer that Mr Petts, either of his own accord or because of a warning given by Mr Quade, became aware of the presence of the SWER line and attempted to climb above it.
93 My findings about the height of the SWER line and about the helicopter going into a steep climb just before the impact emphasise how shallow the helicopter’s departure profile was. Notwithstanding a steep climb at the last moment, the helicopter was unable to clear an obstacle only about eighteen feet high, which was between 350-400 metres from the point where it took off.
94 Whether Mr Petts was suffering from cumulative fatigue on the morning of 23 October is relevant to the plaintiffs’ claim against the County Council, to contributory negligence and to the first cross-claim.
95 It is clear that a breach of cl 5 of Specification No E3/90 had occurred, in that the accident happened in the fifth week in which Mr Petts had been flying, Mr Petts not having been relieved for one week in every four weeks.
96 It is also clear that a breach of Civil Aviation Order 48 had occurred, in that Mr Petts had flown more than 100 hours (or perhaps 120 hours) in thirty consecutive days, having flown about 129 hours between 23 September and 22 October.
97 It is unclear whether in the seven days prior to the accident Mr Petts had flown more than thirty hours, in contravention of Civil Aviation Order 48.
98 I accept that in 1993, that is after the accident, there was some relaxation by CASA of its requirements.
99 In his report Mr Tyler expressed the opinion that at the time of the accident Mr Petts was probably suffering from cumulative fatigue. Mr Tyler’s claimed expertise depended on his own personal experience of suffering fatigue as a pilot and on papers on the subject he had read. He acknowledged that he had no formal medical or psychological qualifications. Mr Tyler accepted that he did not have some kinds of information regarding Mr Petts, which would be relevant to determining whether Mr Petts had been suffering from cumulative fatigue, although, in fairness to Mr Tyler, when he lacked information in some relevant respect, he usually made an assumption that it had not operated in such a way as to be conducive to fatigue.
100 Mr Tyler’s conclusion that Mr Petts would have been suffering from cumulative fatigue was really based on the number of hours Mr Petts had flown and on an assumption made by Mr Tyler that Mr Petts, as Masling’s chief pilot, would have had some duties to perform, apart from his flying. Counsel for the County Council submitted that an inference that Mr Petts had had some other duties to perform was open and that any inference could be more confidently drawn as a result of the failure of Masling to call any witness to give evidence about whether Mr Petts had had any other duties or the extent of those other duties.
101 It was also submitted by counsel for the County Council that I should find that the way in which Mr Petts flew the helicopter on 23 October was out of character for such a generally careful pilot, suggesting that his performance as a pilot on 23 October was affected by some abnormal factor, such as cumulative fatigue.
102 I do not consider that I should find that Mr Petts was suffering from cumulative fatigue at the time of the accident. That cl5 of the Specification and the provisions of Civil Aviation Order 48 had been breached does not necessarily show that Mr Petts was suffering from cumulative fatigue. I do not consider that it is necessary to posit cumulative fatigue, in order to account for Mr Petts’ behaviour as a pilot on 23 October. To the extent to which Mr Petts’ conduct was negligent, a simple explanation of his negligence is human fallibility.
103 Factors of the kind referred to by Mr Joyce in his report seem to me to be important. When the accident occurred, it was only the fifth week of flying for Mr Petts. Mr Petts had flown only a couple of hours on the previous Friday. He had had a complete break from flying over the weekend of 20 and 21 October. He had flown six hours on the Monday. He had had an early night and a long sleep on the night of 22 October. The flight with Mr Quade was the first flight on the Tuesday morning.
104 With the possible exception of Mr Petts’ behaviour on the actual flight on 23 October, there is no evidence of any other behaviour by him in the days leading up to the accident which would suggest that Mr Petts was beginning to suffer from cumulative fatigue. In particular, there is no evidence of any such behaviour on the part of Mr Petts from any observer who had flown with him in the preceding days, two of whom were Mr McDonald and Mr Darling. Furthermore, there was no evidence from any person with medical or scientific qualifications in the field of pilot fatigue or from any witness having any qualifications to express an opinion, apart from his own experience as a helicopter pilot and his reading of papers prepared by others on the subject.
The Plaintiffs’ Action against the County Council
105 The plaintiffs’ case against the County Council can be summarised as follows. The County Council owed a duty to Mr Petts to take reasonable care to warn him of the presence of power lines which might constitute a hazard for a helicopter pilot doing line patrol work. The County Council would be vicariously liable for any negligent omission by its employees Mr McDonald or Mr Quade to warn Mr Petts of the presence of the SWER line. On the morning of 23 October 1990 the SWER line was difficult, even if not impossible to see, from the departure pad on Mr Quade’s property. The SWER line amounted to a hazard or a “trap”. Even if Mr McDonald had pointed out the SWER line to Mr Petts on 16 October, that was a week previously and in the meantime, to Mr McDonald’s knowledge, Mr Petts had made a number of helicopter flights in other areas and Mr McDonald ought to have repeated or reinforced the warning on the morning of 23 October, particularly having regard to the difficulty in seeing the SWER line from the departure pad and to the circumstance that there would be no trained observer accompanying Mr Petts on the flight. So far as Mr Quade was concerned, notwithstanding his lack of experience of helicopters, he was the owner of the property on which the departure pad was situated and over which the SWER line passed and he was an experienced linesman who was familiar with the SWER line and, in those circumstances, he ought on the morning of 23 October to have warned Mr Petts about the SWER line. Mr McDonald and Mr Quade had had ample opportunity to give Mr Petts a warning about the SWER line, before he took off. Before Mr Petts took off, no warning about the SWER line was given to Mr Petts by Mr McDonald or Mr Quade or anyone else.
106 It was submitted that it was reasonably foreseeable that an omission to give a warning about the SWER line would involve a risk of injury to Mr Petts; that the magnitude of the risk, if it eventuated, was great; and there would have been no difficulty or inconvenience in giving a warning. Counsel cited the well known passage in the judgment of Mason J in Wyong Shire Council v Shirt (1979-1980) 146 CLR 40 at 47. If it was suggested that there was negligence or inadvertence on the part of Mr Petts, the standard of care expected of a reasonable man requires him to take account of the possibility of negligent or inadvertent conduct on the part of others. Counsel cited McLean v Tedman (1984) 155 CLR 306 at 311 per Mason, Wilson, Brennan and Dawson JJ.
107 So far as causation was concerned, if a warning had been given, then it could confidently be inferred that Mr Petts would have heeded it and would have avoided the SWER line.
108 Many of the submissions made by counsel for the plaintiffs which I have just summarised were not challenged by counsel for the County Council. However, it was submitted by counsel for the County Council that I should find, as I have, that on 16 October Mr McDonald had pointed out the SWER line to Mr Petts. It was submitted that Mr McDonald, having already pointed out the SWER line previously, was not required to give a further warning about the SWER line on the morning of 23 October. On the morning of 23 October Mr McDonald did not know, and was not told by Mr Petts, in what direction or on what departure profile Mr Petts would fly on the familiarisation flight with Mr Quade and Mr McDonald could not reasonably have been expected to anticipate that Mr Petts would fly in an easterly direction and at an extremely low altitude for a considerable distance. Mr McDonald’s evidence that, in hindsight, he would have acted differently and would have given a warning on the morning of 23 October was given with all the advantages of hindsight and was the sort of thing one would expect Mr McDonald to say, given his distress over the accident and its consequences, however lacking in culpability his conduct had been.
109 As far as Mr Quade was concerned, he also did not know, and was not told by Mr Petts, in what direction or on what departure profile Mr Petts would fly and, particularly with his lack of knowledge of helicopters, he could not reasonably have been expected to anticipate that Mr Petts would fly in an easterly direction and at an extremely low altitude for a considerable distance.
110 Mr Quade could not reasonably have been expected to give a warning during the early part of the actual flight. He was not a trained helicopter observer; indeed, he had never been in a helicopter before and it could be inferred that he had no knowledge of the capabilities of a helicopter. It is also likely that, on his first flight in a helicopter, he would have been distracted by the motion and sound of the helicopter and the experience of being in the air. It could be inferred from the circumstance that the helicopter climbed steeply just before the impact that Mr Petts had just then become aware of the SWER line and his becoming aware of the SWER line could have been due to Mr Quade giving a warning at that stage.
111 In my opinion, the omission by Mr McDonald on the morning of 23 October to give a warning to Mr Petts about the SWER line was negligent, even though, as I have found, he had pointed out the line to Mr Petts a week earlier. A week had passed since the earlier warning and, in the meantime, Mr Petts had, to Mr McDonald’s knowledge, made a number of flights in other areas. The line was difficult to see from the helicopter pad and it was at least possible, particularly having regard to the direction in which the helicopter was facing while it was parked and in which it remained facing, that Mr Petts would take off in an easterly direction. Mr McDonald knew that he would not be accompanying Mr Petts on the flight and that no trained observer would be accompanying Mr Petts on the flight. Mr Petts would be accompanied only by Mr Quade, who had never been in a helicopter before and who might react to his first experience of flying in a helicopter in such a way, as not only to be of no use, but actually to be a distraction, for Mr Petts. If the helicopter did collide with the SWER line, there was a likelihood of the helicopter crashing and of really serious bodily injury or death resulting, as indeed eventuated. Mr McDonald had the opportunity to give a warning and it would have been a simple matter to give a warning.
112 I am also of the opinion that Mr Quade, while he was still on the ground, should have given Mr Petts a warning about the SWER line. I accept that Mr Quade had no knowledge of helicopters and did not know in what direction Mr Petts would be flying after the helicopter took off. However, Mr Quade was the owner of the property and was a linesman employed by the County Council and must have been very familiar with the line. He would have known that Mr Petts would not be accompanied on the flight by a trained observer but only by himself. He ought to have realised that it was at least possible that Mr Petts would fly in an easterly direction. On the other hand, I do not consider that Mr Quade could reasonably have been expected, after the helicopter had taken off and while he was adapting to his first experience of flying in a helicopter, to have given Mr Petts a warning in sufficient time for the accident to be averted.
113 I am satisfied that, if Mr Petts had been given a warning about the SWER line on the morning of 23 October before he took off in the helicopter, he would have avoided colliding with the SWER line.
114 I find a verdict for the plaintiffs against the County Council.
Contributory Negligence
115 At one stage of the addresses senior counsel for the plaintiffs appeared to be submitting that, if the County Council was found negligent in that its employees had failed to give a warning about the SWER line, Mr Petts could not be found guilty of contributory negligence. However, later in the addresses counsel appeared to retreat from this submission and it seems to me that it is not correct. Even if a defendant was negligent in not giving a warning of a risk and the giving of such a warning would have avoided the accident, the plaintiff can still be guilty of a negligent act or omission, which is, independently, a cause of the accident.
116 In my opinion, Mr Petts was guilty of negligence causing or contributing to the accident. Mr Petts was the pilot of the helicopter and therefore the person in control of the helicopter. I have found that on 16 October 1990 he had been told about the SWER line by Mr McDonald. On 23 October he flew the helicopter in a direction in which he had not flown before, without having made a survey of the land over which he would be flying. He knew that he had no trained observer on the helicopter and that the only other person in the helicopter was a person who had never been in a helicopter before. He knew that he had not told Mr McDonald in what direction he would be flying after he took off. Although the SWER line was difficult to see and I find that Mr Petts did not see it until the last moment before the impact and that Mr Petts did not recall having had the line pointed out to him a week before, Mr Petts knew that there were power lines in the general area. I accept the substance of the evidence by Mr Tyler, on which he was not cross-examined, that any helicopter pilot would know that the Australian countryside is criss-crossed with single line wires that are difficult to see. Mr Petts would have known that the conditions of observation were in some respects unfavourable; he had taken off almost directly into the low morning sun, it was hazy and there was a tree line on the periphery of the paddock, against which it would be hard to see any object between the helicopter and the tree line. In these circumstances, Mr Petts took off in an easterly direction and adopted an extremely low flight profile, such that, notwithstanding a steep climb just before the impact, the helicopter was unable to clear a line 5.5 metres high, at a distance of 350-400 metres from the departure pad.
117 The extremely low flight profile cannot be justified on the grounds that Mr Petts was flying, for Mr Quade’s benefit, at the sort of altitude at which he would fly during an inspection of a power line. During the inspection of a power line Mr Petts would fly at an altitude of several feet above the level of the power line.
118 Nor can the extremely low flight profile be justified on the basis that Mr Petts was endeavouring to minimise strain on the engine of the helicopter. According to Mr Tyler’s evidence, which I accept, the helicopter could have lifted almost vertically, with a very low power setting. In any event, considerations of safety would have to take priority over some minor reduction in strain on the engine of the helicopter.
119 If Mr Petts had taken off in another direction or had not adopted such a low departure profile, the accident would not have happened.
120 I find that there was contributory negligence by Mr Petts.
Apportionment
121 As I have found contributory negligence by Mr Petts, it is necessary to apportion responsibility for the accident between Mr Petts and the County Council, having regard to their shares of responsibility for the accident and particularly the extent to which the conduct of the employees of the County Council and of Mr Petts departed from the standard of care of the reasonable man and the relative importance of their conduct in causing the accident. I have already discussed these matters in deciding that the plaintiffs should obtain a verdict in their action against the County Council and in deciding that there was contributory negligence by Mr Petts. It seems to me that the failure by the employees of the County Council to warn Mr Petts about the SWER line should be assigned the major share of responsibility for the accident.
122 I have particularly taken into account, in deciding to apportion a lesser share of responsibility to Mr Petts, that Mr Petts had done a substantial amount of flying in other areas since the SWER line had been pointed out to him a week before, that the land to the east of the departure pad would have appeared to him to be flat and open and without any apparent obstacle, that the SWER line was very difficult to see and was not seen by Mr Petts and that no warning of any obstacle was given to Mr Petts by any of the other three people present on Mr Quade’s property, who, as Mr Petts knew, were familiar with the property and who could reasonably be supposed to have been aware of any obstacle.
123 I apportion responsibility75 per cent to the County Council and 25 per cent to Mr Petts.
First Cross-Claim by the County Council against Masling
124 This cross-claim contained claims in contract and in tort but ultimately the same matters were relied on in support of both types of claim.
125 It was submitted by the County Council, and not really disputed by Masling, that by virtue of the specification from the County Council, the tender from Masling on the basis of the specification and the acceptance by the County Council of Masling’s tender, a contract had come into existence between the County Council and Masling, which contained as one of its terms that part of par5 of the specification which required that Masling’s pilot be relieved for one week in every four weeks during the period of the contract and which also incorporated (inter alia by virtue of par10 of the specification and the part of the tender headed “Coordinator”) the provisions of Civil Aviation Order 48, as then in force.
126 Just what were the provisions of Civil Aviation Order 48, as in force at the time of the accident, is not entirely clear. The version of Pt14 of Civil Aviation Order 48, a copy of which was annexed to Mr Joyce’s report, was a version which came into force in 1993. In par 3.1.7 of his report Mr Tyler said that Civil Aviation Order 48 (apparently as in force at the time of the accident) required that a pilot should not fly and an operator should not roster him to fly more than 100 hours in thirty consecutive days or more than thirty hours in seven consecutive days. On the other hand, counsel for the County Council put questions to witnesses on the basis that Civil Aviation Order 48, as in force at the time of the accident, prohibited the flying of more than 120 hours in thirty consecutive days.
127 However, whether the maximum number of hours of flying permitted in thirty days was 100 hours or 120 hours, Mr Petts exceeded the maximum in the period of thirty days leading up to 23 October, by flying approximately 129 hours.
128 Accordingly, as I have already found earlier in this judgment, Masling committed breaches of the terms of its contract with the County Council by not relieving Mr Petts for one week after he had flown three weeks and by rostering him to fly more than 100 or 120 hours in thirty consecutive days. On the other hand, I am not satisfied, on the evidence, that Masling committed a breach of the term requiring Masling not to roster Mr Petts to fly more than thirty hours in seven consecutive days.
129 The real issue on the cross-claim in contract is whether the breaches of the contract caused, that is had a causal connection with, the accident. The breaches of contract would have caused the accident, only if Mr Petts’ capacity to fly the helicopter carefully was impaired by cumulative fatigue resulting from excessive flying.
130 As I found earlier in this judgment, I am not satisfied that Mr Petts was suffering from cumulative fatigue at the time of the accident. Consequently, the cross-claim based on contract fails.
131 The alternative cross-claim in tort also fails, for the same reason. Although some other matters were initially relied on, the claim in tort was ultimately based on particulars of negligence amounting to an allegation that Masling had negligently permitted Mr Petts to fly the helicopter while fatigued and that the accident had been caused by Mr Petts’ fatigue.
132 I find a verdict for the cross-defendant Masling on the first cross-claim.133 It was common ground at the hearing that if the plaintiffs obtained a verdict against the County Council (before deduction of workers compensation payments) for at least $145,552.23, being the amount of the workers compensation payments made by Masling, then Masling was entitled to a verdict against the County Council for that amount, pursuant to s151Z of the Workers Compensation Act. The plaintiffs have obtained such a verdict and, accordingly, I find a verdict for Masling against the County Council on the second cross-claim for $145,552.23.
The second cross-claim by Masling against the County Council
Summary
134 There will be a judgment for the plaintiffs against the County Council for $260,563.65, being the agreed amount of damages $347,418.21, reduced by 25 per cent for contributory negligence so as to produce a figure of $260,563.65.
135 There will be a verdict for the cross-defendant Masling on the first cross-claim and a verdict for the cross-claimant Masling on the second cross-claim.
136 The defendant, the County Council, should pay the plaintiffs’ costs and Masling’s costs of the proceedings.
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