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Sheather v Country Energy

Sheather v Country Energy

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Case Copied 24 July 2007 44 min read

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Reported Decision: (2007) Aust Torts Reports 81-901

Appeal Outcome: Special leave refused with costs by the High Court - 8 February 2008

New South Wales

Court of Appeal

CITATION: Sheather v Country Energy [2007] NSWCA 179

HEARING DATE(S): 28 May 2007

JUDGMENT DATE:
24 July 2007

JUDGMENT OF: Hodgson JA at 1; Ipp JA at 51; Tobias JA at 78

DECISION: 1. Appeal allowed. 2. Verdict and judgment below set aside. 3. In lieu thereof, verdict and judgment for Mr. Sheather for $160,250.00 plus interest at District Court rates from 20 February 1999, and Country Energy to pay Mr. Sheather’s costs of the proceedings. 4. Country Energy to pay Mr. Sheather’s costs of the appeal.

CATCHWORDS: TORT- NEGLIGENCE - Duty of care - Content of duty - Relevance to content of duty of negligence or other fault of plaintiff - Helicopter crashes into unmarked power lines - Pilot found to have been engaging in unlawful low-level flying - Helicopter owner sues power company - Whether conduct of pilot relevant to existence or content of duty of care, or to voluntary assumption of risk, contributory negligence, or causation. D

LEGISLATION CITED: Civil Aviation Regulations 1988 (Cth), Reg157

CASES CITED: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512
Burwood Council v Byrnes [2002] NSWCA 343
Clarke v Coleambally Ski Club Inc [2004] NSWCA 376
Francis v Lewis [2003] NSWCA 152
Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Liverpool City Council v Millett (2004) 43 MVR 193
Mulligan v Coffs Harbour City Council (2005) 223 CLR 486
Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679
Rundle v State Rail Authority of NSW [2002] NSWCA 354; (2002) Aust Torts Reports 81-678
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133
Sutherland Shire Council v Henshaw [2004] NSWCA 386
Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Volman v Lobb [2005] NSWCA 348
Whittlesea City Council v Merie [2005] VSCA 199
Wyong Shire Council v Shirt (1980) 146 CLR 40

PARTIES: Louis Sheather - appellant
Country Energy - respondent

FILE NUMBER(S): CA 40455/06

COUNSEL: Mr. R. McIlwaine SC with Mr. C. McKeown for appellant
Mr. P. Garling SC with Mr. J. Stewart for respondent

SOLICITORS: Baker Deane & Nutt, Queanbeyan for appellant
Phillips Fox, Sydney for respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 1739/06 (Sydney); DC 41/03 (Queanbeyan)

LOWER COURT JUDICIAL OFFICER: Walmsley DCJ

LOWER COURT DATE OF DECISION: 23 June 2006

CA 40455/06
DC 1739/06 (Sydney)
DC 41/03 (Queanbeyan)

HODGSON JA
IPP JA
TOBIAS JA
Tuesday 24 July 2007

SHEATHER V. COUNTRY ENERGY

Judgment

1 HODGSON JA: On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWCA 179
Decision Date: 24 July 2007

CaseChat Overview and Summary

Sheather v Country Energy concerned an appeal to the New South Wales Court of Appeal following a helicopter crash. The appellant, Mr. Sheather, was the owner of a helicopter that crashed into unmarked power lines owned by the respondent, Country Energy. Mr. Sheather alleged that Country Energy was negligent in failing to mark the power lines. Country Energy contended that the pilot's conduct, specifically engaging in unlawful low-level flying, was relevant to its liability.

The central legal issues before the Court of Appeal were whether the pilot's unlawful conduct was relevant to the existence or content of Country Energy's duty of care, or alternatively, whether it constituted a voluntary assumption of risk by Mr. Sheather, or amounted to contributory negligence, or impacted the issue of causation.

The Court of Appeal found that the pilot's unlawful conduct was not relevant to the existence or content of Country Energy's duty of care. It also held that the pilot's actions did not amount to a voluntary assumption of risk in the legal sense, nor did they constitute contributory negligence. The Court determined that while the pilot's conduct was a cause of the accident, it did not break the chain of causation flowing from Country Energy's negligence. The Court allowed the appeal, setting aside the verdict and judgment below, and entered judgment for Mr. Sheather for $160,250.00 plus interest and costs.

Orders

Orders of the court

1. Appeal allowed.

2. Verdict and judgment below set aside.

3. In lieu thereof, verdict and judgment for Mr. Sheather for $160,250.00 plus interest at District Court rates from 20 February 1999, and Country Energy to pay Mr. Sheather's costs of the proceedings.

4. Country Energy to pay Mr. Sheather's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Reported Decision:	(2007) Aust Torts Reports 81-901
Appeal Outcome:	Special leave refused with costs by the High Court - 8 February 2008

CITATION:	Sheather v Country Energy [2007] NSWCA 179
HEARING DATE(S):	28 May 2007
JUDGMENT DATE:	24 July 2007
JUDGMENT OF:	Hodgson JA at 1; Ipp JA at 51; Tobias JA at 78
DECISION:	1. Appeal allowed. 2. Verdict and judgment below set aside. 3. In lieu thereof, verdict and judgment for Mr. Sheather for $160,250.00 plus interest at District Court rates from 20 February 1999, and Country Energy to pay Mr. Sheather’s costs of the proceedings. 4. Country Energy to pay Mr. Sheather’s costs of the appeal.
CATCHWORDS:	TORT- NEGLIGENCE - Duty of care - Content of duty - Relevance to content of duty of negligence or other fault of plaintiff - Helicopter crashes into unmarked power lines - Pilot found to have been engaging in unlawful low-level flying - Helicopter owner sues power company - Whether conduct of pilot relevant to existence or content of duty of care, or to voluntary assumption of risk, contributory negligence, or causation. D
LEGISLATION CITED:	Civil Aviation Regulations 1988 (Cth), Reg157
CASES CITED:	Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 Brodie v Singleton Shire Council [2001] HCA 29; (2001) 206 CLR 512 Burwood Council v Byrnes [2002] NSWCA 343 Clarke v Coleambally Ski Club Inc [2004] NSWCA 376 Francis v Lewis [2003] NSWCA 152 Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; (2002) 211 CLR 540 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Liverpool City Council v Millett (2004) 43 MVR 193 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 Richmond Valley Council v Standing (2002) Aust Torts Reports 81-679 Rundle v State Rail Authority of NSW [2002] NSWCA 354; (2002) Aust Torts Reports 81-678 Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 Secretary to the Department of Natural Resources and Energy v Harper (2000) 1 VR 133 Sutherland Shire Council v Henshaw [2004] NSWCA 386 Temora Shire Council v Stein [2004] NSWCA 236; (2004) 134 LGERA 407 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Volman v Lobb [2005] NSWCA 348 Whittlesea City Council v Merie [2005] VSCA 199 Wyong Shire Council v Shirt (1980) 146 CLR 40
PARTIES:	Louis Sheather - appellant Country Energy - respondent
FILE NUMBER(S):	CA 40455/06
COUNSEL:	Mr. R. McIlwaine SC with Mr. C. McKeown for appellant Mr. P. Garling SC with Mr. J. Stewart for respondent
SOLICITORS:	Baker Deane & Nutt, Queanbeyan for appellant Phillips Fox, Sydney for respondent
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 1739/06 (Sydney); DC 41/03 (Queanbeyan)
LOWER COURT JUDICIAL OFFICER:	Walmsley DCJ
LOWER COURT DATE OF DECISION:	23 June 2006