Towers v Hevilift Ltd

Case [2016] QSC 267

SUPREME COURT OF QUEENSLAND

CITATION:

Towers v Hevilift Ltd & Anor [2016] QSC 267

PARTIES:

BRUCE TOWERS

(plaintiff)

v
HEVILIFT LIMITED

(first defendant)
and
AVIATION SERVICES PTY LTD (ABN 83109678631)

(second defendant)

FILE NO/S:

SC No 180 of 2009

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

17 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2016; 14 June 2016; 15 June 2016; 16 June 2016; 17 June 2016; 16 August 2016 and 17 August 2016

JUDGE:

Henry J

ORDERS:

1.   Judgment for the plaintiff in its claim against the first defendant for damages to be assessed, without set-off.

2.   The plaintiff’s claim against the second defendant is dismissed.

3.   I will hear the parties on 7 December 2016 at 9.15 am as to costs and any further orders, including directions on the future conduct of the proceeding (with out of town parties having leave to appear by telephone or videolink).

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the plaintiff claims damages for personal injury and consequential loss arising as a result of negligence and breach of contract – where the plaintiff helicopter pilot became quickly enveloped in cloud and crashed rendering him an incomplete quadriplegic – where the crash occurred late in the afternoon in the Papua New Guinea Highlands where there is risk of clouds forming rapidly – where the helicopter did not have instruments to navigate by if enveloped by cloud – where the plaintiff blames his employer(s) for the crash because of a failure to warn him of the risk and provide appropriate instruments – where the first defendant claims the plaintiff was not a competent pilot and falsely represented his competency – where the first defendant claims the plaintiff knew, or ought to have known, not to fly where he knew he was likely to encounter fog – where the first defendant claims the cloud did not develop quickly and the plaintiff pilot in breach of his contract flew deliberately into cloud despite a forewarning – where the first defendant alleges contributory negligence and claims a set off – whether there was a greater than ordinary and foreseeable risk that fast cloud formation in the region could envelop a helicopter – whether the first defendant acting with reasonable care did, or should have, known of that risk and had a duty to warn the plaintiff – whether the first defendant should have equipped its helicopters with, and trained its pilots on appropriate instruments to assist them to escape rapid cloud formation emergency situations – whether the first defendant breached its duty of care – whether the plaintiff was negligent and caused or materially contributed to the accident and consequent damages

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN COURSE OF EMPLOYMENT – CAUSATION AND FORESEEABILITY – FORESEEABILITY – PARTICULAR CASES – INSTRUCTION AND WARNINGS –…

Continue reading Towers v Hevilift Ltd

Sign in free to access the full text

Details
AGLC
Towers v Hevilift Ltd [2016] QSC 267
Case
[2016] QSC 267
Decision Date

CaseChat Overview and Summary

In Towers v Hevilift Ltd, Mr Towers, a helicopter pilot, brought claims for damages against Hevilift Ltd and another defendant. Mr Towers was employed by Hevilift to fly helicopters in Papua New Guinea, where he became quickly enveloped in cloud and crashed, rendering him an incomplete quadriplegic. The plaintiff alleged that the accident and his consequent injuries were caused by Hevilift’s negligence and breach of contract. The defendants denied liability and claimed contributory negligence by the plaintiff. The legal issues in the case centred on whether Hevilift owed a duty of care to warn the plaintiff of the risk of rapid cloud formation, whether it should have equipped its helicopters with appropriate instruments to assist in escaping rapid cloud formation emergency situations, whether the defendants breached their duty of care, and whether the plaintiff was negligent and caused or materially contributed to the accident and consequent damages. The court held that Hevilift was liable for the plaintiff’s injuries because it failed to warn the plaintiff of the risk of rapid cloud formation and failed to implement work systems to manage that risk. The court also held that the plaintiff was not negligent and that Hevilift’s breaches of duty were proximate causes of the plaintiff’s injuries. The court dismissed the plaintiff’s claim against the second defendant. The court ordered judgment for the plaintiff in his claim against Hevilift for damages to be assessed, without set-off, and dismissed the plaintiff’s claim against the second defendant. The court will hear the parties on 7 December 2016 as to costs and any further orders, including directions on the future conduct of the proceeding.

Orders

Orders of the court

1. Judgment for the plaintiff in its claim against the first defendant for damages to be assessed, without set-off.

2. The plaintiff’s claim against the second defendant is dismissed.

3. I will hear the parties on 7 December 2016 at 9.15 am as to costs and any further orders, including directions on the future conduct of the proceeding (with out of town parties having leave to appear by telephone or videolink).

Background

Background to the litigation

Other instruments providing information about an aircraft’s attitude are the turn and slip indicator, also known as a bat and ball indicator, and a turn co-ordinator. A turn and slip indicator indicates the aircraft’s turn rate and extent of side slip, that is, whether the aircraft is flying true as opposed to crab wise.[9] A turn co-ordinator, a development of the turn and slip indicator, which has its gyroscope mounted at an angle, indicates both turn and roll (or bank) rate.[10]Facts[9] Ex 20 p 4.[10] Ex 20 p 5.Mr Towers is employed to fly helicopters in PNG In late 2005 Mr Towers, a helicopter pilot, sought work flying helicopters in Papua New Guinea. He eventually spoke with Mr Trevor Pook of the first defendant, Hevilift Ltd (“Hevilift”), and was given a start date to go to Mount Hagen in Papua New Guinea for flight testing with Hevilift by Mr Pook and Mr Alan Dodds.[11][11] T1-33 L25. In early 2006 Mr Towers went to Mount Hagen where he presented his pilot logbooks to Mr Pook and Mr Dodds and was successfully flight-tested by them.[12] An employment agreement as between Hevilift and Mr Towers was signed on 9 March 2006.[13] There is an issue as to whether the second defendant also employed Mr Towers.[12] T1-34 L32, T1-36 L47, T1-37 LL24-29, T1-39 L15.[13] T1-38 L7, Ex 13. Mr Towers recalled having done 28 days of checking and training to get the job.[14] He performed some work as a helicopter pilot on this initial tour before returning to Australia pending the next cycle of work.[15][14] T1-61 L12.[15] T1-37 L29.The lay of the land On Mr Towers’ second work cycle, the district where he was performing work was located to the north-west of Moro in the Southern Highlands province of Papua New Guinea. Mr Towers was billeted at night at Sisibia where there was access to fuel and where two of the helicopters were kept.[16] [16] T1-43 L45. During this tour Mr Towers would fly higher than Sisibia to a workers’ camp, Camp 57. The workers there were employed by Oil Search Ltd (“Oil Search”) in a pipeline and field development project for which Hevilift provided air transport.[17] From Camp 57 Mr Towers would ferry the workers to a worksite described as Camp 810, located further along the same ridge as Camp 57. He would also convey workers from Camp 57 to a chain of worksites near to but lower down from Camp 810 named Alpha, Bravo, etc up to and including Foxtrot.[18] Mr Towers estimates that the Foxtrot pad was about 2,500 feet above sea level whereas Camp 57 was about 4,500 to 4,800 feet above sea level.[19] [17] T5-78 L36.[18] T1-43 L47 - T1-44 L15.[19] T1-44 L34. At the end of the working day Mr Towers was required to ferry workers from Foxtrot to Camp 57. The flight path taken between the two locations was in mountainous country. It involved climbing up above a gully running in a south-easterly direction from Foxtrot to slightly north of Camp 57.[20] In the final approach to Camp 57, from about 500 to 600 metres out, it was then necessary to swing to the south in order to land.[21] Beyond Camp 57 and that direction of approach there was a tower and a continuing ridge, 150 to 250 feet above the camp.[22] [20] T1-44 LL24-40.[21] T1-45 L28, Ex 6A.[22] T5-43 L33, T5-64 L10.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows Mr Towers has failed to prove the crash of the aircraft and thus his injury was causally connected with Hevilift’s failure to have equipped him with the instruments discussed above. He has however succeeded against Hevilift for other reasons.Conclusions as to liabilityHevilift liable If acting with reasonable care for the health and safety of its employee pilot Mr Towers, Hevilift should have investigated and ascertained the risk posed to its pilots by local weather conditions and patterns and implemented work systems to safely manage that risk. It would thereby have known of and warned Mr Towers of the phenomenon that at the time of day and locale in question cloud can form at an out of the ordinary speed thus heightening the risk of inadvertent IMC. Further it would thereby have implemented a local regime for monitoring weather in the region of Camp 57 and directing the prohibition of flight in to it by Hevilift’s pilots and diversion to a safe landing area when weather conditions in the vicinity in the late afternoon were conducive to or indicative of the occurrence of the phenomenon. The crash would not have occurred and Mr Towers would not have been injured if he either had been warned of the above phenomenon and risk or had been directed not to continue flying to Camp 57 and to divert to an alternative and safe landing location. I am satisfied that both the failure to so warn and the failure to so direct were in breach of Hevilift’s duty of care to Mr Towers and were proximate causes of his injuries.Breach of contract by Mr Towers? Hevilift contends Mr Towers flew into cloud and that establishes a breach of contract by him.[297][297] HDef [18A]; Defendants’ written submissions [19.2]. The breaches of contract complained of in paragraph 18A of the amended defence of the first defendant allege, inter alia, failures to possess the skills required to perform to the standard required, failure to serve diligently and exercise reasonable care and skill, failure to comply with lawful directions, failure to comply with Hevilift’s operations manual and policies, failure to ensure the safe operation of the aircraft and safety of its occupants, failure to become familiar with current meteorological information and alternative safe landing positions and failing to fly the helicopter under VFR only. Ultimately Hevilift summarised the alleged breaches as flowing from a failure to fly the helicopter with reasonable care and skill.[298] In short, it was argued Mr Towers’ flight into cloud was a product of his own failure to exercise reasonable care and skill.[298] Defendants’ written submissions [19.3]. That argument relied to a significant extent upon the inferences that Mr Towers either flew deliberately into cloud or that he flew into cloud because of his own negligence. I have already rejected the notion that Mr Towers deliberately flew into cloud. However I have also found that he did not fly into cloud. Rather his aircraft became enveloped by cloud which formed around it. This was not a case of a pilot recklessly choosing a flight path in too narrow a gap between existing cloud and then flying into such cloud because of that cloud moving into his path. Mr Towers’ helicopter became enveloped in cloud because cloud formed suddenly in the hitherto clear airspace through which Mr Towers was flying.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.