Edwards & Ors v Endeavour Energy & Ors; Precision Helicopters Pty Ltd v Endeavour Energy & Ors; Endeavour Energy v Precision Helicopters Pty Ltd and Anor  [2013] NSWSC 1899

The New South Wales Supreme Court held that the plaintiff Edwards was not a passenger but an observer who assisted the crew in undertaking aerial inspection activities, with the result that the Civil Aviation (Carriers Liability) Act (1967) (NSW) (CACL NSW) did not apply to the accident.

Precision Helicopters contracted with Endeavour Energy to supply one of their helicopters and a pilot for the purpose of carrying out low level aerial inspection of Endeavour’s power lines. The contract provided that the inspection flights would carry two Endeavour employees, one to act as inspector and the other to act as observer. The roles of each were described in the contract. Relevantly:

The function of the observer, seated beside the pilot, is primarily to assist the pilot by providing advance warning of approaching hazards, tracking flight development to determine changing risks and recording the condition of the power line.

The observer shall be conversant with the overhead power line route and potential hazards to enable the maximum assistance to be provided to the pilot.

During the accident flight, the skid of the helicopter came into contact with one of the wires, causing the pilot to conduct an emergency landing, during which the helicopter rolled over on touching the ground. The plaintiff suffered catastrophic injuries, principally a closed head permanent brain injury.

Precision Helicopters contended that the CACL NSW applied to the carriage and that the plaintiff was a passenger for that purpose. If successful, Precision’s liability would be limited to $500,000.2

Precision relied on the UK decision in Herd v Clyde Helicopters Limited [1997] AC 534 in which the House of Lords found that Herd was a passenger for the purpose of the relevant air carrier’s liability legislation. Clyde Helicopters contracted with the Strathclyde Police to supply helicopters and pilots for the purpose of aerial surveillance and detection operations. Herd, a police sergeant, was carried on the helicopter to direct the aerial surveillance, inform the pilot of the manoeuvres to carry out, and generally observe and provide information to the pilot. During the accident flight, the engine failed when the aircraft encountered a snowstorm, causing the helicopter to crash and killing Herd.

The House of Lords held that Herd had no responsibility in respect of the operation of the aircraft, which was solely under the control of the pilot. The activities he engaged in could not be regarded as contributing to the carriage of him or the other persons on board. He was therefore properly regarded as a passenger.

Interestingly, the House of Lords referred to the decision in Re Mexico City Air Crash of October 31, 1979 [1983] USCA9859 where the United States Court of Appeals (Ninth Circuit) found that two flight attendants, working aboard an aircraft that crashed, were not passengers within the meaning of the Warsaw Convention as their carriage was undertaken for the exclusive purpose of performing employment duties. The House of Lords distinguished this decision from Herd by saying the US decision turned on whether or not the persons being carried were carried in their capacity as employees of the airline.

Herd was later applied by the Court of Appeal in England and Wales in Disley v Levine [2002] 1 WLR 785, where the court remarked that if the helicopter in Herd had been operated by the police, Herd would have been considered a crew member.

Precision submitted that Edwards was essentially directing the pilot having regard to his knowledge of the power lines and of the hazards but this was not a contribution to the flying of the helicopter as had been referred to in the authorities.

The Supreme Court held that the provision of advance warning to the pilot of approaching hazards was central to the conduct of aerial inspection of overhead lines. Mr Edwards assisted with the navigation of the aircraft and therefore formed an essential part of the crew of the helicopter undertaking aerial inspection activities. The Supreme Court held the present case was therefore distinguishable from Herd.

Both Herd and Edwards appear to have played a role in their respective aerial work operations. The question is whether their roles were integral to the operational aspects of the aircraft so that they would no longer be considered passengers.

Although Herd and Edwards appear to have been able to direct the respective pilots in terms of the aircraft’s intended flight path, the distinguishing feature between them seems to be that Edwards’ role had a greater impact on the pilot’s manipulation of the aircraft controls and therefore the safe operation of the flight. That is, the pilot relied upon Edwards to ensure separation from the wires.

It would be wrong to construe the comments from Herd and Disley to mean that if a person is carried in their capacity as employee of the carrier they are to be considered part of the crew. It is relevant to determine if the person is carrying out any duties of that employment during the carriage. The reference to the flight attendants in Re Mexico City Air Crash demonstrates that a person can be crew if they are carrying out an employment duty for the carrier that is relevant for the activity or purpose of the flight but not relevant to the navigation or operation of the aircraft.