In AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46 the owner of a helicopter, AV8 Air Charter Pty Limited (“AV8”), resulting from a collision with a powerline. At the time the helicopter was piloted by a representative of Sydney Helicopters Pty Limited (“Sydney Helicopters”).

At trial it was found AV8 had failed to establish negligence on the part of the pilot, or a breach of contract. The NSW Court of Appeal agreed with the trial finding, and indicated the actions of the pilot were appropriate and reasonable in circumstances where the weather conditions were deteriorating.

Facts

Mr Harrold, the pilot, flew down to below cloud level in worsening weather. After several minutes of flying at this level the helicopter struck a powerline. The powerline was not identified in the Visual Navigation Chart being used by the pilot at the time.

The helicopter was forced to land but none of the passengers or the pilot suffered serious injury. There was, however, damage to the aircraft.

The owner of the helicopter commenced proceedings to recover for lost profits whilst the helicopter was being repaired and diminution in re-sale value resulting from the damage. The only Defendant to the action was Sydney helicopters.

There was no written contract between Sydney Helicopters and AV8. However, the parties agreed AV8 bailed the helicopter to Sydney Helicopters, and Sydney Helicopters was responsible for maintaining, storing and chartering the aircraft. In return Sydney Helicopters was entitled to keep the profits from chartering the helicopter, but was required to pay a fee to AV8 for same.

Approximately 14 years prior in the same area a similar incident occurred when a helicopter struck a powerline. Evidence was led by aviation experts (flight trainers, instructors and experienced helicopter pilots) as to whether the pilot’s actions were reasonable in the circumstances.

The terms of the pilot’s flying license required that he not fly through cloud, he was to keep sight of the ground at least at 30 minute intervals and was not permitted to fly by instrumentation alone.

AV8 argued the pilot breached the civil aviation regulations by flying too low to the ground, and flying in a restricted airspace.

At trial it was found the pilot effectively had no choice but to adopt his chosen course at the time of the collision, and there was in fact a defence in the regulations relating to remedial action taken during poor weather conditions. As a result, it was found he was not negligent and AV8 failed to recover for the damage.

Issues

  • Whether the helicopter pilot was negligent;
  • Whether the trial judge’s findings of fact were in error;
  • What were the implied terms of the contract relating to the safe operation of the helicopter;
  • Was there a breach of contract;
  • If Sydney Helicopters were liable, should their claim in contribution from Ergon Energy succeed?

Findings

The parties agreed a breach of the civil aviation regulations did not necessarily give rise to a private cause of action. However, it may be an indication of negligence if a breach were established.

The Court of Appeal agreed with the trial judge’s finding that the conditions were “deteriorating” at the time the claimant decided to descend to a lower altitude to avoid the clouds.

The court accepted turning back was not a viable option. Further, it was not appropriate for the helicopter pilot to seek permission to circle over a nearby army base as the conditions were worsening and it was therefore appropriate the pilot’s priority was to leave the area.

The Court of Appeal found:

“the wire strike occurred not because Mr Harrold had trapped himself between the [mountain] range and the SATA [Singleton Army Base] but because a powerline was unmarked, not recorded on any map and located in a position where it could not have reasonably been anticipated by a pilot.”

The Court of Appeal agreed with the trial judge’s findings that there had been no breach of the civil aviation regulations for flying in a restricted airspace or flying too low. It was noted an assessment as to a breach of those regulations is required to take into account the weather conditions at the time. Given the worsening weather conditions, it was found the actions of the pilot reasonable.

In terms of the appropriate implied contract term relating to the safe operation of the helicopter, it was found the two terms necessary for the “reasonable or effective operation of a contract” in these circumstances were:

  1. “the pilots would exercise due care and skill in the performance of the flight;”\
  2. the pilots “would exercise reasonable care so as to comply with the “Civil Aviation legislation”, ie. a term which incorporated CAR [Civil Aviation Regulation] 140 [the obligation to not fly in a prohibited area] and 157 [the obligation not to fly too low]”

The court therefore indicated the duty owed in contract was indistinguishable from the tortious duty, and as the Plaintiff failed to establish the case in negligence, it also failed on breach of contract.

In the event the Plaintiff had been successful as against the Sydney Helicopters, the pilots sought contribution from Ergon Energy for failing to erect warning beacons along the power lines. The Court of Appeal indicated that had the pilots been liable, they would have found Ergon Energy liable, particularly given the history of a similar incident in 1994. It was found liability would have been apportioned 40% to the Sydney Helicopters and 60% to Ergon Energy.

Conclusion and Implications

The decision confirms that evidence of an accident is not enough to establish negligence. It must be shown the actions taken leading up to the accident, or the actions taken in an attempt to avoid the accident were unreasonable in the circumstances.

In this case, the court was not persuaded there was a more reasonable course open to the pilot in the face of the worsening weather.

Although there was some evidence of a breach of aviation regulations, the court was not persuaded this was sufficient to establish negligence. In arriving at that decision the court also noted the defence under the regulations relating to poor weather.

The Court of Appeal judgment indicates that in the event AV8 had commenced proceedings against Ergon Energy for failing to attach warning beacons to the powerlines, they would have been successful in recovering.

Before commencing proceedings it is important for Plaintiffs to consider all possible respondents, rather than relying on a Defendant to add other parties as contributors. This is particularly the case where there are significant uncertainties as against the respondent.