ACQ Pty Limited v Cook [2009] HCA 28

HIGH COURT OF AUSTRALIA

FRENCH CJ,

GUMMOW, HEYDON, CRENNAN AND BELL JJ

Matter No S107/2009

ACQ PTY LIMITED APPELLANT

AND

GREGORY MICHAEL COOK & ANOR RESPONDENTS

Matter No S108/2009

AIRCAIR MOREE PTY LIMITED APPELLANT

AND

GREGORY MICHAEL COOK & ANOR RESPONDENTS

ACQ Pty Limited v Cook

Aircair Moree Pty Limited v Cook

[2009] HCA 28

5 August 2009

S107/2009 & S108/2009

ORDER

Matter No S107/2009

1. Appeal dismissed.

2. Appellant to pay the costs of the first respondent.

Matter No S108/2009

1. Appeal dismissed.

2. Application for special leave to cross-appeal dismissed.

3. Appellant to pay the costs of the first respondent of both the appeal and the application for special leave to cross-appeal.

On appeal from the Supreme Court of New South Wales

Representation

B W Walker SC with G Curtin for the appellants in both matters (instructed by Riley Gray-Spencer Lawyers)

P Menzies QC with G Giagios for the first respondent in both matters (instructed by Whitelaw McDonald)

Submitting appearances for the second respondent in both matters

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

ACQ Pty Limited v Cook

Aircair Moree Pty Limited v Cook

Aviation – Liability for damage caused by aircraft – Crop dusting aircraft collided with conductor in cotton field – Electrical linesman dispatched to repair conductor tripped or fell near it – Injury occurring after electric arc – Whether injury "caused by ... something that is a result of an impact" with an aircraft in flight – Damage by Aircraft Act 1999 (Cth), s 10(1).

Words and phrases – "something", "caused by".

Damage by Aircraft Act 1999 (Cth), ss 10(1), 11.

FRENCH CJ, GUMMOW, HEYDON, CRENNAN AND BELL JJ.

The background facts

1. At about 5.30am on 28 December 2000 a crop dusting aircraft was spraying a cotton field known as Field 19 about 21.5km north of Moree. The aircraft was owned by ACQ Pty Limited. It was operated by Aircair Moree Pty Limited, a company which employed the pilot[1]. Field 19 had a power line – a 22kV conductor – passing over it. At the lowest point the line was about 6.2m above the ground. In the course of flying under the conductor, the aircraft collided with it and caused it to drop to a height of about 1.5m from the ground at its lowest point. NorthPower (now known as Country Energy), which was responsible for the conductor, was informed of the incident at about 6.04am. Less than a quarter of an hour later NorthPower despatched two of its employees, Mr Cook ("the plaintiff") and Mr Buddee, to deal with the problem. They each arrived at about 6.45am. They agreed that Mr Buddee would drive to a links site seven kilometres away and isolate the conductor. They also agreed that the plaintiff would wait until the conductor was isolated before commencing his assessment. Despite that agreement the plaintiff entered the field before the conductor was isolated in order to see what damage had been caused and assess what repair work might be required. On the field were planted cotton plants in rows one metre apart, the rows running in a north-south direction. The plants were more than half a metre high. They grew into each other, so that the rows formed low hedges. Between the rows were troughs in which water collected when the field was irrigated. Thus the ground in profile had the configuration of crests with troughs spaced one metre apart. The ground was uneven and extraordinarily boggy. The conductor, being thin, was difficult to see against the overcast sky. The plaintiff approached the conductor, about 65m from his truck, by crossing through lines of plants in a slightly diagonal direction. The plaintiff then stumbled or fell in the muddy conditions and came within 60mm of the conductor. An electric arc between the conductor and the plaintiff took place, injuring him badly.