THE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA [1995] NSWCA 380

THE PUBLIC TRUSTEE and ORS v THE COMMONWEALTH OF AUSTRALIA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and CLARKE JJA

27-29 June 1995, 20 December 1995

NEGLIGENCE — air crash — air traffic controllers' liability — whether breach of duty — whether, if so, caused crash — held (by maj): ATC not liable. Delta Air Lines Inc v United States of America 561 F 2d 381 (1977) appld.

AVIATION — civil liability — air traffic controllers' liability — duty of care — whether breach — whether caused accident — held (by maj): Not liable.

EVIDENCE — expert — preference for — primacy of trial judge. Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA) consd.

NEGLIGENCE — causation — proper approach to — "but for" test — assignment of responsibility for air crash — loss of engine power immediately following take-off- air pilot request immediate permission to land on specified runway — Air Traffic Control sends plane instead to the end of runway — plane crashes in sea and against sea-wall of runway causing death of all on board — primary judge (Abadee J) finds duty of care and breach of duty on part of Air Traffic Control personnel — further finds that such breach did not cause the subsequent crash of the plane and the damage sued for — upon appeal to the Court of Appeal — held: (1) (Clarke JA contra): The better view was that there was no breach of duty on the part of Air Traffic Controllers. Giannarelli and Ors v Wraith and Ors (1988) 165 CLR 543; Saif Ali and Anor v Sydney Mitchell and Co (a firm) and Ors [1980] AC 198 (HL); Whitehouse v Jordan and Anor [1981] 1 WLR 246 (HL) applied; (2) (Mahoney JA and Clarke JA; Kirby P dissenting): But, in any case, no error was shown in the judge's finding that any breach of duty proved had not caused the subsequent air crash. March v E and MH Stramare Pty Ltd and Anor (1991) 171 CLR 506 considered. Delta Air Lines Inc v United States of America 561 F 2d 381 (1977) followed.