Cook v Aircare Moree Pty Ltd [2007] NSWDC 164

Set aside by Appeal : Decision partly confirmed by High Court [2009] HCA 28

New South Wales District Court

CITATION: Cook v Aircare Moree Pty Ltd [2007] NSWDC 164 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 19, 20, 21, 22, 26 March and 9 May 2007

JUDGMENT DATE: 14 May 2007

JURISDICTION: District Court - Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff against Aircare Moree Pty Limited and ACQ Pty Limited for $953,141; judgment for the plaintiff against Country Energy for $260,316; judgment for Country Energy on its cross-claim against Aircare Moree Pty Limited for $130,158; judgment for ACQ Pty Limited on the cross-claim brought by Country Energy; judgment for Country Energy on the cross-claims brought by Aircare Moree Pty Limited and ACQ Pty Limited.

CATCHWORDS: Linesman employed by power company, injured in course of employment by an electric shock from overhead power lines brought down by an aircraft conducting aerial spraying - negligence by employer - contributory negligence by plaintiff, apportioned at 40% - owner and operator of aircraft strictly liable to plaintiff under the Damage by Aircraft Act 1999 (Cth), and a defence of contributory negligence not available - defence of voluntary assumption of risk fails - apportionment of responsibility between defendants - contribution available to employer, but not against it, and s 151Z of the Workers Compensation Act 1987 (NSW) not therefore applicable.

Civil Liability Act 2002 (NSW): s 5A Damage by Aircraft Act 1999 (Commonwealth): s 10 and s 11 LEGISLATION CITED: Judiciary Act 1903 (Cth): s 79 and s 80 Law Reform Miscellaneous Provisions Act 1946 (NSW): s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1965 (NSW): s 9 Workers Compensation Act 1987 (NSW): s 151G, s 151N(2), s 151Z