New South Wales Supreme Court CITATION : Cecilia Filipovic & 3 Ors v Heli-Australia Pty Ltd & 4 OrsTony Filipovic -v- Heli-Australia Pty Ltd & 5 Ors [2001] NSWSC 195 FILE NUMBER(S) : SC 20880/1995; 20881/95 HEARING DATE(S) : 20/06/00, 21/06/00, 17/08/00, 21/08/00, 22/08/00, 23/08/00, 24/08/00, 25/08/00 JUDGMENT DATE : 23 March 2001 PARTIES : Cecilia Jane Filipovic - Plaintiff; Heli-Australia Pty Ltd - 1st Defendant; Heli-Muster Pty Ltd - 2nd Def; Colonia Insurance Company (UK) Ltd - 3rd Def; Baltica Insurance Company (UK) Ltd - 4th Def; Estate of the Late Roderick John Hunt - 5th Def. Tony Slavko Filipovic - Pltf; Heli-Australia Pty Ltd - 1st Def; Heli-Muster Pty Ltd - 2nd Def; Colonia Insurance Company (UK) Ltd - 3rd Def; Baltica Insurance Company (UK) Ltd - 4th Def; Hugh Hunter McLelland as representative of Estate of R J Hunt - 5th Def JUDGMENT OF : Bell J at 1 BJ Gross QC/ S Dixon - Pltfs COUNSEL : RS McIlwaine SC/B Morris - 1st - 4th Defs LT Grey - 5th Def Russell McLelland & Brown - Pltfs SOLICITORS : Pricewaterhouse Coopers Legal - 1st - 4th Defs DGB Lawyers - 5th Def CATCHWORDS : Aviation Insurance policy - "low flying" exclusion. Compensation to Relatives Act 1897 LEGISLATION CITED : Insurance Contract Act 1984 (Cth) Supreme Court Rules 1970 Civil Aviation Regulations 1988 (Cth) CASES CITED : Flick v Nash (unreported) NSWCA 9.2.87 British Aviation Insurance Co Ltd -v- Hasting (1999) 103 SASR 179 DECISION : Parties to bring in Short Minutes in conformity with these reasons. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION BELL J 23 March, 2001 20880/95 - Cecilia Jane FILIPOVIC & Ors v HELI-AUST PTY LTD & ORS 20881/95 - Tony Slavko FILIPOVIC & Ors v HELI-AUST PTY LTD & ORS JUDGMENT HER HONOUR: Introduction 1 At about 1.38 pm on 6 September 1992 a Bell helicopter piloted by Roderick John Hunt ("the pilot") crashed in a thickly wooded gully on the eastern slopes of the Illawarra Escarpment, near West Dapto. There were two passengers in the helicopter at the time; the plaintiff, Tony Slavko Filipovic ("Tony Filipovic") and his brother, Frank John Filipovic. the pilot and Frank Filipovic were both killed as the result of the crash. Tony Filipovic survived but suffered severe injuries to his left leg. 2 In proceedings 20880/95 the plaintiff, Cecilia Jane Filipovic ("Cecilia Filipovic"), brings proceedings pursuant to s 6B of the Compensation to Relatives Act 1897 on her own behalf as the widow of Frank Filipovic and on behalf of their three children; Anthony Frank Filipovic, Justin Michael Filipovic and Peter James Filipovic. 3 By proceedings 20881/95 Tony Filipovic brings proceedings against the same defendants for damages arising out of his injuries sustained in the crash. 4 The first defendant is said to have conducted the flying school at which the pilot undertook his helicopter flying training. The second defendant was the registered owner of the Bell helicopter registered number VH-MZU. The third and fourth defendants are insurers who were parties to a contract of insurance with the first and second defendants. The fifth defendant is the legal personal representative of the pilot. 5 The plaintiffs in each set of proceedings by their respective further amended statements of claim contended that the first defendant had been negligent in allowing the pilot to hire and fly the helicopter knowing that he had very limited experience in flying such aircraft. A similar claim was pleaded as against the second defendant in each case. 6 Claims were brought directly against the third and fourth defendants pursuant to s 51 of the Insurance Contract Act, 1984 (Cth). In each case it was alleged that the pilot had been guilty of negligence in his conduct of the helicopter in a variety of respects particularised in the statements of claim. 7 At the commencement of the proceedings Mr Gross QC, who with Mr Dixon appeared for the plaintiffs, stated that the plaintiffs in each case discontinued as against the first and second defendants. The matter proceeded without further attention on this aspect. It would seem that Pt 21 r 2 of the Supreme Court Rules 1970 operates to prevent discontinuance (by leave or otherwise) after the trial has commenced. An action may thereafter only be disposed of by judgment; Flick v Nash (unreported) NSWCA 9 February 1987. As I have noted, the matter was not addressed in the course of the proceedings. I propose inviting the parties to bring in short minutes to give effect to these reasons and to hear from them if there is any issue as to costs. I will give the plaintiffs an opportunity to be heard on this issue. 8 Mr Grey, on behalf of the fifth defendant, informed me that his client submitted to any order the Court might make subject to maintaining the cross-claim against the insurers. 9 The third and fourth defendants conceded that the crash was the result of the pilot's negligent conduct of the helicopter. 10 Mr Gross did not seek to press the claim pleaded in each case for direct indemnity pursuant to s 51 of the Insurance Contracts Act 1984 (Cth). He acknowledged that the helicopter was an "aircraft engaged in commercial operations" within the meaning of s 9(3) of that Act and that, accordingly, the contract of insurance was outside the provisions of the Insurance Contracts Act 1984. 11 During the course of the hearing I granted leave to Cecilia Filipovic to amend her further amended statement of claim by the insertion of a claim for a declarations both that the third and fourth defendants are liable to indemnify the fifth defendant under the contract of insurance in respect of the fifth defendant's liability in damages and that the plaintiff is entitled to recover damages directly from the third and fourth defendants. An amendment in identical terms was allowed to the further amended statement of claim in the Tony Filipovic proceedings. 12 Mr McIlwaine SC, who with Mr Morris appeared on behalf of the third and fourth defendants, did not concede that the court had power to make a declaration in the terms sought. In the light of the conclusion I have reached it has not been necessary for me to deal with this issue. 13 At the heart of the conduct of the proceedings was the fifth defendant's cross-claim against the third and fourth defendants by which indemnity is sought under the aviation insurance policy. There was no issue but that a current policy as between the third and fourth defendants and Heli Muster Pty Ltd and/or Heli Australia Pty Ltd was in force as at the date of the crash. The policy extended coverage to the pilot. 14 It is common ground that the policy provides a combined single limit of $1,000,000 in respect of any one occurrence. 15 The central issue litigated in the proceedings was whether the third and fourth defendants had brought themselves within the terms of one of the exclusions provided under the policy. Relevantly, the policy states: 1. You are not covered under this policy if at the time of an accident or occurrence giving rise to a claim: … 1.5 The aircraft was, with your knowledge and consent, being used for: 1.5.1 racing, record attempts, speed trials, aerial seeding or fertilisation, dusting, spraying, fish spotting or any use involving the mustering, herding or recovery of animals: 1.5.2 low flying or any other form of flying involving abnormal hazards; and 1.5.3 experimenting or testing of new parts (other than replaced similar parts) new devices or new designs unless specifically stated in the Schedule." 16 It was the third and fourth defendants' case that the pilot was engaged both in low flying and flying involving abnormal hazards at the time of the accident. 17 Regulation 157 of the Civil Aviation Regulations 1988 (Cth) ("the Regulations") is concerned with low flying. It is an offence for an aircraft to fly over any area (not being a city, town or populous area) at a height lower than 500 feet above the highest point of the terrain, and any object on it, within a radius of 300 metres from a point on the terrain vertically below the helicopter. 18 Regulation 157(4)(e) of the Regulations provides that sub cl (1) (dealing with low flying) does not apply if "the aircraft is flying in the course of actually taking off or landing at an aerodrome". "Aerodrome" is broadly defined for the purpose of the Regulations and, relevantly, includes any site suitable for use as an aerodrome for the purpose of the landing and taking off of aircraft (Reg 92). The parties were agreed that in the event that the pilot had been in the course of actually landing the helicopter on a site upon the Filipovic property (which is located on the eastern slope of the Illawarra Escarpment north west of the village of Wongawilli) the proposed landing site would be an aerodrome for the purpose of the Regulations. 19 There was a considerable body of evidence pointing to the pilot as having been engaged in low flying in the period prior to the collision. There was some evidence to suggest that it may have been his intention to land the helicopter on the Filipovic property. A central issue in the way the matter was conducted was whether the third and fourth defendants had established as a matter of probability that at the time of the accident the pilot was not flying the helicopter in the course of actually landing on that property. 20 On Sunday 6 September 1992 the plaintiff, Tony Filipovic, went to the Illawarra County Council Picnic Grounds located at Darkes Road, West Dapto. He arrived at about 8 am in the morning. A function was to be held at the picnic grounds later that morning celebrating his twenty first birthday. At about 11 am the pilot landed the Bell helicopter on a cricket pitch adjacent to the picnic grounds. He had flown from Bankstown airport that morning accompanied by his girlfriend, Goranka, Tony Filipovic's sister. 21 The pilot offered to take Tony Filipovic and Frank Filipovic junior for a trip in the helicopter during the course of the afternoon. The three of them took off in the helicopter around 1.15pm or a little later. The purpose of the flight 22 Evidence was led from Tony Filipovic, his father, Frank and his sister, Goranka of representations made by the pilot as to his intention with respect to the flight. Each gave an account that the pilot had said he planned to take Tony Filipovic up to the family property and to land on it. This body of evidence was the subject of some challenge. Tony Filipovic had not referred to any such assertion in his statement made to the police in a statement made on 9 December 1992. He did however give evidence at the inquest, held in September 1993, that the pilot had said he was going to land the helicopter on the Filipovic property. Goranka Morgera said that the pilot told her at the picnic grounds that he was going to take Tony and Frank up to the farm. She had made such an assertion in a statement provided to the police on 17 April 1993. I should note that the year of the making of the statement was not identified in the course of her evidence. However, it appeared plain that she was being cross examined upon the contents of a statement made to police for use at the inquest. As I have noted the inquest appears to have been held in September 1993. 23 Frank Filipovic senior gave evidence of a conversation he had with the pilot on the day of the crash. The pilot told him that he was planning to give Tony a ride for a birthday present: "He said they are going with that helicopter to take Tony and some friends to the farm for ride and that's all what I was talking to him." (T.155) 24 Mr Filipovic senior gave evidence of an earlier occasion when the pilot had landed a helicopter on the Filipovic family property. In evidence in chief he was asked when this earlier episode occurred. He said he was not able to say "but couple of months or more or less, I don't know". The timing of the earlier trip to the Filipovic property was the subject of cross examination. Mr Filipovic said "Could be two months, three months, four months, I have no idea. It was so long ago and I didn't think about it, about things like that, you know". (T.168) Mr Filipovic was confident that on the occasion on which the pilot had landed on his property the pilot had been flying the helicopter alone. the pilot's log book was in evidence. It supports a view that after January 1992 there was no occasion when he recorded flying a helicopter in the Dapto area when he was the only occupant. I accept Mr Filipovic's evidence that the pilot had landed a helicopter on the Filipovic property on an occasion prior to 6 September 1992. Mr Filipovic had been feeding cows on the property at the time. He saw the helicopter coming from the east and observed it making a turn towards the south, then he noticed it making what he described as a little bit of a loop and then travelling downwards. He saw it hovering and observed the landing. The pilot landed the helicopter on an area of flat land on the property. Frank Filipovic was standing some forty to fifty metres from the spot. The pilot remained on the property for about 10 minutes. He spoke with Mr Filipovic telling him that he planned going down to Albion Park. 25 It was not put to Tony Filipovic that he had tailored his evidence before the Coroner (as to his belief that the pilot was proposing to land the helicopter) in order to support any future claim he may bring against any person relying on the aviation insurance policy. It was not put to Ms Morgera that she had falsely claimed in April 1993 that the pilot told her he was planning to take Frank and Tony to the farm. Mr Filipovic senior was not challenged on his account as to the conversation he had with the pilot at the picnic ground that morning. I accepted all of them as honest witnesses. I consider the probabilities are that the pilot intended taking Tony and Frank Filipovic up to the Filipovic family farm and landing the helicopter there. I accept he had done so on a previous occasion and that there were two suitable flat areas of land upon which a landing might have been made. The helicopter's path 26 A number of witnesses gave evidence of observations concerning the flight path followed by the helicopter after it left the picnic grounds. There was other evidence from which some estimate might be made as to the length of the journey. This evidence has some bearing on the question of whether the defendants' have established that the pilot was not in the course of actually landing the aircraft at the time of the accident and, accordingly I propose to review it in some detail. 27 Tony Filipovic said that the helicopter took off at about 1.15pm and commenced flying in the direction of the Filipovic farm. The pilot was seated on the far left of the cabin Frank Filipovic was in the middle and Tony Filipovic on the right. He described the path taken by the helicopter from take off as west in the direction of the Filipovic farm. He was asked to estimate the height that the helicopter attained and he said "A hundred metres, a hundred and fifty metres I think" (T.25). It is convenient to convert these estimates into feet, having regard to the unit of measurement used by the Regulations. A hundred metres is approximately three hundred and thirty feet. A hundred and fifty metres is approximately four hundred and ninety two feet. 28 Tony Filipovic drew the path taken by the helicopter on a copy of an aerial photograph; Ex C. He also marked on that document the two flat areas of ground on the Filipovic property. The path depicted by Tony Filipovic shows the helicopter flying west and then turning south when the helicopter was over the larger of those two flat areas. He described the helicopter thereafter as flying south over a wooded ridge and across an area of open grassland (referred to in the course of evidence as "the fairway") and on over a further wooded area. He plotted the path of the helicopter as then turning east and travelling for a short distance before it hit a tree. 29 In evidence Tony Filipovic described the course taken by the helicopter this way: "We basically flew across the flat area indicated, past the dam and past the, just the lower flat section marked and then come across to the neighbouring property on the left of our property and then proceeded to turn and basically three quarters of, or two thirds of the way backwards we have crashed." (T.27) 30 As they were flying over the wooded area, Mr Filipovic described feeling a jolt. The helicopter started to fall. He felt another jolt and the helicopter fell further, crashing into the gully. Mr Filipovic marked Ex C with crosses depicting the location of the first and the second jolt. He showed the helicopter as being on what might be described as a north easterly course at the point of final impact. 31 Tony Filipovic said that when they flew across the family property the helicopter had been about 70 or 80 metres above the ground (T.30). As the helicopter flew over the wooded area, he put it as twenty or thirty metres above the tree-line (T.31). As it swept over the next set of trees (having crossed the fairway) the clearance had felt like fifteen or twenty metres. (T.31) He estimated that they were flying about fifteen metres above the tree-line prior to the first jolt (T.27). 32 I note that it was Tony Filipovic's estimate that the helicopter was at least one hundred metres above the first set of power lines that it flew over after leaving the picnic grounds. At the conclusion of his cross examination he agreed with the following proposition: "Q. Do you concede that for, if not the whole, but most of the flight, the helicopter from the time it left the picnic ground until the crash was operating at a height of less than five hundred feet above the terrain? A. Yes" (T.79) 33 Goranka Morgera watched the helicopter take off from the picnic ground. She said "I did see it take off and they just went up towards the farm". She did not observe anything unusual about either the height achieved by the helicopter or its route. Beyond stating that the helicopter had flown in a generally westerly direction, Ms Morgera was not able to be more precise. One is not able to see the Filipovic farm clearly from the picnic ground. 34 A number of witnesses were called in the third and fourth defendants' case to give evidence touching on the path taken by the helicopter and its conduct in the period immediately before the collision. 35 Peter Matthews was living at Lot 1 Sheaffes Road, West Dapto. Mr Matthews is an engineer. He was driving on his property at about 1.30pm that day when his son drew the helicopter to his attention. Mr Matthews stopped his vehicle and waited whilst the helicopter passed overhead. He marked his position on a large aerial photograph; Ex A. 36 When Mr Matthews first saw the helicopter he estimated that it was less than 100 metres above his vehicle (T.135). He kept the helicopter under observation. The last thing that he saw was some debris rising into the air and a puff of what appeared to be clear smoke. Mr Matthews plotted the path taken by the helicopter from the time he first observed it until the point where he noted the puff of smoke on Ex A. 37 The path described by Mr Matthews was to the north of that described by Tony Filipovic. Mr Matthews plotted the journey from the time he commenced his observation as one due west in a straight line to the north of Sheaffes Road. He then described the helicopter as turning south and operating in a large circle, ultimately travelling south across the first wooded ridge over the fairway and on over the wooded area immediately to the south of the fairway. The circle plotted on Ex A by Mr Matthews includes the Filipovic property within it. 38 Mr Matthews said that for most of the journey the helicopter maintained its height relative to the ground. Thus throughout the journey, as Mr Matthews observed it, the helicopter was travelling at a height of less than 100 metres. Mr Matthews estimated the height of the helicopter by reference to features of the surrounding landscape. A tree located adjacent to the spot where he stopped is 13 to 14 metres high. Mr Matthews' estimated that the helicopter, was about two to three times the height of that tree as it passed over it. As the helicopter travelled up the ridge it was about two to three times the height of three power poles. Mr Matthews believed the poles to be about 15 metres high (T.136). 39 In cross examination Mr Matthews was emphatic that the helicopter had executed a complete circle prior to collision. Up until a point just before the collision, Mr Matthews said the helicopter had maintained its height relative to the topography. At a point close to impact, he observed it to be closer to the ground. Mr Gross put to Mr Matthews: "Q. While the helicopter was moving in a curve or circular motion, it was reducing its height relative to the ground under it? A. Not until close to the point of impact. Q. What do you mean "not until close to the point of impact"? A. Well, as it came to close to whatever object it hit, its height then decreased. Q. It didn't drop a hundred metres and then whack a tree, did it? A. No. Q. And it didn't hit a tree that was a hundred metres high, did it? A. I'm not sure. Q. Isn't it the fact that the helicopter in the course of circling, if I can use that expression, was gradually reducing height? A. Yes." (T.139/140) 40 In the course of his evidence Mr Matthews estimated that the helicopter was at a distance of two and a half to three kilometres from him at the time of the collision. In the course of his cross-examination he agreed that he had estimated the distance as one and a half kilometres in a statement made to the police in September 1992. In that statement Mr Matthews gave the following account: "I stopped my vehicle and turned the motor off. I continued to watch the helicopter and it continued to travel in a westerly direction for about thirty seconds. It then proceeded to do a 360 degree circle in an anti-clockwise direction. From where I was it appeared to be very low to the tree-line. I would estimate at this time the helicopter was approximately one and a half kilometres from where I was. It also appeared to me that it was going to travel up and over the escarpment prior to going into the turning circle." (T.142) 41 Mr Matthews said that the helicopter was heading in a southerly direction at the point when the collision occurred. Specifically he rejected the proposition that it had been on a heading somewhere between east and north east at the time of collision (T.144). In his statement to the police Mr Matthews said: "After completing the circle, the helicopter then made a low pass along the tree-line heading south. After a matter of three or four seconds I noticed tree debris flying up into the air. At this stage the noise from the helicopter ceased."" (T.144/145) 42 Mr Matthews went on in evidence to state: "A. As the helicopter completed that circle and travelled in the southerly direction, its altitude changed and impacted with what I believe to be a tree. Q. When you say "its altitude changed", it went lower? A. Slightly." 43 Mr Matthews was asked to agree with the proposition that the helicopter was gradually lowering its height from the time it began circling. He rejected this proposition observing: "If you mean that from the time that the circle started to the time of impact, the helicopter did not gradually decrease its height, it decreased just prior to impact". (T.146) 44 Mr Matthews was emphatic in rejecting the suggestion that just prior to impact the helicopter had been dropping in height. 45 David Ryan gave evidence of his observations of the helicopter in the period shortly before the collision. Mr Ryan is a carpenter who was living at Dapto. At about 1.30 on the afternoon of 6 September 1992, he was visiting a friend in Smith Lane, West Dapto. Mr Ryan identified the premises and marked them on Ex 4. Mr Ryan's position put him a short distance south and west of the position that Mr Matthews was standing in. The premises in Smith Lane are roughly due east in a straight line from the Filipovic property. 46 When Mr Ryan first became aware of the helicopter, it was travelling from the east and was to the north of his location. He watched it throughout its journey until it crashed although he might have taken his eyes off it for a few seconds on occasions. He watched it fly past him up towards the mountains. For a time thereafter he was able to hear it, but not see it, and then he observed it re-appear and disappear again. The last time he saw it, it was banking to the left. He was able to see the rotor blades as it banked. It did not come out of the left-hand turn but kept going down. He heard a bang and dust or smoke came up. Mr Ryan got into his truck and drove as close to the scene as he was able. He then went over on foot to the scene to offer assistance. Mr Ryan observed part of the helicopter in a tree at the scene. The tree was one of the tallest there (T.199). 47 In a statement made on 28 September 1992 Mr Ryan gave this account: "About 1.20 pm I was at the rear of my friend's house when I noticed a small helicopter approaching from the east. It passed to the north of the house and headed over towards the small hills below the escarpment. It was not flying very high, though I cannot estimate an exact height. It was a noisy helicopter, blue in colour. I watched it move over to the hills and gullies below the escarpment and then I saw it disappear behind a hill, it re-appeared and then dropped below another hill. Again it re-appeared and it was banking and turning to the left, at that time I could see the complete round shape of the rotors, they were quite visible. The helicopter passed behind some trees at the top of a hill and within seconds I heard a loud bang and the helicopter did not appear … During the time that I saw the helicopter flying around the hills, it appeared to be under control and following the gullies in that area. Again it was not flying very high and I could see it quite distinctly." 48 Mr Ryan's evidence concerning the path taken by the helicopter immediately prior to the collision was in these terms: "Q. OK, if we could just clarify that and I appreciate we can't be precise about angles. Are you indicating that when you saw the helicopter coming around it was going south and then eventually it was heading east, correct? A. Yeah, it was going south along the mountains and then the last time it come up, it banked to the left and I could see the blades clearly and then it didn't come out of the turn. Q. What you say is that it was in a turn, is that right? A. Coming up and around to the left. Q. And at the point where the collision occurred, it was heading basically towards north east, is that right? A. Yes, that's right. Q. So you saw the helicopter turn from a southerly direction, I suppose, through to an easterly direction around to a north easterly direction, is that right? A. Yes, yes. Q. And was that basically a turn which you observed with in effect the helicopter in that angled profile that you've described, that is with its blades at an angle to the ground? A. Mmm. Q. Is that right? A. Yeah." (T.205/6) 49 Mr Ryan agreed with the proposition that the helicopter as it travelled from the east to the point where it reached the hills, was at a constant height. He said this: "It just seemed to be the same height looking at it, just seemed to be going in the same line until it reached up the top of the mountains or the ravine." (T.208) 50 In describing the path of the helicopter as it travelled south just prior to the collision, Mr Ryan demonstrated making a wave like motion with his hand (T.206). He was asked to clarify his demonstration of this movement: "Q. Can I just ask you about that wavy movement with your hand that you've done a couple of times? A. I could hear the helicopter, I couldn't see it and then I seen the helicopter re-appear and then disappear and then I heard it and then I seen it come in back up to the left hand side and I seen it again when it banked to the left. Q. Is the situation that you saw it crossing that cleared area where the tank is? A. I'm not sure, I'm not sure of that. Q. You do have a memory, however, do you, of the helicopter appearing at various stages descending, is that right? A. Yeah." (T.209) 51 Russell Hayes is a TAFE teacher who lives in Hayes Lane, Dapto. At about 1.30 pm on the afternoon of 6 September 1992 he was at his home when he observed the helicopter flying in the area depicted in the photograph, Ex 4. Mr Hayes marked Ex 4 to indicate the location of his home. It is at a distance to the south of the Filipovic property. 52 Mr Hayes' attention was drawn to the helicopter because of its noise. When he first observed it, it was flying from east to west. Mr Hayes stopped and stood watching it. After a little time he observed debris and a column of smoke. He was not able to see the helicopter at the point of collision. He said he had lost view of it behind the ridge just before he observed the column of smoke. 53 Mr Hayes said that on two occasions he was able to identify the altitude of the helicopter "fairly closely" by reference to the ridges over which it passed. The first such ridge he described as being a cleared ridge. He estimated that the helicopter was flying twenty to thirty metres above it. On the second occasion he observed that the helicopter was quite close to the tree-line "from ground level I believe it wouldn't have been more than ten metres, taking into account six metre trees at that point"(T.220). He made that observation about half a minute before he saw the helicopter make a quick descent: "It came over the ridge very close to the tree line on top of the ridge and then it did a rapid descent over the level treed (sic) southern slope of the ridge and it - the engine revs are speeding up as it was going down. The sound attracted me again considerably. It went down - oh, the ridge line where it came across would be around the one hundred and twenty metre RL" (T.220). 54 The reference to "RL" is to relative level above Australian height datum as described on contour maps. Mr Hayes said the helicopter came down the ridge close to the tree and then turned in an anti-clockwise direction starting to climb again. He noted the engine revs were slowing down as it was climbing and that the helicopter then went behind the ridge level. He said the helicopter would have made the best part of two seventy degrees of a three hundred and sixty degree circle. It had been facing south at the beginning of the turn. 55 In cross examination Mr Hayes agreed that he had first seen the helicopter when it was about three kilometres away. At the point when the helicopter reached the foothills it was about one and a half kilometres from his position (T.224). Mr Hayes was challenged as to his ability to accurately judge the helicopter relative to the terrain at such a distance. He was confident as to the accuracy of his estimate because the ridge lines gave him perspective. I was inclined to accept him. 56 Mr Hayes gave this account of the events immediately prior to the collision: "The ridge that I am referring to is to the south of where the helicopter crashed. It is the ridge, the last ridge that the helicopter came over. When it came over that ridge it then rapidly descended and did a left hand turn. It was not - that is possibly incorrect. It was a circle, a circular route it took. It then climbed again as it was going up towards the ridge again and then it went behind it, just before the noise stopped of it. Q. Was the climbing the ridge or was that just your impression? A. It went - it went over the ridge, at lower level and it went behind it so I lost view of it. That is how I know where it was. Q. Did you have a ridge between you and the helicopter? A. At the time it crashed, yes. Q. Do you know the farm where the Filipovic family had an agricultural property or a share in an agricultural property near that ridge? A. That's not the ridge I was talking - indicating. It is the next ridge to the south from there. Q. So do we have two ridges; first of all the ridge that blocked your view from where you were a kilometre south, and that has got trees on it, is that right? A. That's correct. Q. And then the next ridge north is the cleared ridge where the Filipovic family had a holding? A. That's correct." (T.225) 57 It is to be noted that in a statement made by Mr Hayes on 6 September 1992 he said that he saw the helicopter travelling south and over the hill near Jim Clague's place. Mr Hayes identified the location of Jim Clague's house and the boundaries of the Clague property on Ex A. The property is to the east and adjacent to the Filipovic property. 58 Mr Hayes was asked whether the helicopter made a turn in order to travel south over the hill near Jim Clague's place. He said that the helicopter was not flying in a straight line but going around in a circular motion (T.227). He went on to say: "Over the second ridge, the wooded ridge. That's when it started to do a tight circle, but initially from Sheaffes Road it wasn't going in a straight line. Its whole path was around the foothills of the escarpment. It didn't appear to be going directly to a particular location. Q. But it ended up doing a turn, did it, near the hill which was the cleared ridge you have referred to, is that right? A. No, it didn't do a turn near that cleared ridge, it was coming south to the next ridge. It was coming south across roughly where the water tank is now, across that clearing there, and then it came across the wooded ridge and then, that was coming - not due south, it is west of south" (T.227). 59 It was Mr Hayes' evidence that the helicopter passed over the point where a reservoir is now located on the Filipovic property and when it got to the wooded ridge that it made a fairly sharp turn and executed a fairly tight circle (T.228). 60 Mr Hayes said that when the helicopter travelled from the point where the reservoir is now located on the Filipovic property across to the ridge to the south it was travelling in virtually a straight line. He was able to see it all the time. It was travelling at a constant height. That is it travelled at a constant height from the position where the water tank is now located to the next ridge to the south. Mr Hayes rejected the proposition that the helicopter had swooped down the southern side of the cleared hill to the south of the Filipovic property and banked to turn. 61 Mr Hayes was taken to the terms of the statement made to the police in September 1992. At that time he said: "I continued to watch the helicopter and it travelled south and over the hill near Jim Clague's place. At this time it was just above the tree line. It swooped down the southern side of the hill keeping just above the tree level and banked to turn" (T.231). 62 Mr Hayes explained that what he had intended to convey in his statement was that the helicopter had continued to travel south and that it swooped down over a heavily wooded ridge. I did not consider that his evidence on this issue was inconsistent with prior statements made by him. Mr Hayes explained that in the course of his evidence when referring to the ridge he was speaking of the wooded area, a part of which is to be seen on the left hand side of the photograph labelled "Downhill east to crash site" which appears in the fourth row on the left hand side of Ex E. 63 As the helicopter changed direction Mr Hayes said that it executed a circular turn in an anti-clockwise direction. Initially he observed that it came down quite rapidly towards the end of this manoeuvre, it banked and gained height again (T.232). It appeared to Mr Hayes that the helicopter made an almost complete circle (T.233). He believed that at the end it was on a north west heading, having nearly completed the circle. 64 Mr Hayes agreed in cross examination that the rapid descent of the helicopter as it came down the southern side of the hill had seemed to him to be abnormal (T.235). Nothing had appeared abnormal at the point where the helicopter flew over the area now occupied by the reservoir on the Filipovic property. Mr Hayes considered that the helicopter failed to execute a complete circle by some fifteen degrees. He said that the helicopter did not travel in a smooth circle, rather it came down and turned sharply back up towards the ridge. Mr Hayes' reference to the circular orbit of the helicopter was when the helicopter came over the ridge line. There was an interval of some minutes between the time when he saw it flying west towards the escarpment and the time when it came over the ridge line. 65 Barry Sergeant was the Air Safety Investigator who conducted the investigation into the crash. In a report prepared for the assistance of the Coroner, Mr Sergeant advised that the accident site was located 1.5 kilometres north east of the village of Wongawilli on the eastern slopes of the Illawarra Range at an elevation of about 130 metres above sea level. I should observe that this latter figure is incorrect. 66 Mr Sergeant's investigation concluded that the helicopter had initially struck trees at a height of about 21 metres. Thereafter it continued on a track of 055 degrees magnetic, descending and striking further trees until finally impacting heavily onto the side of a gully about a hundred metres beyond the initial point of impact. The degree of damage to the helicopter was consistent with a ground impact at a high rate of descent and a low forward speed. Appendix 4 to the investigation report comprises three photographs which viewed together depict the area within which the helicopter was seen to be flying prior to the collision. The accident site can be seen viewed looking towards the west. A series of three photographs located on the left hand side of the middle row in Ex E depicts the same scene from a distance slightly greater. 67 Mr Sergeant said that when he measured the actual track of the helicopter after it had struck the trees, he determined that it was heading towards the north east. This was consistent with the account given to him by some witnesses, namely that the aircraft had been turning to the left back towards the north east (T.184). 68 Mr Sergeant explained that rotor wing or fixed wing aircraft when banking have a natural tendency to lose height unless either the pilot increases the power or, in the case of a helicopter, increases the angle at which the rotor blades strike the air flow. The expert evidence 69 Robert O'Dea was called by the third and fourth defendants. Mr O'Dea has had some forty six years experience in aviation as a pilot, flying instructor and experimental test pilot. He was employed by the Department of Transport as an examiner of airmen and later by the Civil Aviation Authority in the like capacity. He was the head of safety regulation with the Civil Aviation Authority. He holds a senior commercial pilot's licence both for fixed wing aircraft and helicopters. He has experience in the conduct of fifty types of aircraft, including the Bell 47 helicopter. Suffice it to say Mr O'Dea was a most impressively qualified witness. 70 Mr O'Dea gave evidence as to the ordinary practice in landing a helicopter, taking into account the requirements of the Regulations. He said that it is customary to fly a reconnaissance circuit, which should be conducted above five hundred feet. The turn on final approach should be made at or above five hundred feet. The aircraft should descend from that point in a straight line towards the intended touch down point. The straight line descent, described as a glide slope, for a helicopter may vary between five and ten degrees. "Q. So when you are actually landing the helicopter, do you have to line up where it is you are going to land the helicopter? A. Yes. You have to have a clear view of the place you want to land on to commence the approach. Q. Then using those techniques that you described to her Honour, the helicopter descends down this imaginary glide slope in the way you have described of five to ten degrees and then does there come a point in time when the helicopter reaches the landing point and what has been described as hovers before it then settles onto the place where it is going to be landed? A. Yes. It goes to a condition and it varies with the helicopter doing eight or a hundred feet of transition and you continue descending, but you are slowing down from the approach speed which in this machine would be typically fifty knots and hoping to arrive over or just short of the intended touch down point in the hover" (T.257). 71 Mr O'Dea inspected the crash site and was familiar with the location of the Filipovic property. In Mr O'Dea's opinion immediately prior to the helicopter striking the tree, the pilot would not have been able to see a landing spot on the Filipovic property (T.258). 72 Mr O'Dea examined the contour map (Ex 3) after determining the position of the Filipovic property and the crash site. He said that the Filipovic property was at an altitude 70 metres higher than the crash site. Strictly Mr O'Dea agreed that altitude, being determined from sea level, may not be the correct way to describe the latter measurement. However, the clear sense of Mr O'Dea's evidence (and this matter was not the subject of challenge) was that the Filipovic property is 70 metres above the crash site. Mr O'Dea's measurement as to the height of the Filipovic property was taken from the centre of the property in a position roughly where the reservoir is now located (T.262). Mr O'Dea said this was at the lowest part of the property. 73 In Mr O'Dea's opinion having regard to the account of the witnesses as to the distance between the helicopter and the obstacles below, together with the angle of bank, the helicopter was not being steadied on an approach heading (T.259). He was asked: Q. You described when you were telling us how one goes about landing a helicopter the descent and what you needed to do to cause the helicopter to descend, does that involve a reduction in the power setting or in the speed of the helicopter? A. It requires both. Q. Have you heard any evidence in this case that there was any reduction in the speed or power setting of the helicopter leading up this crash? A. No" (T.260). 74 Mr O'Dea went on to explain that the pilot would reduce the power setting and speed of the aircraft following the completion of the reconnaissance circuit as he or she commenced the gradual descent towards the identified landing spot. 75 Mr O'Dea said that at an established aerodrome it is a legal requirement for a pilot to fly a full reconnaissance circuit. When a helicopter lands in an outlying area that has been selected by the pilot, a full reconnaissance circuit is a matter of prudence. Pilots are taught to carry out such a circuit during their training. I understood Mr O'Dea to be saying that a pilot landing a helicopter in an outlying area with which he or she is familiar may not execute a full reconnaissance circuit prior to landing the aircraft. Specifically, Mr O'Dea agreed with the proposition that given the pilot had previously landed a helicopter on the Filipovic property and having regard to the nature of the property, it was not necessary for him to undertake a 360 degree circuit prior to landing (T.279). Mr O'Dea maintained that the pilot was required to fly above 500 feet in conducting such reconnaissance as he did carry out. It was a matter for discretion as to how much of a circuit the pilot made. 76 In the course of his cross examination Mr O'Dea was asked whether a pilot landing a helicopter in an outlying area might seek to identify hazards such as rocks, branches of trees or undulations by effecting the reconnaissance circuit at a lower height than at an established aerodrome. Mr O'Dea explained that the object of the high reconnaissance circuit was to establish the approach path. The pilot might establish the detail of the ground once in the hover position. Mr O'Dea did agree that a low reconnaissance might be conducted on a final approach, the pilot would then hover to ensure that the area selected for landing did not have other obstacles which had not been detected at a greater height (T.275). 77 Mr O'Dea's opinion that the helicopter was not in the course of actually landing, was based in part upon his acceptance of Mr Matthews' account that the path of the craft was that it travelled from west, turned left hand on a southerly course, circled and ultimately was again heading south. Mr O'Dea understood that this evidence was consistent with the account given by Mr Hayes. It was Mr O'Dea's understanding that Mr Matthews and another witness had described a completed circle following a path to the north west of the Filipovic property. Mr O'Dea agreed that his view that the aircraft had not undertaken a meaningful reconnaissance was based upon his understanding that the orbit was conducted to the north of the Filipovic property and did not include the Filipovic property within it (T.282). Mr O'Dea was asked whether he would agree that if he were in error in his understanding with respect to the flight path of the orbit, that it would have an impact on his opinion. He replied in these terms: "A. No. I was trying to point out that the orbit did not construe or was not a reconnaissance. If the aircraft had turned left from that westerly heading and gone south, it wouldn't change the - it would just mean that there had been no attempt at reconnaissance whatsoever". (T.283) 78 Mr O'Dea agreed that a helicopter landing does not have to be executed in a straight line. Helicopters may land by descending turns. Mr O'Dea did not agree that it was common for pilots to land helicopters otherwise than in a straight line, but he was aware that it happens (T.207). Mr O'Dea agreed that the ideal angle for a helicopter to land at, was between five and ten degrees. 79 Mr O'Dea was asked to express an opinion, having regard to the evidence that he had heard in court concerning the operation of the helicopter leading up to the point of the crash, as to whether at any stage the pilot was in the course of actually landing the helicopter. In Mr O'Dea's opinion he was not. Mr O'Dea based his opinion in this respect on five matters; (i) Three witnesses indicated that the helicopter was operating at a low level, (ii) the same three witnesses described the helicopter conducting an orbit to the north of the Filipovic property and then travelling south over or near it down to a ridge south of it. The orbit to the north of the Filipovic property did not go around the property in a way that could be construed as a meaningful reconnaissance circuit, (iii) the helicopter had not steadied on a heading towards the property in a position from which it could descend, (iv) the helicopter was well below the Filipovic property, (v) there was nothing in the evidence of which Mr O'Dea was aware which might be identified as part of the precautionary reconnaissance prior to landing (T.261). 80 In Mr O'Dea's opinion there was nothing favouring a view that the aircraft was being flown in the course of actually landing. His opinion in this regard was not weakened by his agreement that the crash site was approximately 500 metres from the Filipovic property and that the pilot had been trained to execute a reconnaissance orbit 500 metres out from his intended landing. I understood Mr O'Dea to be conveying that there was nothing about the conduct of the helicopter, as described by the witnesses in the period immediately prior to the collision, consistent with a reconnaissance orbit prior to landing on the Filipovic property. 81 I should note that it was also Mr O'Dea's opinion the helicopter was being flown in a manner which involved abnormal hazards at the time of the accident (T.259). This was because it appeared that it was being operated at a low level over undulating and occasionally steeply rising country by a pilot who was relatively inexperienced and who had not been trained for low flying. The pilot was, thus, not aware of the hazards of low flying nor had he been given the opportunity to develop skills with which to deal with the situation in which he found himself. 82 There was an issue as to the scope of the concept of flying involving abnormal hazards for the purpose of the exclusion clause in the aviation insurance policy. Mr Gross referred me to British Aviation Insurance Co Ltd v Hasting (1999) 103 SASR 179 and submitted that the evidence did not disclose a sustained course of flying which was abnormally hazardous. In the light of the conclusion I have reached concerning the low flying conduct of the aircraft it is not necessary for me to resolve this question. 83 In the course of cross examination Mr Gross obtained Mr O'Dea's agreement that a pilot executing a left hand turn in a helicopter when he is seated on the left hand side of the aircraft may be mistaken as to the alignment of the aircraft relative to the ground. Further the greater the angle of bank during the course of a turn the greater the need for the pilot to increase power to prevent the helicopter dropping height. Mr O'Dea would not agree to the proposition that it was entirely possible, having regard to the pilot's inexperience, that he had completed a reconnaissance, banked the helicopter as part of a landing process but got himself into difficulties in executing the left hand banking turn (T.299). 84 Mr O'Dea agreed that occasionally a low reconnaissance may be necessary before landing a helicopter. He said that such a low reconnaissance can be conducted on the final approach. He did not agree that a low reconnaissance might be conducted at any stage in what was described as the overall landing procedure. 85 Mr O'Dea agreed that it was self evident that an actual landing could not commence until the site where the helicopter is going to land has been selected. It followed that the process of selecting the site for landing must be done at 500 feet or above (T.326). 86 Mr O'Dea agreed that lay persons are notoriously unreliable in estimating the height of aircraft. He qualified this by observing that where a person has something to measure the aircraft against such as power lines or trees, people are inclined to be not quite so unreliable (T.312). Mr O'Dea pointed out that much depended upon the individual. Findings 87 I am satisfied that at no time during the flight from the picnic ground to the point of collision was the helicopter flying at a height of 500 feet above the highest obstacle on the ground below within the radius specified by the Regulation. In arriving at this view I take into account the following considerations. Mr Matthews had a good opportunity to observe the path of the helicopter at the time when it passed over his vehicle and continued on its westerly heading. He made his estimate as to the height of the helicopter by reference to the height of the tree on his property and the height of the power poles. 88 A strong challenge was advanced to the reliability of Mr Matthews' evidence. My attention was drawn to the estimates given in his statement to the police made close to the time of the events, both as to the distance between his vantage point and the crash site, and to his estimate as to the height achieved by the helicopter. It is true that in his evidence before me both estimates were significantly at odds with the earlier account. As I have noted, in evidence he put the distance between his position and that of the crash site at two and a half to three kilometres. In his statement made on the day of the crash he put that distance as approximately one and a half kilometres. In the course of his evidence he expressed the opinion that the helicopter had been flying below 100 metres. In his statement he had put the estimate as below 50 metres. Mr Matthews presented as a precise and measured witness. The variations between his evidence and the contents of his statement were such as to cause me to be careful in evaluating the accuracy of his opinions. 89 By reference to the position marked by Mr Matthews on Ex A and the topographic map of the area (Ex 3), I inclined to the view that he was closer to the mark in his estimate as to the distance between himself and the point of collision in the account he gave to the police in his statement. As to his estimate as to the height of the helicopter, although in his evidence he spoke in terms of it being less than 100 metres, I note that when asked to estimate the height by reference to a feature of the landscape he put the helicopter at the point where he had first seen it as being two to three times the height of the large tree which was approximately 14 metres high. As the helicopter travelled up the ridge it was two to three times the height of the poles which are fifteen metres high. This seemed to me to be evidence consistent with the tenor of the account that he gave to the police on the day of the crash. 90 I should also note that the accuracy of Mr Matthews' evidence was challenged on the basis that he had not observed the helicopter's final turn to the north. I did not consider that this materially affected the reliability of Mr Matthew's evidence. Mr Matthews saw the debris and column of smoke immediately after impact but as I understood his evidence he had not been able to see the helicopter immediately before this. 91 I bear in mind Mr O'Dea's evidence as to the difficulty that lay witnesses have in accurately estimating the height of aircraft. It seems to me reasonable to accept that Mr Matthews' estimate that the helicopter was some two to three times the height either of the gum tree or the power poles may be out by quite a deal. However he was relatively close to the helicopter at the time he made his observations. In the statement he made on the day of the crash he described his impression that the helicopter was at a very low altitude. I consider the probabilities strongly point towards the helicopter not being at an altitude of 500 feet or more above the power poles and other features of the terrain at the time Mr Matthews made his observations. 92 I consider the evidence of David Ryan supports a view that the helicopter was low flying within the meaning of the Regulations. Further support for this is to be found in the evidence of Mr Hayes. 93 There was some conflict between the evidence of Tony Filipovic and Mr Matthews, Mr Ryan and Mr Hayes as to the path taken by the helicopter. Ultimately it seemed to me that not a great deal turned on the question of the path prior to the time when the helicopter flew south over the wooded area beyond the fairway. I should record that I considered each of the witnesses to be doing their best to give truthful evidence. 94 The plaintiff recalled the helicopter travelling on a straight westerly course until it executed the turn to the south over the Filipovic property. On the plaintiff's account at no time did the helicopter execute a circular orbit. The plaintiff said the helicopter did not fly north of Sheaffes Road. 95 Mr Matthews said the path of the helicopter was north of Sheaffes Road. From his vantage point I considered he was better placed to make that assessment. His evidence in this respect was supported by the evidence of Mr Ryan. I bear in mind that the plaintiff had not previously travelled in any form of aircraft. He was celebrating his twenty first birthday. The flight ended in tragedy for him. I was inclined to some caution in accepting the accuracy of his recollection of the flight path. In this regard I note the evidence of Mr O'Dea that the journey from the picnic grounds to the Filipovic property, assuming it to have been in a straight line, and accepting the Bell helicopter to have travelled at approximately 65 knots, would have taken some two minutes. It is difficult to be precise about the length of the journey since there is no accurate account as to the time of departure and the evidence on that matter varied somewhat. However, I think it fair to conclude that the journey occupied more than two to three minutes. Indeed the plaintiff's account to the police was that they had been flying for about five to ten minutes prior to flying over the gully that was heavily wooded. My view that the flight occupied longer than some two to three minutes inclines me to accept that the path of the helicopter was as described in general terms by the witness Mr Matthews. I consider the evidence of Mr Hayes lends support to this view since he, too, described the aircraft as operating in a near circular fashion. 96 I am satisfied that prior to striking the first tree, the helicopter was flying at a low level above the tree line. I accept the evidence of Mr Hayes in this respect. Mr Hayes judged the relative height of the helicopter by reference to the tree line on the ridge. He was a precise witness and an impressive one. His evidence was consistent with the plaintiff's impression that as the plane swept over the next set of trees on the far side of the fairway the clearance between it and the trees felt like about 15 metres, 15 or 20 (T.331). I am satisfied that shortly prior to the collision the helicopter was low flying over the tree line. Tony Filipovic's evidence was consistent with this view. 97 In the event that the helicopter was in the course of actually landing the low flying would not be contrary to the Regulation, nor attract the operation of the exclusion in clause 1.5.2 of the aviation insurance policy. I am unable to conclude that the helicopter was in the course of actually landing. I take the words of Regulation 157(4)(e) namely "the aircraft is flying in the course of actually … landing at an aerodrome" to refer to the conduct of an aircraft from the moment it commences its descent to an identified landing site. In this respect I note the evidence of Mr O'Dea that the actual landing of an aircraft starts when the aircraft leaves the 500 feet position on the way towards an identified landing spot by an identifiable approach path (T.327). 98 It does not seem to me that the conduct of a reconnaissance orbit or part orbit prior to the commencement of the final approach to an identified landing site might be thought to attract the operation of Regulation 157(4)(e). I should note that, in any event, I am not persuaded that the pilot was engaged in informal reconnaissance orbit or partial orbit with a view to landing the plane on the Filipovic property in the period immediately prior to the collision with the tree. This is so notwithstanding my acceptance of the evidence that the pilot had expressed the intention of taking Tony and Frank Filipovic up to the family property and landing on it. 99 I note the account given by Tony Filipovic in his statement to police on 8 December 1992: "We had been flying for about 5 to 10 minutes, and we had flown over some farms down the bottom of the hills and then we flew up to where my family owns a farm. We then flew towards the coal mine and then turned and flew over a gully that was heavily wooded on either side. We were about 10 or 15 metres above the trees. At one point the helicopter gave a jolt, that was as we came to the end of the gully, it was like a descending corridor of trees. We descended to the level of the trees and it did it again, then the skids hit the tops of the trees." 100 This account seemed to me to be broadly consistent with observations made by Mr Hayes. 101 The plaintiff's case was that having flown over the Filipovic property, the pilot was executing a partial reconnaissance orbit and descending with a view to landing on one of the two flat areas on the Filipovic property. As he commenced the turn to his left to head back to the Filipovic property the helicopter rapidly lost height as he banked steeply to the left. This was said to be the product of the pilot's inexperience given that he had only held a licence to operate helicopters for five months. 102 To my mind the evidence pointed to the pilot flying south over the wooded area at a low altitude for a period of time prior to collision with the trees. Nothing in the account of Tony Filipovic or the observations of the other witnesses is suggestive of the pilot losing control and the helicopter commencing a sharp downward descent prior to the first jolt. 103 As the helicopter flew above and close to the tree cover after crossing the fairway, I accept that the pilot could not have had a landing site on the latter property in view. 104 To the extent that Mr O'Dea considered that three witnesses, including Mr Matthews, had described the flight path of the helicopter as encompassing an orbit to the north of the Filipovic property he was in error. The orbit described by Mr Matthews included the Filipovic property. Notwithstanding that incorrect assumption, I understood Mr O'Dea to maintain that there was nothing about the conduct of the helicopter upon the information available to him (excluding for present purposes a belief that the orbit did not include the Filipovic property) to suggest that the pilot was in the course of actually landing the plane. In this respect Mr O'Dea pointed to the relative height of the terrain over which the helicopter was flying in the period immediately prior to the collision and the Filipovic property and to the absence of any indication that the pilot had steadied the helicopter on a course to an identified landing site. No evidence of an expert character was called in the plaintiff's case. 105 I have concluded that the likelihood is that the pilot was not in the course of actually landing the helicopter, or undertaking any step immediately preliminary thereto at the time of the first impact. For these reasons I consider that the third and fourth defendants have successfully brought themselves within the terms of the exclusion in the aviation insurance policy. The fifth defendant submitted to any order that the Court might make subject to maintaining the cross claim against the third and fourth defendants. For the reasons given I propose dismissing the cross claim. The fifth defendant's negligence is conceded. There will be judgment for the plaintiff as against the fifth defendant Damages Cecilia Filipovic's claim 106 Cecilia Filipovic married Frank Filipovic Junior on 8 September 1990. At the time of his death he was twenty four. She was thirty three. They had three children, Anthony aged two at the time of accident and twins, Justin and Peter who were aged eleven months. 107 The deceased completed his Higher School Certificate at Edmond Rice College, Wollongong. After one year of university studies he obtained employment as a machine operator working for a contractor to BHP, Transwest Haulage Pty Ltd. He went on to become a plant operator and by 1990 he had been promoted to leading hand. He had been in employment for some four or five years at the date of his death and was a hard working, healthy individual. 108 Mrs Filipovic completed her School Certificate, leaving school at the end of Year 10. She is blind in her left eye but otherwise healthy. Before the birth of her first child she worked in a variety of jobs mainly doing clerical work. She was working in a travel consultancy when she met her husband. After the birth of the first child she went back to work briefly. After the birth of the twins she ceased employment and was not employed at the time of her husband's death. 109 Mrs Filipovic has devoted herself to raising the children. She leads a quite restricted social life. She has not become involved in any romantic relationships since the death of her husband. She sees herself as raising the children to an age where they are self sufficient before she considers the possibility of remarriage. I accepted all that Mrs Filipovic had to say. 110 Mr Gross submitted a draft set of figures quantifying Mrs Filipovic's claim. I consider the sums proposed to be appropriate and that Cecilia Filipovic is entitled to judgment as against the fifth defendant in the amount set out below. I note that Mr McIlwaine did not suggest I would come to a contrary view. Funeral Expenses $ 4,200 $ 4,200 Past Loss of Dependency Based on 80% dependency for 2 adults, two children) $195,000 $195,000 Interest on past loss of dependency (6% p.a. over eight years) $ 93,600 $ 93,600 Future loss First 9 years (based on 80% dependency for 2 adults, 3 children) $218,000 Next 2 years (based on 77% dependency for 2 adults, 3 children) $ 39,500 Remainder of period until deceased aged 65 (based on 66% dependency for 2 adults $260,000 $388,125 Lost superannuation (50% of $170,000) $ 85,000 $ 85,000 $765,925 111 I note that the future loss component has been discounted by 25%, to allow 15% for contingencies and an added 10% to take account of the prospects of remarriage. Tony Filipovic's claim 112 With respect to the claim brought by Tony Filipovic the only area of controversy concerned the claim for past and future loss of earning capacity. In other respects the parties indicated they would be content with short reasons. I propose analysing the evidence touching on the loss of earning capacity in some detail. In the event that I were found to be in error with respect to the liability of the third and fourth defendants under the terms of the aviation insurance policy, the matter may have more than academic significance. 113 The plaintiff, Tony Filipovic, was aged twenty one at the date of the accident. He was then a single man living with his parents in Unanderra. 114 He left school at the end of Year 10, having completed his school certificate. 115 Whilst still a school student he had worked for his parents at their kiosk attached to the Dapto Pool. He also worked at the local markets selling handbags. After leaving school at the age of 16, he worked with a trucking company in North Wollongong. He was employed with this firm for about six months, helping the mechanic with basic truck maintenance. He left his firm to take up employment with Warilla Joinery. This firm was involved in making kitchens. The plaintiff commenced his first year of an apprenticeship. Not long after he started with Warilla Joinery the business changed hands. Shortly thereafter the plaintiff left that company and started working with Wide Form Constructions Pty Ltd. He maintained that employment for about four years. 116 During his period of employment with Wide Form Constructions Pty Ltd the plaintiff undertook an apprenticeship in carpentry and joinery studying at the Wollongong TAFE. He obtained his trade certificate as a carpenter, he also obtained a licence to operate explosive power tools. Around two or three days prior to the accident the plaintiff was retrenched. As I understood his evidence his retrenchment came about as the result of a temporary change in management in the company. Nick Pavia, whom the plaintiff described as the boss of Wide Form Constructions, came to see him while he was in hospital following the accident and told him that he was welcome to return to his employment. I accept that to be the case. 117 Generally, I accepted the plaintiff's evidence. Prior to the accident he was a steady and hard working individual whose temporary unemployment as at the date of the accident was uncharacteristic and would not have lasted for any length of time. In the event he had not returned to work with Wide Form Constructions Pty Ltd I am satisfied that he would have rapidly found employment with another firm doing formwork carpentry. 118 The plaintiff suffered serious injuries to his left leg as the result of the helicopter crash. The injuries included a fracture of the distal left tibia and fibula and multiple fractures involving the foot and in particular a fracture of the calcaneum (the large bone of the heel). He developed extensive vascular problems in the foot. There was a very large area of dead tissue. He underwent open reduction and internal fixation of the fracture of the tibia with a plate and seven screws. Surgical procedures were carried out to debride the dead tissue and later to apply a skin graft to the medial border of the heel. He developed increasing back ache aggravated by the abnormal gait he developed following the accident. 119 About nine months after the accident he was referred to Professor Nade, Orthopaedic Surgeon. At this time he had very severe clawing of the toes and a broadening of the heel. He also had a painful bony lump at the base of the fifth metatarsal. His arch was flattened and he had a great deal of difficulty with footwear. He underwent further surgery in July 1993. He reported that the surgery had helped him a little. 120 The plaintiff has been left with a severe disability to the left foot. It is unlikely that his condition will improve further over time. In the opinion of Dr Bodel, the orthopaedic surgeon qualified on behalf of the third and fourth defendants, it is more likely that his condition will deteriorate. There exists the potential that he may require amputation to control his pain. Dr Bodel noted that the plaintiff's working capabilities are severely limited because of his persisting long term disability. Any work would need to be mainly sedentary. 121 The plaintiff has been unemployed since the accident. During this time he has suffered chronic pain as the result of his injury. He has been subject to depression and psychological difficulties in adjusting to his loss. He is no longer capable of working as a formwork carpenter. 122 The plaintiff has made efforts to equip himself with appropriate vocational skills and to find employment. 123 In 1994 he undertook some courses at TAFE. He also did a short course offered by a private firm in aspects of security work. The training involved techniques for arresting shoplifters and the conduct of security operations in shopping centres and the like. The plaintiff realised that he was not capable of doing this sort of work because of his physical restrictions. The medical evidence confirms that view. 124 In 1996 the plaintiff undertook an introductory computer awareness course. He obtained a certificate in office skills. The latter was a separate undertaking to the computer awareness course. 125 The plaintiff commenced a course at the West Wollongong TAFE in Small Business Management. He did not feel capable of dealing with the demands of this course. One of the modules dealt with taxation and the completion of tax forms. The plaintiff said he had not understood it. I accept that the plaintiff was genuinely daunted by the demands of the small business course for which he was not suited. As part of the course that he did to obtain office skills the plaintiff did a typing course. He described himself as not too bad at typing. 126 For about six months from July 1996 the plaintiff did voluntary work supervising mentally handicapped people at a community centre. He arranged the setting up of tables and chairs and the preparation of art and craft materials. No paid work opportunities had come up for him in this area. 127 The plaintiff obtained casual employment with a friend, Agostino Rodriguez, who has a fabrication shop in Port Kembla making handrails. On the occasions when he worked for Mr Rodriguez he would work for about four hours a day. He earned about $100 a fortnight. 128 The plaintiff said he had endeavoured to obtain employment through looking at job advertisements at the Department of Social Security office and checking the employment advertisements in the newspapers. He had been unsuccessful. 129 The plaintiff obtained a forklift drivers' licence. He said that he had applied for a number of positions advertised for forklift drivers. In each case prospective employers were interested only in seeing applicants with experience. 130 The plaintiff had endeavoured to start a small business making picture frames, tables and restoring furniture. He said that his production rate had been pretty slow. He had kept up his endeavours for about eight to ten weeks in 1999. All in all he made about $300-$400 out of this project. 131 In June 1994 the plaintiff commenced attending psychological counselling with Mr Gerry Wenzel, psychologist. Mr Wenzel reports that the plaintiff presented with a host of symptoms consistent with a severe chronic post traumatic stress syndrome. It is to be noted that psychiatrists retained on the plaintiff's behalf and on behalf of the third and fourth defendants concur in the view that at the time of seeing Mr Wenzel the plaintiff was complaining of intrusive recollections of his dying brother. He reported high levels of anxiety associated with these "flash backs". He appeared to Mr Wenzel to be suffering a severe reactive depression. 132 The plaintiff was assessed by Dr Maguire, psychiatrist, on behalf of the second and third defendants. Dr Maguire, in his report of 19 March 1996, observed: "Mr Filipovic developed a range of symptoms and based on the history he gave me and the information contained in the report by Mr Wenzel I would make a diagnosis of a post traumatic stress disorder which was complicated by prolonged grieving over the death of his brother as well as the effects of his injury, the way it interfered with his ability to work and his lifestyle in general. He had some counselling from the psychologist but said he did not find it helpful as he does not like to have to discuss the accident. While the history would indicate that he continues to have some features of this disorder, he does not have a serious depressive illness in that his depressive symptoms are fleeting, he does not appear clinically depressed at interview and he is not taking an anti-depressant medication which might be masking an underlying "clinical" degree of disturbance. I do not believe that Mr Filipovic's residual psychological symptoms would interfere with his ability to work or to be retained." 133 The plaintiff was assessed by a team at the Vocational Capacity Centre Pty Ltd on behalf of the second and third defendants. The assessment was carried out over two days by a team of specialists; Dr Dalton conducted the medical assessment, Dr Pryor assessed vocational potential and Ms Duncombe, occupational physiotherapist, conducted functional capacity testing. The authors of the resulting report concluded that the plaintiff was incapable of returning to his pre-injury job due to his physical limitations. It was considered that he was suitable for a range of other sedentary occupations; toy maker, craft worker (wood), production tally clerk, booking clerk, key cutter or wood products assembler. With additional formal training it was considered that the plaintiff would be capable of employment as a precision instrument maker and repairer, engraver or computer operator. 134 In a report prepared on 13 June 1997 Ms Duncombe, reporting the results of an assessment conducted by herself, Dr Dalton and Dr Pryor noted: "In our opinion Mr Filipovic will require psychological assistance to enable him to re-enter the work force and adjust to his work as well as easy physical access." 135 Dr Pryor's assessment of the plaintiff, conducted on behalf of Vocational Capacity Centre Pty Ltd, noted that the plaintiff had below average reading skills and low scores for spelling and numeracy. In terms of vocational interests he was attracted to practical, outdoor, manual and mechanical activities. 136 Dr Tinning, orthopaedic surgeon, in a report dated 2 October 1997, expressed the opinion that the plaintiff had a significant residual disability equivalent to a 50% permanent loss of the efficient use of his left leg below the knee. He considered the plaintiff to be then fit for work of a sedentary or semi-sedentary nature. 137 Dr Dent interviewed the plaintiff on 13 November 1997. At that time he was exhibiting symptoms of what the doctor described as a "most genuine chronic post traumatic stress disorder and dysthymia". He was also complaining of persistent pain for which he was taking Panadeine Forte. Dr Dent observed: "His potential for work will depend upon what is considered to be his physical capacity in terms of his training and experience; from what he's told me I don't believe that he can be considered fit for such now and there will be a need to consider the potential for rehabilitation and re-education." 138 Dr Buckley, physician, saw the plaintiff on 21 November 1997. The plaintiff's main complaints at that time centred on his pain. This was consistent with his presentation to Dr Dent who recommended treatment at a pain management centre as a necessary preliminary to his return to employment. 139 Dr Maguire, consultant psychiatrist, examined the plaintiff in March 1996. He reviewed him on 19 April 2000. At that time the plaintiff complained of continuing pain arising out of his injuries. He was taking 4 to 6 Capadex per day and advised of a "slight" reduction in pain. Dr Maguire noted that the plaintiff experienced intermittent depressive symptoms when reminded of the accident and the death of his brother but, overall, he was not considered to be suffering from a "clinically significant" mood disorder. Dr Maguire considered that the plaintiff would benefit from fifteen sessions with a psychologist to help him adjust to his residual degree of disability and to overcome any unresolved grief or post traumatic stress disorder related symptoms. It was Dr Maguire's view that the plaintiff's psychological symptoms would not interfere with his ability to work or to be retrained. The plaintiff told Dr Maguire that it was the problem with his foot and back that limited his ability to work. 140 Dr Buckley examined the plaintiff on 14 April 2000. He made the following observations concerning the plaintiff's fitness for work at that time: "Mr Filipovic has made considerable efforts at return to work in different disciplines. He has detailed to me the difficulty of managing desk work due to his ankle and foot disability and also the difficulty of working in light work, such as the care and management of disabled children. Nevertheless, in each of these he was able to work for several months albeit at a significantly reduced hours compared with full time work. I therefore believe it appropriate to revise my previous estimate of a capacity to work in a seated or light work position, and would propose that he is capable of such work but no more than a half time, that is four hours per day, basis." 141 Mr McIlwaine submitted that I would find that the plaintiff had a period of total incapacity for employment following the accident and thereafter a period of partial incapacity. It was his submission that the period of total incapacity was from the time of the accident until the commencement of 1995. From that time on it was submitted that the evidence established that the plaintiff suffered an on-going loss of capacity at the rate of $350 per week. 142 It seems to me that the plaintiff's period of total incapacity extended up to the end of 1997. As at the date of his attendances on Dr Buckley and Dr Dent in late 1997 he was continuing in severe pain. Dr Dent was not of the opinion at that time that he was capable of engaging in employment. I note that a few months earlier the Vocational Capacity Pty Ltd assessment team were speaking in terms of the plaintiff's ability to re-enter the workforce with appropriate psychological counselling. This inclines me not to accept Dr Maguire's opinion as at March 1996 of the plaintiff's fitness for work. I consider that may have been overly optimistic in the light of the other material. 143 Prior to the accident the plaintiff was a fit young man with a good record of employment. Since the accident he is no longer capable of undertaking the employment for which he was suited. His capacity to obtain work of a clerical nature is likely to be limited by his relatively poor numeracy and literacy skills. This still leaves employment in the various categories identified by Vocational Capacity Centre Pty Ltd. He lives in the Illawarra. The prospects of him obtaining employment in one of these occupations when competing against applicants who are not physically handicapped must be considered not good. I would assess the plaintiff's loss of earning capacity at 65%. There is a consequential loss of the benefit of compulsory employer superannuation contributions. 144 The plaintiff has in the past on occasions required care. So much was conceded by Mr McIlwaine. There exists the real possibility that the plaintiff will undergo surgery to amputate the lower portion of the left limb. I consider it reasonable to make some allowance for care and assistance in the future. A figure mooted in the course of submissions as reasonable with respect to this head of damages was $50,000. I accept that to be the case. 145 I would assess the plaintiff's general damages in an amount of $160,000. I would apportion this - 50% as to the past and 50% as to the future. 146 I note that the plaintiff's out-of-pocket expenses were the subject of agreement in the sum of $46,868. 147 It was suggested, and I accept, that an appropriate allowance for future medical expenses would be $50,000. 148 The parties may bring in Short Minutes in accordance with these reasons. ***** Last Modified: 03/23/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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