Petts v Northern Riverina County Council [2000] NSWSC 360

New South Wales Supreme Court

CITATION : Petts v Northern Riverina County Council [2000] NSWSC 360 FILE NUMBER(S) : SC 400014/96 HEARING DATE(S) : 12/05/99, 14/10/99, 03/04/00, 4/04/00, 05/04/00, 7/4/00 JUDGMENT DATE : 10 May 2000

PARTIES : Margaret Petts and Gregory Maxwell Petts v Northern Riverina County Council JUDGMENT OF : James J

C Branson QC/D Conti - Plaintiff COUNSEL : D Nock SC - Defendant R McIlwaine - 1st and 2nd Cross-Defendants Robb & Associated - Plaintiff SOLICITORS : Phillips Fox - Defendant Connery & Partners - Cross-Defendants DECISION : Verdict for the Plaintiffs in action; Verdict for cross-defendant in first cross-claim; Verdict for cross-claimant on second cross-claim

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

JAMES J

Wednesday 10 May 2000

400014/96 - Petts v Northern Riverina County Council

JUDGMENT 1 HIS HONOUR: This is an action for damages arising out of an accident which occurred on 23 October 1990. In the accident a helicopter being flown by Stephen James Petts in which John Quade was a passenger, struck a power line near the town of Barellan and crashed to the ground. Mr Quade was killed in the accident. Mr Petts was not killed but was seriously injured. In 1996 Mr Petts commenced these proceedings claiming damages for the personal injuries he had suffered in the accident. Subsequently, on 21 June 1996 Mr Petts committed suicide. It was not disputed at the hearing that Mr Petts committed suicide as a result of the pain, anxiety and depression caused by the injuries he had suffered in the accident. On 9 October 1996 probate of Mr Petts' will was granted to his executors, who were his mother and his brother. These proceedings, which Mr Petts had commenced, were continued by his executors as the plaintiffs. 2 The proceedings which Mr Petts commenced and which his executors continued were brought against the Northern Riverina County Council ("the County Council"). The basis of the claim was that a contract had been entered into between the County Council and Masling Rotor Wing Pty Limited ("Masling") for the inspection by helicopter of power lines within the area patrolled by the County Council, that Mr Petts had been employed by Masling as chief helicopter pilot, that on the morning of the accident Mr Petts had taken off from a property owned by Mr Quade and that neither Mr Quade nor a Mr McDonald, both of whom were employees of the County Council and both of whom had been at or near the take-off site, had warned Mr Petts of the presence on the property of the power line with which the helicopter collided. The County Council denied liability and alleged that Mr Petts had been guilty of contributory negligence. The County Council brought a cross-claim ("the first cross claim") against Masling. Masling brought a cross-claim ("the second cross-claim") against the County Council pursuant to s151Z(1)(d) of the Workers Compensation Act for the recovery of workers compensation paid by Masling. 3 The amount of the damages to which the plaintiffs would be entitled, if they obtained a verdict, was agreed, as was the amount of the workers compensation payments which should be deducted from the amount of any verdict (exhibit "B"). 4 Another action which was mentioned from time to time at the hearing was an action brought pursuant to the Compensation to Relatives Act on behalf of Mr Petts' dependents. However, although this action was mentioned from time to time, I at no stage embarked on any hearing of it. 5 The hearing of the present proceedings commenced in Albury in May 1999 in the course of a country circuit. The hearing could not be completed during the circuit and had to be adjourned part-heard to Sydney. Because of other commitments, I was unable to resume the hearing for many months. 6 At the trial a volume described as "Brief of Evidence" was admitted as a plaintiffs' exhibit. This volume included copies of a specification from the County Council, a log book recording flights by Mr Petts, a statement by Mr Petts made on 31 October 1990 and an affidavit by Mr Petts sworn on 4 December 1995 in support of an application for extension of the limitation period, a statement by Owen Thomas Dicker made 30 October 1990 and a statement by Mr Robbins of the Bureau of Air Safety, who conducted an investigation into the accident. 7 Exhibits tendered by the County Council, apart from photographs, maps and plans, some of which were marked by witnesses, included a tender from Masling to the County Council, a report by Daniel E Tyler, a helicopter expert, and copies of some Civil Aviation Orders by the Civil Aviation Safety Authority. 8 Exhibits tendered by Masling included a report by Tim J Joyce, a helicopter expert, and part of a statement made by Mr Petts on 31 January 1991. 9 Oral evidence was given at the hearing by Mr Dicker, Mr McDonald, Mr Darling (another employee of the County Council at the time of the accident) Mr Tyler and Mr Joyce. 10 I have taken all of the evidence, oral and documentary, into account.