New South Wales Court of Appeal CITATION : Northern Riverina County Council v Margaret Petts & Maxwell Petts as Executors of the Estate of Stephen James Petts & Anor [2001] NSWCA 341 FILE NUMBER(S) : CA 40019/01 HEARING DATE(S) : 21 August 2001 JUDGMENT DATE : 4 October 2001 Northern Riverina County Council - Appellant Margaret Petts & Maxwell Petts PARTIES : as Executors of the Estate of Stephen James Petts - First Respondent Masling Rotor Wing Pty Ltd - Second Respondent JUDGMENT OF : Mason P at 1; Meagher JA at 4; Hodgson JA at 12 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT CLD R40001/96 FILE NUMBER(S) : LOWER COURT James J JUDICIAL OFFICER : G. O'L. Reynolds SC & G. Curtin - Appellant COUNSEL : C. Branson QC & D. Conti - First Respondent C. Hoeben SC- Second Respondent Phillips Fox, Sydney - Appellants SOLICITORS : Robb & Associates, Albury - First Respondent Connery & Partners, Sydney - Second Respondent CATCHWORDS : Torts - negligence - whether duty of care existed - whether breached - appeal allowed. CASES CITED: Derrick v Cheung [2001] HCA 48 DECISION : See paragraph 11 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40019 of 2001 SC R40014 of 1996 MASON P MEAGHER JA HODGSON JA 4 October, 2001 NORTHERN RIVERINA COUNTY COUNCIL v MARGARET PETTS AND GREGORY MAXWELL PETTS AS EXECUTORS OF THE ESTATE OF STEPHEN JAMES PETTS & ANOR In October 1990, the appellant conducted an inspection of the rural power lines within its boundaries. The inspection was conducted in a helicopter hired from the second respondent and piloted by Mr Petts, on behalf of whose estate the first respondent initiated these proceedings. Mr Petts conducted a number of inspection flights with an observer, who was an employee of the appellant. On 23 October, he embarked on a flight with Mr Quade as passenger, also an employee of the appellant, in order to familiarise him with the appellant's power lines and qualify as an observer. When taking off, the helicopter collided with a single wire earth return (SWER) line. This was not one of the appellant's lines to be inspected. Mr Petts was seriously injured in the crash and he later died. The passenger was killed in the accident. At trial, the first respondent was successful against the appellant on the basis that the appellant, through its employees, should have emphatically warned Mr Petts of the existence of the SWER line. The appellant appealed the finding that it owed a relevant duty of care to Mr Petts and the finding that it had breached that duty. HELD per Meagher JA (Mason P & Hodgson JA agreeing): (i) The existence of some sort of duty of care owed by the appellant to Mr Petts was admitted at trial. The appeal should therefore be dealt with on the basis that such a duty existed, although its existence is questionable. Per Hodgson JA: Any relevant duty of care on the appellant could not go beyond a duty to warn where the circumstances were such as to indicate to a reasonable person in the position of the appellant or its employees that there was a hazard involving an appreciable risk to the helicopter and that there was an appreciable risk that the pilot would not be aware of the hazard. This was not the case here. Per Meagher JA (Mason P & Hodgson JA agreeing): (ii) An employee of the appellant warned Mr Petts of the existence of the SWER line. This discharged any duty owed by the appellant. ORDERS See paragraph 11. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40019 of 2001 SC R40014 of 1996 MASON P MEAGHER JA HODGSON JA 4 October, 2001 NORTHERN RIVERINA COUNTY COUNCIL v MARGARET PETTS AND GREGORY MAXWELL PETTS AS EXECUTORS OF THE ESTATE OF STEPHEN JAMES PETTS & ANOR Judgment 1 MASON P: I agree with Meagher JA. 2 Very recently the High Court observed that: Few occurrences in human affairs, in retrospect, can be said to have been, in absolute terms, inevitable. Different conduct on the part of those involved in them almost always would have produced a different result. But the possibility of a different result is not the issue and does not represent the proper test for negligence. That test remains whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care. ( Derrick v Cheung [2001] HCA 48 at [13]). 3 If one makes the large assumption that there was a relevant duty of care in the present case, there remains the issue of breach. I agree with Meagher JA that legal responsibility has not been demonstrated. 4 MEAGHER JA: This case arose from a tragic helicopter crash, which took place on 23 October 1990 on a rural property near Barellan in New South Wales. The appellant, as part of its duties, from time to time inspected the rural power lines, which existed within its boundaries. It was engaged in doing this at the time of the crash. The inspection was done by helicopter. That helicopter was hired from Masling Rotor Wing Pty Limited, the second respondent. The pilot of that helicopter was a Mr Stephen James Petts. He was the company's chief pilot and was highly skilled in low level flying. His observer, who flew in the helicopter with him, was a Mr McDonald, an employee of the appellant. The company was one of the appellant's independent contractors. 5 The rural property concerned was one owned by a Mr Quade, who was a friend of Mr McDonald and also a fellow employee of the appellant. Mr McDonald arranged with the appellant in effect to park the helicopter on the property during the nights, and then let Mr Petts fly it on his tours of inspection during the daytime. The helicopter landed there on 16 October and took off from there three times on 17 October. It landed there twice more on 17 October, and again on 22 October. Mr Petts stayed at a hotel in Barellan, Mr McDonald stayed at the property. 6 On the property, about 350 metres from where the machine was customarily parked, was a SWER line (a single wire earth return line). It was not one of the appellant's wires to be inspected. (In fact, the evidence does not disclose who owned it). 7 Messrs Quade, McDonald and Petts thought that they should take Mr Quade for a short ride in the helicopter (he had, apparently, never been in one before) so that he could familiarize himself with the appellant's power lines, and eventually qualify as an observer. They decided that this ride should take place on 23 October. Accordingly, on that morning, Mr Petts mounted the helicopter with Mr Quade beside him as a passenger. The machine took off, slowly and flying very low. Mr Petts was taking it on a route he had not flown before; he had not taken the elementary precaution of surveying his intended route before take off; he adopted an unjustifiably low flight profile; and he flew eastwards, straight into the sun. In these circumstances, it is not really surprising that he drove the machine into the SWER line. The helicopter burst into flames, Mr Quade his passenger was killed, and Mr Petts was very seriously injured (he lived long enough to commence this action, but took his own life shortly thereafter). The first two respondents are his executors. 8 The action of Mr Petts was heard by James J, who gave judgement in favour of the plaintiff. What, according to his Honour, the representatives of the appellant (Messrs Quade and McDonald) should have done was emphatically draw to Mr Petts' attention the existence of the SWER line. The County Council appeals. 9 Much of the argument before this Court centred around the interesting question of whether the appellant owed any duty to Mr. Petts, and if so what it was. Mr Reynolds SC, learned senior counsel for the appellant, submitted that his client owed no duty; and, in my tentative view, there is much to be said for this submission. However, Mr Branson QC, learned senior counsel for the Petts estate, submitted that the existence of some sort of duty was admitted at trial. The duty on which Mr Branson relied was a duty to warn. In my view, we should deal with the appeal on the basis that such a duty existed. 10 What made Mr Branson's task hard was that, on the facts, it is clear that Mr McDonald had warned Mr Petts of the existence of the SWER line, when they had first landed a few days before. If a duty to warn existed, there is no reason to think it was a duty to repeat the warning every five minutes; nobody, on the facts, had any reason to imagine that the impact of the initial warning had faded; and nobody had any reason to see why an additional warning should be given. Any duty owed by the appellant was discharged. 11 The orders which I propose should be made are the following: 1. That the appeal be allowed; 2. That the verdict in favour of the First Respondent against the Appellant be set aside; 3. That the verdict in favour of the Second Respondent against the Appellant be set aside; 4. That a verdict be entered for the Appellant in respect of the First Respondent's action; 5. That a verdict be entered for the Appellant in respect of the Appellant's Cross-Claim against the Second Respondent; 6. That a verdict be entered for the Appellant in respect of the Second Respondent's Cross-Claim; 7. That the First Respondent and Second Respondent repay to the Appellant, with interest, the money paid pursuant to the Judgment of the Court below. Liberty to apply if there is disagreement about the rate of interest; 8. That the First Respondent and/or Second Respondent be ordered to pay the costs of these proceedings and of the proceedings below. 12 HODGSON JA: I agree with Mason P and Meagher JA. 13 During oral submissions in the case, Mr. Reynolds SC for the appellant made a number of submissions as to the existence and content of any duty of care owed by the appellant to Mr. Petts. Mr. Branson QC and Mr. Hoeben SC for the respondents submitted that the existence of a duty of care had not been contested at the trial, and Mr. Branson was given leave to put on written submissions concerning the existence and content of the duty. 14 In those submissions, Mr. Branson argued for a duty on the appellant to liaise with Mr. Petts prior to takeoff about the proposed daily route of each flight including providing warnings about possible dangers brought about by the prevailing flight conditions in particular where the physical obstructions were more or less visible by reason of the weather and the time of day. He relied inter alia on cl.8 of the appellant NRCC's specifications, pursuant to which Mr. Petts' employer had tendered for the job, that clause being in the following terms: The NRCC will nominate its Risk Management Officer as the co-ordinator for the entire helicopter patrol. His duties will be to liaise with the pilot over the daily route and re-fuelling points and to arrange for the provision of fuel and meals at re-fuelling points. He will also be responsible for briefing and de-briefing sessions to ensure maximum effectiveness and cost benefit of the helicopter patrol to the NRCC. 15 In my opinion, that clause in its terms relates to delineation of the task to be undertaken rather than safety issues, although I accept that it has some relevance to the existence and content of a duty of care. However, having regard to the expertise of the pilot Mr. Petts and his primary responsibility for the safety of flights, in my opinion any relevant duty of care on the appellant could not go beyond a duty to warn where the circumstances were such as to indicate to a reasonable person in the position of the appellant or its employees that there was a hazard involving an appreciable risk to the helicopter, and that there was an appreciable risk that the pilot would not be or become aware of the hazard so as to be able to deal with it. 16 On the facts of this case, in my opinion the circumstances were plainly not such as to indicate to a reasonable person in the position of Mr. McDonald or Mr. Quade that the SWER line involved an appreciable risk to the helicopter. In my opinion, it would not have occurred to a reasonable person in their position that Mr. Petts would have taken off as he did, flying into the sun and gaining no more than about 5.5 metres in height in about 350 metres of forward travel; and thus it would not have occurred to a reasonable person in their position that the SWER line was a hazard to which the pilot's attention needed to be drawn. 17 The matter is made clearer by the circumstance that Mr. McDonald had already pointed out this SWER line to Mr. Petts; but in my opinion the result would be the same even if he had not done so. 18 The primary judge did not explicitly formulate the content of the appellant's duty of care, and in my opinion he was in error in finding a breach of that duty. 19 I agree with the orders proposed by Meagher JA. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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