Zeppelin v Commonwealth of Australia [2002] NSWSC 228

New South Wales Supreme Court

CITATION : Zeppelin v Commonwealth of Australia [2002] NSWSC 228 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 19044/93 HEARING DATE(S) : 5 - 7 March 2002 20 March 2002 JUDGMENT DATE : 28 March 2002

PARTIES : Erik Jack Zeppelin Commonwealth of Australia JUDGMENT OF : Burchett AJ at 1

COUNSEL : Mr B Gross QC with Mr J Heazewood for the Plaintiff Mr T J Morahan for the Defendant SOLICITORS : Baker Ryrie Rickards Titmarsh Solicitors for the Plaintiff Australian Government Solicitor for the Defendant CATCHWORDS : Negligence - personal injury sustained in Army Reserve military activity - serious conflict of medical evidence - conflicting possibilities affecting calculation of damages for loss of earning capacity, both past and future - damages estimated in accordance with dictum of Brennan & Dawson JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640 Ahmedi v Ahmedi (1991) 23 NSWLR 288 Croft v Commonwealth of Australia (unreported, 8 July 1988) Groves v Commonwealth of Australia (1982) 150 CLR 113 CASES CITED : Joukhador v Donnelly [1999] NSWCA 468 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 State of NSW v Moss [2000] NSWCA 133 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 DECISION : See paragraph 33 of the judgment.

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Burchett AJ

Thursday, 28 March 2002

019044/93 Erik Jack Zeppelin v Commonwealth of Australia

Judgment 1 His Honour: The plaintiff, a single man born 5 September 1957, sues the Commonwealth of Australia for damages for negligence in respect of injuries sustained on 27 November 1988, when he was aged 31. At the time, the plaintiff was a Lance-Corporal attached to the Second Commando Company, a unit in the Army Reserve based in Melbourne. 2 In one sense, what led to the plaintiff's injuries was his participating in a demonstration of an inherently hazardous military skill – forward exit rappelling from a helicopter hovering at a height of about thirty metres. But, of course, training in the armed forces necessarily involves practising dangerous operations. What the plaintiff's senior counsel relies on, therefore, is not the inevitable danger of the exercise, but that (he alleges) the order to carry it out was given in circumstances which unnecessarily and carelessly increased the risk so as to involve a breach by the Commonwealth of a duty of care owed to the plaintiff. The defendant did not raise any argument to deny the existence of a relevant duty of care owed to the plaintiff, but contested the conclusion that there was a breach of that duty. In adopting this stand, it was doubtless guided by the decision of Grove J in Croft v Commonwealth of Australia (unreported, 8 July 1988) and the dicta, there discussed, of the members of the High Court who decided Groves v Commonwealth of Australia (1982) 150 CLR 113. 3 Forward exit rappelling from a helicopter is an advanced skill developed to enable special forces to descend rapidly and with an element of surprise. It involves a team (typically five persons, two on one side and three on the opposite side of the helicopter) jumping forward, clear of the helicopter's skids, at the same time as each other, and free falling for some distance before bringing their descent under control by means of fixed ropes attached to the helicopter. The personnel involved are wearing harness (in earlier days Whillans climbing harness, which in 1988 was being replaced by a specially designed full body harness) attached by a steel screw gate karabiner (a kind of safety shackle) to a figure eight descending device through which the rope is passed in order to provide a friction brake upon the application of pressure by the user. It is a feature of the method that the rope, which in basic rappelling practice would hang down to the ground, is coiled in a leg bag, from which it is progressively withdrawn during the descent, the absence of visible ropes denying persons below any advance notice of the deployment from the helicopter. The technique of forward exiting was actually developed as late as 1980 by Mr Michael Herrick, a witness called for the plaintiff, who was then serving in the Counter Terrorist Squadron of the Special Air Services Regiment (SASR). Mr Herrick was a very impressive witness, who is presently engaged on the drafting of the Army's Airborne Rappelling Operations Manual, and was also involved in the design and testing of the full body harness. I accept his expertise and his evidence. 4 Mr Herrick said that he had noted, before the plaintiff's injury, a "high incidence" of back injuries in rope descents. A factor was the low centre of gravity of a person descending while wearing the Whillans harness. That problem was overcome by the high centre of gravity offered by the full body harness, enabling the descender to assume a more upright position, and also enabling him to make use of two friction control points, rather than only one, during his descent. This matter is important because one of the plaintiff's complaints is that he and the others with him were required to perform the exercise while wearing the Whillans harness, although full body harness was available. However, the use of the full body harness had not yet by 1988 become universal, and I think the more significant impact upon the decision in this case of the type of harness involved relates to Mr Herrick's next point. 5 For Mr Herrick emphasised the need to rehearse so demanding a technique immediately before its employment by personnel not completely habituated to it by constant practice. That, I think, must have been particularly required when the older harness, known to have been implicated in previous incidents, was to be utilized. Mr Herrick gave evidence that it was "against recommended procedures" to have personnel "perform an unrehearsed demonstration" of what he described as "such a hazardous activity". It is obvious that Reserve personnel (and all five of the men ordered to jump on this occasion were reservists) are, in the nature of things, unlikely to have had the same opportunity as members of regular special forces to acquire confident mastery of their own natural apprehensions when launching themselves from a helicopter at a height of thirty metres. They need to rehearse the operation if they are to perform it flawlessly. 6 If the initial jump is not performed flawlessly, there is a risk of collision with other personnel jumping at the same time. Mr Herrick referred, as one of the "[k]ey elements" of this descent method, to the – "importance of personnel not arresting their descent too soon after leaving the aircraft as this will lead to collisions under the aircraft."