ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

Reported Decision: 72 NSWLR 318 Special leave application granted by the High Court 1 May 2009 (S499/2008 & S500/2008) Appeal Outcome: ACQ Pty Limited v Cook; Aircair Moree Pty Limited v Cook [2009] HCA 28 (S107/2009) Appeal dismissed by the High Court 5 August 2009 (S108/2009) Appeal dismissed by the High Court 5 August 2009

New South Wales Court of Appeal

CITATION: ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

HEARING DATE(S): 7-8 April 2008

JUDGMENT DATE: 16 July 2008

JUDGMENT OF: Beazley JA at 1; Giles JA at 2; Campbell JA at 3

DECISION: Pilot of aircraft owes no duty of care, concerning manner in which he flies, to an electricity worker who is nowhere near the place where the flying occurs, but who is a type of person likely to come to the scene if negligent flying brought a power line down. Section 10(1)(d) Damage by Aircraft Act (DAA) extends to indirect or consequential results of an impact that falls within s 10(1)(a), (b) or (c). Aircraft owner and operator liable to plaintiff under DAA for injury he suffered in consequence of collision between aircraft and power line. Contributory negligence of plaintiff not a partial defence to an action under s 10(1)(d) DAA. No voluntary assumption of risk by plaintiff. No breach of employer's duty of care by plaintiff's employer.

CATCHWORDS: TORT – negligence – duty of care – linesman employed by power company injured by electric shock from power line dislodged from supporting pole when struck by aircraft – whether duty of care owed by employer – whether duty of care owed by pilot of aircraft – whether operator of aircraft vicariously liable for actions of pilot – whether direct application of notion of proximity is a safe guide to when duty of care exists – whether causal connection between impact and injuries – whether finding of causation is consistent with finding of no duty - AVIATION – Statutory liability of owner and operator of aircraft for personal injury caused by aircraft in flight – s 10 and s 11 Damage by Aircraft Act 1999 (Cth) – construction of expression "caused by" in s 10(1)(d) Damage by Aircraft Act – whether narrow construction of provision appropriate – whether common law concept of causation applicable – whether voluntary assumption of risk available as defence to action for damages under s 11 – whether contributory negligence available as complete defence or defence to action for damages under s 11 – whether circumstances falling within s 10(1) of Act amount to a "wrong" within s 8(a) Law Reform (Miscellaneous Provisions) Act 1965 – whether s 5A, s 5R, s 5S Civil Liability Act 2002 applicable to proceedings – circumstances in which defence of contributory negligence available at common law in respect of action to recover damages for injury, loss, damage or destruction caused by a wilful act of the defendant – whether owner and operator of aircraft can recover contribution from employer of linesman towards their liability to pay damages under the Act – s 5(1)(c) Law Reform (Miscellaneous Provisions) Act 1946 - STATUTORY INTERPRETATION – Second reading speech – aid to construction – s 15AB Acts Interpretation Act 1901 (Cth) - JURISDICTION, PRACTICE AND PROCEDURE – Jurisdiction – Federal jurisdiction – claim for damages arising under Commonwealth Act – s 76(ii) Constitution – s 39(2) Judiciary Act 1903 (Cth) – whether provisions as to contributory negligence under State legislation applicable by State court exercising federal jurisdiction – Law Reform (Miscellaneous Provisions) Act 1965 – Civil Liability Act 2002 – s 79 Judiciary Act 1903 (Cth)