AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited [2014] NSWCA 46 Hearing dates: 07.11.2013 Decision date: 12 March 2014 Before: Barrett JA at [1] Hoeben JA at [2] Ward JA at [139] Decision: Appeal is dismissed. The appellant is to pay the costs of the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORT - negligence - claim for economic loss by owner of helicopter against bailee of helicopter arising from conduct of pilot - helicopter coming into contact with overhead powerline - challenge to factual findings of trial judge - whether evidence before trial judge capable of proving substantial deterioration in weather conditions - whether due weight given to opinion of experts - whether negligent of pilot to continue flying in deteriorating weather conditions - assessment of alternatives open to pilot - need to assess actions of pilot prospectively not in hindsight - use of Civil Aviation Regulations as particulars of negligence - application of ss 5B and 5C Civil Liability Act 2002 - CAUSATION - negligence not established - CONTRACT - what terms should be implied - extent to which Civil Aviation Regulations were to be implied in contract - PROPORTIONATE LIABILITY - whether owner of powerline liable in tort - class of pilot to whom duty owed - foreseeability of relevant "risk of harm" - powerline owner liable in negligence - DAMAGES - loss of profits and diminution in value of repaired helicopter - failure of trial judge to have regard to agreement between parties - factual error of trial judge requiring appeal court to re-assess damages. Legislation Cited: Civil Liability Act 2002 Cases Cited: AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2012] NSWDC 220 BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994)180 CLR 266 Breen v Williams [1996] HCA 57; 186 CLR 71 Coulton v Holcombe [1986] HCA 33; 162 CLR 1 Fox v PercyI [2003] HCA 22; 214 CLR 118 Hawkins v Clayton [1988] HCA 15; 164 CLR 539 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361 Leighton Contractors Pty Ltd v Fox; Calliden Insurance Limited v Fox [2009] HCA 35; 240 CLR 1 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 Ruhani v Director of Police (No 2) [2005] HCA 43; 222 CLR 580 Sheather v Country Energy [2007] NSWCA 179; (2007) Aust Torts Reports 81-901 The Ship "May" v R (1931) SCR 374 at 382 Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 Vero Insurance Limited v Rail Corporation of NSW [2013] NSWCA 372 Vozza v Tooth & Co Ltd [1964] HCA 29; 112 CLR 316 Warren v Coombs [1979] HCA 9; 142 CLR 531 Water Board v Moustakis [1988] HCA 12; 180 CLR 491 Zheng v Cai [2009] HCA 52; 239 CLR 446 Texts Cited: Cheshire & Fifoot Law of Contract (8th edition) Category: Principal judgment Parties: AV8 Air Charter Pty Limited - Appellant Sydney Helicopters Pty Limited - Respondent Representation: Counsel: Mr D Fagan SC/Mr T Brennan - Appellant Mr G Curtin SC/Mr G Gregg - Respondent Solicitors: Norton White - Appellant Gilchrist Connell - Respondent File Number(s): 2012/390046 Decision under appeal Citation: [2012] NSWDC 220 Date of Decision: 2012-12-07 00:00:00 Before: Levy DCJ File Number(s): 2010/348326