Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Endeavour Energy v Precision Helicopters Pty Ltd [2015] NSWCA 169 Hearing dates: 8, 9 and 10 December 2014 Decision date: 22 June 2015 Before: Basten JA at [1]; Macfarlan JA at [171]; Sackville AJA at [174] Decision: The Court directs that, absent agreement reached within 3 weeks of the delivery of these reasons, as to (i) apportionment, (ii) calculation of amounts payable and (iii) costs, the parties are to file and serve:

(a)within 4 weeks, their respective submissions dealing with such of the issues identified above as remain unresolved, such submissions not to exceed seven pages; and (b)within a further 2 weeks, any submission, not to exceed four pages, in reply. Catchwords: AVIATION – carriage by air – carrier's liability – limitation under Civil Aviation (Carriers' Liability) Act 1959 (Cth), s 31 – electricity supply company contracted for supply of helicopter and pilot to undertake aerial inspection power lines – whether carriage under Civil Aviation (Carriers' Liability) Act 1967 (NSW) – whether employee of electricity supply company on board helicopter was a "passenger" – whether employee's role to provide information to pilot about route and hazards made him a crew member – Fellowes (or Herd) v Clyde Helicopters Ltd [1997] AC 534 applied

CONTRACT – breach of contract – carrier provided low flying helicopter and pilot to electricity supply company for aerial inspection of power lines – electricity supply company responsible for marking route plan with hazards and briefing pilot and crew – helicopter struck unmarked telecommunication wire – helicopter damaged and employee of electricity supply company catastrophically injured – whether pilot's performance complied with contractual obligation of reasonable care and applicable laws and standards – whether electricity supply company under duty to mark all hazards – whether electricity supply company should have made relevant inquiries of telecommunication company – whether electricity supply company protected by contractual indemnity where contract provided for apportionment of liability for carrier's losses resulting wholly or partly from electricity supply company's actions – interpretation of indemnity clauses