Helicopter owner awarded damages after wire-strike

[Flying Lawyer]

Newscom (Aus)
The owner of a helicopter which crashed and killed a bride and her brother on their way to her wedding has won his damages case against an energy company.

Last year in the NSW District Court, Louis Sheather, 55, unsuccessfully sued Country Energy for damages for the loss of his helicopter in the crash near Holbrook in the state's south in February 1999.

He had lent the aircraft to his cousin, experienced naval pilot Huw Paffard, 33, who was flying his sister, Jaya, 27, to her wedding at their parents' property, Billinudgel.
Mr Paffard and his sister both died when the chopper struck an unmarked power line and exploded in flames near the property.

The NSW Court of Appeal today allowed Mr Sheather's appeal against last year's District Court judgment, awarding the Holbrook man $160,250, plus interest which could more than double the amount.

The District Court judge had concluded that the NSW government-owned Country Energy could, at minimal cost, have placed markers on the power line, which would have alerted the pilot to its existence.

He found Mr Paffard had knowingly been flying well below the minimum height permitted.
But he also concluded there was a "duty of care" owed by Country Energy to "pilots and aircraft owners, including pilots and owners of carelessly flown aircraft".

In allowing the appeal today, Justice David Hodgson noted that in 1994 Country Energy had been warned that aircraft flew low in that area and the lines constituted a danger to them.

"The probability of an aircraft or a helicopter flying as low as 30 metres over (the site) could reasonably have been seen as quite small, but the consequences of a collision with the wires would be catastrophic," Justice Hodgson said.

"In the present case, in my opinion the circumstance that what the pilot did by way of low flying was done deliberately, was irrelevant to the question of duty and to the question of breach."

Justices David Ape and Murray Tobias agreed with Justice Hodgson.

[asara]

I wonder if this will open the gates for a flood of litigation....

[Flying Lawyer]

Possibly.

It might also encourage owners of power lines to place markers on their power lines to avoid the risk of being sued and, much more important, save lives.


An excellent decision by the NSW Court of Appeal, IMHO. http://www.pprune.org/forums/images/infopop/icons/icon14.gif


FL

[Three Blades]

but at what point do you have to protect the careless/illegal from suffering the consequences of their actions ?

[charliegolf]

Does this principle hold good if a burglar breaks in, breaks open the shotgun cabinet, loads the gun, and accidentaly shoots his foot?

This is a terrible loss, but the pilot was breaking (by UK standards) the law. Where's it going to end?

CG

[Whirlygig]

Does this principle hold good if a burglar breaks in, breaks open the shotgun cabinet, loads the gun, and accidentaly shoots his foot?
No because the operative phrase in your sentence is "breaks open". In this circumstance, the householder has taken reasonable steps to ensure the safety of the shotgun. However, if the cabinet was left unlocked (which possibly contravenes the shotgun licence), then the householder could be liable for the burglar shooting himself in the foot.

Nuts, I know.

Cheers

Whirls

[topendtorque]

But at what point do you have to protect the careless/illegal from suffering the consequences of their actions?

Maybe it will be at the point that the power company counter sues the estate of the careless / illegal,

Which, if I follow flying lawyers comments correctly should certainly be just as fair as the aircraft owner recuperating his losses from the power company, but then why didn’t he sue the careless / illegal?

It has been a subject of great discussion of recent years in OZ because of the vast network of single wire earth return power lines (SWER) that criss cross all of the eastern states, half of South Australia and the South West portion of Western Australia.

They are constructed down to about three single 16 gauge wire thicknesses twisted together, and being high tensile have immense span widths.

Those closer to that than I may care to comment, but suffice to say if all power companies in OZ decorated all power wires with balls, then the extra cost of installation of both the balls and the strengthening of the wire systems to carry them under intense wind load would increase the power cost to rural and remote regions prohibitively.

Another factor is that in Ag work many farmers are lackadaisical about telling the poor pilot about wires until too late. There are also many single wire telephone wires around dating back to the ark.

One argument against high vis balls is that there would never be enough because then the stupid pilots would assume that ALL power wires everywhere are decorated.

Giving rise to a fresh set of law suits, where do we draw a reasonable line?

They are used however in many places of expected / assumed low level traffic.

The thing is, one should never descend below the horizon line of any two hills without clearing the area first. Perhaps that bit did not get to the court room?

[The Nr Fairy]

ATSB accident report here (http://www.atsb.gov.au/publications/investigation_reports/1999/AAIR/aair199900645.aspx).

[332mistress]

This was an very strange and wrong judgement by the appeal court IMHO

The accident wouldn't have happened if the pilot had been showing due care for the safety of his passenger. The accident was caused solely by the actions of the pilot who flew below a safe and legal height along an un-recced route. The positioning of balls on the wire was irrelevant as the wire would only be hit by an a/c being piloted irresponsibly.

It is like saying that a UK bus driver who strays of his route and takes the top deck off his double decker on a low bridge is blameless as the bridge owner should have built the bridge high enough for a double decker to pass under!

It seems that the Australian Judiciary are as out of touch with reality as those in the UK who regularly put the interests of the "bad" guys ahead of the interests of the general public.

It is about time that we all took responsibility for our actions. There were no mitigating circumstances in this accident. It would not have happened if the pilot had been obeying the rules.

I have flown my wife several times and each time I am very concerned about her safety and would not put her or the thousands of passengers I have flown in danger through such reckless actions.

332M

[Colonal Mustard]

I think what might be needed is more people who have been involved in the past in these types of incidents to come forward and put the arguments before a court.

It is only in court that case prescedents can be set, and thus new laws recommended, this argument needs further publicity to do two things

1.) make more people aware of what CAN happen should a helo be low level (legally or not)

2.)Make both industries (aviation and leccy board):D concerned take responsibility into their own hands and factor in an avoidance/teaching procedure further

[baffler15]

He found Mr Paffard had knowingly been flying well below the minimum height permitted.

Hang on a minute - doesn't the legal requirement to maintain certain heights above terrain/obstacles in accordance with aviation law exist to stop this kind of thing from happening?

Everyone loves to bash up big companies and squeeze a few dollars out of them occassionally (especially those owned by the Government), but in this case I think they (Country Energy) have been betrayed by the legal system. People will still be stupid and crash into marked wires whilst in pursuit of the low-flying adrenalin rush, outside the relative safety of "legal" aviating.

As for the pilot - that's what you get for breaking the law.......:= Unfortunately for the rest of his family, stupidity will NEVER be subject to legislation.

The Baffler

[Flying Bull]

Hi all

I think this discusion is going into the wrong direction.
Sure, this pilot was to low.
BUT there are helicopters around which go leagaly low and don´t have the time to do a recce first.
Take police, rescue or ambulance flights, underway day and night and very low in bad conditions.
It´s about time, that the power companys don´t paint the mast in camouflage to make them fit with sourroundings.
Retoreflective paint every couple of meters on the line itself would also make it more visible against the background and won´t bring high windloads.
Wires have killed just to many helicopter pilots and will continue to do so, unless something is done.
The decission from the court is going in the right way, even if this time the pilot was flying to low without permission.

Greetings Flying Bull

[sunnywa]

While it is very sad for the pilot and his sister (RIP) to be killed in this way, as has been said, if he wasn't flying along the road low level illegally, it wouldn't have happened. For those of us who can low fly legally, wires are our number 1 killer and I treat them with great respect. If I can't do a wire recce, I make darn sure that I fly in the area they can't possibly be.
The electric company cannot be held responsible if the height of the towers are below regulation height (and I'm pretty sure in Aus that anybody can build a structure unlit/unmarked up to 359 ft tall without notifying CASA-which is why our LSALTs are now adding 1360ft).
People are responsible for their own actions and should be the ones held accountable. The court decision is another against common sense and leading us further down the path of "I'm not responsible for this, it's always someones else's fault!"
Anyway, the greenies would object to little orange balls hanging off everywhere.

[Johe02]

It is like saying that a UK bus driver who strays of his route and takes the top deck off his double decker on a low bridge is blameless as the bridge owner should have built the bridge high enough for a double decker to pass under

I agree. I am also concerned that Flying Lawyer is actually a Lawyer and we will therefore see more of this stupidity in the future.

[MightyGem]

Sorry. I can't agree with this judgement either. Totally ridiculus.

[MSP Aviation]

It is not accurate to say that ambulance/HEMS pilots don't have time to do a wire recce before flying at low level (for example to an unprepared landing site). Those who work in the emergency medical business ought to know that their own safety comes far before the patient's well-being. This is drilled into them constantly. A HEMS pilot helps nobody by making an uninformed approach into wires in the effort to save a patient.

[Arm out the window]

This was a tragic occurrence, and it's hard to begin to imagine how the families must have felt under the circumstances.
I worked with the pilot briefly, and it's a sad, sad story.

However, I don't agree with the judge's logic that the powerline company was at fault - he took a grave risk flying low as he did, and he and his sister paid as dearly as you can for it.

Unless there's a clear legal requirement for all power lines that may be hazardous to aircraft to be marked, and I'm sure there's not, then the power company did nothing wrong and shouldn't have had to pay.

[John Eacott]

I agree. I am also concerned that Flying Lawyer is actually a Lawyer and we will therefore see more of this stupidity in the future.

Why? I don't understand why this is anything to do with FL,other than he opened the thread :rolleyes:

Your post is vaguely insulting, especially looking at the assistance that Flying Lawyer gives to your industry in the UK :=

[blave]

Agreed. Totally uncalled for.


Dave Blevins
not a lawyer

[kiwi chick]

BUT there are helicopters around which go leagaly low and don´t have the time to do a recce first.
Take police, rescue or ambulance flights, underway day and night and very low in bad conditions.

In that case, the decision would perhaps have been the right one to make at the time.

but it wasn't - it was a pilot breaking the law being a hoon and having fun. Albeit shortlived.

Lest we should all learn from this - if we haven't already.

[Buitenzorg]

I rather think most of you haven’t been thinking this through. What the judge did was to not get hung up on the fact that the pilot was flying low illegally and therefore concluding that he was the only one at fault here. The electricity company failed in its duty of care by not marking these power lines. The judge decided that should not go without consequences. He probably felt that the pilot and his estate had been penalized sufficiently by him getting killed.

The analogy with the bus driver smacking a double-decker into a bridge is nonsense: one can see the bridge and buses have brakes. A much better analogy would be the requirement for frangible light poles along roads. These are required so any vehicles going off the road are not demolished with loss of life on contact with these poles. But vehicles are supposed to be driven on the road, not on sidewalks. This rule does not make it right to install solid steel light poles along roads.

Even if that were substantially cheaper. The judge must have decided that if the electricity consumers don’t want to pay for properly marked lines, they’ll just have to pay for an aircraft every now and then.

[kiwi chick]

Very interesting point.

Dare I ask (and I'm not being faecetious, i really don't know) who's responsibility it is to have these wires marked on nav charts? And how much RESPONSIBILITY they indeed have to do so correctly?

[Brian Abraham]

In Oz (guess it is still the case) they used to come out with revisions to the WAC charts which you would have to mark on the map yourself, as it can be some years before a chart reprint with the revisions in place will appear. A most time consuming effort with the hundreds of revisions that there would be on the list.

[kiwi chick]

Yeah we get revisions sent out with our Vol 4 updates, but they are only the ones they KNOW they've missed!

Our charts normally get reprinted yearly, but last lot has only just been done after 18 months, so yeah u do end up with a fairly big list.

I still wonder who is ultimately responsible? Dare I suggest, the pilot...?

[Arm out the window]

Buitenzorg says: "The electricity company failed in its duty of care by not marking these power lines."

I don't think it did, necessarily. There are hundreds of power lines like that one strung up around the country in places where low flying aircraft might hit them, and few are marked. There's no law to say they must be marked, and pilots know they're not marked.

It would cost a lot to mark them all, given problems of access over difficult terrain in many areas - wouldn't be impossible, just expensive. Something along the lines of putting pool fences along all natural waterways to stop kids drowning in them - not going to happen.

The situation is analogous to many that exist in other areas - for example, I regularly drive on a fairly narrow, winding mountain road with steep falls at the edge. There's no safety barriers to stop me flying over the edge if I go too fast around a corner, but if I did, I think it would be ridiculous and most likely fruitless for my family to sue the 'owners' of the road (local and state governments) for damages.

[SawThe Light]

OK, I'll ask the question.

Why are we governed by a regulation that stipulates the minimum height above the ground or water that we can operate in?

The reason must be clear to most of us and I can only conclude that the court had a minimal appreciation of consequences of the reality of such reckless flight. It begs the question of who might have been enjoined in the responsibility had this unfortunate individual flown into the side of a hill!

STL

[Daft bat]

Sorry,
I agree this is the wrong decision by the judge and my sympathy not only goes out to the passengers of the aircraft but the groom waiting for his bride to arrive for their big day.
Where to you draw the line should the company have put illuminated markers up for those breaking the rules at night,or should they have ensured the lines were buried beneath the ground to make them even more safe.
Sadly for those mentioned the pilot broke the law and if he hadn't two people would have had a great day.
You could argue that the rule about what height you can fly at is not only to protect the aircraft but also people and property on the ground.
I hope the power company counter sue for the damage to their property.
On a lighter note I am going to ensure we leave an item of clothing on our washing line just in case somebody decides to low fly through my garden.

Again sorry to those that loss their lives and to the groom for the loss of his bride

[Lowlevldevl]

Yep! A 100 bucks could have marked that wire and saved those lives. Cheap!
Now multiply a 100 bucks by the number of spans in Australia and the resulting amount is anything but cheap.
A tragic accident but a ridiculous decision.
Had this poor military pilot been trained as well about wires as us dumb ol' redneck cropdusters this would never have happened.

[ChrisGr31]

Not sure I should read in here as not a pilot or a lawyer but never mind.

From my reading of the accident report the pilot was qualified to fly at low level providing he had checked the route first and notified the relevant authorities. He certainly hadn't notified the authorities and it was thought he hadn't checked the route either. However as part of the accident report it says even if he had checked the route he is likely not to have noticed the power lines anyway. It also states that the power company had previously been notifed of the danger posed by this particular line and they choose to do nothing about it.

My guess would be the fact that the power company had previously been notified of a problem with this specific line may be way the Court found in favour of the claimant.

[wobs]

Being trained and qualified (it is an endorsement in Oz) to operate at low level doesn't mean you can do it whenever you like.

I can't remember the regs, but I recall it says something along the lines of only being under 500' when necessary for the job in hand.

Still a tragedy though.

[John Eacott]

it is an endorsement in Oz

No, it isn't. There is a low level syllabus in the Ag endorsement, and the same in the Mustering endorsement. There is no stand alone low level endorsement in Australia.

Most (all?) low level approvals from CASA require the pilot to have completed the low level syllabus of the Ag or Mustering endorsement.

[wobs]

I stand corrected!

Just checked my logbook, as part of my initial training I have in the 'ratings' section - Low Level IAW CAO 29.10(App 1).

It's a while since I was is Oz!

[mini]

I would tend to agree with ChrisGr31's assessment on this one. Primarily, the power company were alerted to the fact that low level flights were happening in this area - this created the scenario of such an incident being reasonably foreseeable thus requiring some measures to prevent it happening.

The fact that the damages awarded were so low would indicate that the Judge took into account the fact that the pilot was also a contributory in so far as he was flying lower than he should have been.

It would be interesting to know how costs were awarded.

[asara]

My licence shows Low Flying under "Operational Approvals and Appointments"

Not an Endorsement.

Regards

[topendtorque]

No, it isn't. There is a low level syllabus in the Ag endorsement, and the same in the Mustering endorsement. There is no stand alone low level endorsement in Australia.

Most (all?) low level approvals from CASA require the pilot to have completed the low level syllabus of the Ag or Mustering endorsement.


As the report points out the pilot did not have approval from the authority to be conducting LL ops.

Further to John Eacott's quote above, that approval means that one can only indulge in LL flying if one is employed by a company which has the authority's approval in an AOC for LL Air-work ops.

Also they must have the land owners approval.

In this case the pilot was 6k short of his landing destination, illegaly low flying (without an AOC) and certainly would not have had the land owners (the state road authority) permission to be flying at a mere 90 feet.

I am not too sure which court room the judge was in, how could he have allowed this to proceed??

The power company did make one mistake, that was to put the balls on the replacement line, they should have stuck to the prevailing legislation.

[Heliport]

I am not too sure which court room the judge was in
New South Wales Court of Appeal
The 3 judges all agreed.

[SawThe Light]

Ahhhh, the Australian state of New South Wales court. There's our answer. It's generally difficult to understand their judgements, so this case differs little to most of their others.
The fact is that here was a pilot flying in complete contravention of a law regarding minimum safe height and he paid the ultimate price. It is sad that there will be others who will repeat this tragic event. It would however be better if the next one to do it does it on his/her own though.
STL

[kiwi chick]

I can't remember the regs, but I recall it says something along the lines of only being under 500' when necessary for the job in hand.

yup, that's how it goes over here. I fly around 200agl for my job but sure as **** don't fly at that height when transitting from A to B with brides on board. :uhoh:

[Ox cidental]

As usual, there those who are above fault or error, spouting on against the dead.

I'm proud to say Huw was a best mate, a professional well experienced aviator and a thoroughly decent chap.

I helped clean up the wreckage of the helicopter and supported the shattered families. Standing amidst the charred components and clothing, I also wondered how the f**k could this this happen to such a pilot, a commando pilot, on such a important day.

It wasn't a charter, but a private flight, so stow your AOC debate.

He was low, but he was on approach to land in a field. A parent had dropped them off at the departure point, so he was allowing time for the parent to return to the farm and be present for the daughter's arrival at the wedding.

He had flown a recce the previous day with his wife, to prove the route and the timing. Indeed to check if the the whole plan to fly the bride to the wedding would be suitable and practicable.

And he hit an 'alpine' style cable...a single three strand cable, slung between two low hills, such that the two poles and most of the cable was below tree level. Except the section of cable that was over the saddle...and the Holbrook - Jingelic Road which was his tracking feature.

So yes he was low, but not irresponsibly, or stupidly as previous authors have tendered.

As for the NSW Court decision...$160k against the power company that local aviators had previously asked to highlight the wire???...fortunately I'm not in the judiciary but for the record, I support the decision. $160k to the helicopter owner doesn't return his cousins.

Nor will it ever clear the memories of a charred headset, torn shoe or the distraught widow staring at the wreckage.

[If all else fails]

Good show Oxidental! Been thinking about posting on this issue for some time - could not agree more with you. I think we met at the funeral. PM me.

[SASless]

Given a bit of glare on the wind screen, throw in a bit of distraction, a single thin wire with the poles hidden or disguised by trees......anyone could have been caught by that trap.

Anyone that has done EMS flying knows only too well how easy it is to hit a wire despite all three crew members looking for them and the ground units doing a pre-landing recce of the landing area.

Been there...done that....but don't have the tee shirt! Divine intervention is the only reason I missed one set of wires. Landed, shutdown, and got the fright of my life while doing a quick lookabout....and had second thoughts about being able to take off safely because of the proximity of the wires.

[SawThe Light]

Ox,

You might want to advise the ATSB of this info that it was an approach to land. Their occurrence # 1990065 reads that the ship was some 6 km from the destination and that the pilot "had not previously flown the route" (or something similar) and goes on to say "and without prior recon".

Not wanting to disagree with you about a good mate, but perhaps if the record was put straight we wouldn't have jumped to conclusions that there had been a tad of simple high spirits.

[Shark 07]

Spot on Ox!

This was a massive tragedy - and perhaps the saddest funeral I have attended. No amount of monday morning quarterbacking will make this any less tragic. That these things need to be sorted through the courts is a fact of modern life and I think that it is inappropriate to be reading more into the judgement than is intended.

For me, there's little to be gained from any further speculation about this accident so I'll leave this thread alone in the knowledge that Huw held my total respect both as a pilot and a bloke.

Ox, Trust you and E are well..
M

[topendtorque]

I think that it is inappropriate to be reading more into the judgement than is intended.

Very hard to read what is intended in many court judgements? Take the last one handed down re the LockhartRiver tragedy. The coroner apparently concluded that the pilot was flying too fast, dammit; I thought he flew into some bloody trees??

For me, there's little to be gained from any further speculation about this accident

True, but it needs to be laid out to newbies that the statement below does NOT condone LL flight on Pvt or Airwork operations, or collision with an object on approach to or departure from a landing spot, authorised or not.

It wasn't a charter, but a private flight, so stow your AOC debate.

He was low, but he was on approach to land in a field.

He had flown a recce the previous day with his wife, to prove the route and the timing. Indeed to check if the whole plan to fly the bride to the wedding would be suitable and practicable.

So yes he was low, but not irresponsibly, or stupidly as previous authors have tendered.


I do wish that you would take Saw the light’s advice and really clear the air.

And with the statement below.

Nor will it ever clear the memories of a charred headset, torn shoe or the distraught widow staring at the wreckage.

Mate, many of us that have been around for a while have been through this sort of thing, perhaps more than once. Those that I knew that have departed I am sure would be the first to say, dammit I stuffed up there, please make sure no one else does the same.

As far as the Gentleman’s wife is concerned - where pure grief is the issue - then it may be far better to wear it on the chin rather than prosper false hopes.

We have all had those moments of madness, perhaps the moment we committed to learning to fly these things might rank at the top. It’s the job of us remaining to spread the gospel of safety, don’t let others go where it hurts.


I hope that you would promote that.