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Old 22nd May 2013, 09:51
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Frank Arouet
 
Join Date: Feb 2009
Location: dans un cercle dont le centre est eveywhere et circumfernce n'est nulle part
Posts: 2,606
No balls cause helicopter prang.

Permission from the author granted.


Helicopterpilot not negligent in wire strike.



On 29 January 2009 a Eurocopter EC 120B wasflying to Sydney from Scone. Theaircraft collided with a power line which was about 10 metres above the ground whichhad no visual aids (balls) installed. The power company had repaired the very same wire after it was struck byanother helicopter in 1994. The power company, some might say unbelievably,failed to install balls when they repaired this wire. Fortunately unlike most helicopter wirestrikes, no one was injured in this accident though there were a few cuts when thePerspex broke on taking the force of the wire. The helicopter made a normal powered landing.



The weather was not good. The cloud basewas getting lower and was coming from behind and from the west. It was around8.00am. There were some fog patches. The pilot believed he should turn eastwhere it was clearer but as the Court found, he was low due to the cloud andhis need to remain visual. It was a VFRflight. By turning left he flew into a military Restricted Area.



The case involved the owners of thehelicopter suing in the NSW District Court the company which had operated thehelicopter on that day. The insurer paidup on the repairs. However, the owners sued the operator for the insurance excesspayment of $70,000, lost profit and reduced value.



The plaintiff company relied on a couple ofalleged breaches of the Regulations. They were flying through a restricted area(Reg 140) and low flying (Reg 157). (Theplaintiff did not sue the power company or Airservices Australia at the sametime).



The Court said “However, in a civil claimbased on non-compliance with such statutory provisions, without more, any suchnon-compliance with statutory regulation provisions does not constitute absoluteor strict proof of negligence, nor does it establish an entitlement to damagesso as to confer a private right of action upon an aggrieved party.”



We see in the judgment what is in myopinion a welcome view of not accepting hindsight expert evidence which failsto appreciate the situation pilots find themselves in at the time.



There was expert evidence to the conclusionthat the pilot should not have entered military restricted airspace, shouldhave turned around, landed or obtained a clearance to enter the restrictedarea. In dealing with this expert evidence, the Court said “In my view, for thereasons which follow, those criticisms go well beyond the response of whatwould be expected of a reasonable person faced with the dilemma with which (thepilot) was confronted at that time. In my view, those criticisms involve acounsel of perfection and rely for their support, on an inappropriate hindsightanalysis which paid insufficient regard to the reasonable prospective judgement(the pilot) was required to make at the time he was confronted with theproblematic circumstances.” Further in thejudgment the Court said in relation to the expert opinions that they “…haveonly become available through the more leisurely considerations revealedthrough the opportunity of hindsight analysis, rather than through aprospective analysis of the kind that confronted (the pilot) at the time.”“…(the pilot) was in a better position than the experts for the purpose ofmaking judgments concerning the significance of weather observations, includingperceptions of depth, and including the perception that the weather was closingin as (the pilot) described.”



The Court reminded us of the fact thatsection 30 of the Civil Aviation Act 1988provides a defence if it is established, and on the balance of probabilities,that the offence was due to weather conditions (the section actually speaks ofextreme weather conditions) or other unavoidable cause. The Court held thecircumstances of the alleged breach of Reg 140 fell within the terms of section30. The same defence was held to be made out for the alleged breach of Reg 157.



The Court held that the pilot was notnegligent in relation to striking the power line.



In the event the defendant had been heldliable the defendant pleaded Part 4 of the CivilLiability Act 2002 (Proportionality). For the sake of completeness theCourt held that had the pilot been found negligent there would have beenproportionality to the extent that the defendant’s liability would have beenreduced to 20%. Interestingly, the Courtheld that Airservices Australia would have carried 40% of the blame (for notshowing the wire on their map) along with 40% to the power company. With great respect to the Court, I havedifficulty with this percentage of liability.



Some might say (of which I am respectfully one)surely it was the power company’s negligence which was the primary negligence whenit failed to install balls on the wire and therefore should carry moreresponsibility than a shared responsibility with Airservices. One has to ask, what would it have taken toget the power company to open its corporate eyes and put balls on the wireafter the 1994 accident?



The Court held that the fact the wire wasin a restricted area did not reduce the power company’s duty to put balls onthe wire. This makes good sense. It might be assumed that no one willintentionally penetrate a restricted area. So when they do, they surely don’tneed to be faced with a hidden danger.



The case was heard in Sydney in 2012.Judgment was delivered 7 December 2012 – see AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd 2012 NSWDC220.



The plaintiff has appealed to the NSW Courtof Appeal. We wait with interest. Ishall report again when the Court of Appeal delivers its judgement.





C. McKeown

21 May 2013.

Last edited by Frank Arouet; 22nd May 2013 at 10:03. Reason: apologies for font not fitting, but you get the story OK.
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