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No balls cause helicopter prang.

Old 22nd May 2013, 09:51
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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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Old 22nd May 2013, 22:38
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What a joke.

What's the world coming to when the responsibility for a safe flight comes down to a power company?

If you find yourself at 30 ft (or even 100ft) AGL, in a restricted area (or any kind of VCA) and don't take responsibility for what happens next, you clearly don't understand the term Pilot in Command.

I know the courts interpret everything differently, just look at The Stella Awards, but surely commonsense must dictate some accountability to the pilot.

Although I usually agree with what you say, I don't like the agenda you're pushing here Frank (from the thread title). If pilots are taught to expect balls instead of knowing where wires and obstacles may be, tell me how that will make for safer aviation?
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Old 23rd May 2013, 00:19
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Wow. Since that company changed hands about 10 years ago, there have been 3 weather-related crashes. (There were none in the 25 years or so of its previous ownership.)

This EC 120 at Scone, an AS 350 enroute to the Bathurst races going into cloud and bumping into trees, and a B206L double fatal going into cloud in the SAN hospital area.

Very sad.
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Old 23rd May 2013, 01:12
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A friend of mine was part of the legal team on this, and when it was all over I was allowed to have a look over all the information.

I don't think I would have continued the flight in the same situation, but the fact that the powerlines were not marked on the map had a profound improved the pilot's defence case.

Also, the fact that the powerlines had been struck before and the power company had not fitted balls (or any other markings) to them since rendered them liable.

I am just glad that no-one was killed and the powerlines are now clearly marked.
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Old 23rd May 2013, 07:22
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I'm curious...are these power lines 10m above the ground (OP), suspended over a valley (#2), or is it a very, very shallow valley?
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Old 24th May 2013, 02:04
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Am I missing something?

Surely we don't expect (or do we) power company's to install balls/flags on all power lines. We all know the dangers of flying LL. Markers on wires on approach / departure to air strips, yes no question (although I have none on wires in relation to my private strip).

How many have seen the wires not marked crossing the gap on the NE Highway at Murrurundi? If you hit them you are really exceeding your LL limits, but I hear of pilots that skimp over them at times.
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Old 25th May 2013, 07:37
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the Courtheld that Airservices Australia would have carried 40% of the blame (for notshowing the wire on their map)
Interesting, given that as I understand it, external organisations and parties provide Airservices topographic and geographic data and other stuff e.g. AD OPRs for some data in ERSA, CASA for RDS etc.

Does this mean by publishing it, Airservices becomes responsible for the accuracy and completeness of the data?
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Old 25th May 2013, 08:12
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Am I missing something?

The answer is yes.
We now have quite a history of NSW Courts making sensible decisions in these and legally similar circumstances, and taking what I consider to be a "real world" view of what faces a pilot in command from time to time.
It is a great pity that CASA cannot take such a sensible view, but invariably operate from the position of 20:20 hindsight and the counsel of perfection. The NSW Supreme Court and the NSW Court of Appeal have produced some very interesting judgements ---- supporting a very common sense view of the interpretation of the legal rights and responsibilities of the pilot in command.
Mr.McKeown has been a very effective advocate in this field, being a highly experienced pilot himself.
Tootle pip!!
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Old 25th May 2013, 12:55
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are these power lines 10m above the ground
I have trees higher than that in my back yard. Do I now have to put balls on them.

Where does CAR 157 stand in all of this.

How does the story about a "Superior Pilot" go:
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Old 25th May 2013, 21:11
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I have trees higher than that in my back yard. Do I now have to put balls on them
.Only if you string a wire between them.

Last edited by rutan around; 25th May 2013 at 21:48.
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Old 28th May 2013, 04:56
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The magic word in AIRMANSHIP is accountability! This pilot crashed into a wire 10 metres off the ground in airspace that he was not aware he was in (hence the VCA) the very least he should have coughed up for the excess for the machine!
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Old 30th May 2013, 00:10
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Interesting to see this matter is back before the Supreme Court today on appeal. I cannot understand how this pilot continued into deteorating weather, so much so that he found himself very very low; was totally unaware of his position (VCA of Restricted Airspace) and then picked up a wire low level. At what point was this pilot prepared to put his hand up and take responsibility for his actions including a significant amount of damage to an aircraft and risk of death or injury to his passenger? I also note the 3 weather related accidents for this company in a very short space of time with the total loss of 2 aircraft and the death of 2 people? The pilot subject to the court action was the pilot in question of the aircraft involved in the wire strike and, I believe, is now the Chief Pilot of the business. I certainly hope he's changed his attitude towards his duties and responsibilities in this regard?
Just to correct the poster above, Airmanship is about PROFESSIONALISM, FLIGHT DISCIPLINE AND ACCOUNTABILITY. Seems none of these criteria were evoked in the Scone flight.
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Old 30th May 2013, 01:29
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All we can do is learn from other pilots mistakes,
Well I realised that it was not advisable to press on into bad weather back in the late 60s when we had to search for an aircraft that disappeared on a flight from BU to TWB and also saw the results of the C172 that ended up in a mangled heap on a road on the southern outskirts of Toowoomba.

How many time do we have to have "pilot mistakes" before it sinks in?

Flying under a low cloud base in the clear at 500 feet agl knowing exactly where you are is a hell of a lot different than being "position uncertain" at 30 feet in sh***y weather.

Last edited by 601; 30th May 2013 at 01:30.
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Old 30th May 2013, 02:53
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Commercial pressure, that's probably the most driving factor here

I have flown the passenger/owner a lot and he is fairly "risk averse".

...more so after the accident in question!

He would not have been applying pressure to press on. Quite the opposite I would think, but who knows? none of us were in the aircraft.
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Old 30th May 2013, 04:33
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I'm with 601 here! It's all well and good to claim that we learn from our mistakes but how many do you have to make before you learn from them? I doubt that any professional pilot worth his salt would not have been in this situation in the first place......lost in restricted airspace without a clearance and very low level in what was quite obvious sh*t weather - especially considering a turn back was available.
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Old 30th May 2013, 04:55
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I'm gonna get flamed here but not having much to do with helicopters, is there a good reason why they couldn't have just landed on a flat bit of paddock somewhere?
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Old 30th May 2013, 05:19
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Well, no, that is always an option.

There are consequences, but in the end it's simply a PSL for the sake of safety and you always maintain the right to land if you feel it's necessary. People seem more tempted to push helicopters into deteriorating wx because they can fly lower, slower and into tighter spots, as anyone who went over the spine of Timor from Dili to Suai can attest. Problem is, most helicopter pilots are even more reliant on visual reference than fixed-wing because most helicopters are not dynamically stable.

Last edited by Trojan1981; 30th May 2013 at 05:22.
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Old 30th May 2013, 05:21
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I wonder if this kind of accident would eventually become quite rare, if "stress of weather" was not a valid defence against the low flying regulations?

Then, breaching the 500' rule (with various exceptions) would always be illegal.

Might make pilots a little more willing to turn around rather than press on, "because it's better just around the next valley".
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Old 30th May 2013, 05:51
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I think a lot of people have forgotten the aircraft was a helicopter and as such can operate at a lower VFR Day requirement. From memory class G operations for example can operate below 700' above ground or water. The minimum flight visibility is 800 meters. The minimum distance from cloud both horizontal and vertical is simply clear of cloud.

This doesn't address the VCA point, but clearly gives more leeway than you assume of a fixed wing aeroplane.

I guess there is also the matter of forward speed to ameliorate the situation to hover or land if such an area appears.

The balls, given prior history, appear to be lacking in a duty of care which I read in the summary.
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Old 30th May 2013, 08:24
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Let's not forget folks that this happened in R564 (previously R532) The balls are there for no other reason than that someone in defence obviously requested them in relation to the military airstrip at Singleton Army Base & possibly more the point that the military fly choppers & other birds low around the base. R564A is Restricted NOTAM SFC-4000 D2100-1300. I'm not a helo pilot but I always thought that when things went pear shaped you could just land the thing.
The plaintiff relied on the following:

The plaintiff pleaded numerous alleged breaches of duty of care in paragraphs [14] and [15] of its
amended statement of claim, which was filed on 7 November 2011. In my view, these allegations can be conveniently condensed into the following formulation, without detracting from their substantive importance, as allegations of breach of duty of care:

Flying in restricted airspace in contravention of Civil Aviation Regulation 140;

Flying below a safe altitude and at a height lower than 500 feet above the highest point of terrain within a radius of 300 metres at a point on the terrain vertically below the aircraft in contravention of Civil Aviation Regulation 157;
Flying when failing to keep a proper lookout so as to observe and avoid powerlines;
Failure to obtain maps or guidance materials providing an awareness of obstacles, including powerlines, in the restricted airspace.

End of the day the courts have made a ruling - c'est la vie
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