Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited and anor. v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Limited

In early 2006 the Parkes Shire Council ("the Council") engaged South West Helicopters Pty Limited ("South West") to undertake an aerial survey of parts of the area for which it was responsible, for the purposes of determining the presence of noxious weeds. A similar survey had been successfully conducted in 2005.

On the morning of 2 February 2006 a helicopter departed from the Parkes aerodrome to conduct the survey. On board were the pilot, Shane Thrupp (an employee of South West) along with Ian Stephenson and Malcolm Buerckner. Mr Stephenson and Mr Buerckner were each employed by the Council, Mr Stephenson as a noxious weed officer.

At approximately 9.30am on that day, whilst in the vicinity of an area known as "The Dungeons" located approximately 20 kms east of the township of Parkes, the helicopter struck an overhead power line, the property of Essential Energy ("EE"). The helicopter exploded and crashed into a valley. All three persons on board were killed. As a consequence of that accident, a number of separate proceedings have been brought which are summarised below. It should be noted that proceedings brought by the widow of the late Mr Buerckner have been resolved.

What I will refer to as the "Stephenson proceedings" encompass a number of separate actions brought by the wife and children of the late Mr Stephenson. For the purposes of summarising the submissions of the parties I have referred to Mrs Stephenson and her children collectively as "the plaintiffs".

Mrs Stephenson is the widow of the late Mr Stephenson. She has brought proceedings against the Council and South West:

In those proceedings:

Natalee Stephenson is the daughter of late Mr Stephenson. She has brought proceedings for nervous shock against South West and the Council.

In those proceedings:

Jay Stephenson is the son of the late Mr Stephenson. He has brought proceedings for nervous shock against South West and the Council:

In those proceedings:

South West, and a related entity known as Country Connection Airlines Pty Limited ("CC") have brought proceedings for damages against Country Energy (the predecessor of EE) in respect of (inter alia) the loss of the helicopter and the associated loss of profits. CC was the owner of the helicopter involved in the accident, which was being operated at the time by South West who held the relevant licence(s).

In those proceedings EE has brought a cross-claim against the Council.

The Council has brought proceedings against South West pursuant to the provisions of s. 151Z of the Workers Compensation Act 1987, seeking recovery of amounts of compensation paid pursuant to that Act. In those proceedings South West has brought a cross claim against Country Energy.

The hearing of the matter extended over several weeks, following which I received both written and oral submissions from the parties. Those persons who gave oral evidence before me were as follows:

In setting out the evidence below, I have incorporated my principal findings of fact. To a large extent those facts were not in dispute. Where factual issues have arisen on the evidence I have set out how, and for what reason(s), those issues have been resolved.

The Parkes aerodrome ("the aerodrome") from which the flight departed is located approximately 6 km east of the township of Parkes (longitude 16 on Ex SW 1). The Parkes-Orange Road ("the road") proceeds in an easterly direction from the aerodrome. It is a major highway in the area, and a likely reference point for air traffic (Ex SW 48 at p. 9). In an area known as Bindogundra, the road proceeds in a south/southeast direction towards what is known as "The Dungeons". The road then proceeds through The Dungeons before sweeping to the right past Bumberry, towards the township of Manildra and beyond that, towards the township of Orange.

The Dungeons is located about 14km east of the aerodrome. The accident site, which is near to the entry point into the Dungeons from the road, is situated within a valley. The road is located on the eastern ridge of that valley.

Just after entering the area of the Dungeons the road runs (generally) at right angles to two parallel power lines, one of which was that struck by the helicopter. Those power lines were approximately 7.9 metres apart, and 38.686m and 36.242m (approximately 120 feet) above the road respectively. They formed a span in excess of 1.2 kms between poles erected at each of the eastern and western ridges of the valley (Ex EE20 paras. 5-15).

At the time of the accident, vegetation had been removed from under the power lines which created a "clearance corridor" or easement (Ex EE20 at paras 17 and 18).

There were no indicators of electricity consumption in the immediate area of the accident site, such as houses, other buildings, dams or pumps (T1064 L31-49).

At the time of the accident, the area in and around the township of Parkes was classified by EE as a "fire prone area". As a consequence, an annual aerial patrol of the area was conducted by EE with the use of helicopters and aeroplanes for the purposes of identifying any potential fire hazards (Ex EE 25 at para. 41 and following).

In 2005 the Council engaged a helicopter company in Dubbo to conduct a survey ("the 2005 survey") for the purposes of detecting the presence of two particular noxious weeds within the Parkes Shire, namely the African Boxthorn and the Blackberry. Mr Stephenson, as the noxious weeds officer for the Council, was primarily responsible for the detection, management and eradication of noxious weeds. Mr Sullivan was Mr Stephenson's immediate supervisor.

The 2005 survey represented the first occasion on which the Council had undertaken aerial surveillance for this (or any other) purpose. It was proposed that the survey be conducted from a height of 500 feet, with the capacity to descend to 330 feet if necessary (Ex PSC 6 at para. 9).

The 2005 survey was conducted on 24 May 2005. I am satisfied, in the absence of any evidence to the contrary, that it was conducted in accordance with the proposal to which I referred (in [23] above). Both Mr Stephenson and Mr Buerckner flew in the helicopter on that occasion. Neither had any training or experience in aerial surveillance work, be it in terms of planning the survey, identifying and addressing safety issues, or carrying out surveillance during the flight.

The route taken in the 2005 survey is set out in Exs. SW 3 and SW 33. It did not involve flying directly over what later became the accident site, but followed a path along the western edge of an area of National Park. The accident site is located on the eastern edge of that National Park, approximately 2 kms from the path taken in the 2005 survey.

A DVD of the 2005 survey is part of the evidence (Ex PSC 3). It is evident that on that occasion, the survey was conducted above the level of the surrounding terrain.

Following the completion of the 2005 survey, Mr Stephenson reported that it had been very successful. In particular, he reported that the survey had identified the presence of noxious weeds in far less time than would otherwise have been the case (Ex PSC 1 at para. 14).

In early 2006 Mr Stephenson and Mr Sullivan discussed the conduct of a further survey. The purpose of that further survey was twofold, firstly to determine the effectiveness of the eradication program which had been implemented following the 2005 survey, and secondly to identify new areas of weed growth (Ex PSC 6 at para. 17). In the course of their initial discussions, Mr Stephenson told Mr Sullivan that when speaking to persons who were present at a noxious weeds conference in Orange in 2005, he had learned that other councils had used South West to conduct aerial surveys of the kind which was proposed (Ex PSC 6 at para. 18).

Based upon a quotation of $750.00 per hour, Mr Sullivan gave approval to Mr Stephenson to engage South West for the purposes of conducting the follow up survey (Ex PSC 6 at para. 20).

Since 28 June 2000 South West has conducted helicopter operations pursuant to Air Operator's Certificates ("AOC") issued by the Civil Aviation Safety Authority ("CASA") (Exh SW 9 para. 3). An AOC issued on 6 July 2005 (annexed to Ex SW 9) authorised South West to conduct:

The conduct of aerial weed surveys formed one aspect of the business of South West, who actively marketed itself as an experienced provider of such services (T294 L22 and following). In that respect, Mr Thrupp had attended a noxious weed conference in Orange in 2005 for the purposes of promoting South West's services as a provider of aerial surveys (T295 L19-31). South West generally, and Mr Thrupp in particular, held the necessary qualifications to undertake surveys of that kind (T55 L10 and following) including authorisation from CASA to fly below 500 ft if required to do so.

I have already noted Mr Stephenson's position within the Council and the purposes for which the survey was to be conducted. In the circumstances, there is obviously no direct evidence of the part Mr Stephenson played in the conduct of the survey prior to the accident. However, there is other evidence which bears upon this issue.

The determination of how an aerial weed survey might be conducted was, from the point of view of South West, a determination made having regard to the requirements of the customer. It was the practice that the customer would request the pilot to operate in a particular way in terms of speed, height and direction, although it was obviously up to the pilot to determine whether these requests could be safely met (Ex SW 6 para. 16).

For the purposes of the 2005 survey, the Council purchased a digital camera although it was not necessary to use the camera to detect the presence of the weeds (Ex. PSC 2 at para. 6). The DVD of the 2005 survey (Ex 3) shows the helicopter being piloted by Mr Thrupp.

The procedures of South West included a briefing by the pilot in relation to (inter alia) matters of flight safety. This included those travelling on board being asked to keep a lookout for any hazard which might present itself, including power lines. On a previous similar survey conducted on behalf of another Council, Mr Thrupp had reminded those on board of the necessity to keep a look out (Ex PSC 7 at para. 19).

Further, although the ultimate responsibility remains with the pilot, the very nature of aerial surveys conducted to determine the presence of noxious weeds is such that other person(s) are on board for the purposes of observing the areas in which those weeds are present. The pathway which is flown in such surveys is determined, to some extent, according to the requests and requirements made by the customer in the course of the flight (Ex SW 7 at para. 3). It is not uncommon for the pilot to be asked to fly in a particular direction to enable vegetation to be inspected (Ex SW 7 at para 6). In short, the conduct of an aerial weed survey involves requests being made by those who have the responsibility of carrying out the actual inspection (Ex SW 7 at para.7). Given his position with the Council, I am satisfied that this was to be part of Mr Stephenson's role in the follow up survey.

Kent Boyd was the General Manager of the Council when the survey was being planned. He was involved in the arrangements for the survey leading up to February 2006 (Ex PSC 1, paras. 15 and 16). According to Mr Boyd, Mr Sullivan (who was Mr Stephenson's immediate supervisor) had informed him (inter alia) about the proposal to conduct the survey and had advised him that the flight would be undertaken "at the same height as the last survey" (i.e. 500ft).

In a second statement made on 26 April 2013 (Ex PSC 2) Mr Boyd explained (at paras. 8 and 9) that the information about the proposed height threshold had been conveyed to him by Mr Sullivan and Mr Stephenson at what he described as an "informal meeting" which had taken place in his office. According to Mr Boyd, this meeting represented his only involvement in the planning for the flight (Exhibit PSC 1 at para. 16).

Prior to making the statements which are Exs PSC 1 and PSC 2, Mr Boyd had made three other statements (Exs. SW 28, SW 29 and SW 30). Exhibit SW 28 was a "joint statement" which he had made with Mr Sullivan to an insurance investigator on 9 February 2006, one week after the accident. Exhibits SW 29 and SW 30 were statements made by Mr Boyd to police on 8 March 2007 and 1 April 2008 respectively. None of these statements made any reference to any meeting having taken place, nor did they make any reference to a discussion about the height at which the proposed survey was to be conducted.

When cross-examined (commencing at T416 L25) Mr Boyd said that paragraph 15 of Ex PSC 1 encapsulated "most" of the discussion which had taken place, although he said that there was "a longer discussion than that". Paragraph 15 of Ex PSC 1 does little more than record a statement said to have been made by Mr Sullivan in which he referred to the proposed survey in the most general terms. If there was a longer discussion, why it was that Mr Boyd did not set it out in his statement remains unexplained.

Mr Boyd agreed that the first occasion on which he had mentioned anything about having had a conversation with Mr Sullivan regarding height levels was in 2012. He also agreed that there was no record, be it in the form of a minute, file note, memorandum, diary note or any other document, of the "informal meeting" to which he referred in Ex PSC 2 (at T419 L15-36).

The absence of any reference, in any of Mr Boyd's earlier statements, to the informal meeting is significant. In particular, Ex SW 28 is a statement made to an insurance investigator on 9 February 2006. This was only one week after the accident. That statement canvasses the circumstances which led to the survey being arranged, approved and undertaken. It is evident that for the purposes of making that statement Mr Boyd's mind was being specifically directed to those issues. It is therefore surprising, to say the least, that when making that statement Mr Boyd completely omitted to make any reference to any discussion about flight thresholds, as well as any reference to an informal meeting, only to then recall such matters several years after the event.

In cross-examination (commencing at T420 L8) Mr Boyd was asked what steps had been taken to ensure that the proposed height threshold was incorporated into a plan for the flight. In response he said:

When asked what he understood had been researched, Mr Boyd said (T420 L17):

Mr Boyd then said (T420 L49):

Mr Boyd was asked (T421 L11) what instructions had been issued to the pilot in relation to flight levels. He responded by saying that he did not know.

It is appropriate, at this point, to make some observations arising from these aspects of Mr Boyd's evidence.

Firstly, as I have previously noted, Mr Boyd's principal evidentiary statement (Ex. PSC 1) contained no reference at all to any meeting having taken place, informal or otherwise. His three previous statements (Exs. SW 28, SW 29 and SW 30) similarly included no such reference. The first reference to any meeting was contained in Ex. PSC 2. That statement was signed in April 2013, more than 7 years after the accident occurred.

Secondly, according to Mr Boyd, what was being discussed involved a proposal to engage in an important exercise, which involved Council expenditure and which necessarily exposed Council employees to a risk of injury. It might reasonably be expected that a meeting of that nature, if it did take place, would have been documented in some way, yet on the evidence before me it was not.

Thirdly, and quite apart from the absence of any reference in Ex. PSC 1 to a meeting, there was no reference in that document (or in any earlier statement made by Mr Boyd) about Mr Boyd being told anything about the proposed height threshold for the survey. That was a matter which emerged for the first time in Ex PSC 2, a statement made years after the event.

Fourthly, Mr Boyd's evidence as to what was said about height thresholds was at best vague, and in one important respect, contradictory. As I have set out (at [44] above) he initially said that he had been told that "they" (i.e. Mr Sullivan and Mr Stephenson) had spoken with the pilot. He then shifted from this position and said that Mr Stephenson had told him that he had spoken to the pilot. The precise terms of any such discussion were not made clear.

Mr Sullivan agreed (T474 L31 and following) that in addition to Ex PSC 6 he had made:

Mr Sullivan's evidence (Ex. PSC 6 para. 21) was that Mr Stephenson had informed him that the flight would be conducted at the same height level as the 2005 survey. When cross-examined (T477 L45-47) he maintained that this had occurred in a discussion which had taken place in Mr Boyd's office. He conceded (T517 L38-43) that there was no reference in any of the statements in [52] above to having made enquires, or having had discussions with Mr Stephenson, about height levels. When it was put to him that he had not had any such discussions with Mr Stephenson, Mr Sullivan said (T474 L4):

Mr Sullivan's use of the word "understanding" is telling. It is consistent with evidence he had previously given before the Coroner (T517 L18 and following) when he said:

Mr Sullivan may have been under an "impression" about height levels. However, on neither of the occasions referred to in [53] and [54] above did he make reference to having had a discussion about the matter.

Mr Sullivan also agreed (T517 L45 - T518 L1) that he gave the following evidence before the Coroner:

Mr Sullivan's concession before the Coroner that the proposed flight level was "understood but never stated" runs contrary to his evidence (in [53] above) that Mr Stephenson had actually informed him the flight would be conducted at the same height level as the 2005 survey. I am satisfied that no discussion whatsoever took place between Mr Stephenson and Mr Sullivan regarding the height threshold for the flight. I am also satisfied that such threshold was not documented in any way at all. That omission was, as Mr Sullivan conceded, a significant failure of Council policy (T 515 L25).

The first suggestion Mr Sullivan made about a discussion having taken place with Mr Stephenson concerning the height threshold was in May 2012 when he signed Ex. PSC 6. In the previous 6 year period, he had made two statements and prepared one file note in relation to the accident. It is evident from the terms of Ex SW 28 that for the purposes of making that statement Mr Sullivan (and for that matter, Mr Boyd) had been asked to call to mind matters leading up to the accident. In those circumstances, the failure of each of them to record discussions that they now say took place is obviously significant.

I am satisfied that Mr Sullivan assumed that the height level for the survey would be the same as was the case with the 2005 survey, but that he did not discuss it. As he told the Coroner, it was something which was understood but never stated.

I am satisfied that neither Mr Boyd nor Mr Sullivan had any discussion, with Mr Stephenson or anyone else, about height thresholds when preparing for the flight. I am also satisfied that no meeting, informal or otherwise, ever took place, and that neither Mr Boyd nor Mr Sullivan took any steps to:

I am satisfied on the evidence that both Mr Boyd and Mr Sullivan simply assumed, absent any discussion or enquiry, that the flight for the proposed survey would be the same as was the case with the 2005 survey. Neither of them took any step(s) to ensure that this would be the case.

Mr Boyd was cross-examined about the nature of the risk assessment undertaken by the Council prior to the flight. He said (commencing at T423 L8) that in the course of the informal meeting the possibility of wire strike was discussed in the context of the proposed height threshold.

Mr Boyd was clearly aware of the risk of a wire strike (T457 L45-47). In particular, he agreed (T461 L10-12) that as a consequence of a previous helicopter accident at Dunedoo, the possibility of a wire strike was a "real issue" (T461 L9-11). Mr Sullivan agreed, for the same reason, that wire strike was an important issue (T523 L16-17; T533 L18-20).

I have already noted that paragraph 15 of Ex. PSC 1 sets out the discussion which Mr Boyd said took place. That paragraph is supplemented by paragraphs 8 and 9 of Ex. PSC 2. None of that material, nor any of the other statements made by Mr Boyd, make any reference at all to ever discussing the possibility of a wire strike. The suggestion that such a subject was discussed emerged for the first time in cross-examination.

I have already concluded that no informal meeting ever took place. I am fortified in that view by the manner in which Mr Boyd's evidence of having discussed the possibility of a wire strike emerged. I do not accept Mr Boyd's evidence that the possibility of a wire strike was ever the subject of any discussion. I am satisfied that such an issue was never discussed.

Annexure F to Ex. PSC 1 is a document entitled "Local Government Occupational Health and Safety Handbook". It was issued by the Council and bears a date of 12 December 2004. It was thus operative at the date of the accident.

Page 4 of Annexure F, under the heading "Parkes Shire Council Safety Policy Statement" includes the following:

The document then deals with specific responsibilities of contractors and sub-contractors, and states:

Mr Boyd accepted (T457 L49 - T458 L4) that a risk assessment was required in any case where a Council employee was required to work near overhead wires. Obviously, Mr Stephenson and Mr Buerckner were going to be in that position when the survey was being undertaken.

By reference to Annexure F to Ex PSC1, Mr Boyd said (T422 L23) that he believed "everyone had a role" in the process of risk management in respect of the proposed survey. He conceded (T424 L44) that he gave no consideration, in preparing for it, to any information which the Council might have held regarding the presence of power lines in the area in which the flight was to be undertaken. He said that whilst he was not sure whether the Council had such information available to it, he did not turn his mind to the question of whether or not it should have been sought and obtained for planning purposes (T425 L28).

Mr Boyd then gave the following evidence (commencing at T425 L35):

For the reasons already outlined, I am satisfied that no discussion ever took place in Mr Boyd's office. A discussion of the kind described by Mr Boyd, even if it had occurred, would have fallen substantially short of constituting a "substantial portion of the risk management".

Mr Boyd accepted that:

When asked whether he considered it acceptable that no risk assessment was undertaken in advance of the flight, Mr Boyd said (T440 L31 and following):

Clearly, Mr Boyd regarded the proposed survey as a "small project", in the sense of being one which involved what he considered to be small expenditure on the part of the Council (T440 L6-18). As a consequence, the scrutiny which he applied to assessing and managing the risk(s) associated with it was commensurately small, to the point of being largely non-existent. The folly of such an approach is self-evident. In my view, it represented a significant departure from what was required.

Mr Boyd also gave evidence (commencing at T441 L21) that it was the Council's practice for any prospective contractor to be asked to provide particular documentation before any expenditure was authorised. This included any relevant licence or authority required to perform the work, as well as evidence of insurance cover. He agreed that absent such material, a contract should not be allowed to proceed.

Notwithstanding this, he conceded (commencing at T443 L14) that at the time of engaging South West, the Council had not asked South West to provide:

According to Mr Boyd, it was open (and apparently acceptable to the Council) to conduct a risk assessment at the aerodrome shortly prior to take-off (T440 L22-27). On the evidence, the only representatives of the Council who it anticipated would be present at the aerodrome prior to take-off were Mr Stephenson and Mr Buerckner. Their experience, such as it was, was limited to flying on the 2005 survey. Neither had any experience in assessing risk, nor was such assessment the responsibility of either of them.

The only available conclusion is that Mr Boyd apparently thought it acceptable to delegate the task of risk assessment to either or both of Mr Stephenson and Mr Buerckner, in circumstances where such assessment was to be conducted at the aerodrome immediately prior to the flight. It was completely inappropriate to delegate that responsibility to an employee. Even if it could be regarded as appropriate, Mr Boyd not give any relevant instructions about how the assessment might be conducted and, in particular, what might happen in the event that a risk was identified. In particular, he gave no instructions to either Mr Buerckner or Mr Stephenson to convey anything to the pilot about the minimum height threshold.

Mr Boyd said that despite all of these matters, he nevertheless believed that "the procedures were followed" (T446 L21-23). When asked (commencing at T446 L27) why he held that view, he said:

Mr Boyd's evidence was that he had a single discussion about the flight. For the reasons previously set out I am satisfied that no such discussion ever took place. I am further fortified, in coming to that view, by the fact that there is no reference in any of Mr Boyd's statements to any discussion having taken place in respect of the insurances, certifications, experience or qualifications of South West as the contractor. In the absence of any such reference(s) I do not accept that such matters were ever the subject of discussion with Mr Boyd at any time. Once again, Mr Boyd's evidence in this respect emerged years after the event.

I am also unable to accept Mr Boyd's evidence that the "procedures were followed". Mr Boyd had the ultimate responsibility for the identification and management of relevant risks associated with the flight. He failed to discharge that responsibility. He accepted that a risk assessment was required but did not perform it. He left it all to Mr Stephenson, a person with little experience in aerial weed surveys.

I am satisfied that these various failures on the part of Mr Boyd stemmed from his determination that the proposed flight was a "small project". He expressly conceded that on occasions, less scrutiny was applied to the necessity to conduct risk assessments because the expenditure on the project was low. Such an approach is completely at odds with the proper discharge of the duty imposed upon an employer to ensure the safety of its employees.

Mr Sullivan also had responsibilities in this regard. He supervised and managed both Mr Stephenson and Mr Buerckner. He accepted that as their supervisor and manager he was required to ensure that the Council's policy in respect of safety issues was effectively implemented. He specifically conceded (T483 L36) that he was responsible for ensuring compliance with the relevant OH&S program. He agreed that Annexure F to Exh. PSC 1 stipulated, amongst other things, that all relevant hazards be identified. For the reasons I have stated, these issues were not addressed.

Mr Sullivan was well aware of the danger posed by power lines in a project which involved aerial surveillance (T484 L21 and following). In the context of the proposed survey he was specifically aware that:

Mr Sullivan conceded (commencing at T483 L45) that no "specific sit down" risk assessment was conducted in respect of the 2006 flight. His explanation for that was in the following terms:

For the reasons stated, I am satisfied that Mr Sullivan was not advised about, and did not discuss, height levels. His statements make no reference to ever discussing power lines, or the risk they posed. I am satisfied that he did not discuss such matters but that he assumed that the previous procedure would be followed again.

Mr Sullivan approved the expenditure for the flight in the absence of any documented safe work method statement or risk assessment being provided by South West (commencing at T494 L1). He said that Mr Stephenson had informed him that such documents "would be coming with the helicopter and that he would view them prior to take off" (at T494 L21). When asked why, in all of these circumstances, the flight was allowed to proceed, Mr Sullivan said (commencing at T528 L7):

For the reasons I have already stated, it was not Mr Stephenson's responsibility to assess whether the flight should proceed in light of such documents as were provided. He had no relevant experience in such matters. Moreover, I am satisfied that Mr Sullivan gave no direction to Mr Stephenson not to take off until such time as those documents had been produced. Mr Sullivan conceded that the failure to procure a risk assessment from South West prior to the departure of the flight was a significant departure from the Council's stated policy (at T515 L23-36). It is no answer to assert that there was some understanding that such matters would be attended to by Mr Stephenson prior to the helicopter taking off.

The suggestion that Mr Stephenson's viewing of documents immediately prior to take off amounted to an appropriate risk assessment overlooks two fundamental considerations. Firstly, it was not Mr Stephenson's responsibility. Secondly, Mr Sullivan could not possibly have thought that Mr Stephenson, a person with no aviation experience, was in a position to determine whether the documentation provided by South West was satisfactory so as to allow the flight to proceed. The responsibility for doing so should never have been delegated to him.

Mr Sullivan then gave the following further evidence (commencing at T528 L15):

The evidence of Mr Sullivan in this regard was consistent with that of Mr Boyd. It was submitted that the approach taken by both Mr Boyd and Mr Sullivan, which involved equating expenditure with risk, was indicative of a "culture" within the Council. Without labelling it in that way, I am satisfied that within the Council, projects which were regarded as involving small expenditure attracted substantially less scrutiny, in terms of risk assessment and management, than projects which involved the expenditure of larger sums of money.

Such an approach was necessarily fraught with danger. As a matter of common sense, the fact that expenditure on a project may be small does not mean the risk is commensurately small. The present is a case in point. The proposed survey involved hazardous work, in the carrying out of which two Council employees were to be directly exposed to power lines.

For all of these reasons, and in the respects that I have identified, both Mr Boyd and Mr Sullivan failed to discharge their respective responsibilities to ensure that the risks associated with the proposed survey were identified, assessed and managed prior to the departure of the flight.

Mr White gave evidence (Exs SW 11 and SW 12) about the availability of a computer program in 2005 known as "Map Info", which allowed multiple pieces of topographical information to be obtained from external sources, collated, and effectively reproduced in one document. In the context of the present case, the program permitted data to be obtained from an external source, and then superimposed over an existing map so as to provide a composite topographical picture of a particular area. Mr White demonstrated the process in the course of giving evidence.

For some time EE (and its predecessor Country Energy) maintained a computer-based system recording data about its assets. The data consisted of information identifying the location of (inter alia) poles and power lines. The system allowed such information to be represented on cadastral maps (Ex EE 23 at paragraph 5).

Mr Pallot identified the four poles supporting the power line struck by the helicopter as:

Data was provided to the Council on 11 October 2005 which showed an overview of the information provided, as well as a detailed view of the area of the accident (Ex PSC 8 at para 8). It was provided in a form which enabled it to be transposed into the Map Info program operated by the Council (Ex. PSC 8 at para.8; Ex EE 23 at para. 15).

Mr Pallot conceded (paragraph 3 of Ex EE 24) that the data provided to the Council in October 2005 contained inaccuracies. However, he maintained that it was "overall reasonably accurate" in terms of identifying the location of power lines in the area to be covered by the survey. He accepted that when the Council received the data, the location of the poles had not been incorporated into the system and accordingly such material as the Council did receive did not include reference to those locations (T637 L5-13). He could give no indication of the accuracy of the data as at 2006 (T642 L42-44).

Mr Fitzsummons, the Council's Assets Manager, had access to the information which had been provided to the Council by EE. He formed the view that in some respects it was "incomplete and probably inaccurate". This, he explained, was because he noticed areas where poles were depicted but where there was an absence of notification of the presence of wires or conductors running between them (Ex. PSC 8 at para 10; Ex. PSC 9 at para. 5). As a consequence, Mr Fitzsummons was not confident in using the information which had been provided. However, he conceded (T555 L89-41; T559 L23-26) that he had no reason to doubt the accuracy of the data which was produced in relation to the area of the Dungeons.

As the Council's Assets Manager, the primary interest of Mr Fitzsummons (in terms of the data which had been supplied) was the identification of underground assets (T551 L12-14). Although he knew of the 2005 survey (T551 L37-39) he knew nothing of the proposal that a further survey was to be conducted in 2006 (T550 L4-6). In these circumstances he gave no thought to the use to which the data which had been supplied could be put in terms of planning for that survey. No one from the Council made any enquiry of him in relation to it (T551 L41-T552 L6). No criticism can be levelled at Mr Fitzsummons in these respects. He had no role to play in the preparation for the proposed flight. Indeed, he was unaware that it was to take place. His duties and responsibilities within the Council lay in an entirely different area.

However, and in circumstances where Mr Boyd and Mr Sullivan were aware of the danger of a wire strike, it remains the case that there was information regarding the presence of power poles and power lines in the area of the Dungeons which was available to the Council in the period leading up to February 2006. Even though Mr Fitzsummons had some misgivings about its accuracy, they did not extend to the data as it applied to the area of the Dungeons. That data would clearly have been relevant to addressing the risks associated with the proposed flight. The data was not disseminated within the Council once received. Neither Mr Boyd nor Mr Sullivan asked for it to be provided to them for the purposes of preparing for the flight, and assessing the risks associated with it.

Mr Dolby, the Chief Pilot of South West, gave evidence regarding the preparations for the flight which were undertaken by South West. He said that it was commonplace for an organisation who requested a weed survey (in this case, the Council) to take part in a briefing conducted on the same day as the flight. He described that procedure (T64 L40) as "on the spot ad hoc planning" which, he said, was "far more common than getting an intensive briefing or planning in advance" (T64 L39 to T65 L1). Mr Dolby was not present at the Parkes aerodrome on the morning of 2 February 2006. He therefore knew nothing about any briefing on that day.

On 30 January 2006 Mr Dolby met with Mr Thrupp. According to Mr Dolby (Ex SW 5 at paragraph 16):

Mr Dolby said that a further conversation took place on the following day, (31 January 2006) at which time he and Mr Thrupp "rehashed a couple of points" (T123 L23). These were the only two occasions on which Mr Dolby had any discussions with Mr Thrupp regarding the proposed survey.

When cross-examined, Mr Dolby explained that during the first of those discussions he and Mr Thrupp spoke about the "dangers of low level weed survey" (T108 L23-29). However, he said that there was no specific discussion concerning the particular survey to be undertaken for the Council (T112 L44). He said that the discussion was conducted over 2 hours (T122 L35) although he later clarified that this 2 hour period was not entirely devoted to discussions about the proposed flight(s) (T122 L46).

What Mr Dolby described as having taken place when he spoke with Mr Thrupp appears to have been an extension of the system of "ad hoc planning" which he said was common. Whilst it may have been common, whether it was adequate is another question entirely. On the evidence before me, it was not. In particular, there is no evidence that the discussion between Mr Dolby and Mr Thrupp covered (for example) the risk posed by flying in an area where there were overhead power lines, or what should be implemented, in terms of a plan for the flight, to address and manage that risk.

Mr Dolby said that there was an expectation on the part of South West that the customer requesting the survey would provide a map showing the area which was to be covered (T114 L25-28). He also said (T147 L25) that South West "was invariably given a map of some description produced by the customer to show where they wished to go". However, he later conceded (T147 L37-40) that situations may have arisen when a flight was permitted to be undertaken without any map being provided at all (although the survey was not necessarily one of them).

Mr Dolby then said (T114 L30) that it was his practice to direct the pilot to obtain a copy of a map of the relevant area prior to any flight being undertaken. He initially said that he could not recall giving such a direction to Mr Thrupp. He later stated (T115 L1-9) that he had not done so, and had not directed him not to commence the flight without a map being available.

The approach taken by Mr Dolby in these respects was unsatisfactory. The notion of allowing a pilot to undertake a flight of this kind without being assisted by a map of the area which was to be overflown reflects a lack of proper planning. Identifying, in advance, the area which was to be the subject of the proposed survey was a fundamental step in addressing any associated risk.

Mr Dolby's approach to planning for the flight also ignored important provisions of the Operations Manual (Ex EE1). Mr Dolby agreed (T91 L47-50) that the Operations Manual contained comprehensive directions concerning procedures and the handling of aircraft operated by South West. He also agreed that as the Chief Pilot of South West he was under a positive duty to comply with all procedures which were specified in it (T97 L45 - T98 L4).

The Operations Manual required (inter alia) that any proposal for an aerial survey be forwarded through Mr Dolby, in his capacity as the Chief Pilot, for the purpose of conducting a "Task Profile Assessment". Mr Dolby initially explained (T118 L34 and following) that he understood that such assessment was an assessment of "the general requirements of the job", which involved considering whether the pilot he intended to assign to the job was "capable of doing it". However, he ultimately accepted (T119 L17) that the conduct of a proper Task Profile Assessment required something more than simply considering the competence of the pilot.

Notwithstanding this, and leaving aside his conversations with Mr Thrupp, the "assessment" he conducted in the present case involved little more than reaching a conclusion that Mr Thrupp was competent to undertake the task of conducting the survey (T119 L33). That conclusion said nothing about, and incorporated no consideration of, the actual task to be undertaken. Those were matters which were fundamental to the conduct of any proper assessment. The assessment performed by Mr Dolby involved no, or no proper, consideration of any attendant risk(s), and thus no determination of the manner in which those risks could be addressed. It follows that the assessment (such as it was) which was carried out by Mr Dolby fell substantially short of what was required.

Mr Dolby asserted that if there was a particular safety requirement of the job that was required to be addressed in advance, it was his policy to deal with it (T65 L3-7). Given the nature of the aerial survey which was to be conducted in this case, the obvious risks associated with such a survey, and the consequent safety considerations which arose, I am unable to accept Mr Dolby's evidence that he had a policy of addressing matters in advance. For the reasons already stated, the assessment he undertook in this case did not involve any proper consideration being given to the requirements of the task which was to be undertaken. Without considering such requirements, he could not possibly have been in a position to identify any particular safety requirement(s) which may have needed to be addressed.

Section D of the Operations Manual contained provisions which were specifically related to aerial spotting and survey operations. Those provisions imposed an obligation upon Mr Dolby, as Chief Pilot, to carry out a briefing with Mr Thrupp prior to the flight. The briefing was required to address (inter alia):

I have already made reference to the two conversations which took place between Mr Dolby and Mr Thrupp in the period leading up to the accident. Mr Dolby's evidence about the content of those conversations contains no reference at all to any of the matters in [115]. Mr Dolby accepted (T122 L12) that addressing those matters was a mandatory requirement imposed by the Operations Manual.

Mr Dolby maintained that he had "discussed some of these issues specifically" with Mr Thrupp (T122 L19). However, his evidence in this regard was vague. His evidence that he addressed "some" of the issues set out in the Operations Manual strongly suggests that he did not address all of them. The issues which were the subject of discussion remain unclear. What is clear however, is that Mr Dolby failed to meet the obligations imposed upon him by the Operations Manual to conduct a proper briefing. In particular, there is no evidence that any briefing addressed the identification of hazards such as overhead wires.

In addition to all of these matters, the planning by South West for the survey (such as it was) did not incorporate the preparation of any written risk assessment or safe work method statement in relation to the flight (T115 L38-50). In the course of being cross examined (T130 L22-30) Mr Dolby gave the following evidence in this respect:

I am satisfied that, in terms of assessing the relevant risks, Mr Thrupp was left to "pick up" the relevant considerations, Mr Dolby having failed to conduct any proper assessment. That was not adequate. In particular, it did not comply with the requirements of South West's Operations Manual.

Moreover, for Mr Dolby to suggest that he "made a briefing based on the information he had available" ignores the fact that he had not had any dealings with the Council. I am satisfied on the evidence that apart from the fact that the proposed flight was for the purposes of conducting a weed survey, Mr Dolby had little or no information upon which to conduct a briefing. In the absence of a map, he was not even aware of the precise area which was to be overflown. No risk assessment was undertaken. Hazards were not identified. Mr Dolby left all of those matters to Mr Thrupp. This represented a fundamental failure on the part of Mr Dolby to comply with the obligations imposed upon him as the Chief Pilot of South West.

Mr Stephenson telephoned Mr Sullivan at 8.35am on 2 February 2006 and told him that the helicopter was about to take off (Ex. PSC 6 at para. 28). Mr Dolby's evidence was that generally speaking, flying at 300 ft was a comfortable height for a noxious weed survey (T74 L20-23).

At about 9.30 am, Sgt Park of the NSW Police was driving along the road near the accident site and saw debris. As he did so, he was approached by Russell Schmidt who told him that a helicopter had "just crashed" (Ex. SW 27 at paras 3-5).

Mr Schmidt had been driving in the vicinity of The Dungeons when he first saw the helicopter in front of him. He described (Ex. SW 15 at para. 5) that the helicopter "came from over the hill on the right hand side" before banking around and then flying in the same direction as that in which he was travelling, a manoeuvre he described as being in the nature of a u-turn (commencing at T234 L20).

Mr Schmidt continued (Ex. SW 15 at paras. 5 and 6):

In further evidence in chief (T217 L37 and following) Mr Schmidt said that when he first saw the helicopter it was "on the turn ... and heading parallel the same way I - that I was travelling". However, after being directed to the terms of Ex. SW 15 (T 217 L45 and following) Mr Schmidt confirmed that he first saw the helicopter when it was to his right, flying towards him.

Mr Schmidt described (T214 L40 and following) a curve in the road that was located "a couple of hundred yards" from the start of The Dungeons. He explained that on the right hand side of the road (in the direction in which he was travelling) there was a property located before The Dungeons which was managed by a Mr Tossetti. By reference to that location he said (T215 L4) that he was "probably at about Tossetti's gate" when he first saw the helicopter, but later agreed that because of the lapse of time since the incident he was no longer sure that this was the case (at T232 L46-48). When he gave evidence before the Coroner, Mr Schmidt said that he had not reached the position of Tossetti's gate when he first saw the helicopter.

In terms of the speed at which he was travelling as he drove along the road, Mr Schmidt initially said (T217 L28) that he was travelling "somewhere between 80 and 100" at the time of seeing the helicopter. When cross-examined (T225 L43) he agreed that he was travelling "at about the speed limit of 100".

Mr Schmidt also agreed (T235 L35 and following) that he had given evidence before the Coroner that the helicopter was approximately 50 feet above the trees after it turned. He said (T236 L8) that the helicopter "dropped a bit" from the time that he first saw it until the time that it had completed its turn and that having completed such turn, it was "pretty much on top" of him. Mr Schmidt said that at that point, he put his head out of the window of his vehicle in order to get a better view of the helicopter, at which time the helicopter "overtook" him and continued along the same line as the road, away from his vehicle. Mr Schmidt continued to watch the helicopter until he saw it contact the wire (T237 L12-14). He described that the contact caused the wire to "bow forward", following which he saw the helicopter tip backwards, and then fall to the ground.

Although it was apparent that Mr Schmidt was not accustomed to giving evidence, I am satisfied that he was doing his best to be truthful and accurate when recalling what had occurred. I am satisfied that he saw the helicopter come towards him, perform what was effectively a u-turn, and then travel in the same direction as that in which he was travelling before coming into contact with the wire and crashing in the manner which he described. I am satisfied it was the contact with the wire which caused the helicopter to crash.

However, Mr Schmidt properly conceded that the events about which he was giving evidence had happened quite some time ago, and that this necessarily had a bearing upon his ability to accurately recall them. The fact that this was so was evident from the variations in his evidence as to a number of matters, including the speed at which he was travelling, his position on the road when he first saw the helicopter, and the path taken by the helicopter after it had first come in to his line of sight.

It is also apparent that once the helicopter came into Mr Schmidt's line of sight, it became the primary focus of his attention. For at least some of the period over which he observed the helicopter, Mr Schmidt had his head out of the window of his vehicle, looking towards the sky whilst driving, and observing the helicopter. For such time as he was doing so, his attention and focus were directed not to the speed at which his own vehicle was travelling, but to the helicopter and its path. In these circumstances, Mr Schmidt's estimate of his speed is not reliable and is deserving of little weight. In my view, it provides no reliable indicator of the speed of the helicopter in the period immediately before the crash, a matter about which I am not able to make any determination.

Mr Schmidt gave evidence ([128] above) of the distance between his vehicle and the helicopter as the helicopter flew above him. He agreed (T236 L8-17) that the helicopter "dropped a bit" to the point where it was "pretty much on top of him". Without intending any disrespect to Mr Schmidt, those descriptions are not particularly helpful in determining, with any degree of precision, the measurements and distances to which he was referring. What is clear, from the fact of the crash and the evidence of the height of the power lines, is that the helicopter was flying at a height of approximately 120 ft when it struck the power line and crashed.

As I have discussed more fully below there is expert evidence, which I accept, that "good airmanship" involves carrying out a high level "fly over" of any area into which it is proposed to descend. There is also evidence, which I accept, that Mr Thrupp was an experienced, cautious and safety conscious pilot (Ex. SW 4 at para 4; Ex. PSC 7 at para. 24; Ex. PSC 10 at para. 30; Ex. PSC 11 at para. 12). In these circumstances, it might be expected that Mr Thrupp would have performed a high level fly over before descending into The Dungeons as he did.

A period of approximately one hour, or perhaps slightly less, elapsed between the time of the helicopter's departure from the aerodrome, and the time at which it struck the wire. The only evidence of any observation of the helicopter within that period was that of Mr Schmidt. I am not able to determine where the helicopter had travelled between the time of its departure and its appearance in the area of The Dungeons when Mr Schmidt saw it.

There was obviously sufficient time for Mr Thrupp to perform a fly over of the area of The Dungeons before descending. However, whether he did so is a matter of speculation. There is simply no evidence about where, and at what height, the helicopter had flown prior to coming into Mr Schmidt's view. In these circumstances the evidence does not enable me to determine whether a high level fly over had been undertaken by Mr Thrupp prior to the accident. To reach a conclusion one way or the other would, in my view, be impermissibly speculative.

A related question is whether Mr Thrupp was engaged in the survey at the time of the crash. The path taken by the 2005 survey did not involve flying into the area where the accident occurred. The closest the path of the 2005 survey came to the accident site was to fly along a route located approximately 2 km to the west.

Roger Garnsey, an Agronomist, gave evidence that inspections of noxious weeds such as the Blackberry and the African Boxthorn can be undertaken by ground or by air (Ex SW 26 para. 2). The advantage of working from the ground is that most noxious weeds are more easily detected from the ground, although this assumes that it is possible to gain vehicular access to the relevant area. Where such access is not possible, aerial surveillance is an option (Ex SW 26 para. 3).

In the present case there were two purposes for which the survey was being conducted (Ex PSC 6 para. 17), namely to:

The Council was responsible for weed growth along the edges of the road adjacent to the accident site (Ex. PSC 6 para 16; Ex SW 45 at p. 10). The fact that such weed growth could have been accessed by a motor vehicle does not, of itself, support the conclusion that Mr Thrupp was not engaged in the survey at the time of the accident. It remains the case that one of the purposes of the flight was to detect new weed growth. Deviating from the flight path adopted for the purposes of the 2005 survey, and flying into the area of the accident site, was consistent with that purpose.

In these circumstances I am satisfied that at the time of the accident Mr Thrupp was engaged in the survey.

For the reasons I have previously stated, I am satisfied that the helicopter crashed to the ground as a result of coming into contact with an overhead power line. This raises a question of the visibility of the wire at the time.

On 16 May 2007, in company with Mr Hurley and Mr Coppock, Mr Stewart flew a police helicopter to the accident site. Having done so, he identified (Ex SW 17 para. 5) the two power lines running at right angles to the road. He then flew around the accident site at various altitudes. At paragraph 6 and following of Ex SW17 Mr Stewart said:

He was also asked about the presence of power poles (T265 L29-38):

Mr Stewart said that in his experience, power poles which were painted at the top in colours contrasting with the colour of the surrounding vegetation were generally easier to see than poles that were not so painted (T268 L18-30).

Mr Stewart also flew to the accident site with the Coroner in the course of the inquest. When asked (T262 L36 and following) what he saw on that occasion he said:

Mr Stewart (T270 L3-7) described as a "survival technique" the process of undertaking a thorough investigation from a high altitude before descending to a low level area where there may be wires. When asked (T270 L33) whether part of that practice involved looking for indicators other than wires themselves, he said:

Mr Stewart agreed (commencing at T279 L46) that as a matter of both common sense and good airmanship a prudent pilot should survey, from a high altitude, any area into which he wishes to fly at a low altitude. However he then said (commencing at T280 L11):

Evidence to a similar effect was given by Mr Coppock (commencing at T 737 L39), Mr Dolby (commencing at T62 L1) and Mr Joyce (commencing at T1065 L22).

I am satisfied that conducting a high level fly over does not always guarantee that hazards will be identified. Conducting such a fly over will therefore not completely eliminate the risk of a wire strike. However, doing so provides an opportunity to look for indicators of the presence of overhead wires.

Mr Coppock gave evidence of the flight which was undertaken with Mr Stewart (Ex SW 39 and SW 40). He was familiar with "round orange ball markers" which could be placed on wires so as to identify their location. Mr Coppock said that in his experience such markers made overhead wires "incredibly more identifiable" (T734 L38). He was unable to recall any distinguishing marks on the poles in the area of the accident site and said that poles painted in colours which contrasted with the vegetation (such as white or orange) rendered them a great deal easier to spot (T735 L10-19). He did not recall the presence of galvanized iron caps on the top of the poles in the area but agreed that such caps could also provide some indicator of the existence of the poles, along with vegetation clearing (T744 L3-19).

Mr Coppock agreed that one of the main dangers of low level flying was the potential to come into contact with power lines because they could be very hard to see (T736 L18-28). He said (commencing at T737 L39) that in a case where low level flying was to be conducted there should be a 360 degree orbit conducted over the area to ascertain the presence of wires. He said that in carrying out that process it was customary to look for the wires themselves along with other major indicators of the presence of wires such as cuttings and power poles (T738 L24-30).

Mr Dolby also gave evidence which was relevant to the question of the visibility of the wires. On 4 May 2006, some months after the accident, he flew over the area of The Dungeons at approximately 1000ft above ground level. He made a point of looking for the power poles on each of the eastern and western ridges which supported the line which was struck in the accident. Mr Dolby was able to see the line from about 750m away, although at certain angles he had difficulty in doing so (Ex SW5 at [18]).

He went on to say (Ex SW5 at [21]):

Mr Dolby agreed in cross-examination (commencing at T85 L1) that there was cleared vegetation in the area of the poles (photograph 58 in Ex SW 2) and that he had seen these in May of 2006 when flying over the area. He also agreed (commencing at T85 L39) that he was aware that power and electrical companies cleared vegetation so as to prevent a risk of fire caused by falling branches onto the lines.

The evidence establishes that the wire in question was, to say the least, difficult to see. I am satisfied on the evidence that the helicopter struck the wire because Mr Thrupp did not see it. There were no markings on the wires at the time. Mr Joyce flew over the area in October 2010, at which time there were marker balls on the overhead wires. On that occasion, the wires were able to be seen from a distance of between 300 and 500 metres away (T1081 L44-46).

Two experts, Timothy Joyce and Daniel Tyler, provided various reports which were tendered in the proceedings and gave concurrent evidence.

In his report (Ex EE28) Mr Joyce was asked to consider a number of aspects of the preparation and conduct of the flight. He expressed the view that some "very basic practices" were overlooked including the fact that:

It was Mr Tyler's opinion (Ex SW 48) that (inter alia) the power lines should have been marked with brightly coloured markers or "balls" designed for that purpose and should also have been identified by ensuring that the easement between the two power lines was cleared of vegetation.

Importantly, Mr Tyler (Ex SW 48 p. 9) described the road as "one of the most significant transportation corridors in the area". He went on to say:

Mr Joyce generally agreed with Mr Tyler regarding the necessity to conduct a high reconnaissance of the area to be surveyed. He also agreed, generally speaking, that a "notch" in a tree line could have been indicative of some man-made intervention in the natural environment and, if seen by the pilot, should have prompted a further investigation prior to further descent.

Following the provision of their respective reports, questions were submitted to Mr Joyce and Mr Tyler, resulting in a form of joint report (Ex JT2). That report reflected (inter alia) the following joint positions.

As to Mr Dolby as Chief Pilot of South West the report stated (at para 1):

In terms of pre-flight checks, route plans, flight paths and the like, the joint report stated as follows (at para. 2):

In terms of a high level fly over, the joint responses of the experts in Ex JT2 was as follows (at para. 3):

Mr Joyce flew to the accident site on 4 October 2010 for the first time (T1048 L34-44). He flew there again in April 2013 (T1049 L37). He explained (commencing at T1051 L34) that having arrived in the general location of the accident site, an observation flyover was conducted which consisted of an orbit around the highest points of the two ridges. He described having done this "quite a number of times" and explained that the purpose behind that was to appreciate the view of the area from all angles.

Mr Joyce was questioned about the presence of marker balls on the wire. He did not agree that the marker balls were visible for almost all of the time of the flyover and explained that you "had to look to locate" them (T1052 L11-12). However Mr Joyce then gave the following evidence (T1052 L14-37):

Mr Joyce agreed that when he undertook the survey in 2010 it was possible that the colour of the ground and the adjoining foliage was different than it had been in February 2006 (commencing at T1053 L21).

Mr Joyce agreed (commencing at T1064 L4) that the object of conducting an observation flyover is, in effect, to ensure that there are no hazards present in an area into which he wished to descend. He agreed that the process was one of "exclusion" and that the most important potential hazard for which a pilot would look was an overhead wire (T1064 L23-27). He also agreed that the presence of houses, buildings, damns and pumps maybe indicative of the nearby presence of overhead wires (T1064 L29 and following). He agreed that there were no such indicators at the point where the accident occurred (T1065 L10).

Mr Joyce agreed (T1065 L22-26) that a reconnaissance that is conducted in accordance with principles of good airmanship did not always guarantee that hazards would be identified. He explained (commencing at T1065 L28) that for that reason, even after a high level flyover had been conducted, a subsequent descent was approached in a particular way so as to allow for the possibility of the presence of a hazard that had not previously been identified.

Mr Joyce agreed (commencing at T1066 L4) that one of the reasons for conducting a high level reconnaissance involving a 360 degree orbit of the subject area was to eliminate the possibility that the rays of the sun affected visibility. He agreed (T1066 L8-12) that even when that procedure was conducted, the risk was not necessarily eliminated in its entirety and that it was possible that an experienced and qualified pilot could adopt good practice but still miss "clues" that might indicate the presence of a hazard (T1066 L14-17). He then said (T1066 L19-35):

By reference to the area of the accident site Mr Joyce agreed (T1067 L7) that the wire in question was very difficult to see. Whilst he did not agree that it was "impossible" to see, he accepted that there was a necessity to look for other indications of the presence of wires. He also agreed that the higher the position of the wire, the more dangerous it was (T1067 L13-31). He also agreed that if the pole blended in with the surrounding terrain, that was also a contributing factor to any danger which might exist (T1067 L33-41).

Mr Joyce explained that when flying in the area of the accident site he sought to replicate the approach taken by Mr Thrupp (but at a level about 40-50 metres above the wires). He estimated that he saw the marker balls from a distance of between 300 and 500 metres away (T1081 L44-48). He agreed that from that distance, if a helicopter was 120 feet from the ground flying at a speed of 60 knots, it would be capable of flying underneath the wire (T1083 L9-14).

Mr Joyce was taken to the evidence of the discussions which had taken place prior to the departure of the helicopter and considered that there was "probably sufficient time" for all of the relevant matters to be discussed (T1085 L46).

Mr Tyler described a high level reconnaissance as a "staged process". He explained that if there was no indicia of hazard disclosed in the "high reccie", then a pilot could proceed to a lower level but if there were indicia that had become manifest then there was obviously further investigation required. He explained that such further investigation may be constituted by a "low reccie" where a pilot attempts to ascertain the presence of hazards (T1093 L9-16). He explained that if, at the first level of inquiry, no hazards were identified, it would be open to a pilot to proceed directly to the lower level inspection, remaining within the area that had been surveyed at a higher level. If the higher level observation yielded information that required further examination, the conduct of what would occur thereafter would depend on what was seen and where it was (T1093 L18-22).

Mr Tyler agreed that it would not be in accordance with principles of good airmanship for a pilot to descend to a low level without conducting the staged process to which he referred. He regarded the high level flyover as being "mandatory" and explained that if anything was detected in the course of that, then the "second phase" would be required (T1093 L41-50).

Mr Tyler agreed that the reflections from the sun had a bearing on the visibility of power lines, such that they may only be visible at some angles as a result of the lighting. He explained that this was one of the considerations which mandated a high level flyover (T1095 L25-41).

Mr Tyler also agreed that the possibility of wire strike was a "certainly significant" cause of operational helicopter accidents (T1098 L36-37) and that because of that hazard, principles of good airmanship included (commencing at 1099 L39) that:

Mr Tyler also agreed (commencing at T1101 L12) that requests from, or requirements sought to be imposed by, customers of a commercial aircraft operation ought not impeach the obligation of a pilot to comply with fundamental obligations of good airmanship.

I am satisfied, based on the expert evidence as well as that of Mr Stewart, Mr Coppock and Mr Dolby, that it is a fundamental principle of good airmanship that a pilot of any aircraft should conduct a high level fly over of any area before descending to a lower level. For the reasons I have previously expressed, I am not able to determine whether Mr Thrupp performed that manoeuvre in the present case. However, an aerial weed survey can be conducted from an altitude of 300ft. In these circumstances there was no need for Mr Thrupp to descend to the level that he did.

One of the principal dangers of low level flying is the possibility of wire strike. By flying at such a low level, in circumstances where he did not have to do so for the purposes of conducting the survey, Mr Thrupp acted in a manner which was inherently dangerous, and which was contrary to principles of good airmanship. As an experienced pilot, he must have been aware of the nature and extent of the danger in doing so.

Whilst there was a clearance corridor created in the underlying vegetation, there were no nearby indicators of electrical consumption (such as houses of dams) and there were no markers on the wires themselves. I am satisfied that the wire struck by the helicopter was difficult to detect. The only conclusion available on the evidence is that Mr Thrupp simply did not see it. Had marker balls been placed on the wires they would have been visible from a distance of 300m to 500m away.

It was submitted on behalf of the plaintiffs that no, or no proper, risk assessment had been undertaken by the Council and that this failure had occurred in circumstances where both Mr Boyd and Mr Sullivan were aware of the risk of a wire strike, and the danger which would eventuate if that risk were to materialise.

Counsel for the plaintiffs submitted that in the event that I found that some form of risk assessment was undertaken by the Council, it was clear that it did not include any instruction being issued to the pilot, either directly or through Mr Stephenson, as to (inter alia) the minimum height at which the survey was to be conducted. It was submitted that any risk assessment which did not include such an instruction was necessarily inadequate.

Counsel for the plaintiffs submitted that these omissions were the result of the approach taken by Mr Boyd and Mr Sullivan as to the "dollar value" of the contract. It was submitted that I should conclude that the Council paid little or no attention to the necessity to address risks because the amount of expenditure was regarded as being low. It was further submitted that I should conclude that the flight had been allowed to depart in circumstances where the Council was aware, through Mr Boyd and Mr Sullivan, that no proper risk assessment had been undertaken.

Counsel for the plaintiffs further submitted that in the circumstances of the present case, a proper risk assessment required the Council to access, and use, information which was readily available to it. It was submitted that the Council had information available to it which was capable of depicting the position of power lines within the relevant area. In this regard counsel pointed, in particular, to the evidence of Mr White, and Exs. SW12, SW13 and SW14. He submitted that even though the available information may not have been entirely accurate, had the Council availed itself of it, it would have demonstrated that the flight was to be undertaken in a "wire environment". Counsel also relied, in this regard, on the fact that the accident site was in close proximity to the township of Parkes. It was submitted that the Council, through Mr Boyd and Mr Sullivan, was (or ought to have been) generally aware of the area which was to be the subject of the survey, and of the presence of wires in that area. It was submitted that the risk of collision with electrical wires should have been at the forefront of the minds of Mr Boyd and Mr Sullivan, and that their respective failures to take any steps to enquire as to the location of such wires by reference to the proposed survey route was a further breach of the Council's duty of care to ensure that Mr Stephenson was working in a safe environment.

It was further submitted that in response to the identified risk, the Council should have (inter alia):

As against South West, counsel for the plaintiffs submitted that the Operations Manual imposed a number of obligations with which Mr Dolby had not complied, including the obligation to carry out a proper risk assessment. It was submitted that no proper risk assessment had been undertaken. Counsel also submitted that Mr Thrupp had failed to follow basic principles of good airmanship, including ignoring the requirement that he should descent only when necessary. It was submitted that the failure of Mr Dolby to properly conduct a briefing with Mr Thrupp, contributed to the poor airmanship which, in turn, caused the wire strike, and thus the accident.

It was accepted by the Council that it owed a duty of care to its employees, including Mr Stephenson. However, it was submitted that such duty was not breached. Alternatively it was submitted that if a breach of duty was found, it was not causative of any damage.

It was submitted that the risk that a helicopter might come into contact with an overhead wire had been properly addressed by the Council's selection of an experienced and appropriately qualified provider of aerial survey services (i.e. South West) as the operator of the flight. It was submitted that the risk which materialised was the risk that a highly qualified and experienced helicopter pilot, who was flying a well maintained and air worthy helicopter, would "abandon every fundamental principle of good airmanship", fly into an area of great danger, and thereafter collide with a power line. It was submitted that there was nothing that the Council could reasonably have done to protect against what was described as "aberrant, unexpected and inexplicable conduct" on the part of Mr Thrupp. It was submitted that by the time Mr Thrupp flew through The Dungeons in the way in which he did, matters were well beyond the control of the Council, and that there was no sensible way in which it could have eliminated the risk of a wire strike. Whilst it was accepted that the Council's duty required it to take all reasonable steps which were sensibly available to it to ensure that the flight would be conducted safely, it was submitted that this did not extend to operational matters concerning the piloting of the helicopter.

It was submitted that even if it was concluded that the Council was in breach of its duty, a conclusion that such a breach was causative of what eventuated was not reasonably open. It was submitted that any failure on the part of the Council amounted to little more than a breach of an internal requirement which was not causative of damage.

It was further submitted on behalf of the Council that the risk of flying into power lines at a low level was well known to both South West and Mr Thrupp, and was the greatest risk that a pilot faced. It was submitted that in circumstances where Mr Thrupp knew of such danger, no failure on the part of the Council was in any way material to the cause of the accident. It was submitted that the factual cause of the accident was an inexplicable error on the part of Mr Thrupp who had either failed to see the power lines or, having seen them, had misjudged them. It was further submitted that the negligence of Mr Thrupp constituted a break in the chain of causation and that it was his negligence that produced the harm which eventuated. It was submitted that his conduct was of an unexpected and grossly negligent character, and constituted a breach of obligations that were the sole preserve of a specialist aviator.

It was submitted that the Council could not be properly regarded as having caused the accident, or as having materially contributed to it. It was submitted that the nature of the accident and its cause(s) were so far removed from the exercise that was being undertaken that it would be impermissible to regard any act or omission on the part of the Council as being any more than coincidental.

In terms of its position vis a vis South West, it was submitted on behalf of the Council that it owed no duty of care to South West. It was submitted, in particular, that a distinction was to be drawn between the Council's duty to an employee, and a duty said to be owed by it to some other person or entity. It was emphasised that the fact that the Council might have owed a duty to Mr Stephenson did not automatically lead to the conclusion that it owed a duty to South West, and that the question of whether it did so was to be resolved according to the facts and circumstances of the case, and the circumstances of any relationship which existed between them.

As to the latter issue, it was submitted that any relationship between the Council and South West was to be viewed as one between the hirer of an aircraft (the Council) and a qualified operator of that aircraft (South West). It was submitted that there was no feature of that relationship which gave rise to any duty of care.

In the event that I were to find that the Council did owe South West a duty of care, the Council relied upon its earlier submissions regarding what was said to have been the reasonableness of its actions.

It was submitted on behalf of South West that the Council owed it a duty of care which was "grounded in the law of negligence": Anns v Merton London Borough Council [1978] AC 728. It was submitted that such duty imposed an obligation upon the Council not to cause injury or damage to property.

It was submitted that the Council's degree of control over, and knowledge about, matters pertaining to the flight, substantially determined the scope of that duty. It was emphasised that the Council was in possession of information concerning the location of power lines and that its duty extended to providing that information to Mr Thrupp as the pilot.

Counsel for South West submitted that the accident occurred because Mr Thrupp had not seen the power line, due to the fact that it was essentially invisible as he approached it. It was submitted that it was not open to infer negligence from the fact of the collision, nor from the position of the helicopter at impact: Franklin v Victorian Railways Commissioner [1959] HCA 48; (1959) 101 CLR 197; Bradshaw v McEwans Pty Limited (1951) 217 ALR 1.

It was further submitted on behalf of South West that the risk of a wire being struck by a helicopter engaged in surveillance work was foreseeable, and that the risk was not a low one. It was submitted that the determination of what was an appropriate response on the part of the Council was to be assessed having regard to the fact that the Council:

It was submitted that in considering the appropriate response, it was relevant that information was available to the Council which was not properly utilised, and that Mr Boyd and Mr Sullivan had made unsafe and unwarranted assumptions that the flight would be operated at a threshold level of 500 ft. It was submitted that what was required on the part of the Council in all of these circumstances was the giving of a specific direction to Mr Thrupp about the height threshold at which the survey was to be conducted.

In terms of causation, it was submitted that there was no evidence from any of the qualified pilots that a person in the position of Mr Thrupp would not have complied with a direction from the customer about the application of a minimum flight threshold. It was submitted that this supported the conclusion that had the Council conveyed a direction that the helicopter was not to descend below 500 ft, that direction would have been complied with by Mr Thrupp, in which case the accident would never have occurred.

As against EE, it was submitted on behalf of South West that EE owed a general duty of care to pilots, passengers and aircraft owners. It was submitted that EE was necessarily aware of the risk posed to low flying aircraft by the presence of power lines, and that the materialisation of that risk was potentially catastrophic.

South West repeated its submission that the power line struck by the helicopter was not detectable, and further argued that the line had a number of characteristics which rendered it a specific source of risk. These included the extreme length of the span, the absence of any buildings or other indicators of electrical consumption in the area and the knowledge on the part of EE that an aircraft could be expected to fly low over the area.

Although the statement of claim filed by South West pleaded a number of separate particulars of negligence against EE, the focus of the submissions made on behalf of South West concerned the failure of EE to mark the wires in some way. It was submitted that a reasonable response to the risk created was to place markers on the wires so as to designate their presence, and that the creation of a swathe or easement in vegetation underneath the wires was an inadequate response to the risk.

It was submitted that in all of these circumstances, even if Mr Thrupp had been negligent in flying the helicopter as he did (which was denied) such negligence affected neither the existence of a duty of care, nor the question of breach.

In its defence of the Stephenson proceedings, South West raised a discreet issue with which I have dealt separately below.

The primary submission advanced on behalf of EE was that it owed no duty of care to South West.

It was submitted, in particular, that the factual circumstances of the present case were not such as to fall within an "accepted category" of duty. It was submitted that because such circumstances were novel, the question of whether or not a duty of care was owed by EE to any person or organisation was to be determined according to whether or not the particular features of the case supported the existence of such a duty.

In this regard, counsel for EE relied heavily upon the judgment of Allsop P (as his Honour then was) in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; (2009) 75 NSWLR 649. It was submitted that the application of the various criteria identified by his Honour in that case supported the conclusion that no duty of care was owed by EE to South West.

Counsel further submitted that there were aspects of principle and public policy which may operate to constrain the formulation of the duty of care: Hoffman v Boland [2013] NSWCA 158.

In the event that a conclusion was reached that a duty of care did exist, Counsel for EE accepted that generally speaking, a collision with power lines by an aircraft was foreseeable by a company whose business involved the provision of utilities. However, it was submitted that in the present case, the power line struck by the helicopter had been present for a long period of time without incident, and that this was a consideration which was particularly relevant to an assessment of the various provisions of s. 5B of the CLA.

Sections 30-32 of the CLA govern the nervous shock claims brought in the Stephenson proceedings. Those sections operate to (inter alia) apply certain limitations on recovery for damages for pure mental harm. It was not suggested that any one of the plaintiffs in the Stephenson proceedings was precluded from recovery by the operation of any of those provisions.

The general principles of liability are set out in s. 5B of the CLA in the following terms:

Section 5B(1) sets out three pre-conditions which must co-exist before liability in negligence arises: Roads and Traffic Authority NSW v Refrigerated Loadings Pty Limited [2009] NSWCA 263; (2009) 53 MVR 502 at [173] per Campbell JA. In the event that the three pre-conditions are met, consideration must then be given to s. 5B(2) which sets out a number of matters which must be taken into account when determining whether or not a reasonable person would have taken precautions against the identified risk. It is important to emphasise that the relevant inquiry is what a reasonable person would have done. The inquiry does not involve a retrospective identification of what would have avoided the injury: Vairy v Wyong Shire Council (2005) 223 CLR 422 at [124] per Hayne J. This approach necessarily requires that the issues of breach of duty and causation be dealt with separately.

Section 5B is directed towards a consideration of whether or not a person is negligent in failing to take precautions against a risk of harm. It is therefore critical to identify the relevant risk: Annotated Civil Liability Act 2002 (Villa) at [1A.5B.060]. The risk must not be identified in terms which are too narrow: Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [26] per Meagher JA; Shaw v Thomas [2010] NSWCA 169 at [42] per Macfarlan JA.

The relevant risk having been identified, the first consideration in terms of s. 5B is whether the risk was foreseeable, or in other words, whether it was a risk of which the defendant knew or ought to have known: s.5B(1)(a).

The second consideration is whether the risk was "not insignificant": s.5B(1)(b). In Wyong Shire Council v Shirt [1980] HCA 12; (1981) 146 CLR 40 Mason J said (at 48):

The use of the term "not insignificant" in s. 5B(1)(b) imposes a more demanding standard than that described in Shirt, although the degree to which it does so is limited: Shaw (supra) at [44] per Macfarlan JA, Beazley JA (as her Honour then was) and Tobias JA agreeing.

In Benic v State of NSW [2010] NSWSC 1039 Garling J at [101] formulated the following approach to the determination of whether a relevant risk is "not insignificant":

If the conclusion is reached that the identified risk was foreseeable and not insignificant, the next consideration is whether a reasonable person in the defendant's position would have taken precautions against the identified risk: s. 5B(1)(c). In determining this question I am required by s. 5B(2) to consider, along with any other relevant matters:

Section 5B(2) provides a framework for deciding what precautions the reasonable person would have taken to avoid the harm. Consideration of s. 5B(2) involves weighing the factors set out in ss. 5B(2)(a) and (b) against those in ss. 5B(2)(c) and (d), subject to each of those factors being applicable in the particular circumstances of the case. Section 5B(2)(d) gives expression to the idea that some activities are more worth taking risks for than others: Waverley Council v Ferreira [2005] NSWCA 418 at [50]-[51]. Importantly, s. 5B(2) requires that I consider the probability that the harm would occur if care were not taken. It does not require proof that the harm would probably occur: Ferreira (supra) at [48]-[49].

In the event that negligence is established I must then consider the issue of causation. In that regard, s. 5D is in the following terms:

The effect of s. 5D(1) is to divide the determination of causation into two elements, namely factual causation and the scope of liability: Adeels Palace Pty Limited v Moubarak [2009] HCA 48 at [42].

With these matters in mind I turn to consider the respective positions of the parties.

The Council owed a non-delegable duty to its employees to ensure (inter alia) a safe system of work, and to take reasonable care for their safety to avoid exposing them to unnecessary risk of injury: Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 687-688 per Mason J. The employees to whom the Council owed a duty of care obviously included Mr Stephenson.

The submissions made on behalf of the Council suggested that the relevant risk should be identified as being the risk that an experienced and qualified pilot, flying a well maintained and airworthy helicopter, would abandon fundamental principles of good airmanship, fly into an area of great danger, and then collide with a power line. In my view, formulating the risk in those terms is too narrow. In my view, the risk in the present case was that the helicopter would impact with a power line and crash, thereby injuring or killing those on board.

The nature of the task which was being undertaken necessitated low level flying in an area close to the township of Parkes where overhead wires were present. The evidence of Mr Coppock, Mr Joyce and Mr Tyler establishes that one of the main risks of low level flying was the risk of coming into contact with power lines. The risk and danger of wire strikes was known to Mr Boyd. He described it as a "real issue". It was also known to Mr Sullivan. He described it as "important". Their respective assessments stemmed, at least in part, from their awareness of a previous accident in a nearby town which occurred as the consequence of a wire strike. In all of these circumstances, the risk was not insignificant and the Council, through Mr Boyd and Mr Sullivan, knew that to be the case. They also knew that if care was not taken, there was a high probability that harm would occur as the consequence of a wire strike. There was an equally high probability that if a wire strike eventuated, the consequences would be serious, if not catastrophic.

In my view, faced with these circumstances, the Council failed to take a number of precautions and, as a consequence, breached its duty of care to Mr Stephenson.

The Council's own safety policy statement expressly recognised that it was the responsibility of management to promote and maintain occupational health and safety. For present purposes, Mr Boyd and Mr Sullivan constituted the management of the Council. In the case of an aerial survey which was to involve low level flying, and which carried with it the risk of a wire strike, an assessment of that risk, and the implementation of an appropriate response, was fundamental to maintaining the safety of the Council's employees who were going to participate in the survey. Despite their awareness of that risk, no assessment of it was conducted by either Mr Boyd or Mr Sullivan. As a consequence, no appropriate response was formulated and put in place.

Mr Boyd and Mr Sullivan understood that a flight threshold of 500 ft would be imposed in accordance with what had been the case in the 2005 survey. Whilst this was understood, it was (as Mr Sullivan conceded) never stated. As a consequence, no flight threshold was imposed, be it as part of a risk assessment or otherwise. The imposition of a flight threshold was not a difficult task. An appropriate instruction could easily have been conveyed to Mr Thrupp, either directly or through Mr Stephenson (or for that matter through Mr Buerckner).

In my view, the imposition of a flight threshold was fundamental to an appropriate response to the identified risk. The Council, through Mr Boyd and Mr Sullivan, knew that the proposed survey activity was dangerous. They also knew that but for his participation in the 2005 survey, Mr Stephenson had no relevant experience in aerial weed surveys. The inherently dangerous nature of the activity which was being undertaken meant that if care were not taken, there was a high probability that harm would occur.

Further, the Council had available to it information which, although not entirely accurate, demonstrated the presence of overhead wires in the relevant area. It should have been obtained and passed on to Mr Thrupp.

There is nothing in the terms of s. 5B of the CLA which suggests that the standard of reasonable care requires the taking of fewer precautions against an acknowledged risk of harm simply because the activity which creates that risk has some social utility: Wilson v Nilepac Pty Limited [2011] NSWCA 63 at [130] per Tobias JA. There is an obvious social utility in undertaking aerial surveys for the purposes or detecting and eradicating noxious weeds. However that utility is not, in my view, sufficiently high to warrant a conclusion that a reasonable person would not have taken the precautions that I have identified.

For all of these reasons, I am satisfied that the Council breached its duty of care to Mr Stephenson by failing to access information available to it regarding the presence of wires in the relevant area, failing to conduct a proper risk assessment and failing to impose, as a condition of the flight, a height threshold of 500f.

That brings me to the issue of causation which, I have noted, involves two components. The first, a determination of factual causation, involves the application of the "but for" test. It requires proof that, but for the negligence alleged, the harm would not have been suffered: Strong v Woolworths Limited (2012) 285 ALR 420 at [18]. In Wallace v Kam [2013] HCA 19 the High Court adopted (at [15]) the statement of principle formulated by Allsop P (as his Honour then was):

I am not able to accept the submission advanced on behalf of the Council that any breach of duty which might be found did not cause the accident in the relevant sense.

The evidence of Mr Dolby was that in conducting aerial surveys of this nature, South West was, in effect, driven by a customer's requirements. I do not understand that to mean that South West, or more specifically Mr Thrupp, would have blindly agreed to any requirement which was sought to be imposed by a customer, irrespective of whether it compromised safety. However as Mr Dolby stated, it was the practice that the customer would make requests of the pilot to operate the flight in a particular way. Importantly, those requests included requests as to height levels. None of the qualified pilots who gave evidence in the proceedings suggested that if a direction of that nature was given, a pilot would not follow it.

In these circumstances, I am satisfied that had the Council implemented a requirement that the flight not descend below 500 ft, that requirement would have been met and Mr Thrupp would not have descended as he did.

The second consideration in terms of causation is that raised by s. 5D(1)(b), namely the scope of liability. In Monaghan Surveyors Pty Limited v Stratford Glen-Avon Pty Limited [2012] NSWCA 94, Basten JA observed (at [70]) that the normative enquiry under (b) would extend beyond what have been traditionally seen as elements of causation, to cover questions raised by intervening and successive causes, foreseeability and remoteness.

In my view, in terms of s. 5D(1)(b), it is no answer to say that the accident occurred in the course of the flight, and thus at a time when matters were beyond the control of the Council. That proposition overlooks the fact that the Council had the ability, prior to the flight departing, to control the height at which the survey would be conducted. There is nothing unacceptable or unjust, in these circumstances, in concluding that it is appropriate for the scope of the Council's liability to extend to the harm suffered.

For all of these reasons, I am satisfied that the Council's negligence was a cause of the accident.

I am also satisfied that the Council owed a duty of care to South West. Whilst the relationship between the Council and South West was, in general terms, one of hirer and operator, aspects of that relationship gave rise to a duty of care on the part of the Council. In particular, the Council retained some control over the conditions of the flight including, importantly, the height at which it was to be conducted. Mr Dolby's evidence makes this clear. The failure on the part of the Council to impose a height threshold was a breach of its duty of care to South West. That breach was causative of the accident.

As a provider of commercial air services, South West owed a duty of care to its passengers, including Mr Stephenson. Mr Dolby, the Chief Pilot of South West, was clearly aware of the risk of wire strike. It was the subject of a discussion with Mr Thrupp (albeit one which was completely inadequate for the purposes of risk management). The risk of a wire strike was, from the perspective of South West, not insignificant.

The Operations Manual with which South West was obliged to comply imposed a number of responsibilities on the Chief Pilot. One was to undertake an assessment of the task which was to be performed (in this case the aerial survey). In my view, a proper assessment required a precise determination of the work which was required to be carried out, the route which was to be undertaken, and the identification of any hazards. In the present case, the assessment consisted of nothing more than Mr Dolby's determination that Mr Thrupp was appropriately qualified to do the job of piloting the survey.

The Operations Manual also required Mr Dolby, as Chief Pilot, to conduct a briefing with Mr Thrupp prior to the flight being undertaken. Importantly, that briefing was required to address the boundaries of the area which was the subject of the survey, and identify any hazards or obstacles. No proper briefing was ever conducted.

Mr Dolby spoke with Mr Thrupp on two occasions before the flight departed. The first was on 30 January 2006 when, according to Mr Dolby, there was a discussion about "surveys and their hazards". The detail of what was discussed is not apparent on the evidence. Significantly, Mr Dolby was not involved in any of the arrangements which had been made with the Council in respect of the conduct of the survey. He therefore knew little, if anything, of the detail of those arrangements, including the precise area over which the aerial survey was to be performed. Whilst Mr Dolby might have spoken with Mr Thrupp about the "dangers of low level weed survey" he knew nothing of the detail of the survey which was to be undertaken. Speaking about such dangers is one thing. Actually assessing risk, and appropriately responding to it, is quite another.

The second discussion between Mr Dolby and Mr Thrupp was a matter of a couple of days after the first. On that occasion, according to Mr Dolby, they "rehashed a couple of points". Again, what was said is not able to be determined on the evidence. However, what is clear is that Mr Dolby did not have a map of the relevant area and did not direct Mr Thrupp to obtain one. In my view, a map was a basic necessity for an appropriate task assessment. Without it, the route could not have been ascertained and hazards could not have been identified. It may well be, as Mr Joyce said, that the discussions between Mr Dolby and Mr Thrupp, and the subsequent discussions between Mr Thrupp and Mr Stephenson before the flight departed, were sufficient in terms of time to discuss any relevant matters. However, what is important are the terms of the discussions. Discussing the dangers of low level weed surveys, and later "rehashing a couple of points" fell substantially short of what was required.

I have already made reference to the likelihood of the probability of harm eventuating if care were not taken, and its likely seriousness. These factors must have been known to an experienced aviator such as Mr Dolby. The failure to conduct a proper briefing was a breach of South West's duty to Mr Stephenson.

Mr Thrupp also owed a duty of care to Mr Stephenson as his passenger. I accept the submission made by counsel for South West that it is not open to infer that Mr Thrupp was negligent from either the fact of the collision or the position of the helicopter at impact. However, as a qualified and experienced pilot, Mr Thrupp must have known not only of the risk of a wire strike, but of the significant consequences which were likely to eventuate if that risk materialised. The obvious precaution which he should have adopted was to fly at an appropriate height above the power lines. The survey in question was capable of being conducted from a height of 300ft. Mr Thrupp descended to a height of approximately 120ft. For the purposes of conducting the survey, that was simply not necessary. In descending to the level he did, Mr Thrupp breached one of the fundamental principles of good airmanship, namely that a pilot should not descend to a level lower than that which is necessary. In doing so, he breached his duty of care to Mr Stephenson.

Had a proper assessment been conducted by Mr Dolby, and had a proper briefing been carried out with Mr Thrupp, the hazard posed by overhead wires in the area would have been identified and Mr Thrupp would have been on notice not to descend as he did. Had Mr Thrupp not descended as he did and struck the wire, the accident would not have occurred. I am satisfied that these respective breaches of duty were also causative of the accident.

For all of these reasons, I am satisfied that South West, through the acts and omissions of Mr Dolby and Mr Thrupp, was negligent. I am also satisfied that those acts and omissions were causative of the damage occasioned by the plaintiffs.

The principal submission advanced on behalf of EE was that it did not owe a duty of care to South West. In Caltex Refineries (supra) Allsop P (at [102]) noted the "rejection of any particular formula or methodology which will yield an answer to the question of whether there exists, in any given circumstance, a duty of care". His Honour proceeded to observe that such rejection had been "accompanied by the identification of an approach to be used to assist in drawing the conclusion whether, in novel circumstances, the law imputes a duty of care and, if so, in identifying its scope or content. His Honour continued:

His Honour made it clear that it was not compulsory, in any given case, to make findings about all of these factors. In addition, he specifically stated that the list was not exhaustive, but provided a "non-exhaustive universe of considerations of the kind relevant to the evaluative task of imputation of the duty and the identification of its scope and content" (at [104]). Basten JA observed (at [172]) that the multifactorial approach to the question of whether a duty of care existed was not to be treated as a "shopping list". Adopting this approach to the present case, a number of factors support the conclusion that EE owed a duty of care to South West.

Firstly, the harm which could arise as a consequence of a helicopter striking an overhead wire was foreseeable. Although there is no evidence that EE had actual knowledge of the fact that the survey was to be conducted, the area was regarded by EE as fire prone, a factor from which it must have known that low level flying in the area would be likely.

Secondly, the nature of the harm which would be likely to eventuate from that circumstances was obviously serious, if not catastrophic. As a provider of energy services EE must have been aware that this was the case.

Thirdly, although for the reasons already set out the Council and South West had some control over the avoidance of the risk of a wire strike, that control was not exclusive to them. In the present case, the wire struck by the helicopter was obviously difficult to see and was located adjacent to a roadway which, on the evidence was likely to be used by pilots for the purposes of navigating the area. The length of the span was such that there was a considerable distance between the supporting poles and there was nothing in the immediate vicinity of the crash site which indicated the presence of anything which might require the supply of power, and thus put a pilot on notice as to the possibility of the presence of wires.

In my view, a combination of these circumstances was such as to impose a duty upon EE, not only to aircraft owners but to all persons who could sustain damage as a consequence of a pilot flying low in the area of The Dungeons: Sheather v Country Energy [2007] NSWCA 179 at [73].

The risk of wire strike was not insignificant. Creating a "corridor" or "easement" by clearing vegetation was not sufficient. The evidence establishes that the wire struck by the helicopter was essentially invisible. The evidence also establishes that the placement of markers on the wire would have made them visible from 300m away, thus providing a pilot with an adequate opportunity of seeing them and taking evasive action so as not to collide with them. That, in my view, was an appropriate response to the risk. The failure of EE to implement it constituted a breach of its duty of care, to both South West and Mr Stephenson.

The breach was, in my view, a cause of the accident. On the evidence, the presence of markers on the wires would have enabled them to be seen from several hundred feet away.

In its defence of the Stephenson proceedings, South West raised a discreet issue concerning the application of the Civil Aviation (Carrier's Liability) Act 1959 (Cth) ("the CAA"). In short, it was submitted on behalf of South West that:

Counsel for the plaintiffs submitted, on several bases, that the CAA had no application to the facts of the present case, such that Mrs Stephenson and her children were entitled to damages in respect of both the CRA proceedings and the nervous shock proceedings. In the alternative, it was submitted that the nervous shock actions survived.

Before going to the specific statutory provisions, it is appropriate to set out a summary of the scheme that they create. The written submissions of South West set out such a summary and whilst there is an obvious issue as between South West and the plaintiffs in the Stephenson proceedings about whether the CAA applies to the facts of this case, counsel for the plaintiffs did not, as I understood it, take issue with South West's summary of the scheme. The following draws upon the written submissions of South West in this respect.

The scheme created by the CAA in relation to the liability of a carrier for damages has its origins in the Warsaw Convention to which Australia is a party. The Warsaw convention was amended by the Hague Protocol in 1955 and the amended convention is contained in Schedule 2 to the CAA. Subsequently, the Warsaw Convention was amended by the Montreal Protocol No 4 which is contained in Schedule 5 of the CAA, although that occurred after the accident which is the subject of these proceedings. The conventions have the force of law in Australia in relation to carriage by air to which they apply.

The Commonwealth Parliament has exercised the powers available to it to extend, by the provisions contained in Part IV of the CAA, an analogous regime to inter-state and other carriage by air within Australia, leaving it to the States to exercise their legislative power to fill the gap which would otherwise exist in relation to intra-state flights. That State legislative power has been exercised by the enactment of ss 4 and 5 of the Civil Aviation (Carrier's Liability) Act 1967 NSW ("the NSW Act"). Those provisions are set out in full below.

One of the purposes of the scheme is to provide certainty for passengers who may wish to bring an action for damages against a carrier. By virtue of the legislation, passengers are given the benefit of a statutory scheme without the associated trouble or expense of having to establish negligence against the carrier. As a consequence, if damage is sustained during the carriage of a passenger, and that damage falls within the scope of the scheme which is created, the CAA legislates that liability will be in favour of that injured passenger. In the event of the passenger's death, liability is legislated in favour of such of the passenger's family members as sustained damage by reason of his or her death. A form of strict liability is imposed in substitution for any civil liability of the carrier under any other law. The scheme limits the liability of the carrier, but also prohibits the carrier from contracting out of such liability.

In Swiss Bank Corporation v Brink's MAT Ltd [1986] QB 853, Bingham J (as his Honour then was) cited two fundamental purposes of the similar scheme operating in the United Kingdom. The first was to enable a plaintiff to recover damages even though, absent the legislation, he might have no cause of action which would entitle him to succeed. The second was to enable a defendant carrier to limit its liability by imposing a global limitation upon the total monetary sum which such carrier might find itself liable to pay.

Similar observations were made by Hope LJ in Sidhu and Abnett (known as Sykes) v British Airways Plc [1997] AC 430 at 447:

The right of a person to damages under Part IV of the CAA is extinguished if the proceedings are not brought within two years of the accident. There is no issue in the present case that the proceedings brought by Mr Stephenson and her children were commenced in the District Court on 7 January 2009, well after the expiration of that two year limitation period.

Section 4 of the NSW Act is in the following terms:

Section 5 of the NSW Act is in the following terms:

The terms "airline licence", "charter licence" and "commercial transport operations" are defined in s. 26 of the CAA as follows:

Part IV of the CCA encompasses ss. 26 to 41 and is headed "Other carriage to which this Act applies". Section 27 is in the following terms:

Section 28 of the CAA is in the following terms:

Section 31 prescribes monetary limitations in respect of a carrier's liability.

Section 35 makes provision for liability in respect of death and is in the following terms:

Section 37 expressly does not exclude certain liabilities and is in the following terms:

Counsel for South West submitted that the Stephenson proceedings were pre-empted by the CAA and extinguished upon the expiration of the 2-year limitation period. It was submitted that in these circumstances, by virtue of s. 34 of the CAA, the claims were "gone forever" and must be dismissed: Air Link Pty Limited v Paterson (2005) 223 CLR 783 per Kirby J at [101]. This, it was submitted, was because the limitation period imposed by s. 34 operated as a condition precedent to suit: Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; (2005) 223 CLR 251 at [50]-[51] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ.

Further, and specifically in terms of the nervous shock claims, counsel for South West submitted that on a proper construction of the provisions of the CAA, a claim for damages for nervous shock was not available. In the alternative, it was submitted that if such an action was available at all, it was one which fell within the provisions of s. 28, in which case it was extinguished by virtue of the operation of s. 34. In this regard, to the extent that the plaintiffs relied upon the decision of the majority in South Pacific Air Motive Pty Limited & anor v Magnus [1998] FCA 1107; (1998) 157 ALR 443 in support of their position, it was submitted that this decision was wrong and ought not be followed.

Counsel for the plaintiffs submitted that the legislative scheme had no application to the present case and that, as a result, both the CRA and the nervous shock claims survived. The primary submission advanced in support of that proposition was that Mr Stephenson was not a "passenger" within the meaning of the NSW Act.

In the alternative, counsel for the plaintiffs submitted that in the event that I reached the view that the legislation did apply, I should nevertheless conclude that the claims for nervous shock fell outside the operation of the CAA and survived at common law. It was submitted that the decision of the majority in Magnus supported that conclusion, and should be followed.

In Edwards and ors v Endeavour Energy and ors. (No. 4) [2013] NSWSC 1899 Johnson J considered the application of the NSW Act to a helicopter flight which had been conducted for the purposes of inspecting power lines. The helicopter struck a wire and crashed, causing catastrophic injury to one of those on board.

His Honour said (commencing at [105]):

In my view, those observations are directly applicable to the present case. The aerial survey being conducted by South West involved low level flying which was being conducted pursuant to its Air Operators Certificate. Even if Mr Stephenson was properly regarded as a passenger (and for the reasons discussed more fully below it is my view that was not) the helicopter was being used for an aerial weed survey, not for the carriage of passengers or cargo. It was not, therefore, engaged in commercial transport operations as defined.

For these reasons, I am satisfied that the work which was being undertaken fell outside the operation of the NSW Act, and thus Part IV of the CAA. It follows that the scheme described above has no application to the Stephenson proceedings insofar as they are brought against Southwest.

However, as I have previously noted, a further submission was made on behalf of the plaintiffs in the Stephenson proceedings based upon the proposition that the scheme did not apply because Mr Stephenson was not a "passenger" at the time. For the reasons set out below I am satisfied that this is the case. This constitutes a further reason why the CAA has no application to the Stephenson proceedings.

The word "passenger" is not defined in the CAA. Counsel for the plaintiffs drew my attention to ordinary English meaning of the word which, it was submitted, tended completely against the conclusion that Mr Stephenson was a passenger. Counsel for the plaintiffs pointed out that in its ordinary usage, a passenger is "someone who travels by some form of conveyance" (Macquarie Concise Dictionary 4th Edition 2006). The word "travel" means "to go from one place to another; make a journey".

In Fellowes (or Herd) v Clyde Helicopters [1997] AC 534, the respondents supplied helicopters for use by police in surveillance operations, as well as pilotage, maintenance services and full ground facilities. The duties of police officers on board the helicopters were to direct the surveillance operations and to give necessary instructions to the pilots, the pilots being solely responsible for flying the helicopters.

The deceased and two colleagues were carrying out their policing duties on board a helicopter when it encountered a snow storm and collided with a block of flats. The deceased received fatal injuries and his widow, acting on behalf of their four children and his mother, brought a claim against the respondents alleging common law negligence on the part of the pilot. The respondents maintained that their liability was governed by the Warsaw Convention as amended as applied by the Carriage by Air Acts (Application of Provisions) Order 1967.

Article 17 of the order was in the following terms:

In dismissing an appeal against an order entering judgment in favour of the respondents, it was held that since the deceased was on board the helicopter for the purpose of carrying out his police duties, and because he had no responsibility for the operation of the helicopter, he was properly regarded as a passenger.

Having cited the provisions of Article 17, Lord Mackay of Clashfern LC said (at 542):

In reaching this conclusion his Lordship considered the decision in Societe Mutuelle d'Assurance Aerien c. Veuve Gauvain (1967) 21 RFDA 436 in which a flying instructor was giving tuition to a trainee pilot. At the end of the lesson, he gave a demonstration of low flying in the course of which the aircraft struck an overhead wire. Both the instructor and the trainee pilot were killed. In considering this case his Lordship said (at 546):

Fellowes was considered in Disley v Levine t/as Airtrak Levine Paragliding [2001] EWCA Civ 1087; (2002) 1 WLR 785. In that case, the plaintiff was injured in a paraglider accident whilst undertaking tuition from the defendant in preparation for applying for her elementary pilot certificate. The Court concluded that she was not a "passenger" for the purposes of the relevant order. Henry LJ, having referred to the decision in Fellowes, observed (at [52]:

Buxton LJ, having referred to the passage from Fellowes at [292] above, said (at [67]):

In Edwards (supra) Johnson J referred to the decisions in Fellowes and Disley before concluding that Mr Edwards, a tree management officer, was not a passenger on the flight. His Honour said (at [132]:

In my view, the same applies to Mr Stephenson. It was part of Mr Stephenson's role to act as an observer, and to direct Mr Thrupp to particular areas which were required to be inspected for the presence of noxious weeds. His presence on the flight was essential to the conduct of the survey. He was not a passenger being conveyed from one place to another.

For all of these reasons, I am satisfied that Mr Stephenson was not a "passenger". This is a further reason why the NSW Act and the CAA do not apply to the Stephenson proceedings insofar as those proceedings are brought against South West.

A separate issue was raised as to whether, in the event that I were to conclude that the legislation did apply, the nervous shock claims brought by the plaintiffs would nevertheless be maintainable. In view of the fact that I heard argument on that issue, it is appropriate that it be considered, notwithstanding the views I have reached about the applicability of the legislation.

In short, counsel for the plaintiffs submitted that the decision of the majority in Magnus (supra) supported the proposition that claims for nervous shock were not caught by the operation of the CAA. Counsel for South West submitted to the contrary, and argued that the decision in Magnus ought not be followed.

It is therefore appropriate to commence consideration of this issue by a consideration of the decision in Magnus.

In Magnus, an aircraft ditched in the waters of Botany Bay shortly after taking off from Sydney Airport. Almost three years after the accident (and thus outside of the 2 year limitation period imposed under the CAA) the respondent instituted representative proceedings on behalf of a group of persons including passengers (who were students) and their parents.

The appellants had sought summary dismissal of the proceedings on the grounds that the claims had been extinguished upon the expiration of the two-year limitation period contained in s. 34 of the CAA. Three preliminary questions were stated for the consideration of the Full Federal Court, the third of which was expressed in the following terms:

It will be apparent from the terms of that question that the claims brought by the non-passengers in that case were akin to the nervous shock claims brought by the plaintiffs in the Stephenson proceedings.

The majority (Sackville and Hill JJ) concluded that Part IV of the CAA was not intended to be a complete code in respect of non-passengers who suffer loss or damage as a result of an air accident, and that s. 36 of the CAA was not intended to preclude claims by non-passengers seeking damages for nervous shock under the general law.

Sackville J formulated the second of those matters in the following terms (at 462):

His Honour said (at 479):

His Honour went on to say (at 480):

His Honour then said (at 487):

His Honour concluded (at 488):

Hill J categorised (at 460) the question as being one of construction of the CAA. He concluded (at 461) that there was nothing in the Act which suggested that it was intended to govern claims by non-passengers of the kind under consideration. His Honour continued (at 461):

Beaumont J dissented from the majority. His Honour said (at 446):

His Honour then said (at 458):

Counsel for South West submitted that the decision of the majority reflected a failure to read s. 36 in the context of the entirety of the CAA. It was further submitted that the majority had failed to give proper consideration to the decision Sidhu (supra) and that more recent decisions in Povey v Qantas Airways Limited [2005] HCA 33; (2005) 223 CLR 189, Agtrack (NT) Pty Limited v Hatfield (2005) 223 CLR 251 and Air Link Pty Limited v Paterson [2005] HCA 39; (2005) 223 CLR 283 all supported the construction of Beaumont J. It was further submitted that the decision of the Supreme Court of the United States in El Al Israel Airlines v Tseng 525 US 155 (1999) specifically approved and followed the decision in Sidhu and that the decision of the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited (2012) 260 FLR 37 provided further support for the dissenting judgment of Beaumont J.

In Sidhu an action was brought by passengers arising out of having been detained by foreign forces when a flight on which they were travelling had landed in Kuwait. The primary judge concluded that the plaintiffs had no rights other than those which arose under the relevant Convention and that any such rights that they may have had under that Convention had been extinguished after the expiration period of the limitation of two years. The House of Lords dismissed an appeal against that decision.

Lord Hope of Craighead said (at 441):

His Lordship concluded that a purposive construction should be applied in determining that issue, and concluded (at 447):

The decision in Sidhu was referred to by the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 260 FLR 37. In that case, the respondent sought to recover, from the applicant, compensation paid to an employee who was injured whilst a passenger on a flight conducted by the applicant. The Court (Allsop P, Macfarlan JA and Handley AJA) concluded that a right of action for contribution or indemnity was not covered by the Warsaw Convention and that the right of indemnity contained in s. 37 of the CAA was not subject to the two year limitation period. Allsop P said (at [96]):

Having referred to the judgment of Lord Hope in Sidhu his Honour went on to say (at [96]):

The decision in Povey stemmed from a claim by the appellant for damages under the CAA for injuries said to have arisen from Deep Vein Thrombosis caused by the conditions of an overseas flight on which he was a passenger. The principal issue was whether the claim which has been brought identified an "accident" within the meaning of Article 17 of the Warsaw Convention which created liability in the carrier "if the accident which caused the damage so sustained took place on board the aircraft ...". The High Court concluded (by majority) that the suffering of Deep Vein Thrombosis was not an "accident".

The majority observed (at [24]) that it was important that international treaties be interpreted uniformly by contracting states. That is consistent with the approach taken in Sidhu (at 444). Equally however, the Court identified the ultimate questions as being firstly, what did the relevant treaty provide, and secondly, how was that international obligation carried into effect in Australian municipal law. The Court did not consider the decision in Magnus.

Agtrack (NT) involved a claim by a widow of a passenger on a charter flight who was killed when the aircraft crashed. The statement of claim commencing the proceedings was filed within 2 years of the accident but made no reference to the CAA. After the expiration of the limitation period an application was made to amend the statement of claim to make it clear that Part IV of the CAA was relied upon. The carrier denied that the original pleading had brought an action under the CAA and contended that the claim had been extinguished. The High Court concluded that the facts alleged in the original statement of claim demonstrated that Part IV applied and that there was no requirement to specifically plead reliance upon Part IV.

The Court observed (at 257) that where Part IV imposes a liability in respect of the death of a passenger, the liability is expressed by s. 35(2) as being in substitution for any civil liability of the carrier under any law in respect of that death. Again the Court was not called upon to consider the decision in Magnus.

In Air Link a passenger on an intra-state flight in NSW claimed damages for injury suffered in the course of disembarking. The statement of claim which was filed did not invoke a right to claim damages under Part IV of the CAA. A defence filed after the expiration of the 2 year limitation period pleaded that the claim was subject to Part IV and that accordingly, the pleaded claim was not maintainable. The passenger was then granted leave to amend the statement of claim to rely exclusively upon Part IV. The High Court held that the original statement of claim was maintainable since the facts alleged demonstrated that Part IV applied and the action had been brought within the limitation period. Kirby J made two references to the decision in Magnus. The first (at 300) was in the context of the difficulty in the language adopted in the Warsaw Convention. The second (at 312) was in the context of the need to give a purposive approach to its construction. His Honour did not, in making those references, suggest that the decision in Magnus was wrong.

Finally, in El Al Israel Airlines a passenger brought proceedings against a foreign airline alleging that she sustained personal injury arising from a security search. The parties agreed that the circumstances giving rise to the claim did not fall within the ambit of the term "accident" within the meaning of the Warsaw Convention and the question which arose was whether the Convention correspondingly excluded the passenger from maintaining an action under another source of law (in this case, New York tort law). The majority concluded that recovery for personal injury suffered on board an aircraft, or in the course of any of the operations of embarking or disembarking, if not permitted under the Convention, was not permitted at all.

Justice Ginsburg, delivering the opinion of the majority, observed (at 671-672) that the cardinal purpose of the Warsaw Convention was to achieve uniformity of rules governing claims from international air transportation.

In Magnus Sackville J made reference (at 472-473) to the purposive approach to construction adopted in Sidhu and acknowledged (at 484) that such decision reflected the view of the House of Lords that the Warsaw Convention was intended to be a uniform international code which afforded certainty to carriers. In doing so, his Honour acknowledged that such factors suggested that the Convention should be read as excluding claims for nervous shock by relatives of passengers. However his Honour went on to say (at 485):

His Honour then pointed out (at 485):

The authorities to which counsel for South West referred all involved factual scenarios which were quite different from the circumstances of the present case. A number of them involved claims by passengers as opposed to non-passengers. None of them involved any consideration at all of the decision in Magnus.

In my view, the judgment of Sackville J in Magnus does not, as was suggested by counsel for South West, reflect an error in approach. His Honour expressly acknowledged the view, expressed by the House of Lords, that the Warsaw Convention was intended to be a uniform code which afforded certainty to carriers. His Honour also properly pointed out that the issue in that case was one which fell to be resolved according to construction of the CAA. I am not persuaded that his Honour's conclusion was wrong. In particular, I am not satisfied that the authorities to which I was referred support the dissenting judgment of Beaumont J. None of those authorities required consideration of this specific question.

Further, the additional reasoning adopted by Hill J in Magnus is in my view persuasive. His Honour acknowledged the weight of authority in support of the proposition that the Convention was intended to be a complete code with respect to passengers. However he cited (at 461) a number of practical examples of situations in which claims might be made against a carrier arising from circumstances falling outside the terms of any Convention. He concluded that such examples demonstrated that at least to the extent of those claims, it could not be said that the Conventions were intended to be a complete code in respect of non-passengers.

His Honour went on to say that although it may be possible to conclude that the Conventions and the CAA did constitute a Code in relation to claims by non-passengers in respect of the death or bodily injury of a passenger, the CAA was concerned with questions of contractual limitation of liability. A non-passenger receives no notice of such limitation.

For all of these reasons the decision of the majority in Magnus should be followed. Even if the CAA was otherwise applicable, the nervous shock claims would survive at common law in any event.

I have previously noted that the Council has brought proceedings against South West pursuant to s. 151Z of the Workers Compensation Act 1987. In written submissions counsel for South West sought that I allow a further opportunity to make submissions in respect of those proceedings when the parties had been given an opportunity to consider my primary findings as to liability. There also remains the question of the apportionment. In these circumstances I make the following orders: