Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Limited (No 2)

On 19 December 2014 I delivered judgment in these proceedings in relation to issues of liability: [2014] NSWSC 1758.

The timetable which I set at that time for the provision of any further submissions as to damages and apportionment was varied by the parties. I have now received such submissions and set out below my conclusions as to damages and apportionment.

Ingrid Stephenson has brought proceedings against:

Those proceedings seek:

Cross Claims have been brought in those proceedings:

Mrs Stephenson was born on 17 June 1959 and is currently 56 years of age. She married her husband on 3 September 1983. There were two children of the marriage.

In her affidavit Mrs Stephenson recounted the circumstances in which she learned of her husband’s death on 2 February 2006. She was first alerted to the accident by her son at about 10:30am on that day. She made an inquiry of the local police who were unable to provide any information. When she telephoned the Council she was informed that somebody would speak with her. She described herself as having a sense of disbelief and feeling numb throughout her body.

Later in the day police contacted her by telephone and advised her that three people had died in a helicopter accident and that there were no survivors. She said that she was visited by the Mayor of Parkes who said that he wished to speak with her about her husband’s leave entitlements. Mrs Stephenson stated that the Mayor offered little support or expression of sympathy. She expanded upon these matters in her oral evidence.

Mrs Stephenson described herself as being “on automatic” between the date of the accident and the date of her husband’s funeral. She described feeling an overwhelming sense of loss, and feeling anxious about the future. She said that she was unable to travel along the road which ran through the area where the accident occurred. She said that although her General Practitioner Dr Whitmill had attempted to medicate her, she was concerned that she may use prescribed drugs to kill herself.

Mrs Stephenson explained that since the accident she found it difficult to be with people. She said she did not wish to speak with anyone, and did not wish people to enquire about her well-being, about anything to do with the accident, or indeed about anything at all. She said that she experienced difficulties sleeping and had been taking sleeping tablets prescribed by her General Practitioner since the time of her husband’s death.

Mrs Stephenson gave evidence that she had been referred to a psychologist, Ms Andrea Grom. When asked whether or not that treatment had assisted her, Mrs Stephenson said that she continued to see Ms Grom and that such treatment “takes away some of the fear of not knowing where I am”.

Mrs Stephenson confirmed that her weight had increased since the accident. When asked why this had occurred she answered:

Mrs Stephenson also said that she moved house after the accident, principally because she could not undertake the maintenance that was required at her previous premises. She explained that her husband had attended to all home maintenance prior to his death.

Mrs Stephenson said that she was not able to engage in any social activity and that her life consisted of little else other than work. She explained that she had retained “two very good friends” but had otherwise “managed to get rid of other people”. This, she explained, was her choice, because she did not want to talk to anyone. Her reluctance to talk to people had extended to deliberately doing her shopping at a time when other people were unlikely to be at the shopping centre.

Mrs Stephenson explained that she and her late husband had intended to travel overseas in the future. Twelve months after her husband’s death, and partly to ensure that she was not in Parkes at the time of the anniversary of the accident (and on her husband’s birthday), Mrs Stephenson travelled to New Zealand with a friend. She described that trip as “horrible”. She also explained that in consultation with her psychologist, she had set a goal that if she was able to reach five years after the accident without “doing anything” to herself she would reward herself with a trip overseas. She achieved that goal and travelled to Italy. She described the trip as “something that (she) shouldn’t have done”

Mrs Stephenson was cross-examined briefly. There were questions put to her concerning aspects of her employment history which I have set out more fully below. None of the evidence I have summarised above was the subject of any substantive challenge.

Mrs Stephenson was examined by Dr Clarke, Consultant Forensic Psychiatrist, for medico-legal purposes on 6 November 2008. Dr Clarke diagnosed a pathological grief reaction and thought her prognosis was poor.

Dr Whitmill, Mrs Stephenson’s General Practitioner, provided a report of 22 October 2008. He confirmed that Mrs Stephenson had been his patient for a period of 20 years, and that he had referred her to Andrea Grom, Psychologist and had prepared a mental health plan for her. Dr Whitmill expressed the view that Mrs Stephenson had suffered an “extreme loss” following her husband’s death.

Ms Grom provided a report of 4 December 2008 in which she confirmed that she had first seen Mrs Stephenson in August 2007. Ms Grom expressed the view that Mrs Stephenson was suffering from a chronic grief reaction and that she satisfied the criteria for a diagnosis of depression.

Mrs Stephenson was examined by Dr Phillips at the request of her Solicitors, and by Dr Lewin at the request of the Solicitors for the Council. Both Dr Phillips and Dr Lewin are Forensic Psychiatrists. Each provided a series of reports, however their joint report dated 4 June 2013 provides a succinct summary of the following matters about which they were agreed:

Prior to the accident Mrs Stephenson was employed as a receptionist at a motel in Parkes. She earned $522.56 per week but had been offered (and accepted) an increase to $650.00 net per week. She said that due to the symptoms experienced after her husband’s death, she was not able to work in a position which involved close interaction with members of the public. She therefore ceased working as a receptionist.

Following the accident, Mrs Stephenson obtained employment as a clerk in a Real Estate Agent’s office. Although she was not initially required to have any contact with the public, that situation changed when she was moved to the front office of the business. She said that she was unable to tolerate that contact and was forced to leave that employment. Documentation provided by that employer indicates that Mrs Stephenson worked between about 12 and 33 hours per week. Her inability to have contact with the public represents a manifestation of the avoidance symptoms diagnosed by Dr Phillips and Dr Lewin.

In August/September 2007 Mrs Stephenson was employed by Telescope Tyres in Parkes. Once again that position necessitated contact with members of the public and as a consequence, Mrs Stephenson was forced to leave that employment. Documents provided by that business establish that Mrs Stephenson was employed in a casual clerical position. She worked between 5 and 18 hours per week.

On 7 November 2007 Mrs Stephenson obtained employment at the Commonwealth Bank in Forbes, a township near Parkes. Part of the attraction of that employment was that it was removed the necessity for Mrs Stephenson to have contact with members of the Parkes community. Mrs Stephenson remained in that employment until August 2009. She left because she was told that she would be transferred to the Parkes branch of the bank which would have involved contact with residents of that town.

In September 2009 Mrs Stephenson commenced part time employment as a clerk at Parkes Leagues Club, working three days each week. She has since progressed to full time employment. Her position involves no interaction with the public. Mrs Stephenson also confirmed that she had been invited to return to her previous employment at the Coachman Hotel doing the same work that she had done before. She explained that she could not return to that employment because of the public exposure and the necessity to interact with members of her local community.

I have noted (at [21] above) that Mrs Stephenson earned a sum of $650.00 at the date of her husband’s accident. Mrs Stephenson’s net yearly earnings as at the time of the accident were therefore $33,800.00. On the basis of her taxation returns which are in evidence her net earnings for the years since the accident were as follows:

Since 2010 Mrs Stephenson’s income has exceeded the amount that she was earning prior to the accident. Accordingly, her claim for past economic loss is limited to the period up to 30 June 2010.

I have no reason to question the veracity of any of the evidence given by Mrs Stephenson. The loss of her husband in the accident was an obviously traumatic event. It left her with significant ongoing psychological sequelae which have impacted on almost every facet of her life. There has been some improvement in her symptoms and her condition generally. However, her distraught state when giving evidence before me leaves me in no doubt that, as the joint report of Dr Phillips and Dr Lewin stated, residual symptoms remain more than 9 years after the accident. Although pre-morbid vulnerability factors were identified, both experts agreed that Mrs Stephenson’s identified psychiatric illness was triggered by her husband’s death.

Having regard to the whole of the evidence, I assess damages for non-economic loss at 45% of a most extreme case, a sum of $257,500.00.

The submissions of counsel for Mrs Stephenson sought an allowance of $2,000.00.

It was pointed out in submissions made on behalf of the Council that in a statement of particulars filed on 10 May 2013, Mrs. Stephenson claimed a total of $56,542.50. The Council nominated a figure of $45,065.38 as being appropriate. I award that sum by way of past out of pocket expenses.

In their initial reports Dr Phillips and Dr Lewin expressed differing views about the necessity for Mrs Stephenson to undertake further psychological treatment. They also expressed differing views about the need for further medication. In their joint report, they agreed that psychological treatment should continue for 2 to 3 years. They also agreed that medication was no longer a vital part of Mrs Stephenson’s treatment regime. The contents of the joint report constitute the most up to date evidence of the need for future treatment.

In these circumstances I accept the submission made on behalf of the Council and I award damages under this head in the sum of $7,392.00.

I have set out the evidence as to Mrs. Stephenson’s employment history, and her earnings. Counsel for Mrs Stephenson accepted that by the 2011 financial year Mrs. Stephenson’s earnings exceeded what she had earned prior to the accident. The period of loss is therefore limited to the period between the date of the accident and 30 June 2010. Based upon her pre-accident earnings of $650.00 per week, Mrs Stephenson’s losses for that period amount to $27,777.00 and I award that sum. An additional amount of $3,055.47 is also awarded in respect of superannuation.

Counsel for Mrs Stephenson claimed a “buffer” of $75,000.00 in respect of future economic loss. In support of that claim, counsel cited the fact that Mrs Stephenson has been required to relinquish past positions of employment as a consequence of being unable to interact with members of the public. It was submitted that I would be satisfied that this “is again likely, resulting in periods of unemployment”.

There is certainly evidence that in past years Mrs Stephenson has experienced avoidance symptoms of the kind identified. Dr Phillips and Dr Lewin agreed that if Mrs Stephenson’s job required her to have regular and frequent interaction with the public she may not cope, but that there was no other impairment to her capacity for employment. Interaction with the public is not a requirement of Mrs Stephenson’s present employment. There is no indication that this is likely to change. There is no evidence of any likelihood of Mrs Stephenson leaving her present employment. In these circumstances I am not able to accept the submission advanced on Mrs Stephenson’s behalf. Accordingly, I make no award in respect of future economic loss.

There is evidence that Mrs Stephenson paid the sum of $36,988.00 for advice and representation in relation to the Coronial inquest into her husband’s death. Whilst it is clear that this money was expended, it is in my view too remote to form part of any award of damages: Skyways Pty Limited (In liq.) v Commonwealth of Australia (1984) 57 ALR 657 at 689.

Mr Stephenson was born on 4 February 1962 and died on 2 February 2006, two days short of his 44th birthday. He was survived by Mrs Stephenson and their two children, Jay and Natalee. At the time of Mr Stephenson’s death, Jay was 21 years old and was employed. He was not dependent upon his father. Natalee was 18 years old. She had completed a course in Beauty Therapy. Although at the time of her father’s death Natalee was dependent upon him, I am satisfied that this would not have continued for any appreciable length of time. In these circumstances Natalee should not be regarded as a dependent for the purposes of the claim under the CTR Act.

As at the date of his death, Mr Stephenson earned a net weekly wage of $826.00, which included superannuation. As previously noted, Mrs. Stephenson earned a net weekly wage of $650.00. This represents 85.7% of her husband’s earnings. Table 9.1 in Assessment of Damages for Personal Injury and Death (4th. Edition) sets out the method of calculation which I adopt as follows.

In terms of past loss of dependency:

I therefore assess past loss of dependency in a sum of $145,917.00.

In terms of future dependency, Mr Stephenson would, as at the present date, have had a further 14 years of his working life remaining (assuming a retirement age of 67). I assess future loss of dependency as follows:

Finally, the evidence of Mrs Stephenson was that her late husband performed home maintenance services which she valued at $300.00 pw. The evidence was somewhat imprecise, both as to the services performed and the value ascribed to them. The evidence does not permit me to make an award in respect of the loss of services.

Jay Stephenson has brought proceedings seeking damages for nervous shock against:

Cross Claims have been brought in those proceedings:

Mr Stephenson is now 30 years of age. He spent the entirety of his childhood living with his parents and sister in Parkes. He described his family as being a very close knit one. He spoke, in particular, of his late father’s involvement in, and support of, his various sporting activities as a child. He said that each year the family would holiday in Queensland. He also went on yearly camping trips with his father.

Mr Stephenson said that he was told of the accident by telephone. He attempted to visit the accident site but in the course of making his way there he was telephoned by his mother and he returned home. He explained that the real impact of what had occurred came when a person from the Coroner’s office telephoned his home seeking his father’s dental charts. He said that he felt angered by the lack of information regarding the accident. He described feeling a sense of devastation, wondering whether he was in a nightmare from which he might eventually emerge. As time went on, he experienced a growing sadness at the realisation that his father had been killed in the accident.

Mr Stephenson took one month of leave from his employment following his father’s death. He agreed that this has been his only period of absence from work. He said that he thought constantly about his father and felt generally depressed. As a result, he saw his General Practitioner Dr Whitmill on several occasions although he did not engage in any formal treatment.

Mr Stephenson said that following his father’s death he began “drinking hazardously”. His smoking also increased. He rejected his mother’s suggestions of counselling. He continues to experience difficulties with sleep. He has nightmares in which he has visions of his father’s accident. He described himself as being constantly depressed and easily irritated. He has “bad days” where he does not wish to speak with others.

When giving oral evidence, Mr Stephenson stressed that his relationship with his late father was “very good” and was one which saw them socialise and play sport together. He described it as a “strong loving relationship”. He described undergoing a “massive change” in his life because he had lost his best friend when his father died. He explained that when he returned to work at the Forbes Bowling Club after his father’s death he stayed for a period of time but didn’t like it because “everything sort of changed”. One of the principal difficulties was that he used to play lawn bowls with his father at that club. As a consequence, being there created bad memories for him.

Mr Stephenson was cross-examined about his consumption of alcohol. He said that his frequency of alcohol consumption had increased from drinking one night per week to drinking up to seven nights per week, and that he would drink between half a carton and one carton of beer on each of those occasions. When asked why he did that he said that it made him feel better. He explained that there had been a consequent increase in his weight. He confirmed that he continued to have problems with sleeplessness.

Other than sporadic consultations with his General Practitioner Mr Stephenson has not sought medical treatment. When asked why this was so, Mr Stephenson explained that he “thought I just needed to suck it up and be a big man…” He said that “it would be good” to get some treatment at some time in the future.

Mr Stephenson was examined by both Dr Phillips and Dr Lewin whose various reports are in evidence. Their joint report sets out the following matters about which they are agreed:

At the time of the accident Mr Stephenson was employed at the Forbes Bowling Club as a greenkeeper. As I have previously noted (at [48] above) his total absence from work following his father’s death was limited to a period of one month. Mr Stephenson resigned from his employment at the Forbes Bowling Club and thereafter obtained employment with the Parkes Shire Council as a Weeds Inspector. He explained that he had felt a strong need to assume a role previously undertaken by his father.

In June 2009 Mr Stephenson moved to Sydney where he obtained work as a greenkeeper/groundsman with the Blacktown City Council. On 5 October 2011 he commenced employment with the Narromine Shire Council as the leader of a team directed to the inspection of noxious weeds.

I accept the evidence of Mr Stephenson as to the effect of the depressive reaction that he developed following his father’s death. That effect was severe. It was, at least in part, a consequence of the close relationship he enjoyed with his father.

At the same time, I am satisfied on the basis of the joint report of Dr Phillips and Dr Lewin that Mr Stephenson’s depressive condition was in remission by 2013, at which time there was no psychiatric diagnosis.

I award damages for non-economic loss at 30% of a most extreme case, which equates to a sum of $131,500.00.

The submissions made on behalf of Mr Stephenson state that no claim for past out of pocket expenses is made. The submissions on behalf of the Council point out that a claim was made for $677.00 but that in all of the circumstances a sum of $541.00 is appropriate. I award the latter sum.

A claim is made for alcohol counselling as well as grief counselling. There was agreement between Dr Phillips and Dr Lewin that drug and alcohol counselling was warranted, although there was no evidence as to the frequency of that treatment or its cost. The report was silent on the question of grief counselling.

In circumstances where the medical evidence supports the conclusion that Mr Stephenson’s depressive reaction has remitted and that he has no specific psychiatric disorder, and having regard to the fact that Mr Stephenson has reached that point without any medical treatment at all, I am not satisfied that the evidence supports an award for future out of pocket expenses in respect of grief counselling.

I am satisfied that some alcohol counselling is warranted. Bearing in mind the absence of any evidence as to the cost of such counselling and the period over which it should be undertaken, I award a sum of $3,000.00.

Counsel for Mr Stephenson sought the award of a “buffer” of $150,000.00 in respect of past and future economic loss. This was said to be reflective of the “likely health complication (Mr Stephenson) will suffer due to the alcohol abuse”.

I have noted that Mr Stephenson’s past absence from work was limited to a period of one month immediately following his father’s death. The particulars quantify that claim as $1,350.00 I award that sum for past economic loss.

In terms of future economic loss, Dr Phillips and Dr Lewin agreed (consistent with Mr Stephenson’s work history since the accident) that there was no impairment to his capacity to work. The evidence does not satisfy me that Mr Stephenson is likely to suffer health complications as a result of his alcohol consumption which will impact upon his work. I therefore make no award for future economic loss.

Natalee Stephenson has brought proceedings seeking damages for nervous shock against:

Cross Claims have been brought in those proceedings:

Ms Stephenson is currently aged 27. She completed Year 11 in 2004 following which she left school. In 2005 she undertook a course at the International Beauty Institute in Orange. She completed that course approximately one month before her father’s death. Ms Stephenson explained that she was “obsessed” with beauty products as a child, and that her father always volunteered himself to be the “model”. She said that at the time of her father’s death, she had wanted to pursue a career in the beauty industry.

Ms Stephenson said that she was at home on the day of the accident when her mother arrived unexpectedly at about 11am. She was aware that her father had been in a helicopter on that day. Her mother told her that there had been an accident. Ms Stephenson scanned media reports in the hope of finding news about what had occurred. When she was unable to do so she went outside and locked herself for a period of time in her partner’s car.

Ms Stephenson explained that in the days following the accident she felt a need to give the appearance that she was coping with what had occurred. She said that she worried constantly about the welfare of her mother and brother, but that even at that early stage she formed a plan to leave Parkes as soon as possible. As I have outlined further below, she in fact left Parkes shortly after her father’s funeral.

Ms Stephenson married on 2 January 2010. She separated from her husband in May 2011. She attributed her separation to the fact that after her father’s death she could not share her feelings with her husband. She said that she felt “helpless, hopeless and useless”.

Ms Stephenson gave evidence of a number of ongoing symptoms from which she had suffered since her father’s death. She referred to being troubled by a fear that others close to her would die. She said that she had suicidal thoughts and that on occasions she thought that it would be easier if she were dead. She said that she felt depressed most of the time and was troubled by feelings of helplessness, hopelessness, uselessness, self-pity and guilt. She said that she slept poorly. She explained that on the occasions on which she did manage to get to sleep she would invariably wake quickly, leaving her exhausted in the mornings. She said that she had occasional nightmares.

Ms Stephenson explained that her standards of personal grooming had deteriorated since her father’s accident. She said that she no longer felt the need to look after herself. She said she had a tendency to eat in a “random and chaotic manner”, as a consequence of which her weight had increased by approximately 40 kilograms.

Despite her qualifications as a beauty therapist, Ms Stephenson explained that she had become disinterested in that work. She expressed a reluctance to socialise. She also explained that she has suffered severe headaches since her father’s death and has been put to an average cost of $30.00 per week in analgesic medication.

Ms Stephenson agreed in cross-examination that she had sought medical advice about headaches in 2006, and that she had told at least one doctor in September of that year that her headaches had been ongoing for at least 12 months before that (which would obviously pre-date her father’s death). She said that on those occasions it had been suggested to her that she was suffering from migraine. However, Ms Stephenson stressed that the headaches from which she had commenced to suffer after her father’s death were different to those from which she had previously suffered. She described her current headaches as a “daily pain”. She agreed that she had a problem with dependence upon codeine medication and confirmed that she wished to undertake treatment for that dependence.

There are a number of medical reports in evidence. The joint report of Dr Phillips and Dr Lewin sets out the following matters of agreement:

Shortly after her father’s funeral Ms Stephenson moved to Dubbo where she variously worked as a beauty therapist, in retail positions and in a Real Estate Agent’s office. In August 2011, she moved to Nyngan and began employment as a clerk with Bogan Shire Council.

Ms Stephenson said that it had always been her intention to undertake work as a beauty therapist and that she had a particular interest in make-up artistry. She said that she had tried to obtain work as a beauty therapist but had been given what she described as the “standard response”, to the effect that she did not “have the right appearance”. She explained that she construed this as a reference to her increased weight. She said that her increase in weight was brought about by the fact she “just stopped caring” about her appearance. She said that all of these factors combined to make her feel worthless.

As is the case with her mother and brother, I have no difficulty accepting the evidence of Ms Stephenson as to the nature and extent of the depressive reaction she suffered following her father’s death. She remains symptomatic.

I assess damages for non-economic loss on the basis of 35% of a most extreme case, which equates to $200,000.00.

The submissions of counsel for Ms Stephenson indicate that no claim is made for past out of pocket expenses. It was submitted on behalf of the Council that if I was satisfied that Ms Stephenson’s complaint of headaches was different to what she had suffered prior to the accident, an award slightly in excess of $2,000.00 was appropriate.

Although there is evidence that Ms Stephenson suffered from headaches prior to the accident, I accept her evidence that those from which she commenced to suffer following her father’s death were different. I award a sum of $2,000.00 under this head of damage.

The joint report of Drs Phillips and Lewin recorded agreement that the interventions most likely to benefit Ms Stephenson were ongoing supportive measures from her General Practitioner, and from a drug and alcohol service. There was no view expressed in the joint report as to the duration of such treatment. It was agreed that psychological counselling was unlikely to be of benefit as long as Ms Stephenson used codeine on a daily basis.

In the circumstances I award a sum of $5,000.00 under this head of damage.

A claim for both past and future economic loss was made on the basis that Ms Stephenson could not work as a beautician. There is no evidence of comparable earnings of a beautician. The evidence given by Ms Stephenson of applications she had made for such employment was extremely general. The reality is that Ms Stephenson has been consistently employed since her father’s death. Dr Phillips and Dr Lewin agreed that there was no evidence of any incapacity in terms of employment and that it was unlikely that Ms Stephenson’s depressive condition would interfere with such capacity in the future.

In these circumstances I make no award for past or future economic loss.

The Council has brought proceedings pursuant to s. 151Z of the Workers Compensation Act 1987 (“the WCA”) arising from the deaths of Mr Stephenson and Mr Buerckner in the accident. In each case the Council has brought the proceedings against South West.

In the proceedings arising from the death of Mr Buerckner, Cross Claims have been brought:

It is noted that other proceedings brought by Mr Buerckner (who was the third passenger in the helicopter and who was killed) were settled.

In the proceedings brought by the Council against South West arising from the death of Mr Stephenson, Cross Claims have been brought:

Section 151Z of the WCA is in the following terms:

There is evidence of the compensation payments made by the Council in favour of the two deceased workers. However, a number of submissions were made by senior counsel for South West in support of a conclusion that the Council was not entitled to succeed in either proceedings.

It was firstly submitted that in light of my finding of liability against the Council, and on a proper construction of s. 151Z of the WCA, the Council was not entitled to succeed in either proceedings. It was submitted that an employer whose negligence contributed to the occurrence from which the right to compensation arose is prevented from having the benefit of the statutory indemnity for which s. 151Z provides.

Specifically in respect of the proceedings brought by the Council arising out of the death of Mr Stephenson, senior counsel for South West submitted that any right of the Council to recover, from South West, payments of compensation made in favour of Mr Stephenson stemmed from s. 5(1) of the Law Reform Miscellaneous Provisions Act 1946 (“the LRMPA”). It was submitted that the Council sought to enforce that right by the fourth cross claim issued in the proceedings commenced by Mrs Stephenson and that in these circumstances, the Council’s proceedings against South West pursuant to s. 151Z of the WCA should be dismissed.

Senior counsel for South West advanced two further submissions specifically in respect of the proceedings brought by the Council in respect of the death of Mr Buerckner.

Firstly, it was pointed out that Mr Buerckner’s wife had brought proceedings against EE which had been settled. It was submitted that:

It was submitted that in these circumstances the Council was required, in order to prove its case against South West, to establish that no right of repayment had accrued under s. 151Z(1)(b). It was submitted that in circumstances where there had been a settlement of the proceedings brought by Mrs Buerckner, and where that settlement had been approved by the Court, the Council had failed to prove an essential fact necessary to assert the right to the indemnity under s. 151Z(1)(d). It was submitted that accordingly, the proceedings brought by the Council against South West arising out of the death of Mr Buerckner must fail on this specific basis.

Secondly, it was submitted that the Council had failed to prove those facts which would allow the Court to be satisfied of the matters set out in s. 151Z(2)(e)(i) and (ii). It was submitted that this was an additional basis upon which the proceedings brought by the Council in respect of the death of Mr Buerckner should fail. No submission was made that the proceedings brought by the Council arising out of the death of Mr Stephenson should fail on a similar basis.

Further, and in respect of both proceedings brought by the Council, it was submitted on behalf of South West that on a proper construction of the provisions of the Civil Aviation (Carriers’ Liability) Act 1959 (Cth) (“the CAA”) a limitation period of two years applied to proceedings commenced by an employer under s. 151Z of the WCA against a carrier who is liable under Part IV of the CAA. It was submitted that both of the proceedings brought by the Council were commenced after that time and that this was a further basis upon which both proceedings should dismissed.

In advancing that submission, senior counsel for South West candidly acknowledged that such submission would, at first instance, be rejected in light of the decision of the Court of Appeal in United Airlines Inc. v Sercel Australia Pty Limited [2012] NSWCA 24; (2012) 289 ALR 682.

Finally, it was submitted on behalf of South West that in the event that it was determined that the Council should succeed in either or both of the proceedings, the statutory cap in terms of any amount which was able to be recovered by the Council included interest which formed part of the indemnity. In these circumstances, it was submitted that the Council had no separate entitlement to an order for interest.

A number of submissions were made on behalf of the Council in response to those of South West. Firstly, it was argued on behalf of the Council that the submission based upon the construction of s. 151Z failed to have regard to a number of recent authorities which established that a finding of negligence against an employer was not a bar to recovery, by that employer, under s. 151Z of the WCA.

Secondly, it was submitted that the Council’s right of recovery was not limited to recovery under the LRMPA and that the WCA provided a statutory right of recovery.

Thirdly, it was submitted that the factual bases of the submissions of South West which are summarised in [96] and [97] above had not been pleaded and that in those circumstances it was not open to South West to advance such submissions. Further, it was argued that it had not been established that the Council had an entitlement to recover compensation payments under s. 151Z(1)(b).

Fourthly, it was submitted that a concession had been made in respect of the notional damages which Mrs Buerckner would have recovered had she pursued her claim for damages arising from the death of her husband.

Fifthly, it was submitted that the submissions made on behalf of South West regarding the CAA were contrary to the decision in United Airlines and should be rejected.

Sixthly, it was submitted that the Council’s right to interest arose from the provisions of s. 100 of the Civil Procedure Act 2005 (NSW). It was submitted that the claim for interest was a “stand alone” claim to which the Council was entitled.

In support of the submissions advanced as to the construction of s. 151Z of the WCA (summarised in [93] above) senior counsel for South West relied upon the decision of the High Court in Public Transport Commission of New South Wales v J Murray-More (NSW) Pty Limited [1975] HCA 28; (1975) 132 CLR 336. In that case, a worker had sustained a compensable injury by reason of negligent acts of both the respondent employer and another tortfeasor (the appellant). The respondent had paid compensation pursuant to the Workers Compensation Act 1926 (“the 1926 Act”) and had then sued the appellant seeking an indemnity under s. 64 of the 1926 Act in respect of that compensation.

Section 64 of the 1926 Act was in the following terms:

At first instance, the respondent succeeded, the Court concluding that it was entitled to an indemnity notwithstanding that it had, by its negligence, contributed to the relevant injury. That decision was affirmed on appeal.

The High Court unanimously allowed the appeal and concluded that the right to an indemnity which was conferred by s. 64(1)(b) of the 1926 Act was conferred only upon an employer who had no liability to the worker in relation to the compensable injury (other than a liability to pay statutory compensation). Senior counsel for South West submitted that in these circumstances, because I had previously found that the negligence of the Council was a cause of the injury from which the right to compensation arose, the Council was not entitled to an indemnity and that it could not succeed in either of the proceedings brought under s. 151Z of the WCA.

In J Murray-More Barwick CJ said the following:

His Honour went on to say (at 341):

His Honour then said (again at 341):

Gibbs J (as his Honour then was) said (at 349):

His Honour went on to conclude that s. 64(1)(b) of the 1926 Act did not give, to an employer, a right to an indemnity against a stranger when the injury of the worker was caused by the negligence of both parties.

Prima facie, the decision in J Murray-More supports the proposition advanced on behalf of South West. However, there are a number of more recent authorities in which the issue has been further considered.

In I & J Foods Pty Limited v Bergzam Pty Limited (1997) 14 NSWCCR 486 the respondent had employed a truck driver who was injured by a moving forklift in the course of loading items onto his truck. The respondent made compensation payments to the truck driver and then sued the appellant to recover the amount of those payments pursuant to s. 151Z(1)(d) of the WCA. At trial, the sole issue was whether the negligence of the respondent had contributed to the worker’s injury. The trial judge concluded that the respondent had not been relevantly negligent. At the hearing of the appeal it remained the position of the parties that the sole issue was whether the negligence of the respondent had contributed to the worker’s injury.

However in a supplementary written submission which was made after the hearing of the appeal had concluded, the respondent contended that a (then) recent amendment to the provisions of s. 151Z of the WCA operated to overcome the effect of the decision in J Murray-More, as a consequence of which the respondent was entitled to a partial indemnity from the appellant even if its negligence had contributed to the injury from which the right to compensation arose. The amendment upon which the respondent relied was that which inserted the words “or is entitled to take” into s. 151Z(2)(a), as it now appears.

Giles AJA (as his Honour then was and with whom Priestley JA and Simos AJA agreed) traced the history of s. 151Z before saying the following:

His Honour went on to say:

A similar approach was taken in J Blackwood and Son v Skilled Engineering [2008] NSWCA 142.

In that case Campbell JA said at [44] and following:

In Milich v Council of the City of Canterbury (No 2) [2012] NSWSC 450 Davies J noted (at [5]) that one of the matters which arose for consideration was whether, in circumstances where a worker had taken proceedings against both his employer and a third party, and where it had been determined that both the employer and the third party were negligent, an indemnity was available to the employer under s. 151Z of the WCA.

His Honour concluded (at [8]) that an indemnity was available to the employer notwithstanding that it had been sued and had been found to be negligent. His Honour proceeded to cite four matters in support of that proposition:

In my view, each of the decisions in I&J Foods, J Blackwood and Son and Milich tend against the submission advanced on behalf of South West as to the construction of s. 151Z of the WCA. Each supports the proposition that an employer has a right of indemnity under s. 151Z, irrespective of whether it is a tortfeasor.

Senior counsel for South West also relied upon the decision of the Court of Appeal in CSR Timber Products Pty Limited v Weathertex Pty Limited [2011] NSWCA 49; (2011) 83 NSWLR 433. In that case, a worker had contracted a disease of gradual onset between 1965 and 2004, in respect of which he received compensation payments from his most recent employer. That employer brought proceedings for indemnity under s. 151Z of the WCA against the company which had employed the worker over an earlier period during which the disease had been contracted. The claim was defended on the basis that the previous employer fell within the meaning of the term “the worker’s employer” as it appeared in that provision and therefore the claim should fail. That defence was rejected. An appeal to the Court of Appeal was dismissed.

Meagher JA, with whom Bathurst CJ and Hoeben JA agreed, said (commencing at [33]):

Senior counsel for South West submitted that the observations of Meagher JA, particularly at [33], recognised that nothing in s. 151Z entitled the Court to depart from the construction of s. 64 of the 1926 Act which was adopted by the High Court in J Murray-More and which, it was submitted, applied to s. 151Z of the WCA. In my view, the difficulty with that submission is that in CSR the question of whether or not an employer who was adjudged to be a tortfeasor remained entitled to a limited indemnity under s. 151Z did not arise for consideration. In my view, there is nothing in the judgment of Meagher JA in CSR which suggests that the judgments of Giles AJA in I&J Foods and Campbell JA in J Blackwood and Son should not be followed. As I have outlined, those decisions were applied by Davies J in Milich. There is no reason to depart from them.

It follows that in my view, the submission made on behalf of South West regarding the construction of s. 151Z of the WCA fails.

Further, the judgment of Meagher JA in CSR, and in particular his Honour’s reference (at [35]) to s. 151Z giving effect to the statutory scheme, is at odds with the proposition that the Council’s rights are limited to those conferred under the LRMPA. I do not accept that submission which was advanced on behalf of South West.

As to the first of the submissions made on behalf of South West specifically in relation to the proceedings brought by the Council arising from the death of Mr Buerckner, and leaving aside the question of whether the basis of that submission ought to have been specifically pleaded, it is certainly the case that Mrs Buerckner brought proceedings against EE. Those proceedings were discontinued: Buerckner v Essential Energy [2013] NSWSC 640. Whilst it is not in issue that amounts of compensation were paid by the Council, an entitlement on the part of the Council to recover those payments is not established by the fact that proceedings were commenced by Mrs Buerckner against EE and were later discontinued. Further, a concession was made on behalf of South West in these proceedings that had Mrs Buerckner successfully brought proceedings against South West for damages arising from the death of her husband, the amount of damages that she would have recovered, not including damages for nervous shock, would not have been less than $400,000.00. In these circumstances, having regard to the amount of compensation paid by the Council (about which there is no issue) the Council has established its entitlement to recovery.

As expressly acknowledged by senior counsel for South West, the submissions made regarding the construction of relevant provisions of the CAA run contrary to the decision in United Airlines. In that case, the respondent’s employee was injured when he was hit on the head by an object which became dislodged shortly after the aircraft on which he was travelling had landed. Section 37 of the CAA was in the following terms:

Article 29 of the Warsaw Convention was in the following terms:

The respondent made payments of compensation to its employee and sought to recover those payments from the appellant under s. 151Z(1)(d) of the WCA. The primary issue was whether such an action was time barred by the operation of Article 29.

Allsop P (with whom Macfarlan JA and Handley AJA agreed) concluded (at [77]) that the right of indemnity in the CAA was not subject to the 2 year limitation period. In light of that decision, and as anticipated by senior counsel for South West, the submission that the right of action of the Council under s. 151Z is extinguished after a period of 2 years must be rejected.

It follows that in my view, the Council is entitled to succeed in each of the proceedings brought under s. 151Z of the WCA.

Finally, the payment of interest is not a payment made under, or pursuant to, s. 151Z(1)(d) of the WCA. Rather, it is a statutory claim to reimburse an employer who has paid compensation for being deprived of its money, pending payment of that compensation by the tortfeasor: Kwanchi v Kocsis Pty Limited (1996) 40 NSWLR 270 at 276 per Clarke JA (Priestley JA and Handley JA agreeing). In these circumstances I am satisfied that the Council is entitled to the payment of interest on the judgment sum in each case.

South West (as the first-named plaintiff) and Country Connection Airlines Pty Limited (“Country Connection”) (as the second-named plaintiff) brought proceedings against EE seeking damages in respect of:

In those proceedings it was pleaded that:

In those proceedings, EE brought a Cross Claim against the Council.

Further, in the proceedings brought by the Council against South West seeking recovery of compensation payments made in favour of Mr Stephenson, a Cross Claim brought by South West sought damages in respect of (i) to (iv) in [139] above. In that Cross Claim it was pleaded that South West was:

In the first of his affidavits, Mr McKenzie stated that as at the date of the accident, MFI was owned by Country Connection and operated by South West. He confirmed this when cross examined. He also confirmed that MFI was insured by Country Connection and that Country Connection paid the relevant insurance premiums.

Mr McKenzie also stated that a claim was made for indemnity under the insurance policy for MFI following the accident and that a sum of $570,000.00 was paid by the relevant insurer.

It is not open to both Country Connection and South West to recover damages for the loss of the helicopter. The loss of the helicopter is the loss of Country Connection as the owner. The loss of profits is the loss of South West as the operator.

A number of expert reports were tendered in relation to these claims as follows:

Both Mr Hunt and Kahler gave evidence at the hearing. Some of the evidence given by Terrence McKenzie, a Director of South West, also bears on these issues.

In his affidavit of 29 September 2011, Mr McKenzie stated that there was nothing salvageable from the wreckage of MFI. In their joint report Mr Morgan and Mr Hopkins agreed that the value of helicopter at February 2006 was $670,000.00. That sum is recoverable by Country Connection in the proceedings brought against EE.

In his first affidavit of 29 September 2011 Mr McKenzie stated that it was necessary to modify SLT to enable it to carry out the agricultural operations previously performed by MFI. He said that for that purpose, it was necessary to fit SLT with additional equipment as follows:

Mr McKenzie further stated that there were associated labour costs of $8,720.00 to fit that equipment.

The joint report of Mr Morgan and Mr Hopkins noted that the Trimflite equipment was installed in SLT on 18 April 2006 and that the installation of such equipment was necessary for the purposes of bringing the specifications of SLT to those of MFI. In the first of his reports Mr Hunt nominated the cost as being $7,138.00. The only real issue in relation to this aspect of the claim arose out of an assertion made by Mr McKenzie in a second affidavit of 20 May 2013 that the item in fact cost $18,000.00. No suggestion to this effect was made in either of the reports of Mr Hunt and no further supporting evidence was obtained. South West is entitled to recover a sum limited to the amount of $7,138.00 nominated in Mr Hunt’s first report.

In support of this cost, both Mr McKenzie and Mr Hunt relied upon an invoice said to relate to the supply of an “Auto Cal II hydraulic kit”. The sale price was nominated as $4,995.00. The invoice was dated 11 August 2005, which was some six months prior to the accident. Mr McKenzie ultimately conceded that no Auto Cal II system was installed on SLT because that installation required the unlocking of certain software. This is consistent with the joint report of Mr Morgan and Mr Hopkins which states that there is no log book entry for the installation of an Auto Cal system.

In these circumstances this aspect of the claim brought by South West cannot be maintained.

In his affidavit Mr McKenzie referred to the necessity to install a filter kit on SLT. The cost of the kit was said to be $16,279.00. In cross examination Mr McKenzie conceded that he had made an error and that such kit was already installed on SLT. Accordingly, this part of the claim brought by South West cannot be maintained.

The joint report of Mr Morgan and Mr Hopkins noted that because Sacksafoam is an ancillary piece of equipment, there would be no log book entry for its installation. The report noted the cost of that equipment as $2,641.00.

In the first of his reports, Mr Hunt annexed an invoice dated 21 November 2002 for the supply of Sacksafoam. That invoice predates the accident by more than three years. The same invoice was annexed to the affidavit of Mr McKenzie. When cross examined, Mr McKenzie agreed that this invoice did not relate to the cost of Sacksafoam to cover what was lost as a consequence of the destruction of MFI in the accident. When asked whether he had a relevant invoice, Mr McKenzie effectively stated that he would have to make further enquiry. No further evidence was forthcoming. This aspect of the claim brought by South West cannot be maintained.

Installation costs of the various items for which claims were made were said by Mr McKenzie to total $8,720.00. The same figure was nominated in the first of the reports of Mr Hunt. That figure obviously relates to the entirety of the expended costs. For the reasons outlined above I have determined that only the cost of Trimflite can be maintained. There must be some adjustment to any award made in respect of installation costs to reflect these circumstances. There is no evidence before me which establishes the precise cost of installing Trimflite. I have allowed half of the amount claimed, namely $4,360.00.

Although Mr Hunt and Mr Kahler reached different conclusions regarding the quantum of the claim for loss of profits, their joint report (at paragraph 3) expressed concurrence as to the general approach that should be adopted with a view to calculating that loss. That general approach involved essentially two steps:

The joint report of Mr Hunt and Mr Kahler noted that their different conclusions as to quantum arose due to differences with respect to:

Both experts agreed that MFI generated a gross income of approximately $1,051,022.00 during the period August 2003 to January 2006. In his first report, Mr Hunt calculated the loss of gross income based upon a monthly average generated during that period, which he calculated as 29 months (but which he later conceded should have been 24 months).

Mr Kahler on the other hand expressed the view that it was more appropriate to base any assessment of the loss of gross income upon income derived by MFI during the seven month period immediately prior to the accident. Mr Kahler expressed the view that the approach adopted by Mr Hunt failed to have regard to the fact that the gross income generated by MFI in the 7 months immediately prior to the accident was 50 lower than it had been in the previous 12 months.

Mr Kahler noted, in particular, that during the financial year ending 30 June 2005 (i.e. the financial year prior to the accident) MFI derived income of $579,841.00 from “Wet Hire” (a reference to fire fighting work). However, in the 7 months immediately prior to the accident, MFI derived only $2,600.00 from that work. Mr Kahler said that Mr Hunt had failed to take account of that alteration in income. In these circumstances, it was Mr Kahler’s opinion that the period adopted by Mr Hunt as the basis of his calculations was not properly reflective of the income which was likely to be earned, and that the 7 month period leading up to the date of the accident represented a far more accurate yardstick by which any loss of profits should be calculated.

In the course of his evidence, Mr McKenzie was taken to aspects of Mr Kahler’s opinion. He agreed that in the 7 month period leading up to the accident the income derived by MFI was significantly lower than had previously been the case. He also agreed that drought conditions had impacted upon the amount of work available and that his had led to a “big slowdown” in work between mid 2005 through into 2006.

That evidence was generally consistent with that given by Mr Dolby, who said that 2005 was a “bumper year” (particularly in terms of aerial spraying work) and that thereafter there was a general change in aviation conditions which resulted in many operators being forced to actively look for work. He said that as a consequence of all of these matters, income “dropped off”. He agreed that the significant drop in available agricultural work extended beyond the date of the accident and into 2007.

Against this background, Mr Hunt was cross-examined about the methodology he had adopted for the purposes of his calculations. He conceded that he did not give consideration to what the relevant business conditions would have been after the accident in February 2006 but had used the past period leading up to that time to perform his calculations. He agreed that if the business conditions which had prevailed in the 7 months prior to the accident had continued after the accident and into 2007, it would affect his opinion and would operate to reduce the loss of profits that he had calculated. Mr Hunt also conceded that the occurrence of a number of natural disasters in 2004 and 2005 contributed to, or perhaps even accounted for, the spike in income of South West during that period. He agreed that such a spike in income had not been reflected in previous years. He also agreed that it was not reflected in the 7 month period leading up to the accident.

In my view, the approach of Mr Kahler represents a far more reliable basis upon which to calculate any loss of profits suffered by South West. Mr Hunt conceded that there was a particular spike in income during the 24 months period upon which he based his calculations. In circumstances where such increase in income did not occur prior to 2004/2005, and was not repeated in the 7 months leading up to the accident, the use of a 24 month period prior to the accident upon which to base a calculation of loss of profits is, in my view, artificial.

MFI generated a gross sum of $203,502.00 during the 7 months prior to the accident, a monthly average of $29,071.00. Mr Kahler adopted a margin of 20% for the purposes of calculating gross profit. The amount of gross profit per month generated by MFI in the 7 month period prior to the accident was therefore $5,814.00.

South West claims loss of profits over a period of 12 months following the accident. That period was adopted by Mr Hunt for the purposes of his calculations, although such adoption appears to have emanated from his instructions, as opposed to being based upon any specific evidence. Mr Kahler calculated losses over 4 months. This was on the basis that the modifications to SLT to bring it up to those of MFI had been completed within that time.

Mr McKenzie stated in his affidavit that the modifications to MFI took approximately six months to complete. In evidence, he accepted that the period was four months.

In his second affidavit, Mr McKenzie said that he recalled “numerous requests” being made to South West following the accident for services which could have been provided by MFI piloted by Mr Thrupp but which, because of the accident, could not be provided. When cross-examined in relation to these matters, Mr McKenzie was exceedingly vague. He was unable to give any specific evidence of the details of any such requests. No records were produced which recorded any particulars of any such requests. According to Mr McKenzie all of the requests were passed on to another operator. No representative of any other operator was called to give evidence of having received the benefit of any referral from Mr McKenzie, or from any other person within South West.

Mr McKenzie also asserted that in order for South West to resume its agricultural operations following the accident, it needed an experienced pilot to replace Mr Thrupp. He gave evidence that he had “spoken to” people about the availability of replacement pilots. When pressed, he was unable to provide any real detail about who he contacted, when such contact was made, or what (if anything) resulted from it.

The evidence of Mr McKenzie, both in terms of lost work and the efforts to obtain a replacement for Mr Thrupp was vague and imprecise in the extreme. Neither issue was referred to in the first of his affidavits. Both appear to have arisen as something of an afterthought. I do not accept Mr McKenzie’s evidence in either respect.

In all of these circumstances I am satisfied that any loss of profits of South West should be limited to the four month period following the accident, at a figure of $5,814.00 per month, making a total of $23,256.00.

South West has made a claim in respect of costs associated with the investigation of the accident, and the subsequent coronial inquest. Whilst it is evident that South West was represented at the inquest, I have already concluded that the costs of such representation are too remote to be awarded as part of the damages in the proceedings brought by Mrs Stephenson (at [37] above). The position is no different in terms of South West. The costs of investigation are even more remote. This part of South West’s claim for damages must therefore fail.

An issue arises as to whether the claims brought by Country Connection and/or South West are apportionable claims within the meaning of Part 4 of the Civil Liability Act 2002 (NSW) (“the CLA”). I set out Part 4 in its entirety:

The claim brought by Country Connection against EE for damages for the loss of the helicopter, and the claims brought by South West for rectification costs and loss of profits, are each apportionable claims within the meaning of s. 34(1)(a) of the CLA. In these circumstances s. 35 and 36 of the CLA become operative.

I have already made findings in respect of the various acts and omissions which were causative of the accident. It follows from those findings that for the purposes of each of the claims brought by Country Connection and South West that EE, South West and the Council are each concurrent wrongdoers within the meaning of s. 34(2) of the CLA: Reinhold v New South Wales Lotteries Corporation (No. 2) (2008) 82 NSWLR 762; [2008] NSWSC 187 at [19]-[20].

I have also found that in flying the helicopter Mr Thrupp breached his duty of care and that such breach of duty was causative of the accident. Mr Thrupp is not named as a party to any proceedings. However in light of my previous findings, Mr Thrupp is also a concurrent wrongdoer for the purposes of Part 4 of the CLA. As Mr Thrupp’s employer, South West is vicariously liable for his negligence.

It follows that for the purposes of each of the apportionable claims under Part 4 of the CLA there are four concurrent wrongdoers, namely:

It was submitted by counsel for the members of the Stephenson family that having regard to my findings on liability, there should be an apportionment in these proceedings of 50 percent as to South West and 50 percent as to the Council.

Senior counsel for South West submitted that in apportioning responsibility, it was necessary to make a comparison as to the culpability, and the causal potency, of the acts of the relevant parties. It was submitted that a question of apportionment was one of fact and that in these circumstances it was not permissible to elevate observations about the facts of other cases into principles of law. In other words, it was submitted that issues of apportionment must necessarily be determined according to the facts of the case in question, and not according to the facts of, or approach taken in, other cases.

Senior counsel submitted that the findings against South West as to liability essentially involved findings of failures attributable to:

It was submitted that the finding of negligence against Mr Dolby amounted to a finding that he had failed to carry out a proper briefing and assessment and that although his various omissions fell short of the standard required, his conduct did not have the causal potency of other impugned conduct of other parties.

In terms of the findings made in respect of Mr Thrupp, it was submitted that there was no suggestion that Mr Thrupp had approached his task recklessly. Reliance was also placed on the fact that Mr Thrupp was not flying contrary to any direction, to any normal survey practice, or to his relevant Government approvals. It was submitted that Mr Thrupp was flying in an area where a single and dangerous wire was present which would have been able to be detected had it been appropriately marked.

It was submitted that the essence of the finding against the Council was that no process of risk management was carried out, and that the care of its employees was left to an assumption that the flight threshold would be 500 feet. Reliance was placed on the fact that nothing had been done to ensure that such a threshold was fixed, and that it had been merely assumed. It was submitted that the council’s answer to that failure, namely that such a direction would not have prevented the accident from occurring, was contrary to the evidence and wholly unsupportable. It was submitted that the evidence allowed for only one conclusion, namely had Mr Thrupp been directed as to a flight threshold, he would have complied with it. It was submitted that such a conclusion was irresistible when the reputation of Mr Thrupp was taken into account.

In terms of the position of EE, it was submitted that a marker ball on the wire would have revealed its presence to a pilot on both a high level flyover and on the approach that Mr Thrupp had taken in the lead up to the accident. Senior counsel for South West relied upon the evidence that a marker of that nature would have made the wires “incredibly more visible” and would have avoided the accident.

In light of all of these considerations, it was submitted that any apportionment should reflect the fact that the culpability and causal potency of the acts and omissions of both the Council and EE far outweighed those of South West. It was submitted that the appropriate apportionment was:

The primary submission advanced on behalf of the Council was that notwithstanding my factual findings, it should be completely indemnified by South West. In the alternative, the Council submitted that any liability apportioned to it should not exceed 10 percent.

It was submitted that any apportionment exercise was one which involved the Court considering the facts, assessing the extent of the breach by each tortfeasor, and then making a comparison of the consequences with a view to determining what was just and equitable. It was submitted on behalf of the Council that there were two important underlying factors in such an exercise. Firstly, it was submitted that the fact that the Council owed a non-delegable duty to its employees did not impact upon the question of apportionment, and did not, of itself, call for any greater degree of responsibility. Secondly, and in light of the findings I reached regarding the conduct of Mr Boyd and Mr Sullivan, it was emphasised that the task of apportioning responsibility did not involve any punitive element, and that what was required to be taken into account was the whole of the conduct which was causative of the accident.

It was submitted on behalf of the Council that the act which had overwhelmingly caused the accident was the dangerous flying by Mr Thrupp, and in particular his action in descending to a level which was not only dangerous but which was, for the purposes of the conduct of the survey, completely unnecessary. It was submitted that irrespective of any direction given by the Council as to the altitude at which the flight was to be operated, it remained incumbent upon Mr Thrupp not to fly as low as he did.

It was further submitted that the Council had placed significant trust in South West, a commercial aviator experienced in the conduct of weed surveys necessitating low level flying, to competently and safely convey its employees. It was emphasised that South West was a specialised and licensed aviation contractor which held itself out as having particular expertise in the conduct of aerial weed surveys.

It was submitted that the breaches of duty found against the Council were properly categorised as “system failures” which resulted in undue reliance being placed on South West for the safety of the Council employees. It was submitted that the negligence of EE was of a similar nature, namely a failure to identify and warn of the presence of the wires which were situated in a potential flight path for low flying aircraft, and which were difficult to detect if they were unmarked. It was submitted that bearing in mind the nature and scope of the undertaking, the responsibilities of EE and the Council, and the nature of the respective breaches on the part of EE and the Council, the degree of responsibility apportioned to each of them should be the same.

It was submitted that a comparison of the culpability and causal potency of the omissions of Mr Dolby and Mr Thrupp pointed to South West having far greater responsibility for the accident. It was submitted that by virtue of their respective positions, both Mr Dolby and Mr Thrupp necessarily had an appreciation, and indeed a direct knowledge, of the risk of low level flying and the associated risk of wire strike. It was submitted that such appreciation and knowledge went to the very core of the operations of South West, and was one of the fundamental platforms on which it was permitted to take members of the public on helicopter flights.

It was submitted that in all of these circumstances, the failures on the part of South West were substantially more serious than those of the Council or EE. The Council pointed, in particular, to the following:

Senior counsel for EE submitted that the appropriate apportionment was:

It was submitted on behalf of EE that the objective of any apportionment exercise was to ensure that there was appropriate contribution from, or apportionment between, the participants in the activity which had caused the relevant loss.

It was submitted that there were “system failures” on the part of each of the Council, South West and EE. In terms of the Council, it was submitted that the failure was constituted by (inter alia) the failure to impose a flight threshold and that had such a threshold been imposed, the accident would not have occurred. It was submitted that this failure was to be viewed in the context of the Council having engaged a specialist aviation contractor.

It was submitted that South West was also responsible for a system failure, constituted by a failure to conduct a proper briefing with Mr Thrupp. It was submitted that had such a briefing taken place, there would have been a specific assessment of the risk of a wire strike, and that the issue of the altitude at which it was necessary to perform the task would have been addressed and a flight threshold imposed. It was also emphasised that the flying of a helicopter was a skilled and specialised task which required rigorous training and licensing, and that in flying the helicopter as he did, Mr Thrupp breached a number of principles of good airmanship.

It was further emphasised that the failures of South West had occurred in circumstances where it held an aviation licence, was a commercial aviator, and provided low level flight services for reward. It was submitted that in comparison, the only finding of negligence against EE arose from its failure to mark the power lines.

In all of these circumstances it was submitted that the preponderance of culpability was on South West, to a lesser extent on the Council, and to a lesser extent again on EE.

The making of an apportionment between parties of their respective shares in the responsibility for damage involves a comparison of culpability, and a comparison of the relative importance of the acts of the parties in causing the damage. The whole of the conduct of each negligent party must be subjected to a comparative examination: Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALJR 492.

In the present case, although it may be appropriate in one sense to describe some of the failures to which reference has been made as “system failures,” the adoption of such shorthand runs the risk of obscuring the precise nature of an omission or omissions which was or were causative of the accident.

I accept that the task of apportioning responsibility does not incorporate any punitive element. However in determining the position of the Council, the fact remains that the failures of Mr Boyd and Mr Sullivan are amongst those which must be the subject of comparative examination.

The failures on the part of the Council, through Mr Boyd and Mr Sullivan, were many and varied. There was a failure to ascertain the height threshold for the flight, with both Mr Boyd and Mr Sullivan proceeding upon an assumption, made without discussion or enquiry, that it would be the same as it had been on a previous occasion. There was an associated failure to impose a threshold, either by giving a direction to Mr Stephenson or giving a direction to Mr Thrupp. There was a failure to conduct a risk assessment. There was a failure to access data held by the Council which demonstrated the presence of overhead wires in the area which was the subject of the survey.

Significantly, these failures occurred in circumstances where Mr Boyd and Mr Sullivan were both aware of the risk of wire strike. The Council had, through Mr Boyd and Mr Sullivan, the capacity to impose a flight threshold. Accordingly, the Council had the capacity to exercise some control over the conditions in which the flight was conducted. Had an appropriate direction been given, there is no reason to think that Mr Thrupp would not have adhered to it. Viewed in this way, although the omissions of Mr Boyd and Mr Sullivan might be described as systemic failures, they were nevertheless substantial.

In terms of South West, there was no risk assessment carried out by Mr Dolby. That failure occurred in circumstances where Mr Dolby knew that the survey would involve low level flying. As an experienced aviator, Mr Dolby must have known of the risks involved in such flying. In particular, he must have known of the risk of wire strike. However of even greater significance is the fact that South West, through Mr Thrupp, had complete control of the flight as it was being conducted. Mr Thrupp acted dangerously in flying as he did. There was no need for him to have done so.

Moreover, the failures on the part of Mr Dolby and Mr Thrupp occurred in circumstances where South West was a commercial aviator who represented itself to be experienced and competent in carrying out surveys of this nature. Although the failures of the Council were significant, the fact remains that the Council was entitled to rely upon the experience of South West. Although, as I have said, the Council had some capacity to control the conditions under which the flight was conducted, that capacity necessarily arose before the flight departed. The ultimate control of the flight conditions rested with South West, through Mr Thrupp.

The wire struck by the helicopter was, on the evidence, difficult to detect. That difficulty could have been overcome by marking it in some appropriate way which would have rendered it visible. The omission to do so, whilst a cause of the accident, was of less causal potency than the acts and omissions of either the Council or South West. In particular, EE had no responsibility to conduct any risk assessment in respect of the flight, and it had no control over the flight, either before it departed or whilst it was being conducted. In these circumstances, the culpability of EE must be substantially less than that of either South West or the Council.

In my view, and although it is not determinative, the fact that South West had control over the flight in the way I have described it is of particular significance. Its capacity to exercise control was far greater than that of the Council, by virtue of the fact that it had that capacity whilst the flight was being conducted, as opposed to before it departed. As I have noted, EE had no such capacity at all.

Moreover, the acts and omissions of Mr Dolby and Mr Thrupp arose in the context of South West being a commercial aviator who held itself out to be a licenced and competent provider of low level aerial services. They also arose in circumstances where both Mr Dolby and Mr Thrupp knew of the risks of low level flying generally, and of wire strike in particular.

In these circumstances, the conduct of South West was of greater causal potency than that of either the Council or South West. In light of my findings regarding the failures on the part of Mr Boyd and Mr Sullivan I am unable to accept the submission that the Council should be completely indemnified by South West. However, South West must bear a greater portion of responsibility than either of the remaining two parties.

For these reasons, I apportion responsibility for the accident as follows:

I make the following orders: