Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor (No. 4)

Judgment

1. [1]

   JOHNSON J: The present proceedings arise out of a helicopter crash at St Albans on 4 April 2006. Mr Simeon Edwards, a person being carried on the helicopter at the time of the crash, suffered head injuries and very significant brain damage as a result of the crash. The helicopter was badly damaged. A range of proceedings have resulted whereby various parties seek damages for personal injury or loss, or orders by way of contribution or indemnity, arising from the events of 4 April 2006.

2. [2]

   At the time of the crash, the helicopter was being utilised to inspect power lines in advance of the 2006-2007 bushfire season. The helicopter was owned and operated by Precision Helicopters Pty Limited ("Precision"). The inspection was being undertaken as part of a contractual arrangement between Precision and Integral Energy, now Endeavour Energy ("Endeavour"). Mr Edwards was an employee of Endeavour. The crash resulted when the skid of the helicopter caught a catenary wire owned by Telstra Corporation Limited ("Telstra"). Claims by the Edwards Family

1. [3]

   In 2008, proceedings for damages were commenced by Statement of Claim filed on behalf of Simeon Edwards (by his tutor Julie Patricia Edwards, his wife).

2. [4]

   Proceedings for damages for nervous shock were also brought by Julie Patricia Edwards and the children of the marriage, Connor James Edwards and Rubyanna Belle Edwards (then with Ms Edwards as tutor in each case).

3. [5]

   On 16 September 2011, Harrison J approved a compromise as between Mr Edwards and other parties to the litigation, and noted that Mr Edwards discontinued the whole of the proceedings which he had initiated.

4. [6]

   On 7 May 2012, I commenced to hear the proceedings brought by Ms Edwards and the Edwards children, together with related proceedings which I will mention shortly. In the course of the hearing, the Court was informed that Ms Edwards had settled her claim with other parties.

5. [7]

   The hearing of the claims by the Edwards children proceeded before me. As a result of an order made by Harrison J on 16 September 2011, the hearing of their claims was confined to the question of liability only. The question of the children's entitlement to damages for mental harm and the question of assessment of damages are to be determined separately, in the event that liability is established.

6. [8]

   The claim by the Edwards children is a claim for nervous shock against four Defendants:

   1. (1)

      Endeavour;

   2. (2)

      Precision;

   3. (3)

      Telstra; and

   4. (4)

      Sydney West Local Health Network trading as Westmead Hospital ("Westmead Hospital").

7. [9]

   The claim by the Edwards children against Westmead Hospital arises from the admission of Mr Edwards to that hospital on 4 April 2006 as a result of injuries sustained in the helicopter accident. On 16 April 2006, Mr Edwards suffered a hypoxic event as a result of an admitted breach of duty of care by Westmead Hospital. Given the settlement of the claim by Ms Edwards and the limited issue for determination of the children's claims, it will not be necessary to make any findings in this judgment concerning the hypoxic event. It is sufficient to note that such an event occurred, which serves to explain the addition of Westmead Hospital as a party to the litigation.

8. [10]

   On 12 March 2013, an Amended Statement of Claim was filed by leave to reflect the fact that Connor James Edwards had turned 18 years, and it was no longer necessary for his claim to be advanced by a tutor. Claim by Endeavour

9. [11]

   Endeavour commenced proceedings against Precision and Telstra being a claim for indemnity under s.151Z(1)(d) Workers Compensation Act 1987 ("WC Act"). Claim by Precision

10. [12]

    Precision filed a Statement of Claim bringing proceedings against:

    1. (1)

       Endeavour for damages for breach of contract with respect to the damage to the helicopter and loss of its use, and with respect to its liability (if any) for Endeavour's claim under s.151Z WC Act and/or the claim by members of the Edwards family;

    2. (2)

       Telstra for indemnity or contribution with respect to claims by members of the Edwards family;

    3. (3)

       Westmead Hospital for indemnity or contribution with respect to claims by members of the Edwards family.

11. [13]

    Endeavour cross-claims against Precision alleging that an indemnity clause in the contract with Precision entitled Endeavour to a complete indemnity for any liability it has arising from the helicopter crash.

12. [14]

    As part of the pretrial case management process, I made orders on 3 April 2012 that the various related proceedings be heard concurrently and that evidence in one be evidence in the other proceedings.

13. [15]

    The hearing of the various associated proceedings commenced before me on 7 May 2012. Mr KW Andrews of counsel appeared for Ms Edwards and the Edwards children. Mr RS McIlwaine SC and Mr BAP Kelleher of counsel appeared for Endeavour. Mr RS Ashton and Mr DA Lloyd of counsel appeared for Precision. Mr DJ Fagan SC and Mr J Downing of counsel appeared for Telstra.

14. [16]

    At the ensuing hearing, a substantial volume of documentary evidence was tendered. A limited number of witnesses were called to give evidence, and few of them were cross-examined at any length.

15. [17]

    The witnesses who were called to give evidence were as follows: (a) Witnesses called for Endeavour - (i) Peter Inman (owner of the property at Lower Macdonald where the helicopter crash occurred) (T94); (ii) Susan Inman (owner of the property at Lower Macdonald where the helicopter crash occurred) (T95-96); (iii) Steven Collins (the Endeavour inspector on board the helicopter at the time of the crash) (T103-114); (iv) Johannes Langerak (an Endeavour employee involved in the April 2006 inspection, although not present on the helicopter when it crashed) (T115-127). (b) Witnesses called for Precision - (i) David Alan Carter (the Precision helicopter pilot flying the helicopter at the time of the crash) (T133-172); (ii) Andrew Lawrence Horne (Operations Manager with Precision) (T245-247). (c) Witnesses called for Telstra - (i) Walter Renato Bednar (Technical Project Specialist with Telstra) (T173-174); (ii) Jeffrey Robert Brock (a medical practitioner, qualified Army pilot and experienced aviation accident investigator) (T200-201). (d) Concurrent evidence was given by expert aviation witnesses, Mark Ogden (retained by Endeavour) and Lachlan Macarthur-Onslow (retained by Precision) (T278-312).

16. [18]

    In addition, on 14 May 2012, the Court undertook a view for the purpose of s.53 Evidence Act 1995 at the scene of the helicopter crash at 707 Settlers Road, Lower Macdonald, St Albans in the presence of counsel and solicitors for the parties. The Court may draw any reasonable inference from what was seen during the view: s.54 Evidence Act 1995; Evans v The Queen [2007] HCA 59; 235 CLR 521 at 576 [200].

17. [19]

    By consent, Mr McIlwaine SC noted that Mr Edwards was not able to give evidence at the trial and that he has no recollection of any relevant events. Other counsel accepted that this was the position and that no submission would be made in this respect in accordance with the principle in Jones v Dunkel [1959] HCA 8; 101 CLR 298 (T101-102).

18. [20]

    There was little factual dispute in the case. As I have said, few witnesses were called and cross-examination of witnesses was relatively confined. No witness was cross-examined upon the basis that any part of the evidence of the witness should be disbelieved.

19. [21]

    The resolution of the issues requiring determination involves an assessment of the limited oral evidence taken with the substantial documentary evidence, and application of relevant legal principles to the various claims and counterclaims made by the parties.

20. [22]

    The parties reached agreement concerning quantum in relation to various issues in the proceedings.

21. [23]

    With respect to the notional value of Mr Edwards' claim (relevant to the s.151Z WC Act issue), Mr McIlwaine SC informed the Court of the following agreement between the parties (T4.1): "It has been agreed for the purposes of the 151Z proceedings that the notional value of the claim for personal injury, if one had have been brought by Mr Edwards, is $16 million inclusive of fund management, plus costs assessed by reference to the Civil Liability Act 2002 as amended and $1.7 million inclusive of fund management plus costs when assessed by reference to the Workers Compensation Act 1987 ..."

22. [24]

    In relation to the claim by Precision arising from damage to the helicopter hull, the Court was informed that there was agreement between the parties that the value of the loss of the hull was $420,000.00 (T312.44).

23. [25]

    With respect to Precision's claim for loss of business arising from the damage to the helicopter, the Court was informed that the parties had agreed that the figure for this claim was $70,000.00 (T313.4).

24. [26]

    There are, of course, live issues concerning Precision's entitlement to these sums.

25. [27]

    The practical and helpful approach adopted by the parties in reaching agreement concerning these figures has served to save hearing time and reduce the task of the Court.

26. [28]

    The real issues in dispute in the proceedings concern liability and, if liability is established, apportionment of responsibility as between parties held to be liable.

27. [29]

    What follows constitutes my principal findings of fact. There are virtually no areas of factual contest. Where there is any factual dispute, I will record the controversy and my conclusion with respect to it.

28. [30]

    Reference will be made later in the judgment to other factual matters, which are best considered in the context of the submissions to which they relate. The Scene of the Accident

29. [31]

    In 2006, Endeavour (then Integral Energy) owned and maintained power distribution lines in the lower valley of the Macdonald River, a tributary of the Hawkesbury River. A section of the Macdonald River valley, near to the property owned by Mr and Mrs Inman at 707 Settlers Road, Lower Macdonald, St Albans ("the Inmans' property"), is oriented generally north-south.

30. [32]

    In this location, Endeavour maintained a high voltage line running north-south down the centre of the valley. Connected to this was an Endeavour spur line which ran in an easterly direction from the high voltage line for about 225 metres onto the Inmans' property.

31. [33]

    The Inmans' property comprises relatively flat undulating paddocks west of the lines and a gradual inclination east of the lines up to Settlers Road. Settlers Road is aligned along the edge of the cleared river flats, marking their eastern boundary. It follows a winding course along the foot of hills which define the east side of the river valley.

32. [34]

    The Inmans' house is located on the south side of a roughly triangular cleared paddock area which constitutes an indentation into the hills at the east margin of the river flats. This triangular area measures approximately 250 metres along its south side and approximately 500 metres along its north-east side. These two sides are bound by wooded slopes to the south and north-east respectively. To the west, the triangular paddock area opens out onto broader cleared land extending to the river bank.

33. [35]

    Settlers Road follows the southern boundary of this cleared area. It makes a tight bend cutting across the eastern point of the triangular paddock area and then runs along the north-eastern boundary of that area.

34. [36]

    The survey in evidence shows that the cleared triangular paddock area is mostly at a height above sea level of between two and four metres. To the south of the area, the wooded hillside rises steeply to a height above sea level of 150 metres. To the north-east, hills rise steeply to a height of over 100 metres. On both sides, some steep exposed sandstone bluffs are visible on the slopes. The Private Power Line on the Inmans' Property

35. [37]

    The Endeavour spur line referred to at [32] above terminated approximately 100 metres to the north of the triangular paddock area just described.

36. [38]

    From that point, a private power line owned by Mr and Mrs Inman extended to their house. It was about 450 metres in length overall.

37. [39]

    In 1990, Mr and Mrs Inman caused a private power line to be constructed, which ran from the Endeavour Substation 1945 (located on Pole 32 situated on the northern part of their property). The power line was supported above ground by seven poles, numbered south to north, D57 to D51. These poles ran from the Inmans' property north, on the eastern side of the property, to connect with the substation.

38. [40]

    For approximately the first 80 metres, the private power line followed a southerly course through trees. From there, it proceeded in a south-easterly direction for about 120 metres, parallel to the north-east boundary of the triangular paddock area and about 20 metres in from the fence line. The power line then made a turn away from the north-east boundary and proceeded southerly across the paddock for approximately another 120 metres. Finally, it changed direction slightly to the south-west and continued a further 140 metres to the vicinity of some out buildings near the Inman's property. The Telstra Catenary Wire on the Inmans' Property

39. [41]

    At the time of the helicopter crash in April 2006, there was also strung across this triangular paddock a single catenary wire owned by Telstra, which was suspended between two poles. The southerly pole, No. 761, was about 40 metres to the south of the Inmans' property. The northerly pole, No.769, was on the opposite side of the triangular paddock area, about halfway along the north-east boundary of it. Thus, the catenary wire was suspended across the triangular area, running in a north-easterly direction. It was approximately 250 metres long.

40. [42]

    The catenary wire lay to the east of Mr and Mrs Inmans' private power line. At its closest point, at the south end of the power line, the catenary wire was offset by slightly less than 10 metres. About halfway across the paddock, the separation was about 10 metres. Further to the north-east from that point, the line of the private power supply diverged to the west and the separation was greater.

41. [43]

    The catenary wire was about 12 metres (or 40 feet) above ground level. The private power line comprised two pairs or wires (four lines in total) which were attached near the top of poles which were about seven-and-a-half metres (or 25 feet) high.

42. [44]

    Telstra's catenary wire had, in earlier years, been used to support a phone cable which had also been suspended between poles Nos. 761 and 769. Some time between November 1995 and September 2000, the Telstra phone cable had ceased to be used.

43. [45]

    In the interval between September 2000 and 2 August 2004, Telstra had erected a series of poles along the verge of Settlers Road, around the southern and north-eastern boundaries of the triangular paddock. Telstra had strung a replacement telephone cable on these poles.

44. [46]

    Consequently, the catenary wire, which remained suspended across the triangular paddock, had been redundant from, at the latest, September 2000.

45. [47]

    Telstra's line inspector, Robert Marshall, had noted in September 2000, that the catenary wire was unused and could be recovered. However, this was recorded expressly as a maintenance matter, and was evidently not treated as having any priority or urgency. The telephone service line was lying in the paddock.

46. [48]

    In about 2002, Mrs Inman contacted Telstra and requested that the telephone service line lying in the paddock be removed. She was told by Telstra that it was not intended to refix the telephone service line to the catenary wire "as it wasn't worth it".

47. [49]

    In May 2002, Mr and Mrs Inman noticed that the telephone service line had been rerouted along the line of Settlers Road.

48. [50]

    On 2 August 2004, the two poles between which the catenary wire was suspended were again inspected by Telstra. The disused catenary wire was not removed.

49. [51]

    In July 2005, a Telstra work order was issued for a replacement of Pole 769 at the north end of the catenary wire.

50. [52]

    On 2 August 2005, Telstra issued a work order to replace one of these poles carrying the catenary wire (Exhibit EE2, pages 1856-1862). The job order described the pole in a manner which indicated that it was condemned, and was to be removed and replaced (Exhibit TC8, page 1177; Exhibit EE2, page 1862).

51. [53]

    One of the poles was removed and replaced some time prior to 7 December 2005 (Exhibit EE2, page 1860). At that time, the catenary wire was not removed, but was reconnected to a pole, and remained suspended across the Inmans' property, about 10 metres above ground, in close proximity to the Inmans' private power lines (Exhibit EE2, page 1787). The catenary wire remained in that location until the accident on 4 April 2006.

52. [54]

    As will be seen, submissions were made for Endeavour and the Edwards children that the failure to remove the catenary wire by July 2005 (if not earlier) was highly significant on the question of Telstra's liability. On the other hand, Telstra contends that the failure to remove the catenary wire at this time was irrelevant to foreseeability of risk of aerial collision and to questions of duty of care, scope of duty and breach. I will return to these issues later in the judgment.

53. [55]

    The evidence reveals that Telstra employees were regularly in the vicinity of the Inmans' property and the Lower Macdonald/St Albans area generally. At the time of the helicopter crash on 4 April 2006, there were two Telstra employees on a fault repair nearby. These employees attended the scene of the accident immediately afterwards.

54. [56]

    Shortly after the accident on 4 April 2006, and because of it, Telstra removed the catenary wire from the Inmans' property. This was done quickly, easily and cheaply (at a cost of $2,988.00) (Exhibit EE2, pages 1869-1874, 1888-1890; Exhibit EE2, page 185, Q/A2; page 191, Q/A10). Inspections by Endeavour of Power Supply Infrastructure and Contractual Arrangement Between Precision and Endeavour

55. [57]

    In each of 2003, 2004 and 2005, Endeavour undertook a program of inspecting its power lines through rural areas from the air, using a helicopter. The inspections were carried out between April and June each year. The purpose was to identify the intrusion of any tree growth onto the lines and to identify any faults with the wires, insulators, poles and cross arms of the power lines.

56. [58]

    For this purpose, Precision and Endeavour entered into a contract on 20 August 2003, under which Precision agreed to supply suitable helicopters and a competent experienced pilot to carry out low-level aerial inspection of Endeavour's power lines, as part of Endeavour's pre-summer bushfire patrols conducted in the northern region of New South Wales.

57. [59]

    The contract was for a period of three years from 1 June 2003.

58. [60]

    The contract provided for Endeavour to supply to the pilot geographic maps showing the lines to be inspected and any hazards. It further provided for the pilot to be accompanied on inspection flights by two Endeavour employees, one to act as "inspector" and the other as "observer". The role of observer and inspector were described in Clause 5.1.1 of the contract as follows: "The flight crew will normally consist of the pilot, an observer to assist the pilot, and an inspector. The function of the observer, seated beside the pilot, is primarily to assist the pilot by providing advance warning of approaching hazards, tracking flight development to determine changing risks and recording the condition of the power line. The observer shall be conversant with the overhead power line route and potential hazards to enable the maximum assistance to be provided to the pilot. The inspector, seated in the rear cabin, should be suitably experienced in line inspection work and shall be conversant with Integral Energy [Endeavour] construction standards. The inspector's role is primarily to assess the condition of power line structures, conductors and conductor vegetation clearance."

59. [61]

    The practical application of this contractual provision would see the Precision pilot occupying the front right-hand seat of the helicopter. The "observer" sat in the front left-hand seat and the "inspector" in the right-hand rear seat. The observer sitting next to the pilot would assist with identifying the power lines to be inspected, and with keeping a lookout for any hazards which might interfere with safe flight. The inspector in the rear seat of the helicopter would observe the power lines as the helicopter flew past, noting defects and maintenance requirements.

60. [62]

    In 2003, 2004, 2005 and 2006, Endeavour had conducted extensive public awareness campaigns in the print media about the use of helicopters to conduct inspections of its overhead power lines (Exhibit EE2, pages 624-743). Events Leading to the Inspection Flight on 4 April 2006

61. [63]

    On 28 March 2006, Mr Horne, the Operations Manager for Precision, attended a briefing at Endeavour's Penrith office with a number of Endeavour employees, including Mr Edwards, a tree-management officer, and Martin Healy, an Endeavour work foreman. Mr Healy was the Endeavour staff member with whom Mr Horne liaised for practical purposes associated with the pre-bushfire season aerial inspections. The meeting on 28 March 2006 was the pre-briefing for the 2006 pre-summer bushfire inspections. The topics discussed on that day included the area of operations, map formats, flight duration, defect identification and overhead line defects, transfer of flight dockets and risk assessment forms.

62. [64]

    On 2 April 2006, Mr Horne drove a Precision refuelling truck to a refuelling point at Ebenezer, in the north-west of Sydney which was to be used for the purpose of aerial inspections. In that refuelling truck were two helmets, a Gentex SPH4 and a Gentex SPH5. Mr Horne left the refuelling truck at Ebenezer with the helmets inside. I accept that Mr Horne did not tell any Precision or Endeavour employee that the helmets were on the refuelling truck.

63. [65]

    Mr Carter was employed by Precision as a helicopter pilot. He had qualified as a commercial helicopter pilot with low-level training in February 1998. Between 1999 and 2003, Mr Carter was employed in the Kimberley region of Western Australia conducting tourist flights, and performing pilot services for mining related companies and Telstra. Between November 2002 and February 2003, he had carried out bushfire piloting services in the Nowra and Snowy Mountain regions.

64. [66]

    Between March 2004 and May 2008, Mr Carter was a helicopter pilot for Precision, flying mainly Bell 206 and some Robinson R22 type helicopters in New South Wales, predominantly with respect to power line inspections.

65. [67]

    As at 4 April 2006, Mr Carter had approximately 2,760 hours of helicopter flying time, of which about 999 hours were in low-level environments. Prior to April 2006, Mr Carter had flown approximately 50 days of power line jobs for Endeavour. He had also flown 42 days for Country Energy.

66. [68]

    On 3 April 2006, Mr Carter flew Precision's Bell helicopter 206BIII VH-J1V from Precision's base at Coffs Harbour to the Endeavour depot at Penrith. After arrival at the Penrith depot, Mr Carter attended a meeting there with Endeavour employees, including Mr Edwards. A broad discussion took place concerning the power line inspection work to be undertaken. He prepared the helicopter for power line inspection work. This included removal of the helicopter's rear right-hand side door to allow the Endeavour inspector to be seated behind the pilot, to obtain a better view of the power lines.

67. [69]

    Mr Carter then undertook an aerial power line inspection on 3 April 2006 in which Mr Edwards acted as observer and another Endeavour employee, Mr Langerak, acted as inspector. The Flight of 4 April 2006

68. [70]

    On the morning of 4 April 2006, Mr Carter flew the helicopter from the Endeavour Penrith depot to the Ebenezer refuelling point. He was accompanied by Mr Langerak and two photographers, apparently engaged by Endeavour.

69. [71]

    According to Mr Carter, whose evidence I accept, Mr Edwards had a map or maps of the area and they looked at these together at Ebenezer. Mr Carter recalled that there were two sets of maps, one on a large scale showing the whole area to be flown, and the other on a much smaller scale with all the power lines recorded on it. He said that he looked at the maps to get an overview and general understanding of the area where he was required to fly the helicopter, and that his usual practice was to study the maps and to take notes of any hazards such as power lines or Telstra lines, and that the presence of overhead wires was an obvious hazard for low-level flying. I accept that the maps used in this briefing are those contained in Exhibit EE2, pages 801 and 802.

70. [72]

    Mr Carter had flown helicopters on two occasions prior to 4 April 2006 in the Lower Macdonald area, but he had never flown before in the area of 707 Settlers Road, Lower Macdonald.

71. [73]

    When the helicopter departed Ebenezer after a morning tea break before 10.00 am on 4 April 2006, Mr Carter occupied the pilot's seat on the front right-hand side, Mr Edwards sat in the front left-hand seat as observer and another Endeavour employee, Mr Collins, occupied the rear right-hand seat as inspector. Catherine Leenman, a photographer retained by Endeavour, was seated in the rear left-hand seat. Ms Leenman was to take photographs of Mr Edwards for a profile to be published about him for an internal Endeavour publication.

72. [74]

    Of the four persons on board the helicopter, only Mr Carter wore a helmet. The two helmets brought by Mr Horne remained in the refuelling truck (see [64] above). The evidence of Mr Horne, Mr Carter and Mr Collins indicates that Mr Horne did not tell anyone else that the helmets were in the refuelling truck.

73. [75]

    None of the Endeavour personnel on the helicopter requested a helmet prior to the inspection flight. Mr Carter was aware the use of helmets was a requirement of Endeavour for its employees. However, Mr Carter did not believe that he had authority to order any Endeavour employee to wear a helmet. The Manoeuvres Before the Wire Strike

74. [76]

    Mr Carter flew the helicopter to the left of the power lines being inspected. This was in accordance with usual practice. It gave the inspector (in the rear right-hand seat of the helicopter) the optimum view of the line. The helicopter was operated about five to 10 metres laterally displaced to the left of the line, and about three to five feet above the line at all relevant times. The speed was approximately 25-30 knots per hour.

75. [77]

    At about 10.00 am, Mr Carter was directed by Mr Edwards along the spur line running east to west near the Inman's property, and along the private power line which ran off the spur line, north/south across the Inmans' property.

76. [78]

    I am satisfied that the maps which Mr Edwards had with him in the helicopter did not record the private power line. Likewise, I am satisfied that the maps did not disclose the Telstra catenary wire. I am satisfied that Mr Edwards and Mr Carter had not been informed of the presence of the private power line or the catenary wire.

77. [79]

    Mr Carter flew the helicopter north to south along the private power line. At the northern end, it was not possible to position the helicopter on the preferred left side of the line because of the proximity of the trees on that side. Mr Carter flew the helicopter to the right-hand side of the line until the trees were no longer a hazard. He then crossed to the left-hand or eastern side of the line. The Wire Strike

78. [80]

    No person on board the helicopter, including Mr Carter, had observed the Telstra catenary wire. Mr Carter later observed (in his statement of 19 April 2012, Exhibit PH1, paragraph 60) that he had not seen the catenary wire prior to contact with it. Mr Carter said that it was difficult to see it due to the background vegetation and because the poles holding the catenary wire were positioned in trees.

79. [81]

    Shortly after the helicopter crossed to the left-hand or eastern side of the line, the skid on the front left of the helicopter came into contact with the Telstra catenary wire. At the same time as he noticed and heard the catenary wire touching the helicopter, Mr Edwards called out "Wire". The tail rotor of the helicopter came into contact with the catenary wire and the helicopter began to lose directional control.

80. [82]

    Mr Carter could not fly the helicopter forward as that was where the catenary wire and private power line converged, nor to the left, as that was where the catenary wire was located. Nor could he descend, as he could not see what was below the helicopter.

81. [83]

    Mr Carter elected to remove the helicopter from the position it was in by ascending and moving to the rear right or western side of the power line, where he conducted an emergency landing. He landed the helicopter upright and not too heavily. However, without directional control, the helicopter did not land level and it rolled over onto its right-hand side.

82. [84]

    Mr Carter turned off the helicopter's fuel and electrical power to minimise a fire risk, checked on the condition of other persons aboard, and helped to administer first aid to Mr Edwards, who appeared to be unconscious. Mr Carter gave the relevant co-ordinates to the rescue helicopter.

83. [85]

    Mr Edwards suffered catastrophic injuries in the accident, principally a closed head permanent brain injury. Other physical injuries which he suffered were relatively minor by way of comparison. These involved a fracture of the right phalanx of the ring finger, a laceration to the right shoulder and pulmonary contusions. Injuries to Mr Edwards and Their Probable Cause

84. [86]

    No other person on the helicopter suffered any significant injury.

85. [87]

    It was the opinion of Dr Brock, which I accept, that Mr Edwards' head injuries were most likely inflicted by "a high energy glancing blow to the right side of his head by the main rotor blade" of the helicopter. In his report, Dr Brock explained how he reached this conclusion, drawing, as well, upon his experience of observing helicopter crashes and resultant injuries, and his examination of the injuries sustained by Mr Edwards and photographs of the condition of the crashed helicopter in this case. Having regard to the extent of the brain injury sustained, I accept that there was a high-energy impact to Mr Edwards' head. In the absence of any evidence of skull fracture, I infer that the high-energy impact took the form of a glancing blow to the head by the main rotor blade.

86. [88]

    I accept the evidence of Dr Brock, which is not challenged or contradicted by other evidence, that had Mr Edwards been wearing an appropriate helmet at the time, "he would have significantly or completely avoided his traumatic brain injury as well as the facial fractures and facial lacerations".

87. [89]

    It was the opinion of Dr Brock, which once again I accept, that Mr Edwards' head injuries "could have been avoided or reduced in severity by reason of wearing an appropriate helmet (fitted with an approved manufacturer's visor)". Dr Brock stated in evidence that, had Mr Edwards been wearing a helmet, "he would not have sustained a long term injury" (T200-201).

Issues for Determination

1. [90]

   A number of issues arise for determination. These include: (a) whether any liability of Precision to Mr Edwards is restricted by application of the Civil Aviation (Carriers' Liability) Act 1967 (NSW); (b) whether Endeavour is liable to Mr Edwards for breach of its non-delegable duty of care to him, as his employer, and thus for the purpose of s.151Z(2) WC Act; (c) whether Precision is liable for any breach of duty to Mr Edwards, and thus for the purpose of s.151Z(1) WC Act; (d) whether Telstra is liable for breach of duty to Mr Edwards, and thus for the purpose of s.151Z(1) WC Act; (e) if Precision and/or Telstra are liable to Mr Edwards, in addition to Endeavour, as his employer, what apportionment is appropriate for the purpose of s.151Z(2) WC Act; (f) whether Endeavour is liable to Precision, for breach of contract, for loss resulting from helicopter hull damage and the loss of use of the helicopter whilst it was out of action, and also for liability (if any) which Precision may have under s.151Z(1) WC Act; (g) whether the indemnity clause in the contract between Endeavour and Precision entitles Endeavour to an indemnity from Precision for all losses and liabilities otherwise suffered by Endeavour arising from the accident; (h) whether any or all of Precision, Endeavour and Telstra are liable to the Edwards children.

2. [91]

   These various issues will be considered in the balance of this judgment.

Does the Civil Aviation (Carriers' Liability) Act 1967 (NSW) Have Any Application to the Present Proceedings?

1. [92]

   It is common ground that the Civil Aviation (Carriers' Liability) Act 1959 (Cth), which relates to international and interstate airline and charter operations, has no application to this case.

1. [93]

   Precision submits that the Civil Aviation (Carriers' Liability) Act 1967 (NSW) applies, in the circumstances of this case, so as to render Precision strictly liable for injury suffered by Mr Edwards but, at the same time, placing a ceiling of $500,000.00 on Precision's liability in that respect.

2. [94]

   Endeavour submits that the Civil Aviation (Carriers' Liability) Act 1967 (NSW) has no application whatsoever in the circumstances of this case.

3. [95]

   Telstra and the Edwards children submit, as well, that the Civil Aviation (Carriers' Liability) Act 1967 (NSW) has no application to this case but that, even if the statute could be available, a finding should be made that Mr Edwards was not a "passenger" for the purpose of that legislation, so that the statute does not apply.

4. [96]

   A useful starting point is to identify statutory certificates and permits held by Precision at the relevant time.

5. [97]

   Between February and July 2006, Precision held an Air Operator's Certificate ("AOC") for the purposes of the Civil Aviation Act 1988 (Cth). That AOC authorised Precision to conduct (Exhibit EE3): (a) charter operations as set out in Schedule 2 to the AOC; (b) aerial work operations as set out in Schedule 3 to the AOC, with that Schedule permitting Precision to utilise a Bell 206 helicopter to conduct aerial work operations in Australia, inter alia, by way of power line inspection.

6. [98]

   At the relevant time, Precision held a low-flying permit issued under Clause 157 Civil Aviation Regulations 1988 (Cth), which authorised Precision to fly at a height lower than 500 feet for the purpose of power line inspections (Exhibit EE4).

7. [99]

   The journey being undertaken by the Precision helicopter being flown by Mr Carter on 4 April 2006, with Mr Edwards and others on board, involved a journey entirely within the State of New South Wales. Accordingly, it is appropriate to examine s.4 Civil Aviation (Carriers' Liability) Act 1967 (NSW) which provides: "4 Carriage to which Act applies The carriage to which this Act applies is the carriage of a passenger where the passenger is or is to be carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger between a place in the State and another place in the State or from a place in the State back to that place, not being: (a) carriage to which Part IV of the Commonwealth Act applies, or (b) carriage to which the Warsaw Convention, the Hague Protocol or the Guadalajara Convention applies, or (c) carriage to which the provisions of another convention, protocol or treaty apply, being provisions that have the force of law under the Commonwealth Act and that are prescribed for the purposes of this paragraph by the regulations under this Act."

8. [100]

   The fact that the Precision helicopter may have taken off from, and returned to, the same location in New South Wales does not mean that it is not a journey falling within the opening words in s.4: Mount Beauty Gliding Club Inc v Jacob [2004] VSCA 151; 10 VR 312 at 319-322 [17]-[25], 324 [35].

9. [101]

   The statute requires that the passenger is or is to be "carried in an aircraft being operated by the holder of an airline licence or a charter licence in the course of commercial transport operations under a contract for the carriage of the passenger" within the State.

10. [102]

    The terms "airline licence", "charter licence" and "commercial transport operations" are defined in s.26 Civil Aviation (Carriers' Liability) Act 1959 (Cth) in the following way: "airline licence means: (a) an international airline licence in force under the Air Navigation Regulations; or (b) an Air Operator's Certificate in force under the Civil Aviation Act 1988 authorising airline operations; or (c) a New Zealand AOC with ANZA privileges (as defined in section 3 of the Civil Aviation Act 1988) authorising airline operations. ... charter licence means: (a) a charter licence in force under the Air Navigation Regulations; or (b) an Air Operator's Certificate in force under the Civil Aviation Act 1988 authorising charter operations; or (c) a New Zealand AOC with ANZA privileges (as defined in section 3 of the Civil Aviation Act 1988) authorising charter operations. commercial transport operations means operations in which an aircraft is used, for hire or reward, for the carriage of passengers or cargo." Does the Nature of the Operation on 4 April 2006 Fit Within the Civil Aviation (Carriers' Liability) Act 1967 (NSW)?

11. [103]

    Precision contended that the Civil Aviation (Carriers' Liability) Act 1967 (NSW) applied to this operation, and that Mr Edwards was a "passenger" for that purpose.

12. [104]

    It was submitted for Endeavour that the circumstances of the present case fell entirely outside activities of a type to which that statute was directed. Telstra and the Edwards children supported this submission and contended that, in any event, Mr Edwards was not a "passenger".

13. [105]

    It is necessary to consider the nature of the activity upon which the helicopter and its occupants were engaged on 4 April 2006. The relevant flight operation involved low-level aerial work inspecting power lines, being conducted by Precision as part of its contractual arrangement with Endeavour, and involving both Precision and Endeavour personnel on board.

14. [106]

    It is difficult to see how this activity fits within the concept of intrastate airline and charter operations of the type caught by s.4 Civil Aviation (Carriers' Liability) Act 1967 (NSW). On 4 April 2006, the helicopter was engaged in aerial work operations, in the form of a power line inspection, under Precision's AOC (Exhibit EE3). These aerial work operations involved low-flying activities, for the purpose of power line inspections, as allowed under Precision's low-flying permit (Exhibit EE4).

15. [107]

    It should be kept in mind that the carriage to which the New South Wales Act applies involves carriage by the holder of an airline licence or a charter licence, in the course of commercial transport operations under a contract, for the carriage of a person or persons between one place and another within the State. The activity being undertaken by the Precision helicopter on 4 April 2006 does not sit comfortably with this statutory formula. It seems far removed from any notion of "commercial transport operations" by the holder of a "charter licence".

16. [108]

    There is considerable force in Endeavour's primary submission on this issue, which I am inclined to accept. Was Mr Edwards a "Passenger"?

17. [109]

    However, in case I am wrong in that view, and as the question was fully argued, I will consider the next question as to whether Mr Edwards was, in any event, a "passenger" for the purpose of the relevant legislation.

18. [110]

    In support of the submission that Mr Edwards was a "passenger", Precision relied upon a number of decisions of courts considering the meaning of this term in statutes based upon the Warsaw Convention. Particular reliance was placed upon the decision of the House of Lords in Fellowes (or Herd) v Clyde Helicopters Limited [1997] AC 534 ("Herd") and later decisions in which Herd has been applied, including Disley v Levine [2001] EWCA Civ 1087; [2002] 1 WLR 785 and Laroche v Spirit of Adventure (UK) Limited [2009] EWCA Civ 12; [2009] QB 778.

19. [111]

    Counsel for Telstra and the Edwards children advanced submissions to the effect that Mr Edwards was not a "passenger" for the purpose of the flight undertaken on 4 April 2006.

20. [112]

    A helpful starting point is the origin and purpose of legislation of this type, explained by Callinan J in Air Link Pty Limited v Paterson [2005] HCA 39; 223 CLR 283 at 323 [124] (footnotes excluded): "The Act was enacted pursuant to the Warsaw Convention of 1929 as amended from time to time. The Convention established a 'uniform international code' for the liability of carriers for injury or death during carriage between countries party to the Convention. It made a compromise between the interests of air carriers and passengers. It took account of the difficulties of proof confronting plaintiffs. It presumed liability of air carriers for injury or death. Carriers could not contract out of it. In return, it relevantly capped damages and extinguished the right to sue for damages after two years. As an international instrument, or perhaps more correctly, an enactment pursuant to such an instrument, it should be construed consistently universally."

21. [113]

    There is no definition of "passenger" in the relevant legislation. I accept the submission of Precision that decisions of other courts, concerning the meaning of words contained in legislation derived from the Warsaw Convention, may be called in aid to assist construction of a similar question concerning Australian legislation: Air Link Pty Limited v Paterson at 301 [40] (Kirby J).

22. [114]

    It is appropriate to refer to Herd, the principal decision relied upon by Precision. In that case, Sergeant Herd was killed in a helicopter crash in 1990. At the time, Sergeant Herd was a member of the Police Helicopter Unit of the Strathclyde Police Force. His duties were to carry out aerial surveillance and detection within Strathclyde. The helicopters used by the Police Helicopter Unit were supplied under contract by Clyde Helicopters Limited. On the date of his death, Sergeant Herd and two colleagues were carrying out duties on board one of these helicopters. During the flight, a snowstorm was encountered as a result of which the pilot, an employee of Clyde Helicopters Limited, became lost and engine failure occurred. The helicopter collided with a block of flats in Glasgow, resulting in the death of Sergeant Herd.

23. [115]

    The House of Lords held that Sergeant Herd was a "passenger" for the purpose of the relevant legislation. Lord Mackay of Clashfern LC delivered the leading judgment, in which the duties of Sergeant Herd were explained in the following way at 540-541: "The duties of Sergeant Herd and his police colleagues while they were on board the helicopters, provided in pursuance of the contract, were to direct the surveillance operations on which the helicopters were engaged; to give the necessary instructions to the pilots; to inform the pilots of the manoeuvres which they wished them to carry out and generally to act as observers and to provide information to the pilots during the course of each flight. On the occasion of the fatal flight the respondents' pilot was Captain Graham Pryke, who was solely responsible for the flying of the helicopter and all decisions related thereto."

24. [116]

    His Lordship concluded at 542: "In my view it is clear that the respondents were the carrier in respect of the carriage of Sergeant Herd. It is true that Sergeant Herd was on the aircraft for the purpose of carrying out his duties as a member of the Police Helicopter Unit, but from the facts as alleged, which I have quoted above, it is clear that he had no responsibility whatever in respect of the operation of the aircraft, which was solely under the control of the pilot, and therefore in my opinion the activities which Sergeant Herd was carrying on while on the aircraft are not to be regarded as contributing in any way to the carriage of himself or the other persons on board. He therefore is properly regarded as a passenger."

25. [117]

    His Lordship referred, in the course of the judgment, to the decision of the United States Court of Appeals (Ninth Circuit) in In re Mexico City Aircrash of October 31, 1979 (1983) 708 F.2d 400, where it was held that two flight attendants, working aboard an aircraft that crashed, were not passengers within the meaning of the Warsaw Convention. In delivering the judgment of the Court, Fletcher J said at 417 (footnotes excluded): "In the cases of appellants Haley and Tovar, we conclude that the argument sweeps too broadly. Decedents Theresa Haley and Regina Tovar were indisputably working as flight attendants on board Flight 2605. Even though Haley and Tovar were in some sense 'transported' by the plane, we do not think that they received 'transportation' as 'passengers' within the meaning of the Convention. The term 'transportation' seems to us to require as a minimum that the voyage be undertaken for the principal purpose of moving the individual from point A to point B. In the cases of Haley and Tovar, the voyages were undertaken not for this reason, but for the exclusive purpose of performing employment duties. We conclude that Haley and Tovar were not, therefore, 'passengers' aboard Flight 2605, and that the summary judgments in favour of Western on the claims of plaintiffs Haley and Tovar were proper."

26. [118]

    In distinguishing this decision in Herd, Lord Mackay of Clashfern LC said at 546: "In re Mexico City Aircrash (1983) 17 Avi. 18,387 turned on whether or not the persons being carried were being carried merely as passengers of the airline or in their capacity as employees of the airline. Without examining the decision in detail I think it is sufficient to say that the question whether or not the Warsaw Convention applied was decided to depend on whether or not the person carried was an employee of the carrier and travelling in that capacity, in which case the Warsaw Convention would not apply, whereas if, though an employee, the person being carried was being carried truly as a passenger with no responsibility in connection with the operation of the flight and without being obliged to travel as an employee on that particular flight, the Convention would apply."

27. [119]

    Herd was applied by the Court of Appeal for England and Wales in Disley v Levine, where it was held that a trainee flying with an instructor in a tandem paraglider, assisting the instructor whilst the instructor had control of the glider, was not a passenger (nor was the paraglider an aircraft).

28. [120]

    After referring to the passage from Herd set out above (at [115]), Henry LJ observed at 797 [51] that Sergeant Herd "was a passenger viz a viz the carrier in control of the aircraft, but had it been a police operated aircraft he would have been a crew member". Henry LJ continued at 797 [52]: "It cannot be said that Ms Disley contributed nothing to the flight. True it is that, as set out in the Agreed Statement of Facts, during the flight Ms Disley watched the defendant demonstrate various flight manoeuvres, but she did not practise controlling the glider, or play any part in its operation during the flight. However, the flight could not have taken place without the contribution she made with her legs both on take-off and landing. But over and above that, she was not on the flight as a passenger, nor on the flight under a contract of carriage, but on the flight as a pilot under instruction, and so as one of the crew."

29. [121]

    Henry LJ observed, at 798 [56], that Ms Disley "was under instruction when she was on the flight, and it would not be right to describe her as a passenger" as the "objective was instruction, not carriage".

30. [122]

    In a separate judgment, Buxton LJ reached a similar view. After referring to the passage from Herd set out at [116] above, Buxton LJ said 800-801 [67]: "That observation was however directed at the particular facts of the Herd case, where it had been argued that Sergeant Herd was not a passenger because he was empowered to give directions to the pilot as to where the helicopter should fly. In every other respect, however, Sergeant Herd was on the helicopter for the purpose of being conveyed from one place to another, albeit places that he determined while he was in the air rather than in advance when he was on the ground. He therefore fulfilled the normal understanding of the word 'passenger'. That is also the purposive meaning of the word when it is used in a Convention directed at commercial air transport."

31. [123]

    Reference was made, as well, to the decision of the Court of Appeal for England and Wales in Laroche v Spirit of Adventure (UK) Limited, where it was held that a person carried in a hot-air balloon on a flight organised by the defendant company, who was injured when the balloon crashed, was a passenger for the purpose of relevant legislation based upon the Warsaw Convention. Dyson LJ (Jacob and Mummery LJJ agreeing) said at 793-794 [61]-[63]: "61 The term 'passenger' is not defined by the 1967 Order or the Convention. As Buxton LJ said in Disley's case [2002] 1 WLR 785, para 70, the rule of purposive construction requires the concept of 'passenger' to be looked at in the context of the Convention as a whole. I do not think that it is disputed that, in the context of the Convention as a whole, a 'passenger' is someone (i) who is not regarded as contributing to the carriage of himself or the other persons on board (see Herd's case [1997] AC 534, 542, 548) and (ii) who is on the aircraft for the predominant purpose of being conveyed from one place to another: see Disley's case, at paras 67, 70-74. Obvious examples of persons who are carried on aircraft, but not as passengers, are trainee pilots (who are being carried for the purpose of receiving instruction) and pilots, stewards and other members of the crew (who are being carried for the purposes of carrying other persons). 62 I agree with what the judge said, at paras 41-43 of his judgment. The claimant was undoubtedly being carried in the balloon at the material time and was not himself making any contribution to the process of flying. The fact that the claimant just went for the ride and the destination was to a large extent unpredictable was immaterial to whether he was carried as a passenger. The predominant purpose of the journey was to be carried by air from the starting point to the destination point, wherever that turned out to be. The claimant did not know precisely where the destination point would be, but that did not prevent him from being carried as a passenger. A person who pays to be carried on a conventional aeroplane 'magical mystery tour' has no idea where the flight will end. That is the whole point of such a tour. But that does not mean that he is not carried as a passenger. I can find nothing in the Convention or Schedule 1 to indicate that such a person is not a passenger. If he is not a passenger, what is he? No plausible alternative description was provided by Mr Davey. 63 In my view, the judge was right to hold that the claimant was a 'passenger' within the meaning of article 17 of Schedule 1. He was not a member of the crew. Unlike Miss Disley in Disley's case, he did not contribute to the flight in any way. He was not on board as a pilot under instruction. His role was even more passive than that of Sergeant Herd in Herd's case, who was held to be a passenger although he was on board the helicopter directing the surveillance operations and giving necessary instructions to the pilot. As between the carrier and the carried, the purpose of the carriage of Sergeant Herd was for him to be carried as a passenger. As between the claimant and the defendant, the purpose of the hot air balloon flight was to carry the claimant as a passenger. The fact that the claimant was to be carried from one place to another by hot air balloon for pleasure or reasons of recreation did not mean that he was not carried as a passenger. In this respect, his case stands on the same footing as that of a person carried by conventional aeroplane on a magical mystery tour."

32. [124]

    Disley v Levine was distinguished by the Victorian Court of Appeal in Mount Beauty Gliding Club Inc v Jacob at 323-324 [31] in a context which did not involve the question whether the injured person was a passenger. I note, as well, that In re Mexico City Aircrash of October 31, 1979 was considered by the Court of Appeal in United Airlines Inc v Sercel Australia Pty Limited [2012] NSWCA 24 at [42]-[48], in a context which does not bear upon the "passenger" issue in this case.

33. [125]

    Precision submitted that the role of Mr Edwards was essentially to direct the pilot having regard to Mr Edwards' knowledge of the power lines and of the hazards (with which he was supposed to be conversant). It was submitted that this was not a contribution to the flying of the helicopter as it has been referred to in the authorities.

34. [126]

    Precision submitted further that, having regard to the definition of "commercial transport operations" in s.26 Civil Aviation (Carriers' Liability) Act 1967 (NSW), it was necessary to consider whether Mr Edwards was being carried in the course of operations in which an aircraft was being used for hire or reward for the carriage of passengers. In this respect, reliance was placed upon the conclusion in Herd that Sergeant Herd was being carried for reward, and it was submitted that the same conclusion ought be reached in the present case.

35. [127]

    Reliance was placed, as well, upon the judgment of Ormiston JA in Agtrack (NT) Pty Limited v Hatfield [2003] VSCA 6; 7 VR 63 at [13], affirmed by the High Court of Australia in Agtrack (NT) Pty Limited v Hatfield [2005] HCA 38; 223 CLR 251 at 263-264 [33]-[37], in support of the proposition that it is not the specific flight which must be "for reward", but merely the "operations" as a whole.

36. [128]

    In a number of places in the contract between Endeavour and Precision, there is reference to the observer (in this case, Mr Edwards) as "crew". Precision submitted that the relevant enquiry was whether or not Mr Edwards was a "passenger" for the purposes of application of the relevant legislation, and not the contract, although acknowledging that the latter may provide some contextual relevance.

37. [129]

    It is necessary to consider the circumstances of this particular flight for the purpose of determining whether Mr Edwards was a "passenger". It was central to the conduct of aerial inspection of overhead lines that the pilot be assisted by a crew person, with the title of "observer", who would "assist the pilot" by "providing advance warning of approaching hazards", and by keeping track of the aircraft's position relevant to approaching hazards.

38. [130]

    The importance of the contract in this case is that, taken with the evidence of what actually occurred on 4 April 2006, it supports a conclusion that Mr Edwards was not a passenger. It is clear that Mr Edwards, as "observer", formed an essential part of the crew of the helicopter undertaking aerial inspection activities on 4 April 2006. I note that, in answers to interrogatories, Precision admitted that Mr Edwards assisted the pilot in determining "whether the correct asset was being inspected" and that he kept a lookout for hazards, although Precision denied that he was a member of the crew.

39. [131]

    I accept the submission of Telstra that, on the facts of this case, there was a mutual exclusivity between being a passenger and being a member of the crew. The only passenger on this flight was the photographer. She had no function in relation to the inspection of power lines, which was the purpose for which the helicopter was being used at the time.

40. [132]

    On the other hand, Mr Edwards discharged functions including assisting the pilot with navigation of the aircraft, both by directing him to the power lines which he was to fly near to, and by looking out for, and warning of hazards which he was to avoid. In these ways, Mr Edwards was so closely involved in the conduct of the flight, that the conclusion ought be reached that he was a member of the crew, and not a mere passenger. If Mr Edwards had not been present to act as "observer", the low-level aerial surveillance flight could not have taken place at all.

41. [133]

    I am satisfied that the circumstances of the present case are distinguishable from those in Herd, so that the conclusion ought be reached that Mr Edwards was not a "passenger" in the helicopter on 4 April 2006.

42. [134]

    The effect of this conclusion is that the Civil Aviation (Carriers' Liability) Act 1967 (NSW) has no application to this case.

43. [135]

    The question whether Precision is liable for damages arising from the helicopter crash, in which Mr Edwards was severely injured, is to be answered by reference to applicable statutory law and general law principles.

Applicable Statutory and General Law Principles

1. [136]

   Before moving to the factual issues to be determined, by reference to general factual topics, it is necessary to refer to principles to be called in aid to determine liability issues. Endeavour's Non-Delegable Duty of Care as the Employer of Mr Edwards

2. [137]

   Mention has been made earlier to the non-delegable duty of care which Endeavour owed to Mr Edwards as his employer. Before moving to the provisions of the Civil Liability Act 2002, it is appropriate to emphasise the rationale underlying the employer's duty to employees. In Kondis v State Transport Authority [1984] HCA 61; 154 CLR 672, Mason J said at 687-688: "The employer has the exclusive responsibility for the safety of the appliances, the premises and the system of work to which he subjects his employee and the employee has no choice but to accept and rely on the employer's provision and judgment in relation to these matters. The consequence is that in these relevant respects the employee's safety is in the hands of the employer; it is his responsibility. The employee can reasonably expect therefore that reasonable care and skill will be taken. In the case of the employer there is no unfairness in imposing on him a non-delegable duty; it is reasonable that he should bear liability for the negligence of his independent contractors in devising a safe system of work. If he requires his employee to work according to an unsafe system he should bear the consequences."

3. [138]

   In McLean v Tedman [1984] HCA 60; 155 CLR 306, Mason, Wilson, Brennan and Dawson JJ said at 313: "The employer's obligation is not merely to provide a safe system of work; it is an obligation to establish, maintain and enforce such a system. Accident prevention is unquestionably one of the modern responsibilities of an employer (see Fleming: The Law of Torts (6th ed, 1983) pp 480-1). And in deciding whether an employer has discharged his common law obligation to his employees the court must take account of the power of the employer to prescribe, warn, command and enforce obedience to his commands."

4. [139]

   The non-delegable duty rests on the employer, whether or not the employer takes any share in the conduct of the operations and however the business is formed or structured: Pollard v Baulderstone Hornibrook Engineering Pty Limited [2008] NSWCA 99 at [34]; Andar Transport Pty Limited v Brambles Limited [2004] HCA 28; 217 CLR 424 at 440 [34]-[35].

5. [140]

   The non-delegable duty of an employer is one of "a special and 'more stringent' kind", requiring the employer to ensure that reasonable care is taken: Burnie Port Authority v General Jones Pty Limited [1994] HCA 13; 179 CLR 520 at 550. If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards, and the employer must take into account the possibility of thoughtlessness or inadvertence or carelessness, particularly in a case of repetitive work: Czatyrko v Edith Cowan University [2005] HCA 14; 79 ALJR 839 at 842-843 [12].

6. [141]

   It is for the employer to devise whatever reasonably appropriate measures are necessary to eliminate the risk of injury to the employee, whether in the form of the provision of equipment, the giving of directions or the creation or implementation or work systems: English v Rogers [2005] NSWCA 327 at [73].

7. [142]

   An employer's duty of care is not modified because its employees are sent to work for a third party, or are engaged in work involving interaction with third parties. The employer has an independent obligation to satisfy itself of the safety of the system or work in which its employees are engaged, notwithstanding the fact that the employees are working at the premises of a third party, or in the performance of tasks also involving the employees of a third party: Andar Transport Pty Limited v Brambles Limited at 448-449 [57].

8. [143]

   The starting point in these proceedings is the substantial duty owed by Endeavour to its employee, Mr Edwards. This important aspect must be kept in mind when considering issues of liability and apportionment. Provisions in the Civil Liability Act 2002

9. [144]

   The Civil Liability Act 2002 applies to regulate the various claims brought against one party or another in these proceedings: s.5A.

10. [145]

    Section 5 of the Act defines negligence to mean a "failure to exercise reasonable care and skill".

11. [146]

    Provisions concerning duty of care are contained in ss.5B and 5C, which state: "5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."

12. [147]

    Sections 5D and 5E relate to causation. Those provisions state: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation."

13. [148]

    These principles and provisions will be kept in mind when approaching claims for liability as between the various parties.

14. [149]

    Part 1A of the Civil Liability Act 2002 modifies the common law as regards claims in negligence. It has been held that s.5B "presupposes the existence of the law of negligence, and operates against its background": Harmer v Hare [2011] NSWCA 229 at [212].

15. [150]

    Section 5B(1) sets out the three preconditions which must co-exist before liability in negligence arises when the type of negligence alleged is a failure to take precautions against a risk of harm arising. Section 5B(2) provides a non-exhaustive list of factors the Court is required to take into account in deciding whether the third of the preconditions in s.5B(1) exists (that is, whether a reasonable person would have taken precautions against a risk of harm): Harmer v Hare at [212].

16. [151]

    Despite s.5B being contained within Part 1A Division 2 which is headed "Duty of Care", it is directed to whether a found duty of care has been breached, not whether a duty of care exists at all: Council of the City of Greater Taree v Wells [2010] NSWCA 147 at 33.

17. [152]

    However, determining the scope of the duty of care is an essential step before deciding if it has been breached, and it has been held that it is ordinarily preferable to bracket together the issues of the scope of the duty of care and the breach of the duty of care: Sheather v Country Energy [2007] NSWCA 179 at [20]-[21]. Thus, whilst the factors listed in s.5B(1) and (2) are, strictly speaking, relevant to questions of breach of duty, those same factors arise for consideration on questions of scope of duty, which should ordinarily be considered at the same time: Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54; 211 CLR 540 at 585 [106], 611-612 [192].

18. [153]

    The first of the s.5B(1) preconditions is foreseeability. Liability cannot arise in negligence unless the defendant knew or ought to have known of the risk of harm. It is emphasised that foreseeability of harm alone is insufficient to establish a duty of care: Sullivan v Moody [2001] HCA 59; 207 CLR 562 at 576 [42]; Tame v New South Wales [2002] HCA 35; 211 CLR 317 at 402 [250]. In order to determine whether a particular risk of harm was foreseeable, it is necessary to define the risk: Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; 234 CLR 330 at 351 [59]; Novakovic v Stekovic [2012] NSWCA 54 at [37].

19. [154]

    Whilst, in some cases, risk of harm can be foreseeable, despite being unlikely to be realised, there are nonetheless other risks of harm which are more farfetched or fanciful and therefore not foreseeable, such that no relevant duty of care arises: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47; Koehler v Cerebos (Australia) Limited [2005] HCA 15; 222 CLR 44 at 64 [54].

20. [155]

    Turning to the third precondition for liability and negligence under s.5B(1), the question of what precautions a reasonable person in the defendant's position would have taken against the risk of injury, the Court must have regard to the non-exhaustive list of factors in s.5B(2). Whilst there are differences in wording, it has been said that s.5B(2) is a reiteration of Mason J's analysis or so-called "calculus of negligence" in Wyong Shire Council v Shirt at 47-48; Waverley Council v Ferreira [2005] NSWCA 418 at [45].

21. [156]

    In a number of cases, the courts have concluded that despite a defined risk of harm being foreseeable, the particular precaution or precautions contended for by the plaintiff were not required (or indeed, that no specific precautions were required), either according to Mason J's analysis in Wyong Shire Council v Shirt or the s.5B(2) non-exhaustive list of factors: Novakovic v Stekovic at [40]-[45]; Bader v Jelic [2011] NSWCA 255 at [26].

22. [157]

    Enquiry under s.5B(2) as to whether a defendant should have taken precautions against a risk of harm as contended for by a plaintiff turns on, amongst other relevant matters, the foreseeability of the risk, whether the risk was not insignificant, and whether in the circumstances, a reasonable person in the defendant's position would have taken those precautions. The enquiry is not to be undertaken in hindsight, but must be answered prospectively, before the incident occurred: Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at 461 [124]-[126]; Adeels Palace Pty Limited v Moubarak [2009] HCA 48; 239 CLR 420 at 438 [31]; Novakovic v Stekovic at [40].

23. [158]

    The enquiry as to whether the particular precautions contended for should have been taken is not confined to what could have been done to eliminate, reduce or warn against the risk. Rather, whilst asking what could have been done will reveal what was practicable, it is necessary to ask as well - would it have been reasonable for the defendant to take these measures?: Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341 at 361 [93]. In other words, the knowledge of how the injured plaintiff actually came to sustain his or her injury has to be excluded, when considering whether the defendant was obliged to take any of the precautions against the risk of harm contended for by the plaintiff in the circumstances of the case: Novakovic v Stekovic at [41].

24. [159]

    Finally, in undertaking the enquiry under s.5B(2), it has been held that a person does not breach his or her duty of care merely because there are steps that he or she could have taken to advert the risk that, in the event, materialised: Thornton v Sweeney [2011] NSWCA 244 at [131]; Novakovic v Stekovic at [42].

Issues for Determination in the Proceedings

1. [160]

   It is appropriate to now turn to a range of issues which fall for determination in the proceedings. Submissions were made by affected parties concerning these issues.

2. [161]

   The best way forward is to consider each issue by reference to its factual content. After conclusions have been reached concerning each of these issues, I will turn later in the judgment to the question of the consequences of these findings to issues of liability, allocation of responsibility and apportionment.

The Helmet Issue

1. [162]

   I have already made findings that Mr Edwards was not wearing a helmet at the time of the crash, and that the very severe head injuries which he suffered, including traumatic brain injury, would have been significantly or completely avoided if he had been wearing a helmet (see [74], [87]-[89] above).

2. [163]

   Dr Brock's conclusion concerning the likely causation of Mr Edwards' head injuries was not challenged by Endeavour in cross-examination. Nor was there challenge to the evidence of Dr Brock that, had Mr Edwards been wearing a helmet, his injuries would have been significantly or completely avoided.

3. [164]

   I have also found that located on the Precision refuelling truck at Ebenezer were two helmets of a suitable type to be worn by a person carrying out the functions performed by Mr Edwards (see [64] above). These helmets were left behind in the refuelling truck at Ebenezer.

4. [165]

   It was submitted on behalf of the Edwards children, Precision and Telstra that the provision of helmets lay within the discharge of the non-delegable duty of care owed by Endeavour to Mr Edwards, its employee, to take reasonable care and to ensure that reasonable care was taken to provide him with a safe place of work, safe system of work and safe plant and equipment.

5. [166]

   Endeavour personnel did not take steps to arrange for helmets to be provided for Endeavour staff, let alone seek to enforce any rule that helmets should be worn.

6. [167]

   The evidence of all witnesses was that helmets were not made available by Endeavour. Mr Collins gave evidence that no helmet was provided by Endeavour, and that no Endeavour personnel, including managers, ever said anything to him about wearing a helmet (T108). Mr Langerak gave evidence that there was no instruction regarding helmets, and that Endeavour never made helmets available (T123, 127). The statement of Mr Horne (Exhibit PH3, paragraph 21) noted that he discussed the fact that helmets were not worn with Mr Healy, an Endeavour employee, and was informed by Mr Healy that he (Mr Healy) knew persons were not wearing helmets and why they were not doing so (due to discomfort).

7. [168]

   Endeavour's response to interrogatories by Telstra stated that Endeavour did not have a written policy or procedure with respect to the wearing of protective equipment during low-level aerial surveillance as at 4 April 2006 and that, although helmets were made available for use by Endeavour employees performing low-level aerial surveillance, it was not mandatory to do so.

8. [169]

   Endeavour's documents set out the task profile for aerial inspection of lines, with specified safety equipment including "helmets Nomex or equivalent" (Exhibit TC8, pages 287, 289, 293). The evidence demonstrates that the provision of helmets was a well-recognised industry standard precaution against injury, in the context of aerial power line inspections since the 1990s (Exhibit TC8, pages 349, 384, 447; Exhibit EE2, page 303).

9. [170]

   Neither of Endeavour's relevant workplace instruction documents prescribed that Endeavour crew on helicopter aerial inspections should wear helmets (Exhibit EE2, page 341ff, 428ff).

10. [171]

    The reports of Mr Ogden make clear that, by early 2006, it had been known for decades that the risk of severe and fatal injuries in helicopter crashes could be drastically reduced by the wearing of helmets (Exhibit EE2, pages 4-7, 31-34, 37, 39).

11. [172]

    There is no evidence of Endeavour having taken steps to ensure that appropriate helmets were made available to crew members embarking on aerial inspections, nor that they be warned of the heightened risk associated with flying at low level on such operations without a helmet, or that they be required, or at least encouraged, to wear one.

12. [173]

    Helmets would not have been prohibitively or disproportionately expensive. They were commercially available for $1,500.00-$2,000.00 each (T301-302). It was the evidence of Dr Brock that suitable helmets, capable of providing protection against head injury of the type sustained by Mr Edwards, were available commercially in Australia in 2006.

13. [174]

    There is no evidence of any practical difficulty restricting Endeavour's ability to have available a range of sizes and fittings of helmets, so as to be able to provide one for each crewmember in any combination. In circumstances where Endeavour conducted low-level area inspection over a large area every year, helmets were a necessary and relatively inexpensive item of safety equipment to use.

14. [175]

    To Endeavour's knowledge, its employees had resisted the wearing of helmets (presumably when offered by Precision staff) on grounds of comfort. Endeavour did not attempt any employee education campaign or offer any encouragement to overcome such resistance (Mr Collins, T108; Mr Langerak, T127).

15. [176]

    I accept the submissions made against Endeavour on this aspect. Endeavour ought to have provided helmets to staff, and directed the wearing of helmets by its employees. There was a clear risk to staff members in the context of an accepted industry practice that wearing of helmets should occur.

16. [177]

    It was submitted on behalf of the Edwards children, Telstra and Precision that Mr Edwards' long-term brain damage was directly caused by Endeavour's failure to implement a requirement of wearing helmets. I accept this submission.

17. [178]

    It was submitted against Endeavour, and I accept, that it was the serious brain injuries sustained by Mr Edwards which constituted the overwhelming cause of his injury, now measured by an agreed notional common law damages sum of $16 million. It was submitted that his other injuries were relatively minor. In this way, it was submitted that the wearing of a helmet would have averted his long-term injury, with any measure of common law damages for other physical injuries he received being negligible (those injuries being a fracture of the right phalanx of the ring finger, a right shoulder laceration and pulmonary contusions).

18. [179]

    It was submitted against Endeavour that it may be said safely, as a matter of practical assessment, that the entirety of the damages which are the subject of the s.151Z WC Act recovery claim have been caused by the absence of a helmet. It is further submitted that the absence of a helmet was attributable to Endeavour's failure to establish a system and work practice of requiring the wearing of such protective equipment.

19. [180]

    Endeavour made a number of submissions on the helmet issue. No submission was advanced that Endeavour was not liable on the helmet issue. Endeavour's submissions were directed at Precision. It was emphasised that there was no evidence that Mr Edwards had ever been offered a helmet by Precision. Reference was made to the evidence of Mr Horne (of Precision) that two helmets remained in the refuelling truck, with Mr Horne expressing doubt that he had told Mr Edwards of the presence of these helmets.

20. [181]

    Endeavour made general submissions by reference to Clause 224 Civil Aviation Regulations 1988 (Cth), which requires the operator (Precision) to designate one pilot to act as pilot in command for each flight, with the pilot in command being responsible for the operation and safety of the aircraft and the safety of persons on board for the entire flight.

21. [182]

    Endeavour submitted that whilst Precision had no regulatory obligation to provide helmets, Mr Horne must have considered that there was a real risk of injury if helmets were not worn by those on board the helicopter, with this serving to explain why helmets were in the refuelling truck. In these circumstances, it was submitted that Mr Horne's omission to tell Mr Edwards of the availability of helmets was a breach of Precision's duty of care to Mr Edwards, arising from Mr Horne's appreciation of the risk. Conclusions on the Helmet Issue

22. [183]

    There can be no doubt that the fact that Mr Edwards was not wearing a helmet was a critical causal factor in him sustaining the terrible head and brain injuries suffered on 6 April 2006. His employer, Endeavour, bore a non-delegable duty to provide him with a safe system of work including safety equipment, such as a helmet. I am satisfied that there was a clear breach of this duty in the circumstances of this case. Endeavour was well aware that its staff members were regularly travelling in helicopters as part of the aerial inspection function, which formed part of its business. Accepted industry practice for some considerable time, had emphasised the importance of wearing helmets in helicopters when such activities were being undertaken. Endeavour had no mandatory practice in this respect. Indeed, there does not appear to be any structured practice at all, on the evidence, for the provision of helmets to Endeavour personnel undertaking these functions.

23. [184]

    Further, the cost of helmets of this type was reasonable, and certainly not prohibitive.

24. [185]

    The evidence demonstrates that, to the extent that helmets had apparently been worn at times by Endeavour personnel, those persons expressed reluctance to do so on comfort grounds. That this approach was taken serves to demonstrate the lack of any system on Endeavour's part to educate its own staff concerning the need for helmets in the discharge of this important function. Further, it serves to establish that the provision of helmets to Endeavour staff was apparently by way of an ad hoc process where the operator, such as Precision, may have some helmets available, which Endeavour staff did not wish to wear. All of this serves to emphasise the absence of any system on the part of Endeavour in the discharge of its non-delegable duty to devise and maintain a safe system of work for its employees.

25. [186]

    I am satisfied that a clear breach of duty of care has been demonstrated on the part of Endeavour, and that this breach is a direct cause of the grave injuries sustained by Mr Edwards.

26. [187]

    It may be accepted that Mr Carter carried significant responsibilities, as pilot in command of the helicopter on 6 April 2006, consistent with his obligations under Clause 224 Civil Aviation Regulations 1988 (Cth). However, it was not submitted by Endeavour at the hearing, nor was it put to Mr Carter in cross-examination, that this responsibility extended to provision of helmets to occupants of the helicopter, let alone enforcing the wearing of helmets by all persons in the helicopter.

27. [188]

    I do accept, however, that the presence of two helmets in the refuelling truck at Ebenezer points to an availability for helmets, capable of being used as part of this aerial inspection operation. If Mr Horne had made the presence of these helmets known to Mr Carter, then it would have been open to Mr Carter to make the helmets available to Endeavour personnel to be carried in the helicopter. However, this scenario did not arise as Mr Carter was not informed of the location of the helmets in the first place.

28. [189]

    There is a basis for criticism of Precision and Mr Horne in not taking steps to promote the wearing of helmets by Endeavour staff on 6 April 2006. The question is whether Precision ought be found liable in negligence to Mr Edwards based upon the helmet issue. The fact that Endeavour had a responsibility, indeed the primary responsibility in this respect as Mr Edwards' employer, does not mean that Precision cannot be found liable itself on a basis connected to the helmet issue. Liability may arise in different persons based upon the failure to provide helmets: cf Gaskin v Ollerenshaw [2012] NSWCA 33 at [56]-[58].

29. [190]

    Applying ss.5B, 5C and 5D Civil Liability Act 2002, I am satisfied that the failure of Mr Horne to inform Mr Carter and Mr Edwards (at the least) of the ready availability of helmets capable of being worn in the helicopter, involved a failure to take precautions with respect to a foreseeable and significant risk, in circumstances where a reasonable person in Mr Horne's position would have taken those precautions. A causal link is demonstrated by reference to factors in s.5D of the Act.

30. [191]

    Accordingly, there is a basis for attributing some level of responsibility with respect to the non-use of helmets to Precision, in the circumstances of this case. However, it was Endeavour which bore the primary responsibility in this respect as Mr Edwards' employer. Not only was Endeavour obliged to have a system in place to supply helmets, but it bore the obligation to enforce their use by Endeavour employees. There was a complete failure by Endeavour to discharge its responsibility in this regard.

31. [192]

    The appropriate share of responsibility in this respect would see Endeavour bearing 85% and Precision 15% only of the legal responsibility arising from the helmet issue.

32. [193]

    I will give effect to this conclusion, as part of the process of apportionment of responsibility which is required for the purposes of s.151Z WC Act.

Failure of Telstra to Remove the Catenary Wire or Advise of Its Presence

1. [194]

   Submissions were made on behalf of Endeavour and the Edwards children against Telstra on this issue.

2. [195]

   Factual findings have been made earlier concerning the location of the Telstra catenary wire on the Inmans' property, and the assessment by Telstra that it was no longer necessary, but with the wire being left on the property despite this view being formed by Telstra (see [47]-[56] above). Submissions for Endeavour

3. [196]

   Endeavour submitted that Telstra owed Mr Edwards a duty of care. Reliance was placed upon the statements of Allsop P (Basten JA and Simpson J agreeing) in Caltex Refineries (Qld) Pty Limited v Stavar [2009] NSWCA 258; 75 NSWLR 649 at 676 [102], where the President observed that, if "the posited duty is a novel one, the proper approach is to undertake a close analysis of the facts bearing on the relationship between the plaintiff and the putative tortfeasor by references to the 'salient features' or factors affecting the appropriateness of imputing a legal duty to take reasonable care to avoid harm or injury".

4. [197]

   Allsop P listed, at 676 [103], 17 salient features which his Honour stated (at 676 [104]) were neither exhaustive nor compulsory, but rather 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". The features identified at 676 [103] were as follows: "(a) the foreseeability of harm; (b) the nature of the harm alleged; (c) the degree and nature of control able to be exercised by the defendant to avoid harm; (d) the degree of vulnerability of the plaintiff to harm from the defendant's conduct, including the capacity and reasonable expectation of a plaintiff to take steps to protect itself; (e) the degree of reliance by the plaintiff upon the defendant; (f) any assumption of responsibility by the defendant; (g) the proximity or nearness in a physical, temporal or relational sense of the plaintiff to the defendant; (h) the existence or otherwise of a category of relationship between the defendant and the plaintiff or a person closely connected with the plaintiff; (i) the nature of the activity undertaken by the defendant; (j) the nature or the degree of the hazard or danger liable to be caused by the defendant's conduct or the activity or substance controlled by the defendant; (k) knowledge (either actual or constructive) by the defendant that the conduct will cause harm to the plaintiff; (l) any potential indeterminacy of liability; (m) the nature and consequences of any action that can be taken to avoid the harm to the plaintiff; (n) the extent of imposition on the autonomy or freedom of individuals, including the right to pursue one's own interests; (o) the existence of conflicting duties arising from other principles of law or statute; (p) consistency with the terms, scope and purpose of any statute relevant to the existence of a duty; and (q) the desirability of, and in some circumstances, need for conformance and coherence in the structure and fabric of the common law."

5. [198]

   Endeavour submitted that when the list is addressed by reference to the facts of this case, there are compelling grounds for the existence of a duty of care owed by Telstra to Mr Edwards and the identification of its content and scope. Endeavour submitted that the catenary wire remained supported 10 metres above ground across the Inmans' property, unnecessarily as it was no longer in use. It was strung from poles situated in the tree line and was difficult to see. Its redundant nature had been known to Telstra for almost six years prior to the accident. Telstra had regularly inspected the supporting poles, and its servants were frequently in the local area.

6. [199]

   Endeavour submitted that foreseeability of harm was made out. Permitting a low unused wire to remain hanging over a rural property was said to constitute a clear circumstance from which potential harm was neither far-fetched nor fanciful. It would represent a potential hazard to the owners of the property, or their servants and agents who worked on the property. More particularly, it was submitted that structures such as this catenary wire were notorious as potentially catastrophic hazards to low-level aircraft, and those on board them.

7. [200]

   Endeavour submitted that the nature of the harm was personal injury of a potentially catastrophic nature, and that this was a consideration well established as capable of giving rise to the existence to a duty of care. Senior counsel for Endeavour submitted that the catenary wire constituted a concealed trap.

8. [201]

   Endeavour submitted that Telstra had complete control to avoid the likely harm. It was Telstra's infrastructure, which it had the power to inspect at will, and the right to remove at any time. It was submitted that it ought to have been removed as early as September 2000.

9. [202]

   Endeavour submitted that the facts in this case established many of the facts giving rise to the existence of a duty of care by Telstra to a class of persons which included Mr Edwards.

10. [203]

    Endeavour submitted that Telstra had not called any local employee from any of the regions affected during the years 2003-2006, and that it was highly improbable that Telstra staff were unaware because of the publicity campaign undertaken by Endeavour and actual observations during inspections over that period.

11. [204]

    Endeavour submitted that the failure of Telstra to remove the catenary wire, as and from 2000, constituted a clear breach of its duty and the cause of the injury sustained by Mr Edwards. Submissions of Telstra

12. [205]

    In response to Endeavour's submissions, Telstra contended that the factor which is decisive on this issue is the unlikelihood of a helicopter flying at an extremely low level in this narrow paddock on the Inmans' property. For the purpose of s.5B(2), the "risk of harm", in the context of this litigation, is the risk of aircraft flying across the triangular paddock area, at a level low enough to contact the catenary wire (at a height of 12 metres or 40 feet or lower).

13. [206]

    Applying s.5B(2)(a), Telstra submitted that the probability that the harm would occur if care were not taken was nil, from the point of view of a reasonable person in the position of Telstra.

14. [207]

    Telstra submitted that the circumstances did not suggest any possible risk of harm to any person or thing from the catenary wire, other than from contact with it by aircraft flying at a very low level. Given that such a risk had nil probability from the point of view of a reasonable person in the position of Telstra, no precautionary action on Telstra's part was called for.

15. [208]

    Telstra submitted that it was instructive that Mr and Mrs Inman, who by way of contrast to Telstra, were at least aware of helicopters flying along the river, had no concerns as to any risk posed by the catenary wire. Their only concern was the risk to their tractor and cattle posed by the Telstra service line being on the ground (Exhibit EE2, pages 115, 120).

16. [209]

    It was submitted that, from the point of view of a reasonable person in Telstra's position up to 4 April 2006, all of the physical circumstances of the location of the catenary wire were contraindications of low flying in the area. Telstra submitted that physical circumstances of particular importance were:

    1. (1)

       the surrounding steep hills, closely confining the triangular paddock area in the manner of an amphitheatre;

    2. (2)

       the narrowing shape of the paddock, with its steep wooded surrounding hills, closing into a "dead end" effect where the paddock terminated in Shepherds Gully;

    3. (3)

       the absence of any feature of the wider surrounding countryside, which might have suggested that this narrowing, valley floor paddock was on a flying route from or to anywhere;

    4. (4)

       the complete absence of any indication in the physical condition of the Inmans' property, or its surrounds, of any landing place or other indicia of the utilisation of the area for very low-level flight.

17. [210]

    Also absent was any indication to Telstra, by way of direct or indirect communication or notification, that there existed any possibility of low-level flight taking place in this area for any purpose. It was pointed out that Telstra had no notification that low-level aerial inspection of electricity wires took place, either in general or in the vicinity of the Inmans' property in particular. Given the absence from the physical circumstances of any cue, to a reasonable person in Telstra's position, that low-level flying might take place, it was submitted that such communication or notification would have been the only other way in which the possibility of the relevant risk of harm could come to the attention of a reasonable person in Telstra's position.

18. [211]

    Telstra submitted that the unlikelihood of a helicopter flying at a very low level into this narrow paddock also negated the liability of Telstra, at the stage of applying s.5B(1).

19. [212]

    For the purposes of s.5B(1)(a), it was submitted that the "risk of harm" (that is, the risk of a helicopter flying into the catenary wire at a height of 12 metres or 40 feet) was not foreseeable. It was submitted that there was no evidence from which it could be concluded that there was a risk that Telstra actually knew, and it was submitted that the circumstances would not support a finding that it was a risk which Telstra ought to have known.

20. [213]

    For the purposes of s.5B(1)(b), Telstra submitted that the unlikelihood of such low-level flight in this location was of such a high degree, that the risk of aerial collision with the catenary wire was beyond insignificant, and was negligible. No doubt if a helicopter should fly across the paddock at below 12 metres or 40 feet, there was a significant risk of it contacting the catenary wire. But the absence of any significant risk of this occurring arose from the extreme unlikelihood of any such flight taking place.

21. [214]

    For the purposes of s.5B(1)(c), Telstra submitted that a reasonable person in Telstra's position would not have taken any precaution against the risk of such an aerial collision. That was because it would not occur to a reasonable person, given the physical surrounds and the absence of any notification of Endeavour's activities, that low-level flight within the paddock would ever occur.

22. [215]

    Telstra submitted that it was instructive to compare and contrast the findings of the Full Court of the Supreme Court of Tasmania in Pester v Marsland (1997) 7 Tas R 233 at 238-239, 260 that it was not foreseeable that a pilot would have flown at such a low level over a lake in the vicinity of power lines, with those of Hodgson JA in Sheather v Country Energy at [43], as to the "striking combination of circumstances concerning this particular power line ... that makes it a particular source of risk".

23. [216]

    It was submitted that this combination of circumstances was absent in this case and, as in Pester v Marsland, the Court should find that no reasonable person in Telstra's position would have foreseen that low-level flight within the Inmans' paddock would ever occur.

24. [217]

    With respect to any claim against Telstra based on a breach of statutory duty under the Telecommunications Act 1997 (Cth), it was submitted that there was nothing in that statute which created any duties towards a class of persons of which Mr Edwards was a member. The provisions of that statute provide a statutory basis for telecommunication carriers, such as Telstra, having access to properties for the purpose of installing and maintaining infrastructure. Resolution of Competing Submissions

25. [218]

    It is necessary to keep in mind the requirement to avoid hindsight reasoning. It may be readily concluded that the continuing presence of the catenary wire played a critical role in the helicopter accident on 4 April 2006. That, however, does not constitute a response to the question concerning any liability of Telstra, as a result of the wire strike which occurred on that day.

26. [219]

    It is clear that Telstra had taken a decision that the catenary wire ought be removed. However, that decision was not based, in any way, upon a view that the existence of the catenary wire constituted a risk to anyone, let alone low flying aircraft. The decision to remove the catenary wire was based essentially upon the fact that it fulfilled no useful purpose. The absence of any urgency in action to remove the catenary wire in these circumstances is understandable.

27. [220]

    It is useful to take into account the apparent lack of concern on the part of Mr and Mrs Inman, as to any risk constituted by the catenary wire to low-flying aircraft. Mr and Mrs Inman were aware that helicopters would pass over the property, from time to time, undertaking the aerial power line inspection process. The fact that Mr and Mrs Inman, who impressed as thoughtful and sensible persons, apparently did not consider there was any risk of wire strike with the catenary wire is a practical barometer of the approach which a reasonable person may take to assessment of this risk.

28. [221]

    Competing submissions were made by Endeavour and Telstra concerning the relevance of the generalised Endeavour media publicity campaign to this issue. There was no express communication by Endeavour with Telstra. I am not persuaded that this aspect assists Endeavour in any material way on this issue. There was no specific notification by Endeavour to Telstra of the planned action.

29. [222]

    As will be seen a little later, when I come to consider liability on the part of Precision on aviation grounds, it seems clear, and should be inferred, that no previous helicopter undertaking aerial power line inspections for Endeavour in this area had passed on the left side of the power line (flying north to south), so as to bring the helicopter into close proximity with the catenary wire. If this had happened before, an accident such as occurred on 4 April 2006 would no doubt have occurred. This issue is relevant, as well, to the question of remoteness of the event in question happening.

30. [223]

    This was, in truth, an out-of-use catenary wire in an obscure location, well removed from any area where it might reasonably be considered that a helicopter would fly.

31. [224]

    It is necessary to keep in mind that what is presently under consideration is whether Telstra owed a duty of care to Mr Edwards, and whether that duty was breached. In my view, the closest that Endeavour (and the Edwards children) come to demonstrating any breach of duty on Telstra's part in this respect is a finding that a reasonable person would have expected that helicopters would pass over some part of the Inmans' property, in the process of aerial power line inspection (as has happened in the past). However, it is a considerable further leap to conclude that a reasonable person would foresee that a helicopter would fly at very low altitude (12 metres or 40 feet, or lower) in close proximity to the catenary wire.

32. [225]

    I do not accept the submission on behalf of Endeavour that the presence of the catenary wire on the Inmans' property constituted a type of concealed trap. In Lipman v Clendinnen [1932] HCA 24; 46 CLR 550, Dixon J at 568 cited the following statement of Lord Sumner in Latham v Johnson (1913) 1 KB 415: "A trap is a figure of speech, not a formula. It involves the idea of concealment and surprise of an appearance of safety under circumstances cloaking a reality of danger."

33. [226]

    The circumstances of this case are very far removed from those where that term may be rightly used. In my view, the present case may be characterised as one where the presence of the helicopter, in close proximity to the catenary wire, involved a type of freak and most unexpected event. It was not reasonably foreseeable. The question of any liability of Telstra should be considered with this conclusion in mind.

34. [227]

    I am not satisfied that Telstra is liable for any breach of duty to Mr Edwards. The claims by the Edwards children and Endeavour, based on this claim, should not succeed.

35. [228]

    Further, I am not satisfied that any breach of duty by Telstra under the Telecommunication Act 1997 (Cth) has been established. Submissions on Behalf of Telstra, Precision and the Edwards children

Issues Arising From Suggested Inspection and Mapping Failures on the Part of Endeavour

1. [229]

   Detailed submissions were made on behalf of Telstra on this issue, which were adopted by Precision and the Edwards children. The effect of these submissions was that Endeavour was liable upon a number of bases, arising from its obligations as Mr Edwards' employer, in areas concerning the planning of the aerial power line inspection on 4 April 2006, the provision of maps and associated issues.

2. [230]

   Of course, these matters are additional to any liability Endeavour has concerning the helmet issue, which I have already addressed.

3. [231]

   Telstra submitted that the hazards of aerial inspection were well understood in the electricity supply industry by April 2006. It was submitted that, in April 2006, the low flying which was involved in aerial inspection of power lines, self-evidently involved significantly risks. These included:

   1. (1)

      risk of mid-air collision with above-ground hazards;

   2. (2)

      in particular, risk of collision with wires extraneous to those being inspected, such as over crossing or converging wires, whether owned by the entity carrying out the inspection or by a third party, and

   3. (3)

      the obvious risk that in the event of such a collision, employees constituting the helicopter crew, for the purpose of the inspection, would suffer serious injury.

4. [232]

   Telstra pointed to documents in evidence which demonstrated that, by 4 April 2006, the significant degree of risk in the activity was well and widely understood in the electricity supply industry. Reference was made to guidelines published by industry peak bodies in 1991, 1992, 2001, 2004 and 2006 (Exhibit TC8, pages 338-450; Exhibit EE2, pages 285-326).

5. [233]

   Telstra referred to what it described as the first standard precaution against wire strike - mapping and listing hazards and briefing the pilot. In this respect, reference was made to a range of documents in evidence of which the following are examples.

6. [234]

   Endeavour's operational document GNV 1010 of 16 June 2003 ("Document No. GNV 1010") was incorporated in its contract with Precision (Exhibit EE2, page 428ff). Clause 5.1.2 (at page 429) includes the following (emphasis added): "Where the helicopter service is to be used for the planned inspection of power lines, particular attention is to be given to the preparation of route plans. The intended flight path is to be highlighted to give a clear indication of the planned area of work. As power line over-crossings present a considerable risk to this type of inspection work, such crossings are to be distinctively highlighted and identified on the plan and the location conveyed to the pilot and inspection crew. Particular attention is to be given to power lines owned by other organisations such as Transgrid, State Rail etc to ensure these lines are suitably highlighted on the route plans. All such crossings shall be detailed on the Hazard and Risk Assessment Form".

7. [235]

   Clause 5.1.3 of the same document stated (page 429): "5.1.3 Route and hazard marking All hazards such as overhead power line crossings, close parallel overhead power lines, converging overhead power lines, and overhead power lines having substantial conductor vertical fall shall be marked on the route plan".

8. [236]

   In the same way as other industry guides, Endeavour's Document No. GNV 1010 also prescribed a pre-flight briefing in which the pilot, amongst others, would be fully informed as to matters including "location of any known over crossings, aerial rope ways, high structures, areas to be avoided ...".

9. [237]

   Clause 6.0 of Endeavour's Document No. GNV 1010 (Exhibit EE2, page 430) stipulated that inspection crews were: "... responsible for the marking up of the supplied route plans with the intended flight route, the completion of the Worksite Coordination/Hazard and Risk Assessment Form and participation in the pre-flight briefing for the communication of the intended inspection route and any local constraints".

10. [238]

    These various provisions were repeated in the revisions of Document No. GNV 1010, in March 2004 and March 2005.

11. [239]

    Endeavour's business workplace instruction of 14 April 2005 (Document WNV 1012) contained the following direction (Exhibit EE2, page 345) (underlining in original document): "The locations of all other authorities transmission lines (eg. Transgrid, SRA etc) are also to be marked on the Bushfire Maps to indicate where these lines cross Integral Energy's lines."

12. [240]

    Telstra submitted that, despite Endeavour having recognised in its own documents the hazard of extraneous wires, and this first category of industry standard precautions with respect to them, no system was instituted by Endeavour to give effect to this precaution.

13. [241]

    Telstra referred to what it described as a second standard precaution against wire strike - the use of warning markers placed on the approach to a hazard. It was submitted that the industry guidelines recommended placement of markers on poles of the line to be inspected, on the approach side of such poles leading towards any extraneous wire over crossing or convergence, to warn the pilot and crew of proximity to the potential hazard (Exhibit TC8, pages 349-350, 384-385, 444; Exhibit EE2, page 302).

14. [242]

    Telstra noted that Endeavour's Document No. GNV 1010 adopted this industry standard precaution (Exhibit EE2, pages 429-430, Clause 5.1.3). This requirement was repeated in each of the subsequent versions of Document No. GNV 1010.

15. [243]

    Telstra submitted, however, that this was only a paper recognition of the requirement. The absence of any system of collecting ground-based observation data about existing wire hazards, meant that there was no systematic placement of warnings of approach to converging or over crossing wires.

16. [244]

    Telstra submitted that the evidence demonstrated that there was no such warning on the poles of the private line on the Inmans' property with respect to the converging Telstra catenary wire.

17. [245]

    Telstra pointed to a third standard precaution against wire strike - the use of an informed observer.

18. [246]

    Each industry guide recommended the appointment of crew to include an observer, who would be familiar with the line to be inspected and with hazards within its vicinity, and who would assist the pilot by providing advance warning of such hazards, and keeping track of the aircraft's position in relation to such hazards (Exhibit TC8, pages 351-352, 386-387, 442-443; Exhibit EE2, pages 294, 297).

19. [247]

    Endeavour's Document No. GNV 1010 adopted this aspect of the procedure (Exhibit EE2, page 429, Clause 5.1.1, set out at [60] above). Telstra submitted that the absence of any system of collecting ground-based observation data about hazards meant that the observer could not perform the essential safety function for which he was made part of the crew. No effective system was adopted for identifying hazards from the ground, where they could be seen, so as to make the observer conversant with such hazards, and to enable him to provide the pilot with advance warning.

20. [248]

    Telstra pointed to what was described as an implicit requirement of a precaution against wire strike - the use of ground surveys for hazards.

21. [249]

    The 2004 guide prescribed the following at the end of Clause 12.1 (Exhibit EE2, page 300): "The person(s) planning the route shall gather information relating to adjoining networks and surrounding services that may impact on the safe operation of the work".

22. [250]

    Telstra submitted that this provision contained a requirement, which was otherwise an assumption underlying each of the guides. That assumption was that the electricity supply company which proposed to carry out aerial survey work, would first gather data concerning the nature and location of aerial hazards. Necessarily, in many locations, the only way of doing this would be by way of observation from the ground, along the route of the power line to be inspected.

23. [251]

    Quite apart from this express stipulation in the 2004 guide, Telstra submitted that it was implicit in each of the three standard precautions referred to above, that reasonable care on the part of an electricity supply company would require that, before proceeding with an aerial survey, it should first ascertain where potential extraneous wire hazards were located. Until this was known, it was submitted that they could not be marked on route marks or briefing sheets, the pilot could not be briefed with respect to them, markers could not be placed, and the crew member who was to act as observer could not make himself sufficiently familiar with the location of hazards, so as to be able to perform his safety function of assisting the pilot.

24. [252]

    Telstra noted that the evidence of the aviation experts established that it was extremely difficult to detect the existence of over crossing or converging wires from an aircraft, particularly single wires. Hence, an initial over flight of the inspection route, conducted at a safe height for the preliminary purpose of finding hazardous extraneous wires, would not likely be successful (T291, 295). It was submitted that the photographs in evidence support the view of the aviation experts.

25. [253]

    On the other hand, Telstra submitted that a potential hazard of extraneous wires was readily visible from the ground (T292). This meant that ground-based surveys for hazards should have been carried out by Endeavour, as an element of exercising reasonable care to avoid an air accident, before an aerial patrol or inspection took place.

26. [254]

    Such a policy had been introduced by Endeavour after the accident (Exhibit TC8, pages 287, 291, 295). Prior to the accident, Endeavour staff were on the ground in the area from time to time, even if not performing ground-based maintenance inspections. A starting-point survey was required, followed by a system for updating the original survey, at least through observations made by workers engaged in routine travel along power line routes.

27. [255]

    Telstra submitted that both of the aviation experts, Mr Ogden and Mr Macarthur-Onslow, accepted that, having regard to the unlikelihood of being able to detect an extraneous wire hazard from the air, the only two possibilities for having advanced warning were (T295):

    1. (1)

       for the pilot, or another employee of the air operator, to walk or drive the power line before over flying it;

    2. (2)

       for the pilot and air operator to rely upon the electricity supply company to have done this, and to supply reliable information about the existence or otherwise of wire hazards.

28. [256]

    Although these answers were expressed in the present sense, Telstra submitted (and I accept) that it is evident from the content of the evidence of the aviation experts that they were addressing aviation practice at the time of the accident in April 2006. Neither witness had suggested that any change in practice had occurred since that time.

29. [257]

    Both experts also agreed that it was not the practice of pilots or air operators to conduct their own ground surveys in relation to assignments such as this (T295). The evidence of both pilots was, accordingly, that air men and air operators on such an assignment rely necessarily upon advice given to them by the infrastructure owner, as to what extraneous wire hazards are located along the line of inspection (T295).

30. [258]

    Telstra submitted that the guides referred to earlier indicate that it was the expectation of the electricity supply industry that the task of making a ground survey to identify potential wire hazards, for the purpose of rendering aerial inspections safe, was to be undertaken by the electricity supply company itself.

31. [259]

    Endeavour's own workplace instructions, the Document Nos. GNV 1010, and WNW 12 (Exhibit EE2, pages 345, 429) showed that Endeavour accepted that the necessary task of ground survey for aerial hazards was to be undertaken by it. Telstra submitted that this became effectively a contractual matter between Endeavour and Precision, by the incorporation of Document No. GNV 1010 in the contract between those parties.

32. [260]

    This represented, it was submitted, a consensus between the aviation industry, the electricity supply industry, Endeavour and Precision as to where this responsibility lay.

33. [261]

    Telstra submitted that Endeavour did not implement a system of ground-based hazard identification, nor did it brief Mr Carter on discernible hazards.

34. [262]

    Reference was made to evidence that Endeavour conducted regular periodic ground-based maintenance inspections of its infrastructure prior to April 2006, including the area of the subject line (Mr Collins, T104, 107-108). Endeavour acknowledged that it conducted such ground-based inspections in its advertising (Exhibit EE2, page 680) and in answers to interrogatories (Exhibit TC8, pages 1787-1788).

35. [263]

    Telstra submitted that systematic collection of data regarding location and type of hazards for inclusion on aerial survey route maps, and on pilot briefing sheets, and for the provision of adequate instruction to the Endeavour employee who was to be observer on any inspection flight, would readily have been achieved as a task ancillary to Endeavour's routine performance of other functions on the ground.

36. [264]

    However, the evidence indicated that no system of collecting and recording data of this type was implemented (Mr Collins, T104, 107-108; Mr Langerak, T121).

37. [265]

    Telstra submitted that the only work-safety check lists used in connection with the flights on 3 and 4 April 2006 were expressed at a high level of generality, both as to the nature of potential hazards and as to the manner in which identified risks might be addressed. The lists did not identify the subject catenary wire, nor any other specific physical hazard along the aerial inspection route.

38. [266]

    On the approach flight towards the Inmans' property on 4 April 2006, Mr Edwards and Mr Carter observed another Telstra wire at the river crossing which constituted a potential hazard (T164-165). An examination of the Endeavour route map showed that this other Telstra wire was not marked, nor was it referred to on the work-safety check list. Telstra submitted that the manner in which Mr Carter described it as having been observed, indicated that it had not previously been known to Endeavour personnel on the aircraft.

39. [267]

    Telstra noted that there was no evidence of Endeavour having undertaken any ground survey for hazards prior to undertaking its aerial inspection, either in the vicinity of the Inmans' property, or anywhere along the power lines which were to be examined on 3 and 4 April 2006.

40. [268]

    The absence of any warning on any map or schedule of either the catenary wire or the other Telstra wire across the river, resulted from there being no ground survey. It was submitted that there was no basis for concluding that Endeavour had made a ground-based inspection for hazards, but had missed these two items for any excusable reason. Telstra submitted that the catenary wire, at least, could not have been missed from the ground if reasonable care had been taken to look for it.

41. [269]

    Telstra submitted that Endeavour did not make enquiries of other infrastructure owners concerning hazards. There was no evidence that Endeavour had made any enquiry of Telstra, or any other potential owner of infrastructure in the area, for the purpose of collecting data on potential hazards to incorporate on a route map, or on a schedule of hazards, or otherwise for the purpose of briefing the pilot. Nor was there any evidence of the proposed aerial inspection having been brought to the attention of anyone within Telstra, in such a manner that Endeavour could reasonably infer, in the absence of warning from Telstra, that there was no potentially hazardous infrastructure in the area.

42. [270]

    Telstra submitted, in particular, that the advertisements placed in newspapers local to the Inmans' property did not notify Telstra, in a manner which Endeavour could reasonably assume, would have prompted Telstra to inform it of the presence of any dangerous wires. The advertisements gave no notification of the height above ground level at which the helicopter was to fly, nor did they indicate what types of power lines would be overflown - whether the aerial inspection was to be limited to high tension wires for long distance transmission between steel towers, or whether the helicopter would descend to low voltage private power lines on poles of up to 25 feet.

43. [271]

    Telstra noted that no evidence had been called by Endeavour to establish that anyone within Endeavour, who was responsible for ascertaining the existence of hazards along the route to be inspected by air, expected to be informed by Telstra of the existence of its overhead wires in the Lower Macdonald/St Albans locality, or inferred in the absence of any notification from Telstra that there were none.

44. [272]

    The maps of the location of Endeavour's power lines to be inspected on 4 April 2006, as provided to the pilot, did not even show the Inmans' private line, let alone any hazards in the vicinity (Mr Collins, T112; Exhibit EE2, page 801). Nor did Mr Edwards, or anyone else on behalf of Endeavour, inform the pilot orally that this segment of the private line existed, and was to be inspected (T164).

45. [273]

    Mr Carter had found Endeavour's maps of the location of infrastructure, as provided by Mr Edwards in previous years, to be accurate (Exhibit EE8, page 112). Telstra submitted that Mr Carter naturally and predictably relied upon their accuracy on this occasion. Given that the route had been flown without incident on other occasions, it was submitted that it would be natural for Mr Carter to take the absence of hazard markings on the maps to indicate that there were not any (T169).

46. [274]

    The aviation experts accepted that it was the practice in their profession for a pilot, on this kind of assignment, to rely upon the information supplied by the client (Endeavour) as to whether there were low-level hazards near its lines (T295). Telstra submitted that it could hardly be otherwise.

47. [275]

    Telstra submitted that the wire strike and crash were caused by Endeavour's failures to implement industry standard precautions. It was submitted that the causes of the wire strike and crash were, in combination, the serial failures of Endeavour to implement the industry standard precautions as set out above. In summary, Telstra submitted that:

    1. (1)

       Endeavour failed to survey the proposed route of the aerial inspection from the ground for hazard identification - either by dedicated survey, or by instituting a system of collecting the observations of linesmen, made in the course of performing their other ground-based maintenance and inspection functions;

    2. (2)

       because Endeavour did not carry out a ground-based survey, the readily discoverable catenary wire was not identified by Endeavour personnel to the pilot in any manner, either by marking on a map, by including it on a list of hazards or by oral warning;

    3. (3)

       for the same reason, the Endeavour observer was not equipped with knowledge of hazards, and could not assist the pilot to avoid danger.

48. [276]

    Telstra submitted that the complete failure on the part of Endeavour to provide the pilot with adequate information, both as to the existence of the private line and of the hazard in its vicinity, led to a situation where, following a reasonable choice of course along the private line, Mr Carter collided with the catenary wire. Submissions of Endeavour

49. [277]

    Endeavour's responses to these submissions were succinct.

50. [278]

    Endeavour submitted that, prior to 30 June 2003, it was not required to carry out ground inspections of private power poles and lines, such as on the Inmans' property, beyond the metering point (Exhibit EE2, pages 461-462).

51. [279]

    From 30 June 2003, Endeavour was required to carry out ground inspections of private poles and lines every 4.5 years (Exhibit EE2, pages 513-514). Ground inspections had been carried out on the Inmans' property on 21 October 1999, 27 April 2002 and 28 June 2004, but none of these inspections were of the private poles and lines beyond the metering point.

52. [280]

    It was submitted that it was clear that Endeavour employees did not enter onto the Inmans' property south of the metering point prior to the accident on 4 April 2006. In those circumstances, given the position of the metering point, it was submitted that Endeavour employees would not have been able to see to the area where the catenary wire was located, or be aware of its existence.

53. [281]

    With respect to alleged failures to comply with contractual obligations to mark lines on maps as part of the preparation for aerial inspection, Endeavour submitted that the requirement in Clause 5.1.3 of Document No. GNV 1010 related to overhead power line crossings, close parallel overhead power lines, converging overhead power lines and overhead power lines having substantial conductor vertical fall, none of which had any relevance to this case.

54. [282]

    Endeavour's response to Telstra's submissions, made by reference to the documents, was to emphasise the difficulty of Endeavour employees seeing the catenary wire, the absence of express provisions in the documents which required Endeavour to locate and note hazards such as the catenary wire, the failure of Telstra to remove the catenary wire or to notify Endeavour of its existence as a hazard, and criticisms of Mr Carter's course of flying, leading to a submission that the catenary wire could have been reasonably observed and avoided if Precision and its employee, Mr Carter, had fulfilled their obligations. Decision

55. [283]

    Once again, it is necessary to approach this issue without the benefit of hindsight.

56. [284]

    It is necessary, as well, to keep in mind that the question is whether Endeavour breached its duty to its own employee, Mr Edwards, in the ways contended for by Telstra, Precision and the Edwards children.

57. [285]

    There is a powerful body of documentary material establishing a recognised industry standard, by way of precautions to be taken against wire strike, by entities such as Endeavour. I am satisfied that the hazards of aerial inspection were well understood in the electricity supply industry well before April 2006, and certainly by that time. The guides to which reference has been made demonstrate that this is so.

58. [286]

    The evidence demonstrates that an electricity supplier, in the position of Endeavour, was expected to undertake reliable mapping, with identification and listing of hazards for the purpose of assisting the helicopter pilot undertaking aerial power line inspection. This is not to say that a reasonable person would expect the identification on maps of every possible hazard. It may be that a particular hazard had only recently appeared. However, the Telstra catenary wire was a long-standing structure. It protruded upwards. Clearly, it was of no concern to anyone (including the Inmans) involved in ground-based activities. However, it was a potential hazard to helicopters, even allowing for its obscure location. It could be seen fairly readily from the ground. It could not be seen readily from the air.

59. [287]

    Endeavour was aware that its aerial inspections passed over the Inmans' property. Without reliance on hindsight, this was the type of item which Endeavour's ground-based inspections ought to have detected and recorded, to assist preparation for the aerial power line inspection process.

60. [288]

    The roles of the "observer" and the "inspector" have been referred to earlier in this judgment (see [60] above). I am satisfied that the maps provided to Mr Carter did not identify the Telstra catenary wire on the Inmans' property. I am satisfied, as well, that Mr Edwards was unaware of the location of this catenary wire, and I infer that no map available to him indicated its presence either.

61. [289]

    It is important to keep in mind that Endeavour had the particular advantage that its ability to identify hazards was not based solely upon aerial observation. Endeavour personnel were operative on the ground for different purposes. There is evidence that they travelled along Settlers Road from time to time. There were clear opportunities for Endeavour personnel, undertaking these land-based functions, to observe and record aerial hazards, so that personnel undertaking aerial power line inspections may have the benefit of that information as well.

62. [290]

    There is no evidence that the catenary wire was not capable of being seen by persons travelling along Settlers Road. I accept that there may be spots along the way where it would have been more difficult to see than from others. However, on all the evidence, including the advantage of seeing the area during the view, I am satisfied that the catenary wire would have been visible to Endeavour personnel undertaking ground-based inspection activities.

63. [291]

    I accept Telstra's submission that the use of an informed observer in the helicopter was fundamental to the reasonable and effective discharge of the activity which Endeavour was undertaking, utilising its own employees. As I have said, I am satisfied that there were reasonable opportunities, and thus a proper foundation for a reasonable employer to take steps to obtain information from land-based activities concerning hazards such as the catenary wire. Provision of such material was an important and documented part of Endeavour's responsibilities in this area.

64. [292]

    The Endeavour documentary material, and electricity industry documentary material, must be taken with the evidence of the aviation experts which points to the reliance by pilots upon infrastructure owners concerning the location of hazards. The combined effect of this evidence operates strongly against Endeavour on this aspect of the litigation.

65. [293]

    I have already expressed the view that Endeavour's media advertising program provides little assistance to it. I repeat that conclusion in the present context. There is no evidence of any contact by Endeavour with Telstra, for the purpose of direct consultation on issues in relation to which both agencies had a clear interest.

66. [294]

    Although it may be taken that Endeavour could not be expected to contact every land owner in an area where an aerial power line inspection was to take place (and thus some reliance upon media advertisements is reasonable in that respect), the same cannot be said about liaison with other clearly interested infrastructure stakeholders such as Telstra. The notification scheme relied upon by Endeavour was superficial and ineffective.

67. [295]

    I accept the submissions of Telstra that the wire strike and crash were contributed to by Endeavour's failures to implement industry standard precautions. I expressly accept the submissions of Telstra, identifying particular areas of deficiency on Endeavour's part (see [233]ff above).

68. [296]

    I accept Telstra's submission that these failures on the part of Endeavour led to Mr Carter not having adequate information, as to the existence of the private line and the catenary wire.

69. [297]

    I accept the submissions of Telstra that the requirements of s.5B Civil Liability Act 2002 are satisfied on this topic adversely to Endeavour.

70. [298]

    Having considered ss.5B and 5D of the Act, I am satisfied that Endeavour breached its duty to Mr Edwards, with that breach being causally linked to the accident and the severe injuries sustained by Mr Edwards.

71. [299]

    These findings are to be taken with the earlier findings concerning the failure of Endeavour to ensure that Mr Edwards was provided with a helmet, and was required to wear it. Submissions of Endeavour Adverse to Precision on Aviation Issues

Areas of Liability Alleged Against Precision Arising From Aviation Issues and the Flying of the Helicopter

1. [300]

   In its Amended Statement of Claim, Endeavour pleaded some 47 particulars of negligence against Precision. Given the conduct of the hearing, the cross-examination of witnesses, and submissions made on behalf of Endeavour, the areas of attack by Endeavour upon Precision appear to be somewhat narrow.

2. [301]

   The submissions for Endeavour emphasised the requirement under Clause 215 Civil Aviation Regulations 1988 (Cth) for an operator, such as Precision, to have an Operations Manual. Endeavour noted that Precision's Operation Manual (Exhibit EE2, pages 1261ff) provided for low-flying operations to be conducted in accordance with that Manual. Reference was made to the requirement that, for each flight, the Precision Chief Pilot was to designate one pilot to act as pilot in command. The pilot in command was to have final authority as to the operation of the aircraft. In addition to being responsible for the operation and safety of the aircraft during flight time, the pilot in command was responsible for the safety of persons on board (Exhibit EE2, page 1286).

3. [302]

   As mentioned earlier, Endeavour relied (in a general way) upon Clause 224 Civil Aviation Regulations 1988 (Cth) concerning the obligation placed upon the pilot in command of an aircraft. It was submitted that the pilot in command on 4 April 2006 owed Mr Edwards a very high duty of care, the scope and content of which was identified by the Civil Aviation Regulations 1988 (Cth) and the Precision Operation Manual.

4. [303]

   Endeavour submitted that the aerial work being undertaken at the time (low-level flying) required the exercise of special skill. Section 19.4.9 of the Precision Operations Manual stated: "Prior to the commencement of low level operations the pilot in command shall carry out an aerial survey of the area to establish an optimum path and aircraft manoeuvring plan for the safe conduct of the operation."

5. [304]

   It was noted that, at all relevant times, Precision held a valid AOC issued by the Civil Aviation Safety Authority ("CASA"), which authorised Precision to conduct aerial work, including power line inspections (Exhibit EE3). Likewise, at all relevant times, Precision held a low-flying permit issued by CASA pursuant to Clause 1.57(4)(b) Civil Aviation Regulations 1988 (Cth), which allowed Precision to fly at a height lower than 500 feet, for the purpose of power line inspections (Exhibit EE4).

6. [305]

   Endeavour pointed to the evidence of Mr Carter of the requirement to carry out an aerial survey to establish the optimum path and aircraft manoeuvring plan (as mandated by s.19.4.9 of the Precision Operations Manual), as being a continuing responsibility throughout the low-level operation, with the height at which the aerial survey was to be conducted depending on the circumstances as encountered during the operation (T156). It was noted that Mr Carter agreed that, if there was an option between operating over sloping land and over open level land, good airmanship required the pilot in command to operate over the open level land (T156).

7. [306]

   Mr Carter had never been to the Inmans' property. He agreed that if he had surveyed the Inmans' property by flying south across the open paddock, before inspecting the power line, he would have had a good view of the terrain around and to the east of the private power line. He agreed that this would not have taken very long and agreed, as well, that had he done so, he would have had an opportunity to see if there was anything near to the east of the Inmans' private power line that might cause an obstruction (T157). Endeavour submitted that it had been established that the terrain east of the Inmans' private power line was sloping, and the terrain to the west was level and open. Mr Carter conceded that his failure to undertake a survey was poor airmanship (T157).

8. [307]

   Endeavour submitted that this conclusion was consistent with the joint report of the aviation experts (Exhibit EE11). Endeavour submitted that cross-examination of the aviation experts on behalf of Telstra had not pointed to a contrary view.

9. [308]

   It was submitted for Endeavour that it was significant that neither Precision's Chief Pilot, nor any of the Precision pilots who had flown the inspection of the power lines on the Inmans' property in previous years, had provided any evidentiary statements, nor was any explanation provided as to why they had not done so.

10. [309]

    Endeavour submitted that Mr Carter's actions were in clear breach of his duty of care to Mr Edwards, and that his breach was causative of Mr Edwards' injuries as, but for his acknowledged poor airmanship, the helicopter would never have been in a position to collide with the catenary wire. Submissions of Telstra on Aviation Issues

11. [310]

    Telstra submitted that, on the evidence, Precision did not depart from the standard of reasonable care required of it in the provision of helicopter services to Endeavour, for the purpose of low-level aerial inspection of power lines, or in the particular manner in which Mr Carter operated the helicopter on 4 April 2006.

12. [311]

    It was emphasised, for the purposes of planning the subject flight, that Precision had not been provided with any information as to the actual location of the private line on the Inmans' property which was to be flown. As the aviation experts agreed, there was no practical means for Precision to learn of the existence of the catenary wire, and it was entirely reasonable and appropriate for Precision to rely upon Endeavour as to the existence of hazards, such as the catenary wire, in the vicinity of the power lines.

13. [312]

    To the extent that Mr Ogden criticised some aspects of Mr Carter's airmanship during the flight on 4 April 2006, Telstra submitted that his analysis was based upon hindsight, of the type that the courts have warned against, in determining what precautions against a risk of harm a reasonable person should have taken. It was submitted that the evidence of Mr Macarthur-Onslow, to the effect that Mr Carter's actions in proceeding along the Inmans' private line from north to south and then crossing over the line to the east was reasonable in the circumstances, should be preferred.

14. [313]

    By reference to the cross-examination of the aviation experts by senior counsel for Endeavour, Telstra noted there were three alleged deficiencies in Mr Carter's airmanship on 4 April 2006, which Endeavour appeared to assert were breaches of Precision's duty of care. In particular, Mr Ogden referred to a combination of the following factors (T309):

    1. (1)

       Mr Carter did not follow the requirements of the Operations Manual, which required him to undertake a high level reconnaissance;

    2. (2)

       Mr Carter flew over land to the east of the power lines, which was not as flat as the land to the west; and

    3. (3)

       Mr Carter flew the helicopter at too low a height, thus limiting his ability to make a safe or necessary landing if the engine failed.

15. [314]

    Telstra emphasised that none of these alleged failures was causative of the accident and Telstra disputed, in any event, that they should properly be regarded as evidence of breach of duty. Whilst Mr Carter agreed that, in retrospect, it was poor airmanship not to do some form of aerial survey of the private line on the Inmans' property (T156-157), Telstra submitted that it was beyond dispute that even if such an aerial survey had been conducted, it was very unlikely that the catenary wire would have been identified. The joint opinion of the aviation experts on this issue was strongly supported by the fact that the catenary wire had not been identified during low-level aerial surveillance flights in 2003, 2004 or 2005.

16. [315]

    In relation to Mr Ogden's suggestion that it was poor airmanship not to fly to the west of the power lines, where the land was flatter and more viable for an emergency landing in the case of engine failure, whilst Mr Carter conceded that it would have been better to keep the helicopter away from the rising ground (T148), Telstra emphasised that the accident on 4 April 2006 did not involve engine failure, and the sloping ground (which itself flattened out the further south the power lines ran) played no part in the accident, and the manner of Mr Edwards' injuries.

17. [316]

    As Mr Ogden himself acknowledged, Mr Carter was able to control the helicopter, so as to elevate it and bring it back over to the west of the power lines before landing (T308). As there was no engine failure, the sloping land was irrelevant to the cause of the accident.

18. [317]

    Telstra submitted that the height at which Mr Carter was flying, at the time of the accident, was also of itself immaterial to the cause of the accident for the same reason - there was no engine failure, and thus no need to make an engine-off landing.

19. [318]

    Telstra submitted that, from the evidence of the aviation experts, it appears that Mr Carter's choice to fly from north to south along the private line, and to cross over to keep it on his right-hand side, was within the range of decision making which could be exhibited by a competent pilot, exercising a reasonable degree of skill. In particular, Mr Macarthur-Onslow considered that he would himself have elected to continue flying from north to south (T294). He also thought it would be within the range of reasonable choice to cross over the wire (T301). Mr Ogden accepted that, if it was reasonable for the pilot to continue going from north to south, the next step of crossing over the line would have the advantage of freeing up the observer from the task of inspecting the line, and enabling him to resume his function of maintaining a lookout for hazards (T300).

20. [319]

    Telstra submitted that the evidence demonstrated that Mr Carter acted within the norms of his profession, in relying upon the absence of hazard warning with respect to the east side of the private power line. He followed the normal practice of pilots in proceeding upon the basis that no hazard lay in the location, in the absence of information to the contrary from Endeavour (specifically, Mr Edwards).

21. [320]

    If, contrary to its primary submission, Precision was found to have liability arising out of the accident, Telstra submitted that any apportionment would result nonetheless in Endeavour bearing the vast majority of the liability. It was submitted that, when coming to determine apportionment or contribution between defendants, the Court must compare the defendants' culpability (the degree of departure from the standard of the reasonable man), and the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Limited [1985] HCA 34; 59 ALJR 492 at 493-494.

22. [321]

    When considering the relative acts and omissions of Endeavour and Precision (if any) in this case, Telstra submitted that Endeavour stands out as the major contributor to the accident and the injuries sustained by Mr Edwards. Endeavour's breaches of duty involved significant departures from the duty of care it owed Mr Edwards as its employer. Telstra submitted that Endeavour was armed with actual knowledge of the risks inherent in low-level aerial surveillance of power lines, and failed to take any of the necessary steps in order to put in place proper systems, provide proper directions or orders or provide proper equipment so as to eliminate or reduce the risks.

23. [322]

    By way of contrast, any breach found against Precision must be one arising from the manner in which Mr Carter controlled the helicopter on 4 April 2006. Until he flew along the spur line and actually laid eyes on the Inmans' private electricity line, he had no idea of its existence. As a result of Endeavour's failures to put in place any system of ground-based inspection and hazard identification, it was submitted that Mr Carter was navigating (with Mr Edwards' input as observer) by reference to Endeavour maps, which did not show the private line, let alone any relevant hazards such as the catenary wire. In addition, no markers had been placed on Endeavour's poles to warn of any approaching hazards.

24. [323]

    In the result, if there was any error of judgment on Mr Carter's part which amounted to negligence, Telstra submitted that this occurred in a setting wholly of Endeavour's making. Mr Carter was, in effect, forced to make a decision as to how best to undertake the inspection of the Inmans' private electricity line on the run.

25. [324]

    Applying Podrebersek v Australian Iron and Steel Pty Limited, Endeavour's departure from the standard of care was far more serious than any such departure by Mr Carter or Precision, and of far more significant causal potency. Submissions of Precision

26. [325]

    The submissions of Precision in response to those of Endeavour picked up similar themes to those advanced by Telstra.

27. [326]

    The relevant question is whether Precision has breached its duty of care owed to Mr Edwards and, if so, whether the breach caused any loss. It was submitted that issues of remoteness and foreseeability arise on the question of duty of care. Precision submitted that it was not negligent and that, if there was a finding that its conduct fell short of the required standard of care, the harm suffered by Mr Edwards was not foreseeable and was too remote from any breach by Precision. Further, if Precision was in breach of its duty of care, that breach did not cause Mr Edwards' loss.

28. [327]

    Insofar as there had been a suggestion at one stage of the proceedings that Precision had not complied with its obligations under the Operations Manual, Precision noted that it was not put to Mr Carter that he had failed to comply with the Operations Manual.

29. [328]

    Precision advanced submissions with regard to the three criticisms maintained by Mr Ogden at the conclusion of the oral evidence. First Criticism - Mr Carter Failed to Perform a High Level Reconnaissance Before Piloting the Helicopter to Inspect the Inmans' Line

30. [329]

    Both Mr Ogden and Mr Macarthur-Onslow, in the second joint report, state that the Precision Operations Manual required high-level surveillance to be conducted, before the route was flown and that proper practice required that this be done.

31. [330]

    Mr Ogden made the point, on a number of occasions in his oral evidence, that Mr Carter, in circumstances where there was a line he had not planned to inspect, and which was not marked on the map shown to him prior to the flight, should have climbed to a safe height to conduct surveillance of the line, before flying down to inspect it. Precision submitted that it was important to Mr Ogden's reasoning that Mr Carter was in a situation where he was aware that there had been a change in plan.

32. [331]

    Mr Ogden rejected a suggestion by senior counsel for Telstra that it was reasonable for Mr Carter to rely on the fact that Mr Edwards had flown the line over the preceding three years without incident, in making his decision to fly the Inmans' line without first conducting high-level surveillance (T289).

33. [332]

    Mr Macarthur-Onslow, on the other hand, said that commonly a pilot in Mr Carter's position, acting reasonably, would have proceeded to inspect the line without first conducting an aerial inspection, and that an aerial inspection should only be done if the observer advised the pilot that he was unfamiliar with the section of the line. He also made the point that it was unlikely that Mr Carter, once in the air, would have known that the Inmans' line had not been marked on the plan (T290, 294-295). It was common ground that Mr Carter did not have any maps in front of him as he piloted the helicopter on 4 April 2006.

34. [333]

    Precision emphasised the agreement of the aviation experts that, even if Mr Carter had conducted a high-level survey, it would have been very unlikely that he would have detected the Telstra wire (T295).

35. [334]

    With respect to this criticism, Precision submitted that the evidence of Mr Macarthur-Onslow that Mr Carter would have been unlikely to have known that the Inmans' line was not marked on the map, and that it was reasonable for Mr Carter to rely upon the observer, Mr Edwards, and immediately inspect the line, should be preferred to the evidence of Mr Ogden.

36. [335]

    However, Precision submitted that it was unnecessary to decide the question of negligence, because it could not be said seriously that any failure to carry out a high-level survey caused Mr Edwards' loss or injury. The aviation experts had agreed that, even if such surveillance was done, it was very unlikely that anyone would have seen the catenary wire. Even if Mr Carter had breached any duty, Precision submitted that his failure was not a necessary condition of Mr Edwards' harm and therefore was not a cause of his loss. Indeed, Precision submitted that any such failure had nothing at all to do with Mr Edwards' loss, because it was highly unlikely that an aerial inspection would have made any difference to the outcome.

37. [336]

    Precision submitted that the evidence of Mr Langerak supported the conclusion of the aviation experts. Mr Langerak had said that he had flown the Inmans' line from south to north in an earlier year. If the pilot or observer on that occasion had seen the catenary wire, it would no doubt have been recorded on the Endeavour map, or been remembered by Mr Edwards. That there was no such recording (and the fact that Mr Edwards had obviously not remembered such a matter) strongly supported a conclusion that, even from low-level surveillance on a prior occasion, no one saw the catenary wire. It was submitted that high-level surveillance was even less likely to have revealed the existence of the wire. Second Criticism - Mr Carter Piloted the Helicopter at a Height Too Low to Give Him the Ability to Make a Successful Landing if the Engine Failed

38. [337]

    In the aviation experts' first joint report, some criticism was made that Mr Carter appeared to be flying the helicopter "too low to provide a fully adequate view of the top of the assets". The aviation experts expressed the opinion in that report that, "The helicopter was being operated too low to permit sufficient manoeuvrability to cross back over to a flat area should the engine have failed".

39. [338]

    The aviation experts observed that, "The failure to operate in accordance with the Operations Manual and also not choosing the better option of remaining over the flat country or raise the height of the survey indicated poor airmanship".

40. [339]

    However, in the second joint report (Exhibit EE11), the aviation experts effectively withdrew these criticisms. They said: "Reference to being too low in accordance with the NENS Standard has been removed. There is also no evidence provided that indicates that the pilot was not operating in accordance with the guidance provided in the Precision Helicopter's Operations Manual."

41. [340]

    Precision submitted that the net effect of this was that the relevant criticisms contained in the first joint report were not maintained by the aviation experts, so that these issues cannot assist Endeavour in seeking an adverse finding against Precision in these respects. Third Criticism - Mr Carter Took the Helicopter to the East of the Inmans' Line Which was Less Suitable Land

42. [341]

    Precision submitted that it was appropriate to consider the evidence of the aviation experts, and the context in which it was given, to allow an understanding of that evidence relating to the conduct of Mr Carter as pilot on 4 April 2006 (T299-301).

43. [342]

    Reference was made, as well, to the cross-examination of the aviation experts by counsel for Precision (T305).

44. [343]

    It was submitted that the evidence of the aviation experts did not support any finding adverse to Mr Carter and Precision.

45. [344]

    With respect to the second and third criticisms, Precision submitted that there are two questions - (1), whether Mr Carter was in breach of a duty and (2), if so, whether the harm suffered by Mr Edwards is too remote from the breach for him to have succeeded against Precision?

46. [345]

    To the extent that Endeavour sought to rely upon Mr Carter's hindsight concession and the criticisms of the aviation experts that the best option would have been to remain west of the line over flat ground, Precision submitted that there are a number of reasons why such reliance is misplaced.

47. [346]

    Firstly, Precision submitted that it was not factually correct to state that all of the land to the east of the Inmans' line was rising, and not flat. Precision submitted that the position was, in fact, that on the east of the Inmans' line from the area immediately to the south of the trees located at the northern end of that line is an area of rising land, and to the west is flat ground. However, this area of rising land to the east did not run the full length of the Inmans' line. Reliance was placed upon observations during the view noted in the transcript (T216-217, 219). It was submitted that a substantial part of the area to the east of the Inmans' line was relatively flat.

48. [347]

    Whilst it was unclear exactly where Mr Carter took the helicopter across to the east of the line, it was likely that it was at about the point where the ground had become flat to the east, or not very far before that point. Accordingly, it was submitted that caution must be exercised in approaching answers by Mr Carter and the experts based upon a faulty assumption.

49. [348]

    Precision submitted that these problems were compounded by the fact that Mr Carter's diagram had incorrectly recorded the trajectory of the Inmans' line, increasing the likelihood that Mr Carter did not have in his mind when he gave evidence, an accurate picture of the topography of the land.

50. [349]

    Precision pointed to the evidence of the aviation experts that it was reasonable for Mr Carter to be on the eastern side of the line, if there was flatter ground ahead of him. Even if Mr Carter crossed to the east before that ground was flat, there was certainly flatter ground ahead of him. On that assumption, it was submitted that the experts' considered opinion, that Mr Carter's decision to cross the line was reasonable, was correct.

51. [350]

    Secondly, Precision submitted that, to the extent that Mr Carter made any concession based on hindsight reasoning, s.5C Civil Liability Act 2002 excludes hindsight reasoning as a possible basis for finding negligence.

52. [351]

    Thirdly, Precision submitted that the criticisms of the aviation experts amounted to no more than an identification that Mr Carter may have had a better option. Section 5C(b) Civil Liability Act 2002 makes it plain that this does not support a finding of negligence. It was submitted that a mere error of judgment, or a mere mistake, does not constitute negligence.

53. [352]

    Fourthly, it was submitted that Mr Edwards was an experienced observer, including having had experience with the line in question, and he did not raise any risk with Mr Carter.

54. [353]

    Fifthly, Precision submitted that the reason for the need to stay on flatter ground was the risk of engine failure, and there had been no indication of any risk of engine failure on the day.

55. [354]

    Sixthly, Precision submitted that Mr Carter was put into a difficult, if not impossible, position because he had no earlier opportunity to plan for this part of the flight.

56. [355]

    Precision submitted that Mr Carter's decision to cross to the eastern side of the line was not negligent.

57. [356]

    If, contrary to Precision's primary submissions, the Court found that Mr Carter's airmanship when crossing from the west to the east of the Inmans' line fell short of the required standard of care, it was submitted that this was not sufficient for Endeavour to establish actionable negligence on the part of Precision. Endeavour must establish that the harm suffered was foreseeable and that the damage suffered by Mr Edwards was not too remote from any breach by Precision.

58. [357]

    It was submitted that the difficulty for Endeavour is that the harm that Mr Carter is said to have failed to take precautions against, was the harm caused by an engine failure leading to an emergency landing. Although Mr Ogden referred to this risk in his evidence, he did not say that the harm to be avoided, by the exercise of reasonable care, was the risk of striking an unmarked Telstra catenary wire.

59. [358]

    Precision submitted that the question then is whether the harm suffered by Mr Edwards was a foreseeable consequence of any failure to take reasonable precautions to deal with the risk of harm that may occur if there was an engine failure. Reference was made to statements of Glass JA in Minister Administering the Environmental Planning and Assessment Act 1979 v San Sebastian Pty Limited (1983) 2 NSWLR 268 at 295-6 to the effect that the "remoteness test is only passed if the plaintiff proves that the kind of damage suffered by him was foreseeable as a possible outcome of the kind of carelessness charged against the defendant". Reference was made to Hughes v Lord Advocate [1963] AC 837 at 845-847 and Chapman v Hearse [1961] HCA 46; 106 CLR 112 at 120-121, as well as Bennett v Minister of Community Welfare [1992] HCA 27; 176 CLR 408 in support of this proposition.

60. [359]

    Precision submitted that the failure alleged against Mr Carter is that he did not take proper precautions to guard against the risk of engine failure, leading to the potential harm caused by an emergency landing on rising land. If there had been an engine failure, and a consequential emergency landing on rising land, and Mr Edwards had suffered harm as a consequence, then it is obvious that, if there was negligence by Mr Carter, the risk of the harm suffered was foreseeable and not insignificant, and liability would be established under s.5B Civil Liability Act 2002.

61. [360]

    However, Precision submitted that the facts of this case are far removed from that scenario. Firstly, there was no engine failure. What occurred to cause the harm was the presence of an unmarked and unseen Telstra catenary wire.

62. [361]

    Secondly, the helicopter striking the wire did not lead to Mr Carter landing the helicopter on rising ground (even it was established that there was rising ground to the east at the point of impact). He landed the helicopter to the west of the line on flat ground.

63. [362]

    Thirdly, it could not be said that the accident which occurred here, and the harm suffered, was a variant of the foreseeable harm as a result of engine failure, and an emergency landing on rising ground. Harm suffered by an emergency landing on rising ground, caused by engine failure, is not a variant of the harm suffered as a result of an emergency landing on flat land, caused by striking an unmarked and unseen catenary wire, where there is no engine failure. The nature of the harm is very different in character.

64. [363]

    Fourthly, it was submitted that Endeavour had adduced no evidence to suggest that the harm that Mr Edwards was likely to have suffered, if there was engine failure, was similar to the harm that he suffered from this accident.

65. [364]

    Precision submitted that the harm suffered by Mr Edwards was not a foreseeable risk of any failure by Mr Carter to keep the helicopter on the east of the Inmans' line, and that Endeavour's claim failed for that reason. Decision

66. [365]

    In approaching the claim of negligent aviation against Precision, two matters must once again be kept in mind.

67. [366]

    Firstly, in accordance with ss.5B and 5C Civil Liability Act 2002, and well-known common law principles which remain applicable, hindsight reasoning is not the appropriate pathway to a finding of negligence. The conduct of the parties is not to be seen through the prism of hindsight: Rosenberg v Percival [2001] HCA 18; 205 CLR 434 at 441 [16]. The need to avoid hindsight bias has been emphasised. Hindsight bias has been described as the unavoidable tendency of bringing to account the fact that something has occurred when attempting to retrospectively evaluate the likelihood of it occurring: Shire of Gin Gin v Coombe [2009] WASCA 92; 52 MVR 382 at 390 [43]. Recognition of this phenomenon has led to insistence by the High Court of Australia that the assessment of the existence and content of a duty of care is to be undertaken looking forward, from a time before the occurrence of the incident giving rise to a claim, rather than backward from the time of the claim: Vairy v Wyong Shire Council at 443 [60]-[61], 461 [124]-[126]; Shire of Gin Gin v Coombe at 391-392 [45]-[46].

68. [367]

    Secondly, it is necessary to consider this question by reference to the evidence adduced at the hearing, and not some criticism which might be advanced by Endeavour. The evidence concerning alleged aviation negligence, on the part of Precision is relatively concise. It is necessary to keep in mind the nature of the risk which is said to arise from alleged negligence, and the relevance of that risk to the harm done to Mr Edwards in this case.

69. [368]

    I readily accept that Precision and Mr Carter owed a duty of care to Mr Edwards, as a person on the helicopter being flown by Mr Carter.

70. [369]

    There is some difference of opinion as between the aviation experts, Mr Ogden and Mr Macarthur-Onslow, concerning the question of aviation negligence in this case. It is necessary to keep in mind that Mr Ogden referred frequently to the concept of engine failure, as being part of the scenario which attracted criticism on his part. Engine failure had no part to play in these proceedings.

71. [370]

    To the extent of any difference between the opinions of Mr Ogden and Mr Macarthur-Onslow, I prefer the evidence of Mr Macarthur-Onslow. His evidence was more closely related to actual events and did not, to my mind, raise unrelated scenarios.

72. [371]

    Further, the relevant risk, for the purpose of these proceedings, is the risk of the helicopter coming into contact with the catenary wire. It does not seem that the aviation expert evidence, properly understood, provides assistance to Endeavour in its submission that the course of flying by Mr Carter in this case was negligent.

73. [372]

    I accept the submissions of Precision and Telstra that the flying of the helicopter at a higher altitude would not have provided any practical assistance at all in this case. Whatever the general advantages may be of a high-level reconnaissance, such a step would have provided no help in the detection of the low catenary wire on the Inmans' property. The catenary wire would not have been visible.

74. [373]

    To the extent that Endeavour stresses Mr Carter's concession of "poor airmanship", this is a concession based squarely on hindsight. Indeed, Mr Carter expressed it in those terms. I am not satisfied that the course of flying suggested by Endeavour would have made any real difference in this case.

75. [374]

    In approaching the question of aviation negligence on the part of Precision and Mr Carter, it must be kept in mind that the relevant risk was the risk of the helicopter striking the catenary wire. Further, what happened thereafter involved the helicopter landing on flat ground, but rolling over, in the course of which Mr Edwards suffered the tragic injuries to his head.

76. [375]

    A form of critique based upon an engine failure scenario, and the presence or otherwise of sloping ground, seems to have little to do with the risk relevant to this case, let alone the subsequent event which gave rise to the injuries sustained by Mr Edwards.

77. [376]

    Having considered the submissions advanced by Endeavour in support of a finding of aviation negligence against Precision, I am not satisfied that the requirements of the Civil Liability Act 2002 have been made out in this case.

78. [377]

    Accordingly, the point is not reached where it is necessary to consider submissions made, by reference to Podrebersek v Australian Iron and Steel Pty Limited, concerning apportionment between Endeavour and Precision. If that point had been reached, I would have adopted Telstra's submissions (at [320]-[324] above) and concluded that the overwhelming responsibility lay with Endeavour, so that any contribution to be attributed to Precision would have been small.

The Contract Claims as Between Precision and Endeavour

1. [378]

   Apart from the various claims in negligence to which reference has been made, there is a separate claim and cross-claim as between Precision and Endeavour, arising from the contract between those entities.

2. [379]

   The contract between Endeavour (then Integral Energy) and Precision is dated 20 August 2003 (Exhibit EE1). The description of the relevant contractual provisions, as set out in the following paragraphs, is drawn from the Precision written submissions, which I am satisfied summarise accurately the relevant provisions.

3. [380]

   The scope of services to be provided by Precision to Endeavour is set out in section Al of the contract. Precision agreed to supply suitable helicopter services, together with a competent experienced pilot, to carry out low-level aerial works, in particular, pre-summer bushfire patrols in the northern region of New South Wales. This was identified as involving "inspection of powerlines from low voltage to 132kV across Integral Energy's franchise area". This activity was to be completed prior to the commencement of the annual bushfire season (1 August), and was expected to occur during the months of June and July each year. The total flying hours for the activity were approximated at 450 hours (75 days), and approximately 72 hours were allowed for the Penrith, Windsor and Hills part of the northern region.

4. [381]

   Precision's "Service Level Obligations" were set out at Clause 3.3 of the contract as follows: "The Contractor [Precision] must provide and perform the Services and any Additional Services: (a) in a proper, workmanlike and professional manner; (b) with due care, skill and judgment in accordance with generally accepted industry standards and practices and codes of conduct and to a high quality consistent with work of a similar nature to the Services or the Additional Services (as the case may be); (c) in full compliance with all applicable Laws; (d) in accordance with the Service Level Obligations set out in Schedule 3; and (e) in accordance with all of Integral's reasonable directions to the Contractor "

5. [382]

   The Document No. GNV 1010, referred to above, set out Endeavour's pre-flight requirements for helicopter inspection of overhead power lines.

6. [383]

   The evidence establishes that documents were updated during the period of the contract, with an updated version produced on 25 March 2004 (Exhibit EE2, page 331) and a further updated version produced on 21 March 2005 (Exhibit EE2, page 335). There is no relevant difference between these versions.

7. [384]

   In its Second Further Amended Statement of Claim, Precision pleaded a number of breaches of contract by Endeavour.

8. [385]

   Firstly, Precision pleaded a breach by Endeavour of Clause B1 of the technical specification, which stated: "'Details of the intended inspection area will be provided prior to each flight by the Integral Energy inspectors. This information will be in the form of geographic maps detailing the electricity lines to be flown."

9. [386]

   Precision submitted that Endeavour failed to provide geographic maps detailing the electricity lines to be flown for the flight in question. In particular, the Inmans' private line was not shown on any map provided by Endeavour to Precision or its pilot, Mr Carter (T163).

10. [387]

    Secondly, Precision pleaded a breach by Endeavour of Clause 5.1.2 of Document No. GNV 1010 which stated: "'In accordance with Integral Energy's Worksite Hazard and Risk Assessment instruction, WNV 0011, an assessment is to be carried out by the crew prior to each flight. The risk assessment shall identify all hazards associated with the work, indicate the level of risk and detail the control measures to be taken. Where the helicopter service is to be used for the planned inspection of power lines, particular attention is to be given to the preparation of route plans. The intended flight path is to be highlighted to give a clear indication of the planned area of work. As power line over-crossings present a considerable risk to this type of inspection work, such crossings are to be distinctively highlighted and identified on the plan and the location conveyed to the pilot and inspection crew. Particular attention is to be given to power lines owned by other organisations such as Transgrid, State Rail etc to ensure these lines are suitably highlighted on the route plans. All such crossings shall be detailed on the Hazard and Risk Assessment form."

11. [388]

    Precision submitted that the relevant Worksite Hazard and Risk Assessment Instruction WNV 0011 was not complied with, in that the risk assessment did not identify all hazards associated with the work, particularly it did not identify the catenary wire. Further, the intended flight path in relation to the private line was not highlighted on any map provided by Endeavour to Precision or Mr Carter.

12. [389]

    Thirdly, Precision alleged a breach of Clause 5.1.3 of Document No. GNV 1010 which stated: "'All hazards such as overhead power line crossings, close parallel overhead power lines, conversing power lines, and overhead power lines having substantial conductor vertical fall shall be marked on the route plan. Overhead power line markers shall be installed on power line structures to indicate to the aircraft crew that they are approaching an over crossing or other known hazard. The markers shall comprise of yellow coloured discs of 300mm minimum diameter and shall be installed on the approach side of the third and second structures each side of an overhead power line crossing or hazard."

13. [390]

    Precision submitted that no overhead power line markers were installed on the power line structure to indicate to the aircraft crew that they were approaching "an over crossing or other known hazard". Further, no plan, warning or advice was given by Endeavour to Precision or Mr Carter about the existence of the catenary wire, or its convergence with the private power line.

14. [391]

    Although the contract terms contain references to "power lines", Precision submitted that it was clear that Endeavour's obligation was not limited to merely identifying, mapping and warning about power lines. Clause 5.1.3 of Document No. GNV 1010 referred to "other known hazard" and "overhead power line crossing or hazard", and the flight briefing sheet contained in Appendix C of the Guide to the Aerial Inspection and Patrol of Overhead Lines, clearly contemplated the recording of all obstructions or crossings.

15. [392]

    Fourthly, Precision pleaded a breach of Clause 5.1.1 of Document No. GNV 1010 (see [60] above).

16. [393]

    Precision alleged that Mr Edwards was the "observer" as defined in Clause 5.1.1 for the flight on 4 April 2006, and he was plainly not conversant with the overhead power line route and "potential hazards". Like all on board the helicopter, he did not know of the existence of the catenary wire.

17. [394]

    Precision submitted that the damage to its helicopter, the loss of use of the helicopter and its indemnity liability under s.151Z WC Act and any liability to the Edwards family (if any) were all losses suffered by Precision, because of Endeavour's breaches of contract as set out above.

18. [395]

    It was submitted that the damage to the hull and loss of use claims ought be uncontroversial, with greater debate surrounding possible s.151Z WC Act liability and any liability to the Edwards family.

19. [396]

    With respect to the alleged breach of Clause 5.1.3 of Document No. GNV 1010, Endeavour submitted that this part of the contract related to overhead power line crossings, close parallel overhead power lines, converging overhead power lines and overhead power lines having substantial conductor vertical fall, none of which had any relevance to this case.

20. [397]

    Endeavour submitted that the proposition that it was in breach of contract for failing to mark the catenary wire on the route map was not made out, with the only finding available on the evidence being that Endeavour was unaware of the presence of the catenary wire.

21. [398]

    With respect to the claim for damage to the helicopter hull, Endeavour submitted that the claim failed as the causes of the loss of the helicopter, and consequential losses, arose as a result of Precision's own negligence and that of Telstra, for reasons advanced with respect to the negligence claims.

22. [399]

    Further, and in answer to the entirety of Precision's claim for breach of contract, Endeavour submitted that the claim was defeated entirely by reason of Clause 6.2 of the contract, to which reference will be made later in the judgment. Legal Principles

23. [400]

    Precision and Endeavour accepted that the general principle to be applied in an action for damages for breach of contract is that stated in Robinson v Harman (1848) 154 ER 363 at 365 - where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed.

24. [401]

    In State Wide Developments Pty Limited v Higgins [2011] NSWCA 35, Sackville AJA (Macfarlan JA and Handley AJA agreeing) stated (at [58]) that relevant causation principles required a plaintiff to establish that the loss resulted from the breach of contract, and that the loss for which compensation is claimed was caused by the breach relied upon. Sackville AJA observed that the question whether a plaintiff has established causation in this sense is a question of fact, ultimately to be resolved by commonsense principles informed, where appropriate, by value judgments.

25. [402]

    The relevant question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation: Commonwealth v Amann Aviation Pty Limited [1991] HCA 54; 174 CLR 64.

26. [403]

    Principles of causation and remoteness in contract claims were considered by the High Court of Australia in Florida Hotels Pty Limited v Mayo [1965] HCA 26; 113 CLR 588 and more recently, in this State, in Oxley County Council v MacDonald [1999] NSWCA 126, with specific reference to the relationship of joint tortfeasor which co-existed with the contractual relationship between the contracting parties.

27. [404]

    Precision submitted that there were features in the decision in Oxley County Council v MacDonald which assisted the resolution of the present claim for breach of contract. In that case, Brambles had arranged carriage of a load for the Oxley County Council. The load was insecure because of Brambles' negligence. An Oxley County Council employee was injured when unloading. Brambles sought to rely on its contract of carriage to recover indemnity from the Council for any liability Brambles had to the Council employee. In delivering the leading judgment of the Court, Sheller JA held (at [67]) that Brambles was not prevented from claiming an indemnity from Oxley County Council by reason merely that it (Brambles) was liable to the plaintiff in tort. His Honour referred to Florida Hotels Pty Limited v Mayo and concluded that, in the absence of some contractual stipulation to the contrary, there was no reason of justice or sound legal policy which would prevent Oxley County Council recovering for all the damage causally connected to Brambles' breach of contract, even though the Council's conduct contributed to the damage which it suffered. By its own voluntary act, Brambles accepted an obligation to load and secure the goods with reasonable care and skill, so that they could be unloaded in a safe and proper manner at the Council's depot, without presenting a risk of injury to the Council's employees there to assist in the unloading, and to pay damages for any loss or damage flowing from the breach of that obligation.

28. [405]

    However, the question of remoteness of damage constituted a point of difference between the two contract claims. Sheller JA considered the damages claimed by Brambles too remote. His Honour said at [69]: "Brambles' claim in contract is not so clear. It was obliged to carry the goods to the Oxley depot and there deliver them on its truck. Oxley had the obligation of unloading. No doubt it was contractually obliged to do so so as not to damage Brambles' property or injure Brambles' employee or contractor. But the damages for breach of the contract which Brambles now claims to recover, being the amount of its liability to the plaintiff, were, in my opinion, too remote. I say this for the following reasons. The degree of probability that Oxley's breach of the contract would cause Brambles to suffer loss as the result of a claim against it by an employee of Oxley for injuries suffered was such as to make the loss wholly unpredictable; see generally Greig & Davis, The Law of Contract, at 1376. In my opinion, damages for the loss which Oxley suffered as a result of the injury to its employee and its liability as employer to that employee could fairly and reasonably be considered to arise according to the usual course of things from Brambles' breach of its contractual obligation to load and secure the goods with reasonable care and skill. However, I do not think that the possibility of Brambles' liability to Oxley's employee flowing from the consequence of Oxley's failure to unload the goods with reasonable care and skill could fairly and reasonably be considered to arise according to the usual course of things; compare Florida Hotels v Mayo at 598. Nor do I think such damages could reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as not unlikely to occur; compare Hadley v Baxendale (1854) 9 Ex 341 at 355; 156 ER 145 at 151; Koufos v C Czarnikow Ltd [1969] 1 AC 350 at 388; Alexander v Cambridge Credit Corp (1987) 9 NSWLR 310 at 363 and following per McHugh JA."

29. [406]

    With respect to remoteness of damage, Precision submitted that this decision may be distinguished from the present case. There was nothing unpredictable about the possibility that Precision might become liable to Mr Edwards, if Endeavour breached its contract. Precision submitted that it was at the very core of the arrangement that Mr Edwards was required to ride in the helicopter, many of Endeavour's contractual obligations bore directly upon the safety of the helicopter and its occupants, and it was surely eminently in contemplation that breach of those obligations could lead to injury to Mr Edwards, and a potential liability in Precision.

30. [407]

    Precision submitted that there was a unique and mutually dependent relationship between Precision and Endeavour concerning the helicopter and its use. It was emphasised that the claim was one of breach of express provisions of the contract. Further, Endeavour and Precision were engaged in a joint enterprise involving use of the helicopter so that the position of the pilot would clearly arise.

31. [408]

    Precision submitted that the damages in a contract claim between joint tortfeasors may include a s.151Z liability, referring to decisions of Hoeben J (as his Honour then was) in Prichard v Trius Constructions Pty Limited [2011] NSWSC 749 ("Prichard") (at [57]ff) and Williams v Twynam Agriculture Group Pty Limited [2011] NSWSC 1098 ("Williams") (at [163]ff).

32. [409]

    In summary, Precision submitted that:

    1. (1)

       Endeavour breached its contract in the manner alleged above;

    2. (2)

       the breaches caused loss in the form of damage to the Precision helicopter, and loss of its use;

    3. (3)

       Precision's damages include any s.151Z liability and liability to the Edwards family which, in the circumstances of the case, was not too remote.

33. [410]

    Endeavour pointed to the actual decisions of Hoeben J in Prichard and Williams, where findings of remoteness had been made. It was submitted that the damages claimed by Precision were too remote, in particular with respect to any s.151Z liability and liability to the Edwards family. Senior counsel for Endeavour referred to the authorities cited by Precision and contended that those cases, properly understood, did not support Precision's claim. Decision on Precision's Breach of Contract Claim Against Endeavour

34. [411]

    I am satisfied that Precision has established the terms of the contract between itself and Endeavour. I find that Endeavour has breached each of the clauses of the contract relied upon by Precision, as set out above. The reasons for this conclusion may be found in my conclusions adverse to Endeavour in the context of its mapping and planning observations in advance of aerial power line inspections.

35. [412]

    These were clear breaches of the contractual terms which required specified action on Endeavour's part, where such action was not taken with resultant breaches of the contract.

36. [413]

    I am well satisfied that the loss suffered by Precision, through damage sustained to the helicopter hull and loss of use of the helicopter whilst it was out of action, were forms of loss well within the expectation of the parties if contractual breaches of this type occurred. I am satisfied that Precision's claim for breach of contract against Endeavour should extend to damages in these respects.

37. [414]

    The more difficult question concerns any liability of Precision under s.151Z, and liability to the Edwards family. The relevant question of causation in this area is a question of fact, to be resolved in the manner described by Sackville AJA in State Wide Developments Pty Limited v Higgins. Further, the principles considered in Oxley County Council v MacDonald assist the resolution of this question in the present proceedings.

38. [415]

    I accept Precision's submission that there is a significant factual distinction between the position of Brambles in Oxley County Council v MacDonald, and of Precision in the present case. The remoteness difficulty confronting Brambles does not, in my view, exist for Precision in the present case.

39. [416]

    I accept that the Precision helicopter was being flown by a Precision employee (Mr Carter) whilst carrying Endeavour employees (including Mr Edwards). This was a scenario anticipated, indeed required, under the contract. The possibility that a s.151Z scenario may arise because of alleged negligence on the part of the pilot (a Precision employee) in the context of injury being caused to an Endeavour employee, was a possibility which could be reasonably supposed to have been in the contemplation of both parties, at the time the contract was made, as being not unlikely to occur. Likewise a scenario where liability may be found in favour of the family of the injured Endeavour employee. These conclusions have been reached by examination of the particular facts of this case.

40. [417]

    In the circumstances of this case, I am satisfied that s.151Z liability is not too remote, so as to place it outside the proper scope of damages for Endeavour's breach of contract.

41. [418]

    Likewise, I am satisfied that liability to the Edwards family is not too remote, so as to place it outside the proper scope of damages for Endeavour's breach of contract.

42. [419]

    I am satisfied that Precision has made good its claim against Endeavour for breach of contract, and that Precision is entitled to damages for damage to the helicopter hull, loss of business and any liability which Precision has under s.151Z WC Act and to the Edwards family.

Endeavour's Cross-Claim in Contract

1. [420]

   Endeavour has brought a cross-claim against Precision, involving a claim based upon the contract. Endeavour relies upon an alleged breach by Precision of Clause 3.3 of the contract (set out at [381] above).

2. [421]

   In addition, Endeavour alleges a breach by Precision of Clause 6.2 of the contract which provides: "Indemnity by the contractor The Contractor indemnifies Integral and Integral's Representatives and keeps each of them indemnified, from and against all liability, loss, damage, penalty, charge, claim, harm, injury, costs or expenses of any kind whatsoever (including Consequential Loss) ("Loss") incurred or suffered directly or indirectly from or in connection with: (a) a breach of this Agreement by the contractor; (b) the termination of this Agreement because of a breach by the Contractor; (c) any wilful, unlawful or negligent act or omission of the Contractor or a Representative of the Contractor; (d) any injury to or death of a natural person and any loss of or damage to a third party's real or personal property caused or contributed to by the Contractor or a Representative of the Contractor; (e) any loss of or damage to real or personal property of Integral, caused by or contributed to by the Contractor or a Representative of the Contractor; (f) any claim, action, demand or proceeding by a third party against Integral or any Representative of Integral caused by or contributed to by the Contractor or a Representative of the Contractor; or (g) any claim, action, demand or proceeding by a third party against Integral or any Representative of Integral arising directly or indirectly out of a breach of this Agreement by the Contractor, or by any wilful, unlawful or negligent act or omission of the Contractor or any of the Contractor's Representatives, except to the extent that any Loss is solely and directly caused by the negligence of Integral or a Representatives of Integral who is not also a representative of the Contractor." Submissions

3. [422]

   With respect to Clause 3.3, Endeavour submits that Precision failed to provide and perform the services required under that provision and, in particular, the requirement that services be provided in a "proper workmanlike and professional manner" (Clause 3.3(a)) and "with due care, skill and judgment in accordance with generally accepted industry standards and practices and codes of conduct" (Clause 3.3(b)). Reliance was placed upon submissions advanced against Precision, in the area of aviation negligence referred to earlier.

4. [423]

   Senior counsel for Endeavour submitted that Clause 6.2 applied so that Precision was required to indemnify Endeavour for all matters caught by the clause, which included all aspects of Precision's claims against Endeavour, as well as Endeavour's own liability to Mr Edwards. It was submitted that Mr Edwards is not a party to the contract so that Precision is liable in the manner contended for by Endeavour.

5. [424]

   Counsel for Precision submits that Endeavour's construction of Clause 6.2 is flawed. Upon Endeavour's construction, it was submitted that subclauses (a)-(c) of Clause 6.2 would be mere surplusage, if the indemnity related to a conventional breach of contract claim inter se. Precision submitted that Clause 6.2 provided for circumstances where Precision claimed against Endeavour for loss claimed by a third party. However, properly construed, Mr Edwards was not a third party. Precision submitted that Mr Edwards was not caught by Clause 6.2(d).

6. [425]

   Precision submitted that an indemnity clause such as Clause 6.2 should be construed strictly against Endeavour, and it must be clear that the language of the indemnity under consideration is intended to indemnify against the liability in question: Andar Transport Pty Limited v Brambles Limited at 435-437 [20]-[23].

7. [426]

   Precision submitted that Clause 6.2 had no application because it contemplates, and was intended to deal with, claims against Endeavour by third parties. However, Mr Edwards was not a third party. By operation of Clause 6.3, Precision submitted that he was relevantly a contracting party, given that Endeavour is agent for each of its representatives.

8. [427]

   Precision submitted that Mr Edwards only needed indemnity if Clause 6.2 related to claims as a result of conduct of a non-contracting third party. Decision on Endeavour's Contract Cross-Claim Against Precision

9. [428]

   I approach the construction of Clause 6.2 upon the basis that it should be strictly construed against Endeavour. Indemnity clauses of this kind are to be construed strictly and are to be read contra preferendum. In the case of ambiguity, the indemnity clause is to be construed in favour of the party on whom it was sought to impose an obligation (Precision): Andar Transport Pty Limited v Brambles at 435-437 [20]-23].

10. [429]

    In my view, the proper meaning of Clause 6.2 is that it serves to indemnify Endeavour with respect to claims as a result of conduct of a non-contracting third party. The reference to a "third party" at various points in Clause 6.2 supports this construction. I accept the submission of Precision that the construction advanced by Endeavour would produce some anomalous results, including the rendering of subclauses (a)-(c) as mere surplusage.

11. [430]

    I am not satisfied that Clause 6.2 operates in a manner which assists Endeavour, in its efforts to defeat any claim against it by Precision, or to shift liability from Endeavour to Precision in any area where Endeavour itself has responsibility in this litigation.

12. [431]

    Clause 6.2 has no role to play in the resolution of issues posed for determination in this litigation.

13. [432]

    I reject Endeavour's assertion, by way of cross-claim against Precision, based on alleged breach of contract.

Application of s.151Z WC Act

1. [433]

   Section 151Z is in the following terms: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) the worker may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act for payment of that compensation, but is not entitled to retain both damages and compensation, (b) if the worker recovers firstly compensation and secondly those damages, the worker is liable to repay out of those damages the amount of compensation which a person has paid in respect of the worker's injury under this Act, and the worker is not entitled to any further compensation, (c) if the worker firstly recovers those damages the worker is not entitled to recover compensation under this Act, (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages), (e) if any payment is made under the indemnity and, at the time of the payment, the worker has not obtained judgment for damages against the person paying under the indemnity, the payment is, to the extent of its amount, a defence to proceedings by the worker against that person for damages, (e1) if any payment is made under the indemnity and, at the time of the payment, the worker has obtained judgment for damages against the person paying under the indemnity (but judgment has not been satisfied), the payment, to the extent of its amount, satisfies the judgment, (f) all questions relating to matters arising under this section are, in default of agreement, to be settled by action or, with the consent of the parties, by the Commission. (2) If, in respect of an injury to a worker for which compensation is payable under this Act: (a) the worker takes or is entitled to take proceedings independently of this Act to recover damages from a person other than the worker's employer, and (b) the worker also takes or is entitled to take proceedings independently of this Act to recover damages from that employer, the following provisions have effect: (c) the damages that may be recovered from the person by the worker in proceedings referred to in paragraph (a) are to be reduced by the amount by which the contribution which the person would (but for this Part) be entitled to recover from the employer as a joint tortfeasor or otherwise exceeds the amount of the contribution recoverable, (d) the amount of the contribution that the person is entitled to recover from the employer as a joint tortfeasor or otherwise is to be determined as if the whole of the damages were assessed in accordance with provisions of Division 3 as to the award of damages, (e) if the worker does not take proceedings against that employer or does not accept satisfaction of the judgment against that employer, subsection (1) applies as if the worker had not been entitled to recover damages from that employer, except that: (i) if the compensation paid by that employer exceeds the amount of the contribution that could be recovered from that employer as a joint tortfeasor or otherwise - the indemnity referred to in subsection (1) (d) is for the amount of the excess only, and (ii) if the compensation paid by that employer does not exceed the amount of that contribution - subsection (1) (d) does not apply and the employer has, to the extent of the compensation so paid, a defence to an action for such a contribution. (3) This section applies to proceedings taken independently of this Act by a person to whom compensation is payable under this Act in respect of the death of a worker as a result of an injury. (4) If a worker is liable under subsection (1) (b) to repay any money out of damages recovered by the worker, the worker is not liable to repay the money out of any damages payable after the date of recovery by way of periodic or other payments for loss of future earnings or earning capacity or for future expenses. (5) For the avoidance of doubt, this section applies and is taken always to have applied to the recovery of compensation or damages, whether or not the compensation or damages were paid under an award or judgment. For example, compensation or damages may be paid under an agreement."

2. [434]

   Endeavour makes a claim in these proceedings for an indemnity under s.151Z(1)(d) WC Act. It is necessary to keep in mind that the liability referred to in s.151Z(1) is the liability of Precision and/or Telstra to Mr Edwards.

3. [435]

   Endeavour sues pursuant to s.151Z(1)(d) as the injured worker, Mr Edwards, has recovered and continues to recover compensation under the WC Act.

4. [436]

   Section 151Z(1)(d) requires Endeavour, as Mr Edwards' employer, to firstly establish that Mr Edwards was injured in circumstances where Precision and/or Telstra would, if sued, have been liable to pay damages to Mr Edwards in respect to his injuries.

5. [437]

   Where there is liability by either or both of Precision and Telstra, but no liability on the part of Endeavour, the application of s.151Z(1)(d) is that described by Cole AJA (Mason P and Sheller JA agreeing) in Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; 47 NSWLR 263 at 265 [8]: "Accordingly, to determine whether the sum which has been paid as compensation is recoverable from the tortfeasor, two steps are necessary. The first is to determine the quantum of common law damages which would have been recoverable had they been sued for. The second is to determine the amount of compensation which has been paid. The amount of the indemnity provided by s151Z(1)(d) is limited by the former determination. If the amount claimed by way of indemnity is less than the amount of damages so determined, the employer or insurer making continuing payments of compensation can further claim under the indemnity at a later point in time up to the limit of the sum determined as the amount of damages which the injured worker would have recovered at common law."

6. [438]

   In short, the task is to first determine the quantum of damages under the Civil Liability Act 2002 which Mr Edwards would have recovered. This figure is agreed at $16 million.

7. [439]

   The second step is to determine the amount of compensation paid. If the amount of the compensation paid is less than the amount of damages determined, the employer making continuing payments of compensation can further claim under the indemnity, up to the limit of the sum determined as the amount of damages which the injured worker would have recovered at common law.

8. [440]

   In this case, Endeavour (as employer) has presently paid a very substantial sum by way of compensation, and will continue to make payments of approximately $10,000.00 per week, for the remainder of Mr Edwards' life.

9. [441]

   In this case, it is alleged by each of Precision and Telstra that Endeavour would have been liable to Mr Edwards, had he sued Endeavour. That allegation requires application of s.151Z(2)(a)-(d): Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited [2004] NSWCA 89; 61 NSWLR 111.

10. [442]

    It is common ground between the parties that s.151Z(2)(e) applies to this case: J Blackwood & Son v Skilled Engineering [2008] NSWCA 142. This is so given that:

    1. (1)

       Mr Edwards took, for a period, proceedings independently of the Act to recover damages from a person other than his employer, and

    2. (2)

       he took, for a period, proceedings independently of the Act to recover damages from his employer.

11. [443]

    In this regard, I note that by 13 August 2009, an Amended Statement of Claim had been brought in proceedings 2008/20086, Simeon Edwards v Integral Energy, Precision, Telstra and Sydney Western Area Health Service. As mentioned earlier in this judgment, these proceedings were discontinued, with the approval of the Court.

12. [444]

    The phrase "independently of this Act" simply means the taking of proceedings which do not rely, in any way, on the WC Act: Leonard v Smith (1992) 27 NSWLR 5 at 10F.

13. [445]

    Endeavour submits, correctly, that s.151Z(2)(a) and (b) are made out in this case.

14. [446]

    The next step is to apply s.151Z(c) and (d), which must be read together. The manner in which those provisions are to be applied is that set out in Clout Industrial Pty Limited (In Liquidation) v Baiada Poultry Pty Limited at 118-126 [22]-[35]. The process indicated by the authorities is to:

    1. (1)

       identify the contribution, if any, of the employer to the worker's injuries;

    2. (2)

       assess the damages the employer would have had to pay, if sued outside the modified damages regime of Part 5 WC Act (in this case, this figure is agreed at $16 million), and apply the contribution figure to that amount to establish the "ordinary contribution";

    3. (3)

       assess the damages the employer would have had to pay the worker under the modified damages provision of Part 5 WC Act (in this case, this is agreed at $1.7 million), and apply the contribution figure to that amount to establish the "employer's contribution";

    4. (4)

       subtract the "employer's contribution" from the "ordinary contribution" to establish "the difference";

    5. (5)

       subtract "the difference" from the damages the worker would have obtained to arrive at the indemnity.

15. [447]

    The written submissions on behalf of Endeavour and Telstra on the s.151Z issue included calculations by way of examples to be applied, depending upon the particular findings made by the Court. There was agreement between the parties as to the workings contained in these calculations.

16. [448]

    It is accepted by the parties that any indemnity figure ordered as a result of these proceedings, pursuant to s.151Z(2)(e)(i) would not affect the right of Endeavour to seek to recover its future payments of compensation to Mr Edwards. Each and every payment of compensation by Endeavour to Mr Edwards, made pursuant to the WC Act, represents a separate cause of action: J Blackwood & Son v Skilled Engineering at [152]. Pursuant to s.14(1)(d) Limitation Act 1969, each payment has a six-year limitation period: J Blackwood & Son v Skilled Engineering at [153].

17. [449]

    The effect of the operation of s.151Z(2)(e)(i) leads to the outcome that, following an order for indemnity in the present case, Endeavour, in respect of payments to be made thereafter would have to issue proceedings within the six-year limitation period to recover those further payments.

18. [450]

    Endeavour submitted, and the other parties accepted, that the application of s.151Z(2)(e)(i) in these proceedings does not limit Endeavour's entitlement to recover compensation payments to be made to Mr Edwards after and in excess of the indemnity resulting from these proceedings pursuant to that provision.

19. [451]

    The preceding analysis is not controversial in this case. The relevant formula to be applied to produce a mathematical outcome is agreed, with the remaining live issue involving the Court's assessment of the division of responsibility as between Endeavour (as employer) and Telstra and/or Precision (as alleged non-employer tortfeasors). It is to that issue that I now turn. Decision Concerning Apportionment of Responsibility

20. [452]

    For reasons explained earlier in this judgment, I am well satisfied that Endeavour bears the overwhelming responsibility for damages to be paid for negligence, arising from the helicopter crash on 4 April 2006 and the resulting serious injury sustained by its employee, Mr Edwards. The employer's non-delegable duty of care was breached with respect to the failure to provide helmets, and to ensure that they were worn (by Endeavour employees, including Mr Edwards), together with negligence with respect to mapping and information-gathering functions in advance of an aerial power line inspection, which were well-recognised industry obligations at the time of the crash.

21. [453]

    The breach of duty with respect to the helmet issue played a critical causal role in Mr Edwards sustaining serious head injuries, as a result of a glancing blow from the rotor to his unprotected head. This is the primary area of breach for which Endeavour bears responsibility.

22. [454]

    For reasons expressed earlier in this judgment, I am not satisfied that Telstra has breached any duty of care to Mr Edwards. Even if there were such a breach, I am not satisfied that the injury to Mr Edwards was foreseeable in the circumstances. Accordingly, I do not find that Telstra is a non-employer tortfeasor for the purpose of s.151Z WC Act.

23. [455]

    Once again, for reasons expressed earlier in this judgment, I have accepted that there is a breach of duty established, in the circumstances of the case, resulting from the failure by Precision and its employees to bring to the attention of Mr Edwards the presence of helmets aboard the refuelling truck at Ebenezer. Although it was the responsibility of Endeavour to provide helmets and to ensure its employees wore them, in the practical circumstances of operations on 4 April 2006, it remained relevant that Precision had helmets which were available for use, if their presence was made known to Endeavour employees, including Mr Edwards.

24. [456]

    I observe immediately, however, that the evidence indicates that Endeavour personnel did not, in practice, wear helmets. This is a likely consequence of the failure of Endeavour to properly train its employees in this respect, and to provide helmets for that purpose. However, I am satisfied that Precision is in breach of its duty to Mr Edwards, in the events of that day, in not making known the presence of the helmet available for the purpose of these very flights, and that the requirements of ss.5B and 5D Civil Liability Act 2002 have been made out.

25. [457]

    Accordingly, a foundation has been laid for an assessment of some responsibility by a non-employer tortfeasor, Precision, in this respect. In the course of my findings concerning the helmet issue, I indicated that an appropriate level of apportionment on that issue was 85% for Endeavour and 15% for Precision (at [192] above). Having now determined other areas of liability, there is no finding adverse to Telstra, nor is there any further finding adverse to Precision. A further adverse finding has been made against Endeavour.

26. [458]

    A final determination of responsibility as between Endeavour and Precision should have regard to all adverse findings made against those entities. This process involves a comparison of culpability (the degree of departure from the standard of care of the reasonable person) and the relative importance of the acts of the parties in causing the damage: Podrebersek v Australian Iron and Steel Pty Limited at 494. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

27. [459]

    Again, for reasons expressed earlier in this judgment, I am not satisfied that Precision (and Mr Carter) breached a duty of care to Mr Edwards based upon aviation issues. The suggested shortcomings in the flying of Mr Carter do not, upon proper analysis, lead to a finding of breach of duty towards Mr Edwards. As mentioned earlier in the judgment, the evidence rises no higher than a type of hindsight self-criticism by Mr Carter (which I am not satisfied gives rise to a finding of negligence), associated with the expression of opinions, by one or other of the aviation experts, as to what might have been done better on the day from a flying perspective. However, I am not satisfied that these matters give rise to a finding of negligence against Precision.

28. [460]

    Having undertaken the comparative examination required by reference to the whole conduct of each of Endeavour and Precision, the calculations to be undertaken, for the purpose of s.151Z WC Act should reflect 90% responsibility on the part of Endeavour, and 10% responsibility on the part of Precision.

Conclusion

1. [461]

   I commenced this judgment with a broad description of the different claims advanced by the parties in the proceedings. It is appropriate to return to those claims to summarise the outcomes in this litigation. Claims by the Edwards' Family

2. [462]

   I am satisfied that the Edwards children, Connor James Edwards (now in his own right) and Rubyanna Belle Edwards (with Ms Edwards as tutor) have established liability against Endeavour and Precision, arising from the findings which I have made in this judgment.

3. [463]

   I am not satisfied that the Edwards children have established liability against Telstra. Claim by Endeavour

4. [464]

   I am satisfied that Endeavour has established against Precision a claim for indemnity of 10% under s.151Z(1)(d) WC Act.

5. [465]

   Endeavour has failed in its claim for indemnity against Telstra.

6. [466]

   Endeavour has failed in its claim against Precision for indemnity against loss arising from the contract between them. Claim by Precision

7. [467]

   I am satisfied that Precision has made good its claim for damages for breach of contract with respect to the damage to the helicopter hull and loss of its use, as well as its claim for breach of contract for Precision's liability to Endeavour under s.151Z WC Act and for Precision's liability to the Edwards family, including the Edwards children.

8. [468]

   Precision has failed in its claim against Telstra for indemnity or contribution with respect to claims by members of the Edwards' family.

Orders

1. [469]

   Having reached these conclusions, the appropriate course is to require the parties to bring in short minutes of order, to give effect to the terms of the judgment. In addition, there are outstanding aspects of the litigation relating to the claim by the Edwards children.

2. [470]

   The proceedings will be adjourned to allow appropriate steps to be taken to progress the litigation.

3. [471]

   In addition, if the parties cannot agree as to costs, a timetable will be fixed for the provision of written submissions on any contested costs issue.