District Court New South Wales

• Medium Neutral Citation: AV8 Air Charter Pty Ltd v Sydney Helicopters Pty Ltd [2012] NSWDC 220
• Hearing dates: 19, 21, 22 & 23 March, 8, 10 & 11 May 2012; close of evidence and last submissions: 20 August 2012
• Decision date: 07 December 2012
• Before: Levy SC DCJ

Decision

1.Verdict and judgment for the defendant on the plaintiff's claim;

2.The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, unless a party can show an entitlement to some other costs order;

3.The exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - civilian helicopter struck unmarked suspended electricity wire located in restricted military area - whether negligence and causation established - whether pilot's defence of peer professional opinion in Australia pursuant to s 5O of Civil Liability Act 2002 is made out; CONTRACT - bailment - onus of proof of cause of damage - whether alternative claim in contract made out; DAMAGES - assessment of claim for diminution in value of helicopter after repair - claim for loss of profits from charter opportunities during period of repair
• Legislation Cited: Air Services Act (Cth) 1995, s 7; Australian Standard AS 3891.1 - 1991; AS 3891.1 - 2003; Civil Aviation Act 1988 (Cth), s 30; Civil Aviation Regulations 1988 (Cth), 140, 157; Civil Liability Act 2002, s 5B, s 5O, s 34, s 34A, s 35, s 69, Pt 4; Commonwealth of Australia Constitution Act, s 109; Electricity (Amendment) Act 1993; Energy Australia Overhead Lines Maintenance Standard - H0102, 2003; Evidence Act 1995, s 155; Guidelines for Design and Maintenance of Overhead Distribution and Transmission Lines C(b)1, 1991; ESAA(b)1-2003; Occupational Health and Safety Act 2000 (NSW)
• Cases Cited: Batterham v Makeig [2010] NSWCA 86; Booksan Pty Ltd & Ors v Wehbe [2006] NSWCA 3; (2006) Australian Torts Reports 81-830; Bowling v Weinert [1978] 2 NSWLR 282; Heli-Aust Pty Limited v Cahill [2011] FAFC 62; (2011) 194 FCR 502; Hughes and Bremerman v Rooke (1954) St. R. Qld 45; Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Ltd [2011] FCR 473; (2011) 83 ACSR 140; Prestia v Aknar (1996) 40 NSWLR 165; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42; Ruhani v Director of Police (No 2) [2005] HCA 43; (2005) 222 CLR 580; The Ship "May" v R (1931) SCR 374, at 382; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
• Category: Principal judgment
• Parties: AV8 Air Charter Pty Limited (Plaintiff); Sydney Helicopters Pty Limited (Defendant)
• Representation: Mr T Brennan (Plaintiff); Mr G Curtin SC with Mr G Gregg (Defendant); Norton White (Plaintiff); Gilchrist Connell (Defendant)
• File Number(s): 2010/348326

Judgment

Table of Contents

Nature of case	[1] - [3]
Parties	[4]
Dramatis personae	[5] - [6]
Precis of the expert evidence	[7] - [10]
Claims by plaintiff	[11] - [14]
Defences	[15] - [18]
Credit	[19]
Facts not in dispute	[20] - [40]
Review of array of factual evidence	[41] - [81]
Mr Paradice	[42] - [54]
Mr Harrold	[55] - [61]
Mr Harrold's notification to CASA	[62] - [66]
Mr Harrold's notification to AMSAR	[67]
Mr Hodge	[68] - [76]
Mr Hopkins	[77] - [78]
Mr Dunscombe	[79] - [80]
Mr Franks	[81]
Considerations for resolution of facts in issue	[82] - [105]
Findings on facts in issue	[106] - [136]
Ultimate focus of expert evidence	[137] - [149]
Findings on alleged breach of duty and negligence	[150] - [231]
Claim of breach of contract	[151] - [162]
Framework for proof of negligence - CL Act, s 5B	[163] - [165]
Principles concerning claim of negligence	[166] - [168]
Consideration of the negligence issue	[169] - [201]
Flight in restricted airspace - CAR 140	[202] - [211]
Low-flying and point of impact - CAR 157	[212] - [220]
Speed of flight	[221] - [223]
General allegations relied upon by plaintiff	[224] - [225]
Addressing the question posed by experts	[226] - [230]
Conclusion on negligence issue	[231]
Claimed defence under s 5O of CL Act	[232] - [235]
Proportionate liability - CL Act, Pt 4	[236] - [256]
Findings on damages issues	[257] - [271]
Claim for insurance excess	[258]
Claim for diminution in value of repaired helicopter	[259] - [266]
Claim for loss of profits	[267] - [271]
Disposition	[272]
Costs	[273]
Orders	[274]

Nature of case

1 These proceedings involve an economic loss claim founded upon allegations of negligence and breach of contract concerning the flying of a civilian helicopter that was damaged when it struck a suspended overhead powerline.

2 On 29 January 2009, in conditions of deteriorating weather, whilst on flight from Scone to Sydney, following a descent below cloud level near Broke and then flying on for several minutes after that descent, the helicopter struck an 11kV powerline from Rothbury that was suspended over a valley located in restricted military airspace, variously described as map reference R564(A) or R532(A) on Mt Broken Back, near Singleton Army Base, in NSW. The presence of that powerline was not indicated on the map comprising the current visual navigation chart ["VNC"] that was then available to the defendant's pilot: Exhibit "F".

3 The cost of repairs to the helicopter amounted to $631,104.82. Those repair costs are not the subject of these proceedings. Following completion of those repairs, the plaintiff seeks damages in respect of the cost of the excess payment it made pursuant to its policy of insurance, the claimed diminution in the resale value of the helicopter, and the loss of profits during the period it could not be used or hired whilst it was under repair. That claim was initially quantified by the plaintiff in the amount of $1,172,293.62, but later reduced to a claim for $708,440.10: Exhibit "B". The Civil Liability Act 2002 ["CL Act"] applies to these proceedings.

Parties

4 AV8 Air Charter Pty Limited ["the plaintiff"], owned the helicopter. Sydney Helicopters Pty Limited ["the defendant"], was the bailee or hirer of that helicopter, and the defendant's pilot was in control of the helicopter at the time of the wire strike.

Dramatis Personae

5 Factual evidence was given by the following witnesses:

(1)  Mr Angus David Paradice, who is the manager of a large investment fund, provided a statement and also gave oral evidence. He is the ultimate owner of all the shares in the plaintiff company, and he controls that company;

(2)  Mr Mark Andrew Harrold, who is the managing director of the defendant company, provided a statement and also gave oral evidence. Mr Harrold was the pilot flying the aircraft at the time of the wire strike incident which is the subject of these proceedings;

(3)  Mr Roger Hodge, who was an employee of the defendant, and a helicopter pilot, was a passenger on the helicopter at the time of the wire strike, provided a statement and also gave oral evidence;

(4)  Mr Greg Dunscombe, who was the pilot of a NSW Police helicopter that had struck the same wire located on the southern boundary of the Singleton Army Base, on 23 March 1994. His evidence was in statement form only;

(5)  Mr Peter Franks, who in 1994 was a helicopter pilot who had flown a helicopter over the area in the course of effecting repairs to the same location due to a wire strike by the police helicopter flown by Mr Dunscombe, had sworn a statement and he also gave oral evidence;

(6)  Mr Barry Hopkins, who is an aviation assessor with QBE Insurance, the aviation insurer of the aircraft, had sworn a statement and he also gave oral evidence;

6 Expert reports were prepared by the following witnesses:

(1)  Mr Richard Nest, who is a senior helicopter flight trainer and check captain with in excess of 25 years experience in operating helicopters, both in the RAAF and in the civilian setting. He has had extensive experience in flying helicopters in Australia and overseas. He has had extensive experience in consulting and in risk assessment matters. His helicopter flying hours were recorded as being 6408 hours at the time he wrote his report. His experience is more fully set out in Appendix 1 to his report dated 19 December 2011. He was retained as an expert witness by the solicitor for the plaintiff.

(2)  Mr Daniel Tyler, who has had extensive experience flying helicopters, including combat flying and civilian flying. His experience has been in Australia and overseas. He is the holder of a current helicopter and commercial pilot's licence, and has been endorsed to fly 14 different types of helicopters ranging from small single-engined piston-powered machines to multi-engined turbine-powered machines. His helicopter flying hours at the time of writing his report were in excess of 11,000 hours. His experience is more fully set out in Appendix 2 to his report dated 13 March 2012. He was retained as an expert witness by the solicitor for the plaintiff.

(3)  Mr Richard James Davies, who is a former RAAF flying instructor, has had extensive experience as an RAAF pilot since 1984 in numerous capacities, including as an instructor. At present he pilots the A380 Airbus. He has had extensive experience in flying safety issues in connection with military and civilian aviation. His accumulated flying experience was 13,250 hours. He was retained as an expert by the solicitor for the defendant;

(4)  Mr Christopher William Townsend, who has extensive experience in the aviation field over the course of 38 years. He has flown helicopters for 30 years as an instructor. He has accumulated 19,000 hours of helicopter flying and over 16,000 hours of instructing and testing pilots to a commercial standard. His experience is more fully set out in Annexure CT-4 to his report dated 23 February 2012. He was retained as an expert by the solicitor for the defendant.

Precis of the expert evidence

7 Initially, the expert reports from both sides traversed a range of issues, some of which overlapped. Given that the question of whether there had been negligence in the flying of the helicopter was a matter to be determined by the court, but guided by expert opinions where relevant, these experts were asked to meet with a view to narrowing the areas of dispute amongst them, and to facilitate their evidence being given concurrently, to assist in determining that ultimate issue.

8 For that purpose, the experts were asked to consider what seemed to me to be the essential question, which was whether, from the point of descent of the helicopter from the area near the township of Broke in the Hunter Valley, there was evidence of a departure from the standard of care expected of a helicopter pilot of ordinary skill and competence, and if so, in what respects or, if not, why not.

9 The experts met and subsequently provided a joint statement, in which they answered the essential question in the affirmative, but in defined and qualified terms that have to be considered alongside resolved matters of fact. Essentially, and in general terms, the experts were critical of the pilot for not appreciating his position near a restricted area, his navigation techniques concerning the restricted area, and for continuing to fly in unsuitable conditions. That commentary requires a contextual analysis in light of the facts.

10 When those experts gave their oral evidence concurrently, the basis of their views was explored and clarified. Those matters will be considered and analysed in detail after my review of the relevant factual matters and after I have identified my findings of fact, and in conjunction with the consideration of whether there were relevant breaches by the defendant.

Claims by plaintiff

11 The claim pleaded by the plaintiff in contract, is that Mr Paradice and Mr Harrold, on behalf of their respective companies, had agreed that the defendant would operate the plaintiff's aircraft, and would provide pilots for that purpose. The plaintiff claimed that the agreement between the parties included the following implied terms:

(i) The aircraft would be operated safely and so as to avoid collisions with powerlines;

(ii) The pilots would exercise due care and skill in the performance of the flight;

(iii) The aircraft would be operated in compliance with the Civil Aviation Act 1988 (Cth) ["CA Act"], and the Civil Aviation Regulations 1988 (Cth) ["CAR"] and the Civil Aviation Safety Regulations 1998 ("the Civil Aviation Legislation"); and

(iv) The pilots would fly the aircraft in compliance with the Civil Aviation Legislation.

12 The claim pleaded by the plaintiff in negligence, was that the pilots of the aircraft, or more correctly, the pilot in command, being Mr Harrold, unlawfully flew the aircraft into a restricted area contrary to CAR 140 by flying over the boundaries of the area known as the Singleton Army Base and described in the relevant Aeronautical Information Publication as R564(A) at a navigational position of S 32º45' 18.72" and E 151º13' 43.83", where it struck the powerline at a point stated to have been approximately 10 metres vertically from the tops of the surrounding trees.

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

(a) Flying in restricted airspace in contravention of Civil Aviation Regulation 140;

(b) Flying below a safe altitude and at a height lower than 500 feet above the highest point of terrain within a radius of 300 metres at a point on the terrain vertically below the aircraft in contravention of Civil Aviation Regulation 157;

(c) Flying when failing to keep a proper lookout so as to observe and avoid powerlines;

(d) Failure to obtain maps or guidance materials providing an awareness of obstacles, including powerlines, in the restricted airspace.

14 In my view, in all practical respects, except for the questions concerning the onus of proof if it is found that there was a bailment of the helicopter, the claims in tort and contract involve the same essential duties and questions. The plaintiff claimed that but for the alleged negligence of the pilots, the aircraft would not have come into contact with the powerlines in restricted airspace, and therefore the claimed damage and losses would not have been incurred.

Defences

15 The defendant acknowledged that a state of contract existed between the parties, and acknowledged some implied terms, but disputed that there were relevant breaches either of any terms of the agreement between the parties, or of any duty of care amounting to negligence.

16 In the event of findings against the defendant on the foregoing matters, the defendant seeks findings that the owner of the powerline, Energy Australia, and the government body responsible for producing the VNC map used by the pilot, Air Services Australia, were concurrent wrongdoers concerning an apportionable claim within the meaning of Pt 4 of the CL Act.

17 The defendant also relies on s 5O of the CL Act, claiming that in the practise of his profession as a helicopter pilot, he should not be found to have been negligent, as his actions were in conformity with peer professional opinion in Australia.

18 The outcome of those issues is all dependent upon the nature of the fact findings to be made in the proceedings.

Credit

19 In my view, each of the factual witnesses gave their evidence honestly and to the best of their recollections according to their respective perspective perceptions of the events. The plaintiff attacked Mr Harrold's credit by reference to argued differences in his statements. In my view, any such differences are satisfactorily explained by reference to the focus of Mr Harrold's responses in his first statement being the then current iteration of the plaintiff's statement of claim. In my view, that criticism of Mr Harrold's evidence does not reasonably arise. In my view, no credit issues relevantly arose from the evidence of the respective witnesses. Instead, their evidence must be assessed in terms of inherent reliability, according to content.

Facts not in dispute

20 The parties had a relatively short-lived historical commercial relationship concerning helicopter hire and charter activities. They had entered into an agreement in 2008 whereby the plaintiff had permitted the defendant to manage, charter and operate a helicopter of the Robinson R44 type belonging to the plaintiff.

21 Against that background, the parties had discussions concerning a proposed commercial basis for the plaintiff to acquire a Eurocopter EC 120B helicopter to be also operated by the defendant company. Those discussions proceeded both orally and in a series of emails exchanged between the parties, and continued until January 2009.

22 On 16 December 2008, the plaintiff company finally purchased the subject EC 120B helicopter from its previous US-based owners, in New Zealand. Beforehand, the plaintiff had been considering the purchase of a different helicopter of the same model and type. Following the abandonment of those negotiations the plaintiff obtained the helicopter that is the subject of these proceedings.

23 On 16 December 2008, the plaintiff agreed upon a purchase price with the US-based vendors, in the sum of US$1,375,000: Exhibit "D", page 263. On the same date, the vendors signed a Bill of Sale for the helicopter in which the sale was acknowledged for a consideration of US$1.00. The Bill of Sale also acknowledged unidentified "other good and valuable consideration paid to it by AV8 Air Charter Pty Limited": Exhibit "D", page 279. On 19 December 2008, the plaintiff insured the aircraft with QBE for an agreed value of US$1,400,000: Exhibit "D", page 285.

24 Mr Harrold has been a licensed helicopter pilot since 2002. Since 2008, he has been the managing director of the defendant company, which operated in the general aviation industry. At the time of the wire strike, he was endorsed to fly the EC 120 model helicopter, and had previously accumulated about 48 hours flying time on such helicopters. He has held a commercial helicopter pilot's licence since 2006, and he was authorised to fly only in accordance with the visual flight rules ["VFR"] established by the Civil Aviation Safety Authority ["CASA"]. In accordance with that licence, Mr Harrold was aware that the VFR relevantly required that he not fly through cloud, that he keep sight of the ground at least every 30 minutes, and not fly by instrumentation alone.

25 In August 2008, Mr Harrold had sent Mr Paradice a draft agreement setting out the terms on which he would enter into contractual relations concerning the proposed charter and operation of an EC 120 helicopter. That draft, was never executed by the parties, but a further copy was again forwarded to Mr Paradice on 18 January 2009. Its terms were acquiesced to by Mr Paradice, and it can be concluded that Mr Harrold and Mr Paradice intended that this document govern the commercial relationship of the parties: Exhibit "J".

26 On 7 January 2009, the plaintiff's EC 120B helicopter was delivered in Australia for re-assembly. Before the helicopter was delivered to Mr Harrold, it was tested and allocated the registration VH-EDP. On 19 January 2009, Mr Paradice sent an email to Mr Harrold, requesting that on 29 January 2009, he be flown in the helicopter from his property at Wingam in the upper Hunter Valley just to the north of Scone, in order to attend a business meeting.

27 Surrounding those circumstances, there was some associated administrative activity. Mr Harrold had sent Mr Paradice a draft of a proposed written agreement under which the defendant proposed to operate the plaintiff's EC 120B helicopter: Exhibit "J". On 27 January 2009, the certificate of insurance was endorsed naming the defendant company as an authorised operator of the helicopter. On the same date, Mr Harrold arranged for Mr Hodge, a pilot employed by the defendant, to also be added to that policy as an authorised pilot for the helicopter.

28 On 28 January 2009, the plaintiff's EC 120B helicopter was delivered to the defendant's heliport at Rosehill. Mr Harrold inspected it at his premises on that day, and on the following day, in preparation for the flight to Scone to pick up Mr Paradice.

29 Although there was no written agreement executed by the parties, it can be assumed by the conduct of the parties, and from their prior dealings, that a state of contract existed between them. The terms under which the subject helicopter was to be used by the defendant were that it was to be hired out by the defendant for charters at $800 per hour. A further arrangement between the parties was that at the times Mr Paradice needed to be flown in the helicopter, he would pay the defendant $550 per hour plus reimbursement of fuel costs. The arrangement was that the plaintiff would also pay hanger fees and other expenses. This was known in the industry as a dry or cross-charter arrangement.

30 The helicopter was not new. Exhibit "K" reveals that it was manufactured on 20 August 2000. After manufacture, it had originally been exported from the USA to Canada. It was then used throughout the southern USA and in the Caribbean. It had then been disassembled and sea freighted to Hawaii where it was operated for a time before being shipped to New Zealand, and then to Australia. It had been operated in Australia for slightly less than 100 hours before being acquired by the plaintiff. As at 25 August 2008, it had a recorded airframe and engine use of 1344.1 hours and had a total of 5239 landings.

31 A check of the VEMD or monitoring equipment in the past had revealed some previous queries over equipment functioning, which appeared to have been resolved. The pilot and co-pilot cushions were showing signs of age and the seatbelts were forward scheduled for re-webbing between December 2009 and January 2010.

32 The aircraft had a history of prior damage as well as wear and tear. In July 2004, after 413.1 hours of operation, it had sustained damage to the rear structure and the fenestron area during sea freighting. Whilst that damage had been repaired, the service record showed that a number of parts on the aircraft had been replaced from time to time. The final comments on the aircraft data sheet, or service record annotated by Australian Aerospace Ltd, Exhibit "K", which appeared to have been last updated on or shortly after 25 August 2008, stated:

"The aircraft is in very good condition for age. There is some evidence of corrosion repairs, and it is obvious that the aircraft has operated part of its life in a corrosive environment with surface rust & corrosion evident.

The shipping damage repairs carried out by Elite Helicopter Services on the landing gear structure was checked. Some rivets show some irregularities and the area has not been repainted.

Observations

Main rotor blade paint work peeling - require rework

Slight oil seep for main gearbox oil cooler quill seal. - monitor

Standby compass unserviceable.

ELT unserviceable.

Starter Generator requires overhaul.

Leading edge corrosion on tail rotor blades."

33 It is not clear whether some, or all, of those issues had been addressed before the plaintiff had acquired the helicopter on 16 December 2008. In any event, it is plain from the remarks cited above, that the recorded aircraft history was of some relevance to determining whether, following the wire strike incident on 29 January 2009, there was a diminution in its value, as claimed by the plaintiff.

34 At 11pm on 28 January 2009, the Bureau of Meteorology issued an area forecast for the period from that time of issue, to 4pm on 29 January 2009 in respect of the proposed flight area. At 4am on 29 January 2009, the Bureau of Meteorology issued an amended area forecast to include a warning of fog and mist patches for that area, for the period from that time of issue, to 8am on 29 January 2009.

35 At about 7am on 29 January 2009, Mr Harrold undertook the required pre-flight inspection of the aircraft, and then he and Mr Hodge took off from the defendant's heliport at Rosehill in the helicopter. At about 8am the helicopter landed at Mr Paradice's property at Wingen, north of Scone. Shortly after 8am, Mr Paradice had boarded the aircraft and the flight to Sydney had commenced. Mr Harrold stated that he provided a pre-flight briefing. Mr Paradice said he could not recall such a briefing.

36 During the flight to Sydney, at about 8.30am, Mr Harrold encountered some cloud in the vicinity. He then decided that he should take the aircraft into a descent in order to fly under that cloud. Subsequently, at about 8.45am, the aircraft struck a suspended overhead 11kV powerline. Those events require closer evaluation in the context of the array of factual accounts that were given in evidence.

37 The damage to the helicopter resulting from the wire strike can be seen in the following photograph which formed part of Exhibit "D", at page 173:

                           

38 As a result of the damage occasioned to the helicopter from the wire strike, between February 2009 and October 2009, it underwent repairs. Those repairs, which cost $631,104.82, were paid by AV8's insurer, QBE. In the course of those repairs, on 21 May 2009, the plaintiff received an invoice requiring payment of an insurance excess of US$70,000 (estimated to be the equivalent of $90,909.09 at trial) due under its policy of insurance. On 30 October 2009, the helicopter EC 120B undertook its first income earning flight after a period of 9 months of idleness following the wire strike and the consequential repairs.

39 In the meantime, on 21 July 2009, the plaintiff had terminated its agreement with the defendant company in respect of both of the helicopters it had hired to the defendant.

40 The location of the wire strike involving the plaintiff's helicopter was the same location where, on 23 March 1994, a Polair helicopter had struck overhead powerlines. No markers were installed on the wire as aids to aviation.

Review of array of factual evidence

41 In the paragraphs that follow, as a precursor to identifying my findings of fact, I set out a summary of the various factual accounts provided by the non-expert witnesses.

Mr Paradice - principal of plaintiff and owner of the helicopter

42 Mr Paradice could not recall having received a pre-flight briefing from either Mr Harrold or Mr Hodge. That evidence was in contrast to the evidence of Mr Harrold.

43 Mr Paradice said that when the aircraft had taken off from Scone, and after the aircraft had reached a cruising altitude, he observed there to be no clouds in the sky. He was seated in the middle of the rear seat of the aircraft. He described himself as being a very nervous passenger, because, his brother-in-law had been killed in an earlier plane crash. He said he had been alert during the time of the flight, but had not been observing the altimeter. He observed the aircraft to have tracked from Wingen in Scone, to a point just south-west of Jerry's Plains, near Broke. He said the flight area was clear to that point and he could see sunshine on the ground quite well, having emerged from a period of flying during which some fog had been seen.

44 Mr Paradice said that at this time he recalled seeing clouds and mountains ahead, and then seeing patchy cloud in front, for what he described as a minute or two, at which time he was also looking at the ground, and saw that it was clear.

45 Mr Paradice said that at this time he perceived the aircraft to have commenced a descent, and he then saw cloud, which was scattered, and becoming thicker. He said he also saw patchy ground below. He said that as the aircraft then travelled further south, he observed the scattered cloud to become heavier or more dense to his left, and reasonably clear to his right, and sunshine to the north of the valley. He said he had observed the aircraft to remain clear of the cloud. It must be recognised that these were lay or untrained observations.

46 Those events were described in the following portion of the cross-examination of Mr Paradice, at T58.9 - T58.34:

"Q. You get to Jerrys Plains you see cloud patches, or as you proceed south from Jerrys Plains, you see cloud patches which became increasingly dense, correct?

A. Yeah. I don't know whether they were I can't we're flying along here and its getting denser and denser. Like whether it's below or above, or the same level as we are, but we're going along and there's a hole, you know. Mark decides, "Oh well its getting denser we should be going down", all this time I could see the ground, right, so.

Q. We'll stay with the clouds for the moment. I understood your answer to be, when I asked you about these patches of clouds that became more and more dense, that you can't recall whether those clouds were above, below or at the same altitude as the helicopter, is that

A. It was we were flying it was just below.

Q. Please Mr Paradise, is that your recollection?

A. Just the clouds were just below where we were flying, and there was, like, if you know clouds, they kind of all over the joint and so there was some that were raising above like we were flying predominantly over the clouds.

Q. Then the helicopter, when it descended, flew, is this an accurate layman's way of putting it, between the patches to a lower altitude?

A. Yes.

Q. You recall a left hand turn pretty immediately at the end of the descent?

A. Yes."

47 Mr Paradice said that after the descent, which he described as a shallow descent, the aircraft turned left. He said that at this time, he saw the village of Broke to the right during the descent. He said that at this time, whilst in the general region of Broke, the aircraft then descended below the level of the clouds and tracked to the left and to the east towards Newcastle over flat land.

48 Mr Paradice estimated that a period of about 5 minutes had elapsed after the aircraft had turned left on its descent in the region of Broke, and until the wire strike occurred. After the passing of the first 2 or 3 minutes of those 5 minutes, he observed that they were no longer flying over flat land, but were instead, flying over what he described as the undulating hills of a national park comprising heavy forest. Mr Paradice said that at some point during the 10 to 30 seconds before the wire strike, he had asked the pilot, Mr Harrold, why they were flying so close to the cliffs. He estimated the distance of separation as about half the length of a 100m football field.

49 Mr Paradice stated that Mr Harrold had replied with an explanation for being close to the cliffs to the effect that on the left there was restricted airspace, on the right there were cliffs, and above, there was cloud cover. Mr Harrold gave a more detailed account of this conversation in his 5 October 2011 statement, at paragraph [160].

50 Mr Paradice said that he had observed that Mr Harrold had handed the control of the aircraft to Mr Hodge, the co-pilot, whilst Mr Harrold looked at a map to seek another route. That map was the VNC map used for the flight. He said that Mr Harrold had indicated that he was going to call someone in Newcastle. That call was in connection with local weather conditions. Significantly, Mr Paradice could not recall the stage at which that phone call was made. He qualified that evidence by saying that he could not recall whether Mr Harrold had consulted the map before or after making the descent near Broke. It should be interpolated that during the flight, Mr Harrold had looked at the map on a number of occasions.

51 Mr Paradice agreed that from the time of the left turn after the descent near Broke, until the time of the wire strike, the aircraft had not flown through cloud, but he had observed that there were "misty" conditions below the aircraft. He said that at that time, he could see a couple of hundred metres in front reasonably well, as well as for quite a few kilometres to the north. He also described seeing misty conditions to the south-east, and dense cloud cover above.

52 Understandably, the wire strike was a shocking event for Mr Paradice, who said that after the wire strike had occurred, it seemed to him that the pilots were fighting for control of the aircraft. The evidence of the pilots provided a different perspective to this aspect of the evidence of Mr Paradice. Mr Harrold's evidence was to the effect that when Mr Hodge reached for the controls, Mr Harrold stated he had control of the aircraft. In the stress of that moment, Mr Paradice's perception may have been understandable, but I do not consider it to have been an accurate summation of the situation.

53 Mr Paradice said that to him, the experience seemed surreal as the aircraft was being taken down and landed in a quarry, where they waited about an hour before another helicopter arrived in order to take them to Sydney. He said that after the landing, Mr Harrold had apologised to him for the incident. They were both shocked by the incident. During the subsequent flight to Sydney, Mr Paradice said that Mr Harrold had told him he was sorry and that he would pay for his insurance excess. Mr Harrold did not concede the latter proposition. Nothing turns on the apology: s 69 of the CL Act.

54 Mr Paradice stated that as a result of the damage claim he had to pay the sum of US$70,000 as an insurance excess, and the aircraft was consequently unavailable for charter hire for a period of 9 months between 29 January 2009 to 31 October 2009. It was that period of unavailability that gave rise to the claim for loss of profits. It was not entirely clear as to whether that 9 month period was necessarily reasonable for the time taken to re-achieve airworthiness. At the time of the hearing, over 2 years after the wire strike, the helicopter had not been sold by the plaintiff, and there was no realised loss of value.

Mr Harrold - pilot of the helicopter

55 Mr Harrold prepared an evidentiary statement dated 5 October 2011, which was followed by a supplementary statement prepared on 17 February 2012. He was cross-examined at length on those statements, and concerning the events in question.

56 Mr Harrold denied flying above cloud cover or through cloud cover at any time on the journey from Scone to Sydney. He further denied breaching any VFR requirements at any time during that journey. Understandably, he appeared stressed and embarrassed about the wire strike when giving his evidence, including when his evidence was challenged on those matters. I did not consider those matters of demeanour should be determinative when assessing the reliability of Mr Harrold's evidence.

57 Mr Harrold stated that on the morning of 29 January 2009, he had personally refuelled the aircraft, carried out all the required pre-flight safety inspections and checks, and obtained a print-out of the applicable weather chart within half an hour prior to take off. He also had available to him the most current aeronautical information in the form of a VNC map for the area in which he would be travelling.

58 Mr Harrold stated that the flight to Scone was uneventful. He said that when he landed, he disembarked, greeted Mr Paradice, and carried out what he referred to as the usual visual checks before re-boarding, whereupon he said he provided Mr Paradice with a general safety briefing for the aircraft, as he described in paragraph [140] of his first statement. He said that the aircraft then took off for Sydney at about 8.20am.

59 Mr Harrold stated that the flight to Sydney initially took a straight line from Scone to Mascot, until he found it necessary to change course near Broke. Mr Harrold described the course of the events during the flight, up until the wire strike and its immediate aftermath, in the following extracts from his evidentiary statement dated 5 October 2011:

"141  After performing the safety brief, at about 8.20,am, we lifted off to head to Sydney.

142  As we began to fly back towards Sydney we initially took a flight path that was virtually a straight line from Scone to Mascot.

...

144  During the flight the low cloud I had seen to the South on my trip to Scone had moved North and I noticed that the weather had begun to change. I was travelling about 162 degrees South. I saw that cloud was developing in front of me to the South, South-East and East.

145  There was also cloud to the West and North-West of the helicopter.

146  The visual flight rules prevented me from travelling through cloud. Based upon my assessment, the cloud was lowering to the South where I had to clear a mountain range forming part of the Great Dividing Range.

147  The available options for me were:

(a) to attempt to fly above the cloud;

(b) to attempt to fly underneath the cloud at the same time as trying to clear the Great Diving (sic) Range; or

(c) to head Eastwards in an attempt to avoid the cloud bank and pass over the Great Diving Range in doing so.

148  I was not prepared to attempt to fly above the cloud bank. The difficulty with this course was that I was not sure there would be a break in the clouds at my destination which would enable me to land. There was the possibility that I might be caught above the cloud .

149  I was also worried about the possibility of attempting to fly underneath the cloud bank at the same time as trying to clear the ridge of the Great Dividing Range which lay to the South of my location.

150  It was a possibility that if I attempted this I would get squeezed between the ridge and the low cloud bank without any room to progress and may inadvertently enter cloud.

151  There was also no available refuelling stations along that course if I had to reverse course due to an inability to clear the mountain ridge.

152  At about this time I asked Roger to handle the controls while I called a friend of mine located at Newcastle, Mr Stephen Forgacs, to get an idea on the weather there. He did not answer and so I left a message on his voicemail. I received a reply text from Mr Forgacs soon after confirming that the weather was deteriorating on the coast near the Hunter River.

153  I consulted the VNC Map which identified the airspace and the terrain in this particular area. I wanted to determine the best course to adopt. Throughout the flight Roger had this VNC Map map (sic) open on his lap.

29 January 2009 - Course Correction

154  I had already passed Mt Wambo and Bulga and decided that I would continue towards Broke.

155  I remained below the cloud to enable me to adhere to VFR and to give me full vision of the range and the cloud bank in front of me.

156  On approaching Broke and avoiding any low lying cloud, I continued to track East towards Cessnock and Newcastle. I did this because:

(a)  I was unable to fly through the approaching cloud to the South;

(b)  I am not an instrument rated pilot and my license does not allow me to fly through cloud;

(c)  VH-EDP was not set up for instrumentation only flying;

(d)  The terrain to the South was becoming higher

(e)  by tracking East I had available to me two safe options in Cessnock and potentially Newcastle for landing if the weather was to deteriorate further or if I needed to refuel.

157  I was aware that Singleton Army Base was a restricted area to my left. This was identified on the VNC Map. I remained under the low lying cloud and based on my interpretation of the landforms set out on the VNC Map kept outside the perimeter of the no-fly zone of the army base. At no time did I intentionally enter restricted air space.

158  I could see straight ahead to the East towards Cessnock. I recall that the visibility was clearer to the East, still cloud however the clearance between the base of the cloud and the ground appeared far greater.

159  I crossed the range and flew between the mountain range (now to my Southern right-hand side) and the Army base (now to my Northern left-hand side) and under the cloud. I was concerned with remaining in sight of the ground and to safely navigate around the ridge and the army base.

160  I recall at one point I had a discussion with Mr Paradice to the following effect:

"Mr Paradice:

Why are we flying close to the range?

Me: We have a restricted area to the left and we have hills to the right. I cannot fly through the cloud and the terrain is rising to the South."

29 January 2009 - The Wire Strike

161  As we tracked to the East the range to the right protruded up into the cloud. As the cloud was low lying I could not see the top of the range to my right, although I could see straight ahead.

162  We were approaching Cessnock. At this point I was now clear of the range and the army base area and descending toward Cessnock. The range was about 50 meters on my right hand or Southern side. The weather to the immediate East looked much better. The low lying cloud had spread across the rest of the sky to my South. I remained in sight of land at all times and never entered cloud.

163  The altitude of the helicopter at this time was approximately 1850 feet above sea level.

164  It was at this point I noticed a wire in front of us from right to left. The helicopter struck the wire no less than one second later.

165  I distinctly remember the helicopter slowing down then speeding up and the windscreen shattering.

166  After the helicopter struck the wire the cabin became extremely loud due to sound of the air flowing through the broken glass of the canopy.

167  At this stage I could not see the second wire and did not know the second wire was there.

168  It was at this point I needed to make an assessment quite quickly in order to try and land the helicopter safely. There was 300 to 400 feet of clearing below me in what I thought was a quarry. I manoeuvred down. I remember at one point Mr Hodge grabbed the dual controls, however I said:

Me: Let go, I have control.

169  The aircraft was still under power and remained under power including during the landing. The helicopter, after striking the wires, was not flying erratically nor was it displaying signs that it would suddenly drop.

29 January 2009 - Landing

170  As I looked towards the area where I was about to land I could see the second wire. I managed to guide the helicopter underneath that wire and hover down to the ground. The helicopter landed softly on its skids.

171  The landing was a normal "power on" landing. The skids did not strike the ground at a fast pace nor was the landing a "crash landing". The helicopter hovered to the ground as though it had not been damaged at all.

172  After we landed and I shut the helicopter down. Mr Paradice said words to the following effect:

Mr Paradice:

"Fuck me! Fuck me! Mark what happened?"

173  I retrieved the first aid kit from inside of the helicopter and inspected Mr Paradice and Mr Hodge to determine whether or not they had suffered any injuries as a result of the wire strike.

174  Roger had cuts on his face. I also was bleeding. Mr Paradice was uninjured.

175  I now know that there is a tower at the top of the range that was guiding that wire. I could not see that tower as it was in cloud.

176  The tower and the wire were not indicated on the current VNC Map. Had it been marked I would not have taken the course I did."

60 Mr Harrold said that after landing the helicopter, and after attending to the welfare of the others on board, including tending to Mr Hodge's facial lacerations, he notified AMSAR, and also his base, for another helicopter to be sent to the site.

61 On the same day, he prepared a report for the Australian Transport Safety Bureau ["ATSB"]. On 30 January 2009, he sent CASA a notification of the incident: Exhibit "L".

Mr Harrold's notification of wire strike to CASA

62 On 30 January 2009, Mr Harrold provided CASA with a formal written notification of the wire strike incident. His narrative summary description was in the following terms:

"At approximately 0845 on Thursday 29 January 2009 whilst travelling from Scone to Sydney on a private flight the aircraft VH-EDP collided with a small electrical wire which resulted in the aircraft sustaining damage from the windscreen to the front door pillars.

There were no injuries sustained by the crew or the passengers

We departed the private residence at 0805 and headed south on route to Sydney, the upper Hunter Valley was cloud free however as we tracked further south It became evident that there was cloud developing south of Mt Wambo and extending overhead the mountain country to the south, whilst this cloud appeared broken and flight may have been possible on top of cloud whilst still maintaining a visual reference of the ground within a 30 minute window i (sic) was not confident of being able to descend as i got closer to Sydney and was also mindful of the fuel available if indeed i had to turn back. So this option i considered unacceptable and unsafe.

As a result I elected to track along the northern side of the range in a South Easterly direction for Cessnock then onward to either Kurri Kurri or Mulbring depending on how the weather looked. I was referring to the VNC 3 Newcastle chart Effective 20 Nov 2008 which showed a clear passage free of wires and south of the Dochra area to Cessnock. We passed abeam Broke clear of cloud and with approx 5ooft (sic) clearance above ground and then south of the Dochra area. We then rounded the southern part of the Dochra area and headed for Cessnock, it was at this point that we struck the wire near the hill marked 1942.

The wire struck the aircraft In the middle of the windscreen breaking through the centre window strut and breaking the Perspex windscreen. The wire broke when it struck the front window side supports.

I then undertook an emergency landing in the closest open area which was a quarry inside the Dochra area. The aircraft was running quite normally on landing. There were no injuries.

I then called an associate to let them know what had happened and gave him our location and asked that he notify AUSAR and the ATSB.

Subsequent to the accident i spoke with John Donnellan at the ATSB to give him an account of what occured (sic) and to clarify whether or not we were able to relocate the aircraft back to an engineering facility in Bankstown. John informed me that this was approved as the ATSB had no further interest In investigating the matter. The aircraft is now at Bankstown at the Australian Aerospace facility."

63 The CASA notification form asked Mr Harrold to provide a narrative of what he saw as being the factors that contributed to the incident. His response continued in the following terms:

"The passenger was wanting to get to the destination for a meeting, and was also asking many questions about the aircraft and about the business relationship moving forward. This on top of the weather situation created some pressure although the overcast nature of the day along with not knowing about the presence of the wire on route was a major factor."

64 Prompted by some further questions from within the notification form, Mr Harrold disclosed that the incident occurred during the course of the cruise phase of the flight, in VMC or visual meteorological conditions, subject to VFR rules, in OCTA airspace, which appears to be a reference to an area outside controlled airspace, in G or general aviation airspace, at about 500 feet above ground level.

65 The notification form indicated that at the time of the wire strike, visibility had been reduced by cloud, with the cloud cover being 5-7 OCTAS, which is described as being broken cloud. It appears from the expert evidence that an OCTA (or OKTA) is a meteorological term identifying, in fractions of eight, the part of the sky obscured by cloud, where 8 means total cloud overcast. The form stated that the cloud base was at 2200 feet, in variable wind speed.

66 The notification form described the level of damage to the helicopter as being serious, comprising smashing of the front windscreen and side pillars at the time of the wire strike. There was no damage to the rotor system other than that a piece of perspex had struck one of the blades without damaging the blade.

Mr Harrold's notification to AMSAR

67 On the day after the incident, Mr Harrold sent the following report of the incident to AMSAR which was tendered as Exhibit "3":

"Summary of accident

At approximately 0845 on Thursday 29 January 2009 whilst traveling (sic) from Scone to Sydney on a private flight the aircraft VH-EDP collided with an electrical wire which resulted in the aircraft sustaining damage from the windscreen to the front door pillars.

There were no injuries sustained by the crew or the passengers. We departed the private residence at 0805 and headed south on route to Sydney, the upper Hunter Valley was cloud free however as we tracked further south it became evident that there was cloud developing south of Mt Wambo and extending overhead the mountain country to the south, whilst this cloud appeared broken and flight may have been possible on top of cloud whilst still maintaining a visual reference to the ground within a 30 minute window i (sic) was not confident of being able to descend as i got closer to Sydney and was also mindful of the fuel available if indeed i had to turn back. So this option i considered unacceptable and unsafe.

As a result i elected to track along the northern side of the range in a South Easterly direction for Cessnock then onward to either Kurri Kurri or Mulbring depending on how the weather looked. I was referring to the VNC 3 Newcastle chart effective 20 Nov 2008 which showed a clear passage free of wires and south of the Dochra area to Cessnock. We passed abeam Broke clear of cloud and with approx 5ooft (sic) clearance above ground and then south of the'Dochra (sic) area. We then rounded the southern part of the Dochra area and headed for Cessnock, it was at this point that we struck the wire.

The wire struck the aircraft in the middle of the windscreen breaking through the centre window strut and breaking the Perspex windscreen. The wire broke when it struck the front window side supports. I then undertook an emergency landing in the closest open area which was a quarry inside the Dochra area. The aircraft was running quite normally on landing. There were no injuries. I then called an associate to let them know what had happened and gave him our location and asked that he notify AUSAR and the ATSB.

Subsequent to the accident i spoke with John Donnellan at the ATSB to give him an account of what occurred and to clarify whether or not we were able to relocate the aircraft back to an engineering facility in Bankstown. John informed me that this was approved as the ATSB had no further interest in investigating the matter further. The aircraft is now at Bankstown at the Australian Aerospace facility. The weather situation the overcast nature of the day along with not knowing about the presence of the wire on route was a major factor. The wire was not marked on any charts."

Mr Hodge - co-pilot of the helicopter

68 At the time of the wire strike, Mr Hodge was a licensed helicopter pilot. He had been employed by the defendant as a helicopter pilot since 2008. He had held a civil aviation rating endorsement for this type of helicopter since 28 July 2008. He assumed the left front seat position for the flight. He recalled the flight to Scone as being uneventful in sunny and clear skies, but with a fine mist over the Hawkesbury River. He did not leave the aircraft at Scone.

69 Mr Hodge described the flight plan from Scone to Sydney as being a straight line from Scone to Mascot. He had the flight map on his lap for most of that flight. On the flight south from Scone he observed a bank of low lying cloud to the south between Muswellbrook and Broke, coming from the west, and which obscured the view of the mountain range directly to the south. He said that there was a northern edge to that cloudbank and it was approaching the edge of the mountain range. He said that he had a clear view ahead to the mountain range. He said that at that time the aircraft was cruising at an altitude of about 2500 feet.

70 Mr Hodge described how at one point in the flight, Mr Harrold took the map and then told him to in effect take control of the aircraft whilst he looked at the map, which he did for a period of not more than 2 minutes. Mr Hodge agreed that during the period he had the control of the aircraft, he had no concerns over his ability to land the aircraft if he needed to do so, because he had clear visibility of the ground below and ahead. At that time the aircraft was heading on a magnetic track along a route with which they were both familiar.

71 Mr Hodge said that the flight had been unexceptional until the aircraft commenced a descent at a point between Muswellbrook and Broke, when the weather had started to deteriorate, with cloud moving from the left to the right of the aircraft during the descent.

72 Mr Hodge described the OKTAS rating of the cloud at that point as being 5, which is defined as meaning that three eights of the sky was clear in front with plenty of gaps in the clouds so as to provide clear vision down to the terrain below and in front. Mr Hodge could not see the cloud behind him. He said that the descent had been undertaken because they needed to get below the cloud cover as it moved in. Whilst Mr Hodge was flying, following the descent, the aircraft was being flown straight and level.

73 At T206.27-37 Mr Hodge's evidence included the following exchange.

"Q. In paragraph 66 of your statement you said this:

"Just before we reached Broke [you recall] Mr Harold saying 'We should go around the army base and head east, it's best not to attempt to go over the mountains, it may be clear of clouds over the other side of the mountains but we do not know what the weather is like on the other side. If we go east we will also have two refuelling options if we need them'."

Do you recall that conversation?

A. Yes."

74 It was clear to Mr Hodge that this conversation had occurred before the aircraft had reached Broke. He said that the decision to track the flight on the southern side of the military zone was made by Mr Harrold and communicated to him before the aircraft had reached Broke. Mr Hodge said that as the aircraft flew east after the left turn at Broke there had been full visibility ahead, but not full visibility to the north, as there was slow moving low-lying cloud moving in from behind, moving west to east. Mr Hodge could not recall how far away those low-lying clouds were located to the north.

75 At the hearing, Mr Hodge was unable to describe the altitude of the aircraft as it flew over the spur of the mountain range for a minute or two before the wire strike. I did not consider this inability to recount that detail as remarkable as it was Mr Harrold, and not Mr Hodge, who was, at that time in control of the aircraft.

76 Mr Hodge related a conversation he had heard between Mr Paradice and Mr Harrold whilst on the ground and after the wire strike in which Mr Paradice said words to the effect that Mr Harrold should not worry, as the aircraft was insured, and they should be glad that they were still alive after the event. Whilst I do not doubt that such a conversation took place, nothing turns on that conversation.

Mr Hopkins - aviation accident claims assessor

77 Mr Hopkins, the aviation claims assessor for QBE, gave evidence relating to a telephone conversation he had with Mr Harrold on 30 January 2009, in which Mr Harrold reportedly stated his hindsight observation to the effect: "I should've known better, skirting under low cloud to find a way back. It makes me feel sick to think about it".

78 In answer to questions put to him in cross-examination, Mr Hopkins, who is also a licensed aircraft engineer on helicopters, agreed that the helicopter had been repaired to a very high standard by a subsidiary of the manufacturer, using genuine parts, leaving no stone unturned to return the aircraft to an airworthy condition. He agreed the aircraft had been rigorously inspected after the repairs and that the repairs had been carried out properly.

Mr Dunscombe - pilot in previous incident in 1994

79 On 23 March 1994, Mr Dunscombe was a helicopter pilot in the employ of the NSW Police Force. On that that date, he had flown a Polair helicopter that struck an electricity powerline on the southern boundary of the Singleton Army Base during an air search for another aircraft that was thought to have crashed in that area.

80 In order to carry out that search Mr Dunscombe had to fly at an altitude of less than 500 feet above the ground. At a point described as Trig point 1942 near Cessnock, he was flying east through a large valley close to the north of the hills that lay at the southern edge of the Army Base. Whilst attempting to obtain his bearings near the ridge in that locality he collided with an unmarked wire that was suspended over the valley. He had not seen the wire beforehand. At the time he considered the overhead powerline was just about impossible for a pilot to see without having had warning markers placed on it. Mr Dunscombe was not challenged or cross-examined on his statement sworn on 21 February 2012. The wire that Mr Dunscombe had struck, was in the same location where the helicopter that Mr Harrold had been flying, struck the wire.

Mr Franks - helicopter pilot involved in previous wire strike at the site

81 In about March 1994, Mr Franks flew a helicopter in the area of the incident where Mr Dunscombe had struck an overhead wire. Mr Franks was carrying out repair work to restring the wire that had been broken by Mr Dunscombe's Polair helicopter. He said he had flown his helicopter between the mounting locations across the valley as part of the repair and replacement process. It appears from other evidence that the replacement cable, which was replaced in the same location as the cable that Mr Harrold had later flown into, had not been marked to draw the attention of aviators to its presence.

Considerations for resolution of disputed facts in issue

82 In determining which of the factual accounts given in evidence should be preferred as being more probably than not correct, the factual evidence of three witnesses must be assessed, namely, Mr Paradice, Mr Harrold and Mr Hodges.

83 Their respective versions differed slightly in some material respects according to their relative perspectives. That assessment must take place in the context of the circumstances where I am satisfied they were each endeavouring to give a truthful account of the events as they perceived them to have occurred.

84 Nevertheless, despite the inherent difficulties in evaluating evidence of that nature, it is necessary to make findings of fact, and such findings must be made before the expert evidence can be considered and applied in relation to the circumstances in which the wire strike occurred, in order to determine which of the competing interests in the litigation should succeed.

85 In undertaking this exercise, I consider it is useful to examine the roles, perspectives and the task oriented interests of those respective witnesses.

86 Of the three witnesses who gave factual evidence of the occurrence of the incident, it is appropriate to recognise that foremost amongst them, Mr Harrold had the responsibility of fulfilling his professional role as a pilot in control of a sophisticated and expensive piece of aeronautical machinery, in circumstances where it was in his interests to maintain the commercial relationship his company had with the plaintiff company.

87 It is also important to recognise that at the same time, his own life, and the lives of Mr Hodge and Mr Paradice, and for that matter the economic livelihood of their families, depended upon him making appropriate judgments and responses to the evolving circumstances that arose during the course of the flight to Sydney. The same comment also applies to the continuation of his business association with Mr Paradice and his company, the plaintiff. That said, the existence of those responsibilities and interests does not mean that Mr Harrold was immune from making a foreseeable and avoidable error in respect of his flying on the day in question.

88 The first matter to note is that Mr Harrold struck me as someone who had not taken those responsibilities, and the judgments that accompanied them, lightly. In that regard, in his evidence, he explained the practical reasons for his decisions as the pilot in command of the aircraft, and those decisions stand to be critically evaluated as to their reasonableness or otherwise, against the commentaries provided by the respective experts.

89 The second matter to note is that any criticisms made of Mr Harrold in the context of this litigation and in respect of his actions or inactions on the day in question must be viewed prospectively, and not through the potentially convenient and at times distorting prism of hindsight: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442.

90 The next consideration is the evidence of Mr Hodge, and whether his evidence should be preferred to that of Mr Harrold where they materially differ. In this regard, it must be recognised that Mr Hodge was not the pilot in command when the relevant aviation and navigation decisions were being made. Although he was in a position where he was required to take over if necessary, and if circumstances required that he do so, as he did momentarily whilst Mr Harrold checked the VNC map, and notwithstanding that he should be regarded as having been a trained observer at the time, nevertheless, he was not actually engaged in piloting the aircraft at the time. I consider that his observations must to some degree be discounted on account of that factor.

91 Furthermore, I consider that Mr Hodge's observations should also be discounted due to an additional factor, namely, that his recollection of some key events was not complete, unlike that of Mr Harrold, who could recall key events. I did not consider Mr Harrold had tailored his evidence to suit his case. His contemporaneous accounts support that view.

92 A further factor that I consider should be weighed as a discounting factor to be applied to the evidence of Mr Hodge, is that shortly after the incident, he ceased to hold a helicopter pilot's licence, and therefore since that time he has had less reason to maintain a current awareness and recollection of the events, as he was no longer required to maintain the practical discipline of thinking in terms of aeronautical considerations. This may have been the reason for his incomplete recollection but it is not necessary to determine that matter.

93 On the other hand, Mr Hodge did not stand to gain anything from the outcome of this litigation, either in terms of maintaining his livelihood or reputation as a helicopter pilot in the industry. On one view, that factor might ordinarily weigh in favour of accepting his evidence in its entirety on account of his apparent disinterest in the outcome of the proceedings. There was no apparent commercial reason for him to maintain a loyalty of testimony to his former employer as that relationship no longer pertained, notwithstanding that an association of friendship may have still persisted.

94 On the foregoing analysis, I prefer the evidence of Mr Harrold to that of Mr Hodge in the areas where discordance appears within their respective testimonies as to matters of detail. That said, it still remains necessary to consider the testimony of Mr Paradice, and where that testimony is at odds with the testimony of Mr Hodge and Mr Harrold, to determine which parts of that evidence as a whole should be preferred as being more probably than not correct.

95 I now turn to consider the vantage point Mr Paradice had for the perceptions that he related in his evidence. I accept that he gave his evidence honestly, just like the other factual witnesses. I considered but discounted the possibility that as a man experienced and successful in commercial life, his evidence may have been structured to enhance the plaintiff's prospects of success in the proceedings. He was matter of fact in the manner and content of his evidence and I did not see any basis upon which to discount the general credibility of his testimony. That said, he and Mr Harrold, and for that matter Mr Hodge, had very different vantage points from which to make their observations that impacted on the liability issues.

96 The first matter to be recognised in assessing the evidence of Mr Paradice for its reliability is that whilst he is an articulate man, he was not trained in the way a pilot would be trained as an observer of aeronautical conditions, protocols and considerations. His evidence must therefore be viewed in that light when considering the details of the in-flight observations that he described.

97 The second matter to be noted is that both literally and figuratively, Mr Paradice was not in the same position as the two pilots in the front seats of the helicopter when it came to making observations and judgments concerning aviation and navigational decisions on the day in question. He was seated in the rear middle seat, and necessarily, his opportunity to observe the perspective environment in which the aircraft was operating, both in the air and on the ground, must necessarily be seen to have been limited, compared to the observations of the pilot in command during the flight.

98 That evaluation applies to matters of flight altitude at various points, relative distances to nearby landforms and structures, airspeed, wind observations, cloud appearance, cloud configurations and movement, including in terms of direction and velocity, and ground visibility. These are matters the pilot would have seen when considering the spatial relationship of the aircraft to the surrounding topography of the land below. All of those matters were factors that Mr Harrold, as the pilot in command of the aircraft, would have had to consider and to make judgments upon in a progressively cumulative manner, not only to maintain the flying of the aircraft, but also on account of safety. In my view, Mr Harrold had the better position of advantage for making such observations, compared to anyone else in the aircraft.

99 In my view, an important matter influencing the assessment of factual evidence emerges from those considerations, namely that Mr Harrold was not only making progressive factual observations of the unfolding events, but he was also making judgments on those observations in accordance with his training and responsibility as the pilot in command of the aircraft.

100 In those circumstances, where it cannot be shown, through articulated reasons, that Mr Harrold's factual account was inherently wrong or improbable, with regard to his professional observations and judgments as a pilot, I consider that Mr Harrold's version of the events should not be trumped by Mr Paradice's lay perceptions, where there is room for uncertainty as to the contextual correctness of those perceptions.

101 These circumstances are very different to those where no concurrent aviation and navigational calculations or judgments were being made, such as for example, a simple static factual observation as to whether a traffic light was being displayed as green, amber or red, or whether or not a road was sealed or unsealed, to name but a few. To my mind, in the context of this case, the nature of the respective factual observations, and the dynamic context in which they were being made, provides a compelling reason for not preferring Mr Paradice's factual descriptions to those of Mr Harrold.

102 Mr Paradice gave necessarily imprecise evidence on a number of matters that indicated his observations were not as acute or as sequential as those made by Mr Harrold at the time the aircraft was in flight. Examples of such matters are Mr Paradice's evidence that he described the aircraft as flying in fog and misty conditions, terms that seem to have been used interchangeably with cloud, where these descriptions implied a lack of precision by differentiation. He also did not seem to appreciate that the terrain over which Mr Harrold was flying was rising to the right during the final stages of the flight before the wire strike, and instead focussed on the flying distance from the edge of the escarpment or cliffs, using a football field as a comparator for estimating distance. His evidence must be read in view of the fact that he was not making or processing co-ordinated observations as the pilot would have done at the time. In that regard, for example, he acknowledged that he had not been observing the altimeter during the flight.

103 Having considered these matters, I am persuaded that the factual account provided by Mr Harrold is more probably than not correct, and should be accepted as the preferred account. There was nothing within Mr Harrold's factual evidence that could reasonably be said to have been unlikely or improbable, either when viewed alone, or in conjunction with the expert evidence.

104 That said, the judgments and actions taken by Mr Harrold on the day in question, must still be evaluated in the light of the reasoned expert opinions given in evidence in these proceedings concerning the standard of care expected of a pilot in the circumstances in which Mr Harrold found himself, and whether there were relevant departures from those expected standards.

105 I now turn to set out my findings concerning relevant matters of fact before turning to consider the expert evidence.

Findings on facts in issue

106 The flight from Rosehill to Scone, or Wingen, was uneventful. I am satisfied that before the aircraft departed from Wingen on the return flight, Mr Harrold provided Mr Paradice with the required safety briefing. I am also satisfied that as the aircraft proceeded to fly along the designated track towards Sydney, Mr Harrold saw an area of cloud ahead that was broken in places, but as he continued on that flight, the cloud became more dense. He recognised that he should avoid flying over that dense cloud, in accordance with the well-known VFR safety requirements to which his licence was subject.

107 Mr Harrold made the observation that cloud was developing just south of the landmark of Mt Wambo and was extending to mountainous country to the south. He recognised that if he continued flying on that course this would be problematic and contraindicated.

108 I am also satisfied that because of the presence of such cloud, Mr Harrold correctly identified the need to find a clear area around the cloud in order to make a descent to a cruising level below that cloud formation so as to maintain visual observation of the ground. I accept that he found an opportunity to make that descent near the township of Broke, where he made the descent and then turned the helicopter to the left to track generally east towards Cessnock to avoid that bank of low lying cloud and to seek out an alternative route that was not impeded by cloud or weather. The choice of Cessnock meant that if need be, he would have the opportunity to refuel, a matter he had to consider now that a change was required to his original flight plan to avoid flying through cloud.

109 I accept that before making that decision, Mr Harrold consulted his VNC map, which gave no indication of wires or obstructions, or indicated an unclear flight path to the south of the Dochra area through to Cessnock, where landing and refuelling would be possible if required.

110 I accept that at that time, Mr Harrold was flying the helicopter at about 90 knots, and was aware of the presence of some wind and cloud movement, and was not able to accurately discern the speed at which that cloud was moving, except to recognise that the cloud, described as deteriorating weather, was closing in from behind him, moving from his left towards his right, or approximately from the west to the east, as he flew away from it in order to avoid such cloud.

111 In this regard, I prefer Mr Harrold's evidence as to the cloud movement from the east compared to the evidence of Mr Paradice who did not accept that proposition. I consider Mr Harrold's assessment of the weather was more likely to be correct, as he was a trained observer of such matters.

112 I also accept that in response to this deteriorating weather, Mr Harrold was aware of the need to maintain the safety of the aircraft and his passengers. He was at that time concerned to look for a way of avoiding flying through cloud, and at the same time, maintain adherence to the VFR requirements.

113 I accept that at that time Mr Harrold had a sound appreciation of what was required of him, and as to the nature of the practical alternatives that were available to him when making his aviation and navigational decisions, which took into account considerations of weather, topography and available fuel.

114 With cloud closing in behind him, Mr Harrold tried to make telephone contact with an informed source of weather information in Newcastle, with the expectation of obtaining updated information on current weather conditions from the perspective of maintaining a safe flight. That was a prudent course to supplement his own observations at that time.

115 I accept that in those moments, Mr Harrold correctly considered that it was unsafe to seek a landing place in the vicinity of Broke because of apprehended risks associated with possible local mining activity, which included the possibility of explosions that were potentially deleterious to the safety of landing a helicopter. A detonation of that kind, without warning, would have been dangerous and would have posed significant risks to a landing helicopter and to its passengers.

116 I accept that absent the opportunity for a landing on flat ground near Broke on account of those reasons, the only other reasonable options open to Mr Harrold were for him to either turn around and seek a landing at or near Scone or its environs, and to wait until the weather passed, or to seek out another route that did not involve flying through clouds, in an attempt to get to the other side of the mountain where the cloud would not pose a danger, or alternatively to find a safe place to land. He chose to proceed towards Cessnock, in part due to concerns over his available fuel.

117 I accept that whilst Mr Harrold was considering these matters, at the same time, he was also considering the need to avoid intentionally flying into the nearby restricted military area.

118 Mr Harrold considered that the option of turning back to Scone or thereabouts was not an acceptable option on account of cloud presence and his available fuel, given the need for a change of flight plan. That was a decision that was reasonably open to him at the time in the proper exercise of his judgment. That decision was the focus of criticism by the plaintiff and some of the experts, a matter to which I shall return in making my findings on the ultimate issues.

119 In the course of these events, on a number of occasions, Mr Harrold intermittently took the opportunity to look at, and to check, his VNC map to appraise his other safe options. At that time those options were rather limited due to evolving problems with the weather, namely, the cloud that was moving in from behind.

120 In those evolving events, Mr Harrold knew that he was flying into a valley, the southern border of which was the restricted military area that comprised the Singleton Army Base. At this time he was in effect in something of an emergency situation as he could not safely turn back because of the low cloud that had closed in behind him, and he therefore had very few options available to him. These will shortly be examined in connection with the question of whether he had breached his duty of care in those circumstances.

121 I find that the circumstances in which Mr Harrold then found himself in were not normal flying conditions, and he needed to fly away from the weather, or the clouds, that were still closing in from behind. These events necessarily limited Mr Harrold's options, including for turning back.

122 Of the options that were then available to him, he chose to fly east and track along the northern side of the Great Dividing Range, in an attempt to avoid the problematic cloudbank referred to earlier. In order to do so, at some stage he had to pass over the Great Dividing Range. He took that course knowing that he would have to fly near the southern border of the restricted military area. This was because the ridge or spur of Mt Broken Back was ahead as marked on his VNC map, and the terrain to his right was rising towards the cloud cover.

123 He intended to skirt the southern edge of the restricted military area in taking that course. That decision was driven by the behaviour of the clouds. He consulted the VNC map for reassurance, gauging what he saw on that map in correlation with the landform features before him, as would have been expected of a pilot navigating in those circumstances. He interpreted this data as providing a safe and clear flight path towards Cessnock.

124 Acting on that intention, he continued to fly east and crossed the mountain range, taking a course that meant the range was to his right, to the south, and that the Army base was to his left, to the north. That course took him close to the escarpment of the mountain range on his right. He recognised this, as is evident from his conversation with Mr Paradice, as recorded at paragraph [160] of his evidentiary statement.

125 In the course of that flight, part of the mountain range to the east had started to protrude into the low-lying cloud as the terrain rose ahead of him as he aimed for Cessnock. He had taken a course that had cleared the range and he considered that he had cleared the Army Base as well. Although there was low cloud cover in the immediate area that had spread to his right and to the south, he saw clearer sky to the east.

126 As he was heading east in those events, his altitude was approximately 1850' above sea level, but as the terrain to his right was rising with the hills. He was therefore much closer to the ground than 1850' as he continued to proceed east with the low cloud above him.

127 In the course of those events, he encountered the overhead powerline that was immediately in front of him. The powerline was unmarked, and in that moment he had no opportunity to avoid striking it. When he struck the wire, the aircraft was approximately 500' from the rising ground level. At that time he was rounding the southern end of the Dochra area, heading for Cessnock, and flying with approximately 500' clearance above ground level. In flying over rising terrain, that 500' clearance obviously varied from time to time.

128 The following extracted image from Exhibit "E", an annotated topographical contour map, shows the red line of the course of the powerlines, the yellow borders of the restricted military area, and the topographical contour lines showing the escarpment next to which Mr Harrold flew the helicopter:

129 The wire strike occurred because the tower on Mt Broken Back that had positioned and guided the wire across the valley was within the low lying cloud, and the wire that was slung across the valley had no warning markings attached to it, that would otherwise have attracted his attention. He was very much in a similar position to that of Mr Dunscombe, when he struck a wire in that location in 1994.

130 I accept that the events that followed are accurately set out in Mr Harrold's evidentiary statement, between paragraphs [164] to [174]. I accept that during this time, the overhead wire at Trig point 1942 was not visible to Mr Harrold until the moment before the wire strike. During these events, Mr Harrold said, and I accept, that he had never lost sight of the ground, and had not flown through cloud.

131 It is to Mr Harrold's credit and skill as a pilot, that he was able to maintain control of the aircraft after the wire strike and fly it to a powered and otherwise safe landing on a disused quarry site within the restricted military area. If it were not for the presence of that unmarked and uncharted powerline, Mr Harrold would have cleared the area without incident.

132 The plaintiff relied upon certified extracts of the Meteorological records kept by the Commonwealth of Australia: s 155 of the Evidence Act 1995: Exhibit "D", pages 33 - 49. The factual content of that material was not disputed. The purpose of adducing that evidence was to identify recorded weather observations in the Cessnock, Singleton, Maitland and Patterson areas at 9am on 29 January 2009.

133 The plaintiff relied upon a recording of 8 OKTAS of cloud cover, which is a 100 per cent overcast condition at Singleton at 9am on that day. Other variations observed in the locality at that time were 7 OKTAS at Cessnock, 6 OKTAS at Maitland, and 1 OKTA at Patterson, near Pokolbin. The plaintiff also argued that the wind readings at 9am at Patterson were 9kph gusting to 13kph at 30 or to the north-east, and no wind at 8am. The evidence was that the distances of these locations were within kilometres of each other that represented relatively short flying times: Exhibit "D", page 38.

134 A difficulty in applying those observations to the other evidence in this case is that they all post-timed the wire strike by about 15 minutes and there were no calibrated readings for part hours before 9am. Furthermore, they were necessarily ground observations, not observations made from the air. Accordingly, without further evidence, I do not see this data as being a probative means by which to contradict Mr Harrold's account of the in-flight observations of the weather conditions he encountered.

135 The plaintiff also referred to certified extracts of weather forecasts for Area 20, which covered the flight for 29 January 2009: Exhibit "D", pages 43 - 44. It was argued that these forecasts would have alerted a pilot to possible aviation hazards due to weather. Whilst that may well be so, the issue is not whether Mr Harrold had recognised that the weather conditions posed potential hazards for flying. Rather, the plaintiff's complaints concern Mr Harrold's responses to such hazards, which is an entirely different matter. Mr Harrold recognised the hazards, at Broke, and that is plainly why he changed the course of his flight at that point and proceeded to fly towards Cessnock.

136 Before considering the questions of breach of duty of care and whether there was negligence, I turn to an evaluation of the testimony of the respective expert witnesses, and to the various criticisms and supporting comments concerning the in-flight actions of Mr Harrold on the day in question.

Ultimate focus of expert evidence

137 As a preface to the evaluation of the evidence given by the expert aviators, it must be observed that flying a helicopter involves considerable skill. It also involves many known risks, for example, the pilot not seeing an obstruction such as an unmarked suspended powerline until it is too late to avoid colliding with it. This is clear from the unchallenged evidence of Mr Dunscombe.

138 The duty of a pilot under civil law, in the circumstances in which Mr Harrold found himself, is not akin to that of an insurer of an aircraft he is flying. The strict duties and sanctions on a pilot that arise under the CA Act and related regulations, are not absolute in the sense that discretionary departures from some identified standards are permitted in unavoidable circumstances, including what is known in the industry as conditions involving stress of weather. These are matters that ultimately involve the determination of questions of fact.

139 Pilots have to make aviation and navigation decisions that involve potential risk and threats to safety in at times quickly evolving circumstances, including changing weather conditions. The duties involved are onerous. The decisions made in accordance with those duties can have catastrophic results if things go wrong.

140 Judgments expressed by experts when giving their opinions about such matters must be evaluated carefully to ensure that they have not been dictated by, or contaminated with, considerations that only arise on an inappropriate hindsight analysis concerning whether or not there have been relevant departures from the expected standard of care in the circumstances.

141 A pilot in the position of Mr Harrold is required to make reasonable aviation and navigational decisions, commensurate with the prevailing circumstances, in accordance with learned theory, applicable regulations, and practical training.

142 The expectation is not that pilots must necessarily always make the correct decision. However, pilots are expected to exercise reasonable skill, care and judgment in all the circumstances to avoid making wrong decisions. The process is a dynamic one.

143 Where the actions of the pilot are subjected to scrutiny by experts, and where, as is the case here, the pilot has provided cogent reasons for the decisions under critical scrutiny, those reasons must be given due weight and not discounted lightly.

144 It is in that context, that after the event analysis by experts must be viewed.

145 In this case, the experts provided a statement of criticism in answer to the essential question stated at paragraph [8] above, concerning whether there was evidence of a departure from the standard of care expected of a helicopter pilot in the circumstances. That joint statement contained the following 5 elements:

"- Appreciation of position in respect of the restricted area was not to that expected of a pilot of ordinary skill and competence.

- The navigation techniques used were not that expected of ordinary skill and competence. This has resulted in entry into R532.

- Under the favourable weather conditions in evidence, the pilot's actions were appropriate until the point of choosing to low fly somewhere prior to the wire-strike. This ignores the aspect of entry into R532.

- Under the unfavourable weather conditions in evidence, the pilot's actions were appropriate until the bottom of the descent. The ground level cloud/fog/mist in evidence, and the visibility reported are indicative of conditions below that which were suitable for the safe conduct of flight.

- There are other aspects beyond the points in time discussed above, where appropriateness of actions are subject to some disagreement."

146 When those 5 elements are considered, in reality, they essentially criticise two actions by Mr Harrold, first, the fact that he flew into the restricted area at all, and secondly, that he flew into that area in circumstances where the prevailing conditions were considered to be unsuitable for safe flying.

147 In expressing their views in connection with these two actions, a key question emerged as to the analytical process applied by the experts. The question was to this effect: How in the first place did Mr Harrold find himself in the situation of being in the restricted area immediately before the wire strike?

148 The two identified actions provide the convenient reference point for the required analysis, in conjunction with the factual circumstances that evolved at the time, and with which Mr Harrold had to contend.

149 I now turn to consider the issue of whether, in the circumstances, Mr Harrold's actions in the described events justify the claim that he had breached his duty of care, and that if so, whether, according to the requirements of s 5B of the CL Act, this requires a finding that he had been negligent.

Findings on alleged breach of duty of care and negligence

150 Before analysing the evidence concerning the issue of negligence it is necessary to first consider the plaintiff's claim framed in contract.

Claim of breach of contract

151 The plaintiff claims that the defendant was in breach of the implied terms of the contract between them as set out at paragraph [11] above, and consequently invoked implied terms requiring the exercise of due skill and care in flight, including safe operation of the aircraft so as to avoid colliding with powerlines, and compliance with the relevant provisions of Civil Aviation Legislation.

152 When those implied terms are examined in the context of the claim for damages for breach of contract, which is also governed by the CL Act, in my view, with the exception concerning the onus of proof in the case of a bailment, in reality and in practical terms, there is no difference to the claim framed in alleged breach of duty of care arising from contract or from negligence: Booksan Pty Ltd & Ors v Wehbe [2006] NSWCA 3; (2006) Australian Torts Reports 81-830, per Ipp JA at [167]. I therefore propose to evaluate the claim for breach of implied terms of the contract as part of the evaluation of the claim framed in negligence.

153 In the case of a bailment, which applies to the present claim, the onus falls onto the defendant as bailee of the helicopter, to establish that the damage in question did not arise from negligence on the part of the defendant.

154 Given the manner in which the case was conducted, where Mr Harrold gave evidence of the factual events that occurred whilst he was the pilot in command of the aircraft, and given that the expert witnesses gave their opinions concerning whether or not the aircraft had been flown negligently, it seems that the fabric and structure of the evidence would have been the same on both formulations of the claim, whether framed in bailment or negligence.

155 Accordingly, from a practical perspective, the evidence can be viewed as a whole as it stands, in order to determine whether the defendant has discharged its onus of showing that the damage in question has not arisen due to negligence on its part.

156 The relevant overall enquiry is therefore, having regard to the requirements of s 5B of the CL Act, and the necessary elements needed for establishing that there had been negligence, whether the defendant is able to point to evidence which demonstrates there was no negligence on its part, in the events leading to the helicopter becoming damaged as a result of the wire strike.

157 At the outset of this part of the analysis, it is necessary to deal with the particular submission made by the plaintiff to the effect that because of the claim of bailment, taken together with the fact that there was an implied term not to fly the aircraft into a powerline, the act of flying the aircraft into the powerline was a deviation from the course normally taken on the flight that was agreed between the parties, drawing upon an analogy arising from the decision in Hughes and Bremerman v Rooke (1954) St. R. Qld 45.

158 That argument proceeded upon the premise that the regulatory regime within the Civil Aviation Regulations is an all-encompassing one that has been held to cover the field of safety of flight of civilian aircraft in Australia: Heli-Aust Pty Limited v Cahill [2011] FAFC 62; (2011) 194 FCR 502.

159 Whilst the latter proposition is undoubtedly correct, and whilst the point also arose in that case in connection with a helicopter crashing into powerlines, but causing death and injury in that instance, the distinguishing point at issue in that case involved a prosecution for claimed breaches of the Occupational Health and Safety Act 2000 (NSW). There, the defendant helicopter proprietor successfully argued that the Civil Aviation Act 1988 (Cth) and the related regulations, covered the legislative field, which resulted in a declaration rendering the inconsistent state law invalid: s 109 of the Commonwealth of Australia Constitution Act.

160 Those circumstances are very different to the plaintiff's present civil claim for damages. In proceedings seeking to impose criminal sanctions for breaches of the absolute statutory duties arising under the CA Act and related instruments, those statutory provisions would determine strict liability for the imposition of such sanctions. I note in passing that the Commonwealth did not seek to impose any such sanctions upon the defendant or its pilots arising from the facts with which this present case is concerned.

161 However, in a civil claim based on non-compliance with such statutory provisions, without more, any such non-compliance with statutory regulatory provisions does not constitute absolute or strict proof of negligence, nor does it establish an entitlement to damages so as to confer a private right of action upon an aggrieved party: Bowling v Weinert [1978] 2 NSWLR 282, at pp 285E - 286B.

162 Accordingly, in this case, any questions concerning alleged breaches of applicable aviation laws stand to be assessed in terms of whether or not negligence was involved in such breaches, and in the context of the bailment, the onus is on the defendant to show there was no negligence.

Framework for proof of negligence - Civil Liability Act 2002, s 5B

163 The statutory framework for determining whether the defendant, or Mr Harrold, as the pilot in command of the aircraft, was negligent, necessitates that the requirements of s 5B of the CL Act be satisfied.

164 In this case, there is no difficulty in assuming that the risk of harm caused by a helicopter flying into overhead powerlines, wherever located, was a relevantly foreseeable risk that was not insignificant, such that a reasonable person in the position of Mr Harrold would have taken precautions against incurring harm from such a risk: s 5B(1) of the CL Act. The defendant did not seek to argue otherwise.

165 The requirements of s 5B(2) of the CL Act, when transposed onto the facts of this case, in reality amount to no more than a requirement that Mr Harrold take precautions amounting to reasonable care in the circumstances, especially where the risk of serious harm occurring was ever present whilst the helicopter was in the dynamic process of being flown. There were no relevant excusatory releases from the legal burdens of taking such care under civil law because the risk of a collision of some kind was an ever-present one, as was the risk of the occurrence of serious harm, if reasonable precautions were not taken to avoid collisions, including a collision involving a wire strike.

Principles concerning claim of negligence

166 Before analysing the claim in negligence, irrespective of which party carries the onus of proof, it is appropriate to identify the applicable principles that govern the consideration of such a claim. For the purpose of analysis, it is convenient to identify the relevant principles as if the conventional rule applied, where a claimant carried the onus of proof for a finding of negligence, even though in this case, for the defendant to succeed, the defendant must negative damage due to negligence.

167 The plaintiff relies upon the arguments identified in the expert evidence in seeking to establish that Mr Harrold had acted in breach of his duty of care, and was therefore causally negligent. In the analysis of those arguments, criticisms that are only revealed through a hindsight analysis rather than a prospective analysis, should not be considered as being determinative.

168 The relevant after the event enquiry is to seek to determine whether or not a relevant breach has occurred by reference to the response expected of a reasonable person looking forward at the risk of injury, applying a commonsense analysis. This also extends to the evaluation arguments based upon the opinions of experts in order to determine which parts of those opinions should be accepted: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [124] to [126]; Roads and Traffic Authority of NSW v Dederer [2007] HCA 42 at [65]. These statements of principle are beyond controversy.

Consideration of the negligence issue

169 The plaintiff has submitted that proof of the breach question is established by the fact that Mr Harrold flew in the restricted military area. In contrast, the defendant has submitted that the actions of Mr Harrold should be judged against what a reasonable man would have done in the circumstances in response to foresight of the risk of striking the wire, and in that regard, it was submitted that Mr Harold had discharged that obligation notwithstanding the occurrence of the wire strike.

170 The experts were in agreement that until the point of descent of the aircraft near Broke, where dense cloud was encountered, no criticisms of Mr Harrold's flying or navigation of the helicopter reasonably arose. It was obviously appropriate for Mr Harrold to adhere to VFR cautions, and not enter cloud so as to obscure his view of the ground.

171 The experts variously stated that to enter such cloud would have been significantly or extremely dangerous. Without disagreement from the other experts, Mr Townsend identified research revealing the statistical prospect of someone flying through cloud in such circumstances and hitting the ground as involving about 37 seconds: T306.45.

172 Mr Harrold clearly foresaw the risk and contraindication of flying through cloud, and appropriately changed his flight plan near Broke in order to avoid cloud.

173 In my view, Mr Harrold's decision at that point to turn left after the descent near Broke, and to then track east towards Cessnock, should not be lightly second guessed by experts, especially where he was the one who had the responsibility for making the required judgments on safety.

174 In contrast to the area of cloud Mr Harrold was concerned about, he saw a brighter area of navigable sky to the east: T182.5. When he tracked the aircraft to the east, at all times he had 800m of clear visibility ahead: T178.41. He was in sky that had occasional cloud and mist at his level of flight beneath the cloud base, but he could generally see ahead for 800m T189.4 - T189.26. This was VFR compliant flying.

175 There was criticism of Mr Harrold from within the expert evidence to the effect that at that point, because he was at risk of flying over restricted military airspace if he continued on that course, he should have sought to land as soon as practicable to avoid this, and in order to allow the weather to pass, or turn back, or consider asking the military authorities in command of that restricted airspace for a clearance to fly over if not land in the restricted area.

176 In my view, for the reasons that follow, those criticisms go well beyond the response of what would be expected of a reasonable person faced with the dilemma with which Mr Harrold was confronted at that time. In my view, those criticisms involve a counsel of perfection and rely for their support, on an inappropriate hindsight analysis which paid insufficient regard to the reasonable prospective judgments Mr Harrold was required to make at the time he was confronted with the problematic circumstances.

177 That much was conceded by one of the experts called by the plaintiff, in agreeing that Mr Harrold's decision to track east to where, in Mr Harrold's perception at that time, the sky was brighter, was a reasonable judgment call for him to make, if that was his only reasonable choice, where, if turning back or turning right (and away from a track that led to the restricted area) were not available options: Mr Nest, T 323.11.

178 In my view, turning left or east near Broke, and away from the dense cloud to track to the east was Mr Harrold's only reasonable choice in the circumstances. As Mr Harrold surveyed his situation, he was aware that the weather, namely cloud, was closing in behind him. In my view, this made the option of a forward tracking flight further to the east a reasonable one for him to adopt.

179 In those circumstances, the alternative of looking for a landing area near Broke was understandably contra-indicated where this entailed the known and foreseeable prospect of landing in an area that was prone to unpredictable explosions at ground level, without warning, in association with mining activity in that locality. In this regard, I accept as entirely reasonable, the opinion of Mr Townsend, which supported Mr Harrold's decision not to land in the vicinity of Broke rather than track further east.

180 Mr Harrold made a judgment that the option of making a return flight to Scone or its environs was not appropriate at that time, having regard to uncertain weather and fuel issues. In my view, on the evidence, that was a reasonable judgment call available for him to make at the time, where there was dense cloud cover, and it was not readily apparent to him, without beforehand regaining altitude above that cloud cover, that he would be able to retrace his course towards Scone without detour, and without compromising his fuel reserves for a safe flight.

181 In my view, the expert opinions to the effect that at that time, Mr Harrold should have sought to turn back towards Scone are based on perspectives as to the prevailing circumstances that were very different to the pressures under which Mr Harrold was operating at the time. In my view, the criticisms that emerge from those perspectives have only become available through the more leisurely considerations revealed through the opportunity of hindsight analysis, rather than through a prospective analysis of the kind that confronted Mr Harrold at the time.

182 This is so where expert evidence conceded that Mr Harrold was in a better position than the experts for the purpose of making judgments concerning the significance of weather observations, including the perceptions of depth, and including the perception that the weather was closing in, as Mr Harrold described: T309.1 - T310.26.

183 As Mr Davies acknowledged, and which I accept, at T281.39, with the weather moving in from behind from west to east, a series of doors were in effect being closed to Mr Harrold, which removed the option for him to turn back to avoid those adverse conditions.

184 In this regard, I consider that the trained observations of the pilot in command, Mr Harrold, should be afforded greater weight than the lay observations of Mr Paradice, and the non-dynamic perspectives of the experts engaged in the after-the-event analysis. In my view, that consideration takes on greater weight and importance in the analysis when regard is had to paragraph [70] of the statement of Mr Hodge, to the effect that he would have made the same decisions as Mr Harrold on account of the weather.

185 Whilst it is true that as Mr Harrold continued to fly closer to the point of the wire strike, he must have considered that there was a good chance he was inside the restricted military area, nevertheless he was in that position for a good reason, in that he was seeking to avoid flying through cloud, which was also contraindicated: T165.22. This much is evident from his close proximity to the mountain range, or Mt Broken Back, which he could see, both visually, and on the VNC map he had consulted. In taking that course, he avoided flying to the north, making it more likely that he would be flying in restricted airspace: T166.25. I find that he did so not to court risk or fate, but in order to adopt the safest option in the circumstances.

186 Mr Harrold had earlier considered other options, such as tracking south in order to fly between the cloud and the mountain range and which would have necessarily taken him further into the restricted area. He rejected these options as being unsafe: T166.33; T166.50. In my view, under the pressure of the moment, that judgment is not reasonably open to the hindsight-based criticisms relied upon by the plaintiff in these proceedings.

187 Mr Harrold had to make a balanced judgment forced upon him by deteriorating cloud conditions where the cloud was moving in behind him from west to east at an uncertain speed, which he was not in a position to accurately gauge. He was obviously near the border of the restricted area. The obviously foreseeable danger of being in that position was the potential exposure of the aircraft to the risk of possible damage from exploding ordinance from the firing range within the Singleton Army Base. That said, it was less likely that such firing would take place on the margins of the border of that area compared to an area that was further within the restricted area and therefore away from the boundary.

188 Realistically, Mr Harrold's choices were to keep flying out of the valley below the cloud that had developed there, as he had attempted to do, or to hover and circle in an orbit until another option might have presented itself, such as a clearing of the cloud, or the availability of permission to overfly the restricted area or land in it after permission to do so had been sought and granted.

189 From a practical perspective, and taking a commonsense view of the situation, other than to keep flying out of the valley, the other options were not realistic at the time, given that cloud was closing in from behind.

190 The hovering and orbiting option was inherently problematic where cloud was moving in from behind. That course was risk-laden because to orbit the aircraft in that way would apparently have involved an air speed of under 40 knots, which would have made the helicopter noticeably more sensitive and difficult to fly on a small turning radius, and it would have required an orbit of a few hundred metres: T326.23 - T326.36.

191 In my view, this would have been problematic in an additional way because of the real prospect of visibility being compromised due to cloud closing in from behind. The further difficulty with orbiting in those circumstances was that orbiting in the restricted area for as long as it took to obtain clearance from the military hierarchy, could have needlessly exposed the aircraft to the possible risk of damage from live firing from within the firing range on the Army Base: T327.22 - T327.30.

192 The assumption Mr Tyler made to support a suggested orbiting course presumed a continuation of VMC or visibility remaining for at least 800m ahead. In my view, that assumption was untenable on the evidence of Mr Harrold, which I accept, concerning the cloud closing in from behind in a west to east direction, as this would have involved him periodically orbiting into the direction of the cloud mass closing in from behind. That option was therefore unsafe, and Mr Harrold rightly rejected it.

193 Mr Tyler and Mr Nest both conceded, obviously in hindsight, but whilst analysing prospectively, that when the pilot was required to make a judgment as to the safest course to take in the minute or so before the wire strike, a factor he had to weigh in the equation was the cloud conditions to the north, where that judgment was also dictated by the height of the cloud: T330.24 - T331.4.

194 In my view, these considerations justified Mr Harrold not orbiting the aircraft at that time, and the arguments suggesting the contrary are in my view, only enlivened by inappropriate hindsight considerations, which have no part to play in this liability analysis.

195 In my view, the other identified option of calling an emergency and seeking an urgent authorisation to overfly the restricted area, or to land there, was an unrealistic one in the circumstances that faced Mr Harrold at the time. His own experience was that obtaining permission in such circumstances could take something of the order of up to 20 minutes: T189.46. That view was supported by the preponderance of the expert evidence, which was that such a clearance could take anything from a few minutes to up to an hour to obtain: T324.43.

196 With the cloud closing in from behind, Mr Harrold did not have that luxury of time at his disposal in order to maintain an orbit in the face of cloud closing in from behind whilst waiting for an uncertain period of time for permission to either overfly or to land. In those circumstances, he had to choose the best and the safest course open to him at the time, as would have been expected of a reasonable person in his position, in that situation.

197 In that regard, at T189.28 - T189.38, Mr Harrold explained his reasons for not seeking authorisation to overfly the restricted area, as follows:

"Q. You didn't at any time seek a clearance to overfly a restricted area, did you?

A. No, I didn't.

Q. You didn't ever consider seeking a clearance, did you?

A. At the time I was concerned about moving on from that area as best I could and I was just looking at the best option to get myself out of an area that was deteriorating, as far as I was concerned. And that gave me the - you know, I tracked to the south to the range and I didn't consider asking for a clearance. It could have taken some time to get one. So, yeah, that's why I didn't consider it."

198 In rejecting the alternative choices that were propounded by the plaintiff in this litigation, Mr Harrold consulted his VNC map. When he did so, he saw a way clear to the east towards Cessnock, which he reasonably expected would extract the aircraft from the difficult weather conditions he had encountered.

199 The flight map that he consulted, which was the latest edition at the time, made no reference to the presence of aboveground obstacles for his chosen course in the form of overhead powerlines. The description of the terrain below was of heavy forest. Mr Harrold agreed that he had seen signs of a clearing or easement through the patchy clouds ahead to his left as he tracked east: T152.12. He was not alerted to the presence of the tower for that powerline because that tower was unfortunately concealed within the low-lying cloud cover on Mt Broken Back.

200 Mr Harrold was aiming to keep to the south whilst tracking east, and so the indication of an easement on the ground, as a navigational feature, was to the left of his intended course close to Mt Broken Back: T156.9; T173.29; T173.49. In those circumstances, the cloud concealed tower from which the powerline had been mounted or strung, served to mislead him as he plotted his course to get clear of the area.

201 In those circumstances, Mr Harrold's view of the easement to the north, or to his left, was obscured by mist or cloud in places. In those circumstances, he chose his best course, as follows, as he stated, at T174.24 - T175.3:

"Q. So what you saw, to the extent that it was below your altitude, what was to the north was mist?

A. Mist cloud, mist cloud, it was obscuring my unimpeded vision of the north, of the Dochra or restricted airspace.

Q. You had also a view of the road that's on the VNC map at that point didn't you?

A. No, I didn't see the road.

Q. Didn't see any road?

A. No.

Q. What is it that led you to fly as close as you did to the escarpment rather than say 500 metres to the north?

A. Because that would have meant I would have had to descended a bit further to the north and I was trying

Q. Why?

A. Well because it's a cloud over the top of, it descended down to the north. So I chose what I considered to be the safest route, which was maintaining my altitude and remaining clear of cloud.

Q. Very close to the escarpment?

A. No, I, on reflection, and I, in my first statement I had a distance of 50 metres and with subsequent time and discussion with my solicitor as well we ran a little test at the office and I was in their office and I looked at the buildings across the street and I was able to just confirm straightaway that I was a lot further than 50 metres out from the cliff and that's, that was just the, a way of trying to get my mind back into the situation as to what I saw at the time."

Flight in restricted airspace - CAR 140

202 In the plaintiff's criticisms of the actions of Mr Harrold in flying over restricted airspace, the plaintiff pointed to the strict liability provision of CAR 140, which requires that the pilot in command of an aircraft must not fly an aircraft over restricted airspace.

203 The plaintiff argued that as Mr Harrold knew that he was flying in the vicinity of the southern boundary of the restricted area, and the altitude marker of 1942' on Mt Broken Back was clearly marked in bold lettering on the VNC map that Mr Harrold had consulted in flight, and because he was using the mountain range as a navigational aide, he knew it was inevitable that he would be flying in that restricted area, in contravention of CAR 140.

204 The provisions of CAR 140, and for that matter CAR 157, must be read in conjunction with s 30 of the CA Act, which provides that in proceedings for an offence under the CA Act or Regulations, a defence is allowed for if, on the balance of probabilities, it is established that the offence (here relevantly, the incursion into restricted airspace) was due to extreme weather conditions, or other unavoidable cause.

205 Clearly, that provision allows for the possibility that in some circumstances, such incursions may be unavoidable, and should be excused.

206 In my view, the cloud conditions that were closing in from behind which forced Mr Harrold to fly in that area were the kind of weather conditions contemplated by s 30 of the CA Act, and constituted an "other unavoidable cause" that excused the incursion, especially bearing in mind that this case is not concerned with any prosecution for any alleged offence under the legislation. This amounted to what is known as "stress weather".

207 The term "stress of weather" connoted an emergency: Ruhani v Director of Police (No 2) [2005] HCA 43; (2005) 222 CLR 580 at [34]. As conceded by the plaintiff, for pilots, the term "stress of weather" amounts to an unavoidable cause.

208 In a broadly analogous maritime context, in a Canadian case, the term has been construed to mean "a bona fide apprehension" of "jeopardy" arising "in the mind of a reasonably competent and skilful master possessing courage and firmness": The Ship "May" v R (1931) SCR 374, at 382.

209 In my view, Mr Harrold found himself in conditions that are justifiably described as stress of weather and unavoidable circumstances, as contemplated by the above construction.

210 In my view, the defendant has demonstrated that the incursion of the aircraft into restricted airspace in apparent contravention of CAR 140 occurred due to exigencies beyond his control at the time and which he was unable to reasonably avoid. In those circumstances, that incursion and regulatory contravention does not confer a private right of action in negligence and, on my analysis of the circumstances, that particular of negligence does not survive to sustain the plaintiff's claim of either breach of contract or negligence.

211 In my view, the arguments relied upon by the plaintiff to the contrary of that view overstate the position in claiming that Mr Harrold could have landed near Broke, or turned back to land near Broke, or obtained permission to fly over the restricted area. Mr Harrold's decision not to land at or near Broke and his stated inability to turn back were all arrived at rationally and the course he took was justified. In my view, on the balance of probabilities, Mr Harrold has discharged the onus of showing that the stress of weather, or cloud conditions made his entry into the restricted area unavoidable.

Low-flying and point of impact - CAR 157

212 The plaintiff also pointed to CAR 157 which relevantly requires that in the area in question in this case, it is an offence for a pilot in command of an aircraft to fly that aircraft at a height lower than 500', and in the case of a helicopter, in a radius of 300m from the highest point of the terrain immediately below the aircraft, subject to the defence of stress of weather or other unavoidable cause, in which case a different position can be maintained.

213 The plaintiff argued that this provision, when considered in conjunction with the estimates of the flying distance of 50m from the cliff face or escarpment of Mt Broken Back shortly before the wire strike, as described by both Mr Harrold in his initial account and by Mr Paradice, indicated that according to the calculations emerging from the survey evidence, Mr Harrold was flying substantially below 500' and in contravention of CAR 157.

214 I have considered this low flying point in light of the evidence as a whole, and I have come to the view that the evidence does not reasonably permit such finely honed arguments in the circumstances in which Mr Harrold found himself. Both Mr Paradice and Mr Harrold were only ever in a position to estimate and not measure the distance to the escarpment. In his oral evidence Mr Harrold confirmed that on reflection, his initial estimate might well be incorrect, and that he was much further from the cliff than 50m: T175.1 - T175.6. In my view, there are some difficulties in relying upon the survey evidence alone.

215 First, any measurements of the wire would be in the restrung state after the wire strike under present considerations. In the absence of evidence as to whether the clearance height of the newly strung wire was identical to the one that was struck by the helicopter flown by Mr Harrold, it is not clear as to whether the argued calculations should be relied upon.

216 Secondly, and in conjunction with the first point, there is the evidence of the damage to the wire, which the defendant suggests involves a different point of impact to the one asserted on behalf of the plaintiff, at a greater radius than 50m from the escarpment than was thought to be the case by both Mr Harrold initially, and by Mr Paradice, and therefore at a different height from the terrain below as contended for by the plaintiff.

217 I conclude from that evidence, that it is not possible to find precisely where on the wire the strike actually occurred, as there could be a number of reasons why the wire snapped where it did. This was due to the operation of forces that, on the state of the evidence, are not possible to analyse or resolve with that degree of precision.

218 However, I conclude, based on the considerations I have identified, that at whatever height of the wire, and at whichever distance from the escarpment, the fact remains that the presence of the helicopter in that region was due to the stress of weather and unavoidable circumstances, as earlier identified.

219 I therefore conclude that although Mr Harrold's estimate of flying at a height of about 500' may not have been an entirely accurate observation at the time the aircraft struck the wire, he had no real choice but to proceed as he did in view of the weather or cloud conditions that prevailed at the time, as envisaged and excused by s 30 of the CA Act and CAR 157(4) which operates to excuse strict compliance with the 500' height of flight requirement on account of stress of weather or (reasonable) unavoidable cause.

220 In my view, in the circumstances of the present case, these regulations do not assist the plaintiff's case on argued breach of contract or negligence. Similarly, they do not serve to thwart the defendant's case that the damage in question occurred without negligence on the part of the defendant, or Mr Harrold.

Speed of flight

221 Another argument raised by the plaintiff to support negligence by the defendant, was the speed at which the helicopter was being flown, namely at 90-95 knots, which was an increase from the earlier speed of between 60 and 80 knots. In my view, in the circumstances, the selection of that speed did not amount to a departure from the expected standard of care.

222 The plaintiff's speed of flight argument was linked to the juxtaposition of the helicopter to the escarpment, however, the helicopter was being flown clear of the escarpment. Mr Harrold was obviously concerned about cloud closing in behind him from west to east, he was obviously aware of his presence at the southern boundary of the restricted area, and was in the course of seeking to fly the aircraft away from the dangers that were foreseeable within that area.

223 At that time, Mr Harrold was in a situation where, as the cross-examiner conceded in his question, he was "processing" his navigational decisions: T152.23. In those circumstances, I consider the speed he selected was reasonable for the cloud situation he was trying to fly away from, and the criticisms to the contrary, seem to me to be based on considerations of hindsight, especially where Mr Harrold had no notice of the presence of the wire after viewing his VNC map.

General allegations relied upon by plaintiff

224 In my view, the allegation made by the plaintiff to the effect that Mr Harrold failed to keep a proper lookout and failed to observe the powerlines does not withstand scrutiny either. The powerline in question was unmarked, and there was no indication of its presence on the VNC map available to Mr Harrold in connection with the flight path he had chosen as his safest option. Given the cloud and mist to the north or to his left as he flew near the escarpment on his right, there was nothing that gave Mr Harrold an early indication of its presence. When Mr Dunscombe flew into a powerline at that point, some 15 years earlier, he had little time in which to see it as he came upon it.

225 The allegation that Mr Harrold had failed to obtain the appropriate guidance maps or materials to assist him during the flight does not survive scrutiny either, because the unchallenged evidence is to the contrary. The VNC map that Mr Harrold had available to him was current as at the time of his flight. There was no evidence that any further or more informative charts were available at that time but were not obtained.

Addressing the question posed by the experts

226 In commencing the critical analysis from the descent of the aircraft near Broke, the experts posed the critical question was to why Mr Harrold found himself in the location of the wire strike and within the restricted airspace.

227 In my view, an acceptable answer to that question is found in Mr Harrold's factual evidence to the effect that there was cloud that was closing in behind him which compelled him to track the aircraft to the east towards the restricted airspace, an area which he would not have otherwise chosen to fly over. At paragraph [147] of his statement, Mr Harrold provided a satisfactory explanation for his chosen course out of the three options that he believed he had in those circumstances.

228 The first option was to attempt to fly over the cloud. That option was not viable because it would have placed him in breach of the VFR conditions of his licence that required him to maintain sight of the ground. He therefore rightly rejected that option.

229 The second option was to attempt to fly underneath the cloud and at the same time try and clear the Great Dividing Range. He rightly rejected that option because he was concerned that course might result in the aircraft being squeezed between the ridge of that mountain range and the low bank of cloud without leaving him room to manoeuvre, and thereby inadvertently entering the cloud above. He also held a reasonable concern that such a course might still result in him being unable to clear the mountain range, which could have given rise to other concerns over fuel adequacy, if he found that exigencies arose that required that he turn back, assuming he could have, and in circumstances where there were no available refuelling stations along that course.

230 After due consideration, Mr Harrold took his third option, and flew to clearer sky in the east in an attempt to avoid the cloudbank and at the same time, pass over the Great Dividing Range. The weather turned out to be against him with cloud closing in from behind, and from the west. I find that, after the event, he has been unjustifiably criticised by the plaintiff for taking that option.

Conclusion on the negligence issue

231 In my view, for the reasons I have set out, the criticisms directed at Mr Harrold's decisions and actions have not been made good on a prospective analysis. Instead, I consider that Mr Harrold has provided a satisfactory explanation for the presence of the aircraft in the restricted area, and for the occurrence of the wire strike. For the reasons I have outlined, I conclude that the defendant has adduced satisfactory evidence and explanations to show that the wire strike was not due to negligence on its part. I am therefore not persuaded that in the circumstances of the wire strike, the defendant was in breach of a relevant duty however arising, or was negligent according to the requirements that need to be established under s 5B of the CL Act.

Claimed defence under s 5O of the Civil Liability Act 2002

232 For completeness, I should refer to an argument mounted on behalf of the defendant to the effect that as a professional pilot, Mr Harrold had acted in accordance with peer professional opinion widely held in Australia, which according to s 5O of the CL Act, precluded his conduct of the flight from being characterised as having been negligent.

233 As I have found that there was no negligence on the part of the defendant, the s 5O point does not relevantly arise for decision. However, if I had been required to decide the point, there is doubt that such a defence could reasonably have been upheld in the circumstances, having regard to the matters referred to in the parliamentary reading speeches associated with the enactment of s 5O in respect of the liability of professional persons.

234 It is true that in some instances there are no bright boundary lines of separation between the practise of a profession and the pursuit of a trade or calling, especially where the word professional connotes the attainment of an intellectual or manual skill, as well as knowledge and competence in the application of that knowledge: Batterham v Makeig [2010] NSWCA 86 at [104].

235 That said, there are other considerations that delineate the status of a professional person. Amongst them in this case is the question of whether the defendant, a corporate entity, was a person practising a profession within the meaning of s 5O. The consideration of what constitutes a profession, as discussed in Perpetual Trustees Australia Limited v Paladin Wholesale Funding Pty Ltd [2011] FCR 473; (2011) 83 ACSR 140, and Prestia v Aknar (1996) 40 NSWLR 165, would also seem to cast doubt upon the availability of such a defence under s 5O of the CL Act in this case.

Proportionate liability - Civil Liability Act 2002, Pt 4

236 Notwithstanding my liability findings in accordance with convention, to allow for the possibility that my findings may be found to be wrong on appeal, in the paragraphs that follow, I deal briefly with the defendant's claim of proportionate liability arising under Pt 4 of the CL Act.

237 By paragraph [23] of the amended defence filed on 1 February 2012, the defendant claimed that in the event of a liability finding against it, there should be a proportionate liability finding in respect of the acts, neglects and defaults of the electricity supply company, Energy Australia, which is the successor in title of the company that had arranged for the wire to be re-strung on the occasion when Mr Dunscombe's Polair helicopter, flew into the wire, thus requiring its repair and replacement.

238 The legal basis for that claim is that the plaintiff's claim for economic loss is an "apportionable claim" within the meaning of s 34(1) of the CL Act, and the electricity supply company Energy Australia is arguably a "concurrent wrongdoer" within the meaning of s 34(2) of the CL Act, although not a party to the proceedings, and not an "excluded concurrent wrongdoer" within the meaning of s 34A of the CL Act.

239 By paragraph [24] of the amended defence filed on 1 February 2012, the defendant claimed that in the event of a liability finding against it, there should be a proportionate liability finding in respect of the acts, neglects and defaults of the supplier of the VNC map used by Mr Harrold, namely, Air Services Australia.

240 The legal basis for that claim is the same as outlined in paragraph [238] above, namely, that Air Services Australia should be characterised as a "concurrent wrongdoer" and not an "excluded concurrent wrongdoer" within the meaning of cited provisions of the CL Act.

241 I propose to also briefly outline my reasons for my finding that the claim for proportionate liability against the energy supply company and the VNC map supplier has been relevantly made out for the purposes of Pt 4 of the CL Act.

242 The relevant facts and circumstances relating to the proportionate liability claim involving Energy Australia, are as follows.

243 In 1994, the same air navigation regulations that applied to the 2009 incident were also in force. Despite the existence of the Singleton Army Base as a restricted military area in 1994, it was necessary for a civilian aircraft to be flown into that area as part of an air search, which from common knowledge, occurs from time to time over large tracts of rural land generally, and in NSW in particular.

244 The energy supply authority that maintained those wires knew, at least shortly after the time the Polair wire strike damage occurred, that it was foreseeable that a repaired wire in the same place could foreseeably become an obstacle to aircraft, either civilian or military, finding it necessary, either with or without permission, when flying in that area.

245 Between 1991 and 1994, Energy Australia must also be taken to have known of the existence of relevant legislative requirements concerning the safety of such overhead wire installations. The raft of legislation, subordinate legislation and relevant instruments setting out applicable safety standards leaves little room for doubt on that account: Electricity (Amendment) Act 1993; Australian Standard AS 3891.1 - 1991; Guidelines for Design and Maintenance of Overhead Distribution and Transmission Lines C(b)1, 1991: Exhibit "9".

246 A similar comment applies for the period from 2003 until the time of the wire strike in question: Energy Australia Overhead Lines Maintenance Standard - H0102, 2003; Guidelines for Design and Maintenance of Overhead Distribution and Transmission Lines ESAA(b)1-2003; Australian Standard AS 3891.1 - 2003: Exhibit "9".

247 The affidavit of Mr John Frederick Gordon Walton sworn on 8 May 2012 provides evidence that relatively inexpensive Powerline Marker Balls, in attention-catching sizes and colours, were readily available and reasonably simply fitted to powerlines in one form or another since the mid-1980's. Furthermore, there is evidence that some of these devices had been sold to Energy Australia in the period 2001 to 2008, including in the Hunter Valley regions of Muswellbrook, Wallsend and Telarah, and afterwards in 2010, in Cessnock. For the purpose of this analysis I have ignored the sales in 2010.

248 At the time the repairs necessitated by the Polair wire strike damage were effected, no arrangements were made for the repaired wire to be fitted with markers that enhanced its visibility to air traffic that might have to use the area from time to time. Accordingly, at the time the repairs were completed, the wire in question was left in a similar state to when Mr Dunscombe encountered it, and which justified his description to the effect that it was difficult to avoid flying into that wire on approach, due to visibility issues, until a collision was imminent.

249 In my view, the proportionate liability provisions of the CL Act are engaged in these circumstances, such that if it had been sued, the energy supply company would more probably than not have been found liable to the plaintiff for breach of duty of care and negligence in leaving the wire in an unmarked state. In that regard, I consider that the evidence fulfils all the requirements of s 5B of the CL Act concerning negligence in not providing such markers.

250 The relevant facts and circumstances relating to the proportionate liability claim involving Air Services Australia is as follows.

251 It is not disputed that Air Services Australia prepared and published the VNC map that Mr Harrold used as a navigational aid on this occasion. Air Services Australia was amenable to suit pursuant to s 7(2) of the Air Services Act (Cth) 1995. The VNC map in question, for the Newcastle area (VNC3) was effective as at 20 November 2008, and was current as at 29 January 2009. That map failed to include any markings identifying the presence of powerlines at the location where the wire strike occurred. As a result, Mr Harrold relied upon that map, and the aircraft he flew struck the wire there present.

252 If Air Services Australia had been joined to these proceedings, it is highly probable that it would have been found liable for that omission, particularly in view of the previous wire strike by the Polair helicopter in that location, where such an incident would without doubt, have been known and reported to aviation authorities. It is very unlikely that Air Services Australia would not have known of the incident, which would have drawn attention to the need to have the location of the wires identified on the relevant VNC map.

253 In my view, it is no answer to say that the wires were located in a restricted military area. The location of public utilities of that kind should have been identified for both civilian and military aircraft.

254 In my view, the combined degree of comparative responsibility of the mapping authority and the energy authority on the one hand, and the defendant (if it had been found liable) on the other, would have been in the proportion 80:20, with the mapping authority and the energy company jointly bearing the major burden of that responsibility, which should be shared equally between themselves.

255 I consider that the burden of responsibility ought to have been divided in the proportions I have identified because of the fact that the unmarked wire would not have been readily visible to the pilot of an approaching aircraft until a collision was imminent, with little or no opportunity to take evasive action. The mapping authority ought to have been aware of a hazard to aviation of that nature, and taken steps to have the maps made available for pilots to rely upon, marked accordingly. In those circumstances, an unmarked electricity wire posed a very real and foreseeable source of danger and harm, which justifies such a division of responsibility in those proportions.

256 Had my primary liability findings required the entry of judgment in favour of the plaintiff, any damages awardable to the plaintiff against the defendant, would have required reduction by 80 per cent on account of my findings relating to the proportionate liability provisions of the CL Act, s 35(3)(b), and s 35(4), as explained in the preceding paragraphs.

Findings on damages issues

257 The plaintiff's claim for damages was ultimately reduced to $708,440.10, and comprised the following elements: uninsured repair costs, being the insurance excess of US$70,000; diminution in value of the repaired helicopter, claimed at $549,563, and loss of income/management fees claimed at $67,968.

Claim for insurance excess

258 If the plaintiff had succeeded in establishing primary liability, the claimed amount of US$70,000 would have been awardable as damages as an out-of-pocket expense not covered by the aviation insurer. In view of my liability findings, it was not necessary for the parties to be asked to provide an Australian dollar conversion of US$70,000 as at the date of judgment.

Claim for diminution in value of repaired helicopter

259 The question of diminution in value of the helicopter due to the fact that it has been damaged, albeit expertly repaired, is difficult to assess, for a number of reasons.

260 The exercise is necessarily intuitive and subjective, and is dependent upon a number of market considerations. The market is very small so reliable indicative numbers would be difficult to garner where the requirement would be to compare helicopters in like condition. Although a history of damage would tend to affect the resale value of a helicopter, given the rigorous processes for inspection for air worthiness and the associated due diligence checking of repairs, in a case such as this, where the structural damage was relatively minor, and it was expertly repaired using genuine parts and skilled labour accredited by the manufacturer, this could well be reassuring to a prospective buyer. All of those factors indicate the speculative and necessarily uncertain nature of the valuation exercise.

261 Also added to the mix of factors that influences a valuation is the history of prior damage, corrosion and the repair history of the helicopter that I have summarised and cited at paragraphs [30] to [33] of my reasons.

262 In these circumstances, I consider that a robust and rounded estimate would be the more appropriate approach to the assessment of the diminution in value that has been submitted on behalf of the plaintiff.

263 This is particularly so given that as at the date of the hearing, over 2 years after the damage and subsequent repairs, the plaintiff has not yet sold the aircraft, so no discernable loss has been incurred. A relevant consideration in the assessment of such a claim must surely be that the longer a sale is deferred, any loss would also be deferred, and the putative loss must therefore be seen to have been lessened by the length of such an interval of time.

264 In considering the claim for diminution in value I have had regard to the expert opinion of Mr Richard McLean, an approved valuer from Aircraft Sales Australia, and his report dated 30 September 2011. A close examination of his report reveals that the assumption he has proceeded upon concerning the airframe time of 600 hours (at page 7, paragraph 4.6(d) of his report comprising Exhibit "8") has not been made out on the evidence. This is apparent from the service record that showed an airframe time of 1344.1 hours as at 2004: Exhibit "K".

265 Whereas Mr McLean has suggested that considerations of the relatively limited nature of the damage from the wire strike, the quality of the subsequent repairs, market fluctuations, and wear and tear indicated that only minimal diminution in value arose, those additional assumptions not previously considered by Mr McLean, seem to me to only serve to emphasise the relatively minimal deleterious impact on the value of the aircraft following the wire strike. Added to those factors must be questions concerning differences between the United States market for helicopter sales and the market in Australia. This could well also influence the valuation process.

266 In those circumstances, I consider that an appropriate rounded lump sum amount for any diminution in value should be assessed at $50,000.

Claim for loss of profits

267 Although the amount claimed for loss of income, namely, $67,968, does not on its face seem inordinately high given the post-repair income set out in Exhibit "C", however I consider that the evidence does not reasonably permit a calculation to the extent that is claimed.

268 The helicopter in question had no history of earnings for the plaintiff from charter or hiring activities. This is because it was damaged on the first day of its engagement in the defendant's business. Therefore, the question of projected earnings from the chartering arrangements involves many imponderables that are not reasonably open to estimation through precise calculation.

269 Examples of such imponderables would be factors such as competition in the market place, the usual issues associated with the maintenance and serviceability of mechanical equipment, market fluctuations for hiring of such a machine from time to time, the extent to which marketing of the availability of the helicopter took place, possibly uncertain profitability as Mr Paradice had already intimated to Mr Harrold in relation to the disappointing financial results for Mr Paradice's R44 helicopter, and probably some other unknowns peculiar to that industry.

270 Having regard to such factors, I consider that a projected approach using pseudo mathematical precision is not appropriate. Instead, I consider that a global lump sum allowance as a buffer would be the more justifiable approach.

271 On that approach, I consider that an appropriate lump sum buffer to be an amount of $20,000, which equates to a little over $500 per week net after tax over the 39 weeks between 30 January 2009 and 30 October 2009.

Disposition

272 The plaintiff has failed to establish that the defendant is liable for the damage claimed. The defendant is therefore entitled to a verdict and judgment in its favour in respect of the plaintiff's claim.

Costs

273 As the defendant has succeeded in the litigation, it follows that the plaintiff should be ordered to pay the defendant's costs on the ordinary basis unless an entitlement to some other order can be established, for which there will be liberty to apply.

Orders

274 I make the following orders:

(1)  Verdict and judgment for the defendant on the plaintiff's claim;

(2)  The plaintiff is to pay the defendant's costs of the proceedings on the ordinary basis, unless a party can show an entitlement to some other costs order;

(3)  The exhibits may be returned;

(4)  Liberty to apply on 7 days notice if further orders are required.

 

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Decision last updated: 21 December 2012