Written by Peter CarterUpdated on July 21, 2020
A pilot who flew an EC 120 helicopter with three people on board, into an overhead power line on the boundary of restricted military air space near an army base, has escaped a $700k lawsuit from a passenger who was its owner.
Fund manager, David Paradice bought himself the $1.375 million chopper in December 2008 to fly from his farm near Scone in the Hunter Valley, to business meetings in Sydney. The first leg of the Visual Flight Rules (VFR) flight departed Rosehill Gardens racecourse about 7 am to collect Paradice from his estate at Wingham.
On the return leg at about 8:30am, cloud had begun to build. Pilot Mark Harrold – who had about 50 hours experience on type – took the aircraft down below cloud level at it approached the Broke township.
The trial judge accepted the pilot evidence that he descended below cloud to maintain Visual Meteorological Conditions (VMC).
“The pilot correctly identified the need to find a clear area and then turned the helicopter to the left of track, generally east towards Cessnock to avoid the bank of low lying cloud”. With rising terrain and cloud closing in from behind, he descended further and flew into a valley the southern border of which was the restricted airspace comprised by the Singleton army training base.
“He was at that time concerned to look for a way of avoiding flying through cloud and at the same time to maintain adherence to VFR requirements,” observed His Honour. The aircraft’s windscreen was smashed by the cable – which was not distinguished by the customary air balls spaced along its run – at an altitude of 1850.
The crew struggled to bring it down safely to land in a disused quarry. They suffered cuts to their faces but Paradice was uninjured. Paradice sued Harrold for negligence, claiming he was out of pocket $708k because – despite the fact it was repaired – the chopper’s value fell by $549k after the crash and he had to pay an excess on his insurance.
But the NSW District Court exonerated Harrold and dismissed the owner’s claim. The matter went to appeal before the New South Wales Court of Appeal in March when that decision was affirmed. A pilot would ordinarily be considered negligent for flying into an obstacle. However, “the circumstances in which the pilot found himself were not normal flying conditions and he needed to fly away from the weather,” ruled the appeal judges.
His decision to fly below what would normally have been a safe altitude to conduct the flight – which exposed the aircraft to the risk of crashing – was excused on that basis. Paradice was ordered to pay legal costs of the trial and the appeal, possibly as much as the chopper’s worth!
AV8 Air Charter Pty Limited v Sydney Helicopters Pty Limited  NSWCA 46 – view decision