The spouse and children of a vegetation officer killed on the job with a regional shire council have won substantial post-traumatic stress damages for the way they were told of the air crash that took his life.
Ian Stephenson – a Parkes Shire Council employee – was deployed in February 2006 with colleague Malcolm Buerckner for an airborne noxious weed inspection in the vicinity of Lake Endeavour in western NSW.
Under the control of pilot Shane Thrupp, the Bell 206 chopper departed Parkes airfield to the east at about 9:00 am.
Just over 30 minutes later – after entering an area known as “the Dungeons” – it struck unmarked powerlines strung across the valley at a height of about 36 m above ground level.
The resulting crash killed all three occupants.
The NSW Supreme Court has ruled that the two council workers were not “passengers” because in reality, they were performing crew type roles.
Mr Stephenson’s “role was to act as an observer and to direct the pilot to particular areas which required inspection,” ruled justice Geoff Bellew. “His presence was essential to conduct the survey. He was not a passenger being conveyed from one place to another.”
His Honour’s conclusion means the restrictions intrinsic to airline passenger liability in the Civil Aviation (Carriers Liability) Act do not apply to the liability compensation claims of his surviving family members.
The psychological injury claims of widow Ingrid, daughter Natalee and son Jay – all commenced after the expiration of the two year limitation period that applies to passengers – were therefore allowed.
In his damages ruling handed down just three days before the landmark Court of Appeal decision in Precision Helicopters which came to the opposite conclusion in almost identical circumstances – judge Bellew ruled that each of the family members were entitled to substantial compensation.
The circumstances of how they were told about the crash and its aftermath caused them to manifest severe depression “which went beyond the normal experience of grief or arrangement”.
Ingrid – Stephenson’s wife of 23 years – underwent a tortuous ordeal before finally receiving confirmed information concerning her husband’s death.
Her award of nearly $260k and $30k for past loss of wages refused reimbursement of legal costs for representation at the coronial enquiry as “too remote” and also refused any award for loss of future earning capacity for the 56-yr-old.
However, an additional nearly $400k was awarded to her by way of dependency damages.
Jay – who had been told of the accident by phone and who helped the coroner locate his deceased father’s dental charts – was awarded $132k with earning capacity losses for the 30-yr-old refused.
Three years younger than her brother, Natalee was ordered $200k which also excluded any damages for loss of past or future income.
In apportioning liability, the court ruled the council – although “entitled to rely on the experience of the operator” South West Helicopters – owed a “non-delegable duty of care to ensure a safe system of work and to take reasonable care for its employees”.
Its breach of duty was the failure to “control the conditions upon which the flight was conducted”, i.e. by specifying a “flight threshold” above which the operation should have been conducted.
The electricity generator whose unmarked cables with which the chopper collided spanned the valley, was also in breach of its duty “by failing to mark the powerlines” with spheres.
The operator though bore the greatest share of responsibility, because its chief pilot failed to carry out a risk assessment “in circumstances where it he knew that the survey would involve low-level flying” and because of its pilot – who had the requisite low flying endorsement- engaged in “dangerous” low flying.
Liability was apportioned 70% as to the helicopter operator, 20% as to the Council and 10% to the electricity generator.
Ingrid Margaret Stephenson v Parkes Shire Council; Natalee Stephenson v Parkes Shire Council; Jay Stephenson v Parkes Shire Council; South West Helicopters Pty Limited v Essential Energy (formerly Country Energy); Parkes Shire Council v South West Helicopters Pty Limited (No 2)  NSWSC 719 Bewllew J, 19 June 2015 – view decision