In April 2006 two Endeavour Energy employees were conducting an aerial inspection of power lines and poles near Wiseman’s Ferry north of Sydney in an helicopter supplied – with crew – by Coff’s Harbour based Precision Helicopters.
The Bell Jet Ranger was flying south down the McDonald River before pilot David Carter swung to the east to follow a high voltage branch line towards a transformer pole at a height of about 40 ft above ground level.
That manoeuvre put the aircraft on a course to converge with a Telstra cable swung across a valley to the north of a residence on Settler’s Road owned by Paul Inman.
The chopper’s tail rotor struck the cable. Pilot carter managed to land it in a nearby paddock but it rolled onto its side with the main rotor slicing into the cabin and striking Endeavour employee Simeon Edwards.
Edwards – who was not wearing a safety helmet – suffered catastrophic injuries, but survived.
He sued Endeavour, Precision and Telstra for damages which were settled for $16 million with Telstra escaping all liability in the subsequent contribution proceedings all three brought against each other.
But when the issues came before the NSW Court of Appeal, Telstra’s liability exoneration was overruled.
The telco “ought reasonably to have foreseen the possibility that a helicopter may operate in the vicinity of its cable,” said the appeal judges and “was liable for its failure to remove” the redundant structure.
The court also considered whether Precision’s liability was capped under the NSW Civil Aviation (Carriers’ Liability) Act which applies in respect of commercial transport, such as airline passenger operations.
Precision’s Air Operator’s Certificate (AOC) allowed the aircraft to conduct both charter operations and “aerial work” which was specified in the AOC to include the inspection of power lines.
The trial judge ruled the “aerial work” operation flown with both Precision and Endeavour personnel – with Edwards directing the pilot where to operate – was of a different character to commercial transport operations by the holder of a charter licence or airline. In his view the flight was not one covered by the Act.
But on appeal – in a landmark development in air carriage law – the court ruled the “aerial work” operation likely to be “commercial transport” because the “aircraft was used, for hire or reward, for the carriage of passengers or cargo.”
The fact that the AOC differentiated between charter – the carriage of fare paying passengers and – and “aerial work”, did not mean that the latter was not a commercial transport operation with the carriage of passengers.
Edwards was indeed, in its view, a “passenger” because he did not control the flying of the aircraft as a result of which Precision’s liability (as “carrier”) was limited to the then maximum damages of $500k.
Precision’s pilot was not in this instance, at fault for failing to conduct an over flight of the location in search of wires – because the wires would have been unlikely to have been spotted.
But the pilot was at fault for not requiring Edwards and his colleague to wear a helmet.
Endeavour’s responsibility in the operation was – according to the court – to conduct a risk assessment of all potential hazards to the inspection and mark them on a route plan.
Although this duty did not extend to performing a ground-based inspection, it should have made enquiries of “infrastructure owners” of telephone wires in the relevant rural area.
Because of Precision’s $500k liability cap, most of the $16 mil payout to Edwards – and all of the cost of the destroyed helicopter – will come from Endeavour and Telstra.
Endeavour Energy v Precision Helicopters Pty Ltd  NSWCA 169, Basten JA Macfarlan JA Sackville AJA, 22 June 2015