When does the Civil Aviation (Carriers’ Liability) Act 1967 (NSW) apply?

Mar 2014 |

Edwards and Ors v Endeavour Energy and Others; Precision Helicopters Pty Limited v Endeavour Energy and Ors; Endeavour Energy v Precision Helicopters Pty Limited and Anor (No. 4) [2013] NSWSC 1899

Background

The matter arises out of a helicopter accident at St Albans in News South Wales on 4 April 2006.  The accident resulted when the skid, and then tail rotor of the helicopter, caught a catenary wire owned by Telstra Corporation Limited.  Following contact with the catenary wire the helicopter lost directional control, failed to affect a level landing and rolled onto its right-hand side. 

At the time of the accident the helicopter, owned and operated by Precision Helicopters Pty Ltd (Precision), was being utilised for intra-state aerial power line inspections on behalf of Integral Energy, now Endeavour Energy (Endeavour). 

On board the helicopter at the time of the accident was Mr Simeon Edwards (Edwards), an employee of Endeavour Energy. As a result of the accident, Mr Edwards suffered catastrophic head injuries and a claim for compensation ensued.

Two interesting issues arising from the primary judgment; firstly, the Court gave consideration to whether the Civil Aviation (Carriers' Liability) Act 1967 (NSW)1 (CACLA) had application to the claim and secondly, whether Edwards was a passenger for the purpose the CACLA. 

Application of the CACLA

The Court noted the intra-state nature of the accident flight was not in itself determinative as to the application of the CACLA,  and instead stated it was critical to assess the 'nature of the activity upon which the helicopter and its occupants were engaged'2 at the time of the accident.

The Court characterised the accident flight as a low-level aerial work operation for the purpose of power line inspections.  In view of this, the Court noted it was difficult see how the nature of the work fit 'within the concept of intrastate airline and charter operations of the type caught by section 4'3 of the CACLA and thus 'seems far removed from any notion of 'commercial transport operations' by the holder of a 'charter licence''.4

On that basis, the Court found the CACLA did not apply to the Edwards claim.  Despite this finding, the Court turned to consider whether Edwards was a passenger for the purpose of the CACLA in the event. 

Was Edwards a passenger?

Absent a definition of 'passenger´ in the CACLA, the Court took guidance from leading international and local cases5 and applied the principles laid down in those cases to the facts of this matter. 

In finding Edwards to have been 'an essential part of the crew', and therefore not a passenger for the purpose of the CACLA, the Court looked to the contract for aerial services as between Precision and Endeavour noting the following critical features:

  • Two Endeavour employees were supplied to Precision as an 'inspector' and 'observer';
  • The observer was to 'assist the pilot by providing advance warning of approaching hazards, tracking flight developments to determine changing risks and recording the condition of the powerline';6 and
  • At the time of the accident, and in accordance with the contract, Edwards fulfilled the role of observer.

The Court found Edwards' role as observer was central to the pilot's conduct of the aerial inspections of the overhead lines and the pilot had relied on Edwards to assist with the navigation of the aircraft as well as to provide advance warning of hazards. 

Comments

For aerial operators entering into third party contracts, this decision underscores the importance of ensuring a clear understanding of the roles played by those on board the aircraft at the relevant time, and the impact that can have on the application of the CACLA in the event of an accident.

If aerial operators are wishing to avail themselves of the strict but limited liability regime established by reference to the CACLA, it is imperative to ensure the subject flight meets the threshold requirements for carriage as established in the CACLA,7 and that any persons carried did not actively engage in the operation of the aircraft or activities central to the operation of the aircraft. 

Operators can put themselves in the best possible position to manage liability exposure by ensuring all third party contracts are clear and unambiguous as to the expectations and roles of the respective parties (in addition to all insurance and indemnity clauses). 

It is possible this matter may be subject to appeal.8 Carter Newell will monitor the matter and will keep readers up-to-date as to any developments.

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(1) It was agreed the Civil Aviation (Carriers' Liability) Act 1959 (C'th), which relates to international and interstate airline and charter operations, had no application to the case.
(2) Edwards and Ors v Endeavour Energy and Others [2013] NSWSC 1899 at paragraph 105.
(3) Edwards and Ors v Endeavour Energy and Others [2013] NSWSC 1899 at paragraph 106.
(4) Edwards and Ors v Endeavour Energy and Others [2013] NSWSC 1899 at paragraph 107.
(5) Fellowes (or Herd) v Clyde Helicopters Limited [1997] AC 534; Disley v Levine [2001] EWCA Civ 1087; [2002] 1 WLR 785; Laroche v Spirit of Adventure (UK) Limited [2009] EWCA Civ 12; [2009] QB 778.
(6) Edwards and Ors v Endeavour Energy and Others [2013] NSWSC 1899 at paragraph 60.
(7) Section 4.
(8) Although likely on grounds unrelated to the application of the CACLA or the question of whether Edwards was a passenger.