| Air Head |
Kimberley Nash, Lawyer |
A helicopter owner sued an electricity company for damages for the loss of his helicopter after it crashed into one of the electricity company’s power lines. The owner had lent the helicopter to his cousin, an experienced pilot, to take his sister to a nearby wedding. On the way to the wedding the helicopter struck the power lines, killing both the pilot and passenger.
The facts before the court showed that the pilot had flown at least 400 feet below the minimum permitted level and had breached a number of air regulations. Evidence was also led that the electricity company had cleared trees underneath other power lines in the areas but not underneath the lines which the pilot ultimately crashed into. The evidence also showed that at the time of erecting the power lines, the electricity company could have purchased relatively cheap markers which could have alerted pilots to the potential hazard without affecting the operational capacity of the lines.
The trial judge considered that the electricity company did owe a duty of care to pilots and aircraft owners, even owners of carelessly flown aircraft. The judge considered it was reasonably foreseeable that the power lines might cause injury to a pilot or an aircraft owner. However, he also considered that the risks and dangers posed by the power lines would have been obvious to the pilot. He found that the electricity company had not acted unreasonably by not using the markers that were available to it.
The New South Wales Court of Appeal reversed the trial judge’s decision. The Court found that the risk-taking of the pilot did not mean he was not owed a duty of care by the electricity company. The Court considered the fact that the pilot flew low was irrelevant to the questions of duty and breach of duty. Consequently, the electricity company owed the owner of the helicopter a duty of care and had breached that duty by failing to warn the pilot of the existence of the power lines.
The Court noted that the pilot’s actions were relevant to questions such as assumption of risk and contribution, but in the words of the Court, “the mere fact that a person disobeys the law of the land does not mean that others may not owe a duty of care towards that person”: Sheather v Country Energy.
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