Duty to avoid the risk of being unintentionally enveloped by cloud as a pilot

Towers v Hevilift Ltd & Anor [2016] QSC 267

Henry J

The plaintiff was the pilot of a helicopter which became caught in a cloud and crashed, killing three of six passengers. The plaintiff was rendered an incomplete quadriplegic as a result of the accident. Hevilift admitted it employed the Plaintiff. Both defendants denied the second defendant was the plaintiff’s employer.

Jurisdiction had been determined by previously by Byrne J on 14 October 2010. It was common ground that the applicable law was the substantive law of Papua New Guinea PNG). However, it was also common ground that there is no relevant difference between the common law principles of negligence and breach contract as applicable in PNG and Queensland.

Relevantly, PNG aviation rules require that the pilot is to remain clear of clouds. However, at the time of the accident, clouds were forming and moving rapidly in the mountainous regions of PNG which created the risk of unintentional envelopment by cloud.

The plaintiff pleaded that Hevilift owed a duty of care to the plaintiff to take reasonable care to ensure his safety during the course of his employment and to take reasonable steps to ensure a safe system of work.

Risk of unintentional envelopment by cloud

Henry J discussed the risk of a pilot being unintentionally caught in cloud, referred to as an “inadvertent IMC” in the aviation industry (instrument meteorological conditions), namely not being able to fly under visual meteorological conditions. He stated that:

[102] The defendants argued, relying in particular upon Koehler v Cerebos (Australia) Ltd, that Hevilift could not be in breach of a duty of care merely by insisting that Mr Towers comply with his contractual obligation, and indeed his obligation as a licenced pilot, to comply with the rules of the Civil Aviation Authority, including in respect of VFR. But this is no more to the point in the present circumstances than that Hevilift provided him with a helicopter meeting the aviation standards required for flight under VFR. These aspects are not inconsistent with the imposition of additional obligations upon Hevilift given its duty of care to its employee pilots and do not result in a problem of lack of coherence as between the law’s requirements. That is because the departure from VFR here occasioned was the unintended result of the foreseeable manifestation of a regional phenomenon and associated risk which Hevilift, in choosing to operate its flight business in that region, ought to have known of and taken steps to warn and safeguard its pilots against. It is not the law that a merely requiring compliance with statutory requirements will per se absolve an employer from liability to an employee at common law.157 More needed to be done by Hevilift than provide helicopters equipped for VFR and expect compliance by its pilots with the rules of the Civil Aviation Authority, come what may.

[103] Given that Hevilift operated helicopters in the region it was likely aware of the phenomenon that cloud could form at out of the ordinary speed in the region of Camp 57 in the late afternoon, thus giving rise to a heightened risk of inadvertent IMC.

[105] Further to that, I find it should, if adopting a safe system of work, have implemented a local regime for monitoring weather in the region of Camp 57 and prohibiting flight in to it by Hevilift’s pilots and diverting them to a safe area when prescribed weather conditions, such as fog or a prescribed humidity level, were forecast or present in the vicinity in the late afternoon. It was particularly incumbent upon it to implement such a system where, as here, it was operating aircraft without instruments to assist its pilots to escape inadvertent IMC.

The defendant’s training and equipping of the plaintiff

His Honour noted that there was no evidence that the plaintiff was warned about the speed at which cloud forms in the area which the plaintiff was flying. Finding a breach of duty, His Honour said:

[126] The phenomenon of cloud forming at a speed out of the ordinary in the late afternoon in the region in question and the consequently heightened and thus foreseeable risk of inadvertent IMC occurring at that time and place was information Mr Towers did not know. It was information Hevilift, as a business regularly operating helicopters there, either did or, acting with reasonable care for its pilots and passengers, should have known. It is information Hevilift, acting with reasonable care for its pilots and passengers, should have warned Mr Towers about.

Whether the helicopter should have been equipped with instruments

The plaintiff alleged that the failure to equip the helicopter with relevant instruments constituted a breach of the defendant’s duty to the plaintiff. Relevantly, other helicopters were equipped with such instruments to assist in escaping an inadvertent IMC. After discussing the viability of equipping such instruments, Henry J said:

[152] The cost and inconvenience of doing so, particularly weighed against the catastrophic consequences of a helicopter crash, presents as moderate, even allowing for the generally low incidence of inadvertent IMC and the difficulty in escaping it even with such instruments.

[153] Neither [a flight prohibition and diversion system or emergency instruments were] provided. At least one of them should have been. A flight prohibition and diversion system should have been provided, it being the more effective of the two additional responses.

Conclusion

In finding for the plaintiff, Henry J found that the relevant breaches caused the accident. In this regard, he stated:

[208] The crash would not have occurred and Mr Towers would not have been injured if he either had been warned of the above phenomenon and risk or had been directed not to continue flying to Camp 57 and to divert to an alternative and safe landing location. I am satisfied that both the failure to so warn and the failure to so direct were in breach of Hevilift’s duty of care to Mr Towers and were proximate causes of his injuries.

Further, His Honour rejected claims that the plaintiff was contributorily negligent, finding that the crash was not caused or materially contributed to by any failure by the plaintiff to exercise reasonable care.

The plaintiff’s case against the second defendant also failed as he was not an employee of the second defendant and therefore it did not owe the plaintiff a duty of care.

David Cormack – Brisbane Barrister & Mediator

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