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Towers v Hevilift Ltd

 

[2016] QSC 267

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Towers v Hevilift Ltd & Anor [2016] QSC 267

PARTIES:

BRUCE TOWERS

(plaintiff)

v

HEVILIFT LIMITED

(first defendant)

and

AVIATION SERVICES PTY LTD (ABN 83109678631)

(second defendant)

FILE NO/S:

SC No 180 of 2009

DIVISION:

Trial

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court at Cairns

DELIVERED ON:

17 November 2016

DELIVERED AT:

Brisbane

HEARING DATE:

13 June 2016; 14 June 2016; 15 June 2016; 16 June 2016; 17 June 2016; 16 August 2016 and 17 August 2016

JUDGE:

Henry J

ORDERS:

  1. Judgment for the plaintiff in its claim against the first defendant for damages to be assessed, without set-off.
  2. The plaintiff’s claim against the second defendant is dismissed.
  3. I will hear the parties on 7 December 2016 at 9.15 am as to costs and any further orders, including directions on the future conduct of the proceeding (with out of town parties having leave to appear by telephone or videolink).

CATCHWORDS:

TORTS – NEGLIGENCE – ESSENTIALS OF ACTION FOR NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – where the plaintiff claims damages for personal injury and consequential loss arising as a result of negligence and breach of contract – where the plaintiff helicopter pilot became quickly enveloped in cloud and crashed rendering him an incomplete quadriplegic – where the crash occurred late in the afternoon in the Papua New Guinea Highlands where there is risk of clouds forming rapidly – where the helicopter did not have instruments to navigate by if enveloped by cloud – where the plaintiff blames his employer(s) for the crash because of a failure to warn him of the risk and provide appropriate instruments – where the first defendant claims the plaintiff was not a competent pilot and falsely represented his competency – where the first defendant claims the plaintiff knew, or ought to have known, not to fly where he knew he was likely to encounter fog – where the first defendant claims the cloud did not develop quickly and the plaintiff pilot in breach of his contract flew deliberately into cloud despite a forewarning – where the first defendant alleges contributory negligence and claims a set off – whether there was a greater than ordinary and foreseeable risk that fast cloud formation in the region could envelop a helicopter – whether the first defendant acting with reasonable care did, or should have, known of that risk and had a duty to warn the plaintiff – whether the first defendant should have equipped its helicopters with, and trained its pilots on appropriate instruments to assist them to escape rapid cloud formation emergency situations – whether the first defendant breached its duty of care – whether the plaintiff was negligent and caused or materially contributed to the accident and consequent damages

EMPLOYMENT LAW – LIABILITY AT COMMON LAW FOR INJURY AT WORK – INJURY OCCURRING IN COURSE OF EMPLOYMENT – CAUSATION AND FORESEEABILITY – FORESEEABILITY – PARTICULAR CASES – INSTRUCTION AND WARNINGS – where the plaintiff claims damages for personal injury and consequential loss arising as a result of the negligence and breach of contract – where the plaintiff helicopter pilot became quickly enveloped in cloud and crashed rendering him an incomplete quadriplegicwhere the first defendant claims the cloud did not develop quickly and the plaintiff pilot in breach of his contract flew deliberately into cloud despite a forewarning – where the first defendant alleges contributory negligence and claims a set off – whether there was a greater than ordinary and foreseeable risk that fast cloud formation in the region could envelop a helicopter – whether the first defendant acting with reasonable care did, or should have, known of that risk and had a duty to warn the plaintiff – whether the first defendant should have equipped its helicopters with, and trained its pilots on appropriate instruments to assist them to escape rapid cloud formation emergency situations – whether the first defendant breached its duty of care – whether the plaintiff was negligent and caused or materially contributed to the accident and consequent damages

CONTRACTS – PARTICULAR PARTIES – PRINCIPAL AND AGENT – RELATIONS BETWEEN AGENT AND THIRD PERSONS – LIABILITIES OF AGENT – IN RESPECT OF CONTRACTS – AGENT CONTRACTING AS SUCH ON BEHALF OF NAMED PRINCIPAL – where the plaintiff helicopter pilot became caught in cloud and crashed rendering him an incomplete quadriplegic – where the plaintiff blames his employers for the crash because they failed to warn him of the risk and provide appropriate instruments –

where the plaintiff alleges the second defendant owed him a duty of care as his employer or alternatively as a result of its contractual obligations with the first defendant – where the second defendant acted as agent for the first defendant in recruiting and paying the plaintiff – where the plaintiff was employed by the first defendant – whether the second defendant employed the plaintiff – whether the second defendant owed the plaintiff of duty of care

Astley v Austrust Ltd (1999) 197 CLR 1, applied

Bux v Slough Metals Ltd [1973] WLR 1358, cited

Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, cited

Jones v Dunkel (1959) 101 CLR 298, applied

Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, cited

Kondis v State Transport Authority (1984) 154 CLR 672, cited

Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16, applied

Sullivan v Moody (2001) 207 CLR 562, cited

TNT Australia Pty Ltd v Christie (2003) 65 NSWLR 1, distinguished

Wilsons & Clyde Coal Co v English [1938] AC 57, cited

Wyong Shire Council v Shirt (1980) 146 CLR 40, applied

COUNSEL:

J A Griffin QC with G Mullins for the plaintiff

G F Crowe QC with J Trevino for the first and second defendants

SOLICITORS:

Slater & Gordon for the plaintiff

Miller Harris Solicitors for the first and second defendants

PART A: PREFACE

Introduction

  1. The plaintiff, Mr Towers, was the pilot of a helicopter that became caught in cloud and crashed in the Papua New Guinea Highlands on 20 April 2006.  The crash killed three of the six passengers and rendered Mr Towers an incomplete quadriplegic.
  2. Mr Towers did not intend the helicopter to be in cloud. At the time of the crash he was supposed to be flying according to the visual flight rules of the aviation industry.  Those rules require the pilot to remain clear of cloud. 
  3. An obvious premise of that requirement is that a competent pilot can avoid cloud.  However this crash occurred late in the afternoon when cloud forms and moves rapidly in the mountainous regions of Papua New Guinea, such that there is a risk of unintended envelopment by cloud.
  4. The helicopter did not have instruments to navigate by if enveloped by cloud.  Mr Towers blames the defendants, his alleged employers, for the crash, because they failed to warn him of the risk and provide such instruments.
  5. Liability and quantum are both in issue but the parties agreed to a trial in the first instance to determine the question of liability only. 

Relevant aviation rules and instruments

  1. The case requires some understanding of aviation rules and instruments from the outset.

Responsibility of the pilot-in-command

  1. Papua New Guinea’s Civil Aviation Rules unsurprisingly place significant responsibility for the safety of a flight upon the pilot-in-command.  For instance, rule 91.217 requires a pilot-in-command before beginning a flight to obtain and become familiar with an array of information concerning the pending flight.  That information includes current meteorological information, where practicable, and the alternatives available if the planned flight cannot be completed.

VFR & IFR

  1. In the aviation industry helicopters and aeroplanes in flight are flown pursuant to visual flight rules (“VFR”) or instrument flight rules (“IFR”).  VFR involves flight by reference to externally visible terrain.  IFR involves flight by reference to the aircraft’s instrument panel without the need for external visibility.
  2. Papua New Guinea Civil Aviation Rule 91.301, “VFR meteorological minimum”, prescribes the extent of visibility and distance from cloud required for flight under VFR.  The rule’s Table 4 stipulates minima for class F airspace at or below 1000 feet above terrain.  That is the class of airspace relevant here,[1] for while the helicopter was flying at a height of about 4,500 feet above sea level before the crash,[2] it was flying below 1000 feet above terrain.[3]  Rule 91.301’s application to those minima require that a pilot-in-command must not operate an aircraft under VFR unless flight visibility is at least five kilometres and the aircraft is “clear of cloud and in sight of the surface”.[4]  It is therefore an essential requirement of VFR flight that visual reference to terrain is maintained and the aircraft does not enter cloud.
  3. Because of that requirement it is not essential, at least pursuant to aviation rules, that an aircraft flown under VFR has the additional instruments needed for flight under the obscured external visual conditions, known as instrument meteorological conditions (“IMC”), to which IFR applies.

Instruments

  1. The helicopter involved in the crash, a Bell 206L-3, was certified “for land operation under day or night VFR non-icing conditions”.[5]  Because a pilot flying under VFR is able, or at least supposed to be able, to see the earth, the aircraft’s orientation in flight will generally be apparent without reference to instruments.  Instruments which provide such information, but are not legally required for VFR flight, are the attitude indicator, the turn and slip indicator and turn co-ordinator.[6]  The helicopter in which Mr Towers crashed did not have such instruments.[7]
  2. An attitude indicator indicates the degree of the aircraft’s fore and aft tilt and its side to side tilt.  In effect it indicates the orientation of the aircraft relative to the earth’s horizon.  It is for that reason also known as an artificial horizon.  The need for an attitude indicator when flying without external visual reference is more acute in a helicopter than an aeroplane because helicopters are less stable flying machines.  If a pilot selects an attitude in a pitching aeroplane, the aircraft will generally remain in the attitude and return to it if disturbed by an external force.  In contrast, a helicopter is easily disturbed from a datum position and, in the absence of corrective action to maintain attitude, the helicopter will take an oscillatory path in the pitching plane, becoming increasingly less upright relative to the earth and control will be lost.  Such corrective action requires reference to external visual cues or, if those cues are obscured by cloud, by reference to an attitude indicator.[8]
  3. Other instruments providing information about an aircraft’s attitude are the turn and slip indicator, also known as a bat and ball indicator, and a turn co-ordinator.  A turn and slip indicator indicates the aircraft’s turn rate and extent of side slip, that is, whether the aircraft is flying true as opposed to crab wise.[9]  A turn co-ordinator, a development of the turn and slip indicator, which has its gyroscope mounted at an angle, indicates both turn and roll (or bank) rate.[10]

Facts

Mr Towers is employed to fly helicopters in PNG

  1. In late 2005 Mr Towers, a helicopter pilot, sought work flying helicopters in Papua New Guinea.  He eventually spoke with Mr Trevor Pook of the first defendant, Hevilift Ltd (“Hevilift”), and was given a start date to go to Mount Hagen in Papua New Guinea for flight testing with Hevilift by Mr Pook and Mr Alan Dodds.[11]
  2. In early 2006 Mr Towers went to Mount Hagen where he presented his pilot logbooks to Mr Pook and Mr Dodds and was successfully flight-tested by them.[12]  An employment agreement as between Hevilift and Mr Towers was signed on 9 March 2006.[13]  There is an issue as to whether the second defendant also employed Mr Towers.
  3. Mr Towers recalled having done 28 days of checking and training to get the job.[14]  He performed some work as a helicopter pilot on this initial tour before returning to Australia pending the next cycle of work.[15]

The lay of the land

  1. On Mr Towers’ second work cycle, the district where he was performing work was located to the north-west of Moro in the Southern Highlands province of Papua New Guinea.  Mr Towers was billeted at night at Sisibia where there was access to fuel and where two of the helicopters were kept.[16] 
  2. During this tour Mr Towers would fly higher than Sisibia to a workers’ camp, Camp 57.  The workers there were employed by Oil Search Ltd (“Oil Search”) in a pipeline and field development project for which Hevilift provided air transport.[17]  From Camp 57 Mr Towers would ferry the workers to a worksite described as Camp 810, located further along the same ridge as Camp 57.  He would also convey workers from Camp 57 to a chain of worksites near to but lower down from Camp 810 named Alpha, Bravo, etc up to and including Foxtrot.[18]  Mr Towers estimates that the Foxtrot pad was about 2,500 feet above sea level whereas Camp 57 was about 4,500 to 4,800 feet above sea level.[19] 
  3. At the end of the working day Mr Towers was required to ferry workers from Foxtrot to Camp 57.  The flight path taken between the two locations was in mountainous country.  It involved climbing up above a gully running in a south-easterly direction from Foxtrot to slightly north of Camp 57.[20]  In the final approach to Camp 57, from about 500 to 600 metres out, it was then necessary to swing to the south in order to land.[21]  Beyond Camp 57 and that direction of approach there was a tower and a continuing ridge, 150 to 250 feet above the camp.[22] 
  4. The flight from the Foxtrot pad to Camp 57 would take five to seven minutes.[23]  Mr Towers had been engaged in this activity for about eight days before the crash.[24]

The day of the crash

  1. On 20 April 2006, the day of the crash, Mr Towers was assigned the same Bell Long Ranger 206L-3 Helicopter[25] he had been using in the preceding days out of Sisibia.[26]  Mr Kym Moyle, Oil Search’s aviation co-ordinator, designated the jobs Mr Towers performed that day.[27]
  2. In the morning Mr Towers had transported workers out of Camp 57 to the Alpha, Bravo, etc chain of worksites.[28]
  3. In the afternoon Mr Towers was at Camp 810.  He was despatched from there by Mr Moyle at about 4.30 pm to bring workers home from the Foxtrot pad.[29]  Mr Towers then commenced the process of flying to the Foxtrot pad and touching down, without shutting down, waiting to be loaded and then taking off and flying up along the above-mentioned gully to Camp 57, where he would discharge passengers and then return to the Foxtrot pad to collect the next group of workers.[30]
  4. The crash occurred on Mr Towers’ third run from the Foxtrot pad to Camp 57.
  5. During the first trip the weather conditions were clear.[31]  When asked about cloud on the second run Mr Towers testified:

“The second trip the pad was still clear, no trouble.  You could see a little bit of whispiness about, oh, two or three kilometres down to the south-west where it starts to go down towards Sisibia, but it was nothing that was a problem at that stage.”[32]

The crash

  1. During the third run Mr Towers was warned, in a radio transmission with Mr Moyle, of the presence of fog[33] at Camp 57 but pressed on, indicating he would “have a look”.  On his account, which is in issue, he had a clear approach into Camp 57 but was unexpectedly enveloped in cloud in the closing stages of his approach to the pad.  He said in evidence-in-chief:

“Everything was clear.  I was within 150 metres of where I was going to put the skids on the ramp and then right then and there I just got enveloped in cloud. … I immediately turned around to start going back down the hill because it – it was thick and fast, and I looked at my dash, because if there was anything that I had I was going full power and climb out but I didn’t have that so I had to make a split second decision to hug the trees, because that was the only thing that was going to give me guidance to bring the helicopter down the hill to try and get under the cloud base because it did.  It enveloped me very quickly and it was very thick.  It wasn’t just thin cloud.”[34]

  1. Mr Towers thereafter attempted to fly by visual reference to the treetops for guidance, trying to go as slow as possible, keeping the helicopter under control and level.[35]  However within about 30 seconds the helicopter struck something, presumably a tree, and crashed.[36] 

The instrument panel

  1. Mr Towers explained the instrument panel of his helicopter had no attitude indicator to guide him.  If it had had such an instrument he asserted:

“I would’ve immediately focussed on the horizon instrument – on the artificial horizon attitude indicator.  I would’ve full powered and just gone up through the clouds and then did a slight turn to the south-east, which would take me over the top of the low level area at Moro airstrip.”[37]

  1. Whether he could have done so is in dispute.

Jurisdiction

  1. An application to stay the plaintiff’s claim on the footing this court is an inappropriate forum was dismissed by Byrne J on 14 October 2010.[38] 
  2. There was no continuing issue as to this court’s jurisdiction to determine the matter.  The defendants have filed unconditional notices of intention to defend the proceeding and pursuant to Uniform Civil Procedure Rule 144(7) are therefore taken to have submitted to the jurisdiction of the court.

Applicable Law

  1. It is common ground the law to be applied in this case is the substantive law of Papua New Guinea.  The dual foundation for pleaded liability lies in both negligence and contract law.  It is common ground there is no relevant difference between the common law principles of negligence and breach of contract applicable in Papua New Guinea and Queensland. 

Cases to be considered separately

  1. The first defendant, Hevilift Ltd (“Hevilift”), admits it was Mr Towers’ employer.  However, both defendants deny the second defendant, Aviation Services Pty Ltd (“Aviation Services”), was Mr Towers’ employer.  It is convenient to deal in entirety with the case against Hevilift first. 

PART B: HEVILIFT’S LIABILITY

The issues

Introduction

  1. Mr Towers’ Third Further Amended Statement of Claim (“SOC”) pleads Hevilift owed a duty of care to him to take reasonable care to ensure his safety during the course of his duties as a helicopter pilot and to take reasonable steps to ensure a safe system of work (“the duty of care”).[39] 
  2. The duty of care is allegedly owed in negligence, by reason of Hevilift being Mr Towers’ employer, and in contract, as an implied term of Hevilift’s employment contract with Mr Towers.[40]  The existence of such a duty is not in dispute.  It is well established at common law that employers have both tortious and contractual obligations for the safety of their employees in performing their work.  The former, arising in negligence, derives from the employer’s non-delegable duty to employees to take reasonable care to ensure they are not exposed to risks which could affect their health or safety.[41]  The latter arises from an implied term of the employment contract to take reasonable care not to expose employees to unnecessary risks to their health or safety.[42] 
  3. In the context of the present case the real issue is not whether Hevilift owed Mr Towers a duty of care.  It is whether it breached that duty and whether the breach was a proximate cause of Mr Towers’ injuries.

The case against Hevilift

  1. The failures alleged in the SOC against Hevilift are apparently premised on the foreseeability of the risk, in circumstances of the kind typically prevailing at the time of the ill-fated flight, of unintended entry into or envelopment by cloud and the accompanying unplanned need to fly in cloud by reference to instruments.  As to the typically prevailing circumstances, Mr Towers’ case is that late in the afternoon in the mountainous regions of Papua New Guinea, which is when and where the ill-fated flight occurred, cloud can form and move very quickly, giving rise to a greater than ordinary risk of unintended entry into or envelopment by cloud.
  2. The failures alleged against Hevilift can be distilled to five alleged breaches of Hevilift’s duty of care, namely that Hevilift:
    1. failed to provide Mr Towers with a helicopter equipped for flight by reference to instruments, namely an attitude indicator, turn and slip indicator and turn co-ordinator, when flying in a region where there were conditions of the kind prevailing at the time of the ill-fated flight;[43]
    2. failed to advise Mr Towers against flying without such equipment in such circumstances;[44]
    3. failed to ensure Mr Towers was not dispatched to fly without such equipment in such circumstances;[45]
    4. failed to provide a safe system of work;[46]
    5. failed to adequately investigate risk.[47]
  3. It emerged during the case, from as early as the opening, that reliance was also being placed upon an arguably unpleaded breach, namely there was a failure to warn Mr Towers that late in the afternoon, in the mountainous region he was working in, cloud can form and move very quickly.[48]  However I accept that failure is sufficiently pleaded to constitute a potential foundation for liability in its own right.  It was an implicit part of the pleaded case in that the conditions to be warned of are the circumstances referred to in breaches (a), (b) and (c), such a warning is implicitly part of the advice alluded to in breach (b), knowledge of the need for it would flow from the adequate investigation alluded to in breach (e) and warning of it would form part of the system alluded to in breach (d). 
  4. As will be seen, much turns upon whether the potential speed of cloud formation and movement typical for the time of day and place in question is out of the ordinary.  If so, it is difficult to see how Hevilift’s duty of care to Mr Towers could be met by putting him to work as a pilot at that time in that place without warning him of that phenomenon.

Hevilift’s defence

  1. The essence of Hevilift’s case as pleaded in its amended Defence (“HDef”) is:
    1. Mr Towers was not a safe or competent pilot.[49]
    2. He falsely represented he was a safe and competent pilot, contrary to his contractual warranty, and would not have been employed had the representation not been made.[50]
    3. On the occasion in question cloud did not develop quickly or so quickly that a helicopter may have been unavoidably enveloped by it.[51]
    4. Mr Towers was forewarned Camp 57 was affected by fog and advised of an alternative landing site.[52]
    5. He knew or ought to have known he ought not fly where he knew he was likely to encounter fog.[53]
    6. Mr Towers failed to comply with visual flight rules by not keeping clear of cloud and flying into cloud near Camp 57.[54]
    7. He flew into cloud deliberately and in breach of visual flight rules.[55]
    8. PNG Civil Aviation Rules did not require the helicopter to have an attitude indicator, turn and slip indicator or turn co-ordinator.[56]
    9. Even if the helicopter did have those instruments Mr Towers would not have been able to use instruments to fly out of the cloud.[57]
    10. Mr Towers flight into cloud and thus the crash was caused by his negligence and breach of contract.[58]
  2. In the event Hevilift is adjudged negligent Hevilift pleads contributory negligence, that is, that Mr Towers’ own negligence caused or materially contributed to the accident and damages sustained.[59]  Hevilift also pleads a set-off though its quantum was not ventilated in the confined exercise of trying liability.

Topics for consideration

  1. Determination of the issues in the case against Hevilift may be progressed through consideration of the following topics:
    1. Whether Mr Towers misrepresented his competency and safety.
    2. The risk of unintentional envelopment by cloud.
    3. Hevilift’s training and equipping of Mr Towers.
    4. Whether Mr Towers’ helicopter should have been equipped with the instruments.
    5. The nature and extent of the forewarning that Camp 57 was affected by fog.
    6. How Mr Towers came to be enveloped by cloud.
    7. Whether Mr Towers would have flown free of cloud with instruments.
    8. Conclusions as to liability.

Whether Mr Towers misrepresented his competency and safety

Mr Towers’ early flying experience

  1. Mr Towers, who was born in 1950, spent part of his childhood in Papua New Guinea.  He became involved in the flying of fixed-wing aircraft and parachuting in his late teens. 
  2. He obtained a private licence in respect of single-engine land fixed-wing aircraft in 1966 or 1967 and his licence was endorsed in respect of two-engine fixed-wing aeroplanes in 1970.[60]  He was granted a first class multi-engine instrument rating all aids in 1972.[61]  The description “all aids” is a reference to use of an aircraft’s instruments to navigate in conditions of poor visibility.

Fatal parachuting incident 1974

  1. There was a lengthy interruption to Mr Towers’ flying career after a fatal parachuting incident in December 1974 at night involving a plane flown by him at Rylstone, where the Australian National Parachuting Championships were conducted.  As a result of that incident his Australian flying licence was not renewed in 1976.[62]  The defendants resorted to leading evidence of this ancient incident at trial for the general purpose of trying to cultivate an impression Mr Towers had a maverick attitude to safety and the specific purpose of demonstrating his representation that he was a safe and competent pilot when seeking employment with Hevilift was false.
  2. The aircraft accident investigation summary report[63] of the incident reveals that Mr Towers piloted a light aircraft at night carrying a passenger, an approved parachuting supervisor, Mr Graeme Windsor, and two parachutists, who it transpires were affected by alcohol.  The parachutists jumped from the plane and fell to their death.  When found, markings showed the parachutists’ hands were linked and they were facing the ground at impact.  Their parachutes were working but had not been operated, presumably because of impaired perception about the proximity of the earth.  Their blood alcohol levels exceeded 0.1 grams per 100 millilitres.  The investigation report was critical of Mr Windsor’s failure to ensure a variety of regulations were not observed.  However it also criticised Mr Towers’ night flight for not complying with the requirements of an air navigation regulation, Rylstone aerodrome not being equipped with the required lighting for aircraft operations at night.  Also the presence of a passenger did not comply with the requirements of air navigation orders and the passenger did not occupy a seat or wear a safety harness or seat belt, contrary to the requirements of air navigation orders.  The report did not suggest that any of Mr Towers’ regulatory non-compliances were themselves the cause of the parachutists’ death.  Nor did the report suggest Mr Towers was aware the parachutists were adversely affected by alcohol.  When asked about this incident at the present trial, Mr Towers, who was not the parachutists’ supervisor, testified he had not been aware the parachutists were intoxicated.[64]
  3. At the time of this incident, over 30 years before the crash with which the court is now concerned, Mr Towers would have been only 24 years old.  Ironically, the defendants’ helicopter expert, Mr Peter Crook, was only 29 years old when in 1974 he too was involved in an aviation incident when he flew his helicopter in unsafe proximity to a barge and it crashed into water and its blades hit the side of the barge causing injury to a worker.[65]  It was not seriously suggested Mr Crook’s isolated mistake, long ago, was of any relevance other than illustrating young people sometimes make mistakes, even in the helicopter industry.[66]
  4. Mr Towers’ 1974 incident was equally irrelevant.  The incident was long ago, was unlike the present matter and there was no evidence of a pattern of non-compliance with aviation regulations in the interim.  It fell well short of meeting the purposes for which it was lead.

Continuation of flying career

  1. Mr Towers was eventually permitted to re-sit for an aircraft licence in 1989 when he was granted an instrument rating for fixed-wing aircraft.[67]  He acquired a private pilot helicopter licence and a commercial pilot helicopter licence in 1990.[68]  In the same year he received an instrument rating for helicopters for “night VFR”.  In 1991 he was also issued a commercial pilot aeroplane licence and in 1992 he gained his air transport pilot aeroplane licence,[69] for which he needed to have logged 1,000 hours’ flying time. 
  2. Mr Towers was not ever rated to fly IFR in a helicopter.  However his night VFR training would have included some reference to instruments such as an attitude indicator,[70] turn and slip indicator and turn co-ordinator.[71]  Further his night VFR training would have required use of an attitude indicator, including for recovery from unusual attitudes.[72]  He would also have had to know about and use instruments for fixed wing aircraft flight in IFR, for which he was licensed.
  3. In 1993 or 1994 he achieved his senior commercial airline transport pilot licence helicopter.[73]  Thereafter he worked as a helicopter pilot in Australia doing joy flights, crop work, work for the TV industry, fire-fighting work[74] and work in the mining industry.[75]

Rejection by Helicopters (Australia) Pty Ltd

  1. In 2004 Mr Towers sought employment with Helicopters (Australia) Pty Ltd, which would have involved the stressful work of flying helicopters out to sea, doing sea pilot transfers.  He explained that, when tested, the company’s check pilot considered he needed more time and the proposed employment did not proceed.[76]
  2. Once again the defendants sought to attach much greater significance to this event than was warranted.  Hevilift pleaded:

“7D.3the plaintiff’s employment as a helicopter pilot with Helicopters (Australia) Pty Ltd … was terminated by letter of 11 August 2004 which provided that “…due to a lack of demonstrated fundamental flying technique you would potentially place our aircraft, client and yourself into compromising situations that may lead to a serious incident or worse still an accident”.”

  1. The pleading is literally correct but is misleading without context.[77]  In fact Mr Towers’ employment with Helicopters (Australia) Pty Ltd was expressly premised on what was described as a “condition precedent” in his offer of employment,[78] stipulating that the offer was subject to Mr Towers “being successfully checked to line by … check and training staff”.[79]  The contract also contained a clause stipulating that Mr Towers would initially be engaged on the basis of a three month probationary period during which his employer had the right to terminate his employment for any reason without explanation.  The letter of 11 August 2004 commenced:

“It is with deep regret that I have to inform you that I have decided to terminate your employment with the company in accordance with a probationary clause of your AWA with a probationary clause…and the condition precedent in your offer of employment.”

  1. The reasons given were:

“The marine pilot transfer task is a difficult one, especially the night operations, which requires all air crew involved to be at a very high standard of competency to ensure the safety of themselves and the client.  The induction program we utilise is designed to provide additional task related training to competent pilots to give them the knowledge required for the specific aspects of this operation.  We expect pilots joining us to demonstrate that they have the necessary skills and experience to fly the aircraft safely, without need for further training.

We require inductees to be checked to an ICUS position after the check and training captain has completed five to 10 hours of flying training.  In your case I have been advised you are not ready for that step.

The comments made by both of our training captains in their reports on your induction progress have led me to believe that due to a lack of demonstrated fundamental flying technique you would potentially place our aircraft, client and yourself into compromising situations that may lead to a serious incident or worse still an accident.

The reasons for my concern were explained to you during our meeting of the 9th August 2004, at which time you were also shown all the performance reports raised at that time.  As a result of those reports and in effort to ensure you had the best chance of success I offered a further flight test but this time with our chief pilot.  I made it clear that if the chief pilot’s report was unfavourable I would be discontinuing the probation and terminating your services.  You elected to take us up on this offer and after giving you a day to prepare for the test it was conducted on the 11th August 2004.

Unfortunately the report back from the chief pilot which you have sighted concurs with the earlier reports, and as a result I regrettably have no choice but to terminate your employment with Helicopters (Australia) Pty Ltd.”[80]

  1. It is quite plain from those reasons that Mr Towers’ employment was “terminated” because he was unable to meet the condition precedent of his employment that he be successfully checked to line by his employer’s check and training staff.  While, as a matter of semantics, his employer used the word “terminate”, the practical reality is that Mr Towers’ employment with Helicopters (Australia) Pty Ltd was always conditional upon him successfully completing induction, an induction specifically calculated at ensuring that Mr Towers had the special skills required before proceeding with his employment. 
  2. The references in the letter of 11 August 2004 to “a lack of demonstrated fundamental flying technique” and the potential for a serious incident or accident were in the context of assessing Mr Towers’ ability to fly a helicopter with precision to locations at sea, including at night, so as to transfer marine pilots.[81]  This is a fundamentally different and more demanding activity than the flight by day to land based locations required of Mr Towers for his employment with Hevilift. 
  3. Mr Towers did not volunteer to Hevilift information about his inability to satisfy the condition precedent for employment with Helicopters (Australia) Pty Ltd.  That is unremarkable.  The jobs are so different that Mr Towers’ lack of skill for the purpose of employment with Helicopters (Australia) Pty Ltd did not equate to a lack of skill for employment by Hevilift.  That he did not have the skill required for employment with Helicopters (Australia) Pty Ltd was an irrelevancy rather than a misrepresentation by omission in the context of him representing he was a safe and competent when applying for employment with Hevilift.

Failed instrument flight test

  1. Mr Towers suffered a further setback in October of 2005 when he sought his instrument rating qualification to fly helicopters under IFR, with Kestrel Aviation College Pty Ltd (“Kestrel”).  He did 20 hours’ IFR training, but failed the requisite flight test.[82]
  2. The defendants also pursued topic this at length,[83] exploring Mr Towers’ performance during his flight test and earlier training, for which there were simulator session records.[84]  In summary, despite a focus during training on improving his instrument scanning capacity, Mr Towers could not achieve the degree of precision required for IFR testing, testing which requires the maintenance of a specifically designated flight path, including approach descent to within a short distance of landing at a specific location, through the use of instruments only.[85]  His trainer, Mr Rex Booth, did not consider Mr Towers was ready to sit his eventual flight test.[86]  However Mr Towers understood the operation of the instruments and had made good progress and Mr Booth felt with more sessions Mr Towers would overcome his scanning and tracking problems.[87]
  3. Mr Towers did not pass the flight test.  He claimed that was because of an autopilot failure.  Mr Ray Cronin, who conducted the test, could not recall such a problem[88] and explained if there had been such a failure he would have performed the autopilot role.[89]  It is inherently implausible there was any equipment malfunction of such an extent as to compromise the fairness of the test but which was ignored by the examiner.  Further, the difficulties Mr Towers exhibited in testing were consistent with the standard of his performances in the simulator sessions.
  4. Mr Towers’ performance in the flight test is of obvious relevance to the discussion below about whether he could have flown clear of cloud with the aid of instruments.  In the present context though it needs to be borne in mind this was not a test for a qualification required by Hevilift.
  5. The defendants went so far as to highlight Mr Towers’ flight logbooks presented to Hevilift included reference to his instrument rating run with Ray Cronin on 26 October 2005[90] but did not tell them that was a test which he had failed.[91]  However, a rating permitting Mr Towers to fly IFR was not required for his employment with Hevilift.  It could not have been a misrepresentation by omission to fail to tell his prospective employer about the fact that he had failed to achieve a competency level which was not required by his employer.  Moreover there is no evidence that he misrepresented his standard of competency by claiming to his prospective employers that he had the competency required for an instrument rating qualifying him to fly a helicopter under IFR.

Misrepresentation re PNG flight experience?

  1. In Mr Towers’ contract of employment with Hevilift he acknowledged at clause 2.6 that Hevilift required him to possess the skills required for the proper performance of his duties and to maintain all necessary qualifications for the position.  More particularly he warranted at clause 2.7 that the resume he submitted at the time of his application for employment and all statements made in support of his application were true and correct and that Hevilift relied upon his stated skills and qualifications in employing him.[92]
  2. Mr Towers’ aviation qualification and experience were accurately represented in the resume he provided to Hevilift in seeking and gaining employment.[93]  However, in addition to the information in the resume, Hevilift pleads:

“7A.2.  in the course of training with the first defendant’s chief pilot, Trevor Pook and with Alan Dodds, at Mount Hagan Papua New Guinea, the plaintiff represented that he was an experienced, safe and competent fixed wing and rotary wing pilot, having a total flying time of 5,995 hours in fixed wing aircraft and 2,885 hours in rotary wing aircraft with extensive experience including experience flying in Papua New Guinea, experience in remote location mining exploration and having successfully conducted an Antarctic tour between December 2004 and March 2005 …” (emphasis added)

  1. Hevilift further pleads this was a false representation in that:

“7D.5.  the plaintiff, whilst having some fixed wing experience in Papua New Guinea, had no or no significant prior rotary wing experience in Papua New Guinea.”

  1. This topic was not the subject of any material oral testimony or exhibit.  In support of its allegation of misrepresentation Hevilift relies upon an admission in the Further Amended Reply to the Defence of the first defendant, namely:

“7A.13  Admits the plaintiff had no significant prior rotary wing experience in Papua New Guinea as alleged in paragraph 7D.5.” 

  1. However this is not a concession that the representation alleged at paragraph 7A.2 of the Amended Defence of the first defendant was a misrepresentation.  That representation, in so far as it related to Mr Towers’ Papua New Guinea flying experience, merely referred to the fact that he had experience flying in Papua New Guinea.  It did not specify whether that experience was in fixed wing or rotary wing aircraft.  No evidence was led to suggest in the context of making this representation Mr Towers had implied it related to rotary wing aircraft and such an implication does not flow from the pleaded representation, which related to Mr Towers’ overall fixed wing and rotary wing experience.  For completeness, such fleeting evidence as there was on the topic of Mr Towers’ earlier piloting experience in Papua New Guinea alluded to Mr Towers flying fixed wing aircraft over the Owen Stanley Ranges[94] – a form of flight and a geographical location well removed from that with which the present case is concerned. It was certainly not suggested that experience ought have equipped him with any special knowledge relevant here.

Miscellaneous competency issues

  1. This dispenses with the pleaded allegations of misrepresentation but it is convenient to deal with some credit issues about competency ventilated by the defendants.  The defendants highlighted that in an affidavit sworn for this proceeding 23 July 2009 Mr Towers deposed:

“I am a qualified helicopter pilot.  I am qualified to fly helicopters equipped with full instrumentation for night visual meteorological conditions (VMC) which is a class 4 instrument rating.  I completed the full training to meet the requirements of the class 1 instrument rating (helicopter), however require a practical examination to obtain my full qualifications.”[95]

  1. It was misleading for Mr Towers to depose to having completed full training to meet the requirements of a class 1 instrument rating (helicopter) and in effect only requiring a practical examination to obtain the qualification in circumstances where the training he did with Kestrel did not allow him to meet the requirements of a class 1 instrument rating because he failed the practical examination for that rating.[96]  That is to be borne in mind in considering Mr Towers’ credibility and reliability as a witness but it is not evidence of him having misrepresented his aviation qualifications and experience to Hevilift.
  2. In trying to cast Mr Towers’ performance as a pilot after being employed by Hevilift as incompetent the defendants alleged there was an incident about a week before the crash when Mr Towers allegedly flew into cloud and narrowly missed the control tower at Camp 57.  Such an incident was denied by Mr Towers.[97]  The only other apparently relevant witness on the point, Mr Kym Moyle, the aviation co-ordinator for Oil Search,[98] did not provide evidence of such an incident.[99] 
  3. Mr Towers was also cross-examined about a conversation with Moyle about nine or 10 days prior to the crash in which Mr Moyle allegedly asked Mr Towers about the supposed practice of taking off from Camp 810 and dropping quickly downwards rather than steadily rising, however Mr Towers had no recollection of such conversation.[100]  In any event, when Kym Moyle gave evidence for the defendants on the topic he said a few weeks before the crash he asked if Mr Towers needed to peel off downwards on take-off from Camp 810 and Mr Towers responded he did so to gain transitional lift speed.[101]  No evidence was led that this was an inappropriate or unsafe method of departing Camp 810.

The risk of unintentional envelopment by cloud

  1. Before turning to Hevilift’s training and equipping of Mr Towers it is relevant to first consider whether the speed of cloud movement and formation at the time of day and location in question, and thus the risk of unintentional envelopment by cloud, was out of the ordinary. 

Meteorological evidence

  1. The plaintiff adduced expert evidence from meteorologist Russel Morison.  His report tabulated data from Erave Airport, 50 kilometres south of the accident site, Moro Airport, 28 kilometres south-east of the accident site and Tari Airport, 43 kilometres north of the accident site.  That data showed the accident site was within a region of high temperatures, high humidity and very high rainfall.[102]  Such conditions are common in the Southern Highlands of Papua New Guinea which has mountainous topography and is uniquely placed in two rainfall convergence zones.[103]  Those zones are the Walker circulation, drawing moisture from across the Pacific Ocean, and the Hadley Cell or Intertropical Convergence Zone, drawing moisture from both sides of the Equator.[104]  Their unique influence is a factor of significance returned to below.
  2. Mr Morison’s report tabulated topography information, noting the accident site was within a region of peaks and ridges with very steep gradients and significant heights above sea level.[105]
  3. He performed a climate forecast system re-analysis, assimilating meteorological information gathered by satellite, in order to represent weather conditions in the area of the accident scene on the day of the accident.  In that area, between 3 pm and 6 pm, the specific humidity was not changing rapidly and the near surface winds in the region were light.  However, the temperature was decreasing and consequently the relative humidity was increasing.[106]  According to the re-analysis, at about 3 pm the relative humidity in the area was between about 60 and 70 per cent, at 4 pm the relative humidity was between about 70 and 80 per cent and at 5 pm the relative humidity was about 95 per cent.[107]  Mr Morison acknowledged the re-analysis modelling was not exact for precise locations.[108]  He expected for areas of higher topography the model would understate the real relative humidity.[109]  He testified, for example, that the relative humidity at 5 pm at the accident site may actually have been higher than 95 per cent because of the steep topography in the area.[110]
  4. Mr Morison explained that because both temperature and pressure decrease as one rises higher up a peak, the relative humidity will increase until condensation occurs.  Cloud will either form or the air will become supersaturated, such that relative humidity may actually exceed 100 per cent.  In the latter situation any perturbation, that is, movement of air, may instigate the formation of cloud droplets.[111]  Such droplets can disperse, acting as condensation nuclei, potentially resulting in the rapid formation of cloud.[112] 
  5. Mr Morison explained perturbation resulting in cloud formation can occur naturally with air movement, especially if it is moving in the vertical.[113]  He said orographic or topographic cloud was a classic example of this.  He explained lay observers may see such cloud as stationary cloud pocketed against a mountainous ridge.  In fact such cloud is resulting from rapid air movement so that in reality it is cloud rapidly forming on one edge and rapidly disappearing on the other, such that cloud is forming almost instantaneously as the air moves vertically over the particular topography.[114]
  6. Mr Morison opined that the steep topography and high temperatures, rainfall and humidity of the Papua New Guinea Southern Highlands were particularly conducive to the fast formation of cloud.  He explained:

“In the steep topography of the Southern Highlands of Papua New Guinea, in the late afternoon when the temperature is dropping, the relative humidity is approaching 100 per cent and air is moving vertically up or down the steep topography, it is very easy for cloud water droplets to suddenly form, and hence have a rapid onset of cloud…”[115]

  1. He explained that by “rapid” he meant “tens of seconds”[116] and he opined the onset of dense cloud in such conditions can occur “very quickly”[117] and cloud formation “can almost appear instantaneous”.[118]  He acknowledged that in a still environment when temperature change is slow it ordinarily takes minutes for clouds to form into dense cloud as temperature cools causing a rise in humidity.[119]  However the point well explained by his evidence is that perturbation by vertical air movement caused in steep topography in the late afternoon as temperature drops in a region of already very high specific humidity may result in the very quick formation of dense cloud.[120] 
  2. The fast speed with which cloud may form in this way in the Southern Highlands of Papua New Guinea is out of the ordinary compared to almost anywhere else in the world by reason of the unique influence of the two rainfall convergence zones in this region of steep topography.[121]  This is information of obvious significance to pilots and businesses operating helicopters in this region, particularly in the late afternoon.
  3. In addition to the natural onset of sudden cloud formation Mr Morison explained helicopter rotors may also cause or contribute to sudden cloud formation.  He opined that if a helicopter is near the canopy, horizontally or vertically, the air disturbance caused by its rotors can cause air from below the canopy to mix with air above the canopy, lowering temperature and, if the relative humidity is already nearing 100 per cent, cause cloud to form.[122]  Thus the rotors can provide perturbation, just as nature does, tipping supersaturated air into cloud.
  4. Mr Morison also explained helicopter rotors move a large volume of air in order to maintain higher pressure below the rotors and higher pressure above, which, as a matter of physics, generates lift.  He explained the lower pressure above the rotors can result in a rapid change in relative humidity to above 100 per cent, thus generating the formation of water droplets.  When that air and water droplets in it are forced below the helicopter it mixes with surrounding air, dispersing the droplets which act as condensation nuclei and cloud may form.[123]
  5. Mr Morison explained that when a helicopter’s rotors cause cloud to form, the cloud might only occur briefly and then be pushed away by the blades[124] or might be more long-lasting depending on the environment, including interaction with the canopy.[125]
  6. Importantly Mr Morison opined rotor instigated cloud formation can only cause white-out conditions around the helicopter if the helicopter is moving slowly.[126]  A helicopter travelling fairly quickly would fly out of any cloud it is forming.[127]  While reluctant to define the relevant speed, because of the variable conditions involved,[128] Mr Morison agreed a helicopter travelling at 65 knots would leave the cloud behind and expected a helicopter travelling at 35 knots would probably leave the cloud behind.[129]  He rejected the notion a helicopter would have to be stationary only in order to be enveloped by cloud it was forming[130] but acknowledged a helicopter would have to be moving “fairly” or “very” slowly for the air forming cloud, pushing out in front of the helicopter, to be travelling faster than the helicopter so that rotor instigated cloud continues to envelope the moving helicopter.[131]
  7. Mr Morison’s scientific meteorological background, which included work for NASA and the Sydney Airport Meteorological Unit, equipped him to explain how, as a matter of physics, helicopter rotor blades may generate cloud in conditions of high relative humidity.[132]  His theoretical reasoning on that topic was not challenged.  However it was emphasised in cross-examination that his opinions as to the movement of helicopter rotor blades potentially causing cloud did not derive from any direct experience or knowledge of studies of the phenomenon.[133]  Indeed no evidence was led of any published reporting of the phenomenon, let alone its frequency or probability.  This suggests it is not much experienced in aviation, particularly to the degree that it causes complete lack of visibility.  Moreover Mr Towers volunteered that in his view his rotor blades had not been the cause of the white-out around him.[134]  I give little weight to Mr Towers’ opinion about that, because he had no forewarning that cloud would so quickly envelope his helicopter and is therefore not well placed to know by what mechanism it happened.  However on the whole of the evidence it is more likely the cloud in which the helicopter became enveloped resulted from natural rather than man-made perturbation of heavily water saturated air.
  8. The point of material significance arising out of Mr Morison’s evidence then is that at the time of the accident Mr Towers was operating the helicopter at a location and time at which cloud could form at an out of the ordinary speed, thus heightening the prospect of an aircraft being enveloped in cloud without any intention on the pilot’s part of that occurring.  It is of course a matter of ordinary human knowledge and experience that the incidence and speed of cloud formation is generally higher in mountainous than flat terrain.  However the effect of Mr Morison’s evidence is that in the late afternoon in the Southern Highlands of Papua New Guinea there is a materially higher prospect than is ordinary for mountainous terrain of cloud forming extremely quickly.
  9. The area within the Papua New Guinea Southern Highlands in which the effects of that phenomenon are relevant in this case is the general region or locale in which Camp 57 was located.  That is therefore the location upon which these reasons will particularly centre in considering the relevance of the phenomenon and what Hevilift should have done about it. 

Experience of other witnesses

  1. The plaintiff called Timothy Joyce, a pilot and aviation company manager, who had experience in piloting helicopters in mountainous regions of Papua New Guinea in the 1980s and 1990s.
  2. Mr Joyce was asked about his observations of weather and cloud in his experience of flying in the Highlands in the vicinity of the Moro region and said it was prone to very quick cloud formation.[135]  He explained that in the afternoon cloud would generally build up.  He explained he had been close to being caught out on a number of occasions when “white out” occurred “very, very quickly”.[136]  When asked how long he meant by “very quickly” he said:

“Look, … often no more than a minute.  Another phenomenon sometimes, especially if there’s a breeze, is you – you can get cloud forming as it – as it comes up – up a slope.  And that can form – you know as it rises it cools and can form, you know, almost – almost immediately, and also dissipate extremely quickly as well.  You know, sometimes you might be flying towards a gap and the gap’s closed, and you’ll keep going and suddenly it will be open and you’ll have … a window to get through.  And sometimes you can see it’s clear, and by the time you get there it’s closed in.”[137]

  1. He said he had not experienced such rapidity of the formation of white out anywhere else.  He gave evidence that on his recollection there were two or three occasions when he found himself inadvertently in cloud without having intended to fly in it.[138]  This is known in the aviation industry as “inadvertent IMC”.  He explained that he would have to manage problems with cloud at least 60% of the time that he flew in Papua New Guinea and felt he was handling that challenge better by the second era when he flew in Papua New Guinea.[139]
  2. He observed the phenomenon of very quick cloud formation in Papua New Guinea, occurred most particularly over rainforest jungle areas at altitude.[140]  He said:

“I came to realise that if you see the cloud starting to form in the top of the trees, you know the dew point and the temperature were almost matched, and the situation was right for the whole area to become basically a white out or turned to fog which, of course, is low cloud.”[141]

  1. The defendants cross-examined Mr Joyce about an occasion in Burma in early 1992 when he was a member of the Australian Parachuting team and parachuted out of a helicopter, resulting in his termination of employment with the company he was working for in Burma.   That evidence was evidently led as relevant to credit, as was the fact Mr Joyce knew of Mr Towers and was vaguely acquainted with him.   Neither consideration raises any material concern as to his credibility.  He presented as a reliable witness, prepared to make reasonable concessions.
  2. Mr Alan Dodds of Hevilift testified that in his many hours of flying helicopters in Papua New Guinea, which included flying in the vicinity of but not routinely into Camp 57,[142] he had never unintentionally entered or been enveloped by cloud.[143]  Curiously, Mr Dodds, who acknowledged he was familiar with the concept of inadvertent IMC[144] maintained pilots could not go IMC inadvertently.[145]  His reluctance to concede pilots can inadvertently become enveloped in cloud was also at odds with the fact Hevilift’s multi-engine crews, under Hevilift’s contract with an entity called Exxon, have for the last six years done training for exiting from inadvertent IMC.[146]  Mr Dodds reluctance to concede the obvious in this context detracted from his credibility.
  3. Mr Peter Crook, an expert pilot called by the defendants, testified the concept of inadvertent IMC had been acknowledged in the aviation industry for longer than 20 years.[147]  He accepted cloud can form very rapidly in the Moro district of Papua New Guinea, indeed he said it can form rapidly in “a lot” of locations in Papua New Guinea.[148]  He was obviously determined not to concede Papua New Guinea was unique in the speed with which cloud forms there.  For instance he pointed out, non-responsively, that there are places in Australia where cloud can form just as quickly as in Papua New Guinea.[149]  However even he conceded new pilots to Papua New Guinea should be told “cloud can form rapidly here”.[150]
  4. Mr Kym Moyle, the aviation co-ordinator for Oil Search, the entity whose workers Hevilift would transport in the region, had been staying at Camp 57 for a couple of months prior to the crash and had also stayed there for a period in the preceding year.[151]  He noticed while there that cloud could descend really quite quickly in that area.[152]  Mr Moyle agreed in cross-examination that at Camp 57 fog could come in very quickly so that it could change from being clear to fogged in within 60 seconds.[153] 
  5. Mr Shane Schofield, one of Oil Search’s site construction managers who lived at Camp 57 and was present there at the time of the crash, gave evidence of a transition from clear to foggy conditions on the ground at Camp 57 on the afternoon in question.  As discussed further below he said:

“[I]t changes very very quickly on that hill as we saw in the – in the six or seven months we lived there.” (emphasis added)[154]

  1. It is tolerably clear that in making that comment Mr Schofield, a witness called by the defendants, was describing how quickly conditions could transition from clear to foggy on the hill where Camp 57 was located.  If that was apparent to someone residing at Camp 57, then it ought to have been apparent to Hevilift, a helicopter company regularly flying in and out of Camp 57. 

Managing the degree of risk

  1. The upshot of the admittedly varied evidence of those with first-hand experience is that none of it occasioned doubt about, and some of it positively supported, the evidence of Mr Morison.  I am satisfied that the speed with which cloud may form in the late afternoon, in the region in which Mr Towers flew, is out of the ordinary compared to what pilots would ordinarily experience flying in the mountainous terrain of other countries in the world.  It is a phenomenon that foreseeably heightens the risk of inadvertent IMC. 
  2. The position taken by a number of the defendants’ witnesses was that steering clear of cloud was an adequate means of avoiding inadvertent IMC.  As much seems to be common sense in locales where clouds form and move at a speed that can be visibly anticipated.  This was an area where at the time of day of the accident there was a risk cloud could form so rapidly as to envelope a helicopter being flown in the vicinity by a pilot doing his or her conscientious best to avoid flying into cloud. 
  3. The defendants argued, relying in particular upon Koehler v Cerebos (Australia) Ltd,[155]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.[156]  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.   
  4. 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.  Indeed its Accident and Incident Occurrence Report to the Civil Aviation Authority of Papua New Guinea, signed by its Chief Executive Officer Mr Booij, alluded to a causal element of the crash being “the rapid and changeable weather patterns in this area”.[158]   Mr Booij was present in court but was not called to counter the apparently reasonable inference that Hevilift was or should have been aware 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. 
  5. Given the significance of weather to the operation of a helicopter flight business, it was incumbent upon Hevilift, if acting with reasonable care for the safety of its pilots, to investigate and ascertain the risks posed to its pilots by local weather conditions and patterns and to have safe work systems which managed those risks.  There was no evidence of any such investigation into or systemic approach to managing the above-mentioned phenomenon and risk.  I find if acting with reasonable care for the safety of its pilots Hevilift should have learnt of, and at the very least should have warned Mr Towers of, the above-mentioned phenomenon and risk. 
  6. 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. 
  7. There was no such system of monitoring and flight prohibition and diversion in the present case.  I will soon discuss a radio transmission by Mr Moyle to Mr Towers informing him of the reported presence of fog at Camp 57 shortly before the crash.  The fact that such a transmission actually occurred in this case sadly demonstrates the ease with which Hevilift could have had such a monitoring and flight prohibition and diversion system in place.  If it did, such a system would likely have resulted in a specific instruction, at or before the time of Mr Moyle’s transmission, prohibiting Mr Towers from proceeding to Camp 57 and diverting him elsewhere.  It is an instruction I find Mr Towers would likely have complied with, particularly if he had been warned of the above-mentioned phenomenon and risk, with the result the crash would not have occurred. 
  8. Before departing from these conclusions, I record I am fortified having in any event arrived at them, by the conspicuous absence of any evidence from a representative of Hevilift suggesting it did not know or ought not have known of the above-mentioned phenomenon and risk or ought not or could not have warned Mr Towers of it or could not practicably have instituted the above-mentioned system of monitoring and flight prohibition and diversion.[159]

Hevilift’s training and equipping of Mr Towers

  1. A striking feature of such evidence as was advanced by the defendants about Mr Towers’ training, was that there was no evidence Mr Towers was warned cloud could form at out of the ordinary speed in the late afternoon in the region he would be working in. 
  2. From about 16 February 2006 to 1 March 2006 Mr Towers received induction and training from Hevilift with most of the training being delivered by Mr Dodds and another pilot Mr Trevor Bock also assisting from time to time.  Mr Towers’ flight log records flights in which he was pilot-in-command, but either Mr Dodds or Mr Bock were present, occurring on 24, 25 and 26 February 2006 and 1 March 2006.[160]  The log contains a certification by Mr Dodds on 2 March 2006 certifying that Mr Towers had satisfactorily met the training requirements of Civil Aviation Rules part 135.605 “to conduct VFR operations”.[161]  Mr Towers’ understanding was that Hevilift only operated under daylight VFR.[162]
  3. When he started induction Mr Towers was required to familiarise himself with a variety of documents, however there was only shared access to the Hevilift operations manual.[163]  An induction checklist completed by Mr Dodds was ticked in such a way as to indicate that the various induction assessments and reviews listed had been carried out.[164]  This included an American computer tutorial training system in which the topic of weather was included.  However no evidence was led as to the substance of the computer training system on the topic of weather other than that it explained general meteorological information about fronts, fog formation and cloud build-up.[165]
  4. The induction checklist also referred to a resource management review video[166] which Mr Dodds explained went to making correct decisions such as:

“[D]o you have enough fuel, how heavy are you, what’s the weather, do I turn back, do I go.”[167]

However that video, which could be in Hevilift’s archives container in Mount Hagen, was not produced at trial.[168]

  1. Hevilift’s induction and training documents included a proforma document recording an “area/familiarisation check” which recorded, inter alia, Mr Towers’ satisfactory completion of exercises related to “above 8,000”, “Highlands”, “weather patterns/” and “bad weather procedures” and “terrain/landmarks”.[169]  Again there was little evidence of what the substance of those exercises involved.  On the specific topic of “Bad weather procedures” Mr Dodds could not recall what instruction he had given to Mr Towers[170] but in an apparent reference to what he ordinarily would have instructed he testified:

“We go out of our way to tell them that if ever you’re in bad weather or if ever you’re running low on fuel or you’re stuck somewhere, put the thing on the ground.  We can always run a drum of fuel out to you.  That’s not a problem and it quite clearly states that you can safely land a helicopter on an unprepared surface.”[171]

  1. He went on to say of this feature of the training:

“[I]t’s a discussion where – because in our ops manual there is a section there on bad weather procedures and it’s just a discussion; we go through and just try and get it into them; don’t be scared to turn around or don’t be scared to land the thing.”[172]

  1. It was highlighted in cross-examination that Mr Towers was certified proficient by Mr Bock, having satisfactorily reviewed Transport Canada tapes 1 and 6 and the HAI Situational Awareness tape and study manual which apparently included topics such as “causes of helicopter accidents”, “risk management” and “decision-making principles”.[173]  It was put to Mr Towers that one of the videos, none of which were put into evidence and may still be in Hevilift’s archives container in Mount Hagen,[174] involved a helicopter crashing because a VFR pilot had made an erroneous decision to fly into cloud.  Mr Towers could not recall that but acknowledged he had seen a lot of YouTube videos and American tapes “on inadvertent IMC as well as control flight into terrain, CFITs”.[175]  Further, he acknowledged it was made clear to him during training by both Mr Dodds and Mr Bock that in working for Hevilift he was to fly well clear of any cloud.[176]
  2. Such records as were tendered of Mr Towers’ induction process included a record of his apparently 100% correct answers to a multiple choice test based on study material described as “crew knowledge test” to meet the requirements of operations manual part C for which the study material was said to be “operations exposition, part A, B, D company safety manual”.[177]  Neither that study material or the questions asked in the test were tendered in evidence.  Mr Towers accepted the general proposition that he was given a great volume of information during induction and was required to go through the operations manuals and safety manuals to learn the correct answers asked of him in testing.[178]
  3. Another document recorded overall test results as part of the so called “computer training system (CTS) record” which testing was described as meeting “the requirements of the company operations manual part C, C5.4, 5.5, 5.6”.  This involved a process of an online tutorial and examination.[179]  The document records, inter alia, a pass mark of 85% for examination on general subjects including “weather”, with its sub-topics identified as being temperature and pressure, moisture, clouds, fronts, icing, thunderstorms and fog.[180]  Mr Towers passed the final weather exam with a mark of 85%.  Mr Towers explained the CTS exam was founded on the Canadian program, although it had information of generic world-wide relevance.[181]  The same document records Mr Towers’ 100% pass mark for the so called “final helicopter specific exam” which contained topics including “hazards of flight 1, 2”.  Mr Towers accepted his helicopter specific training and induction would have involved reference to the danger of controlled flight into terrain (“CFIT”).[182]
  4. The induction records confirm that, in addition to his induction including training in topics such as air law, operations manual and weather, Mr Towers also received training with respect to aircraft including the Bell 206.[183]
  5. The induction records include a pilot training summary document which contains remarks including:

“Due to the increase of new pilots into the company we are now spending more time on basic training to make sure that all new candidates are suitably qualified to undertake the tasks that will be assigned.  Bruce is a highly experienced FW and RW pilot.  He will be an asset to the company.”[184]

  1. The tendered induction records included a competency proficiency check pro forma in respect of a flight check on 24 February 2006, which document demonstrates Mr Towers was not tested for instrument procedures.[185]  A similar document for a check flight on 1 March 2006 was also tendered.[186]  The comments in both documents affirm Mr Towers’ capability for VFR operations.
  2. Mr Towers testified he was given no specific instruction about cloud or training in respect of flying in fog or white-out conditions.[187]  When he went to the Sisibia district on the second tour one of the company’s line pilots who was flying him around pointed out escape routes to him in the event that he was caught with cloud in some of the areas being flown in.[188]
  3. Mr Towers recalled having been shown a Hevilift operations manual prior to the accident but he could recall nothing in it dealing with forced landings due to weather.[189]  Hevilift did not, in the present proceeding, produce a copy of its operations manual current as at the date of the crash in 2006.  It did produce an operations manual styled “revision 1.1” and dated 8 August 2007, that is a revision current a year after the crash.  Mr Towers’ attention was drawn to the following passage therein:

“If, despite proper pre-flight planning, weather conditions prevent continued flight on track and neither diversion nor return is possible, a “precautionary landing” may then be preferable to continuing flight into conditions that stretch the limits of the pilot, aircraft or both.”[190]

  1. Mr Towers could not recall such an entry having been in the operations manual he had seen.[191]  He took a similar position when other extracts of Hevilift’s documents published after the crash date were put to him.[192]
  2. It was put to Mr Towers that the operations manual in which he was trained had a provision concerning flight preparation and planning.  Without accepting the content of the post-crash version was the same, Mr Towers did acknowledge there was an expectation there would be adherence to VFR and prior to flights forecasts should be obtained.[193]  Mr Towers appeared to accept the Hevilift documents in which he received training would have included a provision to the effect:

“Where en route the weather conditions are encountered that prevent the continuation of the planned track, that is, if VFR below the VMC, the pilot must be satisfied he has both the necessary fuel and necessary navigational capability for attempting an off-track diversion around weather…if in doubt turn around and go back.”[194]

  1. Two considerations adverse to Hevilift’s defence emerged from Hevilift’s adducing of evidence about Mr Towers’ induction and training with Hevilift and the documents produced in relation to that process.  First, despite the lack of evidence adduced on the detail of what Mr Towers was taught during his induction and training, it is clear that Hevilift satisfied itself from its induction and training of him that he was safe and competent to perform the work for which he was employed.  Mr Dodds properly conceded as much.[195]  This point provides further support for the conclusion already articulated above that Mr Towers did not misrepresent his competency to Hevilift. 
  2. Second, as already mentioned, Hevilift produced no document and adduced no evidence demonstrating that as part of Mr Towers’ induction and training, or subsequent to it, he was told of there being any out of the ordinary risk of rapid onset of naturally occurring cloud in the region and times of day in which he would be operating. 
  3. 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.[196]  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.  It was in breach of its duty of care in not so warning him.

Whether Mr Towers’ helicopter should have been equipped with the instruments

Viability of equipping with instruments

  1. The helicopter being flown by Mr Towers on the day of the crash did not have an attitude indicator, turn and slip indicator or turn co-ordinator.[197]  Mr Towers testified that the three or four other Bell Long Ranger helicopters in Hevilift’s fleet, which he flew in during his employment, did have full instrument panels, that is panels including an attitude indicator, turn and slip indicator and turn co-ordinator.[198]  Mr Dodds recalled that of the six to nine Bell Long Ranger helicopters then in the company’s fleet, three did not have such instruments.[199]  Mr Towers testified that the two other types of helicopters he was aware of in Hevilift’s fleet, larger Bell helicopters and some Russian helicopters, also had full instrument panels.[200]
  2. As earlier discussed, the plaintiff called Timothy Joyce, a pilot and aviation company manager.  He had experience in piloting helicopters in mountainous regions of Papua New Guinea in the 1980s with a company called Pacific Helicopters and between 1990 and 1992 for a company called Hevilift (PNG) Pty Ltd.[201]  Later, from about 1994 to about 1997, he was chief pilot for the latter company in its Australian operations, during which time he again did further flying in PNG including in the Highlands.[202]  His evidence was somewhat variable about whether that company’s name, in the sense of whether it was a proprietary limited company, was the same as between his first and second periods of employment, although his recollection was that the company of each era employed the same personnel and utilised the same aircraft and appeared to have the same operation in Papua New Guinea.  It was clear from the evidence of Mr Dodds of Hevilift that despite the changes in company name there had been continuity in that operating entity through to it operating as Hevilift.[203]
  3. Mr Joyce could not recall flying any helicopters of the company he understood to be Hevilift (PNG) Pty Ltd which did not have instruments including at least an artificial horizon, turn and slip and a directional indicator.[204]
  4. Mr Joyce estimated the cost of buying and installing basic flight instruments for IFR would be in the order of $10,000.[205]
  5. Mr Peter Crook, the defendants’ helicopter expert, whose evidence was touched on above, had a longstanding involvement in Bell Helicopter sales in Papua New Guinea.  He testified that early in his career in Papua New Guinea the majority of helicopters did not have attitude indicators, turn and slip indicators or turn co-ordinators.  However that changed over time so that the majority of helicopters he brought into Papua New Guinea and sold were fitted with such instruments.[206]  He explained that trend was the product of charter companies and private operators requiring such instruments because they wanted their aircraft to be able to fly night VFR and such instruments are required for that category of flight.[207]
  6. The upshot of all this evidence is that it was viable for Hevilift to have equipped Mr Towers with a helicopter with instruments including an attitude indicator, turn and slip indicator and turn co-ordinator, notwithstanding that such instruments are not required, at least by aviation rules, for flight under VFR.

The Experts

  1. There is divergence in the opinions of the two helicopter experts called in the case on the question of whether helicopters tasked to be flown under VFR ought be equipped with instruments required in IFR so as to assist a pilot needing to escape cloud inadvertently entered in the course of flight under VFR.
  2. Both experts are well qualified to express an opinion.  The plaintiff’s expert Mr Geoffrey Connolly is a consultant experimental test pilot and defence aviation consultant with over 10,000 flying hours since the commencement of his career in 1974.[208]  The defendants’ expert Mr Peter Crook is a provider of consulting and brokering services to the helicopter industry with 14,000 flying hours since the commencement of his career as a pilot in the late 1960s.[209]  Each has extensive military and civil aviation experience as helicopter pilots, instructors, instrument flight trainers and instrument rating testers or examiners. 
  3. Mr Crook has a particular interest in Bell helicopters in that he has long been a Bell helicopter approved demonstration pilot, has completed annual assessment and revalidation flights at the Bell Training Academy in Texas from 1994 to 2012, was involved in the customising and sales of Bell helicopters for over 20 years and for more than the last three years has been a member of the Bell Helicopter Advisory Council.  He has around 2,600 flying hours on the Bell 206 series, as well as 500 hours on the Bell 407, which is a variant of the 206L.  While Mr Connolly does not share the same special history vis-a-vis Bell helicopters, he does have about 600 flying hours on Bell 206 series helicopters including about 100 hours on Bell 206L variants.  In any event the desirability or otherwise of IFR instruments being available to pilots flying VFR does not turn on the make or model of helicopter.
  4. Mr Connolly, a United Kingdom based pilot, has flying experience abroad but not in Papua New Guinea.  Mr Crook’s career history included a period as chief pilot of a helicopter company operating in Papua New Guinea throughout the 1970s and much of the 1980s, during which he accumulated around 5,000 hours’ flying time.  This allowed Mr Crook to speak of his own experience of Papua New Guinea’s meteorological conditions, as discussed earlier.

Should IFR instruments be available for VFR flight, in case of emergency?

  1. The plaintiff’s Mr Connolly opined that in the event a pilot encounters a degraded visual environment (“DVE”) such that pitch and roll attitudes cannot be maintained by using visual references only, then flight instruments should be used to maintain the required attitude.[210]  Mr Connolly notes such an environment will not necessarily be restricted to IMC, such as flight in cloud, and can also occur at night or over sea, whenever the contrast between air and surface becomes poorly defined and the natural horizon is indefinable.[211] 
  2. In Europe all pilots must, as part of a type rating revalidation or renewal test, demonstrate their ability to fly an escape manoeuvre following simulated inadvertent entry into cloud.  That manoeuvre involves a 180 degree level turn in each direction by sole reference to flight instruments.  Mr Connolly explained:

“The underlying philosophy is that even though a pilot may only be flying in visual conditions, and may be flying an aircraft not approved for flight in IMC, there is always a risk of inadvertent flight in DVE/IMC, and that appropriate training should be given.”[212]  (emphasis added)

Thus in Europe, even for the issue of a licence without instrument flight privileges, the testing contains an instrument section with simple manoeuvres to be flown by sole reference to instruments.

  1. Mr Connolly further explained:

“Notwithstanding that there is no intention by pilots or operators to fly aircraft designed only for VMC flight into degraded visual conditions or IMC, it is prudent to equip pilots with the knowledge and skill to deal with an unexpected entry into these conditions, and to fit the aircraft with the necessary equipment to be flown in these conditions.  The philosophy must be that mitigation of this occurrence is to be treated as an Emergency procedure.  As the risk of inadvertent IMC increases, because of local conditions, so the ability to mitigate risk becomes more important.

Neither European, North American (USA/Canada) nor Australian nor PNG commercial operations regulations require Instrument Flight equipment such as AI or T&S and stabilised gyro heading indicator to be fitted, for aircraft intended to be flown only by day in VMC.  The paradox is that in Europe, in practice these instruments are fitted, because the routine training and testing of pilots requires use of these instruments.”[213]  (emphasis added)

  1. The defendants’ Mr Crook did not agree that equipping pilots with the knowledge, skill and instruments to conduct an emergency escape from cloud was a prudent means of dealing with the risk of pilots flying VFR inadvertently entering IMC.  Mr Crook, in effect, gave three reasons for that resistance: first, that there are virtually nil prospects of a pilot in such a situation transitioning to the successful use of instruments in time to avoid crashing; second, that such a practice with its false assurance of successful navigation out of IMC would tempt pilots to ignore VFR rules; third, that such a practice is not taught or required under Papua New Guinea aviation rules, which rules require a VFR pilot to avoid cloud.
  2. As to Mr Crook’s first reason, it appeared to be premised on an escape manoeuvre involving a pilot transitioning in full from VFR to IFR.[214]  Mr Connolly asserted that on average it takes 45 seconds for an experienced instrument rated pilot in an instrument certified aircraft to become stable on instruments if IMC is unexpectedly encountered, whereas the average lifespan of a non-instrument rated pilot in IMC conditions is 30 seconds.[215]  On this topic Mr Crook cited a half-page document headed “Helicopter flight information”, in which the following proposition appears:

“Most pilots do not take the hazards of flight into IMC conditions in an aircraft that is not certified, and/or by a pilot who is not certified serious enough.  This is ultimately an issue of pilot overconfidence.  The average lifespan of a non-instrument rated pilot in these conditions is 30 seconds.  It takes an average of 45 seconds for an experienced instrument rated pilot, in an instrument certified aircraft to become stable on the instruments if IMC is encountered unexpectedly.”[216]

  1. Mr Crook asserted there is “an enormous body of literature and studies that have been conducted which confirm that which is summarised in the helicopter flight information” document. [217]    The information in the document produced by Mr Crook, which appears to be printed from a website, cites no studies or publications in support of the information it contains.  It is a curiously cursory example to select from the supposedly enormous body of literature and studies he was speaking of.  Its reference to 30 seconds is presumably a reference to the average time within which those pilots who die have crashed, data of little relevance without data about those who have not crashed in such circumstances. 
  2. Ultimately nothing turns on this for it became plain in the course of Mr Crook’s evidence that the 45 second transition period of which he was speaking was that required to transition in full from VFR to IFR.  His evidence in that context was similar to that of Mr Cronin who spoke, for example, of the pilot accessing documents such as charts, in the course of making a full transition to IFR.[218]  As Mr Connolly explained, a full transition is not needed in circumstances where recourse to instruments is for the immediate purpose of executing an emergency escape manoeuvre out of cloud.[219]  For example, Mr Joyce gave evidence of performing an emergency manoeuvre out of cloud by reference to instruments within a period of five to seven seconds.[220]  Mr Towers testified the time he would have taken to go into the necessary turn was one or two seconds.[221]  The premise of an emergency escape manoeuvre is that the pilot will rely not on charts which he or she would need time to consult, but upon the pilot’s memory of the topography and location of clear air and cloud immediately prior to being enveloped by cloud.[222]
  3. An emergency manoeuvre to escape cloud cannot be said to have virtually nil prospects.  It may not always succeed but it is not inevitable that it will fail either.  Obviously much will turn on how promptly it is attempted and the configuration of nearby terrain, cloud and clear air.
  4. The configuration of terrain, cloud and clear air may sometimes preclude a 180 degree level turn of the kind mentioned by Mr Connolly, but may leave open other paths for urgent escape from cloud.[223]  For instance, in the present case the terrain would likely have precluded a 180 degree level turn, but not a turn upwards and to the south-east as contemplated in the evidence of Mr Towers.  Whether the latter course would have carried the helicopter free of cloud and whether Mr Towers had the skill to navigate such an emergency manoeuvre by reference to instruments are topics discussed later in these reasons.
  5. Mr Crook’s second reason for resisting the availability of instruments and training to conduct an emergency escape manoeuvre from cloud in the event of inadvertent entry during VFR was that the availability of such a practice, with its false assurance of success, would tempt pilots to ignore VFR rules.  The logic of this view is that by providing pilots with any other option than avoiding cloud, pilots may be induced to be less vigilant in endeavouring to avoid cloud.  Mr Crook did not cite any research supporting his view.[224]  It is a view which gives inadequate weight to the risk that, because of the vagaries and unpredictability of weather, a vigilant pilot doing his or her best to avoid cloud may be inadvertently enveloped by cloud.
  6. Ordinarily that risk will be a remote one but its potential consequences are catastrophic.  For instance, Mr Crook said 86% of crashes resulting from inadvertent IMC involve fatality.[225]  It is difficult to understand Mr Crook’s resistance to the apparently prudent measure of equipping pilots with at least a fighting chance of performing an emergency escape manoeuvre.  Indeed it is at odds with the above-mentioned acknowledgment of Mr Dodds in evidence that for the last six years even Hevilift’s multi-engine crews on its Exxon contract had done simulator training for an emergency manoeuvre out of inadvertent IMC.[226]  Similarly it is at odds with the fact, acknowledged by Mr Crook, that the International Oil & Gas Corporation now require all pilots in that industry to have inadvertent IMC training.[227]
  7. Mr Crook’s view appears likely to have been infected by the above-mentioned incorrect assumption that an escape manoeuvre should be taught as a full IFR transition and is thus doomed to fail because full IFR transition takes too long.  Mr Crook’s view also appears to assume that pilots being taught an escape from IMC manoeuvre will be left with the false assurance it can succeed and thus place less weight on the primary aim of avoiding cloud.  That assumption is unfounded.  Mr Crook would not concede the logical point that, even though inadvertent IMC is one of the most dangerous and disorientating conditions a pilot can experience, pilots who are trained in escaping inadvertent IMC are more likely to have a successful outcome than those who are not.[228]  This is not the same as assuring success.  There is no reason why pilots could not and would not be taught that if enveloped by cloud a manoeuvre out of cloud is an emergency manoeuvre which has no assurance of success and that the primary aim of pilots should always be to avoid cloud.  Mr Crook ultimately appeared to concede as much.[229]
  8. As to Mr Crook’s third reason, the mere fact that the aviation industry does not require pilots flying in VFR to be trained and equipped for an escape manoeuvre out of IMC[230] is not to the point.  It ignores the variability of individual circumstances under which an employee pilot may be required to fly by an employer who owes that pilot a duty of care.  The fact it is contrary to aviation rules for a pilot flying VFR to fly in cloud is to say nothing of how to cope with the risk of an unintentional breach of that rule.  Thus, if a pilot is asked to fly in conditions where, even doing his or her best, there is a greater than ordinary risk of inadvertent envelopment by cloud it would be an inadequate response to that risk to persist with the singular solution of requiring the pilot to comply with aviation rules which require the pilot to remain clear of cloud.

Conclusion

  1. The phenomenon of fast formation of cloud at the time of day and locale in question, at an out of the ordinary speed, gave rise to a greater than ordinary and thus foreseeable risk of inadvertent IMC.  Apart from investigating, identifying and warning its pilots of that phenomenon and risk, what else would an employer acting reasonably have done in response?  This question, as was observed by Mason J in Wyong Shire Council v Shirt:[231]

“[C]alls for consideration of the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendants may have.”

  1. I have already concluded Hevilift’s additional response (additional to investigating, identifying and warning its pilots of the relevant phenomenon and risk) should have been to implement a flight prohibition and diversion system.  Another response contended for by the plaintiff was to equip aircraft with an attitude indicator, turn and slip indicator and turn co-ordinator and train pilots for the use of such instruments in an emergency so as to at least give pilots a chance of escaping the otherwise likely fatal consequences of inadvertent IMC.  For reasons already explained, the provision of an attitude indicator, turn and slip indicator and turn co-ordinator and associated training to assist a pilot in the event of inadvertent IMC would not be inconsistent with the pilot only being employed to fly under VFR.
  2. 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.  In a comparable sense though, the provision of such instruments and training presents as a more demanding and less effective additional means of meeting Hevilift’s duty of care than implementing a flight prohibition and diversion system as earlier discussed.  They are not mutually exclusive options but in applying the considerations discussed in Wyong Shire Council v Shirt[232] I would not be prepared to conclude that both were required by way of additional response.
  3. Neither was 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.  While academic in light of that conclusion, I find that, in the absence of a flight prohibition and diversion system, Hevilift was in breach of its duty of care in not providing the above mentioned instruments and training.

The nature and extent of the forewarning that Camp 57 was affected by fog

The weather in the preceding run

  1. As earlier mentioned, Mr Towers testified that on his second trip into Camp 57 it was clear in the vicinity.[233]  He rejected a suggestion put to him in cross-examination that in fact on the second trip approaching Camp 57 helipad he had flown into thick cloud and lost complete visual senses for one to two seconds.[234] 
  2. This suggestion was premised on evidence to be given by Oil Search’s general manager for exploration, Shane Schofield, who was at the time of the crash one of its site construction managers.  His explained the event described by him did not particularly concern him at the time.[235]  Indeed it was not even mentioned by him in his written statement made on 29 April 2006.
  3. His living quarters and office were located at Camp 57 and he was returning to them in what may have been Mr Towers’ second afternoon trip to Camp 57.[236]  He was seated in the back left-hand corner of the aircraft,[237] three rows from the front of the aircraft.[238]  He testified:

“[W]e came over the Moran Ridge, down towards the 5/7 location…and when we’re about 200 metres out from the helipad, you could see it ahead of us – just to set the picture in people’s minds, it was a beautiful sunny day.  The sun was very strong, but there was a wind coming from the northern ridge and there were low passing clouds.  Those clouds were, as I recall it in my mind’s eye to describe the sight, it’s about 200 metres by 200 metres, the well pad area, and on that approach we – I saw ahead of us a piece of cloud that was casting a shadow and that was on the northern edge of the location at that stage, and it probably covered about a third of the location.  As the helicopter descended, we were lined up for the pad, we were going into that.  That cloud moved very quickly, and we ended up passing through that cloud and coming out the bottom of that as we came into the pad and set down.”[239]

  1. When asked about how long the passage through cloud took, he said:

“It was only a second.  A second or two.  It’s hard to have a sense of time, and it was a very long time ago but we certainly passed through that and I remember it being whited out on the perspex around the seat where I was sitting. … So a second later, that visibility came back because it was generally a very sunny, clear afternoon and we set down safely.”[240]

  1. He explained he did not have the correct word to describe the type of cloud passed through but said it appeared to be a “pod” or “a layer of cloud that isn’t extensive”.[241]  He emphasised the transitory passage of the cloud and the otherwise clear conditions, saying:

“So I’ve got this sunlight I can see everywhere.  I can see the hill on the right, the hill on the left, the white road underneath us, very white well pad and that cloud with a shadow coming across.  You can see the helipad there and the cloud is north of the helipad at that stage.  It looks like you’ve got a clear line of run to the helipad.  The cloud moved incredibly quickly.  We dropped down to that pad in directly view of the line and the same speed that was planned and the cloud happened to pass through it because it was moving fast.”[242]

  1. While on Mr Schofield’s account the passage of the incredibly quickly moving cloud caused his side perspex window to white out for a second or so, it does not follow that is what occurred from the pilot’s perspective.  Nor does it follow from the pilot’s perspective that, as was put to Mr Towers, the cloud was thick or that it occasioned a loss of complete visual. 
  2. On Mr Schofield’s own account this was not an extensive layer of cloud.  Its movement from his perspective was so quick and involved such a brief interruption to Mr Schofield’s view of otherwise apparently very clear conditions it is quite conceivable it went entirely unnoticed by Mr Towers from his perspective at the front of the aircraft.  Further, even if Mr Towers noticed some extent of it, it may have been so inconsequential in its substance as not to have registered in his mind as an event suggesting cause for concern and thus gone unremembered by him.  In this context it should first be remembered his mind was unaware, and had been left without warning by his employer, that in the late afternoon in that area cloud could form with out of the ordinary speed. 
  3. Further it is entirely possible the event described by Mr Schofield may not even have occurred in the helicopter piloted by Mr Towers in his second last flight.  Mr Schofield’s recollection was that the flight in which it occurred was a flight returning from a ceremony at Mananda[243] which seems at odds with Mr Towers recollection, unlikely to be wrong in the circumstances, that his second last flight as a pilot ever was in fact the second of three flights ferrying workers from Foxtrot.

Mr Moyle’s radio transmission near the outset of the third and final flight

  1. On the afternoon of the crash Mr Kym Moyle was working as aviation co-ordinator from a makeshift control tower at Camp 810.[244]  In his role as aviation co-ordinator for Oil Search he was co-ordinating the transfer of Oil Search’s crew and equipment by Hevilift’s helicopters.[245] 
  2. Mr Moyle testified of the lead-up to Mr Towers’ third and final flight towards Camp 57:

“I’d got a call…on the radio from 5/7 to say that the helipad was closed due to fog.  So I radioed Hotel Charlie Echo [the helicopter flown by Mr Towers] and advised not to go around there.  It’s been reported as fogged in and to bring it back around to 810 and I’ll run them around in a vehicle.  His reply was she’s right.  I’ll have a look and I’ll get back to you and get some fuel.”[246] (emphasis added)

  1. He testified he did not respond and that he learned of the crash five to 10 minutes later.[247]
  2. Mr Moyle’s account was not entirely consistent with the account he committed to in writing and solemnly declared to be true only three days after the crash.
  3. Mr Moyle’s typed statement signed on 23 April 2006 said, relevantly:

“Approximately 16:30 pickups commenced from Rig 226 Junior Camp pad for 5-7 Camp.  HCE had already completed 2-3 trips into 5-7 Camp pad when the following events occurred.

Approximately 16:57 – HCE called Outbound Bravo for 5-7 with 6 PAX.  I replied to say that Les from 5-7 called me to say he had fog now, and that it is clear at 8-10 and if need be I will ferry them to 5-7 in a vehicle.

16:58 – Pilot replied “no worries I will have a look, and on my next run I will get some fuel from you”.

16:59 – Alex (Moro despatch) called to ask if I had a helo down.  “No not as far as I know as I just spoke with him”.

17:00 – Shane Schofield called and asked if I was talking to my aircraft as they had heard a loud noise. …”[248]  (emphasis added)

  1. Given its relative contemporaneity the account given in Mr Moyle’s statement of 23 April 2006 is more reliable as to the detail of what was said during the relevant communication than his memory at trial years later.  Mr Moyle unremarkably accepted as much.[249]  Thus, rather than telling Mr Towers that the Camp 57 pad was “closed”, the information conveyed to Mr Towers was that Les from Camp 57 had called “to say he had fog now”.  Similarly rather than instructing Mr Towers to “bring it back around 810 and I’ll run them around in a vehicle” he merely said “it is clear at 8/10 and if need be I will ferry them to 57 in a vehicle”.  This more contemporaneous recollection is also inherently more plausible.  If Mr Moyle had actually understood that Camp 57’s pad was closed it is unlikely, when Mr Towers responded he would “have a look”, that Mr Moyle would not have said more at that stage.
  2. The use of expressions such as “had fog now” and “if need be” convey a degree of fluidity rather than finality and rests comfortably with the recipient of the message apparently perceiving it was safe to go and “have a look” for himself.  The fact Mr Moyle did not respond negatively or indeed at all when Mr Towers said he would “have a look” suggests he shared that perception or at least did not disagree with it.
  3. On Mr Moyle’s account, it is obvious Mr Towers must have heard at least part of the transmission, at the very least the most material part, referring to the presence of fog at Camp 57, because of his response to the effect that he would “have a look”.  This shows that rather than proceeding immediately to an alternate landing site, having been warned of the presence of fog at Camp 57, Mr Towers elected to proceed towards Camp 57 and see for himself if conditions would at that time preclude flying into there.
  4. The times recorded in Mr Moyle’s statement three days after the crash are instructive.  Mr Towers’ response to the transmission, wherein he indicated he would “have a look”, is said to have occurred at 4.58 pm.  There was a communication raising the prospect of the crash having occurred only a minute later at 4.59 pm.  The content of the next transmission one minute later at 5 pm conveys a similar impression.  The times contained in Mr Moyle’s statement of 23 April 2006 are more likely to be accurate than his estimate of time at trial.  When the times in his statement were pointed out to him Mr Moyle accepted that Mr Towers must have been well and truly advanced in his journey and probably within a minute of him getting to Camp 57 by the time of Mr Moyle’s conversation with him.[250] 
  5. Mr John Wakpa, a senior load master for Oil Search, was present with Mr Moyle on the despatch tower at the time of the transmission.  His evidence of the transmission, apparently given without reference to a contemporaneous written statement by him, was generally consistent with the account in Mr Moyle’s statement.[251]  Indeed when the statement was put to him he agreed with the material aspects of it.[252]  He did at first testify that Mr Moyle had given Mr Towers a weather report and indicated “5/7 Camp is about to close” because the weather was getting bad and that he should bring the passengers back to Camp 810 and they would be driven by bus.[253]  But when he repeated the account, the reference to closure was not maintained.  Significantly he too recalled that the last person to speak in the transmission was Mr Towers.  Mr Wakpa’s recollection of what was said then, namely “I’ll have a try”, was similar to the words Mr Moyle recalled, namely “I will have a look”.  Nothing turns on that minor difference although Mr Moyle’s recollection of the actual words used, recorded in writing only three days later, is more likely to be the accurate one.
  6. Mr Schofield gave evidence of having heard the radio transmission between Mr Moyle and Mr Towers while he was sitting in his office at Camp 57.  While he did not record his recollection of that communication in a statement he made only nine days after the crash,[254] his recollection of the conversation, such as it was, was consistent in all material respects with Mr Moyle’s account in his statement made only three days after the event.[255]  To the extent the detail of his recollection was at variance with that of the recollection of Mr Moyle and his statement, Mr Moyle’s statement is to be preferred.  Mr Schofield had actually been a witness to Mr Moyle’s written statement three days after the crash.[256]  He explained he had merely witnessed Mr Moyle’s signature and had not actually read the statement’s content.[257]  In the upshot, his evidence provided unneeded support for the already obvious conclusion that the radio transmission detailed in Mr Moyle’s statement three days after the crash did occur.
  7. Mr Towers’ evidence about his recollection of the radio transmission with Mr Moyle was variable.  When it was raised with him in an anticipatory way in evidence-in-chief he said: “I didn’t hear that transmission so I don’t know what transpired.”[258]  In cross-examination he said he had no memory of receiving the transmission.[259]  Later in cross-examination he asserted he did not hear the transmission and that if he had heard such a transmission he would have gone straight to Camp 810.[260]  However the notion he would have gone straight to Camp 810 seems to be at odds with his evidence when this topic was raised in examination-in-chief.  At that time Mr Towers acknowledged that his alleged response, namely that he would have a look, would have been standard procedure.[261]  He explained:

“Well, you normally know if there’s going to be evidence of clouds sometime, who knows when.  But you – you take any information that’s given to you, if you receive it, and act on it.  Like, if somebody says there’s cloud there, you might be able to go out there and on the day it’s as clear as a bell but 10 minutes later it’s not; it’s fogged in.  So with you – PNG, you’ve got to – to work, you’ve got to be out there and if you can’t get in, you turn around and go back out.”[262]

  1. Nothing in Mr Towers’ testimony causes me to doubt that the transmission as outlined in Mr Moyle’s statement of 23 April 2006 did occur.  That means Mr Towers chose to continue flying towards Camp 57 with knowledge not that Camp 57 helipad was closed but that there was fog at Camp 57.  I find that, armed with that knowledge, Mr Towers intended to see for himself whether there was a clear flight path in to the helipad at Camp 57 open to him or whether such fog as was there precluded such a path.
  2. Such a course was uncontroversial on the evidence of Mr Connolly.[263] Such a course was also consistent with the significant decision making power the defendants were at pains to cast upon Mr Towers.[264] However it was utterly at odds with the decision Mr Towers would have taken if properly informed by his employer that in the late afternoon in that area cloud could form rapidly, at an out the ordinary speed.  Had Mr Towers known that information, I find he would, on learning from the transmission that fog had already formed in the area, have concluded there was an unacceptably high risk of remaining clear airspace clouding in so quickly as to preclude safe flight in the area.  I find he would not have elected to continue towards Camp 57 to “have a look” and would instead have altered course and proceeded to Camp 810.
  3. Before moving from the topic of the transmission it is necessary to deal with the submission of the defendants that I should find Mr Towers was lying when questioned on that topic.  His testimony on the topic had a more speculative and uncertain tone than most other areas of his testimony, which neither tends to suggest he was certain there was no such transmission nor clearly remembered there was and had made up his mind to lie about it.  It is obvious enough his evidence about it was unreliable but I do not conclude it was dishonest.  That said, his unreliability on this topic, relating as it does to events in the closing minute or two of the ill-fated flight, is borne in mind by me in considering the reliability of his evidence generally, including his account of the ensuing envelopment of his aircraft in cloud.

How Mr Towers came to be enveloped by cloud

  1. In Mr Towers’ initial description (quoted earlier) of the envelopment he said it occurred when he was within 150 metres of the pad and that the cloud was “thick and fast”.[265]  When asked whether he could recall whether the cloud came from any particular direction he responded:

“Right in front of where I was looking at the pad, Sir Your Honour just – because it was lined up on the pad, and it just went, like – I lost any visibility of the pad.”[266]

  1. Mr Towers explained that immediately before it “went white” he had line of sight visibility of the pad.[267]
  2. The defendants submitted not only that there was cloud present at Camp 57 at the time of Mr Towers’ approach but also that Mr Towers had deliberately flown into it.  I reject the latter submission.  It is inherently implausible, even making due allowance for Mr Schofield’s evidence about the second trip in, and it is not compelled by such evidence as there is of the presence of cloud in the vicinity.  It is noteworthy that not even Hevilift’s own Accident and Incident Occurrence Report to the Civil Aviation Authority of Papua New Guinea, signed by its Chief Executive Officer Mr Booij, suggested the prospect of deliberate flight into cloud.  Rather, it concluded a causal element of the crash was that Mr Towers “inadvertently” lost visual reference.[268] 
  3. The defendants’ relied upon the accounts of individual witnesses to mount an argument that Mr Towers must have flown into what was pre-existing thick fog and thus done so deliberately.[269]   For instance, the defendants placed reliance on the statement of Joseph Mano, made on 23 April 2006, in which he wrote:

“On Thursday 20 April 2006 time 16:50 pm, I was at my special donga getting ready to go to the main camp mess 5/7X.  At that time [writing obscured] area at 5/7X was totally covered with heavy fog and it was cold outside.

I got into my uniform and about 2/5 minutes. I heard the Hevilift chopper heading towards the left end side of the mountain at 5/7X.  Approximately 1700 hours I heard the loud crash on the mountain. …”[270]

  1. Unfortunately Mr Mano was not located in order to give evidence.  There was therefore no opportunity to test and clarify his statement, including that part of it in which the writing in the exhibited copy was obscured.  In consequence it is unclear what area at camp 5/7 was totally covered with heavy fog and more particularly whether the view he had of it included a view of the helipad area and the approach to it.  It is also uncertain whether he in fact knew at the time he was getting ready to go outside, that an area outside was covered with heavy fog or whether that was something he only noticed once he was outside.  Similarly, it is unclear whether he was still in his donga when he heard the crash or whether he had finished getting ready and was by then actually outside.
  2. The defendants also placed reliance upon the evidence of Shane Schofield, who in arriving at Camp 57 on what may have been Mr Towers’ second trip there that afternoon, described the conditions as clear, with the exception of the transitory and fast-moving cloud described in his evidence.  He was in his office at Camp 57 by the time the helicopter returned on the third occasion and he heard it crash.  His statement recorded that when he was sitting in his office at Camp 57 and heard the sound of the crash he “looked out the window and could just make out the Junior Camp through the mist (located approximately 200m to the south-east of my office)”.[271]  He testified at that point in time he looked outside and his view of a porter cabin 15 metres away was obscured by fog.[272]  However, the presence of mist or fog at Camp 57 at a point in time after the crash occurred is not inconsistent with Mr Towers’ account of cloud developing and enveloping the helicopter effectively without warning.  Moreover, because Camp 57 was a large camp, comprising accommodation, mess, medical facility, production equipment, and the helicopter landing area,[273] it would not follow from the presence of mist or fog at one part of Camp 57 that it was present throughout Camp 57.  Nor does it follow from such evidence that the helicopter’s line of flight into the Camp 57 pad had been obscured as the helicopter approached. 
  3. Significantly, Mr Schofield explained he had not seen anything in the moments before hearing the crash because he had been in his office and conditions outside could change “very, very quickly”.[274]  He testified:

“I hadn’t seen anything before that because … I’d gotten out of … the helicopter.  It was all sunny, just with this passing cloud, got into my office and – it changes very very quickly on that hill as we saw in the – in the six or seven months we lived there.”[275]

  1. In cross-examination Mr Towers rejected the suggestion the cloud he encountered was slow moving cloud, explaining that it “developed instantaneously” and “atomised and it was thick”.[276] 
  2. An attempt was made to use the third further amended statement of claim as evidence of inconsistency in Mr Towers’ recollection.  At the beginning of paragraph 4 thereof, prior to the particulars beneath, it pleads:

“In an attempt to return to an area of clear visibility, the plaintiff attempted to manoeuvre the helicopter upward but the helicopter impacted a tree and crashed into the jungle below…”

  1. Defence counsel appeared to rely on this passage to support an allegation that Mr Towers had deliberately flown into a slow moving cloud in his approach to the Camp 57 pad and then tried to get out of it by going back up again.  However paragraph 4, when read inclusive of the particulars, does not support such an argument.  Indeed, despite the infelicitous use of words such as “return” and “upward”, the particulars demonstrate this paragraph in the pleading is not materially inconsistent with the account given in evidence at the trial by Mr Towers wherein he described trying to use adjacent trees as a point of reference to guide him while flying, hoping to fly out of cloud.
  2. Mr Towers was challenged in cross-examination about his initial description that he was enveloped by cloud within 150 metres of the pad.  It was put to him he was about 50 metres from the pad when it occurred and it was because he was so close to the pad that he took a chance to fly through cloud.  The latter suggestion was rejected but he conceded the precise distance might have ranged between 150 and 50 metres.[277]  The suggestion that Mr Towers may only have been 50 metres from the pad was drawn from an affidavit he had sworn on 23 July 2009, discussed further below.  He had however given a statement back on 1 August 2006 in which his estimate of the distance was two to three hundred metres.  In his 2006 statement he said, relevantly:

“I had been into pad 57 twice before the accident occurred @ about 1720 local ….  On this occasion my recollection of this approach was the same as the previous two, but on approaching within 200-300 mt there was an extremely rapid onset of loss of visibility into cloud and fog which made approach impossible and I found myself attempting to turn around and abort out to the north-east from where I had entered.  As the cloud/fog was very dense and had descended into treetop level I considered emergency procedures – as I am an accomplished instrument pilot of 20 years – of climbing up through the cloud to get on top of it, but this was vetoed as I had neither an artificial horizon nor an electric turn and back i.e. instruments which could keep the helicopter under control in instrument conditions.  I continued as carefully and slowly and as visually as possible on the reciprocal of my approach and my last memory was of striking a tree.”[278]

  1. Ultimately Mr Towers explained the loss of visibility may have occurred within the range of 300 metres down to 50 metres from the pad.[279]
  2. A more significant aspect of Mr Towers’ cross-examination involved the exposure of his memory of events sworn in an affidavit on 23 July 2009.  He there described the envelopment in these terms:

“On 20 April 2006, I recall seeing clouds start to slowly come in over a ridge.  I was travelling from a helicopter site in a surrounding area to Camp 57.  I had travelled the same route twice in the preceding seven minutes without any problem.  I was around 50 metres from the helicopter pad when I was due to land.  I was flying at around 4,500 feet.

I recall seeing the cloud start to slowly come in over the ridge.  I negotiated to around the back of the cloud to avoid it.  As I did, I went into complete whiteout.  If I had instruments on board, I could have climbed up out of the cloud, but I had no choice but to try to hug the side of the ridge and slowly lower the helicopter down the ridge.  As I manoeuvred the craft downwards, I lost control of the craft and the crash occurred.  Without the correct instrumentation, it was not possible to keep the craft balanced and controlled.”[280] (emphasis added)

  1. That affidavit’s reference to the cloud starting to slowly come in and to him negotiating around the back of the cloud to avoid it suggests an awareness of cloud which was sufficiently nearby to require a deliberate manoeuvre to avoid it in the approach to Camp 57.  Such a manoeuvre was not mentioned in Mr Towers’ description of the event in evidence-in-chief.  When queried about this, Mr Towers, seeming to speculate, suggested the cloud he was referring to in his affidavit was a kilometre to a kilometre and a-half away towards Sisibia and that his reference to negotiating around the back of it was a reference to him “just keeping an eye on the trees to get around”.[281]  However, Mr Towers went on to explain, in reference to what he meant by “I negotiated to around the back of the cloud to avoid it”:

“It leave…vivid in my mind…that I was not on the final approach into the pad.  There was areas – dollops of cloud around that I made sure that I did not enter any of that and it was more to the back of it because where 5/7 is, it does have another area of where it can come through the side, but I can’t – I know I was approaching the pad to the south-west and that’s when – when it – I whited out and then I turned around and tried to get out and back down the hill … like, there was no big build ups within 150 metres where I was.  It was just a little bit further down, so I was positioning the helicopter where I would not infringe on that area…and as I was just about to put it down that’s when it went totally white, you know.”[282]

  1. According to his affidavit he was then “around 50 metres from the helipad”.  Even allowing for some imprecision in that estimate, his affidavit’s reference to him negotiating “around the back of the cloud to avoid it” makes it obvious, given his proximity to the pad, that the cloud to which his affidavit referred was so close to Camp 57 that he had to alter his path of approach in order to avoid that cloud impeding a clear final path of approach.  Such a conclusion rests comfortably with his above quoted reference to there being dollops of cloud around, though no big build ups within 150 metres of him. 
  2. The inconsistencies between Mr Towers’ evidence-in-chief, his affidavit and his explanations in cross-examination detract from his reliability.  However, while he was obviously not an accurate historian about the transmission from Mr Moyle or the precise extent of cloud in the vicinity of Camp 57 on his approach to it, I do accept his evidence that on his final approach he was on an apparently clear flight path.  He did not deliberately fly into cloud.
  3. The most logical and credible view of the whole of the facts, and the finding of fact I make, is as follows.  As Mr Towers approached Camp 57, there were areas of both clear air and cloud in the vicinity.   Such cloud as there was appeared slow moving.  Mr Towers adjusted his short path of final approach to comfortably avoid cloud in the vicinity so that he had, what in his ordinary experience he reasonably assessed would be, a sufficiently wide and safe path of clear flight in to the helipad.  However, the phenomenon at that time and place of cloud forming at an out of the ordinary speed within the clear air in that flight path then manifested itself.   As he proceeded, ever lower, along the apparently clear and sufficiently wide flight path, cloud formed extremely rapidly within it, enveloping the helicopter suddenly.  The helicopter was not flown into a visible, pre-existing cloud.  Rather, cloud formed with out of the ordinary speed in the air through which the helicopter was flying, surrounding the helicopter, as if instantaneously.
  4. I have already found that, had Mr Towers been warned of the risk of very rapid cloud formation occurring at that time and area, he would, on learning from Mr Moyle’s transmission of fog’s presence in the area, have concluded there was an unacceptably high risk of remaining clear airspace clouding in so quickly as to preclude safe flight in the area.  I similarly conclude that, had Mr Towers been warned of the risk, when he approached Camp 57 and saw that cloud had formed in the vicinity of it he would have decided there was an unacceptably high risk of remaining clear airspace clouding in so quickly as to preclude safe flight in to the Camp 57 helipad.  That is, he would not have tried to negotiate a flight path around the existing cloud towards the helipad.  Rather he would have flown away from the area, towards a clear helipad such as at Camp 810.
  5. It follows from these conclusions that the crash would not have occurred but for Hevilift’s failure to warn Mr Towers of the risk of very rapid cloud formation occurring at that time and area.  That is, that failure caused the crash and Mr Towers’ injury.

Whether Mr Towers would have flown free of cloud with instruments

  1. It will be recalled Mr Towers gave evidence that if he had an attitude indicator he would have focussed upon it and powered up through the clouds and turned to the south-east towards over the low-level area at Moro airstrip.[283]  He subsequently spoke of turning to the south-east and climbing away from the mountain.[284]  Considered as a whole he obviously meant that he would have climbed as well as turned towards the south-east. 
  2. Mr Towers explained the advantage of heading south-east towards Moro was that it was low country near Moro and there was thus a good chance that there would be clear air in the absence of mountains agitating the air.[285]  The ridgeline behind Camp 57 tracks in that direction so at the very least a steep climb would have been essential to avoid terrain.  It is unclear whether a steep climb would also have resulted in Mr Towers’ helicopter emerging through cloud into clear air, in which the helicopter could then have been flown in the direction of Moro.  The way in which Mr Towers’ aircraft became instantaneously enveloped in cloud would have given him no particular confidence about the likely height of cloud cover above him.  It is reasonable to infer he would have tried to climb for what he perceived was a safe height above terrain but that after that point would also have tried to travel towards the south-east. 
  3. The emergency manoeuvre the court is asked to infer Mr Towers would successfully have executed to escape from cloud involves climbing and turning in cloud, with no assurance of encountering clear air nearby.  It is not the u-turn style emergency exit described by Mr Connolly.  That form of exit, which was not realistic given the configuration of the terrain, is apt to a situation where it is expected the clear air from which a pilot has flown prior to inadvertent IMC will still be clear.  The rapidly changing conditions into which Mr Towers had flown meant he could not reliably forecast where clear air might be close by, hence the choice of a direction which would eventually carry him away from mountainous terrain to the best hope of clear air.
  4. Mr Towers explained he could not attempt the manoeuvre under contemplation in the absence of horizon instruments, because he would not have been able to maintain the helicopter’s stability with his vision obscured by cloud and with no gyro instrument.[286]  He explained that if he had an attitude indicator or a turn and slip indicator he would have been able to perform the manoeuvre.[287]  In particular he explained the attitude indicator would have been sufficient to allow him to perform such an escape manoeuvre.[288]
  5. It will be recalled Mr Towers was licensed for IFR in fixed-wing aircraft and thus had experience in the use of IFR instruments but had failed his instrument rating test for IFR flight in a helicopter only the year before the crash.  His examiner, Mr Cronin then assessed Mr Towers’ maintenance of attitudes and tracking within the prescribed tolerance minima for IFR flight as unsatisfactory.[289]  It ought be borne in mind that the need to fly within tight tolerances under IFR arises from the need to maintain a specific flight path and not drift into the flight paths or airspace of other flights.[290]  Therefore Mr Towers’ poor scanning and tracking for the purpose of IFR testing does not necessarily reflect a lack of ability to use instruments for the purpose of less precise flight, such as a prompt manoeuvre to escape inadvertently entered cloud.[291]  
  6. The test was not conducted for the purpose of assessing Mr Towers’ ability to conduct such an escape manoeuvre but it spawned some information of competing relevance to that ability.  It is relevant in Mr Towers favour that the component of his flight test which required him to perform “steep turns solely by reference to instruments” was performed to the examiner’s satisfaction.[292]  As Mr Towers’ counsel emphasised, a steep turn solely by reference to instruments is similar to the type of manoeuvre Mr Towers testified he would have sought to perform prior to the crash if he had an attitude indicator.  That Mr Towers passed this aspect of the test is unsurprising.  As Mr Cronin acknowledged, Mr Towers in previously gaining his rating to fly night VFR would have demonstrated his ability to use instruments to recover from inadvertent flight into low visibility environments where visual reference is lost.[293]  This supports Mr Towers’ case that he had the ability to urgently turn and bank in the direction of where he understood clear air would be.  But did he have the ability to head and continue to head in the correct direction?
  7. Relevant to that question is the fact that, during his test with Mr Cronin, Mr Towers became confused about where he was[294] and in the end result was tracking in the opposite direction from where he thought he was headed.[295]  In fairness this case is concerned with a short hypothetical period of a rapid escape from recent envelopment in cloud and not the more prolonged period of an IFR flight test during which direction could be grossly distorted by the cumulative effect of multiple failures to stay within minima due to poor tracking ability when relying on instruments.
  8. Nonetheless Mr Towers’ poor directional performance in his flight test suggests the longer he would have had to travel in cloud to reach clear airspace the less likely it is he could have identified and tracked along a sufficiently accurate heading to do so.  The hypothetical emergency manoeuvre in contemplation here relies upon the use of instruments in combination with an inevitably short lasting sense of direction founded on recent knowledge of where obstacles and nearby clear airspace had been immediately prior to envelopment.  It is a manoeuvre premised on the close proximity of clear air to escape to.
  9. Framing it in that way avoids the obstacle of Mr Towers’ probable inability to maintain a correct heading within cloud for a prolonged period.  But it also requires evidence of there likely having been clear nearby airspace for Mr Towers to have escaped to and a conclusion Mr Towers would likely have headed in the direction of it.  This is too great a hurdle when it is remembered Mr Towers was in this predicament because the risk of rapid cloud formation in hitherto clear airspace had manifested itself in the region in which he was flying.
  10. Given cloud had formed so rapidly in apparently clear airspace there is no basis to assume there was any clear airspace nearby, let alone that, if there was, Mr Towers could correctly guess where it might be.  His evidence as to where he would have headed – upwards and in the direction of Moro – involves a trajectory in which there was the highest probability of eventually encountering clear air.  But in the short term it involved flight upwards and over continued mountainous terrain.  I am not persuaded on the balance of probabilities that Mr Towers would have encountered clear air nearby, either by heading upwards or in the direction of Moro or a mixture of both.[296]  By the time he had flown long enough to likely deliver him into clear airspace it is unlikely he would have maintained a sufficiently accurate trajectory to safely reach that airspace.
  11. It follows Mr Towers has failed to prove the crash of the aircraft and thus his injury was causally connected with Hevilift’s failure to have equipped him with the instruments discussed above.  He has however succeeded against Hevilift for other reasons.

Conclusions as to liability

Hevilift liable

  1. If acting with reasonable care for the health and safety of its employee pilot Mr Towers, Hevilift should have investigated and ascertained the risk posed to its pilots by local weather conditions and patterns and implemented work systems to safely manage that risk.  It would thereby have known of and warned Mr Towers of the phenomenon that at the time of day and locale in question cloud can form at an out of the ordinary speed thus heightening the risk of inadvertent IMC.  Further it would thereby have implemented a local regime for monitoring weather in the region of Camp 57 and directing the prohibition of flight in to it by Hevilift’s pilots and diversion to a safe landing area when weather conditions in the vicinity in the late afternoon were conducive to or indicative of the occurrence of the phenomenon.
  2. 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.

Breach of contract by Mr Towers?

  1. Hevilift contends Mr Towers flew into cloud and that establishes a breach of contract by him.[297]
  2. The breaches of contract complained of in paragraph 18A of the amended defence of the first defendant allege, inter alia, failures to possess the skills required to perform to the standard required, failure to serve diligently and exercise reasonable care and skill, failure to comply with lawful directions, failure to comply with Hevilift’s operations manual and policies, failure to ensure the safe operation of the aircraft and safety of its occupants, failure to become familiar with current meteorological information and alternative safe landing positions and failing to fly the helicopter under VFR only.  Ultimately Hevilift summarised the alleged breaches as flowing from a failure to fly the helicopter with reasonable care and skill.[298]  In short, it was argued Mr Towers’ flight into cloud was a product of his own failure to exercise reasonable care and skill.
  3. That argument relied to a significant extent upon the inferences that Mr Towers either flew deliberately into cloud or that he flew into cloud because of his own negligence.  I have already rejected the notion that Mr Towers deliberately flew into cloud.  However I have also found that he did not fly into cloud.  Rather his aircraft became enveloped by cloud which formed around it.  This was not a case of a pilot recklessly choosing a flight path in too narrow a gap between existing cloud and then flying into such cloud because of that cloud moving into his path.  Mr Towers’ helicopter became enveloped in cloud because cloud formed suddenly in the hitherto clear airspace through which Mr Towers was flying. 
  4. Had Mr Towers known that cloud could form so quickly around his helicopter in this region at that time of day then it may readily be accepted he failed to exercise reasonable care and skill by taking the chance of trying to fly into the Camp 57 helipad.  But he did not know.  Such a phenomenon was out of the ordinary for pilots not used to flying in that region. 
  5. True it is Mr Towers had been warned of the presence of fog at Camp 57 but his decision to approach the area, to have a look whether a safe flight path into the helipad was precluded by the presence or proximity of fog, was a decision made without demurrer by Mr Moyle and without knowledge of the above-mentioned phenomenon.  Moreover when he approached and assessed the area’s airspace it appeared there was a sufficiently broad path of clear air to allow a safe flight path in. 
  6. That decision making and assessment, all taken in the course of work for the benefit of Hevilift, was founded on ordinary experience, in ignorance of the information Hevilift should have given to him, warning him about the above-mentioned phenomenon and its accompanying heightened risk of inadvertent IMC.  Had he been so warned he would not have made such a decision and assessment, that is, he would not have attempted the final approach into Camp 57.  The ensuing envelopment by cloud of his aircraft on that approach was therefore the result of Hevilift not so warning him.  It was not the result of a want of reasonable care and skill by him or, it follows, of a breach of contract.

Contributory negligence?

  1. The above discussion allows the allegation of contributory negligence to be dispensed with briefly.  Hevilift alleges Mr Towers’ own negligence caused or materially contributed to the accident and consequent damages, by reason of Mr Towers’ failure to fly under VFR, failure to operate the aircraft clear of cloud or fog, deliberately flying the aircraft into cloud or fog, failing to heed the warning of Mr Moyle that the helicopter pad at Camp 57 had been affected by fog, failing to divert the helicopter to a clear and safe alternative landing pad and failing to cause the helicopter to steer clear of fog or cloud.[299] 
  2. For reasons already given, Mr Towers’ decision on receiving the transmission from Mr Moyle to continue towards Camp 57 to have a look, rather than diverting forthwith, did not in the circumstances as known, or as he acting reasonably ought to have known, involve negligence by him.  Nor was the ensuing inadvertent IMC the result of his own negligence.  The approach manoeuvre undertaken by him was unremarkable but for the fact, of which Hevilift had not warned him, that at that time of day in that region there was a heightened risk of inadvertent IMC because cloud could form at a speed which was out of the ordinary.  The crash was not caused or materially contributed to by any failure by Mr Towers to exercise reasonable care.
  3. I record for completeness that in any event a finding of contributory negligence would not have assisted Hevilift’s position, given the liability I have found against it is grounded both in contract and tort.  At common law contributory negligence, while a defence in tort, is not a defence to an action for breach of contract.[300]

Conclusion

  1. For the above reasons Mr Towers should succeed in his claim, so far as liability is concerned, as against Hevilift.
  2. In light of my reasons Hevilift’s claim of set-off and the allegations supporting it, of deceit or negligent representations, negligence and breach of contract, must fail.

PART C: AVIATION SERVICES’ LIABILITY

The issues

  1. Mr Towers alleges Aviation Services’ duty of care in respect of him arises in two ways. His primary position is that Aviation Services was also his employer and is therefore liable for the same reasons as alleged against Hevilift.  Aviation Services denies it was Mr Towers’ employer.[301] 
  2. Mr Towers’ alternative position, also denied by Aviation Services,[302] is that Aviation Services’ contractual obligations to Hevilift Ltd were of such a nature as to in any event give rise to the duty of care to Mr Towers.[303]

Was Aviation Services Mr Towers’ employer?

  1. In late 2005 Mr Towers elected to seek work flying helicopters in Papua New Guinea and to that end contacted Ms Debbie Rantell in Cairns understanding she was with an entity called Hevilift Regional.[304]  Aviation Services admits Ms Rantell was its servant or agent but that it was, through her, acting as Hevilift’s agent.[305] 
  2. On 3 January 2006 the plaintiff received an email from Ms Rantell who was using an email address and web page name of “Regional Aviation”.  The email enclosed an offer of employment.[306]  While the offer of employment annexed to the email was not exhibited, it is apparent from ensuing exchanges that it was an offer to fly helicopters in Papua New Guinea.  For instance in an email by Ms Rantell to Mr Towers of 6 January 2006 she said, inter alia, “Our guys in PNG do a lot of hours each tour…”.[307]  Mr Towers accepted the offer. 
  3. It is clear, as already discussed, that Hevilift thereafter employed Mr Towers.  However there is no mention in Mr Towers contract of employment of 9 March 2006 of any employer other than Hevilift.[308]
  4. An incomplete set of payslips subsequently received by Mr Towers and tendered in evidence recorded his “employer” as Hevilift for the pay dates (and periods) 15.3.06 (1.3.06-31.3.06), 13.04.06 (1.4.06-30.4.06), 15.6.06 (1.6.06-30.6.06) and as Aviation Services for the pay dates (and periods) 15.3.06 (1.3.06-31.3.06), 14.9.06 (for 1.9.06-30.9.06), 13.10.06 (for 1.10.06-31.10.06) and 15.11.06 (for 1.11.06-30.11.06).[309]  
  5. It is apparent both defendants had a role in paying Mr Towers because of an arrangement under which he was to be paid partly in PNG currency and partly in Australian currency.  For example, an email by the plaintiff to Ms Rantell of 5 January, which appeared to incorporate answers by Ms Rantell to the plaintiff’s queries, referred to “the 50/50 split we have for staff, 50% of salary paid in Kina and taxed at PNG rates, 50% plus nine per cent super paid in AUD and taxed in Aust tax”.[310]  Mr Dodds confirmed there was such an arrangement.[311]
  6. More particularly, the arrangement was specifically included in Mr Towers’ contract of employment with Hevilift.  Appendix B to the contract relevantly provided:

2* Availability Rate

A percentage of Employee’s Base Salary will be paid in recognition of the Employee’s availability during the off-duty tour time.  This payment will be made in Australian dollars and will attract a Nine (9) per cent superannuation contribution and applicable Australian income tax.

Years of servicePercentage paid in AUD

1-5 Years50%

5-10 YearsMin 50% to Max 75%

*Conditional on the continuing independent access to Australian currency outside of PNG.  The company reserves the right to cancel the Australian currency clause with a minimum of one month’s notice.”[312]

  1. The above facts provide powerful support for the conclusion that Aviation Services was an agent of Hevilift not only in recruiting Mr Towers but also for the purposes of facilitating Hevilift’s remuneration of Mr Towers.  The latter conclusion is also supported by exhibited affidavits by Colin Seymour, Aviation Services’ company secretary, in which he deposed to Aviation Services having entered into an agreement with Hevilift for the provision of payroll and financial services to Hevilift from 1 November 2005.[313]
  2. The obvious inference to draw from the above facts is that Aviation Services’ role in recruiting and paying Mr Towers was in its capacity as an agent of Hevilift.  The fact Aviation Services contracted to provide Aviation Services with certain technical and quality assurance assistance, discussed further below, lends further support to the conclusion its role in recruiting and assisting in the mechanism of payment of Mr Towers was as Hevilift’s agent.  Aviation Services was not Mr Towers’ employer.
  3. I record for completeness that I do not, as the plaintiff effectively submitted I should,[314] regard the absence of Aviation Services’ director Mr Booij from the witness box as supporting the inference Aviation Services was an employer of Mr Towers.  It is by no means inevitable that Mr Booij, who Mr Towers did not claim to have dealt with, would have had any more material information than that already referred to. In any event, the rule in Jones v Dunkel[315]pertains to the confidence with which inferences may be drawn from evidence.  It is not a licence to ignore the most obvious inference flowing from the material evidence.  The relevant documentary evidence here strongly favoured the inference that Aviation Services’ conduct in respect of Mr Towers did not result from it being Mr Towers’ employer and only resulted from it being Hevilift’s agent. 

Did Aviation Services owe Mr Towers a duty flowing from its contractual obligations to Hevilift?

  1. The other basis upon which Mr Towers alleges Aviation Services owed him a duty of care is said to flow from a combination of its service of Hevilift in the recruitment and payment of Mr Towers with the fact of it having agreed to provide Hevilift with other services, particularly:

“1.11.2  Aircraft repair, technical and engineering services, including specialist aviation repair, technical and engineering services;

1.11.3  Quality assurance and audit services, including the maintenance of the first defendant’s engineering manuals in accordance with statutory regulations and updating those manuals as required from time to time.”[316]

  1. Of these agreements Mr Towers pleaded:

“1.13  The agreement by the second defendant to provide the first defendant with specialist aviation repair, technical, engineering, quality assurance and audit services described in paragraphs 1.11.2 and 1.11.3 above included an obligation by the second defendant to provide advice and direction to the first defendant as to the maintenance of the helicopter equipment owned and operated by the first defendant, including advice and direction as to the instruments the first defendant should install in its helicopters so the pilots were capable of flying helicopters by reference to instruments alone in circumstances where visual reference was lost as a consequence of the helicopter being inadvertently enveloped in thick cloud.”[317]

  1. Mr Towers’ case is that Aviation Services role vis-a-vis Hevilift gave rise to a duty of care on the part of Aviation Services to Mr Towers, whether or not it was an employer of Mr Towers at the time of the crash.  It was submitted for Mr Towers that:

“[B]ecause the second defendant played such a substantial role in the first defendant’s business (in particular, the provision of advice related to aviation quality assurance and audit services and aviation repair, technical and engineering services to maintain its fleet or aircraft) that the second defendant, having actively engaged the plaintiff in that context, owed the plaintiff a duty of care akin to that of an employer.”[318]

  1. It was submitted the role that Aviation Services played in the operation of Hevilift’s business gave rise to a duty of care to take reasonable steps for the safety of the plaintiff during the course of his employment.   It was submitted the circumstances were similar to a “labour hire/host employer situation where a labour hire company engages an employee and contracts with a host employer for the employment to be carried out at the host employer’s premises”.[319] 
  2. Particular reliance was placed upon TNT Australia Pty Ltd v Christie.[320]  In that matter Mr Christie was employed by a company called Manpower, which was an employment agency or so-called “body hire company”.  Manpower sent Christie to work at a brewery run by TNT although Manpower continued to pay his wages.  Manpower was found to have breached its non-delegable duty of care as Christie’s employer by failing to adequately instruct and provide proper assistance to Christie in the performance of his duties and failing to properly inspect, maintain and provide appropriate equipment for him to undertake his work task, which related to the operation of a forklift.  The trial judge found TNT owed duties to Christie which were analogous to those of an employer because of the daily control and instruction that TNT gave to Christie and the foreseeability of injury to Christie if provided with forklifts which did not operate effectively. 
  3. In the New South Wales Court of Appeal Mason P observed that Christie and TNT were in a relationship which was, day-in day-out, indistinguishable from that of an employee and employer.  His Honour observed Christie had for months been under the daily control of TNT and its managerial staff at the brewery.[321]  Foster A-JA, agreeing with Mason P, likewise concluded TNT owed Christie the same duty as an employer by reason of it having “clearly assumed employer like responsibilities consistent with its overall control and direction of the plaintiff in the workplace”.[322] 
  4. Christie’s case was quite different from the present.  There is no evidentiary support in the present matter for the drawing of an inference that Aviation Services exercised any particular control or instruction over Mr Towers, let alone to an extent analogous to the control and instruction that an employer might exercise.  Further, none of the agreements between Aviation Services and Hevilift relied upon by Mr Towers have been shown, even as a matter of inference, to have involved such a degree of active control and direction of Mr Towers in Hevilift’s day-to-day operations involving Mr Towers as to support an inference that it assumed or had a duty of care to Mr Towers.
  5. The High Court explained in Stevens v Brodribb Sawmilling Co Pty Ltd[323] that it is the existence of a relationship of proximity - one in which a non-employer entity exercises control and direction over the activity of workers - which grounds a common law duty of care on the part of such an entity and obliges the entity to prescribe a safe system of work.  There was no such relationship as between Aviation Services and Mr Towers.
  6. Aviation Services did not owe a duty of care to Mr Towers.

Conclusion

  1. For the above reasons Mr Towers’ case as against Aviation Services must fail.

PART D: ORDERS

  1. It will be necessary to hear the parties as to costs and any further orders including directions as to the future conduct of the proceeding in respect of quantum.
  2. My orders are:
    1. Judgment for the plaintiff in its claim against the first defendant for damages to be assessed, without set-off.
    2. The plaintiff’s claim against the second defendant is dismissed.
    3. I will hear the parties on 7 December 2016 at 9.15 am as to costs and any further orders, including directions on the future conduct of the proceedings (with out of town parties having leave to appear by telephone or videolink).

Footnotes

[1] As was acknowledged in the Defendants’ written submissions [1.4].

[2] Ex 14 [18].

[3] T2-59 L47.

[4] Ex 34 pp 201-203.

[5] Ex 21 p 11.

[6] Papua New Guinea Civil Aviation Rules 91.511, 91.517.

[7] T1-55 L43, Ex 10.

[8] Ex 20 p 3.  Mr Timothy Joyce, a pilot who gave evidence, testified that if caught out without attitude reference cues the only other stable flight regime would be auto rotation, that is by closing the throttle and letting the airflow coming through the rotor system keep the aircraft stable, effectively operating as a gyrocopter - T3-38 L33, T3-40 L45.  However that option would not have been an option open to Mr Towers given his helicopter’s low height at the time of the crash.

[9] Ex 20 p 4.

[10] Ex 20 p 5.

[11] T1-33 L25.

[12] T1-34 L32, T1-36 L47, T1-37 LL24-29, T1-39 L15.

[13] T1-38 L7, Ex 13.

[14] T1-61 L12.

[15] T1-37 L29.

[16] T1-43 L45.

[17] T5-78 L36.

[18] T1-43 L47 - T1-44 L15.

[19] T1-44 L34.

[20] T1-44 LL24-40.

[21] T1-45 L28, Ex 6A.

[22] T5-43 L33, T5-64 L10.

[23] T1-49 L5.

[24] T1-51 L13.

[25] T1-47 L47, Ex 21 p 10.

[26] T1-51 L18.

[27] T1-48 L30.

[28] T1-48 L32.

[29] T1-48 L44.

[30] T1-49 LL1-28.

[31] T1-49 L11.

[32] T1-49 L35.

[33] To remove doubt, “fog” is another word for “cloud” which is at or near ground level.

[34] T1-50 LL27-43.

[35] T1-52 LL5-13, T1-55 L6.

[36] T1-51 LL30-40.

[37] T1-51 L5.

[38] Ex 44.

[39] SOC [1.14].

[40] SOC [1.9].

[41] Wilsons & Clyde Coal Co v English [1938] AC 57, explained, for example, in Kondis v State Transport Authority (1984) 154 CLR 672.

[42] See for example, Hamilton v Nuroof (WA) Pty Ltd (1956) 96 CLR 18, 25, Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44, 55.

[43] SOC [7.1, 7.3, 7.5].

[44] SOC [7.2].

[45] SOC [7.6].

[46] SOC [7.4].

[47] SOC [7.5].

[48] See for example T1-15 L35 and the exchanges at T3-54,55 and T4-18,19.

[49] HDef [7D].

[50] HDef [7, 7A-F].

[51] HDef [21].

[52] HDef [15(e)(i), 23(c)].

[53] HDef [23(d)].

[54] HDef [17(b)(iv), 18A.6(3)].

[55] HDef [17(b)].

[56] HDef [16(c)].

[57] HDef [19(c)].

[58] HDef [18A].

[59] HDef [32].

[60] T1-24 LL17-23.

[61] T1-24 L24, T1-26 L11.

[62] T1-25 L13.

[63] Ex 41.

[64] T2-47 L32 – T2-48 L1.

[65] T5-96, 97.

[66] T5-97 L24.

[67] T1-26 L45.

[68] T1-29 L4, Ex 23.

[69] T1-27 L17, Ex 23.

[70] T4-46 L34.

[71] T4-88 LL35-43.

[72] T4-89 L8.

[73] T1-27 L44.

[74] T1-29 LL10-47.

[75] T1-33 L7.

[76] T1-30 L33, T2-18 L44.

[77] Ex 19.

[78] Ex 19.

[79] Ex 19.

[80] Ex 19.

[81] T4-6 L3.

[82] T1-30 L37 – T1-32 L21.

[83] T1-63-73, T2-4-17.

[84] Ex 22.

[85] Eg. T4-36 LL35-45, T4-37 L7, T4-40 L27, T4-43 L43.

[86] T4-44 L3.

[87] T4-47 L31.

[88] T4-61 L2.

[89] T4-91 L16.

[90] Ex 4 p 9.

[91] T2-76 L43.

[92] Ex 13.

[93] Ex 35; T2-52 L12.

[94] T1-24 L9.

[95] Ex 14 [3].

[96] T2-68 L33.

[97] T2-53 LL10-37; T3-6 L10.

[98] T5-58 L12.

[99] T5-61 LL16-26.

[100] T3-4 L12.

[101] T5-58 L40.

[102] Ex 18 [7-11].

[103] T3-78 L41, T3-96 L13 & L29.

[104] T3-78 LL40-48, T3-96 LL13-31.

[105] Ex 18 [13].

[106] Ex 18 [20].

[107] T3-84 L18 – T3-85 L6.

[108] T3-87 L46.

[109] T3-88 L19, T3-94 L42.

[110] T3-86 L32.

[111] Ex 18 [29].

[112] Ex 18 [31].

[113] T3-96 L5, T3-97 L22.

[114] T3-95 LL34-43.

[115] Ex 18 [24].

[116] T3-79 L34.

[117] Ex 18 [34].

[118] T3-82 L19.

[119] T3-82 L24.

[120] Ex 18 [34], T3-83 LL18-22.

[121] Ex18 [34], T3-95 L20, T3-96 L29.

[122] Ex 18 [33].

[123] Ex 18 [31-32].

[124] T3-79 L13.

[125] T3-79 L19.

[126] Ex 18 [31], T3-92 L26.

[127] T3-92 L40.

[128] T3-92 L27.

[129] T3-92 LL16-23.

[130] T3-92 L25, T3-93 L23.

[131] T3-93 LL1-33.

[132] T3-68 L40, T3-90 L40, T3-94 L26.

[133] T3-70 L23, T3-89 L43, T3-90 L36.

[134] T3-11 L37.

[135] T3-37 L7.

[136] T3-37 L20.

[137] T3-37 LL32-38.

[138] T3-38 L12, T3-50 LL2-6.

[139] T3-37 L45, T3-39 L8.

[140] T3-37 L7.

[141] T3-37 L23.

[142] T5-39 L30, T5-53 L33.

[143] T5-45 L25.

[144] T5-49 L16.

[145] T5-50 L30.

[146] T5-50 L16.

[147] T5-98 L26.

[148] T5-97 L29, T5-98 L5.

[149] T5-97 L30.

[150] T5-98 L7.

[151] T5-69 L20.

[152] T5-69 L23.

[153] T5-75 L44.

[154] T5-88 L3.

[155] (2005) 222 CLR 44, 56.

[156] As to which see Sullivan v Moody (2001) 207 CLR 562, 581.

[157] See, for example, the observations of Edmund Davies LJ in Bux v Slough Metals Ltd [1973] 1 WLR 1358 at 1364.

[158] Ex 24 p13.

[159] Jones v Dunkel (1959) 101 CLR 298.

[160] Ex 4 p 11, T5-35 L42 – T5-36 L4.

[161] T2-77 L40, T5-36 L11.

[162] T2-80 L6.

[163] T2-70 LL33-46, T5-29 L15.

[164] Ex 43 p 73.

[165] T5-29 L33, T5-32 L17.

[166] Ex 42 p 73.

[167] T5-29 L42.

[168] T5-30 L29.

[169] Ex 43 p 74.

[170] T5-32 L42.

[171] T5-32 L37.

[172] T5-33 L12.

[173] Ex 43 p 75.

[174] T5-33 L35.

[175] T2-72 L23.

[176] T2-72 L28.

[177] Ex 43 p 76.

[178] T2-72 L45.

[179] T5-34 L4.

[180] Ex 43 p 78.

[181] T2-73 LL30-36.

[182] T2-74 L13.

[183] Ex 43 p 80.

[184] Ex 43 p 83.

[185] Ex 43 p 84.

[186] Ex 43 p 88.

[187] T1-39 L20, T1-39 L35.

[188] T1-39 L25.

[189] T1-60 L20.

[190] Ex 12 pp 5-8.

[191] T1-60 L26.

[192] Eg T2-83 L10, T2-84 L19.

[193] T2-83 L38.

[194] T2-84 L35 – T2-85 L3.

[195] T5-51 L15.

[196] T3-19 L3.

[197] T1-55 L43, Ex 10.

[198] T1-59 L20.

[199] T5-44 L25.

[200] T1-59 L24 – L28.

[201] T3-27 L11, T3-30 L43.

[202] T3-29 L21.

[203] T5-47.

[204] T3-39 L13.

[205] T3-41 L41.

[206] T5-95 LL15-26.

[207] T5-95 L28.

[208] Mr Connolly’s reports are Ex 21.

[209] Mr Crook’s report, supplementary report and addendum to supplementary report are Ex 20.

[210] Ex 21 p 6.

[211] Ex 20 p 6.

[212] Ex 20 p 7.

[213] Ex 20 p 8.

[214] Ex 21 p 36.

[215] Ex 21 p 332.

[216] Ex 21 p 262.

[217] Ex 21 p 332.

[218] T4-94 L12.

[219] T4-64 L19, T4-67 L33, T4-68 L10.

[220] T3-53 L20.

[221] T3-13 L19.

[222] T4-86 L40.

[223] EgT4-85 L38 – T4-86 L3.

[224] A passage in Mr Crook’s addendum to his supplementary report at Ex 21 p 333 [5] is ambiguous as to whether the uncited “great deal of research” mentioned relates to the reason presently under discussion or Mr Crook’s first reason or both.

[225] T5-107.  Note this was not, as was seemingly sought by the questioner, evidence of what percentage of entries into inadvertent IMC results in successful exits rather than crashes.

[226] T5-49, 50.

[227] T5-100 L33.

[228] T5-99 L7.

[229] T5-10 L17.

[230] In fact there has been a shift in favour of such a requirement in Europe and it is a matter of present debate in the Australian aviation industry.  Ex 21 p 333, T5-104 – T5-106.

[231] (1980) 146 CLR 40, 47-48.

[232] (1980) 146 CLR 40.

[233] T1-49 L35.

[234] T2-62 L30.

[235] T5-87 L28.

[236] “May” because his recollection was that he had come from Mananda, not Foxtrot – T5-79 L19.

[237] T5-86 L33.

[238] T5-87 L12.

[239] T5-79 LL36-48.

[240] T5-80 LL3-12.

[241] T5-86 L27.

[242] T5-87 LL18-25.

[243] T5-79 L19.

[244] T5-58 L12, T5-59 L20.

[245] T5-61 L30, T5-66 L43.

[246] T5-61 LL42-45.

[247] T5-62 LL5-25.

[248] Ex 39.

[249] T5-72 L6.

[250] T5-74 LL12-15.

[251] T6-4 LL10-43.

[252] T6-5 L46 – T6-6 L11.

[253] T6-4 L13.

[254] Ex 40.

[255] T5-80 L36 – T5-81 L2.

[256] Ex 39.

[257] T5-83 L41.

[258] T1-59 L40.

[259] T2-4 LL35-40.

[260] T2-61 LL18-45, T2-63 L14.

[261] T1-59 L43.

[262] T1-59 L47 – T1-60 L6.

[263] T4-76 L1.

[264] T7-2 L44.

[265] T1-50 LL27-43.

[266] T1-55 L16.

[267] T1-55 LL20-25.

[268] Ex 24 p 13.

[269] T 7-25 L10.

[270] Ex 42.

[271] Ex 40.

[272] T5-81 L33.

[273] Ex 24 Accident Report p4.

[274] T5-87 L44 – T5-88 L2.

[275] T5-87 L44 – T5-88 L3.

[276] T2-63 LL30-33.

[277] T2-63 L44 – T2-64 L10.

[278] Ex 16.

[279] T3-22 L16.

[280] Ex 14.

[281] T2-65 L24 – T2-66 L38.

[282] T3-11 LL12-26.

[283] T1-51 LL1-5.

[284] T1-54 L31, L45.

[285] T1-51 L8.

[286] T1-51 L13.

[287] T1-53 L17.

[288] T1-54 L34.

[289] Ex 22, p 41, T4-57 L22 – T4-58 L18.

[290] T4-58 L15.

[291] Eg T2-9 L25, T4-51 LL17-46.

[292] Ex 22, p 41, T4-58 L40.

[293] T4-89 LL8-45.

[294] T4-59 L23.

[295] T4-60 L13.

[296] This conclusion makes it unnecessary to express a concluded view as to an argument (Defendants’ written outline [16.9-16.11]) there was a deemed admission as to height of the cloud and the helicopter’s inability to reach that height.

[297] HDef [18A]; Defendants’ written submissions [19.2].

[298] Defendants’ written submissions [19.3].

[299] HDef [32].

[300] Astley v Austrust Ltd (1999) 197 CLR 1.

[301] Defence of the Second Defendant (“Second Def”) [5].

[302] Second Def [18].

[303] SOC [1.15].

[304] T1-33 L22.

[305] Second Def [7].

[306] Ex 1.

[307] Ex 1.

[308] Ex 13.

[309] Ex 2.

[310] Ex 1 p3.

[311] T5-48 L43.

[312] Ex 13 App B.

[313] Ex 25, 26.

[314] T7-110 L 42 – T7-111 L3.

[315] (1959) 101 CLR 298.

[316] SOC [1.11].

[317] SOC [1.13].

[318] Plaintiff’s written submissions [98].

[319] Plaintiff’s written submissions [101].

[320] (2003) 65 NSWLR 1.

[321] Ibid 9.

[322] Ibid 30.

[323] (1986) 160 CLR 16.

Editorial Notes

  • Published Case Name:

    Towers v Hevilift Ltd & Anor

  • Shortened Case Name:

    Towers v Hevilift Ltd

  • MNC:

    [2016] QSC 267

  • Court:

    QSC

  • Judge(s):

    Henry J

  • Date:

    17 Nov 2016

Litigation History

Event Citation or File Date Notes
Primary Judgment [2016] QSC 267 17 Nov 2016 Judgment for the plaintiff against the first defendant (plaintiff's claim against second defendant dismissed): Henry J.
Notice of Appeal Filed File Number: Appeal 13091/16 15 Dec 2016 -
Appeal Determined (QCA) [2018] QCA 89 11 May 2018 Appeal dismissed: Fraser and Philippides JJA and Flanagan J.

Appeal Status

{solid} Appeal Determined (QCA)