Hevilift Limited v Towers  QCA 89 – “Don’t Push it, Land it” – Employer liable to pilot for a failure to warn of a weather phenomenon
The Queensland Court of Appeal has dismissed an employer’s appeal and held that the employer was liable to its pilot employee for a helicopter crash in the highlands of Papua New Guinea (PNG), because of a failure to warn the pilot of a foreseeable risk of rapid cloud formation.
Mr Towers was the pilot of a Bell 206 Helicopter that became caught in inadvertent Instrument Meteorological Conditions (IMC) and crashed in the highlands of PNG on 20 April 2006, which killed three of the six passengers and rendered the pilot quadriplegic.
The pilot commenced proceedings against his employer Hevilift Ltd (Heavilift) for damages in negligence and for breach of his contract of employment. Mr Towers alleged that Hevilift failed to warn him or provide him with a helicopter equipped for flight in circumstances where the rapid onset of dangerous cloud formation should, or ought to have been known.
At the initial trial an Expert Meteorologist opined that the cloud cover that the pilot experienced at the time of the crash could occur almost instantaneously as the PNG Southern Highlands was prone to this fast formation of cloud because of the steep topography, increased temperature, rainfall and humidity of the area. On appeal, this evidence was challenged on the basis that the Expert had not inspected the region in person, but ultimately failed.
Hevilift’s primary defence to the claim was that the cloud did not develop so quickly that a pilot may have been unavoidably enveloped by it. It was argued that once the pilot had been cautioned by a radio call that the helipad was ‘closed due to fog’, he was responsible for all the consequences of continuing into possible danger.
At first instance, the court rejected Hevilift’s defence on the basis that the pilot was not as familiar with the meteorological phenomenon as Heavilift, who as an aircraft operator in the region, ought to have been. In doing so, the court held that Hevilift’s duty as employer extended to informing its pilots about the dangers of rapid cloud formation in the region and in not doing so, was liable to the pilot.
Hevilift’s appeal sought to challenge the award of damages and the trial judge’s findings about the cause of and circumstances in which the helicopter crashed. In particular, it was alleged that the Primary judge erred in accepting the evidence of the meteorologist as to the speed of cloud formation. It is worth noting that Heavilift did not adduce its own expert evidence at trial, but sought to rely upon the evidence of experienced pilots flying in that region.
These appeal grounds were dismissed on the basis that the respondent’s evidence from an experienced pilot and aviation company manager did not directly contradict the meteorologist’s conclusions.
In his Judgment, dismissing the appeal, Justice Fraser reiterated the primary judge’s conclusion that the evidence presented by Heavilift’s experienced pilots lacked the necessary credibility because of the reluctance of these witnesses to see the obvious conclusion that at the location of the crash, cloud could form in clear air at a speed which was out of the ordinary compared to almost anywhere else in the world.
The case serves as a reminder of the importance of ensuring your opponents’ evidence is appropriately countered and of adducing appropriate expert evidence on technical issues in dispute.
This case also features an extension of an employer’s duty to include a specific warnings of foreseeable weather phenomenon that may impact safe flying conditions, even despite a pilot’s advanced experience and general training.
Since this judgment was handed down CASA and the ATSB have issued a joint media statement entitled ‘Don’t Push it, Land It’ (24 May 2018). In this statement, the ATSB Chief Commissioner encourages helicopter pilots to use their aircraft’s ability to land almost anywhere to avoid safety issues in flight, including deteriorating weather.
A link to this statement can be found by clicking here.
A link to the judgement can be found by clicking here.
This article was written by Matthew Brooks, Partner and Kelly L. Donaldson, Senior Associate.
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Important Disclaimer: The material contained in this publication is of a general nature only and is based on the law as of the date of publication. It is not, nor is intended to be legal advice. If you wish to take any action based on the content of this publication we recommend that you seek professional advice.