Tetraplegic helicopter pilot awarded over $5.6 million in damages Tetraplegic helicopter pilot awarded over $5.6 million in damages

Filters

Tetraplegic helicopter pilot awarded over $5.6 million in damages

6 May 2020 | General Insurance

A tetraplegic helicopter pilot who successfully established negligence against his employer at trial in 2016 has now been awarded over $5.6 million in damages in a 3 day quantum only trial.

In Issue

  • The plaintiff’s life expectancy, economic loss, and household maintenance costs.

The background

The plaintiff was the pilot of a helicopter that became caught in cloud and crashed in the highlands of Papua New Guinea on 20 April 2006. The plaintiff was rendered a tetraplegic. He commenced proceedings against his employer, Hevilift Ltd (Hevilift), for damages for negligence and breach of contract. You can find our summary of the liability trial here. Ultimately, the court found that the employer failed to adequately warn the plaintiff of the risk of quick forming cloud in the highlands of PNG and failed to provide adequate flight instruments and training.

The decision at trial

By trial, many aspects of quantum had been agreed between the parties. The issues for determination by the trial judge were life expectancy, economic loss and household maintenance costs.

The plaintiff was 55 years old at the time of the incident and 69 years old at the quantum trial. The plaintiff submitted that life expectancy should be determined by reference to the ABS life expectancy tables (i.e. 16.7 years). The defendant relied on the evidence of an orthopaedic surgeon to contend for life expectancy of 9.8 years, to make allowance for the lower than average life expectancy of those with a permanent spinal cord injury (“SCI”) as well as the extra risk posed by specific conditions arising from the plaintiff’s tetraplegia. Although the trial judge accepted that the plaintiff’s life expectancy was materially less than the ABS life expectancy, His Honour considered that the plaintiff’s advanced age and the resilience he had demonstrated in the 16 years since the injury told against a more significant reduction of life expectancy. A future life expectancy of 15 years was adopted.

The plaintiff claimed economic loss premised on loss of income as a pilot from the date of the incident to age 70. The defendant contended that the plaintiff would not have worked as a pilot beyond age 65. The trial judge found that the plaintiff, who was in robust health and mentally astute, would likely have been able to pass the requisite medical tests to continue flying beyond age 65. However, His Honour, did not accept that the plaintiff would have remained a viable prospect for paid employment to age 70. A retirement age of 68 was adopted. His Honour found that the plaintiff would have completed his 3 year contract with Hevilift but then reverted to working as a helicopter pilot in full-time employment in Australia, earning in the vicinity of his average net weekly income during his contract with Hevilift and ranging upwards over time.

The defendant submitted that nothing should be allowed for mowing or household cleaning expenses on the basis that the plaintiff had failed to produce documentary evidence proving the claimed expenditure. The trial judge accepted the plaintiff’s evidence that such expenses had been incurred, but noted that any estimation of those expenses ought to be conservative.

Damages were in the sum of $5,652,072.74.

Implications for you

This decision highlights the importance for parties to, wherever possible, agree heads of damage prior to trial.

A failure to produce documentary evidence of expenses will not be fatal to a plaintiff’s claim. Ultimately, it is open to a court to accept the plaintiff’s oral evidence establishing that those expenses have been incurred, and estimate the quantification of that loss. However, any estimation by the court ought to be conservative and, if that results in under-compensation, then a plaintiff who has failed to provide better evidence has no ground to complain.

Towers v Hevilift Ltd (No 2) [2020] QSC 77

Author

Ashlee Bonanno

Ashlee Bonanno

Senior Associate