Employer liable for fatal helicopter crash12 December 2016 | Employer's Liability
An employer was found liable for a helicopter crash in PNG for failure to appreciate and respond to risk of fast forming cloud.
- Whether employer failed to warn the plaintiff of the risk of quick forming cloud and provide adequate flight instruments.
The plaintiff, Mr Towers, was the pilot of a helicopter that became caught in cloud and crashed in the highlands of Papua New Guinea on 20 April 2006. Three of the six passengers were killed in the crash and the plaintiff was rendered an incomplete quadriplegic.
The plaintiff commenced proceedings against his employer, Hevilift Ltd (Hevilift) for damages for negligence and breach of contract. He alleged that late in the afternoon in the mountainous regions of Papua New Guinea, cloud can form and move very quickly, giving rise to a greater than ordinary risk of unintended entry into or envelopment by cloud. He alleged that Hevilift breached its duty of care by failing to warn him of the risk of quick forming/moving cloud and failing to provide him with a helicopter equipped for flight by reference to instruments, namely an altitude indicator, turn and slip indicator and turn indicator (the flight instruments).
Hevilift defended the claim on the basis that the cloud did not develop so quickly that a helicopter may have been unavoidably enveloped by it. It alleged that the plaintiff flew into the cloud deliberately. It further alleged that the plaintiff was forewarned of the fog and had been advised of an alternative landing site.
The Decision at Trial
The plaintiff adduced expert evidence from a meteorologist that the steep topography and high temperature, rainfall and humidity of the Papua New Guinea Southern Highlands were particularly conducive to the fast formation of cloud. The meteorologist gave evidence that cloud formation could occur within tens of seconds and could almost appear instantaneously. The trial judge rejected Hevilift’s allegation that the helicopter was flown into a visible, pre-existing cloud. Rather, he found that cloud formed rapidly in the air through which the helicopter was flying, surrounding the helicopter, as if instantaneously. The trial judge accepted that the plaintiff was warned of the presence of fog but found that, had the plaintiff been properly informed by his employer of the propensity of cloud to form rapidly in the late afternoon, he would have altered course.
The trial judge found that, as a business regularly operating helicopters in the region, Hevilift ought to have been aware of the phenomenon that cloud could form rapidly in the late afternoon. He found that it ought to have implemented a local regime for the monitoring of weather and the diverting of flights when prescribed weather conditions were forecast or present. Such a system would likely have resulted in a specific instruction prohibiting the plaintiff from proceeding to his destination and diverting him elsewhere.
There was divergence in the opinions of the two helicopter experts on the question of whether the helicopter ought to have been fitted with the flight instruments and whether provision of and training in the use of the flight instruments would have allowed the plaintiff to successfully escape the cloud. The trial judge preferred the evidence of the plaintiff’s expert and found that, absent any system for flight prohibition and diversion, Hevilift was in breach of its duty of care in not providing the flight instruments and training.
There was no finding of contributory negligence as the crash was not caused or materially contributed to by any failure of the plaintiff to exercise reasonable care.
Implications For You
The plaintiff’s uncontested meteorological evidence was central to the trial judge’s findings. This case serves as a reminder of the importance of adducing considered expert evidence on all issues in contention.