ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

ACQ v Cook; Aircair Moree v Cook; Cook v Country Energy; Country Energy v Cook [2008] NSWCA 161

The court held that the pilot of the aircraft (and thus Aircair/ACQ) owed no duty of care in negligence to the power linesman, Mr Cook, as he was not present at the site at the time and, as an experienced worker, was expected to take adequate care against known risks. However, statutory liability under Damage by Aircraft Act 1999 (Cth) s 10(1)(d) attaches to the aircraft owner/operator for injury indirectly resulting from the aircraft’s collision with the power line, regardless of negligence or intention. Contributory negligence is not a defence to actions under DAA. Voluntary assumption of risk is not made out. The employer, Country Energy, did not breach its duty of care; therefore,...

Jurisdiction
Australia
Judgment Date
16 July 2008
Procedural Posture
Appeal / New South Wales Court of Appeal—judgment on Appeal From District Court
Outcome
Appeal by ACQ and Aircair dismissed (except cost orders reserved); NorthPower’s appeal allowed; judgment against Country Energy (NorthPower) set aside; judgment in favour of Mr Cook against Aircair/ACQ upheld; cross-claims and contribution orders set aside as appropriate.
Legal Topics
['negligence' 'duty of Care' 'statutory Liability for Damage by Aircraft' 'causation' 'contributory Negligence' 'voluntary Assumption of Risk' "employer's Duty of Care" 'jurisdiction—federal Jurisdiction of State Courts' 'assessment of Damages']
['tort Law' 'statutory Interpretation' 'aviation Law'] ['negligence' 'duty of Care' 'statutory Liability for Damage by Aircraft' 'causation' 'contributory Negligence' 'voluntary Assumption of Risk' "employer's Duty of Care" 'jurisdiction—federal Jurisdiction of State Courts' 'assessment of Damages']

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Procedural Posture

Appeal / New South Wales Court of Appeal—judgment on Appeal From District Court

Legal Issues

  1. 1 ['Whether the pilot/operator of an aircraft owed a duty of care to an electricity worker not present at the site of collision but likely to attend if negligent flying brought down a line' 'Whether statutory liability under Damage by Aircraft Act 1999 (Cth) (DAA) extends to indirect consequences of an aircraft impact (s 10(1)(d))' 'Whether employer breached duty of care to its injured employee' 'Whether contributory negligence or voluntary assumption of risk defences apply under DAA' 'Whether statutory or general law of contribution applies to liability under DAA, and to what extent']

Ratio Decidendi

The court held that the pilot of the aircraft (and thus Aircair/ACQ) owed no duty of care in negligence to the power linesman, Mr Cook, as he was not present at the site at the time and, as an experienced worker, was expected to take adequate care against known risks. However, statutory liability under Damage by Aircraft Act 1999 (Cth) s 10(1)(d) attaches to the aircraft owner/operator for injury indirectly resulting from the aircraft’s collision with the power line, regardless of negligence or intention. Contributory negligence is not a defence to actions under DAA. Voluntary assumption of risk is not made out. The employer, Country Energy, did not breach its duty of care; therefore,...

Court Disposition

Appeal by ACQ and Aircair dismissed (except cost orders reserved); NorthPower’s appeal allowed; judgment against Country Energy (NorthPower) set aside; judgment in favour of Mr Cook against Aircair/ACQ upheld; cross-claims and contribution orders set aside as appropriate.

Orders

  • ['Appeals by ACQ and Aircair dismissed, save as to costs to be subsequently determined' 'NorthPower’s (Country Energy) appeal allowed—verdict and judgment in favour of Mr Cook against Country Energy in court below set aside; judgment entered instead for Country Energy' 'Verdict and judgment in favour of Country...