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Personal Injuries Digest: Helicopter Pilot Crashes in Papua New Guinea Highlands

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

Background

Mr Towers was injured while flying a helicopter which crashed in the highlands of Papua New Guinea, in the course of his employment with Hevilift Ltd (Hevilift). As a result he was rendered an incomplete quadriplegic and permanently incapacitated for work as a pilot.

This decision deals with the quantum aspect of the case. An earlier trial on liability had found that Hevilift was negligent, because it failed to warn Mr Towers there was a reasonably foreseeable danger of rapid cloud envelopment where the accident occurred. It also failed to provide Mr Towers with a helicopter that was equipped for those conditions.

In order to understand the flight conditions at the time of the accident, the judge took into account the expert evidence of a meteorologist who stated:

“[t]he 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 (emphasis added).” (Towers v Hevilift & Anor [2016] QSC 267 at para. 82).

It was found that Mr Towers experienced this “meteorological phenomenon” as he approached the locality of the crash, a site known as Camp 57. Hevilift’s argument that Mr Towers negligently flew into fog or cloud was rejected, as it had been established that at Camp 57, thick cloud would rapidly and seemingly appear out of nowhere.

Appeal

Hevilift was unsuccessful in its appeal against the finding that it was negligent, mainly because the evidence it led from experienced pilots did not go so far as to refute that the cloud could appear rapidly in an apparently clear flight path.

Quantum

The court in 2020 then addressed the question of quantum (see Towers v Hevilift (No. 2) [2020] QSC 77).

The court looked at Mr Towers’ life expectancy in some detail. A significant portion of Mr Towers’ claim was for care he would require for the balance of his anticipated lifespan.  Mr Towers was 55 years old at the date of the accident and 69 years old at the time of assessment.  The court took into account both actuarial evidence and scholarship on the impact of recurrent pressure sores on life expectancy.  If found that Mr Towers would expect to live a further 15 years for the purposes of assessing damages, a reduction of 1.7 years from the average life expectancy in the actuarial tables.

Mr Towers’ flying skills and reputation were also taken into account in determining the claim for loss of earning capacity.  Evidence was heard from flying professionals who had encountered him over the years.  It was found that while he was a competent pilot, he was not an outstanding pilot whose income and station would have significantly increased during the remainder of his flying career.

The court found that he would not have been an employment prospect after he reached 68 years of age, given that he would have become less competitive with other pilots in the market by that stage.  The court rejected Mr Towers’ evidence that he would have remained working for Hevilift until retirement, particularly given his age, as this involved an intensive one-month-on, one-month-off schedule, travelling back and forth from Victoria and PNG and staying in camps.

Damages awarded

A total of $5.6 million in damages was awarded to Mr Towers.

In addition to general damages, awards were made for household modifications and extensions, of approximately $264,000.00.

Significantly large awards were made for gratuitous service and paid care (divided into costs until aged 75 and after the age of 75) of approximately $2.5 million.

Learnings

It is extremely important that an expert’s evidence directly address the technical issues in dispute.  In this case, the expert evidence of pilots called by Hevilift did not disprove the meteorologist’s evidence regarding the extraordinary and rapid nature of cloud envelopment in the particular location in the Southern Highlands.  This failure to address the technical issues in dispute ultimately led to the dismissal of Hevilift’s appeal.

In determining a claim for economic loss, the court will take into account evidence of contemporaries in the plaintiff’s field to determine their level of skill and talent in their field.  This evidence is used to determine whether a person’s income and career prospects would have significantly improved during the time they would have worked, if the incident had never occurred.

The quantum case demonstrates the importance of properly evidencing and particularising claims involving significant awards for gratuitous services and paid care when the person becomes permanently incapacitated due to the injuries.

The judgements highlight that an employer in the field of aviation has a duty to warn employees of foreseeable dangerous flying conditions, and led to the Don’t Push it, Land it Campaign, a joint initiative from the Airport Transport Safety Bureau (ATSB), the Civil Aviation Safety Authority (CASA), and the Australian Helicopter Industry Association (AHIA).

Contact us

This digest was prepared by Alex McKean, Special Counsel in our Personal Injury Team.  If you need legal advice regarding your specific situation, we recommend you contact Alex and the Personal Injuries Team on (07) 4637 6300 at Toowoomba.  Alternatively, click here to send Alex a direct enquiry.

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