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AO-2023-001 update: Lawyer's Picnic??

Via the Oz:

Sea World helicopter crash a legal minefield for those involved



ATSB investigators examine the wreckage of one of the helicopters involved in a mid-air crash at Sea World on January 2. Picture: NewsWire / David Clark

By ROBYN IRONSIDE
AVIATION WRITER
@ironsider
9:31PM JANUARY 9, 2023
30 COMMENTS

The Sea World Helicopters crash could result in criminal charges against the company involved, and lead to changes in the way scenic joy flights are managed ­nationwide, aviation lawyers say.

Four people were killed in the horrific mid-air crash last Monday, including Sea World Helicopters chief pilot Ashley Jenkinson. British newlyweds Ron and Diane Hughes and Sydney mother Vanessa Tadros also died. Ms Tadros’s son Nicholas ­remains on life support in a critical condition at the Queensland Children’s Hospital.

The Australian Transport Safety Bureau is investigating the collision, which occurred as one Eurocopter took off from the Sea World helipad and another was descending to land. They were in “G” class airspace, which requires pilots to “see and be seen” and ­remain in regular radio contact.

Video taken by a passenger showed the incoming pilot apparently unaware of the proximity of the ascending helicopter ­moments before the crash.

Heavy demand for the five-minute joy flights in peak tourist season meant Sea World Helicopters was conducting as many as seven flights an hour.

AvLaw managing director and chairman Ron Bartsch said he expected flight and duty times would be examined closely by both the ATSB and Civil Aviation Safety Authority.

“Another aspect of the investigations will no doubt involve looking into the density and mix of traffic and a possible review of the classification of airspace to ­ensure it is appropriate,” Professor Bartsch said. “I expect they will examine the chief pilot responsibilities and workload as well.”

Any recommendations made by the ATSB would have industry-wide implications.

Aviation lawyers suggested a finding of “reckless navigation” under the Civil Aviation Act could result in criminal charges against Sea World Helicopters. Investigators could also find the company failed to follow its own safety management system in breach of regulations.

University of South Australia adjunct professor of law Rick Sarre said state workplace health and safety inspectors had the power to bring charges of criminal negligence, similar to what ­occurred at Dreamworld in 2016 after four people were killed on a ride. In that case, theme park owner Ardent Leisure was fined $3.6m after a coroner found “unjustifiable failings” in safety management at Dreamworld.

“If that occurs in the case of Sea World Helicopters, it will be the company rather than the (surviving) pilot who would be held ­liable,” Professor Sarre said.

Australian Helicopter Industry Association president Ray Cronin said the operators of ­scenic joy flights were already held to the same standards as airlines, and he did not expect any significant changes to regulation as a result of the Sea World crash.

Plus:

Lengthy legal battle awaits Sea World chopper crash survivors


Emily and Bobby Sheets, survivors of the fatal Whitsunday Air Services helicopter crash in 2018, are still fighting for compensation in court five years later.

    By ROBYN IRONSIDE
    8:32PM JANUARY 10, 2023

Survivors of the horrific Sea World Helicopters’ crash face a lengthy legal battle for compensation under what aviation lawyers say is flawed legislation.

The Civil Aviation (Carriers Liability) Act applies to the vast majority of aircraft crashes in Australia, and caps compensation at $925,000.

Although that figure might appear substantial, for people who suffer permanent injuries, ongoing psychological trauma and an inability to work, the money does not stretch far, particularly after legal fees are subtracted.

In the case of Sydney father Jay Stevens, the funds barely covered his medical expenses when he was left a paraplegic after a scenic helicopter flight over Uluru crashed in 2018.

Although he sought uncapped damages under common law for his injuries, the court found the Civil Aviation (Carriers Liability) Act applied, severely restricting any pay out.

Survivors of another helicopter crash at Hardy’s Reef in the Whitsundays, Emily and Bobby Sheets, were still fighting for any compensation five years after the incident.

Emily’s mother Susan Hansel died when the helicopter operated by Whitsunday Air Services missed a pontoon and plunged into the sea, along with Susan’s husband Peter Hansel.

Despite the Australian Transport Safety Bureau investigation finding pilot error was the main contributing factor to the crash, Whitsunday Air Services was vigorously defending the couple’s claim for compensation on the basis they were not seriously injured.

AvLaw Aviation Consulting founding director and chairman Ron Bartsch said there was strict liability or no fault liability under the Act, meaning that negligence did not have to be proven.

But insurance companies and operators still strenuously defended claims for damages, drawing out the process and making it very difficult for the victim.

“This means that a proportion of any damages is eaten up with legal costs,” said Professor Bartsch.

He said the Act was well overdue for amendment to address shortcomings such as the matter of psychological injury.

“If it’s too difficult to sue an aircraft operator and there are very limited rights of recovery then this is acts as an impediment to incentivising operators to maintain their safety standards in this context,” Prof Bartsch said.

Under the Act, psychological injuries such as post traumatic stress disorder (PTSD) were not recognised, unless it could be proven that mental trauma had resulted in physical injury.

Lawyer Ros Everett came close to having PTSD recognised as a physical injury when she was able to show neural pathways in the brain of nurse Karen Casey changed after a plane crash off Norfolk Island in 2009.

The NSW Supreme Court found in favour of Ms Casey but the ruling was appealed by operator Pel-Air and Ms Everett said they were left with no choice but to settle.

“This law is just so difficult to navigate,” said Ms Everett.

“I would’ve loved to have run the case all the way to get a definitive ruling that PTSD does constitute a physical injury but if we’d lost Karen would’ve been stuck with their legal bill.”

More than a week after the Sea World Helicopters’ crash, three of the ten people injured in mid-air collision remain in hospital.

Nicholas Tadros, 10, is listed as critical but stable in the Queensland Childrens’ Hospital. Nine-year-old Leon de Silva and his mother Winnie are both stable but face several more weeks of hospital treatment.

Four people were killed in the crash including chief pilot Ashley Jenkinson, British newlyweds Ron and Diane Hughes, and Nicholas’ mother Vanessa.

The Australian Transport Safety Bureau is investigating the crash which occurred in clear conditions about 150m above ground as one helicopter took off and the other was coming into land.

An update on the investigation is expected by the end of February, with a final report due late next year. 

Under the Act, psychological injuries such as post traumatic stress disorder (PTSD) were not recognised, unless it could be proven that mental trauma had resulted in physical injury.

Lawyer Ros Everett came close to having PTSD recognised as a physical injury when she was able to show neural pathways in the brain of nurse Karen Casey changed after a plane crash off Norfolk Island in 2009.

The NSW Supreme Court found in favour of Ms Casey but the ruling was appealed by operator Pel-Air and Ms Everett said they were left with no choice but to settle.

“I would’ve loved to have run the case all the way to get a definitive ruling that PTSD does constitute a physical injury but if we’d lost Karen would’ve been stuck with their legal bill.”

More than a week after the Sea World Helicopters’ crash, three of the ten people injured in mid-air collision remain in hospital.

Nicholas Tadros, 10, is listed as critical but stable in the Queensland Childrens’ Hospital. Nine-year-old Leon de Silva and his mother Winnie are both stable but face several more weeks of hospital treatment.

Four people were killed in the crash including chief pilot Ashley Jenkinson, British newlyweds Ron and Diane Hughes, and Nicholas’ mother Vanessa.

The Australian Transport Safety Bureau is investigating the crash which occurred in clear conditions about 150m above ground as one helicopter took off and the other was coming into land.

An update on the investigation is expected by the end of February, with a final report due late next year.

MTF...P2