Aviation Briefs

Power line camouflaging in one form or another has been going on for some time and one assumes it is intended to continue. The question it raises however is: if an aeroplane, helicopter, balloon or glider should fly into a concealed power line could liability be sheeted home to the statutory authority responsible for its concealment? Whether or not liability could be revolves around the question of whether the statutory authority (the Electricity Authority in this case) was negligent in whatever it did (or intends to do) in camouflaging the lines or the poles. That in turn begs the question of what a reasonable person in the same position as the authority would have done or not done, as the case may be, knowing all the things that the authority knew in all of the circumstances that existed at the time the authority concealed the power line.

Clearly, so far as power lines are concerned that would depend a great deal on, among other things, where the power lines are located; that would be a fundamental question. For example, one would doubt whether anyone would argue that the camouflaging, however one did it, of power lines, say in the city of Sydney, would be regarded by a reasonable person as a dangerous, careless or negligent thing to do; the reason being that when we ask what is the likelihood of an aeroplane, glider, balloon, helicopter, ultra light or gyrocopter flying at such a low level that they might hit a power line in Sydney, the answer is probably that there is scarcely any likelihood of that happening unless the pilot was himself or herself outrageously negligent, so negligent that the court would likely not come to his or her aid. However, there is at least one power line across the Hawkesbury River north of Sydney somewhere between Patonga and Brooklyn Bridg·e (a distance of 6 kilometers), that line is fairly low but it is legal to fly at feet over the river (that being a legal minimum altitude above the highest object on the ground within a six hundred metre radius directly beneath the aircraft’s flight path). In that situation one could well argue that if that line was camouflaged so as to make it even less obvious than it is now and an aircraft flew into it, there would be a good chance that the statutory authority would be held liable in damages for the personal injury or death occasioned to any occupants of the aeroplane.

Of course, liability would depend also on the type of traffic in the general vicinity. Clearly, in areas where there is, for example a lot of crop duster, ballooning or gliding activity, the statutory authority might be more readily held liable for the consequences of injury or death to pilots and passengers than they would be in other areas where there is relatively little or no regular aviation activity.

Additionally, it is patently obvious that the electricity authority owes a higher standard of care to low flying and non-powered aircraft and balloons because due to their reduced ability to avoid collision and/or simply because of the very nature of their operations, they are more vulnerable to the dangers of collision than aircraft which spend all or most of their operational time well away from power lines:

So it can be seen that liability depends upon considerations of that nature. It is impossible to say with complete confidence that the authority would be liable for the consequences of injury or death to pilots and passengers regardless of where the power line was situated and without regard to the nature and volume of air traffic in the collision area. In the final analysis it would come down to a question of the judgment of the court, be it a judge sitting alone or with a jury, asking the fundamental question: what would the reasonable person have done or refrained from doing in the circumstances knowing all of the things that the statutory authority knew and with all of the resources available to it.

That is an overview of the civil law touching upon the matter; it is impossible to give a definitive answer, but it could hardly be said by the electricity authority that it has not now been brought to notice about the potential danger of camouflaging power lines. One must add this too, it is never a defence for a statutory authority in an action arising out of the allegedly negligent performance of their duties, or exercise of their powers, to simply say that the piece of legislation that creates them and gives them their powers allows them, for example, to camouflage power lines. Whilst an authority may well have the power to build roads guttering and drainage systems, erect power and do all manner of things the Courts say that if they do it in a negligent manner, the law will not fail to visit the consequences upon the negligent statutory authority, quite apart from what may be set out in the relevant piece of legislation.

Furthermore, readers are doubtless aware of the existence of the Commonwealth and the New South Wales Civil Aviation (Carriers’ Liability) Acts. It seems to this writer that neither of those would have any applicability in an action by pilot or his passengers, or their dependents in the postulated circumstances because the Carriers’ Liability Acts of course relate to ‘carriers’ and they say nothing about limiting liability for any other tortfeasor who may independently be the cause of an aeroplane crash. So that if a widow brought an action against the electricity authority arising out of the death of her spouse following upon a collision with a concealed power line, it having been concealed in a negligent manner, the damages would be at large, and would very likely be substantial.

In conclusion, one is driven to say that the electricity authority has embarked upon a very hazardous activity in concealing power lines and masts and it is exposing itself to ·considerable potential liability. It seems to this writer that the only way for it to avoid liability is to consult fully with appropriate industry representatives (not only the CAA) with a view to developing and implementing high safety standards. Furthermore, the authority, far from concealing power lines, must erisure that any potentially dangerous installation is clearly marked, not only marked on the line itself but also on all appropriate aeronautical charts.

The first step towards resolving this thorny problem has, thankfully, already been taken. Late in 1988 a seminar 6n the issue was convened by the Guild or Air Pilots arid Afr Navigators iri conjunction with the Aviation Law Association and other aviation industry groups. As a result of the seminar a study group was formed with the objective of formulating comprehensive guidelines to be applied to existing and proposed new power line installations. The study group was scheduled t6 commence its work in January 1989 and it is envisaged that its objectives will be achieved by the end of the year. Legibus Mundi Adstrictus Sed lnstar Avis Subvolo.