Court awards helicopter crash survivor damages, despite tax issues

On 17 December, the NSW Supreme Court awarded a helicopter crash survivor and his company almost $500,000 in damages, determining that the helicopter’s maintenance crew had failed to detect mechanical faults which led to it crashing.

In April 2018, experienced pilot Philip O’Driscoll crashed his helicopter during a lifting operation to move a large drill rig in NSW’s Snowy Mountains. After completing 11 lift runs, as O’Driscoll was hovering close to the loading area, the helicopter experienced a mechanical fault.

“As the helicopter started to climb, [O’Driscoll] heard a loud mechanical noise. He formed an intention to immediately land on the drill pad. However, there was a sharp yaw, and he felt the aircraft drop. Everything went quiet and the “engine out” audible alarm went off,” court documents read.

“His training took over. He broadcasted a “mayday” call and attempted to jettison the long-line. He chose to land in the riverbed. He tried to avoid the tree lines and did his best to avoid a hard landing. He lost control with the helicopter ultimately colliding with the trees and the riverbed.

“The helicopter caught fire. Although ground persons in the loading area attended quickly and extinguished the fire, the helicopter was severely damaged. This must have been a traumatic event for [O’Driscoll].”

Subsequent investigations revealed fatigue cracking in the helicopter engine’s exhaust diffuser, which O’Driscoll argued the maintenance company, Encore Helicopter Maintenance, should have picked up on. He sued the company for failing to properly inspect the helicopter.

“[O’Driscoll said] that this external cracking was present at a time or times when the exhaust diffuser was inspected by the defendant and should have been detected by the defendant. If it had been, the helicopter would have been grounded until the repairs had been effected and the crash would not have happened,” court documents read.

The NSW Supreme Court described O’Driscoll as a remarkable man, having survived an earlier helicopter crash in 2005 in Canada and resumed his occupation of flying helicopters despite catastrophic injuries.

In 2010, he received generous financial assistance, which allowed him to purchase the helicopter – a military-style “Huey” – he crashed in 2018. From 2013 to 2018, he also worked as an aerial firefighter for the NSW Rural Fire Service (RFS).

Following the 2018 crash, O’Driscoll sued Encore Helicopter Maintenance for physical and psychological damages and future lost earning capacity.

Complicating the court’s decisions was the fact that O’Driscoll could not produce personal income tax returns from 2018 to 2024, because he had not filed one since 2018.

“Despite operating a business and seemingly having sufficient funds to at least not be impoverished, he has not paid tax in 13 years,” court documents read.

In the financial year following the crash, 2019, the company recorded gross income of $734,000. The following year, it rose again to $1,060,000, which the court said was suggestive of its “regular work” based on earnings before the crash.

The court said the financial statements were “illuminating” because they showed that the company had paid zero tax over its 14 years of operations. O’Driscoll said his accountant had informed him that he was not required to, as he had never earned more than the taxable threshold.

“Even his company achieving a gross income of over $1 million has been insufficient for him to have earned a taxable income,” court documents read.

“Indeed, according to his pre 2018 tax returns, in most years he earned nothing at all. The purpose of completing the tax return appears to have been to obtain a rebate from the government.”

Furthermore, the court noted that O’Driscoll had not reported any psychological symptoms to the Civil Aviation Safety Authority (CASA) when he had re-applied for his pilot’s license on an annual basis since 2018.

“These matters present as significant challenges to the plaintiff in recovering the substantial damages he seeks,” the court noted, regarding his tax and medical records.

“[O’Driscoll] may have developed some anxiety or aggravated a pre-existing anxiety state for a period after the crash. It no doubt took some determination and resolve to go back to flying but this is what he did. I do not accept that he developed PTSD consequent of the 2018 crash.”

The court assessed his personal damages, including the loss of his helicopter, non-economic losses due to physical injuries, to be worth $110,500. His company’s claim was assessed at $859,888.

Due to ‘contributory negligence,’ the court docked the sums by 50 per cent, awarding O’Driscoll $55,250 and his company $429,944 in damages on December 17, to be paid by Encore Aviation.