Encore Aviation v O'Driscoll Aviation 

2026/00015755

 TORTS (negligence) – Mr Philip O’Driscoll is the sole director and shareholder of the respondent, O’Driscoll Aviation Pty Ltd (O’Driscoll Aviation), a company through which he has conducted an aviation business since 2007 – in 2011, O’Driscoll Aviation purchased a Bell Garlick HU-1H helicopter – around that time, Mr O’Driscoll arranged for the appellant, Encore Aviation Pty Ltd (Encore), to manage and conduct all of the helicopter’s airworthiness, inspection, maintenance and repair requirements on a full-time basis, subject to a written maintenance agreement – on 17 April 2018, Mr O’Driscoll was piloting the helicopter when a loss of structural integrity of the helicopter’s exhaust diffuser assembly caused it to crash – the crash resulted in the destruction of the helicopter and in Mr O’Driscoll sustaining serious physical injuries – on the morning of the crash, Mr O’Driscoll (as the pilot of the helicopter) signed a daily pre-flight inspection certificate, believing that a licensed aircraft maintenance engineer assigned by Encore (Mr Harris) had that morning carried out all necessary inspections and maintenance – Mr O’Driscoll and O’Driscoll Aviation (together, the plaintiffs) each commenced separate proceedings (proceedings 2021/103314 and 2021/106215, respectively), against Encore and Encore Helicopter Maintenance Pty Ltd, seeking damages for negligence and for failure to exercise due care and skill under s 60 of the Australian Consumer Law – O’Driscoll Aviation claimed further damages for alleged breaches of the written maintenance agreement – Encore admitted it owed a duty of care to the plaintiffs and that it was liable for the conduct of Mr Harris, but raised issues of breach (of duty of care, consumer guarantee, and contract), causation, and contributory negligence – the primary judge found that Mr Harris conducted a pre-flight inspection on 17 April 2018 during which he failed to detect visible cracking in the helicopter’s exhaust diffuser, and this failure constituted a breach of Encore’s duty of care and consumer guarantee to exercise due care and skill – the primary judge further found that Mr O’Driscoll had himself failed to detect the cracking during his own pre-flight inspection and the plaintiffs were therefore equally responsible for the failure to detect the defects in the exhaust diffuser – the primary judge assessed the plaintiffs’ contributory negligence at 50 percent – the primary judge considered it unnecessary to determine the breach of contract claim – the primary judge awarded Mr O’Driscoll damages in the amount of $55,250 for loss of income and non-economic loss (in proceedings 2021/103314), and O’Driscoll Aviation damages in the amount of $627,732.41 (in proceedings 2021/106215), the latter amount being agreed by the parties – the primary judge dismissed the proceedings against Encore Helicopter Maintenance Pty Ltd – whether the primary judge erred in making various findings as to the pre-flight condition of the exhaust diffuser and the failure of Mr Harris to detect any cracking during his inspection – on the cross-appeal, whether the primary judge erred in making the finding of contributory negligence.

Decisions under appeal

O’Driscoll v Encore Aviation Pty Ltd [2025] NSWSC 1536; O’Driscoll v Encore Aviation Pty Ltd (No 2) [2026] NSWSC 205