In brief - Plaintiff successfully sues for damage to aircraft

Kangaroos pose a significant problem for operators of airports in Australia against which operators must take appropriate action to minimise risks. This is demonstrated in the decision in the New South Wales District Court in Five Star Medical Centre Pty Limited v Kempsey Shire Council [2017] NSWDC 250 delivered in September 2017.

Aircraft damaged as a result of colliding with a kangaroo shortly after touchdown at Kempsey aerodrome

Kempsey Shire Council has owned and operated the Kempsey aerodrome since 1977. While in 2014 it was not used for commercial flights, it saw about two or three aircraft movements each day and was used by the Royal Flying Doctor Service, the New South Wales Air Ambulance, by local and hobby pilots, parachuting and skydive businesses and a flight training college, and was the base for Macleay Aircraft Maintenance. 
On 25 February 2014, a private pilot flew his aircraft from Port Macquarie to Kempsey for its annual service. Prior to take-off the pilot checked that there was an En Route Supplement Australia (ERSA) for Kempsey Aerodrome which stated "kangaroo hazard exists". There was no relevant Notice to Airmen (NOTAM). 
As he approached Kempsey, the pilot flew overhead and made a visual inspection of the runway. He saw no kangaroos during his approach and he landed mid-afternoon. A few seconds after touchdown he noticed movement in the long grass about 150 metres ahead of the aircraft. He braked moderately and he saw a kangaroo emerge from the long grass and jump towards a collision point in the centre of the runway. He braked the aircraft severely and swerved to the right to try to avoid collision. The kangaroo changed its direction of travel and jumped across the path of the aircraft before striking its left wing. The left hand propeller and wing of the aircraft were damaged and the kangaroo was killed in the collision.

Duty of care and foreseeable risk among Civil Liability Act issues considered by Court

Judge Russell noted that he was required to consider the nature of the duty of care owed to the plaintiff, the extent of that duty, the breach of the duty and the damage, and the application of the Civil Liability Act 2002 (NSW).
The existence of a duty of care was admitted. 
Section 5B of the Civil Liability Act provides:
1. A person is not negligent in failing to take precautions against a risk unless:
(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
(b) the risk was not insignificant; and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
2. In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a) the probability that the harm would occur if care were not taken; 
(b) the likely seriousness of the harm; 
(c) the burden of taking precautions to avoid the risk of harm; 
(d) the social utility of the activity that creates the risk of harm.

The Court found that the risk of collision between an aircraft and a kangaroo causing damage to an aircraft and harm to its occupants was foreseeable and was a risk of which the defendant knew or ought to have known. The Civil Aviation Safety Authority had told the defendant of the risk in 2005 and annual inspection of the safety of the airport emphasised that risk. It was not an insignificant risk for a number of reasons, including a substantial increase in the presence of kangaroos at the airport. It was further found that the defendant had failed to take reasonable care by not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels. 
The judge found the presence of kangaroos was not an obvious risk to a reasonable person in the position of the pilot. (He had given evidence that he had flown to Kempsey on some 20 previous occasions and had never seen a kangaroo at the airport.)

Kempsey Shire Council failed to take action against a risk of which it was aware 

Section 42 of the Civil Liability Act provides:
Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
(b) the general allocation of those resources by the authority is not open to challenge,
(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

There was evidence that a fence would have dramatically reduced the risk of a kangaroo being airside at Kempsey aerodrome. The Court found that there was a failure by the defendant to take reasonable care in not erecting a kangaroo proof fence around the entire airport and that this was a failure which commenced at least in 2005 or at the latest by 2010, notwithstanding that the defendant had resolved not to borrow funds after 2010. Evidence was given at the trial regarding the cost of building a two metre high fence and of the Council having different spending priorities. 
The judge found that the Council had failed to take reasonable care by not building the fence, and that there was a factual causation between the accident and the failure to issue a suitable NOTAM warning of dangerous levels of wildlife at the airport and the failure to build the fence as recommended.
Allegations of contributory negligence were rejected by the Court.
The plaintiff obtained judgment for its losses including the cost of aircraft repairs, storage fees, interest and costs.

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