In brief - Kempsey Shire Council successful in appeal case

The New South Wales Court of Appeal recently upheld an appeal by Kempsey Shire Council in its case against Five Star Medical Centre Pty Limited arising from the collision of an aircraft with a kangaroo on landing at Kempsey aerodrome in 2014. 
 
The first instance decision of the New South Wales District Court was reported by us in our February 2018 article Airport operator found negligent for aircraft collision with a kangaroo
 
The majority in the New South Wales Court of Appeal, being McColl and Basten JA, held that, when considering the meaning of the "obvious risk" under section 5F of the Civil Liability Act 2002 (NSW) (Act), the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff, and should be assessed "at a reasonable level of generality". The plaintiff's pilot should have been and was in fact aware of the obvious risk of colliding with a kangaroo on the runway at Kempsey aerodrome, having read of the kangaroo hazard in the Notice to Airmen (NOTAM) and the En Route Supplement Australia (ERSA) notice for the aerodrome.
 
The appeal challenged two principal findings of the trial judge, namely that the Council had been in breach of its duty of care to users of the aerodrome by:
  1. not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels, and
  2. not erecting a kangaroo-proof fence around the entire aerodrome
The Council contended that the risk was an "obvious risk" within the meaning of section 5 of the Act and, pursuant to section 5H of the Act, the Council had no duty to warn of an obvious risk to the plaintiff.
 
In relation to the failure to erect the kangaroo-proof fence, the Council contended that the judge had erred in failing to find that there was evidence of a paucity of resources available to the Council to carry out the necessary construction works such that, applying the general principles of section 5B and those in section 42 of the Act, it had not breached its duty of care.

Section 5F, section 5H and section 42 of the Civil Liability Act

Section 5F - Meaning of "obvious risk"
 
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
 
Section 5H - No proactive duty to warn of obvious risk
 
(1) A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
(2) This section does not apply if:
(a) the plaintiff has requested advice or information about the risk from the defendant …
 
Section 42 - 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 …
 

Findings of the court on obvious risk, Council's duty of care and Council's financial resources

The majority found that there was no evidence that there had been any significant change in the number of kangaroos on the aerodrome during late morning or early afternoon when the aircraft collided with a kangaroo and, on this evidence, it was not possible to conclude that a level of risk existed which was not properly described as within the obvious risk accepted by the pilot. 
 
The majority also rejected the trial judge's finding that, in consulting the ERSA and the NOTAM on-line, the plaintiff had "requested advice or information about the risk from the defendant" and that accordingly the exclusion under section 5H(2)(a) applied. The majority disagreed with that finding and noted that the NOTAM and ERSA were posted not on the defendant Council's website but on that of Airservices Australia and so pursuant to section 5H(1), the Council did not owe a duty of care to warn of the risk that materialised, it being an obvious risk. 
 
The dissenting judge, Simpson AJA, thought a more liberal interpretation ought to be given to section 5H(2)(a) and that even though the website was maintained by Airservices Australia, the source of the information was the Council itself. In these circumstances, it was not unreasonable to regard the pilot's consultation of the website as a request for advice and information from the Council, at least indirectly.
 
In relation to the fencing of the aerodrome, the majority found that the trial judge had failed to take proper account of the paucity of financial resources available to the Council and of the fact that, despite there having been in the order of 8,000 aircraft movements in the period between 2005 and 2014, there had never been a kangaroo strike before. The trial judge considered that use of the aerodrome by the air ambulance and Royal Flying Doctor Service should not "count" because they had a separate arrangement for kangaroos to be chased from the runway before use by those services. The majority considered that the Court should not find a breach of duty by failing to take a precaution in circumstances where a decision to take the precaution required an assessment of conflicting demands on the Council's budget. All three judges agreed that the trial judge erred in finding that the Council breached its duty to take reasonable care by failing to build a fence around the airport.
 
The final upshot of the decision was that the previous order awarding damages to Five Star Medical Centre was set aside and, in its place, judgment was given for the defendant Council, dismissing the Statement of Claim and ordering that the plaintiff pay the defendant's costs of the proceedings and the costs of the appeal.

Good news for airport operators but how equivalent law applies in other states needs to be considered

Readers should note that the New South Wales Civil Liability Act provisions differ in some important respects from the equivalent law in other states of Australia and should be careful to check the applicable legislation.
 
However, the decision will undoubtedly provide some guidance to courts considering similar issues in other states and a greater degree of comfort to airport operators than was the situation after the initial decision in the District Court.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal or financial advice. Please seek your own legal or financial advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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