The NSW Court of Appeal recently dismissed an appeal by the pilot of a light aircraft which collided with a Ferris wheel while attempting to land at an unattended airstrip. The pilot had conducted a flyover before attempting to land but had not identified the obstacle caused by the Ferris wheel.
The local authority operated the airstrip and allowed land adjacent to the airstrip to be used for a festival at which the Ferris wheel had been erected.
The pilot alleged that the local authority had been negligent in allowing the Ferris wheel to be erected in close proximity to the airstrip.
At first instance, the NSW Supreme Court dismissed the pilot’s claim on the grounds that the pilot’s injuries were the result of the materialisation of an obvious risk of a dangerous recreational activity. The NSW Court of Appeal upheld this decision.
Please click here if you wish to read our bulletin on the first instance decision.
The Court of Appeal decision
The pilot alleged that the trial judge had erred because:
- the trial judge should have specifically identified the Ferris wheel itself as part of the risk which materialised; and
- colliding with a Ferris wheel at the end of the runway was not an ‘obvious risk’ within the meaning of Section 5F of the Civil Liability Act 2002 (CLA).
The pilot also contended that the trial judge had erred in finding that flying was a ‘dangerous recreational activity’. However, this ground of the appeal was not pursued.
Specific identification of the ‘obvious risk’
Payne JA noted that this ground of appeal ‘primarily relied on hindsight, focussing on the precise obstacle with which the aircraft actually collided’.
The Court of Appeal noted that the risk ‘must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of the particular case’. Importantly, the Court of Appeal also observed that the risk must also be expressed with sufficient generality to preserve the intent of the CLA in allocating the burden of damages for injury suffered as a result of the materialisation of an obvious risk. The Court of Appeal’s approach was consistent with its previous decisions in Menz v Wagga Wagga Show Society Inc  NSWCA 65 and Carter v Hastings River Greyhound Racing Club [2020 NSWCA 185. HWL Ebsworth successfully acted for the defendants in both those decisions.
The Court of Appeal noted that hazards or built structures in the splay of a runway were sufficiently common for CASA to issue guidance to pilots to check for obstacles before landing at an Aircraft Landing Area.
Accordingly, the Court of Appeal concluded that pilot’s suggested formulation of specifically identifying the Ferris wheel descended ‘to an unnecessary level of particularity…to capture the harm which materialised on the facts of this case’.
Obviousness of the risk
The pilot contended that the risk of collision with an obstacle was not obvious because a reasonable person in his position would not expect an obstacle to be present in the splay of the airstrip. The pilot relied on evidence that he did not see the Ferris wheel during a ‘touch and go’ prior to attempting landing at the airstrip.
The pilot also submitted that the evidence of his passengers observing the Ferris wheel during a flyover prior to attempting the landing was irrelevant.
The Court rejected these submissions, noting that:
- CASA had provided guidance to pilots to check for obstacles before attempting landings at an Aircraft Landing Area; and
- the fact that obstacles were an obvious risk was the reason why the pilot had conducted a flyover to look for such risks.
The decision is most relevant to the recreational aviation industry, confirming that recreational flying is a ‘dangerous recreational activity’ and that obstacles near airfields are an ‘obvious risk’ for the purposes of civil liability legislation.
In the unfortunate event of a mishap during recreational flying, it is clear that the New South Wales courts are willing to find that the ‘dangerous recreational activity’ defence will apply to personal injury claims arising from such accidents.
For aviation operators generally, the circumstances of the incident illustrate the importance of pilots making adequate checks for obstacles when attempting landings at unattended landing areas.
This article was written by Matthew Brooks, Partner, Simon Liddy, Partner and James McIntyre, Special Counsel.