The NSW Supreme Court recently found that a local authority which operated an airstrip and allowed land adjacent to the airstrip to be used for a festival was liable in negligence to a festivalgoer who suffered psychological injuries when an aircraft collided with a ferris wheel.
The Court also dismissed the pilot’s claim for damages in negligence against the local authority and confirmed recreational flying is a ‘dangerous recreational activity’.
Facts
The plaintiff was enjoying a ride in a gondola of a ferris wheel located at the annual Old Bar Festival at Old Bar, New South Wales. She suffered psychological injuries when a light aircraft collided with the ferris wheel after attempting to land at an adjacent airstrip.
The Old Bar Festival was held on land controlled by the Greater Taree City Council. The festival site was adjacent to an airstrip which was also controlled by the Council.
The Court had regard to Civil Aviation Authority Advisory Publication 92-1 Guidelines for Aeroplane Landing Areas (CAAP 92-1). Although not legally binding, the document set out guidelines for landing areas such as runway width and most relevantly, ensuring that the area 900m beyond either end of the airfield was clear of objects above a vertical slope of 5% (‘the vertical splay’) and 75m either side of the centre of the runway.
The Court found that, on the balance of probabilities, the ferris wheel was located within the splay area and would have created an obstruction within the 5% gradient. An employee of the Council had inspected the ferris wheel but did not require it to be relocated.
The Court heard evidence from a number of expert witnesses. The Court found that the pilot did not take reasonable care when attempting the landing as he did not land as close as he should have to the beginning of the runway and failed to ensure that his flight path was unobstructed, resulting in the collision with the ferris wheel.
The Court also heard evidence that the Council was aware of the location of the ferris wheel, approved its use at that location during the Festival and was aware that aircraft would be landing and taking off from the airstrip as it had invited aircraft to use the airstrip during the festival.
The decision
In a lengthy decision, the Court found that both the Council and the pilot were liable to the plaintiff in negligence, apportioning 65% of liability to the Council and the remaining 35% to the pilot.
With regard to the Council, the Court held that:
- it was fully aware of the operation of the Festival and controlled whether the Festival should be conducted;
- it had the power to refuse permission or place conditions on the operation of the ferris wheel and its location;
- it was aware of the Civil Aviation Authority guidance to avoid the risk of collision;
- it had the capacity to ensure that the risk of harm associated with placing the ferris wheel in the splay of the airfield did not arise;
- it should have, and was required to take reasonable steps to prevent the risk of harm associated with the use of the airstrip at a time when it permitted obstructions in the airstrip splay, and was aware the airstrip would be used; and
- no reasonable Council armed with that information and exercising its powers would have allowed the airstrip to be used and/or the ferris wheel to be erected in such a location when the airstrip was to be used, on the invitation of the Council, or to its knowledge.
In dismissing the pilot’s claim in negligence against the Council, the Court held that:
- when taking off or landing at airstrip, there is an obvious risk that a collision may be caused by an obstruction in the flight path or possible flight path of the aircraft;
- in the circumstances, the pilot had undertaken the flight for ‘enjoyment relaxation or leisure’; and
- the pilot was engaged in a “dangerous recreational activity” for the purposes of section of the CLA and the collision was the materialisation of an obvious risk of that activity. Accordingly, the pilot’s claim was excluded by the operation of section 5L of the CLA.
Commentary
The decision is most relevant to aerodrome operators, such as local authorities or flying clubs as it illustrates the need to ensure that an airfield’s surrounds are free from permanent or temporary obstructions which may create an obstruction or hazard to aircraft.
The decision also confirms that injuries arising out of recreational aviation activities will likely be characterised as the materialisation of an obvious risk and liability will likely be excluded by the ‘obvious risk’ defences under civil liability legislation.
This article was written by Matthew Brooks, Partner and James McIntyre, Special Counsel.
