Seat belts fastened, tray tables stowed, phones switched off…and watch out for kangaroos?
The beloved Aussie symbol of the ‘flying kangaroo’ takes on a whole new meaning following a recent decision of the NSW District Court, which saw a local Council held liable to an aircraft owner, Five Star Medical Centre Pty Limited, after a kangaroo collided with its aircraft upon landing. It’s what this author is already coining the ‘most Australian’ case of the year (and potentially in recent history). Luckily, no one was injured in the accident, however following a $195,853.51 judgement, local councils and airports should be waking up to the dangers of roving rogue roos on runways, and realising the legal obligations associated with them.
On 25 February 2014, the plaintiff’s aircraft was flown from Port Macquarie to Kempsey for an annual service. Upon landing the aircraft, the pilot saw a kangaroo hopping from the long grass adjacent to the runway. Despite the pilot braking and swerving, the ambitious kangaroo seemed hell bent on its runway trajectory and collided with the aircraft. The aircraft’s left propeller was damaged. The kangaroo unfortunately did not survive.
The Council, which owned and operated Kempsey Airport, was found by the Court to have breached its duty of care, and to have failed to take reasonable care by not erecting a kangaroo proof fence around the entire airport. It was revealed that the Council, which had chosen to keep the Kempsey Aerodrome open for the use of emergency air medical transportation, had been aware of the growing risk of kangaroo runway incursions. In early 2014, it had reported that wildlife numbers in the area were increasing to ‘dangerous levels’. The Court found that the Council had also failed to take reasonable care by not issuing a Notice to Airmen (NOTAM) stating that kangaroo incursions had increased to dangerous levels, and by failing to increase inspections of wildlife in early 2014, as was required by its own Wildlife Hazard Management Plan. Whilst it had never occurred before, the risk of a collision between an aircraft and a kangaroo at the aerodrome was both a foreseeable and a not insignificant risk, considering the Council had knowledge of the danger of the risk for almost 10 years.
Section 42 of the Civil Liability Act 2002 (NSW), which applies in determining whether a public authority has a duty of care or has breached a duty of care, did not apply in this case. Whilst the Council had been aware since as early as 2005 that a fence was the best solution to the kangaroo problem, it had decided not to fund the construction of a fence. The Council could not use section 42 to plead lack of resources, as it had elected to keep the Kempsey Aerodrome open for use- the aerodrome was not a required council function. If a public authority chooses to provide a voluntary service, prima facie it must take all such precautions against the risks of injury which the provisions of those services will create and it is prima facie not open to plead lack of resources if it does not (Cekan v Haines (1990) 21 NSWLR 296).
The pilot was not found to have been contributorily negligent, as there was nothing to indicate that he had acted in anything other than the manner required of a prudent and reasonable pilot.
Whilst it is doubted that this case will bring inspiration for a ‘Kangaroo-Proof Fence’ cinematic drama (contact the author for copyright!), it does serve as a poignant reminder of the legal obligations on councils and airport operators to keep an eye out for the other ‘flying kangaroo’, and to effectively manage the real and significant risk of wildlife on runways.
Five Star Medical Centre Pty Limited v Kempsey Shire Council  NSWDC 250.
This article was written by Matthew Brooks, Partner, Simon Liddy, Partner and Caroline Michel, Graduate-at-Law.
Cekan v Haines (1990) 21 NSWLR 296
Civil Liability Act 2002 (NSW) s5B, s5C, s5D, s5R, s42
Local Government Act 1993 (NSW)