Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council

[2020] NSWSC 1710

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council [2020] NSWSC 1710

Hearing dates:

4, 6-8, 11-15, 20-21 March 2019

Decision date:

01 December 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

In matter 2015/199567, Arndell v Mid-Coast Council and Ors:

(1)   Judgment for the plaintiff.

(2)   The second defendant, Mid-Coast Council, shall pay the plaintiff, Amber Christine Arndell, damages in the sum of $1,513,023.30.

(3)   Judgment on the cross-claim for the cross-claimant.

(4) Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), the cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, by payment to the cross-claimant, Mid-Coast Council, 35% of the aforesaid damages, being an amount of $529,558.16.

(5)   Interest shall be payable on all amounts from the date of judgment in accordance with the prescribed rate and shall be payable by the second defendant to the plaintiff and by the cross-defendant to the cross-claimant respectively.

(6)   The second defendant, Mid-Coast Council, shall pay the plaintiff’s costs of and incidental to the proceedings on the following bases:

(a)   on and from 20 December 2017, on an indemnity basis;

(b)   otherwise, costs, prior thereto, if any, on an ordinary basis.

(7) The cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), 35% of the costs assessed and/or agreed, payable pursuant to the immediately preceding order.

(8)   Leave is granted to any party to approach for the purposes of correcting any arithmetic or mechanical error in the foregoing calculations or the accidental omission of a head of damage.

In matter number 2014/286417, Paul Clarendon Cox v Mid-Coast Council and Ors:

(1)   Judgment for the defendants.

(2)   The plaintiff shall pay the defendants’ costs of and incidental to the proceedings.

(3)   Otherwise, the proceedings are dismissed.

Catchwords:

TORTS – personal injuries – two cases – psychiatric injury – public authority – Civil Liability Act 2002 (NSW) – flying as dangerous recreational activity – collision between aircraft and Ferris wheel – no damages allowed for Pilot – damages to occupant of Ferris wheel – joint and several liability

Legislation Cited:

Civil Aviation Regulations 1988 (Cth), r 92(1)

Civil Liability (Non-economic loss) Order 2010 (NSW)

Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5F, 5K, 5L, 5R, 16, 17, 18, 42, 43, 43A, 44

Evidence Act1995 (NSW), s 136

Interpretation Act1987 (NSW)

Law Reform (Miscellaneous Provisions) Act1946 (NSW), s 5

Local Government (General) Regulation 2005 (NSW), rr 4, 71, 72, 73

Local Government Act 1993 (NSW), ss 47A, 68, 75, 98, 219, 220, 222, 223, 355, 377, 382

Occupational Health and Safety Regulation 2001 (NSW)

Uniform Civil Procedure Rules 2005 (NSW), r 14.7

Cases Cited:

Adeels Palace Pty Ltd v Moubarak (2009) 239 CLR 420; [2009] HCA 48

Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649; [1968] HCA 9

Baird v Roberts [1977] 2 NSWLR 389

Bankstown City Council v Zraika (2017) 94 NSWLR 159; [2016] NSWCA 51

Council of the City of Greater Taree v Wells [2010] NSWCA 147

Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40; [1980] HCA 12

Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59

Donoghue v Stevenson [1932] AC 562

Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 31

Graham v Baker (1961) 106 CLR 340; [1961] HCA 48

Home Office v Dorset Yacht Co Ltd [1970] AC 1004

Husher v Husher (1999) 197 CLR 138; [1999] HCA 47

Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44

Livingstone v Rawyards Coal Co (1880) 5 App Cas 25

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20

Mead v Kerney [2012] NSWCA 215

Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61

New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20

Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

Rylands v Fletcher (1868) LR 3 HL 330

Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208

Shaw v Shaw (1954) 2 QB 429

South Western Sydney Local Health District v Sorbello [2017] NSWCA 201

State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133

Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62

Van Velzen v Wagenerhan (1975) 10 SASR 549

Wallace v Kam [2012] NSWCA 82

Watts v Rake (1960) 108 CLR 158; [1960] HCA 58

Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; [1980] HCA 12

Texts Cited:

Civil Aviation Advisory Publication 92-1(1)

Category:

Principal judgment

Parties:

2015/199567
Amber Christine Arndell by her tutor Kathy-Lee Arndell (Plaintiff)
Old Bar Beach Festival Incorporated (First Defendant)
Mid-Coast Council (Second Defendant)
Paul Clarendon Cox (Third Defendant/Cross-Defendant)
Mid-Coast Council (Cross-Claimant)

2014/286417
Paul Clarendon Cox (Plaintiff)
Mid-Coast Council (First Defendant/Third Cross-Defendant)
Old Bar Beach Festival Incorporated (Fourth Defendant/Cross-Claimant)
Arthur Armour (First Cross-Defendant)
Old Bar Heritage Airport Management Committee (Second Cross-Defendant)

Representation:

Counsel:
2015/199567
R McIllwaine SC/J Davidson (Plaintiff)
R Sheldon SC/A Barnett (Second Defendant)
D Mockler (Solicitor) (Third Defendant/Cross-Defendant)

2014/286417
R Royle/J Harrison (Plaintiff)
R Sheldon SC/A Barnett (First Defendant/Third Cross-Defendant)

Solicitors:
2015/199567
Stacks Law Firm (Plaintiff)
Hicksons Lawyers (First Defendant)
Mills Oakley (Second Defendant)
Stewart Cuddy & Mockler (Third Defendant/Cross-Defendant)

2014/286417
Stewart Cuddy & Mockler (Plaintiff)
Mills Oakley (First Defendant/Third Cross-Defendant)
Hicksons Lawyers (Fourth Defendant/Cross-Claimant)
Mid-Coast Council (Third Cross-Defendant)

File Number(s):

2015/199567; 2014/286417

Judgment

1. HIS HONOUR: Before the Court for judgment are two proceedings claiming damages in negligence. Amber Christine Arndell (hereinafter “the plaintiff”) sues, through her tutor Kathy-Lee Arndell, the plaintiff’s mother, both Mid-Coast Council (hereinafter “the Council”, formerly known as Greater Taree City Council) and Paul Clarendon Cox (hereinafter “the Pilot”). The other proceedings are proceedings in which the Pilot sues the Council, also in negligence.

2. On 1 October 2011, the Pilot was flying a light aircraft which collided with a Ferris wheel, located at the annual Old Bar Festival at Old Bar, NSW (hereinafter “the Festival”). The plaintiff was seated, with her younger brother, in a gondola on the Ferris wheel. The claims in negligence arise out of injuries said to have been sustained as a consequence of that collision.

3. The Old Bar Airstrip (hereinafter “the Airstrip”), at Old Bar, is operated by the Council through a committee known as the Old Bar Heritage Airport Management Committee (hereinafter “the Airstrip Committee”) for which the Council is responsible. In April 2011, the Festival organisers applied to the Council to use the Council Park and Reserve for the Festival to be held on 1 and 2 October 2011. The Festival organisers applied to the Council to use the land adjacent to the airstrip, which included sporting fields, parks, gardens and the like.

4. Further, the operator of the Ferris wheel made an application to Council to operate the Ferris wheel at the Festival. [1] While the Council has admitted that the application to operate the Ferris wheel was to have been accompanied by a site plan indicating the precise location of the Ferris wheel, that site plan has not been produced.

   1. Exhibit H.

5. Further again, a Council Officer, Mr Joshua Smith, inspected the Ferris wheel after it had been erected and before the Festival commenced. [2] Mr Smith did not require the Ferris wheel to be moved, if he were to have had the power so to do. The President of the Airstrip Committee, Mr Neville French, observed the Ferris wheel in its location prior to the collision. [3]

   2. Exhibit K and Exhibit 6.

   3. Exhibit U.

6. There are a number of issues in the proceedings, some of them less significant than others. The most significant issues seem to be the relative, if any, negligence of the Council and the Pilot. That relative culpability affects the damages, if any, to be awarded to the plaintiff. The relative negligence, if any, of the Council and of the Pilot, obviously, affects the damage, if any, to be awarded in the proceedings commenced by the Pilot alleging the negligence of the Council.

7. The other major issue is the extent of the damage suffered by the plaintiff and whether the damage was caused by the collision or its effect on the plaintiff. The collision is not said to have caused any substantial physical injury to either the plaintiff or the Pilot. The damage is said to arise from the psychological effect of the collision.

Evidence on Liability: General

8. The actual incident, being the collision between the aeroplane and the Ferris wheel, is relatively uncontroversial in terms of the evidence and easily recounted. The controversy surrounds the circumstances of the attempt at landing the aircraft and the placement of the Ferris wheel.

9. The Pilot flew from Taree Airport to the Airstrip. The aircraft was a Morgan Aero Works Sierra 200 Aircraft. The flight from Taree Airport to the Airstrip is approximately six minutes and the Pilot had a passenger, being the Pilot’s son-in-law, John Rowan. The Pilot sought to land the aircraft from the north of the Airstrip and undertook, on the first attempt, a deliberate “touch and go” (“the first touch and go”), an activity in which the aircraft touches down on the runway momentarily and then immediately takes off, for the purpose of assessing the landing strip. This first touch and go was completed successfully.

10. On the second approach, again from the north, the Pilot intended to land the aircraft, but did not. Instead, the Pilot took off again; veered slightly to the left and impacted the upper-right quadrant of the Ferris wheel (“the second touch and go”).

11. Exhibit C in the proceeding is a photograph taken during the rescue of the plaintiff and her brother, which depicts the upper part of the Ferris wheel and the relationship between the aircraft and the gondola in which the plaintiff was located. The Pilot and his son-in-law can be seen sitting in the aircraft, which is lodged precariously in the Ferris wheel. The second touch and go is captured in a video taken on the plaintiff’s mobile telephone, which is Exhibit D in the proceedings.

12. While the video, Exhibit D, was not recorded for the purpose of recording an accident, as the aeroplane captured in it moved closer to the Ferris wheel, the recording of the events must have been increasingly frightening. The video shows the mechanism by which the aeroplane collided with the Ferris wheel, but liability depends less on the mechanism of the accident than on the responsibility for the decisions that led to it occurring.

13. It is necessary to deal with the relationship between the Airstrip Committee and the Council; the responsibility of the Council for the location of the Ferris wheel; the location of the Ferris wheel and its position relative to the Airstrip; and certain issues touching on the precautions taken prior to seeking to land the aircraft and the decision as to the direction from which to land.

The location of the Ferris wheel

14. There are a number of photographs that depict the Ferris wheel after the accident. There is no evidence that precisely pinpoints the location of the Ferris wheel by measurement or description. Exhibit J, which is a survey of the Airstrip and areas around the Airstrip, is a survey of the general area, taken at a time when the Ferris wheel was no longer in situ.

15. The Court conducted a view of the area, which is an important aspect in understanding the relative positioning of the relevant items. This is even more the case in circumstances where the Court must determine the location of the Ferris wheel from photographs and other imprecise indications.

16. The Ferris wheel was located, as is clear from the photographs, [4] at the south-eastern corner of the intersection of Third Avenue and Old Bar Road in Old Bar. The photographs depict the Ferris wheel near Third Avenue and between Third Avenue and the adjacent building, close to where the Court and the parties viewed the monument, located at the corner of Old Bar Road and Third Avenue.

    4. There are a number of photographs in different exhibits but the clearest are in Exhibit L, some of which are reproduced in Exhibit J. Also Exhibit C (photo 62) depicts the airstrip from the Ferris wheel structure and shows Third Avenue through the structure and past the aircraft.

17. Objection was taken to the use of Exhibit J to depict the location of the Ferris wheel, because the author only estimated the location of the Ferris wheel from the photographs, which, it was said, was a matter for the Court. Exhibit J was tendered, with a qualification, pursuant to s 136 of the Evidence Act1995 (NSW), that it was not to be used to pinpoint the location of the Ferris wheel.

18. Notwithstanding the inability to use Exhibit J to pinpoint the location of the Ferris wheel, the photographs, otherwise in evidence, and which are utilised in the Report, and the other material in Exhibit J allow the Court to determine, on the balance of probabilities, that the centre of the Ferris wheel was located: north-west of the smaller tree to the west of the brick building; north-east of the monument; and south of the southern kerb of Third Avenue. It is clear that it was located before the bend in the road in Third Avenue and its extremities overhung roadway on Old Bar Road.

19. Further, the plane in which the wheel is turning seems, on the photographic evidence, to be approximately east-west. This can be seen from collision photograph 1 at p 42 of Exhibit J, which is a photograph taken facing north-east along Third Avenue.

20. The location of the Ferris wheel is, as a matter of certainty, adjacent to the corner of Old Bar Road and Third Avenue, east of the Old Bar Road part of the southern corner and south of the curb on Third Avenue. Based upon the location of the monument, the tree and the brick building, the Ferris wheel was, more probably than not, at about the location depicted at p 51 of Exhibit J.

21. In making the foregoing comment, I am not relying upon p 51 to depict the location of the Ferris wheel. Rather, I am using all of the relevant photographs in evidence to determine independently the location of the Ferris wheel and then describing that in terms that can, more readily, be understood by reference to Exhibit J, p 51. The Ferris wheel was either 18 m or 16 m in diameter, in which case, given its circumference overhangs Old Bar Road, the centre must have been just less than 9 m from the closest part of Old Bar Road.

22. The location of the Ferris wheel is important, not only for the reason that the location of the accident is a relevant factor in the proceedings. It is important because of its relative position to the airstrip. Exhibit J depicts photographs, generally available to the parties otherwise than in this Exhibit, taken at the time of the rescue operation.

23. Exhibit J shows, for example, the intersection of Old Bar Road and Third Avenue and, as can be seen from collision photograph 3 at p 24 of Exhibit J, the western edge of the Ferris wheel extends above the roadway of Old Bar Road. Not only was the western extremity of the Ferris wheel directly above the curb on Old Bar Road, collision photograph 4, at p 25 Exhibit J, shows the juxtaposition of the Ferris wheel relative to the airfield, which is depicted in the distance.

24. I accept that the Ferris wheel orientation is aligned, generally, to the curb line of Third Avenue (before the road starts to bend) and is on the northern side of the cafe. [5] Further, survey photo 2, reproduced at Exhibit J p 27, points to a location that is consistent with the photographs otherwise available, namely, north of the monument; east of the southern corner of the intersection; and on the southern side of Third Avenue.

    5. See also Ex J, p.26, collision photo 5.

25. The runway itself was 589 metres in length between the centres of the threshold markers at each end of the runway. This measurement is plus or minus 0.5 m.

26. The runway for the airfield has a magnetic bearing of 168°. The Airstrip is, somewhat counterintuitively, for non-experts, delineated with two runway numbers: runway 17 and runway 35. It is the same Airstrip, but runway 17 describes the runway running from north to south (as opposed to runway 35, which runs from south to north). The Pilot utilised runway 17.

27. As is clear from diagram A in Exhibit J, concluding, as I have, that the airfield has not altered since the date of the accident, the airfield runway was 10 m wide; the runway strip 30 m; and the flyover clearance area 60 m wide. There are gable markers, which were viewed by the parties and the Court, and they are located on or just outside the runway strip. Otherwise, Exhibit J, in relation to this aspect, is in the following terms:

“11.2   …The flyover clearance area was clear of trees and fencing. The estimated uncertainty of the location of the runway was 1.0m, due to the fact all gable markers did not perfectly align. A best fit using alignment of most gable markers was used.

11.3   The elevation at the end of RWY 17 centre-line was 13.1m. The estimated uncertainty of the elevation at the runway end is 0.1 m.

11.4   A clearway distance of 30 m was observed to a 1.4m high post and wire fence at the end of RWY 17. The ground elevation of this fence at the RWY 17 centre-line was 12.4 m. The estimated uncertainty of the elevation of the fence at this point is 0.1 m.”

28. The terms of Exhibit J then deal with the distances between the end of runway 17 and the location of the Ferris wheel. The underlying assumption in those remarks is that the location of the Ferris wheel is as depicted in Exhibit J.

29. As earlier stated, I have come to the conclusion, independently of the assessment in the survey, that the location depicted in the survey is, more probably than not, the location of the Ferris wheel. As a consequence, the distances measured are, with some allowance for imprecision, relevant to the issues that will be later discussed in these reasons.

30. Later in these reasons, the Court will discuss the issue of a “splay”. In short, the term splay, when used, relevantly, in the context of the regulatory framework relating to the take-off and landing of aircraft, denotes an area of three dimensional space including, and extending from, a runway, through which an aircraft may travel when taking-off and landing. [6] As will be explained more fully in what follows, certain publications of the Civil Aviation Advisory Authority provide guidelines in relation to keeping this area free of obstacles so as not to impede aircraft when they are taking-off and landing.

    6. A visual representation of the lateral and vertical aspects of the term “splay” can be seen at [39], below. The lateral aspect of the splay is often referred to as the “lateral transitional slope”.

31. Diagram B on p 35 of Exhibit J deals with the obstacle take-off area, if one were taking-off from runway 17, i.e., taking-off from the airfield, heading south.

32. Exhibit J then continues, although, again, these matters must be understood on the basis of the assumption as to the location of the Ferris wheel, which assumption I have independently found to be accurate, in the following terms:

“12.1   The obstacle distance from the end of RWY17 and the Ferris wheel location was 160.6m. The uncertainty of this distance is 3.0m and can be summarised as the sum of the uncertainty of the location of the airfield and the location of the Ferris wheel (refer 7.2 and 11.2).

12.2   Based on 160.6m, a 5% divergence equates to a take-off splay offset of 38.0m from the RWY17 centreline. An uncertainty of obstacle distance of 3.0m equates to a divergence offset uncertainty of 0.15m.

12.3   The centre of the Ferris wheel location calculates at a lateral offset of 35.3m to the RWY17 centreline.

The bearing of the centreline could also contribute an uncertainty in this offset. Based on a location uncertainty of the end of the runway of 1.0m, a runway length of 589m and obstacle distance of 160.6m, the maximum offset error due to centreline bearing would not exceed 0.55m.

The sum of the uncertainty in location of the end of RWY17, the centreline bearing, and the obstacle distance would not exceed 1.7m.”

33. The foregoing error factors and/or allowances must be qualified by the uncertainty associated with the Court’s independent assessment, based, as it is, on the view and the photographs. Nevertheless, the author of the survey, which is Exhibit J, concludes that the centre of the Ferris wheel was located inside a 5% lateral take-off clearance splay at the end of RWY 17, by an estimated 2.7 m, with a maximum uncertainty of 1.7 m. The issue of whether, and the extent to which, the Ferris wheel was located within an “obstacle clearance splay” will be dealt with later in these reasons.

34. The Court is not required to find the location of the Ferris wheel as a matter of certainty; nor beyond reasonable doubt. The evidence from which the Court has determined the location of the Ferris wheel has permitted the Court to determine its location on the balance of probabilities. Having done so, the location becomes a certainty for the purpose of subsequent findings in these reasons.

35. Apart from the assumption as to the location of the Ferris wheel, the foregoing opinion of the expert expressed in Exhibit J also depends upon the size of the Ferris wheel and its height from the ground, both at its centre and at its uppermost point. I accept the evidence that the most likely height of the Ferris wheel was 20 m, with an error factor of approximately 2 m and the diameter of the wheel itself was 18 m.

36. This is the evidence of its operator and otherwise overwhelmingly the measurements that, more probably than not, can be attributed to the Ferris wheel. As a consequence of the acceptance of those measurements, leaving aside for present purposes the error factor, the conclusion reached by the author of Exhibit J is accepted by the Court. But, even if that were inaccurate; and the diameter of the wheel was only 16 m; and the height of the wheel at its top being only 18 m, the upper western quadrant of the wheel, with which the aeroplane collided, would still be within the obstacle clearance splay, within the meaning of Civil Aviation Advisory Publication 92-1(1), as will be more fully explained in what follows.

37. Diagram C in Section 7.2, on p 36 of Exhibit J, represents the vertical take-off clearances, when taking-off from RWY 17. Those aspects of the report and the conclusion reached require reiterating:

“13.1   The obstacle ground elevation (RL) was measured as 9.0m. Based on an overall height of the Ferris wheel obstacle of 20.0m, the elevation of the obstacle is 29.0m.

The uncertainty associated with the ground level determination is 0.1m. The uncertainty in the overall height of the obstacle is unknown as a dimension of 20m is assumed.

13.1   Based on an obstacle distance of 160.6m, a 5% take-off slope gradient equates to a take-off elevation vertical gain of 8.0m from the end of RWY17.

This equates to an elevation of (13.1m+8.0m) = 21.1m at the obstacle.

The uncertainty in this elevation is 0.25m being the uncertainty in the obstacle distance x 5% gradient = (0.15m), plus the uncertainty of the elevation at the end of RWY17 (0.1m).

13.2    The obstacle elevation of the Ferris wheel was located inside a 5% vertical gradient clearance splay of the end of RWY17 by an estimated 7.9m with a maximum calculation uncertainty of 0.35m (0.1m +0.25m).

This equates to an estimated vertical take-off obstacle gradient of 9.9% for the Ferris wheel location.”

38. Further, the Report includes a three-dimensional model with the estimated aircraft impact zone through the Ferris wheel. [7] The conclusion, which is contained in para 14.1 of Exhibit J, is in the following terms:

“14.1   The estimated impact zone is coincident with the region of the Ferris wheel that falls within the required RWY 17/35 approach obstacle clear area…”

7. Exhibit J, p 37.

39. The models, being figure 6 and figure 7, are extracted below:

Figure 6: Superimposed obstacle clearance of 5% shown in relation to 3D of Ferris wheel.

Figure 7: Obstacle clearance 3D model with estimated aircraft impact zone.

40. As a consequence of the foregoing and the decision that the location of the Ferris wheel was as indicated in Exhibit J and that the height of the Ferris wheel was, most likely, 20 m, the Court is in a position to accept each of the findings contained in Exhibit J. Those findings are:

Finding Number	Page No	Finding description
4.1	9	Confirmation that the intersection of Old Bar Road and Third avenue, OLD BAR, NSW, was the general location of the site of the collision.
7.2	12	The location of the top Ferris wheel was. Latitude -31 ° 58’ 11.76” Longitude 152° 35’ 29.42” Elevation 29.0m. The uncertainty of this location was estimated at +/-2.0m and 0.1m in height.
9.3	16	The location of the airfield in 2018 was unlikely to have changed since 2011, based on the consistency with the image taken in 2011 and our field inspection. The Airfield could be accurately replicated.
11.1	18	The overall runway length was 589m. This was defined by the centre of threshold markers at each end of the runway. The observed magnetic bearing of the RWY17 was 168°. The estimated uncertainty of the runway length was 0.5m.
11.2	18	The airfield runway was 10m wide, the runway strip 30m and flyover clearance area 60m wide. RWY17/35 met the requirements of CAAP 92-1(1) on the ground.
11.3	18	The elevation at the end of RWY17 centreline was 13.1m being 4.1 m above the ground elevation at the Ferris wheel location. The estimated uncertainty of the elevation at the runway end is 0.1m.
12.1	19	The obstacle distance from the end of RWY17 and the Ferris wheel location is 160.6m. The uncertainty of this distance is 3.0m and can be summarised as the sum of the uncertainty of the location of the airfield and the location of the Ferris wheel, (refer 7.2 and 11.2).
12.2	19	Based on an obstacle distance of 160.6m, a 5% lateral divergence equates to a splay offset of 38.0m from the RWY17 centreline.
12.3	19	The centre of the Ferris wheel location calculates at a lateral offset of 35.3m to the RWY17 centreline. The uncertainty in the calculation could be up to 1.7m.
12.4	19	The centre of the Ferris wheel was located inside a 5% lateral take-off clearance splay of the end of RWY17 by an estimated 2.7m with a maximum uncertainty of 1.7m.
13.1	20	Based on an obstacle distance of 160.6m, a 5% vertical take-off slope gradient equates to a take-off elevation gain of 8.0m from the end of RWY17. The uncertainty in this elevation is 0.25m.
13.2	21	The obstacle elevation of the Ferris wheel was located above a 5% vertical gradient clearance splay of the end of RWY17 by an estimated 7.9m with a maximum calculation uncertainty of 0.35m (0.1m +0.25m).
14.1	22	The aircraft impact zone is coincident with the region of the Ferris wheel that falls within the required RWY 17/35 approach obstacle clear area; CASA Guideline 92-1(1).

41. The foregoing conclusions are accepted by the Court as, more probably than not, that which arises from the evidence. The next issue with which the Court is required to deal, before dealing with the conclusions as to liability, is the expert conclave on liability and the evidence of the Pilot as to the events of the day. Included in that analysis must be the issues of weather conditions that were said to prevail immediately before or at the time of the accident.

The Second Touch and Go

42. The Airstrip was an Aeroplane Landing Area (“ALA”). It was not an aerodrome. Nor was it monitored or staffed by aircraft traffic control personnel or, for that matter, ground staff. As a consequence of its status as an ALA and the condition of the Airstrip as an unattended grass strip, there were certain obvious requirements in relation to its use.

43. As already stated, and as is uncontroversial in these proceedings, the Council had a subcommittee, the Airstrip Committee, which operated the Airstrip. The terms of the delegation to the Airstrip Committee are before the Court. There is some controversy as to the application of one or other of the regulations to the operators of the Airstrip, as distinct from the application of the regulations to a pilot. First, it is necessary to deal with that which occurred on 1 October 2011, and immediately before that date.

44. As earlier stated, an application was made by the Old Bar Festival for the conduct of its annual Festival on Council land at Old Bar. The Council land is adjacent to the Airstrip. For the purpose of the conduct of the Festival, there were a number of meetings of the Airstrip Committee relating to the use of the Airstrip as part of the Festival activities. 2011, the year that this incident occurred, was the 80th anniversary of the Airstrip.

45. The Airstrip had some historical significance. First, it was a stop off for the first aircraft flights from Sydney to Brisbane. Secondly, it had a role during the war, each of which was to be highlighted as part of the 80th anniversary festivities.

46. The Festival had been conducted in prior years. The two years prior to 2011, when the Festival was being conducted, the Airstrip was closed to air traffic.

47. It is necessary to point out some of the history of the Pilot. He was born in January 1958 and was, at the date of the incident, 53 years of age. The Pilot was a motor mechanic by training and had worked in an upholstery business. In 1986/87, he commenced flying lessons and did approximately 25 hours and completed his first solo flight. On account of financial issues, the Pilot did not complete the lessons or his training.

48. In or about 1984, the Pilot moved to the Central Coast and, sometime later, in April 2006, purchased a motel, the All Seasons Country Lodge, in Taree with his partner. In 2008, the Pilot’s mother died and the Pilot was prescribed antidepressant medication, Zoloft and sleeping tablets. The medication with Zoloft ceased in or about March 2009.

49. In 2010, the Pilot returned to flying and enrolled in a changeover course from a General Aviation Licence to an RAA Recreational Aviation Licence. He undertook 47 hours of flight training under Messrs Ross Stanza, Garry Morgan and David Rolfe. The Pilot was never a commercial pilot. Nor did he participate in flying aircraft otherwise than as a recreation.

50. In or about September 2011, persons on behalf of the Airstrip Committee invited participants to the Static Air Show, which was to be held at the Airstrip as part of the Festival.

51. Garry Morgan, one of the persons under whom the Pilot had undertaken flight training, requested the Pilot to assist in the Static Air Show and fly Garry Morgan’s aircraft, being the Morgan Aero Works Sierra 200, to the Airstrip from Taree Airport.

52. The aircraft had the Pilot sitting in the left-hand seat and the passenger, Mr Rowan, in the right-hand seat.

53. Initially, the flight was postponed and/or suspended because of bad weather. The weather was coming from the north into Taree and it was deemed unsafe to fly from Taree to Old Bar, where the bad weather was heading. Old Bar was south-east of Taree.

54. A second aircraft also made the journey. The second aircraft was flown by Tim Morgan, Garry Morgan’s son. There was radio communication between Tim Morgan and the Pilot during the course of the flight.

55. The prevailing weather conditions improved sufficiently to allow the journey to occur and the Pilot took off from Taree first, Mr Tim Morgan taking-off shortly after him. During the course of the flight, Tim Morgan overtook the Pilot and flew directly into runway 35 (i.e. landing from the south to the north and landing prior to the first touch and go).

56. There is some evidence adduced during the course of the proceedings that the prevailing wind was from the north. If that were the case, a landing from the south into the wind would have been a better option.

57. However, the evidence of both the Pilot and Mr Tim Morgan was that there was no discernible wind at the time that either one of the planes landed. The wind sock was limp, signifying there was no discernible wind to take into account in determining the direction from which a pilot should seek to land. I accept that there was no discernible wind in any direction at the time of the landing, notwithstanding the existence of some evidence of wind patterns on the day.

58. At the time that he sought to land or undertake this journey, the Pilot had approximately 87 hours’ experience in flying. He had landed at the Airstrip on previous occasions. On a number of those occasions he had landed in the company of another pilot and had landed two or three times on his own.

59. Each time the Pilot had landed at the Airstrip, the Pilot had landed from the north on runway 17. There are trees at both the north and south ends of the runway. The Pilot had never previously landed at the Airstrip at a time when the Festival was being conducted.

60. As earlier stated, there was a touch and go, the first touch and go, which was deliberate and planned. The collision occurred during the course of the second touch and go.

61. It is necessary to point out that the Pilot flew his aircraft at approximately 1,500 feet above the ground for the entirety of the flight from Taree to Old Bar and, as stated already, the flight is approximately six minutes in duration. On approaching the Airstrip, the Pilot conducted a circuit of the airfield in preparation for landing.

62. That circuit included a flyover of the Airstrip from west to east, approximately two thirds of the way down the Airstrip from the north. After crossing the Airstrip at 1,500 feet, the Pilot travelled north along the Airstrip to the east of the Airstrip, turned to the west (i.e. made a left-hand turn) and then made a further left-hand turn so that the aircraft was pointing in a southerly direction and facing the beginning of the landing strip.

63. At the time of the flyover, the Pilot observed a mass of colours at the perimeter of the Airstrip but, in evidence, said he did not observe the Ferris wheel. The Pilot’s failure to observe the Ferris wheel may have been as a result of a number of circumstances.

64. One of those circumstances may have been that, as the Pilot was in the left-hand seat of the aircraft and, when the aircraft was crossing west to east across the Airstrip, the Ferris wheel would have been to the right of and below the aircraft, the aircraft may have obscured the existence of the Ferris wheel.

65. During his examination before the Court, the Pilot maintained that all that he could discern were colours of various items and he could not discern the nature of the items themselves. The Pilot was colour blind, at least to some extent, but that is not significant.

66. As earlier stated, the first descent to runway 17 was intended to be, and was, a touch and go and was not an attempt to land the aircraft. This was performed because the Pilot was unsure of the surface of the Airstrip; as it was a grass surface and it had been raining.

67. The Pilot was unsure whether the Airstrip surface was soft or muddy or slippery and, therefore, whether there would be any danger in landing. Later in these reasons for judgment, I will deal with an expert conclave which confirmed that an initial touch and go was a commendable course in the circumstances facing the Pilot.

68. In the first touch and go, the Pilot flew the aircraft directly over the top of runway 17, being a north to south approach, and manoeuvred the undercarriage onto the surface of runway 17. The Pilot did not apply the brakes severely, but only gently, in order to test whether the surface was in an appropriate condition. The Pilot then went to full power; gained airspeed to approximately 50 km/h; and lifted off.

69. The evidence of the Pilot was that the trees at the southern end of the runway had been trimmed. He also gave evidence that the slipstream of the aircraft partly pulled the aircraft to the left. The Pilot says he saw no part of the Ferris wheel during the first touch and go. Nor, it seems, during the second touch and go, at least until it was too late.

70. The second touch and go was commenced as a landing. The Pilot, on realising that the landing would be unsuccessful, applied throttle and sought to take-off again.

71. Arthur Armour, who is, coincidentally, the secretary of the Airstrip Committee, observed both touch and go landings.

72. In the first touch and go, Mr Armour observed what he described as an attempt to land, which was too high and the aircraft was travelling too fast, which would have required very hard breaking in order to stop. Mr Armour did not observe the nose of the aircraft dip and took the view that there was no attempt at braking. He then observed the Pilot apply full power and the plane lifted off again.

73. The second touch and go, as already stated and according to the Pilot, was the first attempt at a landing. According to Mr Armour, the position of the aircraft in the second touch and go was even worse than the first. The aircraft, according to Mr Armour, was higher; travelling faster; and did not touch down until three quarters along the length of the runway.

74. Mr Armour, apart from his position as the Secretary of the Airstrip Committee had been flying ultralight aircraft from the mid-1980s and had completed approximately 3500 flying hours. He also flew hang gliders and sailplanes. He is a retired aircraft mechanic and is an ultralight aircraft flying instructor. He does not have a license to fly general aviation aircraft. Mr Armour had taken on the role of Secretary of the Airstrip Committee in approximately 2012 and was not in that position as at 1 October 2011.

75. Mr Armour confirmed that the ground of the Airstrip, at the time of the second touch and go, was wet, which would have required a greater than usual stopping distance, otherwise the wheels would have become locked. As soon as the aircraft touched down on the second touch and go, Mr Armour formed the opinion that the amount of breaking that would have been required to be applied to halt the aircraft would have caused the brakes to lock and the aircraft to skid on the grass and hit the fence at the southern end.

76. Shortly after the Pilot touched down, the nose of the aircraft dipped, which indicated to Mr Armour that the brakes had been firmly applied. That manoeuvre was immediately followed by an increase in engine noise, consistent with the application of full power and an attempt to take-off a second time.

77. On the second touch and go, Mr Armour observed the plane veer to the left almost as soon as it cleared the southern boundary fence of the Airstrip. It was also travelling at a lower speed than it was after taking off following the first touch and go. Mr Armour conducted one of the biannual checks of the Pilot’s piloting skills in 2014 which, at the time, was certified as satisfactory.

78. A second observer was Darren Hooper, who had been a ground engineer with the Royal Australian Navy, servicing aircraft. He had resigned from that position in 2006, after 24 years in the Navy. He had been present at the Festival with his family at the time of the accident. Mr Hooper suggested, which suggestion was taken into account in the Court’s determination of the location of the Ferris wheel, that when he sat to have some morning tea with his family beside where he had parked, the Ferris wheel was probably no more than 50 m away from him.

42. On the first touch and go, the plane, after it left the airstrip, travelled above Mr Hooper and his family and headed straight out to sea, following a straight line direction from the end of the runway, before turning around. Mr Hooper took no particular notice of the flight path.

43. A few minutes later, the aeroplane did another “touch and go”. As he saw the plane on the runway, Mr Hooper observed that it seemed to be much closer to him and his family as it was travelling along the runway and was much lower when it eventually lifted off the runway.

44. During the second touch and go, the plane immediately banked to the left when it arrived at the end of the runway, rather than heading straight out to sea as it had done on the first touch and go. As the plane banked to the left, Mr Hooper thought that the wing may have touched or just cleared the top of a low tree that was located just beyond the south-eastern corner of the runway. Mr Hooper was close enough to the aircraft to be able to see the face of both the Pilot and his passenger as the plane reached the end of the runway and banked sharply to the left.

45. Mr Hooper observed that, as the plane began banking to the left, it headed directly towards the Ferris wheel and then collided with the Ferris wheel, nose first. Mr Hooper considered that it was unusual for a pilot to bank an aircraft so sharply when their plane was so low to the ground. Mr Hooper understood that such banking would normally have occurred after a suitable height had been attained to clear any potential obstructions. He was unable to gauge the speed of the plane at the time that it banked to the left.

46. A third observer to whose evidence I will refer was Anthony Moore. He had been an aircraft pilot for 30 years and worked as both a commercial pilot and as a qualified Flight Instructor. He possesses the highest level of certification as a Flight Instructor. In the course of his flying career, he has made regular use of the Airstrip.

47. He was at the Festival on 1 October 2011, the date of the accident. He had driven there and not flown an aircraft. He was there with his family to participate in the Festival.

48. He had been located in an area west of the Airstrip and his vision of the Airstrip was obstructed by market stalls. Mr Moore only had a narrow field of vision of the runway because of that obstruction.

49. He became aware of two small aircraft circling overhead at a height of what he estimated as 1,500 feet. He had assumed they had flown from Taree.

50. He paid no further attention to the aircraft until five or ten minutes later, when he was distracted by the sound of an aircraft engine revving at high power in the vicinity of the Airstrip. He looked across to the Airstrip, expecting to see an aircraft above the height of the tops of the intervening market stalls, but did not. The next thing he noticed was a small light sport aircraft moving across his field of vision, from left to right (i.e. from north to south), which he could see between the market stalls. This was the source of the engine noise and it was low to the ground, namely, a couple of metres above the runway but committed to taking-off.

51. Notwithstanding the small amount of time during which this observation occurred, Mr Moore took the view that the aircraft was much lower than it should have been for a safe and effective take-off. Mr Moore was aware of the fence at the southern end of the runway and was concerned as to whether the aircraft would achieve enough elevation to clear that fence safely. Mr Moore also noticed that the Pilot had pulled the nose of the plane up into the air aggressively.

52. He then saw the plane bank to the left. He did not see the plane collide with the Ferris wheel. However, he did hear the crash. At the time, he was running towards the end of the runway, because he believed that the plane was, on account of the issues to which I have just referred, going to crash. On arriving at the Ferris wheel, he could hear the electronics master switch pumping out fuel and alerted the Pilot and informed him how to shut off the switch, which the Pilot then did.

53. Mr Moore had, in the course of observing the aircraft, formed the view that if the aircraft had not, in the course of the attempt at taking-off from the second touch and go, collided with the Ferris wheel, it would not have been able successfully to lift off and would have collided with other stalls and, most probably, attendees at the Festival.

54. None of the observers to which I have just referred, Messrs Hooper, Moore and Armour, were called as expert witnesses. They observed the events on the day, including, in particular, the second touch and go. Their expertise in relevant areas is coincidental and their evidentiary statements [8] were not tendered as expert evidence and do not comply with the requirements for expert evidence. Nevertheless, their observations are of great assistance and, to the extent that they rely on their expertise in expressing an opinion about what had occurred, it is expressed for the purpose of understanding better their observations.

    8. Exhibits 3, 4 and 5 respectively.

55. Expert evidence was adduced relating to the piloting of aircraft. Exhibit AA is the aviation reports tendered in the proceedings, including the joint report derived as a consequence of the conclave between the experts. The aviation liability reports, so described, were written by four pilots: Mr Trevor Howie, Mr Keith Tonkin; Mr Michael Nolan; and Mr John McGuirk. Mr Howie compiled two reports, one on 9 May 2016 and one on 15 February 2019. The Conclave Report was compiled on 25 and 31 January 2019.

56. Mr Howie has been retired from aviation since approximately September 2012. From 1971 to 1987 he was a flight instructor in general aviation and trained pilots to achieve: Private Pilots’ Licence; Commercial Pilots’ Licence; All Weather Instrument Ratings; Initial Flight Instructor Rating; and Advance Flight Instructor Ratings. He possessed the highest grade of Flight Instructor Rating from 1974. When the regulatory scheme altered, Mr Howie was certified by the Civil Aviation Authority (CAA) as an Approved Test Officer for the initial testing and renewal of Private and Commercial Pilot Licences; All Weather Instrument Ratings; Night Operation; and as a Chief Flight Instructor for training other flight instructors.

57. From 1987 to 1989, Mr Howie was an Instructor for Qantas on the Boeing 747 aircraft and from 1989 to September 2012, Mr Howie was employed by the CAA as an Examiner of Airmen (sic), later designated a Flight Operations Inspector.

58. Mr Tonkin is the Managing Director of Aviation Projects Pty Ltd and the Principal Consultant. He is a qualified pilot with 23 years’ experience and approved by the CAA and CASA (Civil Aviation Safety Authority), in the latter case, to conduct safety inspections of registered and certain other “aerodromes”. He has a Bachelor of Science and a graduate Certificate of Spatial Science Technology, as well as an Advanced Diploma of Aviation, the last mentioned from the RAAF. He was initially a Pilot in the Military and then an International and Domestic Commercial Airline Pilot with Qantas. He has been involved in airport planning and upgrade studies and has a number of certificates associated with work health and safety and air transport and civil aviation safety requirements.

59. Mr Nolan is the Chief Flying Instructor at the Manning River Aero Club in Taree. He holds an Airline Transport Pilot Licence; command Multi-engine Instrument Rating; Grade 1 Multi-engine Flight Instructor rating; Bachelor of Aviation degree from the University of Western Sydney; accreditation from the International Civil Aviation Organisation (ICAO) to design aerodromes’ instrument approaches; a CASA instrument of approval to commission aerodrome lighting systems; a delegation from CASA to conduct flight tests for the issue of pilot licenses and ratings; 6600 hours of aeronautical experience in aircraft ranging from single engine piston to multiengine jet turbine aircrafts; and operates a Thorp T18 aircraft which Mr Nolan built himself, being a two seater aircraft similar in size to the Morgan Sierra, but having a higher level of performance.

60. Mr McGuirk has over 15,000 hours of flying experience which includes single engine, VP, retractable, seaplane aircraft including a number of aircraft types, which include Cessna in the 150/172/182/210/400 classes, a number of the Piper aircraft, the Grumman, Beach and Aeros aircraft together with the A 60/170 airship and Learjet 35. Mr McGuirk has held licences and approvals from: the Australian Air Transport Pilot Licence; USAFAA commercial pilot; land and sea and instructor rating; British Commercial Pilot; CASA approved Test Officer; CASA Flight Operations Inspector; and flight safety foundation, Basic Aviation Risk Standard (BARS) lead auditor/evaluator.

61. Each of the experts compiled his own report and the experts were the subject of cross-examination. Some of those reports bear reciting. In the first report of Mr Howie at Exhibit AA p 17, Mr Howie expresses a conclusion in relation to the Pilot’s conduct in the following terms:

“17.   The conclusion that I can draw from the events as listed in the Assumptions and my experience, which led up to the second go around is that;

(a)   The pilot, when on final approach to runway 17, was either flying at a too high approach speed and/or was above the ideal ‘approach angle’ or approach path and;

(b)   The pilot did not recognise these events or if he did recognise the event he took little or no corrective actions to fix the problem(s) and;

(c)   Given the information available to the pilot before departure and on arrival at Old Bar, that the general wind direction was a north wind with speed, albeit a little amount, the culminating effect on the approach to land of 24 7634, would have been that the speed over the ground and possibly at touch down was higher than anticipated, thus placing the aircraft above the ideal approach angle/path and thus, producing a touch down point deep into runway 17.

(d)   Early recognition of this extra speed of the ground and higher approach angle/path, is essential to a safe landing

I base this conclusion on my 41 years of aviation activity.”

99. Mr Howie recites further notes in relation to his conclusion at paragraph 17 in the following terms:

“NOTES TO THE CONDUCT OF AIRMANSHIP AT POINT 17

Reasoning to support my comments at point 17.

1.   All aircraft manufacturers that I have been acquainted with across a very large spectrum of aircraft ranging from light general aviation aircraft like a Cessna 152 to the Boeing 737 to the Airbus series of aircraft, produce performance data, including take-off and landing data;

2.   This data includes approach speeds and take-off speeds;

3.   In addition, the data will include data on landing and take-off distances, including the effect of aircraft weight, headwind component and other environmental conditions;

4.   The manufacturer will produce data for various headwind components, say 0, 5,10,15 knots and above depending on the aircraft;

5.   The manufacturer will also produce data for various downwind components that can be used for take-off and landing and, it has been my experience that a manufacturer will place a downwind component limit for take-off and landing;

6.   This limit must not be exceeded;

7.   Sample limits, depending on the aircraft type, could be like 5,10 maybe 15 knots;

8.   The limit is generally not high because the higher the downwind component, the take-off or landing distance can be very adversely affected, that is, the take-off or landing distance with a downwind component will INCREASE the distance used in both cases;

9.   I do not know if the Morgan Aeroworks Cheetha Sierra 200 aircraft has this data as I have not got the relevant manuals to review;

10.   The manufacturer of all aircraft will prescribe take -off and landing speeds, taking into account such things as weight, runway surface, temperature and other environment conditions;

11.   So, it is incumbent on the pilot in command, to understand these matters, which is a training matter, and apply them to the conditions that faces him on, in this case, for both landing and take-off;

12.   In the case before us on 1 October 2011, the pilot in command, if his flying skills and airmanship skills were to the required standard, he should have,

(a)   Known the required approach airspeed and

(b)   Known where the local wind was blowing from if he was to use runway 17 and

(c)   Known the strength of the local wind if he was to use runway 17 and

(d)   Had recognition that wind strength (measured in knots in aeronautical terms) can vary;

13.   Wind strength can vary or change when on final approach to a runway, meaning for example, that the local wind at say 500 feet (ft) above the groundlevel (AGL) could be at certain strength but at 300 feet AGL to could be lighter or stronger but at the proposed touchdown point, the local wind could be lighter or stronger again;

14.   So, if the approach speed on the occasion of 1 October 2011, was higher than that prescribed by the manufacturer, even only a small amount, and if the local wind at 500 ft, 300 ft was a downwind component, even if only a small amount, then the overall effect of this is,

(a)   The speed over the ground is higher ( ie the aircraft speed + speed of the local wind ) then that would have been expected. Therefore,

(b)   There is a very good chance that if these conditions continue, it is inevitable that the aircraft will touch down past the beginning of runway 17, perhaps, deep into the runway distance;

15.   Further, if the pilot has misjudged his descent and the aircraft is higher then normal as it turns onto it’s final approach and if no corrective action is taken by the pilot, the 3 factors can and will all merge together as the aircraft flies down the final approach path to landing. That is;

(a)   Flying at a too higher speed then recommended by the manufacturer and

(b)   On final approach too higher than that required and

(c)   Aircraft is being effected by a downwind, however small.

16.   The combined effect of this is that, unless preventative action is taken by the pilot, the aircraft will touch down past the intended touch down point;

17.   If the landing distance is only small AND if the surface of the runway is wet or greasy, then,

(a)   The aircraft may not stop within the landing area and

(b)   Depending on the pilot skill level, there maybe some aircraft controllability issues.

18.   Similarly, for take-off, in this case, the touch and go manoeuvre undertaken prior to the collision with the Ferris wheel. That is,

(a)   A downwind component, albeit small, will effect the distance to take-off, that is, increase the take-off distance and

(b)   If the take-off speed used is higher than that prescribed by the aircraft manufacturer, then the take-off distance will be higher and

(c)   If the take-off speed used is higher than that prescribed AND there is a downwind component, albeit small, then the take-off distance will be higher AND

(d)   If the runway is wet or greasy, this will exacerbate the take-off distance, that is, the take-off distance will be higher than that expected 19.

19.   Since I do not have any experience in the recreational light aircraft area and I have not seen the manuals that would support the flying of the Morgan Aeroworks Cheetah Sierra 200 aircraft, I can not for certain say that take-off and landing performance data is available to a pilot. However, I would presume that, at the least, the manufacturer would prescribe a landing speed and a take-off speed to be observed by the pilot in command.”

100. A number of the conclusions are based upon assumptions that were provided to Mr Howie (and to other experts). One of those assumptions is an assumption as to the prevailing wind.

101. As already indicated, the Court is not satisfied, on the balance of probabilities or otherwise, that at the time of either the first touch and go or the second touch and go, there was a prevailing wind pattern from the north. As a consequence, the conclusion and the notes which support it must be qualified to that extent.

102. Further, Mr Howie expresses an opinion as to the location of the Ferris wheel relative to the splay from runway 17, being the runway taking-off to the south. As already indicated, I have determined that the location of the Ferris wheel was, more probably than not, where Exhibit J indicated it.

103. The assumption provided to Mr Howie as to the location of the Ferris wheel is an assumption based upon the location provided in Exhibit J. As a consequence, the conclusions reached by Mr Howie on the issue of the Ferris wheel and its location within the splay of the Airstrip, when taking-off to the south, are relevant to the issues before the Court. These conclusions are contained at Exhibit AA p 21 and are in the following terms:

“LOCATION OF THE FERRIS WHEEL AND ITS CONNECTION WITH CAAP 92(1)-1

1.   CAAP 92-1(1) is issued by the Civil Aviation Authority, which is the former name of the Civil Aviation Safety Authority, which is the authority of the Australian Government which oversights aviation matters;

2.   CAAP 92-1(1) provides advisory guidance to the flying industry in regards to aeroplane landing areas which do not fall into other Authority prescribed landing areas/aerodromes such as Sydney International airport;

3.   The information contained in this publication is not a legal requirement to comply with but if complied with, will meet any regulatory requirement set out by the Civil Aviation Safety Authority;

4.   The information contained in the publication sets out factors that may-be used to determine the suitability of a place for landing and taking- off;

5.   Application of these guidelines will in most cases, ensure that a take-off or landing, will be conducted safely, with sound piloting skills and sound airmanship displayed by the pilot in command

Source: CAAP 92-1(1) dated July 1992

6.   The Ferris wheel at Old Bar was located 34 meters east of the centre line and 161 meters from the end of runway 17

Source: List of Assumptions given to me, paragraph 2.3

7.   The Ferris wheel was 20 meters in height and about 18 metres in diameter Source: List of Assumptions given to me, paragraph 2.4

8.   I have done an analysis of location of the Ferris wheel in comparison to the advisory information contained in CAAP 92-1 (1), paragraph 5.5 figure 2A

9.   I found that the location of the Ferris wheel was within the runway 17 take-off obstacle clearance splay as described in the CAAP 92-1(1), paragraph 5.5 figure 2A. This analysis was done in the vertical obstacle clearance splay and since the Ferris wheel encroached this area, therefore, I concluded that no further analysis was required in the lateral obstacle clearance area.

10.   The Ferris wheel should not have been placed there if the organisers wished to use CAAP 92- 1(1) as their document to use to ensure safety of operations;

11.   The analysis was done using a scale of 1 centimetre to 5 metres;

12.   I did not have the capability to determine if all or only a part of the Ferris wheel was within the take-off obstacle clearance splay”

104. The supplementary opinion of Mr Howie (which is only one sentence) merely noted his agreement with the other experts that the Ferris wheel encroached into the vertical and lateral obstacle clearance splay when taking-off to the south.

105. The report of Mr Tonkin includes a helpful overlay of the Airstrip, indicating the runway centreline and the edge of the surface verges. It also has marked upon that overlay a location for the Ferris wheel. The location depicted on the overlay is not in accordance with the determination of the Court. Rather, the overlay locates the Ferris wheel approximately and does so farther away from Old Bar Road, which is to the south west of the estimated position of the Ferris wheel on the overlaid photograph. The overlaid photograph is at p 29 of Exhibit AA and is as follows:

Figure 2 Plan view of Ferris wheel location re approach and take-off surface

106. After the photograph, Mr Tonkin depicts the elevation view of the Ferris wheel in Figure 3 of his report at Exhibit AA at p 30. Figure 3 is as follows:

107. Otherwise, each of the expert reports are informative, but most relevant is the result of the conclave. As to the issue of the splay, that will be the subject of further comment when dealing with the recommendations of the Civil Aviation Authority, referred to during the course of the proceedings and in these reasons as “CAAP 92-1”.

108. From the conclave and the joint report, a number of conclusions can be reached. First, as is obvious from the photographs that are in evidence, the experts agreed that the Sierra 200 aircraft collided with the upper right quadrant of the Ferris wheel, on take-off from runway 17.

109. Despite the obvious error in question two as it was asked of the experts, each of the experts understood, correctly, what was intended by the question and each of them answered the question as it should have been asked. The conclusion, whatever be the intention of the author in crafting question two, is unanimous that all of the experts agree that the Ferris wheel encroached into the lateral and vertical obstacle clearance sprays for aircraft taking-off from runway 17 at Old Bar Airstrip, as delineated by CAAP 92-1(1).

110. Each of the experts that commented on the question concluded that the Pilot should have utilised runway 35, rather than runway 17. This conclusion is reached on the basis of the weather forecast issued by the Bureau of Meteorology for the closest location, being Taree, suggesting, with varying precise directions, a prevailing wind pattern of about 8 knots from the north.

111. The wind speed would have been higher at 1000 feet. Further, the fact that Mr Morgan’s aircraft landed first from the south, utilising runway 35, was a factor that should have been significant in the determination of the runway to use.

112. Nevertheless, and notwithstanding the weather forecast to which reference has been made, the windsock was limp, according to the observations on the day. In those circumstances, this aspect becomes far less significant. Each of the experts agreed that the windsock is the most appropriate indicator of the direction and strength of the wind.

113. The report purports to comment on whether the Pilot, during his second approach that gave rise to the second touch and go, was flying at too high an approach speed or had too high an approach angle. In large measure, the comments of the experts are a conclusion from evidence otherwise adduced, rather than an independent assessment based upon the assumptions provided.

114. Nevertheless, the evidence before the Court allows the Court to conclude quite independently on the basis of the statements of the three observers to which reference has already been made and the other material before the Court, including the decision to abort the landing attempt and conduct the touch and go, that, on the balance of probabilities, the Pilot approached at either too high an approach speed or at too high an approach angle, otherwise described as too deep into the runway, or both. It is more than likely that each was a problem. Indeed, the Pilot accepted that he was travelling too high and too fast. [9]

     9. Tcpt, p 296(30-47).

115. The Court concludes, on the basis of the observations of the observers, the evidence of whom has already been summarised, that the landing or attempted landing that gave rise to the collision occurred in circumstances where the aircraft was travelling too fast, landed too deep into the runway length at an angle that was too high. As has been made clear from the summary of the observers, there was an application of the brakes which was quite heavy, causing the nose of the plane to dip, before power was sought to be increased.

116. My conclusion, in light of the foregoing, is that, more probably than not, the aircraft touched down on the second touch and go too high and too fast. That circumstance or those circumstances required the Pilot to attempt to take-off again, rather than continue the attempt at landing. This is the conclusion reached in answer to question six by three of the experts (Messrs Tonkin, McGuirk and Howie). The fourth expert, Mr Nolan, made no comment on the question.

117. Each of the experts also agreed that the Pilot did not maintain the centre line heading while seeking to climb on the second touch and go. The video footage clearly shows the aircraft bank to the left. That is the evidence of each of the observers and three of the experts agree with that proposition (answer to question seven), the fourth of the experts does not disagree with the other experts’ comments.

118. The experts were also asked whether they agreed that the “airmanship” of the Pilot “fell below the standard expected of a competent pilot holding a recreational pilot certificate”. Messrs Howie and McGuirk agreed that the airmanship did fall below the standard expected. Mr Nolan did not comment on the question and Mr Tonkin agreed that it did, but for a different reason to Messrs Howie and McGuirk.

119. In Mr Tonkin’s view, the Pilot should have sought to land on runway 35, i.e. from the south, not to the south. However, having decided to land from the north to the south and finding himself in a position where he could not complete the landing, the decision to abort the landing and seek to effect a touch and go demonstrated good airmanship.

120. The conclusion the Court draws is that it would have been preferable for the Pilot to land from the south to the north, given the probability that, at some stage during the course of the landing the wind may have picked up, which possibility should have been factored into the decision as to the direction from which to land. However, given the uncontroverted evidence that the windsock was limp, it cannot be said that the decision to land the aircraft from the north to the south was lacking in due care. It may, however, not have been optimal.

121. Nevertheless, the Pilot’s landing was, as indicated, too high and too fast and, for that reason, demonstrated “airmanship” below that expected of a competent Pilot holding a recreational pilot certificate. In that regard, I accept the conclusion of Messrs Howie and McGuirk.

122. To the question asked of the experts regarding the “material cause” of the collision, it seems that the term “material cause” was not explained, or sufficiently explained, to the experts. Nevertheless, Messrs Howie and McGuirk agreed that the airmanship of the Pilot was a material cause of the aircraft colliding with the Ferris wheel. Mr Tonkin expressed the opinion that it was a cause but was “not convinced that it was a material cause”. I understand this answer to mean that it was not, in Mr Tonkin’s view, the major cause of the accident. This seems to be the view expressed by Mr Nolan and I take his view as to that effect.

123. Each of the experts, except Mr Nolan who did not comment on the question, took the view that a reasonably competent pilot should have been capable of touching down and/or landing on the Airstrip, without incident.

124. Lastly, none of the experts suggest that banking or verging to the left on take-off is a circumstance that falls below the standard of competent airmanship, although it may not be optimal flying practice. Mr Howie also points out that diverging from the centre line on take-off is not an unusual occurrence in aviation. There can be a number of reasons for such a divergence.

125. The fact that divergence from the centre line on take-off is not unusual seems to be one of the reasons that the splay is defined in the manner in which it has been, i.e. with a lateral obstacle clearance of 5% from the runway. Indeed, there was evidence before the Court to the effect that the splay is designed to account for the types of mistakes that are made by “an average pilot”. [10]

     10. Tcpt, p 517(6-9).

126. In the course of oral evidence, the experts confirmed the views already expressed in the joint report. However, further to the foregoing, Mr Nolan considered, in terms of the attempt at landing being aborted, that to seek to abort the landing at the time that the Pilot did, which was late, was bad airmanship. Further, all of the experts agreed that there were, in essence, two causes of the collision, being the airmanship of the Pilot and the encroachment of the Ferris wheel into the splay. [11]

     11. Tcpt, p 540(20-27).

127. During the course of cross-examination, Counsel for the Council suggested that there were a number of objects within the splay at the Airstrip. Most of the experts, who could comment on such a proposition, agreed that the lighting standards and some trees to the south would have been within the splay. Mr Tonkin indicated he would not comment on the question without a licensed surveyor identifying the location of the objects.

128. I accept the experts’ opinion that the collision was caused by two circumstances: less than reasonable competence in the landing performed by the Pilot; and the location of the Ferris wheel within the splay at the southern end of runway 17. Plainly, to the extent that the lack of competent piloting was a cause of the accident and, for this purpose, assuming damage to the Plaintiff, the Pilot, Mr Cox, is, at least in part, responsible for the damage. The question then arises as to whether the Council is responsible for the location of the Ferris wheel and/or the collision with it, of the aircraft, at a time when the Ferris wheel was located as determined.

129. Before leaving the issue of the Pilot’s actions, it is necessary to deal with an issue about which there was some evidence, but on which there was less attention in the course of the proceedings. As is clear from the evidentiary statement of the Pilot, he was aware that he was flying the Morgan Aeroworks Sierra 200 to Old Bar, where it was to be part of a static display during the period of the Festival. According to the evidence of the Pilot, he was aware that the purpose of the flight was to land the aircraft and position the aircraft as a static display for festivities adjacent to the Old Bar Airfield. As a consequence, the Pilot was aware that the Festival was being held.

130. The process, which the Pilot undertook on approach was not the subject of criticism, in general. It involved traversing the airfield, as already stated, at 1,500 feet, from west to east, turning to the north; flying parallel to the airfield; then turning 180° for the purpose of seeking to land from the north. The purpose of traversing the field was to check for obstacles on the airfield. This was necessary because the airfield was an ALA and otherwise unmonitored.

131. Nevertheless, because the Pilot traversed the Airstrip otherwise than beyond the end of the strip (either end will suffice for present purposes), the positioning of the Pilot, relative to the aircraft, resulted in at least part of the Airstrip being obscured. It also means that the details of the activities at the Festival, and any obstacles associated therewith, could not be observed in detail.

132. The inability to observe part of the Airstrip and the inability to observe the positioning of any obstacles arising as a result of the conduct of the Festival resulted in some difficulties arising. Thus, the Pilot made clear that he could not observe the Ferris wheel. Despite significant cross-examination on this issue, I accept that the Pilot did not notice the Ferris wheel when checking the Airstrip and its surrounds during the flyover or at any other time (except until immediately before the collision).

133. Because the Pilot cannot see immediately under the aircraft, on an extreme view, the Ferris wheel could have been placed on the runway itself and the Pilot would not have noticed it during the flyover. This is because of the obstruction from the aeroplane itself and because the aeroplane was at 1,500 feet and the details of any obstruction could not be observed.

134. There is something fundamentally amiss about a process which is intended to ensure that a Pilot checks for obstructions on the Airstrip to allow a safe landing, but does so in circumstances where, either because of the obstruction by the aircraft itself or because of the height at which the aircraft is being flown, such obstructions are unable to be identified.

135. The evidence is clear that the Pilot noticed colours from those items of activity in the Festival, but did not notice and did not observe the Ferris wheel. As stated, I accept that evidence. But the failure to observe the Ferris wheel and the details of the activities results in the Pilot being unable to determine whether landing on the Airstrip was safe and whether a touch and go, being a deliberate touch and go, would be safe.

136. In order to check for safety, the Pilot would have been required to traverse the Airstrip at a point other than partway along the landing area and would have been required to fly the aircraft, during that process, at a level which would allow the identification of any obstacle that might present a risk to a safe landing or, in this case, a safe take-off. Both the landing and the take-off would have to have been safe, because the Pilot deliberately chose to undertake the first touch and go.

137. In other words, the process undertaken by the Pilot was one which, on any reasonable basis, could not identify risks involved in the landing or take-off of the aircraft, namely, obstacles on the Airstrip (albeit in the very small area that was obscured by the aircraft) and in the splay to the south of the Airstrip. More comment will be made on this issue later in these reasons for judgment. Further, to the extent that the Pilot discerned colours, as he said in evidence, but could not ascertain the height and nature of the coloured item, this demanded further investigation.

Responsibility for the location of the Ferris wheel

138. Initially, the plaintiff sued the Old Bar Beach Festival Incorporated as the first defendant. The proceedings against the Old Bar Beach Festival Incorporated were resolved and there are no current proceedings before the Court relating to the organisers of the Festival.

139. No party suggests that any liability, for which either the second or the third defendant, being the Council or the Pilot, is responsible, is, if there be liability, affected, adversely or otherwise, by any liability of the Old Bar Beach Festival Incorporated. Nor does either of the remaining defendants, the Council or the Pilot, submit that any contribution to any damages is to be considered in relation to the liability, if any, of the Old Bar Beach Festival Incorporated.

140. The Pilot has no responsibility for the placing of the Ferris wheel. Nor does the Pilot have any responsibility for the continued use of the Airstrip or its operations, other than the decision that he would use it to land.

141. By its pleadings, the Council accepts its status as a body politic pursuant to the terms of s 220 of the Local Government Act 1993 (NSW). The Council also accepts that it had the care, control and management of the Airstrip; and that it was an Aeroplane Landing Area (“ALA”).

142. It is also admitted in these proceedings that the Council established the Airstrip Committee, formally known as the Old Bar Heritage Airport Management Committee, under the provisions of s 355 of the Local Government Act and through the Airstrip Committee, the Council exercised its care, control and management of the Airstrip. The Airstrip Committee was, for all relevant purposes, part of the Council’s body politic pursuant to s 220 of the Local Government Act.

143. Further to the foregoing admissions, the Festival was conducted on public land, controlled by Council, on 1 and 2 October 2011, and that land was adjacent to the Airstrip. The Council’s permission was required and given to use the land on which the Festival was to be conducted and the Council was aware that the Airstrip was, during the period 1 and 2 October 2011, to be used for landing and take-off by aircraft, during the Festival.

144. Each of the foregoing admissions is made on the pleadings by Council. Evidence was adduced by the Council from members of the Airstrip Committee and, particularly, the President of the Airstrip Committee, Mr Neville French, who gave evidence in the proceedings. Mr French gave evidence of the delegation and his awareness of it and referred to the appointment of the Airstrip Committee and the Civil Aviation Advisory Publication 92-1(1) (hereinafter “CAAP 92-1”).

145. Exhibit F, which is also Exhibit CA Tab 18, is the Committee Appointment and Delegation under ss 355 and 377 of the Local Government Act, respectively.

146. The first part of the exhibit mentioned refers to the appointment of a committee, the Airstrip Committee, which will exist from the date of the resolution appointing it until specifically altered or revoked; the membership of which will be as appointed by Council from time to time; attaches a Constitution; requires reports on annual maintenance, inspection, safety standards, usage reports and annual financial reports. Further, the Airstrip Committee is authorised to conduct its own bank account; have its own letterhead; letters are to be signed by the Secretary of the Airstrip Committee; and the responsible Council Officer for the Airstrip Committee is the “Manager Administration”.

147. The terms of the delegation are important. Relevantly, the delegation subsists for the period during which the Council resolves until otherwise altered or revoked. For present purposes, it can be accepted that the Airstrip Committee was in existence at the time of the Festival and the delegation was operative at the time of the Festival and all relevant dates leading up to the Festival.

148. The purpose of the delegation is prescribed as:

“To provide, manage, maintain and operate an Aeroplane Landing Area (ALA) meeting the recommended standards provided in Civil Aviation Advisory Publication 92-1(1) within the area fenced for such purpose on Old Bar Park. (Refer Notes 1 and 2)”

149. Notes 1 and 2 to the delegation are in the following terms:

“1.    The existence of structures on Old Bar Park, specifically fencing and lighting towers infringe the lateral transitional slope as recommended by CAAP 92-1(1), and the Council and delegate agree that this aspect of the recommended standard for an ALA cannot be met.

2.    The existence of vegetation and structures located outside the fenced area (e.g. trees) may inhibit or preclude the use of the ALA. Various approvals may be required to reduce or remove vegetation affecting the dimensions and serviceability of the ALA.”

150. The terms of the delegation are also relevant. They are set out in the same document, being Delegation No 4.06, the review date for which was September 2009, and which document is part of Exhibit F and the terms of it operative during the course of the Festival and at all other relevant times leading up to the holding of the Festival and the attempted landing of the aircraft by the Pilot. Some of the terms of the delegation require reciting and those provisions are in the following terms:

“1.    At least weekly, undertake a safety inspection of the ALA, recording details of such inspections on a check list in such form as approved by the Council, and retain such check lists.

2.    At least six monthly undertake and document a review of all published information in respect of the ALA including take-off and landing distances available, obstructions within the approach and take-off areas, and other obstructions.

3.    Maintain all markings, fencing, wind socks, runways, runway strips, flyover areas in a safe serviceable condition and in the event of any aspect of the ALA being unsafe to either aircraft or the public generally, close the ALA until such unsafe aspect is made safe.

…

6.    Provide all advice and respond to all enquiries in relation to the operations of the ALA, whether from pilots, aircraft operations or otherwise.

444. The general comment in relation to the first semester of Year 6 was that the plaintiff was: a positive and helpful member of the class who has strong family values; is caring and considerate to her peers; has a diverse range of friends; her work was always completed efficiently and to a high standard; and she had proven to be an organised and self-motivated student.

445. In December 2009, there were similar comments. The plaintiff was a competent performer; enjoyed singing, playing and moving to a range of music both as an individual and in a group situation; experimented with different techniques when completing artworks and created effective artworks All of the foregoing related to creative arts.

446. In relation to general comments, again, the report confirmed the plaintiff’s activity in school sports and associated activities; her excellent academic progress; her positive influence over her class peers; that she was an excellent prefect; that she had been encouraged to join the Student Representative Council in high school; and that she was an asset to have in any group. The report however did comment that the plaintiff had some difficulty socially, although she was beginning to handle these situations with maturity and self-confidence.

447. In relation to the high school reports, most of the comments are more detailed and unnecessary to repeat, but are generally relatively positive up to and including September 2011.

448. After the collision, a different picture emerges. While there was generally good performance in creative arts, there were significant absences from high school for which warning letters were received. This occurred during the latter part of 2011 and during 2012. The plaintiff failed to complete year nine by the conclusion of 2012.

449. The plaintiff’s feelings are described in her evidentiary statements. It is unnecessary to recite them. The plaintiff was moved from Taree High School to Chatham High School. The plaintiff dropped out of Chatham High School in 2013, commenced Year 10 in August 2014 and the plaintiff received warning letters as to non-attendance in relation to that second High School.

450. Thereafter, the plaintiff enrolled at TAFE in a vocational certificate, the equivalent of Year 10. The plaintiff could not maintain attendance at TAFE. Not long after dropping out of the vocational certificate course at TAFE, the plaintiff and her family moved to Wyoming, in New South Wales, and there the plaintiff undertook a 12 month traineeship in a kindergarten or preschool. She encountered a number of difficulties, which the plaintiff describes in her evidence.

451. The plaintiff’s enjoyment of that work in early childhood, except the aspect that related to study, was relied upon by the Council as to the plaintiff’s capacity to work. The plaintiff failed to complete the childcare course. The plaintiff attended a retail course in July 2015, but dropped out of that course as she could not manage the workload.

452. The plaintiff also commenced a beauty therapy course at a community college, which course was completed.

453. Following the completion of the beauty therapy course, the plaintiff suffered difficulties associated with trying to use those skills in employment. Those difficulties were associated with the interaction that was required with clients, and, during the course, with teachers and other students.

454. In August 2017, the plaintiff commenced a retail course, with which she also had difficulties. Once more, those difficulties related to interacting with others, including clients and co-workers. I am satisfied that the plaintiff’s psychiatric issues impede her capacity to work with members of the public sufficiently to make it extremely difficult for her to work and, more importantly, even more difficult to obtain employment.

455. In January 2018, mostly as a result of the plaintiff’s inability to utilise the courses completed in beauty therapy and retail, the plaintiff sought to obtain some qualifications in business. The plaintiff experienced difficulties in relation to that course and ultimately withdrew from it in March 2018.

456. The plaintiff then sought to utilise her enjoyment of working with children and enrolled in a Certificate III in Childcare Studies at TAFE. The plaintiff experienced difficulties, again, in interacting with people and being away from home. The plaintiff withdrew from that course.

457. The foregoing evidence, which is accepted, to which the plaintiff attests, shows a pattern. That pattern includes a desire to work and a desire to obtain qualifications that may be useful in obtaining work, but an inability to cope with interactions with others (with the possible exception of small children) and anxiety at being away from those with whom the plaintiff is comfortable.

458. I accept the criticism of the report of Professor Bright [87] in that the suggested employment roles that it is said the plaintiff could fulfil pay insufficient regard to the history of the plaintiff’s inability to deal with other people (other than those with whom she is close and in a continuing relationship).

     87. Exhibit 13.

459. Whatever employment the plaintiff would be capable of physically performing would become difficult, if not impossible, because of her inability to deal with members of the public. I accept the plaintiff’s evidence that she has difficulty spending time away from her home, unless in the company of her partner.

460. Notwithstanding the foregoing, the plaintiff has enjoyed some social activity, particularly when in the company of her partner and others with whom she has formed a relationship, once introduced to them in the company of a person in whom she has some trust. The evidence in relation to attendance at the Pulse Night Club is evidence of that experience.

461. Even though the plaintiff says that she was able to attend and remained at the nightclub as a result of her consumption of alcohol, she did attend the nightclub on five occasions and, frankly, the consumption of alcohol prior to attendance at the nightclub is not particularly unusual.

462. Nevertheless, the use of alcohol in the last mentioned circumstance is not by way of self-medication, which it is plainly, in the case of the plaintiff. The evidence establishes that the plaintiff enjoys some social interaction and activities, particularly when in the company of her partner, but continues to suffer restrictions in the enjoyment of life, outside employment.

463. I conclude that these restrictions are as a result of the psychological injuries caused by the collision. These are matters that go to non-economic loss. It is clear that the plaintiff is not fully restricted in her enjoyment of life, outside of work. It is also clear that, for all practical purposes, the plaintiff is unemployable.

464. As already stated in relation to the Pilot, pursuant to the terms of the Civil Liability (Non-economic loss) Order 2010 (NSW) and ss 16 and 17 of the Civil Liability Act, the maximum amount of damages able to be awarded for non-economic loss, for a most extreme case, is $687,000 (from 1 October 2020).

465. The restrictions on her enjoyment of life are significant, but do not approach the extreme. Albeit when in the company of persons the plaintiff trusts, the plaintiff is able to obtain some significant enjoyment in life. In all the circumstances and bearing in mind all of the difficulties that are continuing and were suffered from the outset (or shortly thereafter), it seems that an award of 60% of the most extreme case is appropriate. As a consequence, non-economic loss will be $412,200.

466. Taking into account the age of the plaintiff at the time of the Ferris wheel incident, 21 days before the plaintiff turned 14, and the evidence as to her performance in primary and secondary school in design and technology, it is not unreasonable to expect that the plaintiff would have gone on to complete secondary school and obtain a career in fashion and design. The effect of the collision rendered that an impossible task.

467. I accept, as earlier stated, the opinion of Associate Professor Phillips and have otherwise come to the conclusion, notwithstanding the opinion of Professor Bright, that the plaintiff is, for all practical purposes, unemployable. I have already commented that, in the view I take, Professor Bright’s opinion does not have sufficient regard to the inability, as a consequence of the plaintiff’s psychiatric conditions, of the plaintiff to work with members of the public.

468. I accept the submission that, were the plaintiff to have completed her secondary schooling as, in my view, would have been the case, at least more probably than not, and undertaken a design course at TAFE, the evidence about which suggests that the course would be approximately three years, this would mean she would have entered the workforce at the beginning of 2019. In some respects, given the young age of the plaintiff and her unemployability, the particular area of work in which the plaintiff would, but for the injuries sustained, have worked, is not as relevant as is the determination by the Court, which is made, that the plaintiff would have entered the workforce, more probably than not, in 2019 and worked in a design or technology area.

469. As a consequence of the foregoing and the earlier comments, the Court sets out the assumptions it makes in determining economic loss:

1. The plaintiff would have continued her secondary school education to high school certificate level then successfully undertaken a TAFE course in design or fashion or technology;

2. The plaintiff would have entered the workforce in 2019;

3. With her partner, she would have been part of a two income earning family until retirement age of 67 years;

4. In those circumstances, the plaintiff would have earned average weekly earnings for females in New South Wales which, at the time of the hearing, was $1,484 per week gross and, after tax, $1,079 per week.

487. I reiterate that the plaintiff has no realistic or exercisable capacity to earn. The plaintiff has satisfied the Court, on the balance of probabilities, that she has significant incapacity and, whatever incapacity does not exist, would be unable to be exercised as a consequence of her inability to deal with members of the public, when not in the company of a person that she trusts.

488. Further, to the extent that the foregoing does not cover all of the options, the Court concludes that the Council has not satisfied the Court that the plaintiff has a residual capacity for work, taking into account the difficulties associated with working with the public. [88]

     88. Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 at 657; [1968] HCA 9; Van Velzen v Wagenerhan (1975) 10 SASR 549 at 550, per Bray CJ; Baird v Roberts [1977] 2 NSWLR 389.

489. I take into account the discussion by Heydon JA in State of New South Wales v Moss. [89] In particular, I refer to his Honour’s comment which appeared in the following terms:

“[84]   An illustration of the court’s readiness to award damages for diminution of earning capacity arises when very young children are injured. Strictly speaking it would be impossible to prove that the child would have had an earning capacity as an adult or would have exploited it. But it is conventional to rely on the occupations, attitude to life and work histories of parents and other relatives: Kalo v Bristol Omnibus Co Ltd [1975] 1 WLR 1054; Gowling v Mercantile Mutual Insurance Co Ltd (1980) 24 SASR 321; Bullock v Miller (1987) Aust Torts Reports 80-128; Burford v Allan (1992) 60 SASR 428. See also the position in England described in McGregor on Damages, 16th ed., paras 1381-1382.

…

[87]   In short, where earning capacity has unquestionably been reduced but its extent is difficult to assess, even though no precise evidence of relevant earning rates is tendered, it is not open to the court to abandon the task and the want of evidence does not necessarily result in non-recovery of damages.”

89. State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [62]-[87].

490. In Mead v Kerney, [90] Macfarlan JA commented on the judgment at first instance, and recited at [16] of his judgment and then commented at [25] of his judgment, in the following terms:

     90. Mead v Kerney [2012] NSWCA 215.

“[16]   The primary judge made the following observations regarding the onus of proof of loss of earning capacity and consequent financial loss:

‘[190]    It is necessary for a plaintiff to prove the loss for which compensation is claimed: Todorovic v Waller (1981) 150 CLR 402 at 412-413, however conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she “is not [in]capacitated from performing”. It is for a defendant who contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: Luntz, Assessment of Damages for Personal Injury and Death (4th ed) at [118 [1.9.20]].

[191]    This approach was referred to with approval in Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20]. I will consider these questions with the question of onus in mind.’

…

[25]   The appellants also accepted that they bore an evidential onus concerning the issue of whether the respondent has a residual earning capacity that he is practically capable of exercising. This is the approach taken in Luntz, Assessment of Damages for Personal Injury and Death, 4th ed (2002), LexisNexis Butterworths at [1.9.20], referred to with approval by this Court in Magnou v Australian Wool Testing Authority Ltd [2007] NSWCA 357 at [20] and applied by the primary judge in this case (see [16] above).” [91]

91. Mead v Kerney [2012] NSWCA 215, per Macfarlan JA with whom McColl JA and Sackville AJA agreed.

491. In or to the same effect are the comments of the Court of Appeal in South Western Sydney Local Health District v Sorbello [92] in which Simpson JA said:

     92. South Western Sydney Local Health District v Sorbello [2017] NSWCA 201.

“[72]    What is now in issue is the extent, if any, to which Ms Sorbello can exploit such working capacity as she has. It is important to note the distinction between ‘working capacity’ and ‘earning capacity’. The terms are not co-extensive. ‘Earning capacity’ recognises the realities of the world of employment.

[73]   In Nominal Defendant v Livaja [2011] NSWCA 121 this Court said:

‘65    There are distinctions to be drawn between injury and impairment or disability consequent upon injury, and between impairment or disability and diminished earning capacity. Because an individual has a physical and mental ability to undertake certain tasks, it does not necessarily follow that he has a significant residual earning capacity. Earning capacity must be measured by reference to the individual, when viewed with all his or her characteristics, in the labour market. When a person in middle age has spent all his or her life in a skilled or semi-skilled occupation which, as a result of injury, is no longer available, the identification of occupations which are theoretically available is only part of the task. There must also be a practical assessment of the likelihood of the individual obtaining employment in some such occupation.’

[74]   It has been accepted by this Court that, once a plaintiff has established a loss of earning capacity, the onus of demonstrating a failure to exercise any residual earning capacity lies on the defendant: Mead v Kearney [2012] NSWCA 215 at [16] and [25]. In Harold Luntz: Assessment of Damages for Personal Injury and Death, (4th ed 2002, Butterworths) at 118, the following is stated:

‘Although a plaintiff who proves to the satisfaction of the court that the incapacity is genuine may take advantage of inferences of fact that may be drawn where there were no symptoms of the condition before the defendant’s negligence caused some injury, the ultimate onus of proving that the incapacity is due to the defendant’s negligence and not a pre-existing condition rests on the plaintiff. Once this onus is satisfied, it is not necessary for the plaintiff also to satisfy the court of the extent of the loss, in the sense of proving what employment the plaintiff is not incapacitated from performing; a defendant who contends that the plaintiff has a residual capacity has at least an evidentiary onus of adducing evidence of what the plaintiff is capable of performing and what jobs are open to a person with such a residual capacity. A fortiori, it is unrealistic to expect a plaintiff who contends that all work capacity has been lost to show by evidence what employment opportunities remain and what they would pay, in case the court accepts the defendant’s contention the some residual capacity remains …’ (italics in original, bold added)

That passage was cited with approval in Mead.” [93]

93. South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 at [72]-[74] per Simpson JA with whom Macfarlan and Meagher JJA agreed..

492. Of course, the Court is dealing with issues that involve a degree of uncertainty. One approach may be to apply the percentage formula relevant to awarding damages for uncertainties. [94]

     94. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

493. In my view, notwithstanding that the Court is required to look into the future, the evidence before the Court establishes, on the balance of probabilities, that there is no realistic residual earning capacity of which the plaintiff can take advantage. It is more probable than not that the plaintiff, notwithstanding her desire, evidenced by, among other things, her continuing enrolment and attempts at employment, to obtain paid employment, will never be able to realise that desire. That is because of the psychiatric impact of the collision for which each of the Council and the Pilot is responsible.

494. Nevertheless, it is necessary to take into account the consensus view of the psychiatric experts that the plaintiff had, pre-collision, psychiatric vulnerabilities. While I have noted that all persons have some psychiatric vulnerabilities, the plaintiff’s vulnerabilities increased the likelihood that a different trauma or some other occurrence may have caused psychiatric damage, not necessarily greatly, but significantly enough to be taken into account in the determination of any future losses.

495. In my view, the most appropriate way of dealing with that issue is by increasing the allowance for vicissitudes that would otherwise apply to the appropriate heads of damage. As already stated, I have taken into account, in determining the percentage of the most extreme case for non-economic loss, the pre-existing vulnerabilities suffered by the plaintiff that might otherwise have given rise to injury of like kind.

496. Nevertheless, the uncertainties can be dealt with in a number of ways. In Seltsam Pty Ltd v Ghaleb, [95] the Court discussed the interrelationship of the principles to be applied in cases of uncertainty or pre-existing conditions that may otherwise give rise to injury of a like kind. [96] In Seltsam, Ipp JA discussed the pre-existing conditions and the application of the judgment of the High Court in Watts v Rake [97] and Purkess v Crittenden [98] and referred to the application of Malec v Hutton [99] and recited the well-known passage at page 643 of the report of Malec. I reiterate those comments:

     95. Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208.

     96. Seltsam Pty Ltd v Ghaleb, supra, at [93] and following, per Ipp JA, with whom Mason P agreed.

     97. Watts v Rake (1960) 108 CLR 158; [1960] HCA 58.

     98. Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34.

     99. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

“[102]   In Malec Deane, Gaudron and McHugh JJ said at 643:

‘[I]n respect of events which have or have not occurred, damages are assessed on an all or nothing approach. But in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury or degeneration are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high - 99.9 per cent - or very low - 0.1 per cent. But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages.’

Brennan and Dawson JJ stated at 639-640:

‘The judgment of the majority in the Full Court seems to us to overlook the difference between the fact that the [plaintiff] had not been working for some time before the trial and an evaluation of the [plaintiff’s] earning capacity which was destroyed in consequence of the [defendant’s] negligence. The fact that the [plaintiff] did not work is a matter of history, and facts of that kind are ascertained for the purposes of civil litigation on the balance of probabilities: if the court attains the required degree of satisfaction as to the occurrence of an historical fact, that fact is accepted as having occurred. By contrast, earning capacity can be assessed only upon the hypothesis that the [plaintiff] had not been tortiously injured: what would he have been able to earn if he had not been tortiously injured? To answer that question, the court must speculate to some extent. As the hypothesis is false - for the [plaintiff] has been injured - the ascertainment of earning capacity involves an evaluation of possibilities, not establishing a fact as a matter of history. Hypothetical situations of the past are analogous to future possibilities: in one case the court must form an estimate of the likelihood that the hypothetical situation would have occurred, in the other the court must form an estimate of the likelihood that the possibility will occur. Both are to be distinguished from events which are alleged to have actually occurred in the past.’

Their Honours said at 640:

‘In assessing the [plaintiff’s] earning capacity in the present case, what had to be evaluated was the prospect that the deteriorating back condition would have precluded him from engaging in gainful employment had he not contracted brucellosis. An evaluation of that prospect had to be made. To make a finding on the balance of probabilities as though the prospect were something that had occurred in the past was to misconceive the process of evaluation.’

[103]   Therefore, according to Malec:

(a)    In the assessment of damages, the law takes account of hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring.

(b)    The court must form an estimate of the likelihood that the alleged hypothetical past situation would have occurred.

(c)    The court must form an estimate of the likelihood of the possibility of alleged future events occurring.

(d)    These matters require an evaluation of possibilities and are to be distinguished from events that are alleged to have actually occurred in the past, which must be proved on a balance of probabilities.

[104]   What was said in Watts v Rake and Purkess v Crittenden now has to be qualified by these principles (cf Commonwealth of Australia v Elliott [2004] NSWCA 360 at [81]). Malec has an important bearing, for example, on the way in which a court must determine whether a defendant has discharged the ‘disentangling’ evidentiary burden on it of showing that part of the plaintiff’s condition was traceable to causes other than the accident and that, had there been no accident, the plaintiff would have suffered disability from his pre-existing condition.

[105]   Where a defendant alleges that the plaintiff suffered from a pre-existing condition, the evidential onus as explained in Watts v Rake and Purkess v Crittenden remains on the defendant and must be discharged by it. Nevertheless, to the extent that the issues involve hypothetical situations of the past, future effects of physical injury or degeneration, and the chance of future or hypothetical events occurring, the exercise of ‘disentanglement’ discussed in those cases is more easily achieved. That is because the court is required to evaluate possibilities in these situations – not proof on a balance of probabilities.

[106]   Without intending to give an exhaustive list of possibilities, it may be that, had the defendant’s negligent act not occurred, a pre-existing condition might have given rise to the possibility that the plaintiff’s enjoyment of life and ability to work would have been reduced and to a susceptibility to further injury; in addition, other causes entirely unrelated to the defendant’s negligent act might have contributed to the plaintiff’s ultimate condition.

[107]   Appropriate allowances must be made for these contingencies. A proper assessment of damages requires the making of a judgment as to the economic and other consequences which might have been caused by a worsening of a pre-existing condition, had the plaintiff not been injured by the defendant’s negligence. A pre-existing condition proved to have possible ongoing harmful consequences (capable of reasonable definition) to the plaintiff, even without any negligent conduct on the part of the defendant, cannot be disregarded in arriving at proper compensation.” [100]

100. Seltsam Pty Ltd v Ghaleb, supra, at [102]-[107].

497. In the current circumstances, the pre-existing vulnerabilities of the plaintiff have not been established as, more probably than not, leading to the subsequent injury. We are dealing with uncertainties.

498. In the circumstances, it seems that the better approach is, as stated, to increase the allowance for vicissitudes. I take into account the fact that the plaintiff’s mother referred to difficulties prior to the collision during the course of counselling, but an opinion by Mrs Arndell as to causation and or difficulties does not detract from the finding that there were pre-existing vulnerabilities, but no pre-existing psychiatric condition. It is the pre-existing vulnerabilities that leads to the reduction in damages on account of an increased allowance for vicissitudes.

499. Some comment should be made on the plaintiff’s submission that the Court should assess loss of income on the basis of “the average weekly earnings for females in New South Wales”. To the extent that it suggests that females are entitled to less compensation for a total incapacity to work, it should be rejected.

500. Nevertheless, the particular circumstances of the plaintiff suggests that it is likely that her employment would be in a career that was female dominated. As politically incorrect as that may sound, as a consequence, her earnings would be less than the average weekly earnings otherwise applicable.

501. Average weekly earnings, which are not gender specific, include income for both males and females. The Court, therefore, accepts the submission that the proper gauge for the loss of earning capacity of the plaintiff is average weekly earnings for females in New South Wales.

502. Damages must be assessed as at the date of judgment. As at today’s date (and from 13 August 2020) female average weekly earnings for New South Wales are $1,578.50 gross, which would be $1,200.35 after tax.

503. As a consequence of the foregoing, past economic loss, being for the whole of 2019 and 10 months of 2020, amounts to $114,573.41, plus superannuation, for the past of $10,884.47.

504. Future economic loss, calculated on the net weekly earnings of $1,200.35, and using the multiplier for 44 years (944.5) is $1,133,730.58. Loss of superannuation is $107,704.41 for the future, assuming it remained at 9.5%, which it will not, on current legislative provisions.

505. Because even the past economic loss is a measure of uncertainty and must take into account vicissitudes, both the past economic loss and the future economic loss will be discounted by the vicissitudes, which I assess at a higher amount than is usual, and I assess those vicissitudes at 20%.

506. Professor Phillips expressed the opinion of the plaintiff that she is incapable of managing her own personal affairs. [101] Professor Phillips notes that the plaintiff struggles with routine tasks required for a smooth everyday life. Further, the plaintiff is of low average/average intelligence and had limited insight into psychological problems.

     101. Exhibit Z, report of 21 November 2017.

507. As already stated, the plaintiff has completed a number of courses, in beauty therapy and retail sales, to name two. Her difficulties in employment relate to her interaction with other adults, when not in the company of a person in whom she trusts.

508. It is not clear, or more probable than not, that any incapacity in terms of fund management is related to this psychiatric condition or injury. If there be an inability to manage funds, it may well be the product of her general competence and capacity, rather than any psychiatric injury caused by the collision.

509. I am not satisfied, on the balance of probabilities, that the plaintiff’s incapacity to manage funds, if there be one, is a result of the negligence of the Council or the Pilot.

510. No damages are sought under the head of damage of gratuitous care and none would be available on the evidence before the Court. Pursuant to the terms of s 18 of the Civil Liability Act, pre-judgment interest is not payable on non-economic loss, relevantly. While theoretically interest would be payable on the past economic loss, that rate has been calculated on the average earnings as at today’s date; it is for a short period during which, on the determination of the Court, the plaintiff would have been available to have worked and, in all the circumstances, prejudgment interest is not awarded. Medical expenses and future medical expenses are agreed at $2,309 and $5,000 respectively.

511. The Court makes the following orders:

In matter 2015/199567, Arndell v Mid-Coast Council and Ors:

1. Judgment for the plaintiff.

2. The second defendant, Mid-Coast Council, shall pay the plaintiff, Amber Christine Arndell, damages in the sum of $1,513,023.30.

3. Judgment on the cross-claim for the cross-claimant.

4. Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act1946 (NSW), the cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, by payment to the cross-claimant, Mid-Coast Council, 35% of the aforesaid damages, being an amount of $529,558.16.

5. Interest shall be payable on all amounts from the date of judgment in accordance with the prescribed rate and shall be payable by the second defendant to the plaintiff and by the cross-defendant to the cross-claimant respectively.

6. The second defendant, Mid-Coast Council, shall pay the plaintiff’s costs of and incidental to the proceedings on the following bases:

1. on and from 20 December 2017, on an indemnity basis;

2. otherwise, costs, prior thereto, if any, on an ordinary basis.

7. The cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), 35% of the costs assessed and/or agreed, payable pursuant to the immediately preceding order.

8. Leave is granted to any party to approach for the purposes of correcting any arithmetic or mechanical error in the foregoing calculations or the accidental omission of a head of damage.

In matter number 2014/286417, Paul Clarendon Cox v Mid-Coast Council and Ors:

1. Judgment for the defendants.

2. The plaintiff shall pay the defendants’ costs of and incidental to the proceedings.

3. Otherwise, the proceedings are dismissed.

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Endnotes

Amendments

15 December 2020 - Costs orders amended on 15 December 2020. Order (6) subsequently varied.