Cox v Mid-Coast Council

[2021] NSWCA 190

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Cox v Mid-Coast Council [2021] NSWCA 190

Hearing dates:

8 July 2021

Date of orders:

31 August 2021

Decision date:

31 August 2021

Before:

Meagher JA at [1]; Payne JA at [2]; Emmett AJA at [72]

Decision:

(1)    Appeal dismissed;

(2)    Appellant to pay the costs of the respondent.

Catchwords:

NEGLIGENCE – dangerous recreational activities – appellant suffered injury in mid-air collision between light aircraft and Ferris wheel – appellant engaged in dangerous recreational activity of landing at an unregulated aircraft landing area – whether appellant suffered harm as the result of the materialisation of an obvious risk of a dangerous recreational activity – appropriate level of generality when characterising risk – obviousness of risk – appellant’s harm resulted from manifestation of the obvious risk of colliding with obstructions in the splay of the landing area – appeal dismissed

Legislation Cited:

Civil Aviation Regulations 1988 (Cth), r 92

Civil Liability Act 2002 (NSW), ss 5B, 5C, 5F, 5G, 5K, 5L

Cases Cited:

Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219

Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports ¶81–874

Carter v Hastings River Greyhound Racing Club (2020) 102 NSWLR 691; [2020] NSWCA 185

Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) Aust Torts Reports ¶82–063

Cox v Mid-Coast Council [2020] NSWSC 1710

Echin v Southern Tablelands Gliding Club [2013] NSWSC 516

Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32

Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65

Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152

Category:

Principal judgment

Parties:

Paul Clarendon Cox (Appellant)
Mid-Coast Council (Respondent)

Representation:

Counsel:
CT Barry QC and R Royle (Appellant)
R Sheldon SC (Respondent)

Solicitors:
Shine Lawyers (Appellant)
Mills Oakley (Respondent)

File Number(s):

2020/354018

Publication restriction:

None

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law Division

Citation:

[2020] NSWSC 1710

Date of Decision:

01 December 2020

Before:

Rothman J

File Number(s):

2014/286417

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 1 October 2011, the appellant suffered personal injury during an attempted landing at Old Bar Aircraft Landing Area (“Old Bar ALA”) when his aircraft collided with a Ferris wheel. The Ferris wheel had been erected two days prior to the incident, and encroached on the “splay”, being the area through which aircraft may travel when taking-off from or landing at the grass airstrip at the Old Bar ALA. The Old Bar ALA is an unlicensed aerodrome and is not subject to any legal requirements or regulatory oversight in relation to safety.

The primary judge found that s 5L of the Civil Liability Act 2002 (NSW) prevented the appellant from succeeding in…