Cox v Mid-Coast Council

Case •

[2021] NSWCA 190

•

31 August 2021

No judgment structure available for this case.

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 his claim for damages from the respondent. This is because the harm suffered by the appellant was the result of the materialisation of an obvious risk of a dangerous recreational activity, being the risk of collision with an obstacle in the “splay”.

The appellant challenged the primary judge’s findings in relation to s 5L. The issues before the Court were (1) whether the primary judge failed properly to characterise the risk of harm by failing specifically to refer to the Ferris wheel; and (2) whether the risk of harm described by the primary judge was an obvious risk of the dangerous recreational activity.

The Court (Payne JA, Meagher JA and Emmett AJA agreeing) held, dismissing the appeal:

As to issue (1):

  1. The primary judge correctly identified the risk of harm which materialised at the appropriate level of specificity, by reference to the risk of a collision with obstructions in the “splay” of the Old Bar ALA. It was not appropriate specifically to identify the Ferris wheel in the characterisation of the risk of harm: at [1] (Meagher JA); [41]-[42] (Payne JA); [85] (Emmett AJA).

  2. Although the risk of harm must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of the particular case, it must also be expressed at a level of generality which preserves the intent of s 5L Civil Liability Act in allocating where the burden falls for harm suffered by the manifestation of an obvious risk of a dangerous recreational activity: at [1] (Meagher JA); [43] (Payne JA); [85] (Emmett AJA).

Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65; Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152 applied.

  1. The risk of harm identified for the purpose of s 5L need not be the same risk of harm identified for the purpose of determining the existence and content of a duty of care: at [1] (Meagher JA); [48] (Payne JA); [85] (Emmett AJA).

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

As to issue (2):

  1. The risk of collision with an obstruction in the “splay” at the Old Bar ALA was an obvious risk of a dangerous recreational activity: at [1] (Meagher JA); [65] (Payne JA); [85] (Emmett AJA).

  2. A reasonable person in the position of the appellant would have known that an obstruction may be erected in the “splay” and that the plane in taking off or landing at the Old Bar ALA might hit that obstruction. The appellant was not entitled to expect that the splay of the airstrip at the Old Bar ALA would be free of any obstructions which could create a risk of collision: at [1] (Meagher JA); [66]-[69] (Payne JA); [85] (Emmett AJA).

Judgment

  1. MEAGHER JA: I agree with Payne JA.

  2. PAYNE JA: This is an appeal from the judgment of Rothman J in Cox v Mid-Coast Council [2020] NSWSC 1710. The primary proceedings arose from an incident in October 2011 when the appellant, Mr Cox flew a light aircraft into a Ferris wheel erected on land controlled by the respondent, the Mid-Coast Council (“the Council”). As can be seen in the photo below, the aircraft flew into and became lodged in the top quadrant of the Ferris wheel, causing damage to both the aircraft and the Ferris wheel.

  1. The light aircraft collision led to two claims for damages in negligence. The first was brought by Ms Arndell, a passenger on the Ferris wheel, against the Council and Mr Cox. That claim was successful before the primary judge and no appeal was brought. The second claim, brought by Mr Cox against the Council, was rejected by the primary judge and is the subject matter of this appeal.

  2. Mr Cox challenges the primary judge’s finding that the Council was not liable to him by reason of the application of s 5L of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”).

Decision of the primary judge

  1. On 1 October 2011, Mr Cox piloted a “Morgan Aeroworks Sierra 200” aircraft from Taree Airport towards the Old Bar Aircraft Landing Area (“Old Bar ALA”). Mr Cox held a Recreational Aviation Licence issued by Recreational Aviation Australia Ltd, which is an organisation approved by the Civil Aviation Safety Authority (“CASA”) to self-administer sport and recreational flight activities via an exemption under the Civil Aviation Regulations 1988 (Cth) (“Civil Aviation Regulations”).

  2. The take-off and landing area at the Old Bar ALA is a grass strip approximately 600m in length (“the Airstrip”). There are a number of obstacles such as trees, constructed objects and a road beyond the southern end of the Airstrip which an aircraft taking off or landing at the Old Bar ALA must avoid. The Old Bar ALA is not a licenced aerodrome subject to regulatory oversight or control by CASA. It is not monitored or staffed by air traffic control personnel or ground staff. Being an ALA, which is not subject to CASA authorisation, supervision or control, the Old Bar ALA is not required to comply with any legal requirements established by the Civil Aviation Regulations or other laws regulating landing areas used by aircraft.

  3. Civil Aviation Advisory Publication 92-1 (“CAAP 92-1”), published by CASA’s predecessor the Civil Aviation Authority in July 1992, is an advisory publication which sets out recommendations to ensure the safe operation of an ALA. It has not been subsequently amended since publication and remained current as at the date of the incident in October 2011. There is no legal requirement that an ALA such as the Old Bar ALA comply with any recommendations set out in CAAP 92-1.

  4. On the day of the incident, the annual Old Bar Festival was being held. A Static Air Show, in which various aircraft were to be displayed on the ground (as opposed to flying) had been organised to take place at the Old Bar ALA as part of the Festival. One of the aircraft to be displayed was owned by Garry Morgan, under whom the appellant had undertaken some of his flight training. Mr Morgan had asked the appellant to assist in the Static Air Show and fly Mr Morgan’s aircraft, being the Morgan Aero Works Sierra 200, to the Old Bar ALA from Taree Airport. This was the same aircraft in which the appellant had undertaken his training with Mr Morgan, and with which he was familiar having accumulated more than 40 hours’ experience in the plane.

  5. Also as part of the Old Bar Festival, two days prior to the incident a Ferris wheel had been erected in the area beyond the southern end of the Airstrip. The upper right quadrant of the Ferris wheel encroached into the obstacle clearance “‘splay” for aircraft taking off from the Airstrip. The splay 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. CAAP 92-1 recommends a horizontal and vertical splay of 5% from the end of the runway which should be kept free of obstacles. The aerial photograph below depicts the southern end of the Airstrip at the Old Bar ALA (identified as “Runway Strip 17” in the photograph, the number 17 denoting the alignment of the Airstrip with 170 degrees on a compass) and the location of the Ferris wheel relative to the Airstrip. The concept of the obstacle clearance splay which would apply in relation to the Airstrip is depicted in the figure below, taken from CAAP 92-1. The primary judge found that the Ferris wheel was located so that it “encroached into the lateral and vertical obstacle clearance [splay] for aircraft taking-off from runway 17 at Old Bar ALA, as delineated by CAAP 92-1(1)”. Rotated 90 degrees and overlain on the aerial photograph, it is clear that the Ferris wheel encroached on the obstacle clearance splay of the southern end of the Airstrip.

  1. The Council had care, control and management of the Old Bar ALA and, at the time of the Old Bar Festival, invited the use of the Old Bar ALA by recreational aircraft. Although the Council did not decide on the location of the Ferris wheel, it “was aware of the location of the Ferris wheel, approved its use at that location during the Festival and was aware that aircraft would be landing and taking-off from the Airstrip for the period during which the Festival was being conducted”.

  2. The primary judge made the following specific findings in relation to the circumstances of the accident:

  1. on approaching the Old Bar ALA, the appellant conducted a circuit of the airfield in preparation for landing and to determine the extent of and location of obstacles on and around the airfield. That circuit included a flyover of the Airstrip from west to east, approximately two thirds of the way down the Airstrip from the north;

  2. after crossing the Airstrip at an altitude of 1,500 feet, the appellant 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 was facing the beginning of the landing strip;

  3. the purpose of traversing the airfield in the flyover was to check for obstacles affecting the landing and take-off of the aircraft from the Old Bar ALA;

  4. as it had been raining that morning, the appellant decided to conduct a “touch and go” (whereby the aircraft approaches the runway as though to land, but only touches down momentarily before immediately taking off again) to assess the safety of the grass landing strip. The appellant approached the Airstrip from the north and successfully performed this first touch and go;

  5. the appellant then circled around and approached the Airstrip from the north a second time with the intention of landing. However, on realising that this landing would be unsuccessful, the appellant conducted a second touch and go by immediately taking off again, during which the aircraft veered to the left and collided with the Ferris wheel;

  6. given the conditions at the time of the landing, “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”, and in which the Pilot was “required … to attempt to take-off again, rather than continue to attempt at landing”;

  7. the fact that the appellant’s landing was too high and too fast demonstrated airmanship below that expected of a competent pilot holding a recreational pilot certificate;

  8. the collision between the aircraft and the Ferris wheel 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.”

  1. In determining whether the Council owed a duty of care to either the appellant or the plaintiff in the primary proceedings, the primary judge observed that their Statements of Claim “do not adequately plead the risk of harm that is said to be foreseeable”. Nevertheless, the primary judge identified the relevant risk from the Council’s perspective as “twofold”:

“[255]   There is a risk of harm associated with the operation of the Old Bar ALA, or its continued operation, at a time when there were temporary obstructions in the splay. There is a risk of harm associated with permitting the erection of the Ferris wheel in a manner which obstructed the safe take-off and landing from the airstrip, as a consequence of it being constructed at a location and at a height which was within the splay for take-off and landing at the Airstrip.

[256]   In relation to both, the risk was that an aircraft utilising the Airstrip would collide with the Ferris wheel, which has been permitted to be erected within an area which obstructed the safe take-off and/or landing of aircraft at the Airstrip.”

The harm associated with the identified risks was both physical injury and psychiatric injury.

  1. The primary judge then observed that, to the extent the Council owed a duty of care at common law, the Civil Liability Act qualifies whether harm caused by any breach of that duty by the Council is actionable, and in what circumstances. In particular, the Civil Liability Act “excludes a defendant’s liability in negligence for harm suffered by a person as a result of the materialisation of an obvious risk involved in a dangerous recreational activity in which the person harmed has engaged”.

  2. The primary judge found that the activity in which the appellant was engaged when he suffered the harm complained of, being the “flight from Taree to Old Bar” (at [271]), was a dangerous recreational activity:

“[292]    In my view, in the circumstances pertaining to this flight, the activity in which the Pilot was engaged was a ‘dangerous recreational activity’, being one in which he engaged for enjoyment, relaxation or leisure. There may be other bases for the activity being a recreational activity.”

  1. That finding was made with reference to the following factors:

  1. the appellant held a “recreational licence”;

  2. the appellant engaged in the flight “for his enjoyment, relaxation or leisure”;

  3. although the appellant had a passenger (his son-in-law) with him, that passenger was not a paying passenger. Nor was the appellant paid for flying the plane;

  4. the activity of flying an aircraft carries inherent and obvious risks of harm associated with collision, engine failure and/or other mechanical failure “that do not depend upon, and cannot be overcome by, the exercise of due care by the person engaged in the activity”; and

  5. if horse riding is a dangerous recreational activity “then, even more so, is flying an aircraft a dangerous recreational activity, at least when the aircraft is not engaged in a commercial flight.”.

  1. To these factors may be added the further element that the appellant was not merely engaged in the activity of flying a light aircraft, but was engaged in the activity of flying a light aircraft to the Old Bar ALA. The nature of the Airstrip as an unattended Aircraft Landing Area which is not subject to regulatory oversight or control, and which was not monitored by any air traffic control personnel or ground staff has a bearing on the identification of obvious risks of harm associated with that dangerous recreational activity.

  2. There is no longer a challenge on appeal to the finding that Mr Cox was engaged in a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act.

  3. The primary judge then identified the obvious risk of harm within the meaning of s 5K of the Civil Liability Act associated with that dangerous recreational activity in the following way:

“[289]    …If one is flying an aeroplane, and in so doing taking-off from, or landing at, an airstrip, there is an obvious risk that a collision may be caused by an obstruction in the flight path or possible flight path of the aircraft.”

  1. The primary judge concluded that, as the appellant’s claim for damages related to harm suffered as a result of the manifestation of that obvious risk of a dangerous recreational activity, the Council was not liable for that harm by reason of s 5L of the Civil Liability Act:

“[298] As a consequence of the foregoing, the combined effect of ss 5K and 5L of the Civil Liability Act result in the activities of the Pilot being a ‘dangerous recreational activity’ and the harm suffered by the Pilot as a result of the collision, whether physical or psychological, is the materialisation of one of the obvious risks of that dangerous recreational activity. Assuming for present purposes that the Council is otherwise liable in negligence, it is excluded from liability to the Pilot by the provisions of s 5L of the Civil Liability Act and the Pilot cannot succeed against the Council for the harm suffered.”

  1. However, on the contingent basis that liability had been established, the primary judge determined that if Mr Cox were not prevented from recovering damages from the Council on account of s 5L of the Civil Liability Act, then the amount of damages he would have recovered from the Council would be reduced by reason of his contributory negligence for the following reasons (citations omitted):

“[341]    As between the Council and the Pilot, if it be necessary to assess the comparative culpability, being the degree to which each has departed from the standard of care of the reasonable person, and the relative importance of the acts of the parties in causing the damage, it would seem to me to be an appropriate assessment that the contributory negligence of the Pilot requires an apportionment of 35% as between the Pilot and the Council.

[342]    This apportionment is relevant if the conclusion to which the Court has otherwise arrived, namely that as a result of the Pilot being involved in a dangerous recreational activity, no liability arises, is incorrect. It will also be applied to contribution and/or indemnity to or of the Council by the Pilot.

[343]    In reaching the figure of 35%, I have taken into account the conduct of each of the Pilot and the Council as regards the circumstances of the incident. I have also, if it be different, determined that to be ‘just and equitable’, having regard to the Pilot’s share in the responsibility for the damage.”

  1. But for the successful defence under s 5L Civil Liability Act, the appellant would have been entitled to damages of $910,687.44, taking into account a reduction of 35% for his contributory negligence.

Notice of appeal

  1. The notice of appeal contained the following grounds:

“1 The primary judge erred in failing correctly to identify the risk of harm that informed the risk under section 5L of the [Civil Liability Act 2002 (NSW) (“CLA”)];

2 The primary judge erred in finding that the risk of harm to the appellant colliding with a Ferris Wheel at the end of the runway in the Vertical Take-off and Landing Obstacle Clearance Splay, was an obvious risk within the meaning of section 5F of the CLA;

3    The primary judge erred in finding that the Appellant was engaged in a dangerous recreational activity.”

  1. As I have explained, the appellant no longer challenges the primary judge’s finding that he was engaged in a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act. Ground 3 was not pressed by Mr C Barry QC who appeared with Mr R Royle for the appellant.

Ground 1: The primary judge erred in failing correctly to identify the risk of harm that informed the risk under section 5L of the CLA

Submissions on ground 1

  1. The first ground challenged the primary judge’s characterisation of the risk of the dangerous recreational activity which materialised in the present case. The appellant submitted that the primary judge’s characterisation of that risk as “the risk of a physical injury arising from a person utilising the Airstrip and flying into an obstruction” was erroneous because it “did not deal with the specific features of the accident which caused the harm to the Appellant”. In other words, it “did not take into account the existence of the particular obstruction that encroached on the take-off area for the aircraft”.

  2. The appellant submitted that, if liability for materialisation of a risk of harm is to be excluded under s 5L of the Civil Liability Act, the risk must be identified with sufficient specificity such that it captures the particular risk which actually materialised to cause harm to the appellant. To meet the requisite degree of specificity, the primary judge was required to identify the existence of the particular obstruction, the Ferris wheel itself, as part of the risk which materialised.

  3. In oral submissions, Mr Barry QC submitted that the primary judge was required to identify the “relevant negligence” before turning to consider s 5L. This involved examining the harm that actually materialised (the injury suffered by the appellant as a result of the collision with the Ferris wheel), and the way in which it materialised. In addition, the appellant submitted that the primary judge should have examined s 5L of the Civil Liability Act from the perspective of a reasonable person in the position of the appellant. Accordingly, so it was submitted, the primary judge was required to take into account the fact that the appellant held a recreational pilot’s licence, was not particularly experienced at flying and was unfamiliar with whether it was usual to find obstructions in the splay of the Airstrip at the Old Bar ALA.

  4. The appellant submitted that the existence of a Ferris wheel as an obstruction was not within the parameters of what the appellant (or a reasonable person in the appellant’s position) would ordinarily expect to occur when piloting an aircraft. In that regard, the appellant sought to draw an analogy with Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32, where Ipp JA explained that, in the particular circumstances of that case, being shot while sitting in a car was not within the parameters of what would ordinarily be expected to occur during a night-time shooting expedition.

  5. The appellant submitted that since the “relevant negligence” (being the erection of the Ferris wheel at its given location and with its given height) was “not within the range of what would ordinarily be expected”, it needed to be specifically identified as forming part of the risk. In the appellant’s submission, it was the unusualness of a Ferris wheel being a potential obstacle in a take-off area which placed it in a different category to other more generic obstacles such as buildings and trees that might exist in such an area, such that it needed to be specifically identified in the description of the risk which manifested.

  6. The appellant referred to a number of cases said to support its submission that where there is something “abnormal or particularly unusual about the circumstances of the particular accident which takes it outside of what a person engaged in that recreational activity might ordinarily expect” then those particular features must be identified in the characterisation of the risk: Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) Aust Torts Reports ¶82–063; Echin v Southern Tablelands Gliding Club [2013] NSWSC 516; Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308; Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219.

  7. In support of the submission that the characterisation of the risk needed to identify the Ferris wheel, being the particular obstruction with which he had collided, the appellant noted that the primary judge had acknowledged the significance of “that feature of the case” when dealing with risk in the context of the respondent’s duty of care. It was submitted that on the facts of the case, the risk identified for the purposes of s 5L should be “one and the same” as the risk identified in relation to duty of care.

  8. The respondent answered those arguments as follows. First, the respondent pointed out that while the appellant criticised the primary judge’s characterisation of the risk, the appellant had not articulated a substitute for the risk identified by the primary judge. Secondly, the respondent urged the Court to reject the appellant’s submission that the primary judge had erroneously failed to deal with the “specific features of the accident”, since the risk of collision with the Ferris wheel fell squarely within the description of the risk as being the risk of collision with an “obstruction that encroached on the take-off area of the aircraft”.

  9. The respondent submitted that the primary judge did not err in formulating the risk broadly to refer to obstructions without making specific reference to the Ferris wheel. Aside from the Ferris wheel, there were other objects within the splay of the Airstrip (such as a fence, trees and groups of people) which also gave rise to a risk of collision. The risk of harm identified for the purposes of s 5L needed to capture all of these “salient risks of landing and taking off” from the Airstrip posed by these other obstructions. The respondent stressed the artificiality of distinguishing the Ferris wheel from the other obstructions in the splay when all of these objects created the same risk associated with the activity of flying an aircraft in and out of the Old Bar ALA, namely the risk of collision with objects within the splay of the Airstrip.

  10. The respondent also submitted that the primary judge did not err in identifying different risks for the purposes of s 5L and of duty of care. The former is considered from the perspective of the appellant, as the party engaged in the dangerous recreational activity. By contrast, the latter is assessed from the perspective of the respondent, as the party owing the putative duty of care. Since the formulation of risk must factor in all persons who reasonably foreseeably may suffer harm as a result of the respondent’s breach of that duty, it takes into account not only the appellant, who was engaged in the dangerous recreational activity of flying an aircraft, but also the plaintiff in the primary proceeding, who was not engaged in a dangerous recreational activity by riding in the Ferris wheel.

Consideration of ground 1

  1. The following provisions of the Civil Liability Act are central to determination of this appeal:

5B   General principles

(1)   A person is not negligent in failing to take precautions against a risk of harm unless—

(a)   the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b)   the risk was not insignificant, and

(c)   in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2)    In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—

(a)   the probability that the harm would occur if care were not taken,

(b)   the likely seriousness of the harm,

(c)   the burden of taking precautions to avoid the risk of harm,

(d)   the social utility of the activity that creates the risk of harm.

…

5F   Meaning of “obvious risk”

(1)    For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2)    Obvious risks include risks that are patent or a matter of common knowledge.

(3)    A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4)    A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

5G   Injured persons presumed to be aware of obvious risks

(1)    In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk.

(2)    For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk.

…

5K   Definitions

In this Division—

dangerous recreational activity means a recreational activity that involves a significant risk of physical harm.

obvious risk has the same meaning as it has in Division 4.

recreational activity includes—

(a)   any sport (whether or not the sport is an organised activity), and

(b)   any pursuit or activity engaged in for enjoyment, relaxation or leisure, and

(c)   any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure.

5L   No liability for harm suffered from obvious risks of dangerous recreational activities

(1)    A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2)    This section applies whether or not the plaintiff was aware of the risk.

  1. In Menz v Wagga Wagga Show Society Inc (2020) 103 NSWLR 103; [2020] NSWCA 65 (“Menz”), Leeming JA (with whom White JA and I agreed) explained the correct methodology to characterise the risk which has manifested and which is said to have been an “obvious risk” for the purposes of ss 5F, 5K and 5L of the Civil Liability Act (emphasis original):

“[70]    … First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single ‘correct’ specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient.

[71]    Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required.

[72]    Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk requires looking at the position with the benefit of hindsight.

[73] Fourthly, I think there is much to be said for the view that ‘as a result of’ in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm.

[74]    Fifthly, the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious.”

  1. The conclusion in Menz is also important. In that case, the appellant was seriously injured when her horse was spooked and fell while the appellant was in the saddle. The formulation of the risk contended for by the unsuccessful appellant included the precise mechanism which was alleged to have spooked her horse, being noise made by children banging on the cladding surrounding the show ring where the dressage competition was taking place, rather than the more generic formulation of the obvious risk of her horse being spooked by “some stimulus”. On this topic Leeming JA concluded:

“[79]    There will, inevitably, be difficult cases. But the present is, to my mind, quite clear. There were three basal and inescapable facts in this litigation. The first was that, as it was put, there was ‘no such thing as a bomb proof horse’. The second was that horses may at any time be spooked by a noise, or a shadow, or some other stimulus. The third was that a rider runs a risk of serious injury in the event that a horse is spooked and behaves unpredictably. Those facts make it appropriate to characterise the harm suffered by Ms Menz as the materialisation of the obvious risk of her horse being spooked by some stimulus. It is not necessary in order fairly to describe what occurred to provide the additional particularity that the noise made by children spooked the horse.”

  1. The importance of that conclusion was subsequently explained by Basten JA, with whom Leeming JA and I agreed in Singh v Lynch (2020) 103 NSWLR 568; [2020] NSWCA 152 (“Singh v Lynch”). Basten JA referred to the principles articulated by Leeming JA in Menz set out above and explained the Court must employ both hindsight and foresight to determine the appropriate breadth with which the risk must be characterised (citations omitted):

“[50]    It does not follow, however, that the question of obviousness can appropriately be resolved by identifying the relevant risk so broadly as to encompass all possible risks associated with the activity. Such a characterisation will no doubt capture the risk which materialised, but it may do so at the cost of undermining the apparent purpose and function of the defence. This danger was recognised in Menz by noting that ‘determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight.’ However, that proposition was not intended to contradict the statement in the same paragraph that obviousness is to be considered prospectively. The correct approach is one which requires a balance to be drawn on the evidence in a particular case; it would be wrong to focus primarily on the hindsight exercise. To do so carries with it the opposite danger to that identified above, namely to identify the risk which materialised by attention to the fine-grained detail of the event, to show that it was not one which the plaintiff could reasonably have anticipated. That such an exercise was not intended by the language used in these paragraphs in Menz is confirmed by noting how the principles were applied, at [79].”

  1. The whole passage bears study. The appellant’s approach in the present case was one which primarily relied on hindsight, focussing on the precise obstacle with which the aircraft actually collided. As Basten JA explains in this passage, to identify the risk which materialised by attention to the fine-grained detail of the event giving rise to harm, to show that it was not one which the plaintiff could reasonably have anticipated, is not the exercise intended by the language used in the Civil Liability Act, as explained in Menz. This is confirmed by noting how the principles were applied in Menz at [79] (set out above).

  2. In Carter v Hastings River Greyhound Racing Club (2020) 102 NSWLR 691; [2020] NSWCA 185, Simpson AJA, who with McCallum JA formed the minority on the five-judge bench in Singh v Lynch, explained that although the Court in Singh v Lynch was divided on whether the risk in that case was obvious, “[t]here was no difference of opinion with respect to the principles which apply to the determination of what is an obvious risk. The difference was as to the application of those principles”: at [114].

  3. I reject the appellant’s submission that the primary judge failed correctly to characterise the risk which manifested in the present case.

  4. There is no real difference, in substance, between what the appellant submitted was the correct characterisation of the risk of harm, and the risk of harm expressed by the primary judge. In formulating the foreseeable risk for the purposes of s 5B and the risk of harm which manifested for the purposes of s 5L, his Honour referred respectively to the “risk of harm associated with the operation of the Airstrip … at a time when there were temporary obstructions in the splay” and the “risk of a physical injury arising from a person utilising the Airstrip and flying into an obstruction”. The substance of these two risks is the same. The presence of obstacles, and their position in the potential flight path or splay of an aircraft using the Airstrip are common to the primary judge’s characterisation of the risk under s 5L, and that for which the appellant contends. I reject the suggested error in the primary judge’s description of the risk.

  5. The characterisation of the risk of harm for which the appellant contends is too particular. Although the risk must be identified with sufficient specificity to capture the harm which resulted from its materialisation on the facts of the particular case, it must also be expressed at a level of generality which preserves the intent of the provision in allocating where the burden falls for harm suffered by the manifestation of an obvious risk of a dangerous recreational activity. The appellant’s suggested formulation descends to an unnecessary level of particularity which is inappropriate accurately to capture the harm which materialised on the facts of this case.

  6. As in Menz, there are basal and inescapable facts in this litigation which dictate the result. The first is that if there is any hazard or built structure in the splay of an ALA, a plane seeking to land at or take off from that ALA is at risk of colliding with that hazard or built structure. The second is that a pilot runs a risk of serious injury in the event that his or her plane collides with a hazard or built structure in the splay. The third is that it is sufficiently commonplace for hazards and built structures to appear in the splay of an ALA, such that CASA’s predecessor issued guidance, CAAP 92-1, which not only recommends that pilots conduct detailed checks for obstacles in the splay before attempting a landing or take off, but imposes responsibility on pilots to ensure that their aircraft can land at, or take off from, an ALA in safety. Those facts make it appropriate to characterise the harm suffered by the appellant as the materialisation of the obvious risk of his plane colliding with a hazard or built structure in the splay. It is not necessary in order fairly to describe what occurred to provide the additional particularity that the structure with which there was a risk of collision was a Ferris wheel located partly in the splay.

  1. Earlier cases relied upon by the appellant give rise to no different conclusion:

  1. In Fallas v Mourlas, Mr Mourlas was shot in the leg while on a “spotlighting” expedition (i.e. hunting kangaroos at night with the aid of a spotlight). Mr Mourlas was sitting in a vehicle holding the spotlight for the shooters outside when Mr Fallas joined him in the vehicle and accidentally discharged his firearm. Ipp and Basten JJA by majority determined that Mr Fallas’ liability was not excluded by s 5L, but for different reasons. For Ipp JA, the defence failed since the “risk that one or other of the men, while leaving or entering or being in the vehicle as Mr Mourlas was operating the spotlight, might handle a loaded firearm in a negligent manner and cause someone in the vehicle to be shot” was not an obvious risk. This was because Mr Mourlas had repeatedly cautioned Mr Fallas, and Mr Fallas had repeatedly reassured Mr Mourlas, that no accident would be caused by the firearm. Basten JA (who rejected the defence on other grounds) and Tobias JA (who dissented in the result) found that the risk was obvious. This was because although Mr Mourlas was at pains to obtain assurances that Mr Fallas’ firearm would not cause harm, this did not militate against the obviousness, but merely the probability, of the risk. On either conclusion as to obviousness in Fallas v Mourlas, the case does not assist the appellant;

  2. In Council of the City of Greater Taree v Wells [2010] NSWCA 147; (2010) Aust Torts Reports ¶82–063 Mr Wells was injured whilst cycling with a friend along a pathway in Taree when he collided with a metal chain which had been strung across the mouth of the pathway. Beazley JA (McColl and Basten JJA agreeing) rejected the appellant’s contention that “the chain was an obvious risk”. This was because, although a reasonable person in Mr Wells’ position was not entitled to assume that the conditions along a cycling path are static and will not change, the chain in this case was both unexpected and difficult to see. The key factor which distinguishes Taree from the present case is that, unlike in Taree, the presence of the Ferris wheel as an obstruction in the splay would have been observable to a reasonable pilot in the appellant’s position;

  3. In Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 the plaintiff was a member of the respondent gliding club, with which he had learned to fly gliders. The respondent operated a large parcel of rural land where club members launched and landed their gliders. The plaintiff was injured when his glider collided with power lines as he was coming in to land at an airstrip. The plaintiff was aware of both the presence of the power lines, and the importance of maintaining sufficient clearance to avoid colliding with them: see at [18], [23], [24], [123]. The trial judge determined that “landing over powerlines” was an obvious risk within the meaning of s 5F. This finding was based on the plaintiff’s own evidence that this was a known danger associated with landing the glider;

  4. In Kempsey Shire Council v Five Star Medical Centre Pty Ltd (2018) 99 NSWLR 98; [2018] NSWCA 308 the respondent owned an aircraft which was damaged when it collided with a kangaroo on landing at an aerodrome owned and controlled by the appellant. The pilot of the aircraft was the controlling mind and agent of the respondent. There was a well-recognised risk to aircraft from birds and wildlife generally in the vicinity of country aerodromes. Basten JA (McColl JA agreeing) characterised the risk as the “risk of an aircraft suffering damage through colliding with a kangaroo or other wildlife on the runway as the aircraft was landing or taking off”: at [14]. It is noteworthy that the risk identified by Basten JA refers not only to kangaroos, with which the aircraft actually collided, but also more generally to “other wildlife” which might present a risk of collision. As his Honour explained, this more general reference to potential sources of collision arises from the statutory scheme in relation to obvious risks. Basten JA rejected the respondent’s contention that this formulation of the risk did not reflect the level of risk at the time, which surpassed the risk which was obvious to, and accepted by, the pilot. This is because the evidence did not disclose any significant change in the number of macropods on the aerodrome at the relevant time. Accordingly, the level of risk was no different to the obvious risk of collision with kangaroos which was in fact known to the pilot, and therefore the respondent;

  5. In Carey v Lake Macquarie City Council [2007] NSWCA 4; (2007) Aust Torts Reports ¶81–874 the appellant was injured when he struck a bollard while riding his bicycle before dawn along an unfamiliar concrete pathway in a public park. The appellant was aware of the general presence of bollards along the path, but not of their precise position. McClellan CJ at CL (McColl JA and McDougall J agreeing) rejected the respondent’s defence of volenti non fit injuria on the basis that the respondent had failed to show that the appellant had voluntarily accepted the risk of collision with the bollard. However, his Honour determined that the risk of colliding with unexpected obstacles was an obvious risk. The fact that the appellant did not appreciate the risk of hitting the particular bollard with which he in fact collided made no difference to this finding of obviousness.

  6. In Alameddine v Glenworth Valley Horse Riding Pty Ltd (2015) 324 ALR 355; [2015] NSWCA 219 the appellant, on the brink of turning 12 years old at the time, was injured when she fell while riding a quad bike at the respondent’s recreational facility. The fall happened when the appellant accelerated to keep up with her instructor, who had accelerated to a speed which was excessive in the circumstances, and lost control of her bike. The Court dismissed the respondent’s notice of contention that it had a defence under s 5L on the basis that the risk which materialised was not inherent in, or an incident of, a dangerous recreational activity. It was not required to, and did not, consider the question of whether the risk which materialised was an “obvious risk” within the meaning of ss 5F and 5L.

  1. All of these cases pre-date Menz and are in any event of limited assistance in answering the question of objective fact necessary properly to characterise the risk here.

  2. Finally, a consistent theme of the appellant’s submissions was that the risk identified for the purpose of s 5L should be “one and the same” as the foreseeable risk of harm identified by the primary judge for the purpose of determining the respondent’s duty of care.

  3. As the appellant conceded at the hearing, however, there is no requirement as a matter of statutory construction that the risks identified for the purposes of s 5B of the Civil Liability Act on the one hand, and for the purposes of ss 5F, 5G, 5K and 5L on the other hand, must be the same risk. Indeed, it may often be the case that they differ. This is because, as explained by Leeming JA in Menz, the task of identifying the relevant risk under ss 5B and 5F proceeds from different perspectives (emphasis original):

“[55]   The definition of obvious risk in s 5F does not much assist the present issue of the appropriate level of abstraction, save to make it clear that an ‘obvious risk’ is one which would have been obvious to a reasonable person in the position of the person who suffers harm. Some assistance may be derived from other provisions of Pt 1A of the Civil Liability Act.

[56] One point of a risk being an ‘obvious risk’ is to engage the presumption in s 5G(1), that a person who suffers harm is presumed to be aware of the risk of harm if it is an obvious risk. The focus is on a reasonable person in the position of the plaintiff, as was noted in Jaber v Rockdale City Council [2008] Aust Torts Rep 81-952; [2008] NSWCA 98 at [35], and is clear from the reasoning, inter alia, in Streller v Albury City Council [2013] Aust Torts Rep 82-146; [2013] NSWCA 348 at [31]-[36]. That is the opposite of what ordinarily occurs. In every case where a plaintiff alleges a failure to take reasonable care, the plaintiff must establish that a reasonable person would have taken precautions against a foreseeable and not insignificant risk of harm: s 5B(1). That is to say, ’risk of harm’ in s 5B and s 5C characterises the risk from the perspective of the defendant. That said, it may be that little turns on this altered orientation. The risk is, after all, one that is obvious.”

  1. I reject the appellant’s submission that the primary judge failed correctly to characterise the risk which manifested and would reject ground 1.

Ground 2: The primary judge erred in finding that the risk of harm to the appellant colliding with a Ferris Wheel at the end of the runway in the Vertical Take-off and Landing Obstacle Clearance Splay was an obvious risk within the meaning of section 5F of the CLA

Submissions on ground 2

  1. The appellant submitted that even if the risk of harm identified by the primary judge was correct, that risk was not an “obvious risk” within the meaning of s 5F of the Civil Liability Act. The appellant submitted that s 5F requires the Court to “take into account ‘the circumstances’ as they ‘would have been obvious to a reasonable person in the position of that person.’”

  2. The appellant submitted that the risk of collision with an obstruction identified by the primary judge was not an “obvious risk” because a reasonable person in the appellant’s position “would not expect” that an obstruction would have been erected in the splay of the Airstrip. In other words, the appellant was entitled to assume that the splay would be free of obstructions which might create a risk of collision. In support of this contention, the appellant relied on the following findings of the primary judge:

  1. the appellant did not in fact see the Ferris wheel until immediately before the collision, as his view of the wheel was obstructed during the first touch and go by the nose of the plane;

  2. the Old Bar ALA was not closed on the day of the accident;

  3. there had not been any previous incidents involving aircraft taking off and landing at the ALA, nor was there any evidence that the Old Bar ALA had not provided a safe landing strip in the past;

  4. the appellant flew within the splay, which is designed to account for the types of mistakes that are made by “an average pilot”, and it was the Ferris wheel which encroached on the splay;

  5. no other person, including other pilots who had landed at the Airstrip on the same day, issued warnings or made any other communication about the presence of the Ferris wheel as a potential obstruction.

  1. The appellant emphasised the fact that he did not observe the Ferris wheel as evidence that the risk was not obvious. In particular, the appellant relied on evidence that he did not see the Ferris wheel during the first touch and go because view of the wheel was blocked by the plane’s nose and wing. The appellant also noted that the primary judge did not make any express finding as to whether a reasonable person in the appellant’s position would have seen the Ferris wheel.

  2. The appellant dismissed as irrelevant the fact that others landing at the Old Bar ALA on the day, as well as the appellant’s own passenger, had seen the Ferris wheel during a fly over prior to attempting a landing. This was said to be relevant only to contributory negligence, but not to s 5L. Section 5L, so the appellant submitted, imposes a different statutory test which requires the Court to have regard to the appellant’s circumstances. The appellant distinguished the circumstances in which the other pilots had observed the Ferris wheel (because, for example, they approached the Airstrip from a different direction), but did not explain how the appellant’s own passenger’s circumstances were relevantly distinguishable such that the passenger’s observations had no bearing on the obviousness of the risk.

  3. Similarly, the appellant dismissed CAAP 92-1 as irrelevant and submitted that while it places an onus on the pilot to determine the safety of a landing area, those guidelines are relevant only to contributory negligence, but not s 5L which employs a “different statutory test entirely”. The appellant also submitted that the responsibility that CAAP 92-1 places on a pilot to consider whether in the circumstances the pilot can land safely at an ALA was limited only to checking for hazards which are “within … the scope or range of what might ordinarily be expected to be located in an aircraft landing area”, such as a soft landing surface or permanent structures, but not a structure which had been installed temporarily in the splay such as the Ferris wheel. It was the unusualness of having a Ferris wheel in the splay of an airstrip which meant it was not an obvious risk, albeit it was an observable risk, since it was not something which would ordinarily be expected in the circumstances.

  4. The respondent submitted that the risk of collision with a built object located in the splay was an “obvious risk” within the meaning of s 5F Civil Liability Act, and that neither the suggested difficulty the appellant had in seeing the Ferris wheel, nor his subjective failure to observe the Ferris wheel until too late negatived the obviousness of the risk.

  5. The respondent relied on several factors in support of its submission that the risk of collision with the Ferris wheel would have been obvious to a reasonable person in the position of the appellant:

  1. there was evidence that there were other objects in the splay of the airstrip about which the appellant was aware;

  2. any pilot who lands at the Old Bar ALA, which is not subject to any regulatory standards and which has objects permanently in its splay, was “courting the prospect” of there being some obstacle within the splay;

  3. by virtue of the “unregulated and unreliable nature” of the Old Bar ALA, the appellant was under an obligation to satisfy himself as to the safety of the landing area, and was not entitled to make any assumption as to its suitability for use;

  4. the appellant could have and should have observed the Ferris wheel because the appellant had conducted a flyover before landing, and had also flown past the Ferris wheel on the first touch and go.

  5. the Ferris wheel was “there to be seen” and was in fact seen by the appellant’s passenger and by others who landed at the Old Bar ALA on that day;

  6. the appellant “well appreciated” the risk arising from obstacles in the splay and had navigated the aircraft to avoid a risk of collision with some of those other obstacles;

  7. the risk of harm associated with colliding with another obstacle close to the airstrip is an obvious risk of flying an aircraft to or from the Old Bar ALA;

  8. there was no obligation on the Council (or anybody else) to provide information about the state of the airfield to the appellant, and the absence of communication about the existence of the Ferris wheel supported the obviousness of the risk of collision with the Ferris wheel.

  1. In response to the appellant’s submission that the appellant was entitled to expect that the Old Bar ALA splay would be free of obstructions, the respondent made two observations. First, CAAP 92-1 makes clear that it is the pilot’s responsibility to determine the safety or otherwise of landing at or taking off from an ALA. Secondly, not only did the appellant appreciate that he was under an obligation to assess the suitability of the Old Bar ALA for landing, and therefore did not in fact expect a clear run, but he in fact recognised that there were obstacles in the splay which posed a risk of collision.

  2. In response to the emphasis placed by the appellant on the appellant’s subjective failure and inability to see the Ferris wheel (which was in any case limited only to the first touch and go and did not deal with whether the appellant should have seen the Ferris wheel during the flyover), the respondent referred to cross-examination of the appellant which, so the respondent submitted, demonstrated that the appellant “had every opportunity to observe the Ferris wheel … while he did his touch and go”. The Ferris wheel would have been obvious to a reasonable person in the appellant’s position; it was not something which was not apparent or was not prominent. The Ferris wheel was seen by others, including the appellant’s passenger and fellow aviators who landed at the Old Bar ALA on that day.

Consideration of ground 2

  1. I reject the appellant’s submission that the primary judge failed to refer to or engage with s 5F of the Civil Liability Act. I have already quoted s 5F, which sets out the meaning of “obvious risk”, at [35] above.

  2. The primary judge dealt with s 5F in the following terms (citations omitted):

“[271]   The Civil Liability Act excludes a defendant’s liability in negligence for harm suffered by a person as a result of the materialisation of an obvious risk involved in a dangerous recreational activity in which the person harmed has engaged. It is said that the flight from Taree to Old Bar in which the Pilot engaged was a dangerous recreational activity, meaning a recreational activity that involves a significant risk of physical harm.

[272] Obvious risk, in s 5L of the Civil Liability Act, has the same meaning as it does for the purposes of s 5F of the Civil Liability Act. If that submission as to the Pilot being engaged in a dangerous recreational activity were correct, the Pilot could not sue for any obvious risk associated with flying. It would not excuse the Pilot from liability for any negligence on his part to the plaintiff.”

  1. The primary judge both referred to and engaged with s 5F of the Civil Liability Act. His Honour’s reference to s 5F, and to the same meaning of “obvious risk” under both s 5F and s 5L, was a correct statement of law.

  2. The appellant also misapprehended his Honour’s treatment of s 5L at [272] quoted above. Read in context, the primary judge was merely illustrating that, in circumstances where the appellant was engaged in a dangerous recreational activity, although s 5L may affect the appellant’s ability to recover damages for harm suffered as the result of the manifestation of an obvious risk of that activity, the provision does not affect the appellant’s liability for any negligence on his part in the course of that activity. In other words, while the appellant might be prevented from recovering damages from the Council for harm suffered while flying, this was irrelevant to his liability to the passenger in the Ferris wheel, who also suffered harm as a result of the collision.

  3. Section 5L operates to exclude liability in negligence for harm suffered as the result of the materialisation of an obvious risk of a dangerous recreational activity. In order for the defence to apply, the risk identified by the Court as the risk which materialised must be an “obvious risk” within the meaning of s 5F. The appellant’s submissions were effectively confined only to the observability (or lack thereof) of the Ferris wheel by a relatively inexperienced pilot at the first touch and go. Nothing was said by the appellant about the observability of the Ferris wheel during the flyover, the very purpose of which was to observe for any potential obstacles in the take-off and landing area.

  4. Expert evidence was adduced in the trial. A joint report was prepared as a consequence of a conclave between the four experts, who were all pilots with experience in flight training and/or safety inspections of aerodromes: Mr Trevor Howie, Mr Keith Tonkin, Mr Michael Nolan and Mr John McGuirk. The appellant emphasised that the experts agreed that it is “reasonable for a pilot to expect” that the vertical and lateral obstacle clearance splay will be free of obstacles. However, the critical conclusion about which the experts also agreed was that, irrespective of what the pilot might “expect”, it was the responsibility of the pilot in command to ensure that the vertical and lateral obstacle clearance splay is actually free of obstacles encroaching into that space.

  1. I have concluded that it was an obvious risk of the dangerous recreational activity of taking off from or landing at the Airstrip of the Old Bar ALA, that the plane might hit an obstruction constructed in the splay of the Airstrip. That is why CASA provided the recommendations in CAAP 91-2 about what a pilot should check before attempting to land at or take off from an ALA. The fact that it was obvious that somebody might erect an obstruction in the splay provides the reason why the appellant himself conducted a flyover, looking for just such an obstruction.

  2. I reject the appellant’s submission that the fact that others landing at the Old Bar ALA had seen the Ferris wheel was relevant only to contributory negligence, but not to s 5L. Mr Morgan, another pilot, and the appellant’s son-in-law, in the aircraft with him, actually saw the Ferris wheel. A reasonable person in the position of the appellant would have known that somebody might erect an obstruction in the splay and that the plane in taking off or landing might hit that obstruction. The unchallenged finding of the primary judge was that the appellant was negligent in conducting the flyover “in such a way as to prevent the Pilot from observing the nature of the obstacles at the southern end of the Airstrip”: at [333]. The reason the appellant conducted that flyover was because of the obvious risk that somebody might have erected an obstacle in the splay. Giving full weight to the appellant’s relative inexperience as a pilot, a reasonable person in his position would nonetheless have been aware of the risk that there might be an obstacle built in the splay with which his plane might collide during take-off or landing, and which he was obliged to identify before seeking to land or take off. That risk was also obvious to the appellant, who conducted a flyover for the purposes of determining the extent and location of obstacles in the Airstrip’s splay.

  3. So common is it to find obstacles erected in the splay of an ALA that the experts in this case agreed that it was the responsibility of the pilot in command to ensure that the vertical and lateral obstacle clearance splay is free of obstacles encroaching into that space.

  4. CAAP 92-1 makes clear that it is the pilot’s responsibility to determine the safety or otherwise of landing at or taking-off from an ALA. Not only did the appellant appreciate that he was under an obligation to assess the suitability of the Airstrip for landing (and therefore was not entitled to expect the splay to be clear of obstacles), but he in fact recognised that there were other obstacles in the splay which posed a risk of collision and took action in response. As to the appellant’s submission that it was “reasonable for a pilot to expect” that the vertical and lateral obstacle clearance splay will be free of obstacles, s 5F(3) of the Civil Liability Act makes clear that the fact that a risk was not “expected”, in the sense that it has a low probability of occurring, does not affect the characterization of the risk as “obvious”.

  5. The risk identified by the primary judge was an obvious risk of the dangerous recreational activity of flying a light aircraft to an unattended Aircraft Landing Area which is not subject to regulatory oversight or control, and which was not monitored by any air traffic control personnel or ground staff. The harm that the appellant suffered was as a result of the materialisation of that obvious risk of harm. No error has been shown in those findings made by the primary judge. Ground 2 should be rejected.

Ground 3: The primary judge erred in finding that the Appellant was engaged in a dangerous recreational activity.

  1. As noted above, this ground was raised in the notice of appeal but was not pressed by the appellant at the hearing of the appeal.

Conclusion and proposed orders

  1. For the foregoing reasons I propose the following orders:

  1. Appeal dismissed;

  2. Appellant to pay the costs of the respondent.

  1. EMMETT AJA: This appeal concerns the operation of s 5L of the Civil Liability Act 2002 (NSW) (the Liability Act). The question arises in the context of a collision between a light aircraft and a Ferris wheel near the Old Bar airstrip on the mid-coast of New South Wales (the Airstrip). The Airstrip was under the control of the respondent, Mid-Coast Council (the Council), which had also given permission for the erection of the Ferris wheel. The appellant, Mr Paul Cox, was the pilot of the aircraft at the time of the collision. Mr Cox was injured as a result of the collision and the question in the appeal is whether the harm suffered by him was the result of the materialisation of an obvious risk of a dangerous recreational activity being engaged in by Mr Cox.

  2. Mr Cox commenced proceedings in the Common Law Division of the Supreme Court against the Council in which he alleged, relevantly, that the Council owed Mr Cox a duty to take reasonable care to avoid the risk of foreseeable injury to him and that the collision was the result of breach of that duty by the Council. The claim was heard by a judge of the Common Law Division (the primary judge) concurrently with other proceedings brought against the Council by a passenger on the Ferris wheel who was also injured as a result of the collision (the Other Plaintiff). That claim is not the subject of this appeal.

  3. The primary judge found that no reasonable council, armed with the information available to the Council and exercising the powers vested in the Council, would have allowed the Airstrip to be used while the Ferris wheel was erected in the location where it was erected. His Honour found that the risk of harm was manifest and that that risk manifested in so far as the Other Plaintiff suffered injury. His Honour found that Mr Cox owed a duty of care to the Other Plaintiff to take reasonable care in the piloting of the aircraft and that he failed to take reasonable care. His Honour found that each of the Council and Mr Cox was in breach of the duty of care that each owed to the Other Plaintiff.

  4. The primary judge concluded that an appropriate assessment of the respective negligence of the Council and Mr Cox required an apportionment of 35% as between Mr Cox and the Council. In reaching that figure, his Honour took into account the conduct of each of Mr Cox and the Council concerning the circumstances of the incident and determined that it was just and equitable having regard to Mr Cox’s share in the responsibility for the damage.

  5. The above findings were made in relation to the claim by the Other Plaintiff against Mr Cox and the Council. However, the primary judge held that the combined effect of s 5K and s 5L of the Liability Act precluded the Council from liability for negligence for the harm suffered by Mr Cox. On 1 December 2020, for reasons published on that day, his Honour directed the entry of judgment for the Council and ordered Mr Cox to pay the Council’s costs of the proceedings.

  6. The primary judge found that Mr Cox engaged in the activity of flying aircraft for enjoyment, relaxation or leisure. Further, his Honour found that engagement in such recreational flying carried with it inherent and obvious risks that involved significant risk of physical harm. His Honour considered that, in flying an aircraft and, in particular, taking off from or landing at an airstrip, there is an obvious risk that a collision may be caused by an obstruction in the flight path or possible flight path of the aircraft. Accordingly, his Honour was satisfied that, in piloting the aircraft, Mr Cox was engaged in a dangerous recreational activity and that the harm occasioned to him as a result of the collision between the aircraft and the Ferris wheel was the materialisation of an obvious risk of engaging in that activity. His Honour concluded that, even if the Council was negligent, it was excluded from liability to Mr Cox by the provisions of s 5F and s 5L of the Liability Act.

  7. By notice of appeal filed on 26 February 2021, Mr Cox appeals from the orders made by the primary judge. The grounds of appeal may be restated as follows:

  1. the primary judge erred in failing to identify correctly the risk of harm that informed the risk under s 5L of the Liability Act;

  2. the primary judge erred in finding that the risk of harm to Mr Cox from colliding with the Ferris wheel was an obvious risk within the meaning of s 5F of the Liability Act;

  1. Under s 5L of the Liability Act, the Council would not liable for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Cox. Under s 5F, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. Further, obvious risks include risks that are patent or a matter of common knowledge. The reference in s 5L to obvious risk is not a reference to an obvious risk of the particular activity that was actually being engaged in by the claimant at the time of suffering harm. Rather it is a reference to an obvious risk of an activity of the character of the activity that was actually being engaged in by the claimant when harm was suffered.

  2. In the present context, s 5L will not apply unless harm was suffered by Mr Cox as a result of the materialisation of a risk that, in the circumstances, would have been obvious to a reasonable person engaging in the activity of recreational aircraft flying. Even if the risk was obvious to Mr Cox, s 5L would not apply unless it was a risk that was obvious to a reasonable person who was engaging in recreational aircraft flying.

  3. In July 1992, the Civil Aviation Authority published an advisory publication on the subject “Guidelines for Aeroplane Landing Areas” (the Guidelines). The Guidelines is expressed to be “advisory only” and there is no legal requirement to observe the details set out in the Guidelines. Rather, the Civil Aviation Regulations1988 (Cth) (the Regulations) set out the legal requirements that must be complied with in relation to the subject matter of the Guidelines. In particular, reg92(1) of the Regulations provides that an aircraft must not land at, or take off from, any place unless, relevantly, the place is suitable for use as an aerodrome for the purposes of landing and taking off of aircraft and, having regard to all the circumstances of the proposed landing or take off, including the prevailing weather conditions, the aircraft can land at, or take off from, the place in safety. There are sanctions for the contravention of the Regulations.

  4. As the Guidelines state, reg 92(1) does not specify the method of determining which circumstances should be considered in any particular case, other than the prevailing weather conditions. Rather, such matters are the responsibility of the pilot in command. The Guidelines sets out factors that may be used in determining the suitability of a place for the landing and taking off of aircraft and states that experience has shown that, in most cases, application of the Guidelines will enable a take off or landing to be completed safely provided that the pilot in command has sound piloting skills and displays sound airmanship.

  5. Clause 5.5 of the Guidelines, dealing with “other physical characteristics”, relevantly provided that both ends of the runway should have approach and take off areas clear of objects above a 5% slope. Other recommended physical characteristics for landing areas are shown on diagrams that call for an approach and take off area that is “clear of objects” above a slope of 5% and diverging from the line of the runway at an angle of 5% on each side. Clause 8.2 provided, relevantly, that a pilot should not use a landing area without taking all reasonable steps to ensure the physical characteristics and dimensions are satisfactory. Mr Cox failed to follow the recommendations contained in the Guidelines. He may well have failed to comply with reg 92 of the Regulations.

  6. Be that as it may, it is clear enough that Mr Cox was engaged in the dangerous recreational activity of recreational flying of aircraft and that an obvious risk of that activity is the possible presence of obstacles within the approach and take off area of a runway. Thus, the presence of an obstacle such as the Ferris wheel was an obvious risk for an aircraft landing on or taking off from the Airstrip. The primary judge correctly concluded that the collision between the aircraft and the Ferris wheel was the materialisation of such a risk.

  7. I have had the advantage of reading in draft form the reasons of Payne JA for dismissing the appeal. I agree with his Honour’s reasons and the orders proposed.

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Decision last updated: 31 August 2021

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