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
Category: Principal judgment Parties: Paul Clarendon Cox (Appellant)
Mid-Coast Council (Respondent)Representation: Counsel:
Solicitors:
CT Barry QC and R Royle (Appellant)
R Sheldon SC (Respondent)
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:
- 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…
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- AGLC
- Cox v Mid-Coast Council [2021] NSWCA 190
- Case
- [2021] NSWCA 190
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate level of generality at which to characterise the risk of harm. Specifically, it needed to assess whether the risk of colliding with obstructions in the splay of the landing area was an obvious risk associated with the appellant's recreational activity. The court also considered whether the appellant's knowledge of the risk was relevant to the determination of obviousness.
The Court of Appeal reasoned that the appellant was engaged in the dangerous recreational activity of landing at an unregulated aircraft landing area. It found that the risk of colliding with obstructions within the landing splay was an obvious risk, meaning a risk that, to a reasonable person in the position of the appellant, would have been apparent. The court held that the appellant's harm resulted from the manifestation of this obvious risk, as the Ferris wheel constituted such an obstruction. Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs.
Orders
Orders of the court
(1) Appeal dismissed;
(2) Appellant to pay the costs of the respondent.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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