Kempsey Shire Council v Five Star Medical Centre Pty Ltd

The Court of Appeal of New South Wales considered a dispute between Kempsey Shire Council (appellant) and Five Star Medical Centre Pty Ltd (respondent) concerning a plane collision with a kangaroo at a regional aerodrome. The respondent, the owner of the aircraft, alleged negligence against the Council, which managed the aerodrome. The core of the dispute revolved around whether the Council owed a duty to warn of the risk of kangaroos on the airstrip and whether the damage sustained by the aircraft was the materialisation of an obvious risk.

The legal issues before the court included whether the risk of kangaroos on the aerodrome constituted an "obvious risk" as defined by the *Civil Liability Act 2002* (NSW), and if so, whether the Council had a duty to warn of such a risk. The court also had to determine whether the respondent's access to information from the Council's website constituted a request for advice or information, and whether the Council, as a public authority, was immune from challenge regarding its allocation of resources for aerodrome management.

The court reasoned that the presence of kangaroos on a regional aerodrome was an obvious risk, and therefore, the Council had no duty to warn of it under section 5F of the *Civil Liability Act 2002* (NSW). Furthermore, the court found that the respondent's actions of accessing information from the Council's website did not amount to requesting advice or information, thus not creating a duty to warn. The court also applied section 42 of the *Civil Liability Act 2002* (NSW), which protects public authorities from liability for decisions relating to the allocation of resources, concluding that the Council's resource allocation decisions were not subject to challenge.

Consequently, the Court of Appeal allowed the appeal, setting aside the orders of the District Court. The court entered judgment for the defendant (Kempsey Shire Council), dismissing the plaintiff's (Five Star Medical Centre Pty Ltd) statement of claim and ordering the plaintiff to pay the defendant's costs in the District Court proceedings. The respondent was also ordered to pay the appellant's costs of the appeal.