"Obvious Risk" Strikes Again!
Actually, it hasn’t. In fact, it is the opposite.
Just over 18 months ago, I wrote about a legal appeal to a court case involving an aircraft-kangaroo collision which I had also written about. The original article was a good story on the costs of accidents which, I thought, provided a strong argument for funding airport safety. And then the NSW Supreme Court went and reversed the decision on the grounds that, in part, Kangaroos were an “obvious risk” and therefore the airport wasn’t liable.
In today’s article, I’m going to discuss a case where the risk has been deemed “not obvious” and the defendants have had to pay up. The defendants in this case are the airport operator, the aircraft operator and the ground handler. There is also some complex discussion on shared liability that is, despite its potential boring-ness, important to understand.
Passenger Safety
While we tend to focus on aircraft safety, obviously, we are really working towards passenger and people safety and in this case, the person had already left the aircraft. The plaintiff in this case had just disembarked their flight from Perth to Karratha. They had exited the aircraft via the rear door and were making their way to the terminal following the bunting and the other passengers.
The designated path took the passengers close to and around behind an apron lighting tower. As the passenger neared this tower, they tripped on a raised plinth that supported it. The plinth extended a couple of metres out of the tower base in this particular direction and beyond the line of bunting that had been erected above it. This bunting was not permanent and was not there to serve the purpose of identifying the hazard.
The fall caused a number of injuries to the passenger and resulted in multiple surgeries in the years that followed.
As an indication of some of the legal discussions that were to follow, the passenger attempted to report the incident to staff in the terminal but was turned away by security screening staff and airline agent staff and directed to report the incident to the aerodrome operator. Which, they did the next day.
Exhibit 19 - The bunting and the yellow paint were not installed at the time of the incident (taken from the court decision)
The Risk Was Not Obvious
Sorry for the click-bait title. Unlike the kangaroo case, the risk posed by the plinth was not deemed obvious. After going through a discussion on occupier responsibilities, the court decision homes in on the issue of whether the plinth was obvious. At first, the plaintiff’s argument seems both overly simple and, perhaps genius. They tripped because they didn’t see it, therefore, it wasn’t obvious.
While this is taken into account, the firmer argument is that while the lighting tower might be considered obvious, it was the shape of the plinth (plus a few other characteristics) that made the plinth not obvious. The court says that it was the eastward extension of the plinth beyond the proportions of the tower’s base that contributed to its finding. In short, the tower itself was obvious but the “unusual” plinth was not.
As it was not obvious, the was a duty to warn and the associated duty of care was breached by failing to properly illuminate the area, to paint or mark the plinth and/or to erect appropriate barricading.
This breach rests on the airport operator as, through other discussion, the court established that it was their responsibility by virtue of being the occupier and the sole party with the power to provide lighting, marking and other physical changes.
A Problem of Their Own Making
We are often told, if not required by some regulations, that we should assess any change for hazards that may be introduced by that change and this situation is a very real and expensive example of this.
According to the decision, the area next to plinth had, until six months prior to the incident, been a grassed area. Photographic evidence presented in court showed that bunting was also installed to prevent passengers from walking on the grass and also kept them away from the plinth. However, this grass was removed because baggage trolleys were breaking sprinklers.
Removing the grass and installing concrete must have seemed like a completely reasonable thing to do. Unfortunately, this resulted in the plinth being indistinguishable from its surrounds as the colour of the concrete matched and the bunting had been removed.
It also removed the visual cues as to what was the path to follow and led to this unfortunate situation.
Shared Responsibility = Shared Liability
There are actually three defendants in this case and there is considerable discussion on who is liable and in what proportions. The bottom line is that all the defendants were found to be partly responsible.
The defendants made an effort argue that the passenger was also partly responsible but the court didn’t buy it. The court stated that their behaviour was that of a normal ordinary passenger and while they had travelled through the airport approximately 100 times between 2010 and 2012, they had only travelled through eight times since the change to this area had been made.
On the question of how much did each party contribute to incident, that is a little harder for by non-lawyer brain to work out. There was an earlier judgement saying that the airline was liable and the passenger was awarded $545,000. But this figure was capped thanks to the Civil Aviation (Carrier’s Liability) Act 1959. A concurrent judgement was entered saying that the ground handler has liable for 50% of this figure.
This judgement says that the airport operator and the ground handler share the liability 50:50.
But this is where is gets a little tricky for me (and I’m happy for anyone to explain it in the comments below):
The passenger’s claim against the ground handler was extinguished on the ground that the ground handler was acting as an agent. There was a lot of discussion on this point but I didn’t find it that interesting. However, the short answer appears to be that because it is an agent of the airline, it is covered by the Civil Aviation (Carrier’s Liability) Act 1959 and that act has a time limit on commencing a claim.
The airport’s liability was to be assessed. I can’t seem to find any subsequent determination on the damages awarded and I don’t know how the fact that the airport is not covered by carrier’s liability caps will or has factored into this assessment.
There is a bunch of other paragraphs on implied terms of airport user agreements etc. and if you are into these things, please check out the decision.
Learning Lessons
As always, I share these stories not to point out others mistakes but to identify opportunities for others to avoid them. As much as we might like people to follow the “designated” path, we need to think very hard about what visual cues we are given them, both individually and as a group.
The passenger mentioned several times that they were walking with the other passengers and it you’re inclined to ask why were they the only one to trip…
I offer the video below.
