Obstacles, Collisions & Liability

DISCLAIMER: I’ve written about a few different legal decisions over the last couple of years and I am about to do it again, here. But I feel it necessary to state that I am not a lawyer and the following is not offered as legal advice, which, if you need some legal advice, you should seek it from a lawyer in your jurisdiction.

Back in 2011, in the lovely northern NSW town of Old Bar, the locals were having a festival. There were the usual attractions of stalls, food, and carnival rides. The Old Bar Beach Festival was held in the area surrounding the Old Bar Airstrip, a non-certified aerodrome, and, in some ways, it incorporated the airstrip into the festivities. At the airstrip, there was planned, a static display of aircraft with some locals moving aircraft from nearby Taree to Old Bar for the festival.

On the day in question, a pilot, who was asked by the aircraft owner to fly his aircraft over, took off from Taree and headed towards Old Bar. For a variety of reasons, the pilot conducted a touch and go before flying a second circuit for a landing. On the second approach, actually just after touching down, the pilot decided to execute a go-around. During this manoeuvre, he veered left and collided with a Ferris wheel, which was found to be located within and infringing the take-off/approach area.

The aircraft became entangled with the structure of the Ferris wheel but, luckily, no one was killed or seriously injured, physically. The incident was investigated by the Australian Transport Safety Bureau (ATSB) with an interesting finding for risk assessments by organisers of events with aviation-related activities.

In the years after the incident, a child who was riding the Ferris wheel when it was struck continued to suffer psychological trauma and, eventually, launched legal action against the organisers of the the festival, the local council and the pilot. The pilot, also claiming psychological injuries, sued the local council. Both matters were decided on by the NSW Supreme Court in December 2020.

The Decision

The Court ordered the council to pay approx $1.5M in damages plus costs to the person on the Ferris wheel and further ordered the pilot to contribute 35% of these damages and costs. In the matter between the pilot and the council, the case was dismissed. Meaning the council was not held liable for the injuries to the pilot. It was not the way I would have expected it to go, so I jumped into the judgement to see what I could learn.

Before I launch into some non-lawyer legal analysis, I thought I would provide some non-lawyer legal basics.

LAW101

I did this course in my first degree. It was actually called LAW101 and it covered a wide range of things including the following. But, honestly, I’m not reciting this from 20-year-old memories, I’ve done some more study since then and some recent revision too. I just want to quickly go over the broad idea of precedent and some of its components.

Most people understand the idea of precedent and that courts need to follow the decisions made in the past. For Latin nerds, it is known as stare decisis. But without getting too technical on the hierarchy of the courts, following a precedent applies only to lower courts within the same jurisdiction. This decision comes from the NSW Supreme Court under its original jurisdiction. Broadly speaking, it would have limited precedential power.

Whatever its power, a precedent can also be broken down into is holding (or ratio decidendi) and discussion (or obiter dicta, last Latin word, I promise). The real annoying part of the law, honestly, is that written decisions very rarely indicate what is the holding and what is discussion.

Now, when you have a case before a court, you will argue the merits of your case by citing precedents (holdings) and other cases for their persuasive value. If a previous precedent in not in your favour, you will attempt to distinguish your case from those previous cases on the specific facts. This means that you will attempt to show why your set of facts differ from that in the previous case in a way that means the holding should not be applied.

I am going to use this process of distinguishing the facts to explain why I think the impact of this case isn’t quite what it may seem.

Statutory Duty

We love regulations in aviation and, if you operate a certified aerodrome, there are quite a few statutory obligations for the aerodrome operator. The term duty here refers to such obligations and allows for the government to take legal action in the case of a breach. However, in circumstances I’m not fully across, a breach of such a duty may permit someone to pursue private action against you.

But the Old Bar Airstrip was not certified. It was an Aeroplane Landing Area (ALA) and as such fell outside of Civil Aviation Safety Regulation (CASR) Part 139. In fact, the most applicable regulation was Civil Aviation Regulation (CAR) 92 and this regulation actually applies to the aircraft pilot. Obviously, the council’s lawyers noted this and put it to the court that they owed no statutory duty to the child on the Ferris wheel.

The child’s lawyers must have noted this too, because they didn’t bring their action in the form of a breach of statutory duty. Instead, they filed an old school claim against common law negligence.

So, the lesson for certified aerodrome operators might be that, this case does not have much precedential power if any suit was brought against you as the statutory route might be a stronger route for the other party. For non-certified aerodromes, it is quite clear that, in NSW at least, the requirements of CAR 92, being that the pilot is responsible for the safety of the landing area, might not protect you from legal action.

Duty of Care & Breaching It

Establishing that a common law duty of care exists is not a simple thing. Common law is also a term that describes the system of how precedents are used. So, a bunch of previous court decisions at very high levels, and sometimes, a long time ago, have established the various factors to be considered when deciding if a duty of care exists.

The section of this decision that deals with this one question is about 7500 words long. It involves more than a few cases and one very significant piece of legislation. You may remember the Civil Liability Act 2002 (NSW) from the Kangaroo case.

For readers of this blog, I think the most important question here is…

Did the council’s duty of care exist because it is the aerodrome owner/operator?

The short answer is no*.

* Well, not just because it is the aerodrome operator. The fact that the council also approved the festival and the Ferris wheel, and also invited aircraft to fly in for the festival combined to create the duty. And then, having an overall picture of the circumstances at the aerodrome and at the festival, it’s decisions to permit/invite aircraft to operate from the airstrip and/or approve the Ferris wheel constituted a negligent breach of that duty.

So, if an aerodrome operator was not privy to or involved in a decision to erect an obstacle infringing an Obstacle Limitation Surface (OLS) of its aerodrome, would it have a duty of care to people in, on or otherwise interacting with that obstacle?

Maybe not.

But remember, this only applies to a case brought using common law negligence.

Duty to the Pilot

The reasons why the aerodrome operator did not owe a duty to the pilot involves our old friend, “Obvious Risk”. This concept was a part of both the Kangaroo case and the Lighting Plinth case and this time, it has brought a new friend, “Dangerous Recreational Activity”.

Using the Civil Liability Act 2002 (NSW), the Court decided that the pilot’s claim against the council could not succeed as he was conducting a dangerous recreational activity which, in the opinion of the court, involves the “obvious risk that a collision may be caused by an obstruction in the flight path or possible flight path of the aircraft” (at [289], for the nerds).

Again, this reasoning comes from the basis of the litigation being common law negligence and the specifics contained within the Civil Liability Act 2002 (NSW), but if you are wondering if this same reason could apply to commercial traffic…

It appears that the answer is no. The Court mentions the non-commercial nature of the flight and the pilot in numerous paragraphs.

Conclusion

Honestly, I don’t like relying on Court cases to try to persuade aerodrome operators to be safe. I much prefer the moral argument supplemented with good risk management. But some people are motivated by fear and a $1.5M penalty is a pretty scary thing. Unfortunately, I don’t really think this particular case is as relevant to certified aerodrome operators as it seems.

Except maybe in terms of the payout figure and the fact that liability for certified aerodromes might be established by other means. This figure was for injuries suffered by one person. Imagine the damages for an aircraft full of people.

Maybe it is scary.

Image credit: Isabelle Taylor (via Pexels)