Australia: Airport operator found negligent for aircraft collision with a kangaroo

Last Updated: 19 March 2018
Article by Andrew Tulloch

IN BRIEF - PLAINTIFF SUCCESSFULLY SUES FOR DAMAGE TO AIRCRAFT

Kangaroos pose a significant problem for operators of airports in Australia against which operators must take appropriate action to minimise risks. This is demonstrated in the decision in the New South Wales District Court in Five Star Medical Centre Pty Limited v Kempsey Shire Council [2017] NSWDC 250 delivered in September 2017.

AIRCRAFT DAMAGED AS A RESULT OF COLLIDING WITH A KANGAROO SHORTLY AFTER TOUCHDOWN AT KEMPSEY AERODROME

Kempsey Shire Council has owned and operated the Kempsey aerodrome since 1977. While in 2014 it was not used for commercial flights, it saw about two or three aircraft movements each day and was used by the Royal Flying Doctor Service, the New South Wales Air Ambulance, by local and hobby pilots, parachuting and skydive businesses and a flight training college, and was the base for Macleay Aircraft Maintenance.

On 25 February 2014, a private pilot flew his aircraft from Port Macquarie to Kempsey for its annual service. Prior to take-off the pilot checked that there was an En Route Supplement Australia (ERSA) for Kempsey Aerodrome which stated "kangaroo hazard exists". There was no relevant Notice to Airmen (NOTAM).

As he approached Kempsey, the pilot flew overhead and made a visual inspection of the runway. He saw no kangaroos during his approach and he landed mid-afternoon. A few seconds after touchdown he noticed movement in the long grass about 150 metres ahead of the aircraft. He braked moderately and he saw a kangaroo emerge from the long grass and jump towards a collision point in the centre of the runway. He braked the aircraft severely and swerved to the right to try to avoid collision. The kangaroo changed its direction of travel and jumped across the path of the aircraft before striking its left wing. The left hand propeller and wing of the aircraft were damaged and the kangaroo was killed in the collision.

DUTY OF CARE AND FORESEEABLE RISK AMONG CIVIL LIABILITY ACT ISSUES CONSIDERED BY COURT

Judge Russell noted that he was required to consider the nature of the duty of care owed to the plaintiff, the extent of that duty, the breach of the duty and the damage, and the application of the Civil Liability Act 2002 (NSW).

The existence of a duty of care was admitted.

Section 5B of the Civil Liability Act provides:

  1. A person is not negligent in failing to take precautions against a risk unless:
    1. the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and
    2. the risk was not insignificant; and
    3. in the circumstances, a reasonable person in the person's position would have taken those precautions.
  1. 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):
    1. the probability that the harm would occur if care were not taken;
    2. the likely seriousness of the harm;
    3. the burden of taking precautions to avoid the risk of harm;
    4. the social utility of the activity that creates the risk of harm.

The Court found that the risk of collision between an aircraft and a kangaroo causing damage to an aircraft and harm to its occupants was foreseeable and was a risk of which the defendant knew or ought to have known. The Civil Aviation Safety Authority had told the defendant of the risk in 2005 and annual inspection of the safety of the airport emphasised that risk. It was not an insignificant risk for a number of reasons, including a substantial increase in the presence of kangaroos at the airport. It was further found that the defendant had failed to take reasonable care by not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels.

The judge found the presence of kangaroos was not an obvious risk to a reasonable person in the position of the pilot. (He had given evidence that he had flown to Kempsey on some 20 previous occasions and had never seen a kangaroo at the airport.)

KEMPSEY SHIRE COUNCIL FAILED TO TAKE ACTION AGAINST A RISK OF WHICH IT WAS AWARE

Section 42 of the Civil Liability Act provides:

Principles concerning resources, responsibilities etc of public or other authorities
The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:
  1. the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,
  2. the general allocation of those resources by the authority is not open to challenge,
  3. the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate),
  4. the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

There was evidence that a fence would have dramatically reduced the risk of a kangaroo being airside at Kempsey aerodrome. The Court found that there was a failure by the defendant to take reasonable care in not erecting a kangaroo proof fence around the entire airport and that this was a failure which commenced at least in 2005 or at the latest by 2010, notwithstanding that the defendant had resolved not to borrow funds after 2010. Evidence was given at the trial regarding the cost of building a two metre high fence and of the Council having different spending priorities.

The judge found that the Council had failed to take reasonable care by not building the fence, and that there was a factual causation between the accident and the failure to issue a suitable NOTAM warning of dangerous levels of wildlife at the airport and the failure to build the fence as recommended.

Allegations of contributory negligence were rejected by the Court.

The plaintiff obtained judgment for its losses including the cost of aircraft repairs, storage fees, interest and costs.

Andrew Tulloch
Transport and logistics
Colin Biggers & Paisley

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Andrew Tulloch
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions