Australia: Airport operators management of kangaroo risk reconsidered

Last Updated: 13 February 2019
Article by Andrew Tulloch

In brief - Kempsey Shire Council successful in appeal case

The New South Wales Court of Appeal recently upheld an appeal by Kempsey Shire Council in its case against Five Star Medical Centre Pty Limited arising from the collision of an aircraft with a kangaroo on landing at Kempsey aerodrome in 2014.

The first instance decision of the New South Wales District Court was reported by us in our February 2018 article Airport operator found negligent for aircraft collision with a kangaroo.

The majority in the New South Wales Court of Appeal, being McColl and Basten JA, held that, when considering the meaning of the "obvious risk" under section 5F of the Civil Liability Act 2002 (NSW) (Act), the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff, and should be assessed "at a reasonable level of generality". The plaintiff's pilot should have been and was in fact aware of the obvious risk of colliding with a kangaroo on the runway at Kempsey aerodrome, having read of the kangaroo hazard in the Notice to Airmen (NOTAM) and the En Route Supplement Australia (ERSA) notice for the aerodrome.

The appeal challenged two principal findings of the trial judge, namely that the Council had been in breach of its duty of care to users of the aerodrome by:

  1. not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels, and
  2. not erecting a kangaroo-proof fence around the entire aerodrome

The Council contended that the risk was an "obvious risk" within the meaning of section 5 of the Act and, pursuant to section 5H of the Act, the Council had no duty to warn of an obvious risk to the plaintiff.

In relation to the failure to erect the kangaroo-proof fence, the Council contended that the judge had erred in failing to find that there was evidence of a paucity of resources available to the Council to carry out the necessary construction works such that, applying the general principles of section 5B and those in section 42 of the Act, it had not breached its duty of care.

Section 5F, section 5H and section 42 of the Civil Liability Act

Section 5F - Meaning of "obvious risk"
(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
Section 5H - No proactive duty to warn of obvious risk
  1. A person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn of an obvious risk to the plaintiff.
  2. This section does not apply if:
    1. the plaintiff has requested advice or information about the risk from the defendant ...
Section 42 - 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 ...

Findings of the court on obvious risk, Council's duty of care and Council's financial resources

The majority found that there was no evidence that there had been any significant change in the number of kangaroos on the aerodrome during late morning or early afternoon when the aircraft collided with a kangaroo and, on this evidence, it was not possible to conclude that a level of risk existed which was not properly described as within the obvious risk accepted by the pilot.

The majority also rejected the trial judge's finding that, in consulting the ERSA and the NOTAM on-line, the plaintiff had "requested advice or information about the risk from the defendant" and that accordingly the exclusion under section 5H(2)(a) applied. The majority disagreed with that finding and noted that the NOTAM and ERSA were posted not on the defendant Council's website but on that of Airservices Australia and so pursuant to section 5H(1), the Council did not owe a duty of care to warn of the risk that materialised, it being an obvious risk.

The dissenting judge, Simpson AJA, thought a more liberal interpretation ought to be given to section 5H(2)(a) and that even though the website was maintained by Airservices Australia, the source of the information was the Council itself. In these circumstances, it was not unreasonable to regard the pilot's consultation of the website as a request for advice and information from the Council, at least indirectly.

In relation to the fencing of the aerodrome, the majority found that the trial judge had failed to take proper account of the paucity of financial resources available to the Council and of the fact that, despite there having been in the order of 8,000 aircraft movements in the period between 2005 and 2014, there had never been a kangaroo strike before. The trial judge considered that use of the aerodrome by the air ambulance and Royal Flying Doctor Service should not "count" because they had a separate arrangement for kangaroos to be chased from the runway before use by those services. The majority considered that the Court should not find a breach of duty by failing to take a precaution in circumstances where a decision to take the precaution required an assessment of conflicting demands on the Council's budget. All three judges agreed that the trial judge erred in finding that the Council breached its duty to take reasonable care by failing to build a fence around the airport.

The final upshot of the decision was that the previous order awarding damages to Five Star Medical Centre was set aside and, in its place, judgment was given for the defendant Council, dismissing the Statement of Claim and ordering that the plaintiff pay the defendant's costs of the proceedings and the costs of the appeal.

Good news for airport operators but how equivalent law applies in other states needs to be considered

Readers should note that the New South Wales Civil Liability Act provisions differ in some important respects from the equivalent law in other states of Australia and should be careful to check the applicable legislation.

However, the decision will undoubtedly provide some guidance to courts considering similar issues in other states and a greater degree of comfort to airport operators than was the situation after the initial decision in the District Court.

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

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

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
Font Size:
Mondaq on Twitter
Mondaq Sign Up
Gain free access to lawyers expertise from more than 250 countries.
Email Address
Company Name
Confirm Password
Mondaq Newsalert
Select Topics
Select Regions
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 (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

To Use 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.


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.


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