The Facts

Declaration of interest: the author and Stacks Law Firm acted for the plaintiff in this case.

Plaintiff attends festival held on council land

On 1 October 2011, a girl who was almost 14 at the time attended a festival on the mid-north coast of NSW with her family.

For many years, this annual event has been one of the major community events, bringing thousands of people to the small coastal town.

The local council approved the festival, which was held on land administered by the council.

Council operates adjacent airstrip and allows planes to land during festival

The council also controlled the airstrip adjacent to the land where the festival was being held.

The airstrip had a single grass runway. As was usual, light aircraft would fly in and land at the airstrip during the festival.

The council operated the airstrip via a delegation to an airstrip committee.

The purpose of the delegation was to operate the airstrip within the area fenced for such purpose while meeting the standards provided in Civil Aviation Advisory Publication 92-1(1) ("CAAP 92-1(1)").

CAAP 92-1(1) set out factors that could be used to determine the suitability of a place for landing and taking off. It was not a legal requirement to comply with this, but compliance would ensure that regulatory requirements were met.

Guidance on keeping splay free from obstacles for taking off and landing

CAAP 92-1(1) included guidance regarding keeping the area known as the splay free of obstacles, such as buildings and tall trees, so as not to impede aircraft taking off and landing.

The splay is the area of three-dimensional space including, and extending from, the runway, through which an aircraft may travel when taking off and landing.

The council gave approval to a Ferris wheel that had been erected by its operator adjacent to the end of the runway.

The location approved by council was within the splay.

Pilot crashes plane into Ferris wheel, trapping plaintiff and her brother

The plaintiff and her brother went on the Ferris wheel.

Unfortunately, while they were on it, a light aircraft attempted a landing.

The pilot was too far along the airstrip, so he aborted his landing to go around to make another attempt.

This attempt went horribly wrong and the pilot crashed his plane into the Ferris wheel, trapping the girl and her brother.

Fortunately and miraculously, they did not sustain any physical injuries. However, the girl suffered psychiatric injuries and sued the council for negligence.

case a - The case for the injured girl

case b - The case for the council

  • A reasonable person in the council's position would have foreseen that its carelessness would be likely to cause damage. The council had control of the airstrip via the airstrip committee. The council was aware that aircraft would be landing and taking off from the airstrip during the festival. It also knew that for those aircraft to land and take off safely, there should be no obstructions within the splay. Knowing this, the council nevertheless approved the Ferris wheel's installation at a location within the splay. The council therefore owes me a duty of care.
  • The council breached its duty of care to me. It failed to take reasonable steps to ameliorate or prevent the risk of harm associated with the use of the airstrip when there were obstructions in the splay. The council also failed to take reasonable steps to prevent the placement of the Ferris wheel within the splay when it was aware the airstrip was to be used. The council could have easily required the Ferris wheel to be located outside the splay.
  • But for the council's breach of its duty of care, I would not have suffered the injury that I did. The trauma of the collision has caused me to suffer from generalised anxiety disorder and a major depressive disorder. These psychiatric problems have left me unable to work with members of the public, making it extremely difficult to obtain employment.
  • The court should find the council negligent and order it to pay me an amount of damages that will put me in the same position that I would have been in, had I not sustained injury.
  • The plaintiff argues that we were required to take reasonable steps to ameliorate or prevent the risk of harm associated with the use of the airstrip, given that the Ferris wheel was obstructing the splay. However, the delegation to the airstrip committee was to operate the airstrip "within the area fenced for such purpose". The delegation did not permit the airstrip committee to consider the areas immediately beyond the fenced airstrip, in particular, where the Ferris wheel was located.
  • Further, CAAP 92-1(1) does not impose upon us a duty to close the airstrip in circumstances where the splay has been breached. Rather, planes can still land and take off, and the duty lies upon each pilot to ensure that the airstrip and flyover area remain free of obstacles and safe. This makes the pilot responsible for the collision, not us.
  • Regarding approval of the installation of the Ferris wheel, the relevant local government regulation stipulates that we must not grant an application for approval to install an amusement device unless we are satisfied that certain standards are met. These standards have nothing to do with the potential for external forces to influence the operation of the device or its safety. Rather, the regulations are concerned with specific static characteristics, such as the quality of the ground upon which the amusement device is placed and the device's registration status. As we complied with these regulations in granting approval for installation of the Ferris wheel, we are not liable for the collision.
  • Further, any trauma that arose in the plaintiff from the collision has not been debilitating or continuing. Her current psychiatric condition is the result not of the collision, but of other traumatic events in her life.
  • Based on the above, court must dismiss the plaintiff's case.

So, which case won?

Cast your judgment below to find out

Grant Avery
Personal injury
Stacks Law Firm

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