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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.
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