Court sets aside original orders after reviewing evidence

Date:Jan 10, 2019

Disagreeing with a trial judge's decision is all too common for many defendant's in NSW courts. As such, many choose to challenge the verdict and showcase that there may be more to the story . This was evident in a case bought before the NSW District Court where the defendant set out to prove they did not breach a duty of care.

Background of the case

On 25 February 2014, the plaintiff flew an aircraft from Port Macquarie to Kempsey Aerodrome. On landing at Kempsey Aerodrome in the early afternoon, the aircraft collided with a kangaroo. 

In late 2015, the plaintiff filed a claim against Kempsey Shire Council (the defendant) claiming that the collision was caused by its negligence. On 13 September 2017 the trail judge gave judgment against the defendant on the basis that they breached a duty of care by:

  • Failing to issue a notice to airmen (NOTAM) stating that kangaroo incursions on the aerodrome had increased to dangerous levels.
  • Not erecting a kangaroo-proof fence around the aerodrome.

The following month the council lodged an appeal relating to its breach of duty of care - more specially the findings that came under 'obvious risk'.

Obvious risk in public liability claims

According to the Civil Liability Act 2002 (NSW):

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.

The trial judge found it was not an obvious risk because:

  • The plaintiff had flown to Kempsey on 20 occasions and had never seen a kangaroo.
  • The Enroute Supplement Australia (ERSA) did not constitute a sufficient warning of the degree of risk on the day of the collision.

Argument against the original decision

According to the Civil Liability Act 2002 (NSW) a person (the defendant) does not owe a duty of care to another person (the plaintiff) to warn them of obvious risk. Interestingly, at the time of the accident, the plaintiff was aware of a warning published by Airservices Australia in the ERSA Notice for Kempsey Aerodrome that explained a kangaroo hazard existed.

After much deliberation, the court noted that the presence of a kangaroo at Kempsey Aerodrome was an obvious risk, especially with the plaintiff knowing the hazard was present. As such it was deemed an obvious risk and therefore the defendant didn't owe the plaintiff a duty of care.

The court allowed the appeal and the plaintiff was ordered to pay the defendant's cost of proceedings.

Public liability cases are hard to crack. That's why it pays to have experts on hand to help. Get in touch with the team at Gerard Malouf & Partners today to see how we can help increase your chances of success.

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