Kempsey Shire Council v Five Star Medical Centre Pty Ltd

1. [1]

   McCOLL JA: I agree with Basten JA’s reasons and the orders his Honour proposes.

2. [2]

   BASTEN JA: In 2014 the respondent, Five Star Medical Centre Pty Ltd, owned a Mooney M20 single engine propeller-driven aircraft. In the early afternoon of 25 February 2014 Dr Alterator flew the aircraft from Port Macquarie to Kempsey Aerodrome. On landing at Kempsey Aerodrome, between 2.30 and 3pm, the aircraft collided with a kangaroo. Dr Alterator was not injured, but repairs to the aircraft cost, in round figures, $153,120.

3. [3]

   On 9 December 2015 the respondent commenced proceedings in the District Court against the appellant, Kempsey Shire Council, claiming that the collision was caused by the negligence of the Council which was the owner and controller of Kempsey Aerodrome. On 13 September 2017 the trial judge (Russell SC DCJ) gave judgment for Five Star Medical Centre Pty Ltd. On 29 September 2017 judgment was entered against the Council in an amount of $186,040.60. On 25 October 2017 the Council lodged an appeal in this Court.

4. [4]

   It is convenient to refer to Five Star Medical Centre Pty Ltd by reference to its role in the trial court, namely as “the plaintiff”. Dr Alterator was the controlling mind and agent of the plaintiff, and the pilot at the time of the collision; it is convenient to refer to him as “the pilot”.

Issues on appeal

1. [5]

   The trial judge held that the Council had been in breach of its duty of care to users of the aerodrome in two respects, namely:

2. [6]

   With respect to (a), the Council contended that the risk which materialised was an “obvious risk” within s 5F of the Civil Liability Act 2002 (NSW). The failure to issue a NOTAM was, in effect, a failure to warn the plaintiff of a specific risk. Pursuant to s 5H of the Civil Liability Act, the Council had no duty to warn of an obvious risk to the plaintiff.

3. [7]

   With respect to (b), the Council contended that the judge erred in failing to find that there was evidence of a paucity of resources available to the Council to carry out the construction works. Such a finding, taken with other circumstances, precluded a finding that a kangaroo-proof fence was the only precaution the Council acting reasonably should have taken, applying s 42 of the Civil Liability Act.

4. [8]

   The Council also contended that the judge wrongly concluded that the relevant breaches caused the particular harm which materialised. For present purposes, it is sufficient to address the two particular of negligence upheld by the trial judge. The Council’s submissions in relation to these matters should be accepted, the appeal allowed and the judgment against the Council set aside.

(1) the statutory concept

1. [9]

   The pilot, as the controlling mind of the plaintiff, knew that there was a kangaroo hazard at Kempsey Aerodrome. However, he did not know that there was a single kangaroo on the aerodrome between 2.30pm and 3pm on the afternoon of the collision. In order to apply the provisions of the Civil Liability Act with respect to “obvious risks” it is necessary to determine the degree of particularity at which the risk is to be identified.

2. [10]

   It is convenient to commence by referring to the key statutory provisions. Part 1A, Div 4 of the Civil Liability Act relevantly provides:

3. [11]

   The concept of an “obvious risk” long pre-dated the enactment of the Civil Liability Act. However, under the general law, the obviousness of a risk was not an answer to a claim in negligence. Although it was an important consideration in many circumstances, the question to be asked, in all cases, remained what a reasonable response required from the defendant in the particular circumstances. [3] The Civil Liability Act has changed the law in that respect; subject to the cases excluded by s 5H(2), s 5H(1) removes any duty to warn of an obvious risk.

4. [12]

   Further, the test of obviousness is objective and does not turn on the subjective knowledge or beliefs of the plaintiff: s 5F(1). Taken in the context provided by s 5G(2), that suggests that the risk should be assessed at a reasonable level of generality.

5. [13]

   The evidence before the Court demonstrated a well-recognised risk to aircraft from birds and wildlife generally in the vicinity of aerodromes, and particularly country aerodromes. More particularly, by information available to aircraft operators and pilots through an on-line publication made available by Airservices Australia, known as En Route Supplement Australia (“ERSA”), notice was given with respect to Kempsey Aerodrome that, “kangaroo hazard exists”. At least at that level of generality, the risk posed by kangaroo on the aerodrome was properly a matter of common knowledge, within the meaning of s 5F(2).

6. [14]

   The relevant “risk” may be variously described. More precisely, the relevant risk in the present case was the risk of an aircraft suffering damage through colliding with a kangaroo or other wildlife on the runway as the aircraft was landing or taking off. The presence of the kangaroo was, in the language of s 5F(4), “a condition or circumstance that gives rise to the risk”. The level of the risk no doubt increased depending on the numbers of animals present on the aerodrome at a given time, but, as s 5F(3) makes clear, a risk may be obvious “even though it has a low probability of occurring.” It is by no means clear that an increase in the likelihood of the risk materialising creates a different risk.

7. [15]

   The concept of an “obvious risk” operates in two ways in the Civil Liability Act. First, under Pt 1A, Div 4, it removes the duty to warn another person of a risk; secondly, in Pt 1A, Div 5, it denies liability in negligence for harm which is the materialisation of an obvious risk of a dangerous recreational activity: s 5L(1).

8. [16]

   In so far as Div 4 deals with “obvious risk”, there is no limitation on liability for harm suffered as a result of the materialisation of an obvious risk. Rather, the Division has two operative provisions. First, s 5G provides that a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk. That presumption will feed into other elements in the assessment of negligence, including, frequently, contributory negligence.

9. [17]

   Secondly, s 5H deals with a duty to warn. Although the definition of “obvious risk” in s 5F(1) refers to a risk that “in the circumstances” would have been obvious to a reasonable person “in the position of” the plaintiff, there may be some doubt as to the extent to which “the circumstances” and “the position of” the plaintiff operate so as to affect the level of generality at which the risk is identified. It is clear that s 5G(2) does address that issue, but it does not operate otherwise than for the purposes of s 5G.

10. [18]

    For completeness reference should be made to s 5I, which deals with the materialisation of “an inherent risk”. Section 5I(1) states that a person is “not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.” An “inherent risk” is a risk that cannot be avoided “by the exercise of reasonable care and skill”: s 5I(2). Section 5I does not exclude liability in connection with a duty to warn of a risk: s 5I(3).

11. [19]

    For present purposes the relevant operative provision is s 5H(1).

(2) relevant evidence

1. [20]

   The aerodrome was registered with the Civil Aviation Safety Authority (CASA) on 22 March 2006. [4] The Council is the registered operator. [5] The ERSA issued by Airservices Australia dated 14 November 2013 provided basic information about the aerodrome including, under the heading “Additional Information”, the entry “1. Kangaroo hazard exists”.

2. [21]

   Although the risk could have been established independently of any knowledge on the part of the plaintiff, it is clear that the plaintiff had actual knowledge of the kangaroo hazard. Dr Alterator gave evidence that in the course of 20 landings and 20 take-offs he had not seen a kangaroo on the aerodrome, and continued: [6]

3. [22]

   Dr Alterator’s evidence was to the effect that had a NOTAM been issued as to an increased kangaroo hazard he “would not have gone.” [7] His evidence continued:

4. [23]

   The second-last answer set out above, while indicating that there was no general knowledge amongst pilots in the area of an increased risk, demonstrated that the “kangaroo hazard” risk was well-known.

(3) reasoning of trial judge

1. [24]

   The trial judge stated:

2. [25]

   In fact, the Council’s written submissions did refer to s 5F, stating that the risk was “obvious” in a submission headed “Propositions of law” tendered at the time of the final oral submissions. It was certainly true that the trial judge was given no assistance in relation to the operation of Pt1A, Div 4, nor in relation to its application to the facts of the case. The challenge to the judge’s finding with respect to obvious risk was ground 1 in the Council’s appeal grounds; the respondent took no issue with the right of the Council to raise the matter on appeal.

3. [26]

   The reasoning of the primary judge involved the following elements: [8]

4. [27]

   The judge correctly addressed this issue in considering the alleged breach by the Council of the duty to warn pilots with respect to the risk of kangaroo incursions onto the airfield. He noted the Council’s defence based on s 5H of the Civil Liability Act that “the presence of a kangaroo on or immediately adjacent to the runway at Kempsey Aerodrome was an obvious risk, of which the plaintiff should have been aware, and thus it owed no duty of care to warn of an obvious risk.” [9] The judge’s finding that the plaintiff was not aware of the risk was not addressed either to the risk so stated, or to the engagement of s 5H, which did not require actual knowledge on the part of the plaintiff.

5. [28]

   The reasoning must be addressed in the context of three undisputed propositions, namely:

6. [29]

   Further, the judge’s finding that “the pilot was not aware of the risk on the day” can have one of two meanings. On the one hand, it may have meant that the pilot was not aware of the risk as defined by the likelihood of the risk materialising, which would give rise to the issue just identified. On the other hand, the finding may have been a reference to the fact that the pilot was not aware that there was a single kangaroo on the aerodrome at the time he landed. That was true as a matter of fact, but the case was not run on the basis that the Council had a duty to warn, on an hourly basis, of the presence of one or more kangaroo on the aerodrome.

7. [30]

   It is clear from the preceding paragraphs in the judgment that in considering the duty to warn, the judge was concerned with the number of occasions on which, in the course of January and early February Council officers had observed numbers of kangaroo on the airfield, the judge accepting that “the defendant failed to take reasonable care by not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels.” He described the warning on the ERSA that a kangaroo hazard existed as “anodyne”. [10]

8. [31]

   The finding that levels of “kangaroo and wallaby” (identified by the Council officers generically as macropods) had reached “dangerous levels” by January and February 2014 requires some further analysis. Sightings of macropods for the eight months prior to February 2014 averaged 37 per month. The highest figure (49) was for January 2014. The second highest figure (48) was for August 2013, being the last occasion on which the pilot had visited Kempsey, being one of 20 occasions on which he had not seen macropods on the aerodrome. There had been a further 45 sightings in February, up to and including the date of the accident (26 February). While it was true that there had been an increase in sightings in January 2014, it was not clear why the figure for January (49) created a different risk from that for December (39), or by comparison with the average number of sightings.

9. [32]

   Secondly, the timing of the sightings was significant. The records for January indicate that inspections were carried out on nine days. On three days there were two inspections. With one exception, the morning inspections occurred between 5.20am and 6.30am. Evening inspections occurred at 7.30pm and 8pm. Macropods were sighted on all those occasions. There were three inspections in the middle of the day, in the course of which one small wallaby was sighted on one of the three occasions; on the other occasions no macropods were recorded. In February, including two inspections after the collision, there were 11 inspections in total. With the exception of the day of the collision, when three animals were sighted at 4.48pm, there were two inspections during the morning when no macropods were sighted. The remaining inspections, when animals were noted, occurred between 5am and 7.05am, together with one inspection at 10.30pm.

10. [33]

    In short, there was no evidence that there had been any significant change in the number of macropods on the aerodrome during the late morning or early afternoon, when the plaintiff’s aircraft collided with a kangaroo.

11. [34]

    It was not possible on this evidence to conclude that a level of risk existed at the time of the accident which was not properly described as within the obvious risk accepted by the pilot. In these circumstances, if applicable, the effect of s 5H(1) was that the Council owed no duty to warn the plaintiff of the risk of collision with a kangaroo.

12. [35]

    There are two remaining aspects of the findings by the trial judge which should be addressed. First, the finding that the pilot was not in fact aware of the risk depended upon the correct identification of the risk. In any event, the finding appears to have been made for the purposes of s 5G, which provides an assumption that a person who suffers harm was aware of an obvious risk. However, rebuttal of the presumption is not relevant to the operation of s 5H(1), dealing with the duty to warn.

13. [36]

    The final matter addressed by the trial judge concerned the operation of s 5H(1). Pursuant to s 5H(2)(a), the section does not apply if “the plaintiff has requested advice or information about the risk from the defendant”. The trial judge found that this exclusion operated because the pilot had requested advice or information “by consulting the ERSA and the NOTAM, both of which were generated by information provided by the defendant.” [11] While it was true that the contents of those notices involved information provided by the Council, each appeared on a website operated by a Commonwealth agency, Airservices Australia. [12] Even if it were correct to say that a person who has had access to a website operated by a service provider has “requested advice or information” from that service provider, it cannot be said that a request has been made to a third party which provided information to the service provider. The finding that s 5H(1) did not apply on that basis was erroneous.

14. [37]

    It follows that, pursuant to s 5H(1), the defendant did not owe a duty of care to the plaintiff to warn of the risk which materialised, causing harm to the plaintiff, it being an obvious risk.

Fencing airport

1. [38]

   The finding of the trial judge with respect to the duty to fence the aerodrome was undertaken in two stages. The first stage was to determine whether, pursuant to s 5B of the Civil Liability Act, the failure to fence was a failure to take a precaution against a risk of harm which a reasonable person in the position of the defendant would have taken. Section 5B is in the following terms:

2. [39]

   With respect to a duty of care and with respect to the assessment of breach, where the defendant is a public authority, it is necessary to have regard to the terms of s 42 of the Civil Liability Act:

3. [40]

   There was no dispute that the Council was a “public or other authority” as it fell within the definition of that term in s 41(d).

4. [41]

   The trial judge approached the issue in three stages. First, although noting that the question whether there has been a breach of duty cannot be divorced from the factors in s 42 which have to be taken into account, [13] he first made the following findings, with respect to the matters set out in s 5B:

5. [42]

   Mr Phillip Shaw was a biologist who gave expert evidence in relation to mechanisms for controlling wildlife on aerodromes and landing strips. When he spoke of reduction in “risk” he was, in effect, eliding two factors, namely the presence of animals on the aerodrome and the risk that their presence caused to aircraft using the aerodrome. In considering whether fencing was a precaution which a reasonable authority would have taken, it was necessary to consider, amongst other things, the actual use of the aerodrome and the time when wildlife incursions occurred.

6. [43]

   Early in his reasons, the trial judge dealt with the history of the use and problems with the operation of Kempsey Aerodrome. The RCA (Request for Corrective Action) in 2005 followed an audit conducted by CASA when issuing Kempsey Aerodrome with a transitional aerodrome licence. [15] The judge said that the audit report had noted that “kangaroos and wallabies were more likely to enter the aerodrome than horses and cattle.” The RCA related generally to preventing animals having access. The report stated:

7. [44]

   The Council responded, accepting that “existing fencing did not adequately prevent kangaroos and stock from gaining access to the movement area”, but indicated that it had “sought quotes for the electrification of the perimeter fence and would seek allocation of a budget to install an electric fence.” [16]

8. [45]

   The judgment set out further evidence, including the content of a letter to the Council in January 2011 by a local resident who had been using the airport a few days earlier at dusk and noted the risk caused by the presence of large kangaroo. [17] In March 2011 the Council obtained a quotation for a 4.07 kilometre long fence, to be 1.8 metres high. [18] In May 2011 a Council officer, Mr Baker, advised the Royal Flying Doctor Service that he would arrange to have the runway cleared if the service advised him when it was using the aerodrome at night. [19]

9. [46]

   In a report dated November 2011, it was said that “there were no regular passenger services to and from the aerodrome and that it was mainly used by medivacs, the Royal Flying Doctor Service, Macleay Aircraft Maintenance and Kempsey Flying Club.” [20] That description also applied to use in 2014.

10. [47]

    In December 2011 Mr Sullivan, who had conducted the annual safety inspection presented a final report to Mr Baker noting “the unwelcome presence of wildlife airside; kangaroos and wallabies presenting a major safety hazard to aircraft operations around dusk; and a recommendation that the [Council] look at the provision of kangaroo-proof fencing”, and that the Council should “immediately look at developing a procedure with various options to deter these large animals from entering airside”. [21]

11. [48]

    In March 2012 the Council prepared a draft wildlife hazard management plan. [22] In November 2012 Mr Sullivan prepared a further annual inspection report noting that a count of macropods in January/February 2012 confirmed that “kangaroos/wallabies on the airfield present a major safety hazard to aircraft operations around dusk at Kempsey Aerodrome.” [23]

12. [49]

    In May 2012 Mr Baker, then the business assets officer for the Council, provided a report to his immediate superior, Mr Robert Scott, who was Director, Infrastructure Services for the Council. Mr Baker noted that Council employees were being called to clear kangaroo from the runway prior to landing and take-off by the air ambulance at all hours of the day and night. Mr Baker said that “the only real mitigation measure to stop wildlife intrusions is to install an adequate fence, so I will be seeking quotes and preparing a report to Council so funds can be allocated to install a fence to prevent wildlife intrusions”. [24]

13. [50]

    As noted above, the greatest numbers of macropods on the aerodrome were noted in the early morning and around dusk; the concern expressed in these reports focused on the later afternoon or early evening, no doubt because there was little use of the aerodrome around dawn. The judge stated:

14. [51]

    A meeting of the Council on 16 July 2013 noted that the Federal Government had announced a further round of funding under the Regional Development Australia Fund; the Council resolved that an application be lodged to construct a “reduced boundary fence” at Kempsey Aerodrome for an amount of up to $150,000. [25] Quotations were obtained from two commercial fencing companies to provide a two metre high boundary fence around the entire aerodrome for a cost of approximately $90,000. [26] By September 2013 the quote had increased to some $98,000 for the main runway and $110,000 (plus GST in each case) to include the grass cross-landing strip. [27]

15. [52]

    The judge then noted:

16. [53]

    In making “findings on breach of duty” the trial judge undertook a careful assessment of the various elements required to be considered under s 5B of the Civil Liability Act with respect to a risk of harm. However, apart from the giving of a NOTAM warning, the only precaution identified was the construction of a kangaroo-proof fence. [28] In assessing the probability that harm would occur if precautions were not taken, the judge calculated that there were some 1,000 aircraft movements a year at Kempsey airport which, presumably, meant that there had been in the order of 8,000 aircraft movements in the period between 2005 and the accident. [29] The judge noted that “on the evidence there had never been a kangaroo strike before”. [30] However, he stated that air ambulance and Royal Flying Doctor Service usage did not “count”, because a separate precaution was carried out to chase kangaroo away from the runway before use by those air services. This factor should have been taken into account; it demonstrated that effective precautions had been taken at times of high risk. In the end, however, the Council’s case on appeal was that the trial judge had failed to deal adequately with the question of cost and, in particular, the application of s 42. The relevance of the precautions taken with respect to medical service flights was that, because a fence would not guarantee absence of large animals from the aerodrome at night and at periods of high risk, there was no evidence that a fence would save the Council the financial burden of conducting “roo runs” before those services used the airfield.

17. [54]

    Part 5 of the Civil Liability Act deals with “liability of public and other authorities” in tort. It envisages that a public authority may be liable for the exercise of a “function”, which is defined to include a “power, authority or duty”: s 41. To “exercise a function” includes to “perform a duty”: s 41. The provisions in Pt 5 do not demonstrate a coherent and straightforward approach to dealing with the civil liability of public and other authorities. In identifying the scope of s 42, the trial judge focused on its precise language. He concluded that par (a) did not apply because there was no obligation in the Local Government Act 1993 (NSW) to operate an aerodrome. Although it was not in doubt that pursuant to s 24 of the Local Government Act the Council had power to provide “goods, services and facilities, and carry out activities, appropriate to the current and future needs within its community and of the wider public” the judge described that language as “permissive”, whereas s 42(a) was concerned with “the functions a council is ‘required’ to perform.” [31]

18. [55]

    While an available interpretation of s 42(a) is limited to the exercise of legal duties, rather than mere powers, it is difficult to understand why that distinction should be drawn. Paragraph (a) identifies a “principle” which is to be applied in determining whether the authority has a duty of care or has breached a duty. The principle is that the functions of the authority are “limited by the financial and other resources” available for the exercise of the functions. It must be true that the resources of the authority are limited both with respect to obligatory functions and the exercise of other powers. Indeed, because the term “those functions” at the end of the paragraph must refer to the functions identified in the opening words, a limited understanding of the opening words would require a division of the resources of the authority between those resources which are “available” for the exercise of its mandatory obligations from those which are generally available. Because such a reading would make little sense and cause considerable difficulties in the operation of the principle, the better reading is that the functions “required to be exercised by the authority” include functions which it deems to be necessary in order to provide services and carry out activities appropriate to the needs of its community. It is an available meaning of a function “required to be exercised” that it covers not only a requirement imposed by law, but also a requirement imposed by the needs of the community as understood by the Council. On that view, paragraph (a) was engaged and the trial judge was wrong to conclude otherwise.

19. [56]

    Further, the term “functions” was not limited to broadly defined functions such as the provision of “roads, water, drainage and sewage” as identified by the trial judge, into which generic category provision of an aerodrome might fall. [32] Rather, the term “functions” will include, in accordance with the definition, all those powers which are incidental to the operation of an aerodrome. The maintenance and operation of the aerodrome, as explained by Mr Scott in his evidence in this matter, are subject to the mandatory requirements of Pt 139 of the Civil Aviation Safety Regulations 1998 (Cth). Accordingly, the powers are to be exercised in accordance with the legal obligations imposed by the Regulation made under the Civil Aviation Act 1988 (Cth).

20. [57]

    However, the trial judge went one step further. The key principle identified in s 42 is to be found in (b) which provides that “the general allocation of those resources by the authority is not open to challenge.” On the basis that par (a) was not engaged, and reasoning that the words “those resources” in par (b) referred back to the resources identified in par (a), the judge concluded that par (b) had no operation either.

21. [58]

    Even accepting the premise that par (a) was not engaged, that conclusion was erroneous. In its terms, par (b) does not depend upon the engagement of par (a), but merely treats it as a source of identification of relevant resources, namely, as noted by the trial judge, “the financial and other resources” mentioned in s 42(a). [33]

22. [59]

    The judge found support for his distinction between those services an authority was obliged to undertake and those which it voluntarily assumed in the following passage from the reasons of Mahoney JA in Cekan v Haines: [34]

23. [60]

    It is apt to lead to error to take a statement of principle from a case which pre-dates a statutory provision, which self-evidently was directed to changing that principle, and apply the principle to the construction of the statute.

24. [61]

    Although the judge concluded that s 42 had no operation, he also considered its effect against the possibility he had been incorrect in rejecting its application. He dealt with the matter in the following terms:

25. [62]

    In a number of respects, this reasoning cannot be accepted. First, the question to be determined was whether the Council had breached its duty of care in not having fenced the aerodrome at a point in time prior to the accident in February 2014. The undisputed fact was that such a precaution would have cost a significant amount of money. Mr Scott gave evidence that the airport operated at a loss, attracting income of $41,000, with an expenditure of $103,000 in the financial year 2010-2011. By 2013-2014, the loss had increased to $121,000 pa. The application of the principle contained in s 42(b) would not permit an assessment of whether the Council should have allocated money to cover that expense, together with additional funds for capital works, in preference to other Council purposes. Nor is it to the point to note that Council was borrowing funds in a particular period, but not thereafter. Borrowing funds involves the allocation of present and future expenditure by the Council to the payment of interest and repayment of the loan. That is as much part of the general allocation of resources as is the expenditure of the borrowed funds.

26. [63]

    In his first statement, dated 3 May 2017, Mr Scott said, based on financial statements and documents prepared by the Council, that the Council “did not have the funds available before 25 February 2014 to properly maintain its existing infrastructure assets. It would not have been able to construct and maintain a ‘kangaroo-proof’ fence at the Airport.” [35] In his later statement of 10 August 2017 he expanded upon the financial records referred to in his earlier statement noting that in 2005-2006 the Council had a consolidated net operating loss of some $1.3 million. By 2013 the net operating loss had risen to $19 million and by 2014 to $26 million. Mr Scott also noted that in the period 2012-2016, there had been a total of 684 motor vehicle accidents in the Kempsey local government area, involving 13 fatalities and 133 serious injuries. By contrast, he noted that the average number of plane movements at Kempsey Aerodrome was around 2-3 per day and, with the exception of the accident the subject of these proceedings, there had been no incidents at the airport. In his view a reasonable assessment of priorities would not have led to him recommending the erection of a fence at the airport.

27. [64]

    Contrary to the view expressed by the trial judge at [158], the issue was not whether the case run by the plaintiff could involve a challenge to the general allocation of resources by the Council, absent a full set of accounts. Nor was it correct to say that there was “no evidence provided by Mr Scott as to whether, year on year, the defendant simply did not have the financial resources to spend approximately $100,000 in fencing the aerodrome.” Rather, the question for the Court was how the principle set out in s 42(b) should operate, in circumstances where there was evidence that the Council did not have available resources, without reducing funds allocated to other works and purposes. The proper operation of the principle in s 42(b) is that, at least in the circumstances of this case, the Court should not find a breach of duty by failure to take a precaution in circumstances where a decision to take the precaution required an assessment of conflicting demands on the Council’s budget.

28. [65]

    Approaching the matter in that way, the plaintiff had not established that constructing four kilometres of fence approximately 1.8 metres high around the whole boundary of the airport was a reasonable precaution for the Council to take with respect to this aerodrome.

Other matters

1. [66]

   As noted above, the various provisions regarding the liability of public and other authorities in Pt 5 do not follow an internal structure. Accordingly, it would not be appropriate to read one provision down by reference to another. However, if such a course were taken, it might have been necessary to have regard to the particular operation of s 43A, dealing with civil liability of a public or other authority with respect to the exercise or failure to exercise a “special statutory power”. It was at least arguable that the operation and maintenance of Kempsey Aerodrome involved the exercise of a power which could only be undertaken pursuant to authority conferred under Commonwealth legislation. In that event, any act or omission could only give rise to liability if it were “so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power”: s 43A(3).

2. [67]

   Some provisions in Pt 5, including ss 43 and 43A, identify their operation as additional to s 44. There is no reference back to s 42 in these provisions, but as s 42 merely states principles to be applied, rather than setting a standard, there is no reason to infer that these provisions would limit the operation of s 42. The Council did not rely upon s 43A in its defence; accordingly it is not necessary to determine whether it was engaged in the present case.

Conclusion

1. [68]

   The appellant’s appeal, limited to the question of liability, should be upheld. The Court should make the following orders:

   1. (1)

      Allow the appeal and set aside the following orders made in the District Court and entered on 29 September 2017:

   2. (2)

      In place thereof:

   3. (3)

      Order that the respondent pay the appellant’s costs of the appeal.

2. [69]

   SIMPSON AJA: I have had the advantage of reading in draft the judgment of Basten JA. For the reasons given by his Honour, I agree that the primary judge was in error in finding (at [161]) that the Council was in breach of its duty to take reasonable care by failing to build a perimeter fence around the airport.

“Obvious risk”

1. [70]

   The issue I wish to address concerns ss 5F, 5G and 5H of the Civil Liability Act 2002 (NSW), each of which has been set out in full in the judgment of Basten JA, and which I will not reproduce. Basten JA holds that a defence under s 5H(1) ought to have succeeded because the risk of a kangaroo on the runway at the aerodrome was an obvious one of which, by s 5H(1), the Council had no duty to warn.

2. [71]

   In what follows, for consistency, I will adopt so far as possible the terminology used by his Honour. I also generally adopt the outline of facts contained in the draft, although, for convenience, I will state those which are salient to the approach I take.

3. [72]

   The crux of the issue in the present case is whether the relevant risk (which I take to be the risk of the presence of a kangaroo on the runway causing danger to a landing aircraft) was an obvious risk within the meaning of s 5F. The risk was an obvious one if, in the circumstances, it would have been obvious to a reasonable person in the position of the plaintiff (in this case, as represented by Dr Alterator) (s 5F(1)). If the risk was, in that sense, obvious, the plaintiff was presumed to have been aware of it unless it proved on the balance of probabilities that it was not (s 5G(1)) and the Council was under no duty to warn the plaintiff of it (s 5H(1)) unless (relevantly) the plaintiff had requested advice and information about the risks (s 5H(2)(a)).The principal (if not the only) consequence of a finding that a risk is obvious is that it relieves a potential defendant of any obligation to warn a potential plaintiff that it exists.

4. [73]

   Before setting out the facts as they emerged from the evidence, the following is worth noting.

5. [74]

   It appears that management and regulation of aerodromes are governed by the Civil Aviation Act 1988 (Cth) and Regulations made thereunder (Civil Aviation Safety Regulations 1998 (Cth)) (“the Regulations”). Only fleeting reference was made in the proceedings in the District Court to the relevant statutory provisions (and none in this Court). Such reference as was made was contained in a statement of Mr Troy Baker, the Council’s Property Maintenance and Development Coordinator. Mr Baker’s evidence was that “the applicable standards” are found in a Manual of Standards (issued under the authority of the Regulations). The Manual of Standards was not in evidence. Mr Baker gave an account of his understanding of the requirements of the statutory provisions. The following account of the facts, so far as it recites “requirements”, is drawn from that evidence. In the absence of any attempt by the parties to explain the statutory requirements, I have not attempted to trawl through the Regulations, which appear to be complex. I have accepted, as the parties did, Mr Baker’s account of what was required of the Council in its management of the aerodrome.

6. [75]

   AirServices Australia (“ASA”) provided, on its website, operational information to pilots in an online publication known as an En Route Supplement Australia (“ERSA”). The Council was “required” to ensure that the information provided to ASA for that purpose remained current (although the source of that “requirement” was not clearly spelled out in the evidence). ASA also published, online and by telephone and facsimile, Notices to Airmen (NOTAMS). The Council was “required” to ask ASA to issue a NOTAM where there was a change in conditions at the aerodrome. Conditions that would warrant the issue of a NOTAM include meteorological information, lighting, and the presence of wildlife such as kangaroos. Specifically, the Council was “required” to ask ASA to issue a NOTAM where there had been a significant increase or concentration in wildlife such as kangaroos at the airport.

7. [76]

   The Council was “required” to conduct serviceability inspections of the aerodrome at least twice each week. These inspections included checking for animal and bird activity. Records show that they took place, generally, in the early morning and late afternoon. The results of the inspections were recorded in an inspection log book, extracts of which were in evidence, and which have been summarised in the judgment of Basten JA.

8. [77]

   In August or September 2013 a Wildlife Hazard Management Plan was created. The Plan included:

9. [78]

   On 14 November 2013 ASA issued an ERSA with respect to Kempsey aerodrome. Under the heading “Additional Information” appeared:

10. [79]

    Between 5 November 2013 and 25 February 2014 the numbers of kangaroos sighted were recorded. On 21 January 2014, the inspection report included:

11. [80]

    On 24 January 2014 the officer conducting the inspection recorded sighting of eight kangaroos, and noted:

12. [81]

    Although a NOTAM was in fact issued on 21 February 2014, it made no reference to an increased level of kangaroo activity.

13. [82]

    Dr Alterator was familiar with the website publications of ASA, and regularly consulted them prior to conducting a flight. He had flown to Kempsey aerodrome 20 times prior to 25 February 2014, without apparent incident. His most recent flight to Kempsey prior to 25 February was on 6 August 2013, prior to the issue of the ERSA of 14 November 2013.

14. [83]

    On 25 February 2014, before leaving Port Macquarie, Dr Alterator checked the ASA website for NOTAMs with respect to Kempsey aerodrome. None had been issued that was relevant.

15. [84]

    Dr Alterator flew into the aerodrome between 2.30 and 3.00 pm.

The proceedings in the District Court

1. [85]

   It is not easy to pin down the positions adopted by the parties in the District Court with respect to the “obvious risk” provisions of the Civil Liability Act. The statement of claim filed by the plaintiff pleaded that the Council owed it a duty to:

2. [86]

   Fourteen particulars of negligence were subscribed to the claim. None explicitly or implicitly asserted that the Council owed it a duty to warn of the risk of kangaroos on the runway; nor did any explicitly assert a failure by the Council to warn of that risk. The particulars asserted, inter alia, failure to take reasonable action to manage wildlife hazards or to implement effective procedures to mitigate risk of wildlife collision, and failure to address known concerns and increased risk of likelihood of kangaroos at the aerodrome.

3. [87]

   No particular alleged failure to issue a NOTAM, although failure to comply with a specified section of the Manual of Standards (without explications of what that section required) and breach of a specified Advisory Circular issued by the Civil Aviation Safety Authority (also lacking explication) were particularised.

4. [88]

   Notwithstanding that, the Council pleaded, by way of defence, s 5H of the Civil Liability Act. It pleaded:

5. [89]

   In opening the case, counsel for the plaintiff identified as “the real issue” the erection of a perimeter fence and the applicability of s 42 of the Civil Liability Act. He identified as “other” issues the adequacy of steps taken by the Council to deal with the problem of kangaroo incursion, (making specific reference to the Wildlife Management Plan) and causation. He made no mention of a duty to warn or a failure to warn.

6. [90]

   He then provided to the primary judge a schedule of issues prepared by senior counsel for the Council. Item 6 of that document was:

7. [91]

   In a document entitled “Propositions of Law” provided on behalf of the Council to the primary judge at the conclusion of the evidence, proposition 7 was:

8. [92]

   There was no elaboration of that proposition, either in the document, or in the closing oral submissions. Indeed, at the outset of his closing address, senior counsel for the Council expressly drew attention to the absence of any pleading on behalf of the plaintiff of a failure to warn, observing that there were strong reasons for that to be the case. The import of that submission must have been that the plaintiff had not sought to make a case based on a duty to warn, or failure to warn. If that were accepted, the defence based on s 5H(1) became irrelevant. The “strong reason” senior counsel advanced for what he contended to be the omission to plead a case based on duty to warn or failure to warn was that the Council had in fact, by providing ASA with the information that was included in the November 2013 NOTAM, issued a warning. He said that the question that arose was:

9. [93]

   Counsel for the plaintiff responded by pointing to particulars pleaded in the statement of claim which were, he contended, “sufficiently broad to raise the failure to issue a NOTAM”. He pointed also to an expert report tendered in evidence by the plaintiff, which included a section headed “Obvious Risk”. He concluded:

10. [94]

    The position, therefore, was this:

11. [95]

    In those circumstances, it is hardly surprising that the primary judge said:

12. [96]

    Senior counsel on appeal took issue with the proposition that he had not addressed the obvious risk issue, pointing to the single sentence contained in the “Propositions of Law” document provided to the primary judge in closing submissions. That, in my opinion, was hardly sufficient to assist the judge with any argument senior counsel sought to make. No elaboration followed in the oral submissions. In my opinion, the primary judge was justified in thinking that the defence had been abandoned. He nevertheless proceeded to deal as best he could with the issue.

13. [97]

    He concluded that the presence of a kangaroo on the runway was not an obvious risk:

14. [98]

    The Council attacks each of these conclusions.

The appeal

1. [99]

   The first challenge made by the Council was to the finding that the presence of a kangaroo on the day of the collision was not an obvious risk as it would not have been obvious to a reasonable person in the position of Dr Alterator.

2. [100]

   Given that Dr Alterator gave evidence that he was familiar with the November 2013 ERSA, that is a difficult proposition to sustain. A reasonable person in the position of Dr Alterator would have had not only hypothetical, but actual, knowledge of the potential for kangaroos to be present on the runway as a result of reading the ERSA.

3. [101]

   The second attack was on the finding that Dr Alterator was not aware of the risk (s 5G(1)). That finding, too, is difficult to sustain, given Dr Alterator’s evidence.

4. [102]

   Finally, the Council challenged the finding that, by consulting the ASA website and the ERSA, Dr Alterator had, in effect, requested advice from the Council as provided by s 5H(2)(a). Section 5H(2)(a) provides that the exemption from a duty to warn of an obvious risk given by s 5H(1) does not apply if the plaintiff has requested advice or information about the risk from the defendant (the last three words should be emphasised).

5. [103]

   Basten JA concludes that, because the website from which Dr Alterator sought information was operated by ASA, and not by the Council, no request had been made of the Council, which was thus a third party.

6. [104]

   I incline to the view that a liberal interpretation ought to be given to s 5H(2)(a). In this respect it needs to be again observed that the evidence concerning the website, the source of the information that went into it, and the statutory or other foundation for any obligation on the Council to provide information was, to say the least, sparse.

7. [105]

   Mr Baker, in the section of his statement concerned with “requirements of registration” (of an aerodrome), referred to the Regulations and said that the Council was “required” to ensure that the operational information provided to ASA “remains current”.

8. [106]

   What can be drawn from that evidence is that the website was maintained by ASA for the purpose of providing advice and information to pilots about relevant operational matters, including specific risks at particular airports, and that ASA depended on the managers of aerodromes (in this case the Council) for information to be placed on the website. Consulting the website by a pilot is tantamount to a request for advice or information. That the information was collated by ASA and placed on a website does not affect the fact that the source of the information was the Council, and that, in consulting the website, Dr Alterator was, in effect, and admittedly indirectly, seeking advice and information from the Council. The only alternative was to telephone the Council and seek, directly, information from whatever employee of the Council happened to be available at the time. That process would be cumbersome, wasteful of Council’s resources and less likely to be productive of accurate and relevant information.

9. [107]

   In my opinion it is not unreasonable to construe Dr Alterator’s consultation of the website as a request for advice and information, at least indirectly, from the Council.

10. [108]

    For that reason, I would reject the challenge to the primary judge’s rejection of the “defence” under s 5H(1).

11. [109]

    However, there is another, more complex, reason why that “defence” should be rejected. I have set about above, at some length, the fluctuating positions of the parties with respect to “obvious risk” as the case was conducted. Notwithstanding the closing submissions of counsel for the plaintiff, I am not persuaded that this was properly to be seen as a failure to warn case. No such case was pleaded. “Obvious risk” was raised in the Council’s defence but, apart from a single line in the schedule of issues, and an even more terse “proposition of law”, no argument was directed to the complex issues that arise out of ss 5F-5H.

12. [110]

    In his submissions on appeal, counsel for the plaintiff drew a distinction between “a failure to warn” and failure to provide particular information in the NOTAMs. Particular emphasis may be placed on the NOTAM of 21 February (just four days before the collision) following repeated alerts by the officer who conducted the bi-weekly inspection and which omitted any mention of increased kangaroo activity, which had escalated to “dangerous levels”. Mr Baker accepted that a NOTAM drawing attention to that risk ought to have been issued. The distinction drawn by counsel between “failure to warn” and “failure to provide information” is not artificial. Nor is it novel: see Chotiputhsilpa v Waterhouse [2005] NSWCA 295; (2005) 44 MVR 456 at [61] per Beazley JA, with whom Giles and Ipp JJA agreed; Liverpool Catholic Club Ltd v Moor [2014] NSWCA 394; [2015] Aust Torts Reports 82-199 at [43]-[44] per Meagher JA, with whom Emmett and Tobias JJA agreed.

13. [111]

    This was a case in which the Council had information, and had assumed (whether by force of law or voluntarily is not clear on the evidence) an obligation to provide information, and had in fact done so. What it failed to do was maintain the currency of that information (something that Mr Baker said it was obliged to do). I would therefore reject grounds 1 and 4 of the appeal, which deal directly with the issues arising out of ss 5F-5H of the Civil Liability Act.

14. [112]

    I note in passing that the primary judge made no finding in relation to s 5H(2)(b), by which the exemption from a duty to warn does not apply where a potential defendant is required by a written law to warn a potential plaintiff of the risk. Although the evidence provides some basis for thinking that the Regulations or the Manual of Standards might amount to such a “written law” requiring warning of the risk, the manner in which the proceedings were conducted precludes any conclusion to that effect.

15. [113]

    For completeness, I am unattracted by the proposition that, the inspections having taken place in early morning and late afternoon, they did not reveal increased kangaroo activity at mid-afternoon, the time that Dr Alterator landed the aircraft.

16. [114]

    I would also reject those grounds of appeal which challenge the findings on breach of duty and causation. Since this is a minority judgment, I will deal with those briefly. It will be obvious from what I have said above that I would reject grounds of appeal that concern Council’s breach of duty. The Council had available to it relevant information; its own officer accepted that that relevant information should have been made available by way of a NOTAM; issuing a NOTAM (or requesting ASA to issue one) was the work of a moment and negligible cost. A notification of increased dangerous kangaroo activity (as indicated in the inspection reports) would in all probability have caused Dr Alterator to postpone his flight or take other evasive action.

17. [115]

    In my opinion the appeal should be dismissed with costs.