A decision of the Supreme Court of NSW on 1 December 2020 highlights the liability associated with operating an uncertified aerodrome (aircraft landing area or ALA), and what can happen if obligations and responsibilities aren't met.
This article is not intended to constitute legal advice, but to inform aerodrome operators, specifically volunteer or otherwise non-professional organisations, about the need to protect an aerodrome's obstacle limitation surfaces from penetration by permanent or temporary obstructions.
Details presented herein are extracted from the published full decision and summary, for which a link is provided at the end of the article.
The incident at Old Bar Heritage Airstrip on 1 October 2011 occurred when the pilot (Mr Cox), in the course of carrying out a go-around, impacted the ferris wheel that had been positioned so that the quadrant impacted by the aircraft was located above, and within the lateral extent of, the southern approach/take-off surface of the ALA.
Had the ferris wheel not been there, Mr Cox most likely would have completed the go-around. A complicating factor was that the go-around may not have been necessary if Mr Cox had not been travelling too high and too fast when attempting to land in the first place.
Under the provisions of s 355 of the Local Government Act, Mid-Coast Council exercised its care, control and management of the aerodrome through a delegation to the Old Bar Heritage Airport Management Committee.
Judge Rothman found that the terms of the delegation plainly and expressly required the Committee to ensure the safety of the flyover area and the splay for the purposes of landing and take-off, as recommended in CAAP 92-1(1), in the absence of which the aerodrome was not to be used. Further, it would be impossible for a pilot to determine precisely the compliance of an ALA with CAAP 92-1(1), merely by observation.
Mr Cox claimed the accident caused psychiatric injuries.
Ms Arndell, who was riding on the ferris wheel at the time of the accident, also claimed the accident caused psychiatric injuries.
This decision summary, published by the Supreme Court, is copied verbatim.
Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council  NSWSC 1710 Rothman J
The Supreme Court has ordered Mid-Coast Council to pay $1,513,023.30 to the plaintiff, Ms Arndell, as a consequence of psychiatric injuries occasioned to her by the collision of a light aircraft with a Ferris wheel, on which she was riding, at the Old Bar Festival. The Court determined that it was both the Council’s negligence and that of the pilot, Mr Cox, that caused the injuries, such that the Council was entitled to seek an indemnity for 35% of the above amount from Mr Cox.
In a separate claim, the Council was not held liable for psychiatric injuries occasioned to Mr Cox because the harm he suffered was the materialisation of an obvious risk of a dangerous recreational activity.
During the proceedings, the Council accepted that it was responsible for the care, control and management of the Old Bar Airstrip and the surrounding park, in which the Ferris wheel was located. The precise location of the Ferris wheel was an issue of some controversy, although the parties ultimately agreed that it had been erected in a location at which guidelines produced by the Civil Aviation Authority recommended be kept free of obstacles in order to ensure the safe take-off and landing of aircraft at the Airstrip.
Aside from being generally responsible for the land, the Council had affirmatively permitted the erection and operation of the Ferris wheel at this location, during the Festival. Moreover, a Council representative had also invited aircraft to utilise the Airstrip during the Festival, with an invitation being sent to the owner of the aircraft piloted by Mr Cox.
As a consequence of these matters, the Court determined that the Council had a duty to take reasonable care to avoid foreseeable injury to a class of persons attending the Festival, such as Ms Arndell. In permitting the erection and operation of the Ferris wheel within the recommended obstacle free zone and/or allowing the Airstrip to be used, the Council breached its duty and was liable for the injuries occasioned to Ms Arndell.
Mr Cox was found liable because the Court accepted the opinion of aviation experts that Mr Cox had been travelling too high and too fast when attempting to land, which attempted landing was ultimately aborted; and it was this poor airmanship which, in part, caused the aircraft to collide with the Ferris wheel.
Having regard to the degree to which Mr Cox and the Council departed from their standards of care, and the relative importance of their acts in causing the damage, the Court determined that Mr Cox was liable for 35% of the damage to Ms Arndell.
[Image courtesy ATSB]
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