The $200K Kangaroo
** This case was appealed and this judgement was vacated, meaning reversed, meaning the aerodrome operator was left off the hook and awarded costs, meaning the pilot had to pay the aerodrome operator’s lawyers. I wrote about the Appellate Court’s decision here **
I’m not a big fan of safety tropes. They are often repeated without much thought and eventually this repetition becomes detached from the concept the trope is trying to convey. With many tropes, there are few non-trivial or non-catastrophic events that can reinforce the trope.
The saying on my mind today is “if you think safety is expensive, try having an accident”. The “accident” I often think about is something big, something catastrophic and something that happens to other people. I rarely uttered this trope because I, personally, didn’t feel the power of it.
Now, thanks to a court case in Australia, I feel the power has been returned to this saying. We now have a non-catastrophic event with quantifiable costs associated with the “safety” part and the “accident” part. Plus, I think nearly every airport safety professional out there can empathise with the operator in the case.
The case in question was brought by the owner of a light aircraft who flew into the Kempsey airport a couple of years ago. On landing, a kangaroo entered the runway and, despite increased braking and swerving, the animal stuck the wing of the aircraft. There were no injuries to the pilot but the aircraft suffered significant damage and the kangaroo died. The owner sued the airport operator, the local government body who owns the airport, for damages claiming a negligent breach of duty of care. I’m sorry to say but the case was really stacked against the airport.
Just the Facts, Ma’am
The issue of kangaroos airside had been raised as early at 2005 by the Civil Aviation Safety Authority (CASA). At that audit a finding was raised for failing to prevent access of animals on to the Movement Area. In their response, the airport acknowledged the inadequacy of the fence and undertook to resolve the problem within two years at the most.
But the new fence was not erected in that time. Over the following years, the issue was raised by aerodrome users, including the Royal Flying Doctors Service (RFDS), and the operator’s own aerodrome safety inspector in multiple annual reports.
But the airport operator didn’t ignore the issue. They did institute of procedure for conducting pre-flight inspections for aeromedical flights and they implemented a Wildlife Hazard Management Plan developed for them by a qualified professional. And they did make attempts at getting the fence up but funding appeared to be a real battle. In 2013, a grant was received for the fencing but withdrawn a couple of months later and the project was halted.
In early 2014, recorded wildlife inspections showed kangaroo numbers reaching “dangerous levels”. Subsequent inspections showed kangaroos remained airside and four days before the incident, the aerodrome reporting officer observed three kangaroos airside and chased them. The written report on the day noted this and stated that a NOTAM (was) issued. Indeed a NOTAM was issued but it was for the closure of the grass runway and not due to kangaroos.
That’s Why You’re the Judge and I’m the Law-Talking Guy
Actually, I’m not a law talking guy, so please don’t take this analysis too seriously but I’ll try my best.
This court case does not involve the CASA prosecuting the aerodrome operator under a regulation. Instead, it is a civil court proceeding between two parties. While one of the parties in this case is a public authority, I’m going to proceed on the basis that this case involves two private parties*.
This particular case is a tort case involving negligence. Now some of you might be having terrible flashbacks to LAW101 if you went to university. I’m sorry for that. If those flashbacks were disturbing you might want to stop reading now because here comes some more.
Where negligence is concerned, you need to prove that a duty of care existed, that the defendant breached that duty and that the plaintiff suffered harm as a result fo the breach. From the judgement, we see that two fo these three requirements are dealt with easily. The defendant acknowledges it’s duty of care and the aircraft suffered physical damage as a result of a collision on the aerodrome.
So, how do we figure out if someone breaches their duty of care?
In New South Wales, the jurisdiction were this event occurred, they have a regulation that set’s it out (relatively) clearly. That regulation says a person has breached their duty if the risk was (1) foreseeable, (2) significant and a reasonable person would have taken precautions. Furthermore, it expands on these precautions by saying that the court must consider (3) the probability of the harm, (4) the likely seriousness of the harm, (5) the burden of taking the precautions and (6) the social utility of the activity that creates the risk.
That’s a lot to unpack but let’s give it a go.
(1) Foreseeability
As outlined above, many people had foreseen this risk. Numerous reports, unsolicited correspondence and the airport staff themselves have documented the potential for a collision. As such, the judge doesn’t spend much time discussing this requirement.
I would hope that every aerodrome/airport operator out there has wildlife strike on their risk register. Further to this, I would expect accountable managers everywhere to have a chronic unease about wildlife risk management.
(2) Significance
A previous case in NSW has held that the phrase “the risk was not insignificant” is intended to mean the probability of the occurrence only. Despite the generally held understanding that risk is a product of the probability and impact of an event, in this particular area of the law, the “seriousness of the harm is irrelevant” [115].
The court finds the risk was significant (ie was probable) because numerous people had identified the risk could happen and that, in the lead up the the event, kangaroo levels were rising.
But the concept of likelihood and probability pops up again in this analysis so let’s keep going.
(3) Probability of Harm
In this area, the judge does seem to approach risk in a familiar way. He starts by stating that the probability was not high. They launch into a seemingly quantitative analysis of the probability and lands on the factors of 1000 (relevant) aircraft movements a year and a greater than 50 percent chance that kangaroos are present. This, in the court’s view, makes a collision “a definite prospect” and “a matter of time”. [118]
While this view of risk may not gel with how many of us approach risk, I have resolved this approach, in my mind, as follows: If I choose to do nothing and something bad is either a definite prospect or only a matter of time, I’m going to be found negligent.
(4) Likely Seriousness of Harm
Any Australian that has driven on a country road (and plenty of town roads as well) will tell you that you don’t want to hit a kangaroo in your car - it is going to be costly. The judge deals with this quickly and notes that even the defendant conceded that a collision between an aircraft and a kangaroo would be “catastrophic or fatal”. [119]
(5) The Burden of Taking Precautions
The two precautions the court was considering in its analysis were the NOTAM that was not issued and the kangaroo fence that it could have erected. The court notes that a NOTAM costs next to, if not, nothing and the round figures cost of the fence was $100,000.
(6) The Social Utility of the Aerodrome
Most of us avgeeks would consider the social utility of an airport high. Regional and remote Australians often rely on their airport for access to emergency medical care. However, the court noted here that this particular flight was not an aeromedical flight therefore the social utility of the airport with respect to private and recreational flights was not high.
Although not discussed further, my takeaway of this item is that where social utility is high, greater leeway may be given to someone taking precautions. This means that if flight involved was an aeromedical operation, the reasonable person precautions would be assessed higher thresholds against probability, seriousness and burden.
This comes as a relief to me personally. A couple of years ago, I recommended to my then-employer that we shutdown two small aerodromes that the company owned. They were remote and difficult to manage with significant wildlife risk (including a kangaroo strike in my time there). They accepted my recommendation and I issued the NOTAM and arranged for crosses to be laid out.
However, I didn’t get a chance to put the crosses out before the local communities complained about the loss of aeromedical flights to their towns. I should have seen this and been more considerate. Suffice to say that my boss, her boss and I took a licking the next day.
We relented and allowed aeromedical flights to continue but prohibited private flights. This never actually sat well with me. I held a rather objective view of risk and, to me, the risk posed to aeromedical flights was the same as to private flights. But here we are some five years later and it would appear that, legally speaking, the allowance of these flights with higher social utility would probably be considered reasonable.**
Bringing It All Together
With these finding made, the judge is still required bring this all together and make a judgement on what a reasonable person would have done, not in hindsight but looking forward and that the omitted acts caused the harm.
In the case of the NOTAM, it would appear that the aerodrome reporting officer did intend on issuing a NOTAM notifying airport users of the increased and dangerous numbers of kangaroos. With respect to the fence, the airport had been pursuing this course of action, albeit over a prolonged period of time.
In determining causation, the law proposed a “but for” test. The judge found that had a NOTAM been issued, the pilot would have not flown that day and that had a fence been erected, the number of kangaroos airside would have been massively decreased and in all probability, the flight would have landed safely.
The Costly Kangaroo
The court initially awarded $195,838.51 (yes, very specific) in damages plus costs. The costs were later amended by some $10,000 but either way, that is an expensive kangaroo.
In hindsight, that is a $100,000 fence versus a $200,000 accident. This judgement is, forever, going to be my go-to example when anyone challenges me on the trope - If you think safety is expensive, try having an accident.
* see the discussion under 142-161 for the court’s analysis of the factors relating to the aerodrome being run by a public authority (if you’re into this stuff like me).
** Queensland has the same provision as NSW - see here
Image Credit - iwishmynamewasmarsha
