A little over a year ago, I wrote about a court case involving the owner of an aircraft claiming damages from an aerodrome operator after their aircraft collided with a kangaroo on landing. I was pretty proud of that post as I had exercised some newly developed court judgement reading skills. So, of course, the legal system would have to go and turn all that on it’s head and change its mind. It turns out that the aerodrome operator was not liable for the damage.
Let’s find out why and whether we agree with them…
The Council appealed the District Court’s judgement on two grounds. Specifically, they argued that, contrary to the judge’s findings, the Council had not breached its duty of care because issuing a Notice to Airmen (NOTAM) warning of the increased kangaroo hazard was not required on the grounds that the kangaroos were an “obvious risk”.
The term “obvious risk” and the legal ramifications of the concept come from the Civil Liability Act 2002 (NSW). Broadly, it frees the Council from liability where someone suffers loss in relation to a risk that is obvious to a reasonable person.
A second ground relating to resources was also raised and is covered under the Civil Liability Act’s provisions relating to public authorities but I will leave that for a future post.
Obvious Risk is Obvious
The above tautology is not far from the definition as detailed in the Act and it is similar in the equivalent Acts in Queensland, Victoria and Western Australia. The Act goes on to detail some more aspects of this term including clarifications that obvious risks include things that are common knowledge, may have a low probability of occurring and may not be prominent or even observable.
The Act then establishes the presumption that the injured person was aware of the risk. This means that the defendant only needs to prove that the risk was obvious rather than proving the injured person knew about it. And finally, the Act then states that the defendant does not owe of duty of care to warn the injured person of the risk. These subsequent provisions vary in the other states’ Acts so how this concept might be applied elsewhere will also vary.
In this particular case, the judgement establishes the obviousness of the kangaroo risk by referencing the aerodrome’s En Route Supplement Australia (ERSA) entry. The Council had included (the somewhat standard) “kangaroo hazard exists” and this, therefore, made the the risk a “matter of common knowledge” (at  for the law nerds out there).
The Changing Risk
The judgement further analyses the nature of the kangaroo hazard in the lead up to the incident and the conditions that, in the first judgement, seemed to paint a picture of an identifiable and steadily increasing risk. Although, the judgement notes that it doesn’t need to look at this given that obviousness is not dependent on probability.
Looking at the eight (8) months prior to the incident, kangaroo sightings averaged 37 per month. The calendar month before the incident had recorded 49, the highest average, and 45 for the month-to-date (the incident occurred on the 26th). These look to be above average but the second highest month at 48 sightings was six months before which was, coincidently, the last time the pilot had flown into the aerodrome.
Based on the details in the judgement, I have some reservations with this analysis based on previous experience. The sighting records do not appear to be based on a consistent observation procedure. It is unclear if there is any regularity to the observation of wildlife and therefore, I would be reluctant to make any statistical inferences with the data.
In my own experience, I have seen the danger of this first hand. I was working at an airport that had an immature wildlife management system and as my first summer approached, the bird count numbers climbed exponentially - it was quite alarming. After digging deeper, I found that there had been a moderate increase in birds but with more birds, there were more counts which led to higher numbers which led to more counts.
However, let’s take the Court’s analysis on face value, for now, and agree that, under the terms of the Act, the kangaroo hazard, as it existed at the time of the incident, was an obvious risk.
Requesting Information & NOTAMs
Honestly, some of this part of the judgement gets a little confusing because the establishment of the obvious risk is via a warning but the effect is to say that the Council has not breached its duty of care because it has no duty to warn. But moving on…
After the Act removes the duty to warn, it outlines three exceptions, of which, two are quite interesting. The first exception that re-imposes the duty to warn is if the injured person requests advice or information and the second is if the defendant is required by written law to warn the plaintiff.
With respect to the request for information exception, the pilot argued that checking the aerodrome’s NOTAMs should be considered as such a request and the initial trial judge agreed. But in this judgement, the Court has found that while accessing the website of the Council could be considered a request for information, accessing the website of a third party (say the NOTAM service provided by Airservices Australia) cannot be considered making such as request.
The ruling to allow the appeal was made by the majority of the three-judge panel of the NSW Supreme Court. The third judge did not agree with the majority. She took the time to write down her reasons in a dissenting opinion and it is on this point that she disagreed with the others. The dissent speaks to me much more than the binding opinion and, unfortunately, shows some real issues we have with our modern legal landscape (both for those wishing to follow the rules and those wishing to implement the rules).
The dissent notes that, as the operator of a registered aerodrome, the Council had obligations under the Civil Aviation Act 1988 (Cth) and that these obligations included providing information to and keeping current the information held by Airservices Australia. It then argues that, using a liberal interpretation, that the NOTAM system, while maintained by Airservices Australia, is essentially a request for information from the aerodrome operator.
From my humble point of view, I agree with this interpretation completely. My initial thoughts on reading the majority opinion were to consider the alternative - a world where every pilot calls up the aerodrome operator to get the latest information. And this is where the dissenting judge’s mind turned as well. She described the alternative as “cumbersome, wasteful of Council’s resources and less like to be productive of accurate and relevant information” (at  ;) ).
And the Changing Risk?
The counter-counter argument might then be that if the NOTAM system is a request for information, then so too is the ERSA entry. And, given that the majority opinion dismisses the “increasing” nature of the kangaroo risk, perhaps the Council did provide sufficient “warning”.
The dissent disagrees with the analysis of the changing risk and instead argues that the risk was increasing because the Council’s own officers had recorded the risk during inspections as “increasing” and “dangerous”. They had even identified the need to issue a NOTAM and such action was “the work of a moment and negligible cost” (at [114}, I like this quote).
Required to Warn
The majority opinion does not address the second exception at all and the dissent mentions it only in passing. It would appear from the dissent that the legal nature of the appeal means that this provision cannot be considered in the ruling. Although, it does look like the dissenting judge includes it in her comments on the legal background.
I honestly don’t know whether further analysis is a good idea at this stage. The pilot might appeal to the Australian High Court and I could be back writing about this case again in 18 months or so. To me, the ruling does seem to weaken what I would have considered the legal basis of our aviation safety system and whether other interested parties might support this case going further is something to consider.
At the very least, I can imagine Airservices Australia is about to receive a couple of hundred ERSA updates for all manner of “X hazard exists” notices. But is this what we want in ERSA or in our approach to safety generally? If our responsibility can be dissolved with a generic warning, what will motivate us to make things safe?
If your answer is something like “but I’m a safety professional with the best interests of people in mind” that is great but how will you fund the safety programs you know are needed to achieve that? In the earlier post, I mentioned the safety trope about safety being less expensive than an accident and suggested that this incident would lend power to it - that power has been completely destroyed with this ruling. I am hoping that this is not the end of this story.
Image credit: Altered photo by Scott Calleja