The plaintiff, who was at the time 14 years of age, sustained psychological injuries after a light aircraft collided with a Ferris wheel she was on at the Old Bar Festival in NSW. The plaintiff was successful against Mid-Coast Council (Council) and the pilot for damages as a result of negligence.
In Issue
- Whether Council and the pilot owed the plaintiff a duty of care;
- The extent of the psychological effects of the collision, and the causality between the subject incident and the plaintiff’s psychiatric injury; and
- Whether the pilot was engaged in a dangerous recreational activity pursuant to section 5 of the Civil Liability Act 2002 (NSW).
The background
On 1 October 2011, the plaintiff and her younger brother were riding the Ferris wheel at the Old Bar Festival when a light aircraft collided with the Ferris wheel. The pilot of the aircraft (the pilot) attempted a landing before taking off again, veering left into the Ferris wheel. The collision did not cause any substantial physical injury to the plaintiff or the pilot. Evidence led at trial revealed that Council had approved the subject location for the Ferris wheel, despite contrary advice from the Civil Aviation Authority, who listed the area as an “obstacle free zone”.
The plaintiff, via her tutor, commenced proceedings against Council and the pilot for damages arising out of their negligence. In a separate claim, the pilot brought proceedings against Council for failing to take care in relation to the proper placement of the Ferris wheel, resulting in psychological injuries.
The decision at trial
The court held that Council was not liable for the pilot’s injuries, as the harm suffered was the materialisation of an obvious risk of a dangerous recreational activity pursuant to s 5L of the Civil Liability Act 2002 NSW (CLA).
Council accepted, throughout the proceedings, 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 court held that Council owed the plaintiff a duty to take reasonable care to avoid foreseeable injury to a class of persons attending the Festival. In permitting the erection and operation of the Ferris wheel, Council had breached its duty of care and was therefore liable for the injuries suffered by the plaintiff.
The court accepted the opinion of aviation experts that the pilot had been travelling too high and too fast when attempting to land the aircraft. It found that ‘but for’ the lack of reasonable care and skill of the pilot, the collision and consequential injury would not have occurred.
It was accepted amongst all medical experts engaged by the parties that the plaintiff had suffered a severe psychological injury and incapacity. To this end, the court noted that the overwhelming cause of the plaintiff’s incapacity was the trauma associated with the collision. Accordingly, judgment was given in favour of the plaintiff and she was awarded damages of $1,513,023.30 with a 35% contribution from the pilot.
The court firstly considered whether the common law imposed a duty of care on the pilot or the Council. The CLA presupposes a duty of care and does not determine the basis on which a duty of care will be held to exist. Where a duty of care is found to apply, the CLA qualifies whether the harm caused is actionable and under what circumstances.
The question of whether the pilot owed a duty of care to the plaintiff was considered to be straightforward. In performing the functions of flying the aircraft, including landing and taking off, the pilot owed a duty of care to those who could foreseeably be injured by a failure to take reasonable care in the performance of those acts.
The question of whether the Council owed a duty was less clear. Liability in negligence, particularly in relation to statutory authorities such as the Council, is not sheeted home for every reasonably foreseeable injury caused by an act or omission of the Council.
After a detailed examination of the authorities, the court held that a duty was owed to the plaintiff . Of relevance was the fact that the Council had care, control and management of the Airstrip, in the same way as an owner of private land, and it invited its use by recreational aircraft. Knowing of that invitation, the Council gave approval for the erection of a Ferris wheel, knowing its location, and/or refrained from requiring the removal of the Ferris wheel from the splay, which was recommended as remaining unobstructed for the safe landing and take-off of aircraft. Further, the Council may have been the only person or entity that was aware of all of the facts that gave rise to the danger. It also had the care, control and management of the land used for the Festival and was able to control the conduct of the Festival including the location of the Ferris wheel.
The court noted that the approval granted by the Council for the conduct of the Festival and the operation of the Ferris wheel was an exercise of a special statutory power. As a consequence, for the Council to be liable for permitting the location of the Ferris wheel, either at all or other than on condition, the exercise of that power must have been one that, in the circumstances, was so unreasonable that no authority with that power could consider, properly, the act or omission to be a reasonable exercise of the power. Given that: the Council was fully aware of the operation of the Festival; it controlled whether the Festival should be conducted; it controlled the operation of the Ferris wheel and its location; it controlled the operation of the Airstrip ;and was aware of the recommended allowances for landing and taking off, the court had no hesitation in determining that, armed with that information and exercising those powers, no reasonable Council would have allowed the Airstrip to be used and/or the Ferris wheel to be erected in such a location at a time when the Airstrip was to be used, on the invitation of the Council or to its knowledge.
None of the qualifications in the CLA operated to excuse the Council from liability in negligence to the plaintiff.
Causation was made out. But for the negligence of the Council, either in its approval of the Festival and, in particular, the Ferris wheel, or in its operation of the Airstrip, or both, the injury would not have occurred. Further, the negligence of the pilot was also causative of the harm. The evidence established a lack of due care associated with the landing that was, even on the evidence of the pilot, one that was too high, too fast and too deep. The court apportioned 35% of the liability to the pilot.
The pilot’s claim against the Council failed as the court determined the pilot was engaged in a dangerous recreational activity at the time of the collision. In the court’s view, the pursuit or activity engaged in by the pilot was for his enjoyment, relaxation or leisure, and the harm suffered by the pilot as a result of the collision, whether physical or psychological, was the materialisation of one of the obvious risks of that dangerous recreational activity.
In relation to damages, it was accepted amongst all medical experts engaged by the parties that the plaintiff had suffered a severe psychological injury and incapacity. To this end, the court noted that the overwhelming cause of the plaintiff’s incapacity was the trauma associated with the collision. Accordingly, judgment was entered for the plaintiff in the amount of $1,513,023.30 with a 35% contribution from the Pilot.
Implications for you
This case serves as a timely reminder to local authorities of their broad liability to patrons of festivals which they operate, particularly in circumstances where they disregard expert recommendations. This case also demonstrates the ability of a court to award significant sums for future economic loss to minors who have no prior employment history, notwithstanding the uncertainty and difficulty of such an assessment, which necessitates forming assumptions on the minor’s future vocational prospects and subsequent earnings.
Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council [2020] NSWSC 1710
