17 May 2019
Kangaroo on the runway? An obvious risk, rules Court of Appeal
It’s not every day that a plane runs into a kangaroo. That may be why Kempsey Shire Council v Five Star Medical Centre Pty Limited  NSWCA 308 required two courts to arrive at a judgement as to liability.
The case contains legal issues of interest to councils generally, including the obligation to assess, and warn of, obvious risks, and the application of the defence relating to limited resources of a public authority.
Kempsey Shire Council operated a rural airport. Kangaroos were known to intrude onto the airfield from time to time, leading the Civil Aviation Safety Authority (CASA) to publish a bulletin alerting the aviation community to the fact.
The present case arose when an aircraft landing at Kempsey struck a kangaroo. While the aircraft was damaged, no one on the plane was (although the kangaroo had no doubt had better days). The aircraft owner sued Kempsey Shire Council for the damage to the aircraft.
The plaintiff asserted that the Council should have issued a notice to aircrew stating that kangaroo incursions on the airfield had increased or, alternatively, that it should have erected a kangaroo-proof fence around the airfield.
The court agreed, ruling for the plaintiff. Whereupon the Council went to the Court of Appeal.
That Court ruled that the possibility of kangaroos being on the airfield should be regarded as an “obvious risk” within the meaning of the Civil Liability Act. It gave two reasons for this ruling.
First, the CASA bulletin specifically alerted pilots to the possibility of kangaroos being on the airfield. Secondly, the pilot knew about the danger.
The trial judge had earlier said the pilot was not aware of the “kangaroo risk” on the airfield on this particular day. In that trial, the plaintiff claimed the volume of kangaroo traffic on the airfield had increased before the accident, thereby placing an increased onus on the Council.
But the Court of Appeal saw no evidence for this claim. Therefore, the CASA bulletin and the pilot’s own knowledge made the possible presence of kangaroos an obvious risk. This meant that Council did not have to warn the plaintiff of that risk, as per section 5H of the Civil Liability Act.
Nor did the fact that there was not a great likelihood of kangaroos being on the airfield at any given time detract from it as being an obvious risk.
The Court of Appeal held that the obviousness of a risk needs to be assessed at a reasonable level of generality. This has obvious significance for councils assessing how or when to alert others of risks associated with their activities.
The plaintiff’s second main submission was that Council should have erected a high fence around the airfield to keep the kangaroos away. The high cost of this led to consideration of the defence available to public authorities about the allocation of resources, under section 42 of the Civil Liability Act.
As it turned out, Council was making an operating loss on the airport, which would have been relevant if considering whether to build a fence. The plaintiff therefore cast its net wider by bringing Council’s general financial position into the picture.
The Court of Appeal again disagreed with the trial judge, stating that the proper operation of section 42(b) applied to this case. That meant there should not be a breach of duty by the Council by its failure to build the fence where this would have impacted directly on conflicting demands on its budget.
Shortly after the Kempsey judgment, the Court of Appeal heard another case with obvious parallels. In Bruce v Apex Software Pty Ltd  NSWCA 330 a 70 year old pedestrian tripped on pavement that had been uneven for some time. The Court of Appeal said the height differential on the pavement was an “obvious risk” since there was only a remote possibility of a pedestrian failing to notice it.
Kempsey and Bruce are both useful cases for councils (and indeed many other defendants) to bear in mind. While it can readily be appreciated that the pavement in Bruce may have been an “obvious risk”, some defendants would not have been expecting the Court of Appeal to find the facts in the airfield case to have been an obvious risk.
Similarly, the court’s upholding a section 42 defence demonstrates how a careful analysis of council funds, and evidence relating to the costs of implementing the project in question, can be used to defend claims of this nature.
Author: David Greenhalgh