The Facts
Declaration of interest: the author and Stacks Law Firm acted for the plaintiff in this case.
Plaintiff attends festival held on council land
On 1 October 2011, a girl who was almost 14 at the time attended a festival on the mid-north coast of NSW with her family.
For many years, this annual event has been one of the major community events, bringing thousands of people to the small coastal town.
The local council approved the festival, which was held on land administered by the council.
Council operates adjacent airstrip and allows planes to land during festival
The council also controlled the airstrip adjacent to the land where the festival was being held.
The airstrip had a single grass runway. As was usual, light aircraft would fly in and land at the airstrip during the festival.
The council operated the airstrip via a delegation to an airstrip committee.
The purpose of the delegation was to operate the airstrip within the area fenced for such purpose while meeting the standards provided in Civil Aviation Advisory Publication 92-1(1) (“CAAP 92-1(1)”).
CAAP 92-1(1) set out factors that could be used to determine the suitability of a place for landing and taking off. It was not a legal requirement to comply with this, but compliance would ensure that regulatory requirements were met.
Guidance on keeping splay free from obstacles for taking off and landing
CAAP 92-1(1) included guidance regarding keeping the area known as the splay free of obstacles, such as buildings and tall trees, so as not to impede aircraft taking off and landing.
The splay is the area of three-dimensional space including, and extending from, the runway, through which an aircraft may travel when taking off and landing.
The council gave approval to a Ferris wheel that had been erected by its operator adjacent to the end of the runway.
The location approved by council was within the splay.
Pilot crashes plane into Ferris wheel, trapping plaintiff and her brother
The plaintiff and her brother went on the Ferris wheel.
Unfortunately, while they were on it, a light aircraft attempted a landing.
The pilot was too far along the airstrip, so he aborted his landing to go around to make another attempt.
This attempt went horribly wrong and the pilot crashed his plane into the Ferris wheel, trapping the girl and her brother.
Fortunately and miraculously, they did not sustain any physical injuries. However, the girl suffered psychiatric injuries and sued the council for negligence.
Expert commentary on the court's decision
Court rules in favour of injured girl, finding council negligent
In Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council [2020] NSWSC 1710, the Supreme Court of NSW ruled in favour of my client, Amber Arndell.
The court found Mid-Coast Council negligent, requiring it to pay my client damages in the sum of $1,513,023.30.
Ms Arndell will never be able to undo the horrors and distress that she experienced, or the effect that the accident will have on her ability to lead a normal life. However, the court’s decision will at least compensate her for her losses, which are likely to be lifelong.
Claim is for negligence, not breach of statutory duty
The court rejected the council’s argument that it was not liable since it did not breach its duties imposed by the local government regulations or any duty imposed by CAAP 92-1(1).
The court pointed out that Mid-Coast Council was not being sued for breach of statutory duty.
Rather, it was being sued for a common law breach of duty in negligence.
Council owed and breached common law duty of care to plaintiff
In determining whether Mid-Coast Council owed a duty of care to Ms Arndell, the court reviewed relevant caselaw, including the principle that “the factor of control is of fundamental importance in discerning a common law duty of care on the part of a public authority”.
The court concluded that the council was in a position to control the situation that brought about harm to Ms Arndell.
Specifically, the council had care, control and management of the airstrip. It invited recreational aircraft to use the airstrip during the festival and approved the erection of a Ferris wheel in the splay.
In the court’s words, “the Council may have been the only person or entity that was aware of all of the facts that gave rise to the danger”.
Council negligent under section 5B of Civil Liability Act
Where a person owes a common law duty of care, then under section 5B of the NSW Civil Liability Act 2002 (“the Act”), that person is not negligent in failing to take precautions against the risk of injury or harm unless the risk was foreseeable, the risk was not insignificant, and a reasonable person in the position of the defendant would have taken those precautions.
The court concluded that the council was negligent under section 5B. The risk of injury arising from the collision between the aircraft and the Ferris wheel was not only foreseeable to the council, but was also a known risk.
Council cannot rely on section 43A of Civil Liability Act to avoid liability
Section 43A of the Act applies in relation to the exercise of special statutory powers. This includes the act of the council in permitting the location of the Ferris wheel.
Under section 43A, the council’s approval of the location of the Ferris wheel would not give rise to civil liability unless the act was “…in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act… to be a reasonable exercise of… its power.”
The court concluded that no reasonable council armed with the information Mid-Coast Council had and exercising the same power, would have allowed the Ferris wheel to be erected where it was.
Distinction between psychiatric and physical harm
In determining the damages to be awarded to Ms Arndell, the court emphasised the distinction between psychiatric and physical harm.
For a psychiatric injury, not only must the plaintiff show that the risk of harm was reasonably foreseeable. He or she must also show that a person of normal fortitude might have sustained a recognisable psychiatric injury.
In the court’s view, the “risk of psychiatric injury [to a person] associated with observing and experiencing an aircraft… collide with… the item in which the person is situated, is plainly reasonably foreseeable and is a risk of psychiatric injury to a person of normal fortitude”.
Disagreement over diagnosis of plaintiff’s condition
In arguing over damages payable, the council and Ms Arndell disagreed over the correct diagnosis of her condition. Ms Arndell argued that the difficulties she suffered were caused by the collision and that this impacted her earning capacity.
The council argued that the difficulties she suffered were due to other traumatic events in her life.
The court accepted expert evidence that Ms Arndell had a pre-existing psychological vulnerability prior to the Ferris wheel collision and that after the collision she went through a period of decompensation and developed a generalised anxiety disorder and a major depressive disorder.
Therefore, the court concluded that the overwhelming cause of Ms Arndell’s incapacity was the trauma associated with the collision.
Pilot also found liable in negligence for plaintiff’s injury
The court also found the pilot, Paul Cox, to be negligent, ordering him to contribute 35% of the $1.5 million damages award to Ms Arndell, via a contribution to Mid-Coast Council.
While Mr Cox was insured, his insurance did not cover the situation where an injured person sustains a purely psychiatric injury.
This may sound unreasonable, but there is some good sense in this. Imagine if 10,000 people saw a plane crashing to the ground. No insurer would want to cover not only the occupants of the plane, but all those on the ground who witnessed the accident and potentially sustained psychiatric injuries.
Pilot sustains psychiatric injuries but unable to claim against council
Mr Cox, who also sustained psychiatric injuries as a result of the collision, also sued the council for negligence through his own lawyers.
His claim was unsuccessful, because the council’s liability for the harm suffered by Mr Cox was excluded under a provision in the Civil Liability Act relating to dangerous recreational activities.
Mr Cox appealed this decision, in Cox v Mid-Coast Council [2021] NSWCA 190.
The appeal was dismissed and Mr Cox was ordered to pay the council’s costs.