Which case won?

The case for the injured girl
  • A reasonable person in the council’s position would have foreseen that its carelessness would be likely to cause damage. The council had control of the airstrip via the airstrip committee. The council was aware that aircraft would be landing and taking off from the airstrip during the festival. It also knew that for those aircraft to land and take off safely, there should be no obstructions within the splay. Knowing this, the council nevertheless approved the Ferris wheel’s installation at a location within the splay. The council therefore owes me a duty of care.
  • The council breached its duty of care to me. It failed to take reasonable steps to ameliorate or prevent the risk of harm associated with the use of the airstrip when there were obstructions in the splay. The council also failed to take reasonable steps to prevent the placement of the Ferris wheel within the splay when it was aware the airstrip was to be used. The council could have easily required the Ferris wheel to be located outside the splay.
  • But for the council’s breach of its duty of care, I would not have suffered the injury that I did. The trauma of the collision has caused me to suffer from generalised anxiety disorder and a major depressive disorder. These psychiatric problems have left me unable to work with members of the public, making it extremely difficult to obtain employment.
  • The court should find the council negligent and order it to pay me an amount of damages that will put me in the same position that I would have been in, had I not sustained injury.
The case for the council
  • The plaintiff argues that we were required to take reasonable steps to ameliorate or prevent the risk of harm associated with the use of the airstrip, given that the Ferris wheel was obstructing the splay. However, the delegation to the airstrip committee was to operate the airstrip “within the area fenced for such purpose”. The delegation did not permit the airstrip committee to consider the areas immediately beyond the fenced airstrip, in particular, where the Ferris wheel was located.
  • Further, CAAP 92-1(1) does not impose upon us a duty to close the airstrip in circumstances where the splay has been breached. Rather, planes can still land and take off, and the duty lies upon each pilot to ensure that the airstrip and flyover area remain free of obstacles and safe. This makes the pilot responsible for the collision, not us.
  • Regarding approval of the installation of the Ferris wheel, the relevant local government regulation stipulates that we must not grant an application for approval to install an amusement device unless we are satisfied that certain standards are met. These standards have nothing to do with the potential for external forces to influence the operation of the device or its safety. Rather, the regulations are concerned with specific static characteristics, such as the quality of the ground upon which the amusement device is placed and the device’s registration status. As we complied with these regulations in granting approval for installation of the Ferris wheel, we are not liable for the collision.
  • Further, any trauma that arose in the plaintiff from the collision has not been debilitating or continuing. Her current psychiatric condition is the result not of the collision, but of other traumatic events in her life.
  • Based on the above, court must dismiss the plaintiff’s case.

So, which case won?

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Expert commentary on the court's decision

Grant Avery
Grant AveryDirector
“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.”
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, therisk 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.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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