(1) Judgment for the plaintiff against the defendant for $195,853.51. (2) Order the defendant to pay the plaintiff’s costs. (3) Grant liberty to apply to my Associate if any different costs order is sought by either party.

Judgment

INTRODUCTION

By a Statement of Claim filed on 9 December 2015 the plaintiff sued the defendant for property damage to an aircraft. The plaintiff was the owner of the aircraft VH-ZVT. The defendant is the local government authority in the Kempsey area. It was the owner and registered operator of the Kempsey Aerodrome. On 25 February 2014 the aircraft was landing at Kempsey Aerodrome when it collided with a kangaroo that had strayed onto the runway. Fortunately no person was injured. There was damage to the aircraft and there was no dispute about the quantum of that damage, being $161,195.85. The facts leading up to the collision were not in dispute, but the legal issues which arise from the accident are quite complicated. It is necessary to explain some technical terms. Airservices Australia is the government body which provides aeronautical data and navigation services to the aviation industry. Airservices Australia notifies pilots of the state of aerodromes by electronic notices. An ERSA is an En Route Supplement Australia which provides information to pilots concerning aerodromes. It is in the nature of a standing notice, which must be consulted by pilots before they fly to an aerodrome and contains general information about the aerodrome. A NOTAM is a Notice to Airmen which provides updated or additional information about a particular aerodrome. Pilots are expected to ascertain whether there is a NOTAM for their intended destination, as well as an ERSA.

EVIDENCE FOR THE PLAINTIFF

The airport and the land on which it is situated were transferred from the Commonwealth Government to the defendant in 1977. The conditions of the transfer included a requirement that the land would not be sold and that the airport would continue to operate. On 13 January 2004 the conditions were amended. After the amendment the defendant did not need to seek approval from the State Government for alternative uses of the airport, unless the airport would close or otherwise not continue to operate. The Civil Aviation Safety Authority (CASA) is an independent statutory body responsible for the safety regulation of civil air operations in Australia. In June 2005, when the Kempsey Aerodrome had a transitional aerodrome licence with CASA, an audit of the Kempsey Aerodrome was conducted by CASA and sent to the defendant. The audit report noted that kangaroos and wallabies were more likely to enter the aerodrome than horses and cattle. CASA issued a Request for Corrective Action (RCA) for failing to prevent the access of animals into the movement area. CASA found that the service inspection records for the aerodrome on many occasions recorded kangaroos being in the movement area. The audit noted that it was easier to look for times when there were none present. The report said:

“Council must now have a serious look at how it intends preventing animals from entering the movement area, particularly as the aerodrome can be used at night without anybody check (sic) to see if animals are present on the movement area.”

In September 2005 the defendant provided a written response to the CASA RCA. The defendant said that it would ensure that the ERSA noted that a kangaroo hazard exists. The defendant said that existing fencing did not adequately prevent kangaroos and stock from gaining access to the movement area. The defendant indicated that it had sought quotes for the electrification of the perimeter fencing and would seek allocation of a budget to install an electric fence. Finally, it was said that if an insufficient budget was provided then the most vulnerable areas of fencing would be identified and would be upgraded within 1-2 months, with a completion of the upgrade in 2006/2007. The aerodrome was registered with the CASA on 22 March 2006. The defendant is the entity registered with CASA as the operator of the aerodrome. The Royal Flying Doctor Service (RFDS) used Kempsey Aerodrome from time to time. In a letter dated 26 November 2009 from the RFDS to the defendant, it was said that the RFDS had had a number of serious accidents throughout the country as a result of colliding with kangaroos on airstrips. The letter advised that the RFDS may have to consider not landing at Kempsey Aerodrome for aeromedical evacuations, if it considered the risk of animal collision to be too high. The letter noted that the defendant intended to cull the kangaroos and also provide a pre-landing runway inspection prior to the RFDS aircraft landing. On 10 January 2011 a local resident Mr Robert Palmer, who was also a pilot, sent an email to the defendant. Mr Palmer and his son had been using the aerodrome on Friday, 7 January 2011 and counted 29 kangaroos, some of which were very large. They saw the Air Ambulance take off at 9.00pm, and saw that the pilot had to taxi down the runway steering from side to side to see kangaroos in the landing lights. The pilot was not able to taxi to the extreme edge of the runway because that was where the majority of animals were eating on the runway verge. Mr Palmer also informed the defendant that he carried out two missed approaches due to animals hopping across the runway at the point he estimated touchdown to occur at dusk on the same day. Mr Palmer urged the defendant to erect a fully enclosed high wire fence. That letter was received into evidence, not as evidence of the truth of its contents, but as evidence that Mr Palmer had made those statements to the defendant. Two months later the defendant responded to Mr Palmer. Mr Troy Baker, an employee of the defendant, described the situation with the Air Ambulance steering around kangaroos while taxi-ing as “unfortunate”. He said that he would contact aircraft operators such as the Air Ambulance and make himself available to inspect the runway prior to their aircraft movements. He also said that the defendant would look into options to control the animal hazard by: raising the existing fence; replacing the entire fence; culling the kangaroos; installing other scaring devices; and increasing the number of aerodrome safety inspections per week. By a letter dated 29 March 2011 Australian Commercial Fencing put in a tender for the erection of a fence at Kempsey Aerodrome. This was to be a chainwire fence 1800mm high. The fence was to be 4.07km long and enclose the entire aerodrome. The cost was $134,570.41 plus GST. On 19 May 2011 Mr Baker wrote to the Royal Flying Doctor Service and indicated that if the RFDS wished to use Kempsey Aerodrome during night operations, the Service could contact him prior to any scheduled arrivals. He said that he would make sure the runway was clear of hazards such as kangaroos prior to any arrivals and departures of the Service. The defendant engaged Mr Peter Sullivan to conduct annual safety inspections of the aerodrome. In his report of 29 November 2011 he said that there were no regular passenger services to and from the aerodrome and that it was mainly used by medivacs, the Royal Flying Doctor Service, Macleay Aircraft Maintenance and Kempsey Flying Club. On 29 November 2011 Mr Sullivan sent Mr Baker an email enclosing an advance copy of what Mr Sullivan described as “the most important part of the report so that you can action some of the urgent items and have discussion with CASA on some of the issues”. Part of the material sent included the following:

“Mitigate against presence of kangaroos/wallabies airside. A review of recent daily serviceability inspection logs shows an unwelcoming (sic) presence of wildlife airside. The presence of kangaroos airside present (sic) a major safety hazard to aircraft operations around dusk. Recommend Council look at the provision of kangaroo-proof fencing, particularly the forestry area west of 04/22 which seems to be the wildlife habitat.”

The main runway at Kempsey Aerodrome, which is a sealed runway, is known as “04/22”. The reference to the forestry area west of 04/22 is a reference to an area in which there are many trees. Most of the other areas adjacent to the aerodrome seem to be open fields. On 12 December 2011 Mr Sullivan presented his final written report to the defendant. This was sent to Mr Baker. Mr Sullivan referred to discussions he had had with Mr Baker on the second inspection day about a number of urgent safety issues that the defendant must now address following the inspection findings. He said that he was concerned that there appeared to have been little attention by the defendant to ten remedial action items identified in the 2011 Aerodrome Safety Inspection Report. The final report referred to the matters already notified in advance, being the unwelcome presence of wildlife airside; kangaroos and wallabies presenting a major safety hazard to aircraft operations around dusk; and a recommendation that the defendant look at the provision of kangaroo-proof fencing. The report also said that the defendant should “immediately look at developing a procedure with various options to deter these large animals from entering airside”. Mr Sullivan suggested that the commissioning of a wildlife expert adviser would assist the defendant in that process. In February 2012 Mr Baker had contact with a Mr Berrigan, an ecologist, with a view to obtaining a fee proposal for a wildlife management plan. A draft wildlife hazard management plan was prepared by the defendant in March 2012. It dealt with monitoring procedures to count the kangaroos, wildlife hazard risk assessment procedures, wildlife hazard treatment and environmental management. In November 2012 Mr Sullivan again presented an annual Safety Inspection Report, which dealt with the wildlife hazard as follows:

“In January/February 2012 during a three week period ARO’s conducted a twice daily wildlife count on kangaroo presence airside. The review recorded 87 kangaroos present in the three week period of which half were present in the afternoon as opposed to morning. The south side of the main runway recorded 58 kangaroos whereas the north side (closest to the terminal) recorded 19 kangaroos. This confirms kangaroos/wallabies on the airfield present a major safety hazard to aircraft operations around dusk at Kempsey Aerodrome. Recommend Council look at the provision of kangaroo-proof fencing particularly around the forest area down to Airport Road which seems to be the wildlife habitat. Council should support a broader wildlife monitoring program and encourage staff to have the necessary AROCP training to obtain valid CASA radio licences to provide verbal advice to pilots on final approach to the airfield of the presence of wildlife, particularly around the runway fixed distance marking zones. Council should also implement and enlarge upon the current wildlife hazard management procedure with options to deter these large animals from entering airside. The commissioning of a wildlife expert adviser would assist Council in this process.

Recommend that some form of safety management system be developed and included in the operating manual with emphasis on developing a hazard incident accident reporting form for immediate use by all aerodrome staff and tenants (currently no reporting system exists).”

In May 2012 Mr Baker sent an email to Mr Scott who was his superior at the defendant. He pointed out that the Ambulance Service had informed the defendant that they could not conduct their own “roo runs” of the runway prior to their aircraft movements. Consequently Council employees were being called to clear kangaroos from the runway, prior to the landing or take-off of the Air Ambulance, at all hours of the day and night. Mr Baker said that “the only real mitigation measure to stop wildlife intrusions is to install an adequate fence, so I will be seeking quotes and preparing a report to Council so funds can be allocated to install a fence to prevent wildlife intrusions”. Mr Baker said to Mr Scott that in late January and early February 2012 aerodrome reporting officers confirmed that kangaroos and wallabies are “a major safety hazard to aircraft operations in the afternoon and around dusk”. Mr Baker said that implementing an on-call roster for roo runs was an important safety issue and he sought a prompt decision. By June 2013 the defendant had implemented a roster system to “attend the pre-flight wildlife inspections 24 hours a day 7 days a week”. I take this to be a reference to performing roo runs for Air Ambulance purposes. At a meeting of the defendant held on 16 July 2013 it was noted that the Federal Government had announced a further round of funding under the Regional Development Australia Fund. The defendant had been allocated just over $374,000. The grants were announced on 19 June 2013 and applications were to close on 22 July 2013. The minutes of the defendant’s meeting described this as “effectively windfall funding which can be used to achieve more towards the targets of the Council than would otherwise be possible”. At that same meeting the defendant resolved that an application be lodged, pursuant to the funding package, to construct a reduced boundary fence at the Kempsey Airport up to $150,000. On 23 July 2017 Mr Baker of the defendant received a written quotation from Australian Commercial Fencing for a two metre high boundary fence around the entire aerodrome for a price of $89,880 plus GST. On 1 August 2013 Mid Coast Fencing provided a similar quote for a price of $90,600 plus GST. In August 2013 the defendant promulgated the Kempsey Aerodrome Wildlife Hazard Management Plan. The purpose of the Plan was to define the risk that wildlife posed to air traffic at the Kempsey Aerodrome. The Plan noted that the defendant was responsible for the wildlife hazard control and reduction program. The Plan stated that the defendant was committed to ensuring the safety of aircraft using Kempsey Aerodrome, but noted that it was not possible to prevent all wildlife strikes. Section 3.2 of the Plan stated that where there were any significant increases or concentrations in wildlife on and in the vicinity of the aerodrome or where a wildlife hazard was assessed as acute, of short term or seasonal nature, additional warning had to be given to pilots by a NOTAM. The Plan stated that Kempsey Aerodrome had a standing caution published in the ERSA to the effect: “Kangaroo hazard exists”. Under the Plan, NOTAM action would only be initiated where there was a significant increase in the wildlife hazard. A NOTAM was to be issued where the risks were likely to remain high over a longer time frame. The NOTAM had to provide specific information on species, period of risk and likely location. Section 5.2 of the Plan ranked the risks posed by various species of wildlife. Number one risk was the eastern grey kangaroo. Four management actions were suggested. The first was to install “an appropriate fence to deter them from entering the operational area”. The second was to issue a NOTAM for increased activities. The third was to disperse the kangaroos and the fourth was to cull the kangaroos, where the hazard could not be effectively managed by a dispersal. The Plan contained a Standard Operating Procedure SOP-01 for counting wildlife. This was to be done twice weekly, with the aerodrome divided into ten wildlife count areas. There was to be a recording of all species and their numbers on a wildlife count form. The data was to be transferred onto a spreadsheet for ongoing trend analysis. The plan also stated that if there was an imminent threat to aircraft safety, then the defendant should move to wildlife culling in accordance with SOP-06. On 27 September 2013 Australian Commercial Fencing provided a written quote to Mr Baker for a perimeter fence around the airport. To fence the tarmac main runway the price was $97,744.80 plus GST. To fence the entire airport, which included an extension for a grass cross-landing strip the price was $109,930.90 plus GST. On 14 November 2013 the defendant posted an ERSA listing a landline number for the Council and a mobile phone number for the Aerodrome Reporting Officer (ARO). The ERSA did not state the circumstances in which a pilot should call the Council. That ERSA stated, as before: “Kangaroo hazard exists”. After a change of Commonwealth Government in September 2013, the funding promised to the defendant was withdrawn. On 13 December 2013 Mr Baker informed the fencing companies which had provided quotes that “funding is no longer available to complete the works”. In December 2013 Mr Sullivan provided his 2013 Aerodrome Safety Inspection Report. He again referred to the wildlife hazard at the aerodrome, in the same terms as his previous reports. He recommended that the defendant consider commissioning an aviation wildlife expert to provide advice on wildlife prevention. He reiterated that the current livestock fence abutting the forest area was not high or robust enough to prevent animals from entering airside and that a kangaroo-proof fence around the forest area down to Airport Road would be a positive deterrent. On 24 January 2014 Mr Barnes, an employee of the defendant, conducted an aerodrome serviceability inspection and made a written report. At 5.45am he observed eight kangaroos and recorded: “Wildlife numbers increasing to dangerous levels”. On 28 January 2014 Mr Barnes conducted an inspection and reported sighting four groups of kangaroos, containing four, three, two and three kangaroos. He said: “Wildlife management program urgently required”. On that day he chased kangaroos away from the runway edge. On 30 January 2014 Mr Howe, an employee of the defendant, conducted the inspection and chased three kangaroos away. On 5 February 2014 Mr Howe conducted the inspection and chased six kangaroos away. On 7 February 2014 Mr Barnes conducted the inspection and observed six kangaroos. On 11 February 2014 Mr Barnes conducted the inspection but made no note of any kangaroo observation. On 13 February 2014 Mr Miles conducted the inspection and chased three kangaroos away. On 17 February 2014 Mr Miles conducted the inspection and chased five kangaroos away. On 21 February 2014 Mr Barnes conducted the inspection and observed three mobs of kangaroos, containing four, three and three animals. On his written report he stated: “Corrective action taken, roos chased – NOTAM issued”. However, there is no evidence that a NOTAM was issued regarding the kangaroo problem. At that same inspection the grass runway was closed because it was wet, and a NOTAM to this effect was issued, for review on 7 March 2014. On 24 February 2014 Mr Barnes conducted the inspection and noted one hare at the aerodrome. On 25 February 2014 the plaintiff’s aircraft was piloted by Dr Henry Alterator on a flight from Port Macquarie Airport to Kempsey Aerodrome. The aircraft was being flown to Kempsey for its annual service. Dr Alterator lived in Port Macquarie and the aircraft was hangared at Port Macquarie Airport. He had flown from Port Macquarie to Kempsey about 20 times prior to the day in question. Prior to take-off at Port Macquarie the pilot conducted a pre-flight check of the aircraft and checked the Airservices Australia website for flight information. He ascertained that there was an ERSA for Kempsey Aerodrome which stated: “Kangaroo hazard exists”. He also checked to see if there were any NOTAMs for Kempsey Aerodrome but there were none relevant to his flight, as he was not going to use the grass landing strip. On approach to Kempsey Aerodrome the pilot flew overhead at approximately 1500 feet and observed the windsock. He made a visual mid-field cross-wind approach for the tarmac runway 04/22. During his approach to the runway he did not see any kangaroos or other wildlife. He landed on runway 04/22 between 2.30pm and 3.00pm on the afternoon of 25 February 2014. The flight from Port Macquarie had taken about 10 minutes. The pilot landed the aircraft and used modest braking to slow the aircraft to taxi speed. About 2-3 seconds after the three wheels touched the runway the pilot noticed movement in the long grass to his front right about 150 metres forward of the aircraft. The aircraft was travelling at 75 knots at this time. He maintained moderate braking to reduce the speed of the aircraft. The pilot then saw a kangaroo emerge from the long grass and jump onto the mowed grass adjacent to the runway. The pilot ascertained that the kangaroo and the aircraft were heading towards a collision point in the centre of the runway. He braked severely and swerved the aircraft slightly to the right to try to avoid colliding with the kangaroo. As he did so the kangaroo turned towards the aircraft changing its angle of travel. The kangaroo jumped across the front of the aircraft and headed to the left side of the aircraft. The pilot saw the kangaroo hit by the left wing of the aircraft and roll beneath the wing. At this time the aircraft was travelling at approximately 30 knots. The pilot was not injured in the collision. There were no other passengers on board the aircraft. After the collision the pilot taxied the aircraft to the hangar where it was to be serviced. After disembarking he saw that there was damage to the left-hand propeller. The pilot later completed an Australian Transport Safety Bureau Accident Notification Form. The kangaroo was killed by the impact. Dr Alterator said that on his visits to Kempsey Airport prior to this day he had never seen a kangaroo in the vicinity of the aerodrome. Dr Alterator was cross-examined as to why he did not phone the Kempsey ARO since he had been told by the ERSA that a kangaroo hazard existed. He said that he had been there 20 times before and never seen a kangaroo. Further, he knew that the ARO was not always at the airport so that he may not know what the present situation was with wildlife. Dr Alterator was familiar with Port Macquarie Airport which had a fence all the way around it, but still sometimes had problems with kangaroos getting onto the airport.

EVIDENCE FOR THE DEFENDANT

The defendant tendered two affidavits of Mr Troy Baker and called him to give oral evidence. His title with the defendant was Economic Sustainability Officer (Operations). Mr Baker had been employed in various roles by the defendant from 1995. In an earlier position he had co-ordinated the maintenance and repair of the defendant’s business assets, which included the Kempsey Aerodrome. Each Aerodrome Reporting Officer (ARO) reported to him. The AROs were on-call for the purpose of carrying out inspections of the runway before the Royal Flying Doctor Service or the NSW Air Ambulance landed there and chasing kangaroos away from the aerodrome before a landing or take off by the RFDS or the Air Ambulance. Mr Baker continued with these responsibilities when his title changed to his present one in March 2014. Mr Baker said that there were no commercial passenger services operating to or from the aerodrome. The aerodrome was used by local and hobby pilots, emergency services, parachuting and skydiving businesses, and a flight training college. Macleay Aircraft Maintenance operated its business at the aerodrome. There was no employee of the defendant at the aerodrome on a full-time basis. Users could come and go at will, and did not need to notify the defendant about flights to or from the aerodrome. The defendant had to provide operational information for the ERSA which was published by Airservices Australia. The last ERSA published before the accident on 25 February 2014 was that of 14 November 2013 which recorded that a kangaroo hazard existed at the aerodrome. NOTAMs are published by Airservices Australia and are available on its website. The defendant was required to ask Airservices Australia to issue a NOTAM if there was a change in conditions at the aerodrome. Wildlife, such as kangaroos, could be a reason for issuing a new NOTAM. There is no requirement under the Regulations governing registered aerodromes for fencing. There was a fence at the airport, but it was not a kangaroo-proof fence which would need to be at least two metres high. Part of the fence was a black security fence about 1.8 metres high, but most of the fencing was standard stock fencing. Mr Baker was not in a position involving responsibility for the aerodrome in 2005 when CASA issued its Request for Corrective Action. He had searched the defendant’s files but had been unable to find any follow-up correspondence about the 2005 RCA. It was Mr Baker who developed the Wildlife Hazard Management Plan in 2013 for the aerodrome, something which CASA had recommended. The runway of the airport was inspected twice weekly by AROs employed by the defendant. It was also inspected by the defendant before any flight by the NSW Air Ambulance. If a call was received from the Air Ambulance, an ARO would drive a truck the length of the runway four times in the 30 minutes before the scheduled landing time. That was to scare away the kangaroos and was known as a roo run. Mr Baker said that the defendant could not provide this service for any other users of the airport. He said that the defendant did not have the funds or the employees available to carry out additional inspections. Mr Baker was cross-examined. He said that there were several AROs who could attend the airport but that Mr Barnes was the one who went out there the most. He agreed that the best and most effective way to deal with the problem of kangaroos was by having an appropriate kangaroo-proof fence, putting funding issues to one side. Mr Baker was aware of concerns raised by the Royal Flying Doctor Service, the Air Ambulance, and a local pilot Mr Robert Palmer about the presence of kangaroos within the aerodrome. He acknowledged that every person on an aircraft landing at Kempsey was subject to a risk of fatality or catastrophic injury because of the presence of kangaroos at the aerodrome. Mr Baker was aware that Mr Sullivan continued to raise the wildlife problem in his annual inspection reports. It was put to Mr Baker that a partial fence, along the forested area to the western side of the aerodrome, would be a solution to the kangaroo problem. He disagreed with this saying that it would only deal with part of the problem of kangaroos. He said that a complete fence would make large steps towards resolving the kangaroo problem. Mr Baker said that while there are methods to control kangaroos, a kangaroo-proof fence is really the only means to control the hazards or the risk. Mr Baker remembered the defendant resolving in July 2013 to make application for Commonwealth grant money to construct a perimeter fence around the airport for up to $150,000. He said that with a change of federal government there was no more money, but he did not know the precise details of what had to happen in order for that money to be paid, before the funding was discontinued. He said: “It’s above me.” Mr Baker was the person who arranged to get the quotes for a kangaroo-proof fence, which he regarded as an “obvious” solution to the kangaroo problem. He agreed that it was “absolutely essential to move quickly to enter into a contract and get the fence up to deal with the problem”. However, the funding fell through. The quotes which he did obtain were for a fence which he thought would be high enough to deal with the kangaroos. Mr Baker was asked why the defendant did not carry out the twice-weekly inspections referred to in the Wildlife Plan. He said that there was no point doing twice-weekly inspections because they would not give the defendant any more information than it already had to hand. He said that the defendant had established that the kangaroos were a hazard and a risk. He said that the defendant had established that the fence would be the most appropriate means for controlling the risk and in those circumstances further counts of kangaroos would not achieve anything not already known. Mr Baker agreed with the proposition that if the population of kangaroos airside had increased to dangerous levels this would require the issue of NOTAM. When his attention was drawn to the report of Mr Barnes of 24 January 2014 where Mr Barnes stated “wildlife numbers increasing to dangerous levels”, Mr Baker said that the defendant had already established that there was a very high risk and that the kangaroos airside were always at dangerous levels. Mr Baker said that, having read Mr Barnes’ inspection report dated 21 February 2014, he understood that it was Mr Barnes’ intention that a NOTAM should be issued with respect to the dangerous activity of kangaroos. He accepted that no NOTAM had been issued that day referring to the kangaroo hazard. He acknowledged that there was a failure by Mr Barnes to include information in a NOTAM concerning the kangaroo problem in the lead up to and on 21 February 2014. He acknowledged that the cost of including that information in a NOTAM would be minimal. He also acknowledged that information of that kind could have been of critical significance to any pilot who was thinking about landing at the aerodrome. He agreed with the proposition that a proper NOTAM issued on or after 24 January 2014 would have included the conclusion of Mr Barnes that by 24 January 2014 wildlife numbers were increasing to dangerous levels. He also agreed that the observations of Mr Barnes made on 28 January and 21 February 2014 also required the issue of a NOTAM. Mr Robert Scott gave evidence for the defendant by two affidavits. He was cross-examined. Mr Scott is an engineer who is employed by the defendant as the Director Infrastructure Services. He has worked for the defendant in that position since June 2010. From February to June 2010 he was employed by the defendant as its Temporary Director Shire Services. He holds a Bachelor of Civil Engineering and a Master of Environmental Engineering Management. His role is to co-ordinate the employees of the defendant responsible for infrastructure and services including water, sewer, roads, bridges, drainage, flood mitigation, waste, recreation facilities and footpaths. In 2010 responsibility for the Kempsey Aerodrome was transferred to his portfolio. From 2010 onwards, the defendant had resolved, on advice, not to fund operational expenditure by, or service, new loans due to its financial position. The aerodrome did not generate enough income to cover its ongoing operating expenses. The continued operation of the aerodrome by the defendant was supported “solely on the basis the community wishes to retain the airport for emergency services”. Mr Scott said that consideration of erecting a kangaroo-proof fence around the airport would need to take into account not only the initial cost but also the maintenance costs. Mr Scott said that based on 2-3 plane movements at Kempsey Aerodrome per day and the lack of prior incidents at the airport, his view, if asked, would have been that there were other greater risks to the community which needed the expenditure of Council funds. He pointed to the road safety crash and casualty data for the local area. Mr Scott was cross-examined. He had expressed the opinion that the defendant did not have enough funds to erect kangaroo-proof fencing at the aerodrome. However, he acknowledged that he was in no position to say, on a cost benefit analysis, whether it would have cost more or less to have partial fencing along the western boundary line and whether that option would have been financially available. The defendant had not considered the option of a partial fence.

EXPERT EVIDENCE

The plaintiff tendered two expert reports by Mr Phil Shaw who is a biologist with 20 years’ experience in the field of aircraft/wildlife collision risk mitigation. He said that ideally, Kempsey Aerodrome should have been protected at the time of the incident by a complete wildlife fence and suitable gates. He said that a wildlife-proof fence about 1.5km long, along the western side of the airport, would have provided some protection and would most likely have reduced the number of kangaroo incursions. Mr Shaw’s reports also dealt in detail with the documents available to the defendant over the years advising it of the problem and advising it of possible solutions. All of this primary material went into evidence in the plaintiff’s case. In his oral evidence-in-chief Mr Shaw said that he would never recommend a partial fence as the primary tool for mitigation. He thought that a partial fence was a first step before completion of an entire fence. In cross-examination Mr Shaw agreed that some kangaroos could jump over a two metre high fence. Such a fence would not get rid of every single kangaroo, but there would no longer be mobs of kangaroos within the aerodrome area. He said of a kangaroo-proof fence that: “It would so massively decrease the risk that it would not eliminate [it] but it would be an enormous reduction in risk to have a fully enclosed fence”.

FACTUAL FINDINGS ON LIABILITY

Both counsel agreed that there was really no factual dispute in the case, rather the key issues involved application of the principles in the Civil Liability Act 2002 to the facts. I accept Dr Alterator as a witness of truth. I accept Mr Baker as a witness of truth. He made appropriate concessions when cross-examined on Council documents. In particular, I accept his evidence that when it was noted in January and February 2014 that kangaroo levels were increasing, Mr Barnes intended to issue a NOTAM but did not, and that a NOTAM should have been issued advising of the increased hazard caused by kangaroos. I accept Mr Scott as a witness of truth, although his manner was one of an advocate for his employer. That did not affect his evidence, which was uncontroversial. I accept the evidence of the Council employees Mr Howe and Mr Miles. Mr Barnes was not called as a witness. I accept the evidence of the expert Mr Shaw. There are really no factual controversies to resolve in this case. My findings of fact are those set out above where I have recited and summarised the evidence for the plaintiff and the evidence for the defendant. There is really no conflict between the evidence of the various witnesses or between the evidence put forward generally for the plaintiff or for the defendant.

THE LIABILITY ISSUES

The court must deal with the following liability issues under the Civil Liability Act 2002. The court must make findings as to the nature of the duty of care, if any, the defendant owes to the plaintiff, the extent of the duty, breach and damage. This is because the “constituent elements of the tort of negligence - duty, breach and damage – considered seriatim, progressively increases the specificity of the inquiry into how the incident occurred and the way in which damage was sustained”: Neindorf v Junkovic [2005] HCA 75. The court must find the facts and “draw from them the inference of fact whether or not the defendant had been negligent”: Benmax v Austin Motor Co Limited [1955] AC 370 at 373-374.

DUTY OF CARE

The occupier of premises owes a duty to take reasonable care to avoid a foreseeable risk of injury to the claimant, arising from the physical state of its land, on the assumption that the claimant used reasonable care for their own safety: Australian Safeways Stores Pty Limited v Zaluzna [1987] 8 CA 7; (1987) 162 CLR 479 at 488; Roads & Traffic Authorities (NSW) v Dederer [2007] HCA 42: (2007) 234 CLR 334 at [45]. Gleeson JA in Reid v Commercial Club (Albury) Limited [2014] NSWCA 98 said at [159]:

“The scope of the occupier’s duty of care is marked out by the relationship between the occupier and users exercising reasonable care for their own safety. Thus, ‘the weight to be given to an expectation that potential plaintiffs will exercise reasonable care for their own safety is a general matter in the assessment of breach in every case’: Roads & Traffic Authority of NSW v Dederer at [45]. This involves a factual judgment which may depend on the circumstances of the case: Thompson v Woolworths (Queensland) Pty Limited [2005] HCA 19; 221 CLR 234 at [35].”

In paragraph 2 of its Amended Defence, the defendant admits that it owed a duty to take reasonable care to prevent foreseeable risks of injury to a class of persons such as the plaintiff. I find that the defendant owed a duty to take reasonable care to avoid the foreseeable risk of a collision between an animal and an aircraft at Kempsey Aerodrome, causing damage to the aircraft or harm to its occupants.

BREACH OF DUTY OF CARE

Foreseeability of risk of injury is not determinative of breach of duty of care: Francis v Lewis [2003] NSWCA 152 at [40]. The occupier’s obligation is that of reasonable care. Its duty is not to make the premises as safe as ‘reasonable care and skill on the part of anyone can make them’: Jones v Bartlett [2000] HCA 56: (2000) 205 CLR 166 at [92]. It is not an insurer of entrants: Kocis v SE Dickens Pty Limited [1998] 3 VR 408 at 429. What constitutes the exercise of reasonable care depends on the circumstances of each case: Wilkinson v Law Courts Limited [2001] NSWCA 196 at [32]. The question whether the defendant breached its duty of care to the plaintiff is governed by Section 5B of the Civil Liability Act 2002 (NSW) which provides:

“(1) A person is not negligent in failing to take precautions against a risk of harm unless:

(a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and

(b) the risk was not insignificant, and

(c) in the circumstances, a reasonable person in the person’s position would have taken those precautions.

(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):

(a) the probability that the harm would occur if care were not taken,

(b) the likely seriousness of the harm,

(c) the burden of taking precautions to avoid the risk of harm,

(d) the social utility of the activity that creates the risk of harm.”

Section 5B can be seen to reflect the common law as to the standard of care (that is, the measure of the discharge of the duty of care) applicable to an occupier which is what, if anything, a reasonable person in the occupier’s position would, in the circumstances, do by way of response to the foreseeable risk: Hackshaw v Shaw [1984] HCA 84; (1984) 155 CLR 614 at 662-663; Australia Safeway Stores [at 488]; Neindorf v Junkovic at [8]. Section 5C is also relevant, in particular, Section 5C(b) which provides that “the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done”.

SUBMISSIONS ON BREACH OF DUTY

The plaintiff submitted three ways in which it said that the defendant breached its duty of care. The first submission for the plaintiff was that the defendant breached its duty by failing to follow the requirements of the Wildlife Hazard Management Plan in January 2014 and February 2014. It was submitted that the exercise of reasonable care required the defendant to adhere to its own Plan and that it failed to do that in several respects:

The defendant failed to issue a NOTAM warning of an increase in kangaroos to dangerous levels on: 21 January 2014; 24 January 2014; 28 January 2014; 21 February 2014; The defendant failed to increase inspections of wildlife in January and February 2014 to daily inspections, as required by the Plan; The defendant failed to comply with its own SOP-O1 which related to counting wildlife; and The defendant failed to implement a wildlife culling procedure.

I have already referred to the evidence of Mr Baker in respect of the failure to issue a NOTAM warning of an increase in kangaroos to dangerous levels. He agreed that this should have been done. Further, he agreed that Mr Barnes’ notation on an inspection report indicated that Mr Barnes thought it should be done and intended to do it. Nevertheless, a NOTAM was not issued. The defendant pleaded reliance upon s 42 of the Civil Liability Act 2002, which I will deal with more fully below. The plaintiff submitted that s 42 had no application to the failure to follow the wildlife plan, as the defendant already had employees who were responsible for inspecting and clearing the airport of kangaroos and for issuing NOTAMs in appropriate circumstances. There were no real added costs in pursuing the courses of action identified by the plaintiff in its submissions. The second submission about breach of duty made by the plaintiff was that exercise of reasonable care by the defendant required it to take steps to consider and erect a partial fence along the western side of the runway so as to impede the access of kangaroos from the forested area onto the runway. Mr Baker gave evidence that this, in his opinion, would not work and was thus not considered. The plaintiff’s own expert Mr Shaw said that he would never recommend this as a stand-alone solution, and he saw it as only moving part of the way towards the full and complete solution which was to build a kangaroo fence surrounding the aerodrome. I find that the evidence does not support the notion that a partial fence along the western side of the airport was required. Kangaroos would simply move around the fence, or would encroach upon the aerodrome from other directions. There was really no evidence to suggest that a partial fence would have made anything other than a minor reduction in the level of wildlife encroaching on the aerodrome. I reject the submission of the plaintiff as to the second way it is said that the defendant breached its duty of care. The third way in which the plaintiff put the breach was to submit that reasonable care required the defendant to erect a kangaroo-proof fence around the entire aerodrome. To this, the defendant raised s 42 of the Civil Liability Act 2002.

FINDINGS ON BREACH OF DUTY

I make the following findings in relation to the elements of s 5B of the Civil Liability Act 2002. I find that the risk of a collision between an aircraft and a kangaroo at the Kempsey Aerodrome causing damage to an aircraft or harm to its occupants was foreseeable. It was a risk of which the defendant knew or ought to have known. All the evidence points to the defendant knowing of the risk and appreciating it. CASA told the defendant in 2005 of the risk. Mr Sullivan, who reported from 2011 onwards on his annual inspection of the safety of the airport, emphasised the risk of a collision to the defendant. Mr Baker gave evidence that he certainly knew of the risk from the time he took over responsibilities for the aerodrome. I find that not only was the risk foreseeable, but that it was actually foreseen by the defendant. I find that the risk was not insignificant. The seriousness of the harm is irrelevant to whether “the risk was not insignificant”. The phrase “not insignificant” is intended to refer to the probability of the occurrence of the risk – Benic v State of New South Wales [2013] NSWSC 1039 at [101]. I find that the risk was not insignificant because:

The Royal Flying Doctor Service had declined to use Kempsey Aerodrome unless the defendant performed roo runs to clear the kangaroos from the runway; The Air Ambulance had declined to use Kempsey Aerodrome unless the defendant performed roo runs to clear the kangaroos from the runway; Near misses had been reported to the defendant by a local pilot; CASA in 2005 indicated that a collision could happen; Mr Sullivan, in his annual reports, stated that collisions could happen and that something should be done; Mr Baker appreciated that there could be a collision between a kangaroo and an aircraft and that something should be done; In January and February 2014 various AROs observed a significant increase in the presence of kangaroos at Kempsey Aerodrome, leading to an increase in the risk of a collision; One of these AROs Mr Barnes, described the change in the kangaroo population as an increase to “dangerous levels”, which of course increased the risk of a collision between a kangaroo and an aircraft.

In determining whether a reasonable person in the position of the defendant would have taken precautions against the risk of harm, I turn to consider the matters listed in s 5B(2). The probability that the harm would occur if risk were not taken was not a high probability: s 5B(2)(a) There were about three or four aircraft movements a day at Kempsey Aerodrome, and on the evidence there had never been a kangaroo strike before. However, movements in and out of the aerodrome by the Air Ambulance or the Royal Flying Doctor Service do not count, as the AROs were called out to chase kangaroos away from the runway before movements by those air services. There is evidence in the case that private pilots reported near misses with kangaroos before the subject collision occurred. Three aircraft movements a day means that in a year there would have been 1,000 aircraft movements. The evidence suggests that kangaroos were to be found airside more often than they were absent. So, while the probability of a collision was not high, it was a definite prospect, and probably just a matter of time if nothing was done. The harm which could have occurred was extremely serious: s 5B(2)(b). As Mr Baker conceded, the harm which could have occurred was for a catastrophic or fatal accident to occur. The burden of taking precautions to avoid the risk of harm, by the giving of a NOTAM warning of a dangerous increase in the level of kangaroo activity, was minimal to nil: s 5B(2)(c). The burden of taking precautions to avoid the risk of harm, by the construction of a kangaroo proof fence which enclosed the Kempsey Aerodrome, was the burden of spending about $100,000: s 5B(2)(c). Finally, the social utility of the activity that created the risk of harm was in part the desire of the defendant to provide an aerodrome so that emergency medical services could attend the Kempsey area. While that was a highly desirable social purpose, the aerodrome was available for anyone to use and the evidence shows that it was used for private and recreational purposes. The social utility of the aerodrome for those purposes was not great: s 5B(2)(d).

PROVING BREACH OF DUTY

The conduct relevant to the breach inquiry is the “foreseeability of harm resulting from the acts or omissions of the defendant, or its servants, proved to have occurred”: Shirt v Wyong Shire Council [1978] 1 NSWLR 631 at 639-640. At the stage of breach, the court has to identify “with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk”: Graham Barclay Oysters Pty Limited v Ryan [2002] HCA 54: (2002) 211 CLR 540 at [192]. Although the judgment as to what the reasonable person would have done to avoid what is known at trial to have occurred must be made after the event, it must seek to identify what the response would have been by a person looking forward at the prospect of the risk of injury: Vairy v Wyong Shire Council [2005] HCA 92; (2005) 223 CLR 422 at [126]; applied in Adeels Palace Pty Limited v Mourbarak [2009] HCA 48; (2009) 239 CLR 420 at [31]. As is apparent from Section 5C(b) of the Civil Liability Act 2002, whether reasonable care has been exercised is not determined by asking if different conduct would have produced a different outcome: Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179 at [92]. The test for negligence is always “whether the plaintiff has proved that the defendant, who owed a duty of care, has not acted in accordance with reasonable care”: Derrick v Cheung [2001] HCA 48; (2001) 181 ALR 301 at [13]. The plaintiff bears the legal (and evidential) burden of proving on the balance of probabilities on all the evidence at trial that the defendant owed a duty of care which had been breached in a manner which caused the damage. If the plaintiff calls evidence “sufficiently weighty to entitle, but not compel, a reasonable trier of fact to find in [its] favour”, the defendant bears an “evidential burden in the sense of a provisional or tactical burden” such that if they fail “to call any or any weighty evidence, [they ran] a risk of losing on the issue”: Strong v Woolworths Limited [2012] HCA 5; (2012) 246 CLR 182 at [46], [50], [53].

The Risk of Harm

The breach inquiry requires the primary judge to identify accurately the actual risk of injury the plaintiff faced, as it is only through the correct identification of the risk that the trial judge could determine what a reasonable response to that risk would be: Roads & Traffic Authority of NSW v Dederer at [18], [59]. In the present case I find that the relevant risk of harm is that as the result of an aircraft colliding with a kangaroo upon Kempsey Aerodrome, damage could be caused to the aircraft or harm could be caused to its occupants.

Did the defendant fail to take precautions against a risk of harm which a reasonable person in its position would have taken?

The plaintiff puts its case on breach in three ways. I have already rejected the second way in which the plaintiff put its case i.e. the partial fence solution. In relation to the first way in which the plaintiff put its case (failing to following the requirements of the Wildlife Hazard Management Plan in January and February 2014) I make the following findings:

On 24 January 2014 Mr Barnes, an employee of the defendant, conducted an aerodrome serviceability inspection during which he observed eight kangaroos. On his written report he recorded “wildlife numbers increasing to dangerous levels”. On 28 January 2014 Mr Barnes observed twelve kangaroos split into four groups. On his written report he noted: “Wildlife management program urgently required”. Subsequent inspections disclosed three kangaroos on 30 January 2014, six kangaroos on 5 February 2014, six kangaroos on 7 February 2014, three kangaroos on 13 February 2014 and five kangaroos on 17 February 2014. On each occasion the kangaroos were chased away by the defendant’s ARO. On 21 February 2014 (four days before the collision) Mr Barnes observed ten kangaroos in three groups. He chased the kangaroos away and made a recording, on that part of the report relating to kangaroos stating “NOTAM issued”. There was no NOTAM issued on that day regarding the kangaroo problem. The cost of including information about the level of the kangaroo hazard at Kempsey Aerodrome in January and February 2014 was minimal – the defendant already employed people to do an inspection, and it would have taken a very small amount of their time to issue an appropriate NOTAM. Information about the level of the kangaroo hazard in February 2014 would have been of critical significance to any pilot who was thinking about landing at the aerodrome. A proper NOTAM issued on or after 24 January 2014 would have included the conclusion of Mr Barnes that by 24 January 2014 wildlife numbers were increasing to “dangerous levels”. The observations of Mr Barnes made on 28 January 2014 also required the issue of a NOTAM. The observations of Mr Barnes made on 21 February 2014 also required the issue of a NOTAM. The NOTAM which should have been issued should have alerted any pilot reading it that the level of the kangaroo hazard at Kempsey Aerodrome had increased over and above the anodyne warning on the ERSA that a kangaroo hazard existed. An appropriate NOTAM would have said something to the same effect as that recorded by Mr Barnes – that the kangaroo population had increased to a dangerous level. Such a warning in a NOTAM would have brought home to any prospective pilot that landing at Kempsey Aerodrome on 25 February 2014 was something which involved a significant risk of a potentially very serious accident.

I find that the defendant failed to take reasonable care by not issuing a NOTAM stating that kangaroo incursions onto the aerodrome had increased to dangerous levels. I find that the defendant also failed to take reasonable care by failing to increase inspections of wildlife in January and February 2014 to daily inspections, as required by the Plan. Further, those counts which were made did not comply with its own SOP-01 which related to the method of counting wildlife. Mr Baker’s explanation for not following the Plan was that the defendant already knew that there had been an increase in the kangaroo population and that kangaroos always presented a danger at the aerodrome. I find that if daily inspections had been carried out, the defendant would have been better informed about the danger level presented by kangaroos at the aerodrome and would have had even more opportunities to issue an appropriate NOTAM to warn incoming pilots. Once again, the taking of those steps would have involved minimal cost to the defendant, as the AROs were already employed to go to the airport, conduct inspections and issue NOTAMs. In the Amended Defence the defendant pleaded that to the extent that the plaintiff’s action relied on an allegation of failure to warn of a risk, the defendant relied on ss 5F, 5G and 5H of the Civil Liability Act 2002. The defendant pleaded that the presence of a kangaroo on or immediately adjacent to the runway at Kempsey Aerodrome was an obvious risk, of which the plaintiff should have been aware, and thus it owed no duty of care to warn of an obvious risk. Senior Counsel for the defendant did not address the obvious risk defence in his written or oral submissions. I presumed that the defence was abandoned, but in case that was not so, I will go on to consider it briefly. I find that the presence of a kangaroo on the day of the collision was not an obvious risk as it would not have been obvious to a reasonable person in the position of the pilot. He gave evidence which I have accepted that he had flown to Kempsey on 20 previous occasions and had never seen a kangaroo. I have already found that the words contained in the ERSA did not constitute a sufficient warning of the degree of risk on the day of the collision, at a time when the level of the kangaroo population on the aerodrome had increased to dangerous levels, to use the defendant’s words. Further, even if the plaintiff is presumed to have been aware of the risk of harm because it was an obvious risk, I have found that the plaintiff has proved on the balance of probabilities that the pilot was not aware of the risk on the day: s 5G(1). Further, the plaintiff had requested advice or information about the risk (and indeed all risks concerning the aerodrome) from the defendant by consulting the ERSA and the NOTAM, both of which were generated by information provided by the defendant. In those circumstances s 5H(1) does not apply: s 5H(2)(a). My conclusion on the first way in which the plaintiff put its case on breach is that the defendant failed to take precautions against a risk of harm which a reasonable authority in its position would have taken. The third way in which the plaintiff put the case on breach (failure to erect a complete kangaroo proof fence) involves consideration of an additional legal matter. Given that a kangaroo proof fence would have cost in the vicinity of $100,000, consideration needs to be given to s 42 of the Civil Liability Act 2002. This provides:

“Principles concerning resources, responsibilities etc of public or other authorities

The following principles apply in determining whether a public or other authority has a duty of care or has breached a duty of care in proceedings for civil liability to which this Part applies:

(a) the functions required to be exercised by the authority are limited by the financial and other resources that are reasonably available to the authority for the purpose of exercising those functions,

(b) the general allocation of those resources by the authority is not open to challenge,

(c) the functions required to be exercised by the authority are to be determined by reference to the broad range of its activities and not merely by reference to the matter to which the proceedings relate,

(d) the authority may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.”

Thus whether there has been a breach of duty is a question which cannot be divorced from the factors in s 42 that have to be taken into account. The evidence as to whether a kangaroo proof fence was a step which would have been taken by a reasonable authority, absent the funding considerations referred to in s 42, was to the effect that such a fence would have dramatically reduced the risk of a kangaroo being airside at Kempsey Aerodrome. I accept the evidence of Mr Shaw that provision of a two metre high kangaroo proof fence which enclosed the airport would have “massively” decreased the risk. It would not have eliminated the risk, since kangaroos could still get onto an airport enclosed by a fence (witness Port Macquarie Airport), but there would be “an enormous reduction in risk to have a fully enclosed fence”. Subject to my consideration of s 42 below, I find that there was a failure by the defendant to take reasonable care in not erecting a kangaroo proof fence around the entire airport. This is a failure which commenced at least in 2005 when CASA issued its RCA, and from that time on the defendant was aware that a fence was the best solution to the kangaroo problem at the aerodrome. I now turn to consideration of s 42.

CONSIDERATION OF SECTION 42

Section 42 of the Civil Liability Act 2002 applies in determining whether a public authority breached a duty of care. Section 42(a) speaks of “the functions required to be exercised by the authority”. These functions are limited by the financial and other resources reasonably available to the authority for the purpose of exercising those functions. It was submitted for the defendant that pursuant to s 24 of the Local Government Act 1993:

“A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the Regulations and any other law.”

Section 24 speaks in permissive terms, using the word “may”. However, s 42(a) is concerned with the functions a council is “required” to perform. Section 21 of the Local Government Act 1993 provides:

“A council has the functions conferred or imposed on it by or under this Act.”

Provision of an aerodrome is not a function required of a council by the Local Government Act 1993.

Section 22 of the Local Government Act 1993 provides:

“A council has the functions conferred or imposed on it by or under any other Act or law.”

Once again, there is no other Act or law which requires a local council to operate an aerodrome.

As Mr Scott put it in his evidence, the defendant has elected to keep the aerodrome open, as a service to those residents of the Kempsey community who need medical treatment involving transportation by aircraft. Even before the Civil Liability Act 2002 came into force, the common law recognised a distinction in relation to the functions of local authorities between those voluntarily assumed and those imposed upon the authority as an obligation – Cekan v Haines (1990) 21 NSWLR 296. Justice Mahoney said (at 314):

“If a government chooses to provide a voluntary service of this kind, prima facie it must take all such precautions against the risks of injury which the provision of those services will create and, in particular, it is prima facie not open to it to plead lack of resources if it does not do so. A plaintiff may say that, if it has not the resources to make such provision against risk, it should not offer to provide the services.”

In my view that principle applies in this case, meaning that s 42 has no operation. Unlike the provision of roads, water, drainage and sewerage, which are functions required of a local government authority, the defendant was not obliged to operate the Kempsey Aerodrome. It chose to do so voluntarily. Section 42(b) provides that:

“The general allocation of those resources by the authority is not open to challenge.”

The reference to “those resources” is a reference to “the financial and other resources” mentioned in s 42(a). If s 42(a) has no application, as I have decided, then s 42(b) does not come into play. In case my finding in relation to the non-applicability of s 42(a) is found on appeal to be incorrect, I will go on to deal with s 42(b) as if it applied. The evidence about the general allocation by the defendant of its resources is to be found in the affidavits of Mr Scott. He annexed various extracts from the the defendant’s accounts. Without the full set of accounts it is impossible to come to a conclusion that the general allocation of resources by the defendant is being challenged by the case run by the plaintiff. None of the defendant’s activities, such as road building, sewerage, drainage, provision of water services etc pay their own way. All are funded by capital expenditure by the defendant. There was no evidence provided by Mr Scott as to whether, year on year, the defendant simply did not have the financial resources to spend approximately $100,000 in fencing the aerodrome. Mr Scott gave evidence that from 2010 onwards the defendant had decided not to take out any more new loans or service any more new loans. The defendant therefore was not going to borrow after 2010. However, the need for the Council to take reasonable care arose well before 2010. At the latest, it arose when CASA informed the defendant in 2005 that it had to do something to prevent animals getting onto the runway. In 2005 the response of the defendant was to say that it would build a fence around the aerodrome. For reasons which are unexplained, that did not happen in 2005, 2006, 2007, 2008 or 2009. According to Mr Scott, in those years the defendant could and did borrow funds, or acquired funds from some higher government source, to carry out expenditure in its local government area. For the years between the CASA RCA in June 2005, and 2010 when the defendant decided not to fund any more projects by borrowing money, I find that there is no scope for s 42(b) to operate, even if I am wrong in my conclusion that the paragraph has no application because of my conclusion in relation to s 42(a). For the above reasons, and on the assumption that s 42 does operate, I find that the defendant failed to take reasonable care by not building a kangaroo proof fence around the aerodrome in 2005, or at the very latest, by 2010.

Causation

Section 5D(1) of the Civil Liability Act 2002 provides:

“A determination that negligence caused particular harm comprises the following elements:

(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and

(b) that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”

In Strong v Woolworths Limited [2012] HCA 5; 246 CLR 182, the effect of Section 5D(1)(a) was stated thus:

“The determination of factual causation under Section 5D(1)(a) is a statutory statement of the ‘but for’ test of causation: the plaintiff would not have suffered the particular harm but for the defendant’s negligence.

…

Proof of the causal link between an omission and an occurrence requires consideration of the probable course of events had the omission not occurred. Here, the appellant was required to prove that, had a system of periodic inspection and cleaning of the sidewalk sales area been employed on the day of her fall, it is likely that the chip would have been detected and removed before she approached the entrance to Big W.”

Section 5E of the Civil Liability Act 2002 provides:

“In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.”

In accordance with the explanation of s 5D(1)(a) in Strong v Woolworths Limited, I must consider whether there is proof of a causal link between an omission and an occurrence. I have to consider the probable course of events had the omission not occurred. The plaintiff must prove that had reasonable care been taken, it is likely that the collision and the damage to the aircraft would not have occurred. I find that factual causation in accordance with s 5D(1)(a) has been established by the plaintiff. Firstly, had a suitable NOTAM been issued by the defendant, Dr Alterator would have been warned of the dangerous levels of wildlife at the airport, rather than simply being told that a kangaroo hazard existed. A NOTAM could and should have included a plain warning that the level of kangaroos at the airport was now “dangerous” to use the word of the defendant’s employee Mr Barnes. I find that such a NOTAM would have caused Dr Alterator to decline to fly from Port Macquarie to Kempsey, which as he pointed out, was a flight which he did not need to undertake that day – it could have been put off as the aircraft did not need immediate servicing. I find that had such a warning been given to Dr Alterator by a suitable NOTAM, it would have alerted him to the fact that while on the previous 20 flights to Kempsey he had not seen a kangaroo, there was a much greater risk on 25 February 2014 of not only seeing a kangaroo but colliding with one. Secondly, in relation to the kangaroo proof fence solution, I find that had a kangaroo proof fence been in existence at the airport (enclosing the whole airport) when Dr Alterator made his flight, that the probably course of events was that he would have landed without incident and without colliding with a kangaroo. There would have been a massive decrease in risk as a result of there being an enormous reduction in numbers because there was a fully enclosed fence. In relation to s 5D(1)(b), I find that it is appropriate that the scope of the defendant’s liability extend to the harm so caused. The defendant was in a better position than pilots to ascertain the risk and warn of it. The defendant had day to day control and management of the aerodrome. It had AROs who regularly went to the aerodrome to inspect it, inter alia, for the presence of kangaroos. Of course, the defendant, on my findings, should have been there more often to conduct such inspections, in accordance with its own Plan. By contrast, a pilot coming in to land at Kempsey, without the benefit of any prior warning, would merely make one pass over the runway, which served several purposes, only one of which was to see whether or not there was any obstacle on the runway. The defendant wanted the aerodrome open so that local residents could have the benefit of emergency air medical transportation. However, leaving the airport open to all and sundry meant that the defendant took upon itself the burden of running an airport for everyone and not just for specialised medical transport. For those reasons I find that it is appropriate that the scope of liability of the defendant extends to the harm caused, within the meaning of s 5D(1)(b).

Contributory Negligence

The defendant pleaded contributory negligence. By s 5R(2) of the Civil Liability Act 2002 the standard of care required of a person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time. The particulars of contributory negligence are set out in paragraph 11 of the Amended Defence filed on 14 August 2014. I will deal with each of those below. Firstly, it was pleaded that the pilot failed to keep any or any adequate or proper lookout. I find that this fails on the facts, as Dr Alterator gave evidence which I accept that he was keeping an appropriate lookout as he flew over the aerodrome and flew towards the runway immediately prior to landing. Secondly, the defendant alleges that there was contributory negligence in that Dr Alterator failed to observe the kangaroo on the runway or in its immediate vicinity. This too fails on the facts. I accept Dr Alterator when he says that the kangaroo was some distance away from the runway, and that the first time he observed it was just as the aircraft touched down on the runway. A pilot has a lot to do and a lot to process when landing an aircraft, and while he would have to keep a general lookout in his peripheral vision, any pilot would be focussed on the instruments and the runway as he comes into land. Thirdly, there was a pleading that Dr Alterator failed to avoid the kangaroo on the runway or in its immediate vicinity. I find that this fails on the facts. I accept Dr Alterator when he says that he braked heavily and tried to swerve to avoid the kangaroo. There was nothing else he could have done, given that he was in the middle of landing an aircraft at the time. Fourthly, it is pleaded that there was contributory negligence in failing to check the runway and its immediate vicinity before attempting to land the aircraft. This fails on the facts as I find that Dr Alterator did appropriately check the runway, as he said he was required to do for every landing. Fifthly, it was pleaded that there was contributory negligence in the pilot failing to have regard to the ERSA for Kempsey Aerodrome. Sixthly, it was pleaded that there was contributory negligence in failing to have regard to the standing caution issued by the ERSA for the Kempsey Aerodrome. Both of these fail on the facts. Dr Alterator did check the ERSA and did note that it said that there was a kangaroo hazard at Kempsey Aerodrome. However that benign phrase did not convey, as it should have, anything about the “dangerous” risk at the aerodrome, to use the defendant’s own words. Seventhly and finally, it was pleaded that there was contributory negligence in failing to make contact with the defendant or the ARO or Macleay Airport Maintenance Pty Limited prior to attempting to land. I find that this fails on the facts. True it is that there was a phone number for the defendant on the ERSA and a mobile phone number which would have connected to one of the AROs. However, Mr Baker gave evidence in his affidavit that the defendant did not have the funds to send an ARO out to the airport for just any landing. The defendant only provided that service for the Air Ambulance and the RFDS. In any event, I find that the mere provision of telephone numbers on the ERSA, without more, would not suggest to a pilot that he could ring ahead to have a roo run performed (even though this was not available on the evidence of Mr Baker). The NOTAM would have had to be more specific about the purposes for which a pilot might call ahead on the telephone numbers. As for the notion that the pilot could call ahead to Macleay Aircraft Maintenance Pty Limited and request a report on the kangaroos, the operator of that business was not employed by the defendant to perform the duties of an ARO, and there was no evidence that the aircraft mechanic would have been happy to leave his paid work to drive up and down the runway trying to spot kangaroos and chase them away. I regard that notion as completely unrealistic. I accept the submission of the plaintiff that there was no evidence at all called by the defendant as to what an expert pilot would have done and no evidence called to demonstrate that Dr Alterator acted in anything other than the manner required of a prudent and reasonable pilot. I therefore find that there was no contributory negligence. Damages will not be reduced.

DAMAGES

No issue was raised about the quantum of damages. The cost repairing the aircraft was $157,295.85. The storage fees were $3,900. The total damages claimed by the plaintiff were thus $161,195.85. The plaintiff made a claim for interest. I will allow interest at the prescribed court rates. The table below sets out the calculation of interest which totals $34,657.66:

Start Date End Date Days Rate Amount Per Day Total 25/Feb/2014 30/Jun/2014 126 6.5% $28.7061 $3616.97 01/Jul/2014 31/Dec/2014 184 6.5% $28.7061 $5281.92 01/Jan/2015 30/Jun/2015 181 6.5% $28.7061 $5195.81 01/Jul/2015 31/Dec/2015 184 6% $26.4979 $4875.62 01/Jan/2016 30/Jun/2016 182 6% $26.4255 $4809.45 01/Jul/2016 31/Dec/2016 184 5.75% $25.3245 $4659.71 01/Jan/2017 30/Jun/2017 181 5.5% $24.2898 $4396.45 01/Jul/2017 13/Sep/2017 75 5.5% $24.2898 $1821.73 Total 1297 $34657.66

There will thus be judgment for the plaintiff for $195,853.51.

CONCLUSION

I find that the defendant is liable to the plaintiff. My orders are:

Judgment for the plaintiff against the defendant for $195,853.51. Order the defendant to pay the plaintiff’s costs. Grant liberty to apply to my Associate if any different costs order is sought by either party.

AMENDED ORDERS MADE IN CHAMBERS ON 28 SEPTEMBER 2017 AT THE REQUEST OF THE PARTIES

1. By consent, vacate Order 1 made on 13 September 2017, pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005.

2. By consent and in lieu of the judgment entered on 13 September 2017, judgment for the plaintiff against the defendant for $186,040.60.

3. Note that the parties have agreed that the substitute judgment is made up of:

damages of $153,119.40 and interest of $32,921.20.

4. By consent, vacate Order 2 made on 13 September 2017. In lieu thereof Order the defendant to pay the plaintiff’s costs, on an ordinary basis up to and including 18 May 2017 and on an indemnity basis from 19 May 2017.

5. By consent, make the following additional order in relation to costs:

X – equals the total amount of costs and disbursements which the Plaintiff has paid or is liable to pay its legal advisers in connection with these proceedings.

Y – equals the total amount of costs and disbursements allowed on assessment to the Plaintiff in connection with these proceedings.

The Allowed Percentage equals (y/x x 100)%

Order the Defendant to pay to the Plaintiff interest on costs and disbursements, at the rates set out in Rule 36.7 of the Uniform Civil Procedure Rules, on the Allowed Percentage of each amount of costs and disbursements actually paid by the Plaintiff, in accordance with section 101 of the Civil Procedure Act, 2005 (NSW).

6. By consent, grant liberty to the plaintiff to apply upon 3 days notice to the defendant for an order for payment of a specific amount in respect of the interest awarded upon costs above.

7. By consent, the Judgment and any further orders made in relation to costs be stayed up to and including the date upon which the latest of the following occurs:

(a) Expiration of any Notice of Intention to Appeal filed by the Defendant;

(b) Determination of any Appeal filed by the Defendant;

(c) Until such time as any Appeal filed by the Defendant is resolved.

8. Note that the defendant undertakes to prosecute any Appeal with due diligence.

9. By consent, if necessary the Plaintiff is entitled to proceed with an application to seek a variation to Order 2 made on 13 September 2017 in relation to costs.

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Amendments

28 September 2017 - Final Orders amended at the request of the parties

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