Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council

of the City of Greater Taree v Wells [2010] NSWCA 147 Council of the Shire of Wyong v Shirt (1979-1980) 146 CLR 40; [1980] HCA 12 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1; [1999] HCA 59 Donoghue v Stevenson [1932] AC 562 Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 31 Graham v Baker (1961) 106 CLR 340; [1961] HCA 48 Home Office v Dorset Yacht Co Ltd [1970] AC 1004 Husher v Husher (1999) 197 CLR 138; [1999] HCA 47 Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20 Mead v Kerney [2012] NSWCA 215 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254; [2000] HCA 61 New South Wales v Fahy (2007) 232 CLR 486; [2007] HCA 20 Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492; [1985] HCA 34 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rylands v Fletcher (1868) LR 3 HL 330 Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208 Shaw v Shaw (1954) 2 QB 429 South Western Sydney Local Health District v Sorbello [2017] NSWCA 201 State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 Van Velzen v Wagenerhan (1975) 10 SASR 549 Wallace v Kam [2012] NSWCA 82 Watts v Rake (1960) 108 CLR 158; [1960] HCA 58 Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; [1980] HCA 12 Texts Cited: Civil Aviation Advisory Publication 92-1(1) Category: Principal judgment Parties: 2015/199567 Amber Christine Arndell by her tutor Kathy-Lee Arndell (Plaintiff) Old Bar Beach Festival Incorporated (First Defendant) Mid-Coast Council (Second Defendant) Paul Clarendon Cox (Third Defendant/Cross-Defendant) Mid-Coast Council (Cross-Claimant)

2014/286417 Paul Clarendon Cox (Plaintiff) Mid-Coast Council (First Defendant/Third Cross-Defendant) Old Bar Beach Festival Incorporated (Fourth Defendant/Cross-Claimant) Arthur Armour (First Cross-Defendant) Old Bar Heritage Airport Management Committee (Second Cross-Defendant) Representation: Counsel: 2015/199567 R McIllwaine SC/J Davidson (Plaintiff) R Sheldon SC/A Barnett (Second Defendant) D Mockler (Solicitor) (Third Defendant/Cross-Defendant)

2014/286417 R Royle/J Harrison (Plaintiff) R Sheldon SC/A Barnett (First Defendant/Third Cross-Defendant)

Solicitors: 2015/199567 Stacks Law Firm (Plaintiff) Hicksons Lawyers (First Defendant) Mills Oakley (Second Defendant) Stewart Cuddy & Mockler (Third Defendant/Cross-Defendant)

2014/286417 Stewart Cuddy & Mockler (Plaintiff) Mills Oakley (First Defendant/Third Cross-Defendant) Hicksons Lawyers (Fourth Defendant/Cross-Claimant) Mid-Coast Council (Third Cross-Defendant) File Number(s): 2015/199567; 2014/286417

Judgment

1. HIS HONOUR: Before the Court for judgment are two proceedings claiming damages in negligence. Amber Christine Arndell (hereinafter "the plaintiff") sues, through her tutor Kathy-Lee Arndell, the plaintiff's mother, both Mid-Coast Council (hereinafter "the Council", formerly known as Greater Taree City Council) and Paul Clarendon Cox (hereinafter "the Pilot"). The other proceedings are proceedings in which the Pilot sues the Council, also in negligence.
2. On 1 October 2011, the Pilot was flying a light aircraft which collided with a Ferris wheel, located at the annual Old Bar Festival at Old Bar, NSW (hereinafter "the Festival"). The plaintiff was seated, with her younger brother, in a gondola on the Ferris wheel. The claims in negligence arise out of injuries said to have been sustained as a consequence of that collision.
3. The Old Bar Airstrip (hereinafter "the Airstrip"), at Old Bar, is operated by the Council through a committee known as the Old Bar Heritage Airport Management Committee (hereinafter "the Airstrip Committee") for which the Council is responsible. In April 2011, the Festival organisers applied to the Council to use the Council Park and Reserve for the Festival to be held on 1 and 2 October 2011. The Festival organisers applied to the Council to use the land adjacent to the airstrip, which included sporting fields, parks, gardens and the like.
4. Further, the operator of the Ferris wheel made an application to Council to operate the Ferris wheel at the Festival. [1] While the Council has admitted that the application to operate the Ferris wheel was to have been accompanied by a site plan indicating the precise location of the Ferris wheel, that site plan has not been produced.
5. Further again, a Council Officer, Mr Joshua Smith, inspected the Ferris wheel after it had been erected and before the Festival commenced. [2] Mr Smith did not require the Ferris wheel to be moved, if he were to have had the power so to do. The President of the Airstrip Committee, Mr Neville French, observed the Ferris wheel in its location prior to the collision. [3]
6. There are a number of issues in the proceedings, some of them less significant than others. The most significant issues seem to be the relative, if any, negligence of the Council and the Pilot. That relative culpability affects the damages, if any, to be awarded to the plaintiff. The relative negligence, if any, of the Council and of the Pilot, obviously, affects the damage, if any, to be awarded in the proceedings commenced by the Pilot alleging the negligence of the Council.

Evidence on Liability: General

1. The actual incident, being the collision between the aeroplane and the Ferris wheel, is relatively uncontroversial in terms of the evidence and easily recounted. The controversy surrounds the circumstances of the attempt at landing the aircraft and the placement of the Ferris wheel.
2. The Pilot flew from Taree Airport to the Airstrip. The aircraft was a Morgan Aero Works Sierra 200 Aircraft. The flight from Taree Airport to the Airstrip is approximately six minutes and the Pilot had a passenger, being the Pilot's son-in-law, John Rowan. The Pilot sought to land the aircraft from the north of the Airstrip and undertook, on the first attempt, a deliberate "touch and go" ("the first touch and go"), an activity in which the aircraft touches down on the runway momentarily and then immediately takes off, for the purpose of assessing the landing strip. This first touch and go was completed successfully.
3. On the second approach, again from the north, the Pilot intended to land the aircraft, but did not. Instead, the Pilot took off again; veered slightly to the left and impacted the upper-right quadrant of the Ferris wheel ("the second touch and go").
4. Exhibit C in the proceeding is a photograph taken during the rescue of the plaintiff and her brother, which depicts the upper part of the Ferris wheel and the relationship between the aircraft and the gondola in which the plaintiff was located. The Pilot and his son-in-law can be seen sitting in the aircraft, which is lodged precariously in the Ferris wheel. The second touch and go is captured in a video taken on the plaintiff's mobile telephone, which is Exhibit D in the proceedings.
5. While the video, Exhibit D, was not recorded for the purpose of recording an accident, as the aeroplane captured in it moved closer to the Ferris wheel, the recording of the events must have been increasingly frightening. The video shows the mechanism by which the aeroplane collided with the Ferris wheel, but liability depends less on the mechanism of the accident than on the responsibility for the decisions that led to it occurring.
6. It is necessary to deal with the relationship between the Airstrip Committee and the Council; the responsibility of the Council for the location of the Ferris wheel; the location of the Ferris wheel and its position relative to the Airstrip; and certain issues touching on the precautions taken prior to seeking to land the aircraft and the decision as to the direction from which to land.

The location of the Ferris wheel

1. There are a number of photographs that depict the Ferris wheel after the accident. There is no evidence that precisely pinpoints the location of the Ferris wheel by measurement or description. Exhibit J, which is a survey of the Airstrip and areas around the Airstrip, is a survey of the general area, taken at a time when the Ferris wheel was no longer in situ.
2. The Court conducted a view of the area, which is an important aspect in understanding the relative positioning of the relevant items. This is even more the case in circumstances where the Court must determine the location of the Ferris wheel from photographs and other imprecise indications.
3. The Ferris wheel was located, as is clear from the photographs, [4] at the south-eastern corner of the intersection of Third Avenue and Old Bar Road in Old Bar. The photographs depict the Ferris wheel near Third Avenue and between Third Avenue and the adjacent building, close to where the Court and the parties viewed the monument, located at the corner of Old Bar Road and Third Avenue.
4. Objection was taken to the use of Exhibit J to depict the location of the Ferris wheel, because the author only estimated the location of the Ferris wheel from the photographs, which, it was said, was a matter for the Court. Exhibit J was tendered, with a qualification, pursuant to s 136 of the Evidence Act 1995 (NSW), that it was not to be used to pinpoint the location of the Ferris wheel.
5. Notwithstanding the inability to use Exhibit J to pinpoint the location of the Ferris wheel, the photographs, otherwise in evidence, and which are utilised in the Report, and the other material in Exhibit J allow the Court to determine, on the balance of probabilities, that the centre of the Ferris wheel was located: north-west of the smaller tree to the west of the brick building; north-east of the monument; and south of the southern kerb of Third Avenue. It is clear that it was located before the bend in the road in Third Avenue and its extremities overhung roadway on Old Bar Road.
6. Further, the plane in which the wheel is turning seems, on the photographic evidence, to be approximately east-west. This can be seen from collision photograph 1 at p 42 of Exhibit J, which is a photograph taken facing north-east along Third Avenue.
7. The location of the Ferris wheel is, as a matter of certainty, adjacent to the corner of Old Bar Road and Third Avenue, east of the Old Bar Road part of the southern corner and south of the curb on Third Avenue. Based upon the location of the monument, the tree and the brick building, the Ferris wheel was, more probably than not, at about the location depicted at p 51 of Exhibit J.

1. The foregoing conclusions are accepted by the Court as, more probably than not, that which arises from the evidence. The next issue with which the Court is required to deal, before dealing with the conclusions as to liability, is the expert conclave on liability and the evidence of the Pilot as to the events of the day. Included in that analysis must be the issues of weather conditions that were said to prevail immediately before or at the time of the accident.

The Second Touch and Go

1. The Airstrip was an Aeroplane Landing Area ("ALA"). It was not an aerodrome. Nor was it monitored or staffed by aircraft traffic control personnel or, for that matter, ground staff. As a consequence of its status as an ALA and the condition of the Airstrip as an unattended grass strip, there were certain obvious requirements in relation to its use.
2. As already stated, and as is uncontroversial in these proceedings, the Council had a subcommittee, the Airstrip Committee, which operated the Airstrip. The terms of the delegation to the Airstrip Committee are before the Court. There is some controversy as to the application of one or other of the regulations to the operators of the Airstrip, as distinct from the application of the regulations to a pilot. First, it is necessary to deal with that which occurred on 1 October 2011, and immediately before that date.
3. As earlier stated, an application was made by the Old Bar Festival for the conduct of its annual Festival on Council land at Old Bar. The Council land is adjacent to the Airstrip. For the purpose of the conduct of the Festival, there were a number of meetings of the Airstrip Committee relating to the use of the Airstrip as part of the Festival activities. 2011, the year that this incident occurred, was the 80th anniversary of the Airstrip.
4. The Airstrip had some historical significance. First, it was a stop off for the first aircraft flights from Sydney to Brisbane. Secondly, it had a role during the war, each of which was to be highlighted as part of the 80th anniversary festivities.
5. The Festival had been conducted in prior years. The two years prior to 2011, when the Festival was being conducted, the Airstrip was closed to air traffic.
6. It is necessary to point out some of the history of the Pilot. He was born in January 1958 and was, at the date of the incident, 53 years of age. The Pilot was a motor mechanic by training and had worked in an upholstery business. In 1986/87, he commenced flying lessons and did approximately 25 hours and completed his first solo flight. On account of financial issues, the Pilot did not complete the lessons or his training.
7. In or about 1984, the Pilot moved to the Central Coast and, sometime later, in April 2006, purchased a motel, the All Seasons Country Lodge, in Taree with his partner. In 2008, the Pilot's mother died and the Pilot was prescribed antidepressant medication, Zoloft and sleeping tablets. The medication with Zoloft ceased in or about March 2009.

Responsibility for the location of the Ferris wheel

1. Initially, the plaintiff sued the Old Bar Beach Festival Incorporated as the first defendant. The proceedings against the Old Bar Beach Festival Incorporated were resolved and there are no current proceedings before the Court relating to the organisers of the Festival.
2. No party suggests that any liability, for which either the second or the third defendant, being the Council or the Pilot, is responsible, is, if there be liability, affected, adversely or otherwise, by any liability of the Old Bar Beach Festival Incorporated. Nor does either of the remaining defendants, the Council or the Pilot, submit that any contribution to any damages is to be considered in relation to the liability, if any, of the Old Bar Beach Festival Incorporated.
3. The Pilot has no responsibility for the placing of the Ferris wheel. Nor does the Pilot have any responsibility for the continued use of the Airstrip or its operations, other than the decision that he would use it to land.
4. By its pleadings, the Council accepts its status as a body politic pursuant to the terms of s 220 of the Local Government Act 1993 (NSW). The Council also accepts that it had the care, control and management of the Airstrip; and that it was an Aeroplane Landing Area ("ALA").
5. It is also admitted in these proceedings that the Council established the Airstrip Committee, formally known as the Old Bar Heritage Airport Management Committee, under the provisions of s 355 of the Local Government Act and through the Airstrip Committee, the Council exercised its care, control and management of the Airstrip. The Airstrip Committee was, for all relevant purposes, part of the Council's body politic pursuant to s 220 of the Local Government Act.
6. Further to the foregoing admissions, the Festival was conducted on public land, controlled by Council, on 1 and 2 October 2011, and that land was adjacent to the Airstrip. The Council's permission was required and given to use the land on which the Festival was to be conducted and the Council was aware that the Airstrip was, during the period 1 and 2 October 2011, to be used for landing and take-off by aircraft, during the Festival.
7. Each of the foregoing admissions is made on the pleadings by Council. Evidence was adduced by the Council from members of the Airstrip Committee and, particularly, the President of the Airstrip Committee, Mr Neville French, who gave evidence in the proceedings. Mr French gave evidence of the delegation and his awareness of it and referred to the appointment of the Airstrip Committee and the Civil Aviation Advisory Publication 92-1(1) (hereinafter "CAAP 92-1").

Statutory context

1. The second defendant, Mid-Coast Council, in these reasons referred to as the Council, is constituted pursuant to the terms of s 219 of the Local Government Act and is a body politic of the State with perpetual succession and the legal capacity and powers of an individual. [14] While it is expressly stated, notwithstanding the foregoing, that the Council is not a body corporate, for present purposes, that aspect matters little and the Council is bound by the laws of the State; does not have Crown immunity; and can be sued by the plaintiff and the Pilot.
2. The operation of the Council is governed, at least in part, by the terms of the Local Government Act and the Local Government Regulations. It is conceded in these proceedings that the Council had the care, control and management of the Airstrip.
3. Further, as already stated, the Festival was conducted on community land adjacent to the Airstrip, part of which was classified as a sportsground. The Council was aware that the Festival was to be conducted and the Council granted approval both for the conduct of the Festival and the operation, use and location of the Ferris wheel. With the exception of the preceding comment as to the approval of the location of the Ferris wheel, the foregoing comments are uncontroversial.
4. An employee of Council, as already stated, inspected the Ferris wheel and the Council imposed no condition relating to the re-location of the Ferris wheel or the initial location of the Ferris wheel, either as part of the approval process for the conduct of the Festival or the approval process for the operation of the Ferris wheel.
5. By operation of s 223 of the Local Government Act, the role of the governing body of the Council, which is defined as its elected representatives by s 222 of the Local Government Act, is prescribed. There are a number of subparagraphs all of which are operative and binding on the Council. The role includes: making decisions necessary for the proper exercise of the Council's regulatory function; and acting honestly, efficiently and appropriately.
6. The Local Government Act applies to the area of land over which the Council has responsibility. The Council is required, in the course of its planning, to manage risks to the local community or area or to the Council and to manage them effectively and proactively.

The existence of a duty of care

1. It is easier to deal with the liability of the Pilot. The Pilot in performing the functions of flying the aircraft, including landing and taking off, and, in particular, in performing the first and second touch and go, owed a duty of care to those who could foreseeably be injured by a failure to take reasonable care in the performance of those acts. The class of persons covered by such a duty would be other pilots, and the passengers of other aircraft, the passenger of the Pilot's aircraft, and persons in the vicinity of the Airstrip that that may be harmed by an impact caused by the Pilot's lack of due care. Later in these reasons, I will deal with the foreseeability of psychiatric injury, as a separate issue.
2. Notwithstanding the obvious differences, the duty owed by a pilot, in flying an aircraft, is the same duty that is owed by a driver of a motor vehicle. The duties and any liability associated with a lack of due care by the Pilot are governed by the terms of the Civil Liability Act. So too are any duties imposed upon the Council. However, the determination of whether the Council has a duty of care is less straightforward.
3. As with the imposition of any duty of care, that the injury or harm may be reasonably foreseeable is a necessary condition, but it is not sufficient. Liability in negligence, particularly in relation to statutory authorities such as the Council, is not sheeted home for every reasonably foreseeable injury caused by an act or omission of the Council. Whether there exists a duty of care in the Council for the injuries sustained by either the Pilot or the plaintiff is a matter with which the Court will now deal.

Is there a duty owed by the Council?

1. The starting point for the determination of a duty of care would, ordinarily, be the matrix or calculus derived from the reasons for judgment of the High Court in the Council of the Shire of Wyong v Shirt [16] (hereinafter "Shirt"). The facts in Shirt are well-known and relate to the erection of the sign referring to "DEEP WATER", which was ambiguous as to which part of the water was deep and, as a result of which, an inexperienced water skier fell and suffered severe physical injury.
2. As described, prima facie, a duty of care arises when there exists between the defendant, who is said to owe it, and the plaintiff to whom it is said to be owed, a sufficient relationship of proximity, such that a reasonable person in the position of the defendant would foresee that carelessness would be likely to cause damage. [17] Whether there is proximity, is a conclusion; not a test.
3. Nevertheless, Shirt was concerned more with the issue of a breach of the duty of care, rather than its existence; and the question of foreseeability, when being utilised in relation to the issue of damages or the risk of injury, is a different concept from that which is applied when dealing with the existence of a duty of care and, in particular, the issue of proximity.
4. Confining my comments, for the present, to the issue of the existence of a duty of care under common law, it is appropriate to deal with, next, the judgment of the High Court in Modbury Triangle Shopping Centre Pty Ltd v Anzil [18] . They were proceedings in which it was alleged that the owner and occupier of a shopping centre breached the duty of care owed to the plaintiff by failing to light adequately a car park, which was the place at which the plaintiff was injured by an attack from three persons acting criminally.
5. The High Court considered that the occupier of the land did not owe a duty that extended to taking reasonable care to prevent physical injury that resulted from the criminal behaviour of third parties on the land. Of importance to the proceedings before the Court currently, is the comment of Gleeson CJ in Modbury, where his Honour said: "Most actions in tort which come before trial courts arise out of relationships in which the existence of a duty of care is well established, and the nature of the duty well understood. Cases arising out of the use of a motor vehicle, or involving employer and employee, or bailor and bailee, turn upon the application to the facts of well settled principles concerning legal responsibility. References to duty of care, breach of duty, and causation provide convenient sub‑headings for a judgment, but in many cases the concepts require no further analysis. In other cases, of which the present is an example, there is a real issue as to the scope of legal responsibility. Such an issue cannot then be resolved by a detailed recitation of the facts, the repetition of the standard rubrics under which discussion of the tort of negligence is commonly organised, and an appeal to common sense. I do not suggest that is what occurred in the present case. The learned judges identified and addressed the problem that arose, although, as will appear, I disagree with the conclusion they reached. A recitation of facts may not be useful unless it distinguishes between facts essential to the cause of action, particulars, and evidence. Modern pleadings take a form which often blurs such distinctions. The rubrics under which issues are organised for discussion may do little to assist the resolution of those issues. Common sense is important, but it is not a substitute for legal analysis when that is required." [19]

Civil Liability Act 2002 (NSW)

1. One of the reasons that it was necessary for the Court to analyse the principles associated with the existence of a common law duty of care, notwithstanding the promulgation of the Civil Liability Act, is that the Civil Liability Act presupposes the existence of a duty of care and does not prescribe the basis upon which such a duty of care will be held to exist. Rather, where, under the common law, a duty of care may exist, the Civil Liability Act qualifies whether harm caused by any breach of such a duty of care is actionable and in what circumstances.
2. A number of general comments need to be noted. First, harm, where used in the Civil Liability Act, includes personal injury which, in turn, includes impairment of mental condition; and "negligence" means any failure to exercise reasonable care and skill.
3. The provisions of s 5B of the Civil Liability Act provide for circumstances where negligence continues to apply. It does so by rendering all persons not negligent in failing to take precautions against the risk of injury or harm unless the following applies: the risk was foreseeable, by which the provision makes clear it has to be a risk which the person knew or ought to have known; the risk was not insignificant; and a reasonable person in the position of the defendant would have taken those precautions. [37]
4. The last mentioned condition precedent, being whether a reasonable person would have taken those precautions, is required to be assessed after consideration of the probability that the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking the precautions to avoid the risk of harm; and the social utility of the activity that creates the risk.
5. In determining liability for negligence, the provisions of s 5C of the Civil Liability Act apply and require the Court to factor into the burden of taking precautions to avoid risk, the proposition that the burden includes the burden of taking precautions to avoid similar risks for which the Council would be responsible. In so doing, the Court is prohibited from taking into account any subsequent action that, if it were to have been taken, would have avoided the risk of harm, unless that was, beforehand, foreseeable. Subsequent conduct cannot, of itself, constitute an admission of liability. [38] Nor does the fact that the risk of harm could have been avoided by doing something differently, of itself, give rise to or affect liability. [39]

Dangerous recreational activity

1. As has already been stated, the Pilot was flying a Morgan Aeroworks Sierra 200 aircraft and was doing so at the request of the owner, who had, in turn, been requested to participate in the static air display at the Airstrip. The Pilot was licensed to fly the aircraft and held a "recreational licence".
2. The fact that the Pilot held a "recreational" licence does not, of itself, determine whether the activity upon which the Pilot was engaged was a recreational activity. Nevertheless, it is a factor to be weighed in the determination of that question.
3. Secondly, and more importantly, the circumstances of the flight were that, plainly, on the material before the Court, the activity was engaged in as a favour to Mr Morgan and for the Pilot's enjoyment and leisure. The Court, as presently constituted, is prepared to accept that the activity in which the Pilot was engaged may not have been a sport nor, despite the public nature of the Airstrip, engaged at a place where people ordinarily engaged in sport or activity for enjoyment, relaxation or leisure. The latter aspect is less obvious.
4. Given the nature of the Airstrip as an ALA, used overwhelmingly for recreational flying of light aircraft, the Airstrip may well be a place in which people ordinarily engage in a pursuit or activity for enjoyment, relaxation or leisure. [50] Whatever be the proper classification of the Airstrip in terms of para (c) of the definition of recreational activity, in my view, the pursuit or activity engaged in by the Pilot was for his enjoyment, relaxation or leisure.
5. I note that the passenger was not a paying passenger, to the extent that that may be relevant. Nor was the Pilot paid for flying the plane. Of significance is that s 5L of the Civil Liability Act excludes liability in negligence as a result of the materialisation of an obvious risk of a dangerous recreational activity, but the provisions of Div 4, which define the term obvious risk, differentiate between an obvious risk and an inherent risk. As Tobias JA makes clear in Vairy, [51] a danger may be both inherent and obvious.
6. Even though it is essential, in determining liability in negligence, to put oneself in a position where one is assessing foreseeability and other matters other than in retrospect, it is informative, in the case of flying and the risk of collision with an obstruction at the end of a runway, to hypothesise about the need for a warning. Leaving aside the recreational activity aspect, would there be any utility in placing a warning sign at the end of an airstrip, warning against possible obstructions during take-off?

Council's duty to the plaintiff, Amber Arndell

1. Thus far, the Court has recited the terms of CAAP 92-1(1), without significant comment. It is said in relation to that publication, that the publication and guidelines do not impose a duty upon the Council. Such a statement is correct.
2. However, as already commented, the plaintiff's claim against the Council is not based upon a breach of statutory duty. It is framed in negligence and requires, subject to the operation of ss 43A and 44 of the Civil Liability Act, the plaintiff to establish, on the balance of probabilities, that there exists a duty of care and that it has been breached. Further, the duty of care has to encompass a foreseeable risk of harm, being harm of a psychiatric injury or mental harm.
3. The Court has already recited the Committee Appointment and the terms of the delegation. It is unnecessary to reiterate them.
4. The terms of the delegation, as already noted, require the Airstrip Committee to undertake and document a review of take-off and landing distances available, obstructions within the approach and take-off areas and other obstructions. [55] Further, the delegation requires that the Airstrip Committee maintain "in a safe serviceable condition" a number of areas, which expressly includes the flyover areas, and requires the Airstrip Committee to close the Airstrip if there be "any aspect … unsafe to either aircraft or the public generally". [56] The flyover area is not part of the fenced Airstrip.
5. The notes to the delegation emphasise rather than detract from that responsibility. As was pointed out during the course of the proceedings, there are structures at the Old Bar Park, specifically the fencing and lighting towers, which infringe the lateral transitional slope recommended in CAAP 92-1(1) and para [1] of the notes to the delegation specifically excludes those aspects (the fencing and lighting towers) from the requirement of the Airstrip Committee to implement the recommended standard in CAAP 92-1(1). Similarly, the express reference to the existence of vegetation, particularised as trees that may inhibit or preclude the use of the ALA, informs the Airstrip Committee that it may need to seek various approvals to reduce and remove the vegetation affecting the serviceability of the Airstrip.
6. It is clear, from the terms of the delegation, that Council was aware of the terms of CAAP 92-1(1); had instructed its committee, the Airstrip Committee, to close the Airstrip if the "flyover areas" were not in a safe serviceable condition; that the risk of a lack of safety was to aircraft and the public generally; and the ambit of the "splay" derived from the application of CAAP 92-1(1). Indeed, the Council had such an awareness at a time when it was also aware of the precise location of the Ferris wheel.

Damages

1. It is necessary to assess the damages payable in order to formulate the basis upon which judgment will be entered. As a consequence of the foregoing, the damages payable by the Council to the Pilot is a theoretical exercise, undertaken on account only of the possibility of a successful appeal by the Pilot.
2. In respect to the alleged damage suffered, as a consequence of the collision, by each of the plaintiff and the Pilot, it is necessary, first, to assess the nature of the injury and its effects; the loss, if any, of earning capacity; and to derive from those assessments the appropriate basis for the determination of damages.
3. Neither the plaintiff nor the Pilot submits that there was compensable physical injury suffered as a consequence of the collision. The injury to each of them is said to be psychiatric. It is necessary to deal with the evidence in relation to each. For the reasons already described, namely, its theoretical effect, the analysis in relation to the Pilot will be in more summary form than might otherwise have been the case.

The Pilot's injury

1. Before dealing with the detailed situation of the Pilot, it is necessary to deal with an issue of principle in the assessment of damages, which issue of principle applies far more generally than only to the Pilot. As has been pointed out in various authorities, the purpose of damages is to seek to place the party who has been injured, or who has otherwise suffered, in the same position as that party would have been in if he or she had not sustained the injury which is being compensated. [72]
2. The High Court, in Husher v Husher, [73] continued and commented that where, as is the situation in most cases of personal injury, a victim's gainful employment has been interrupted by the negligent infliction of physical injury, that victim is to be compensated by an amount that reflects the financial consequences that follow from the impairment. The Court then dealt with the principles previously discussed by the Court in Graham v Baker [74] and their Honours said: "[7] Since at least Graham v Baker it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'. But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what sum will put the plaintiff in the same position as he or she would have been in if injury had not been sustained." [75] (Footnotes omitted.)
3. As has been emphasised on many occasions, particularly in the judgments of McHugh J in the Court of Appeal and in the High Court, the compensation is a compensation for loss of the capacity to earn income which has brought about financial loss. The pre-injury income is relevant to assessing the loss of earning capacity, because it renders more probable the assessment of that earning capacity with a degree of precision that, otherwise, may be unavailable.
4. In the case of the Pilot, there is no issue that the Pilot suffered injury as a consequence of the collision. So much is clear from the medical reports of Dr Anne-Marie Rees, the opinion of whom I accept. The latest of those reports, dated 19 May 2017 deals, again, with the Pilot's personal details; and then with the alterations if any from the previous assessment, his current functioning and his medication. In her summary, Dr Rees said: "It was my opinion previously that this [a reference to acute stress reaction to the plane crash the subject of these proceedings] had developed into a Post-Traumatic Stress Disorder which would meet criteria in the DSM-5 whereby he felt intense fear for his life related to the traumatic experience. There were also re-experiencing phenomena and hypervigilance, mood issues, avoidance problems. He also had a specific phobia related to sharp objects which had resulted from the accident as well. I diagnosed him with major depressive disorder also related currently to the anxiety and Post Stress Disorder but also because of all the stress related to counsel regarding the Ferris wheel crash. I would uphold all these diagnoses still. … [I]n my opinion, given his presentation currently, his condition is much more severe than an Adjustment Disorder. He still has significant symptoms of post-traumatic stress. He meets criterion A under DSM-5 as he always has done related to the nature of the trauma whereby he could have died or killed his son in law or killed the children that were on the Ferris wheel. He also has other symptoms of Post-Traumatic Stress Disorder ongoing with re-experiencing phenomena related to nightmares and flashbacks. He is on the edge and hypervigilant particularly when triggered by multiple associated issues and is significantly avoidant in order to minimise his anxiety which otherwise would present with frequent panic attacks.… He continues to have a Major Depressive Disorder which is of chronic type… He is on high doses of antidepressants as well as sleeping medications now to manage these disorders and he is under the care of a psychiatrist, Dr Koller."

In matter 2015/199567, Arndell v Mid-Coast Council and Ors: 1. Judgment for the plaintiff. 2. The second defendant, Mid-Coast Council, shall pay the plaintiff, Amber Christine Arndell, damages in the sum of $1,513,023.30. 3. Judgment on the cross-claim for the cross-claimant. 4. Pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), the cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, by payment to the cross-claimant, Mid-Coast Council, 35% of the aforesaid damages, being an amount of $529,558.16. 5. Interest shall be payable on all amounts from the date of judgment in accordance with the prescribed rate and shall be payable by the second defendant to the plaintiff and by the cross-defendant to the cross-claimant respectively. 6. The second defendant, Mid-Coast Council, shall pay the plaintiff's costs of and incidental to the proceedings on the following bases: 1. on and from 20 December 2017, on an indemnity basis; 2. otherwise, costs, prior thereto, if any, on an ordinary basis. 1. The cross-defendant, Paul Clarendon Cox, shall indemnify and/or contribute, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), 35% of the costs assessed and/or agreed, payable pursuant to the immediately preceding order. 2. Leave is granted to any party to approach for the purposes of correcting any arithmetic or mechanical error in the foregoing calculations or the accidental omission of a head of damage.

In matter number 2014/286417, Paul Clarendon Cox v Mid-Coast Council and Ors: 1. Judgment for the defendants. 2. The plaintiff shall pay the defendants' costs of and incidental to the proceedings. 3. Otherwise, the proceedings are dismissed.

Endnotes

1. Exhibit H.
2. Exhibit K and Exhibit 6.
3. Exhibit U.
4. There are a number of photographs in different exhibits but the clearest are in Exhibit L, some of which are reproduced in Exhibit J. Also Exhibit C (photo 62) depicts the airstrip from the Ferris wheel structure and shows Third Avenue through the structure and past the aircraft.
5. See also Ex J, p.26, collision photo 5.
6. A visual representation of the lateral and vertical aspects of the term "splay" can be seen at [39], below. The lateral aspect of the splay is often referred to as the "lateral transitional slope".
7. Exhibit J, p 37.
8. Exhibits 3, 4 and 5 respectively.
9. Tcpt, p 296(30-47).
10. Tcpt, p 517(6-9).
11. Tcpt, p 540(20-27).
12. See Exhibit H, Application to Operate an Amusement Device.
13. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54 especially at [78] - [79] and [84], per McHugh J, and at [148] - [149], per Gummow and Hayne JJ.
14. Local Government Act, s 220.
15. Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540; [2002] HCA 54.
16. (1979-1980) 146 CLR 40; [1980] HCA 12.
17. Wyong Shire Council v Shirt (1979-1980) 146 CLR 40; [1980] HCA 12 at 44, [1], per Mason J, citing Donoghue v Stevenson [1932] AC 562 at 580; Home Office v Dorset Yacht Co Ltd [1970] AC 1004 at 1027, 1034, 1054 and 1060.
18. (2000) 205 CLR 254; [2000] HCA 61.
19. Modbury Triangle, supra, at [13].
20. Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 14.7; Shaw v Shaw (1954) 2 QB 429 at 441; Kirby v Sanderson Motors Pty Ltd (2002) 54 NSWLR 135; [2002] NSWCA 44.
21. Modbury Triangle, supra, at [109], per Hayne J.
22. Modbury Triangle, supra, at [111].
23. (1868) LR 3 HL 330.
24. Modbury Triangle at [112], per Hayne J.
25. Graham Barclay Oysters, supra.
26. Graham Barclay Oysters Pty Ltd v Ryan, supra, at [134] per Gummow and Hayne JJ.
27. Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62 (hereinafter "Vairy").

Amendments 15 December 2020 - Costs orders amended on 15 December 2020. Order (6) subsequently varied. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2020