Echin v Southern Tablelands Gliding Club Incorporated and Civil Aviation Safety Authority

Judgment 1HER HONOUR: Malcolm Echin sustained personal injuries when a glider he was piloting collided with high-tension electricity wires on the approach to a runway. At the time of the accident Mr Echin was a member of the Southern Tablelands Gliding Club and was attempting to land on its property. By these proceedings Mr Echin claims damages for negligence from the Club as first defendant. Mr Echin has also sued the Civil Aviation Safety Authority as second defendant. 2This judgment determines an application by the Civil Aviation Safety Authority to have the proceedings against it dismissed under rule 13.4(1)(b) of the Uniform Civil Procedure Rules 2005 as disclosing no reasonable cause of action or, alternatively, to have parts of the pleadings struck out on the same basis under rule 14.28(1)(a). 3The application came before me as Duty Judge last Friday and has a measure urgency in that the proceedings are listed for hearing for five days commencing on 3 September 2012. I will return to the significance of the timing of the application in due course. 4The claim against the Civil Aviation Safety Authority is pleaded in two ways. The first aspect of the claim rests on the premise that there has been a delegation by the Civil Aviation Safety Authority to the first defendant of the Authority's functions, duties or powers under the Civil Aviation Act 1988. On that premise, the claim expressly invokes section 34AB of the Acts Interpretation Act 1901, which deems a delegated function, duty or power to have been performed or exercised by the authority by which it was delegated. 5That claim is pleaded in paragraphs 9 and 10 of the amended statement of claim filed 3 August 2012, as follows: 9. The second defendant is liable for the acts and omissions of the first defendant which were performed pursuant to delegations from the second defendant within the meaning of s.34ABA Interpretation Act 1901 (Commonwealth)(sic). 10. PARTICULARS OF DELEGATION a)By Civil Aviation Order 95.4 issued pursuant to Regulation 208 Civil Aviation Regulations 1988, the second defendant exempted the first defendant and its aircraft from compliance with several of the Civil Aviation Regulations provided that the first defendant was an organisation which was affiliated with the Gliding Federation of Australia and operated its aircraft in accordance with the rules, orders, directions, standards and operational procedures contained in the operational regulations and other applicable manuals and written directives of the Gliding Federation of Australia. b)The first defendant was a gliding club which was affiliated with the Gliding Federation of Australia and which purported to operate its aircraft in accordance with the rules, orders, directions, standards and operational procedures contained in the operational regulations and other applicable manuals and written directives of the Gliding Federation of Australia. 6An exchange of correspondence between the parties produced the apparent concession that the Civil Aviation Safety Authority has not, by the exemption referred to in the particulars, in fact delegated functions, duties or powers to the first defendant under any statute. In the face of that concession, the Civil Aviation Safety Authority noted in further correspondence that the deeming provision in section 34AB of the Acts Interpretation Act was plainly not engaged. 7At the hearing before me, however, the plaintiff resiled from the concession that there has been no delegation under any statute. It is accordingly necessary to consider the matters identified in the particulars more closely. 8It is convenient to begin with the Civil Aviation Act. Section 9 of the Act sets out the functions of the Civil Aviation Safety Authority and, by inclusive definition, identifies some of the means for the performance of those functions. The Act contains express power to delegate the Authority's powers associated with those functions: see ss 94 and 94A of the Act. Section 98(3B) specifies that those provisions (expressly authorising delegation) are not to be construed as preventing the making of regulations providing for the delegation of the Authority's functions or powers. It follows that the regulations may provide for the delegation of functions. 9The plaintiff acknowledges, however, that there is no express written delegation upon which it would seek to rely in the present case. The particulars in the amended statement of claim refer to clause 308 of the Civil Aviation Regulations 1988, which confers authority on the Civil Aviation Safety Authority to grant exemptions. In particular, s 308(1) expressly provides that CASA may, in relation to a particular aircraft or specified type or category of aircraft, exempt that aircraft or type of aircraft from compliance with specified provisions of the regulations or exempt persons from compliance with specified provisions of the regulations. 10The instrument referred to in the particulars to paragraph 10 of the amended statement of claim is Civil Aviation Order 95.4. That order is expressly made under sub-regulation s 308(1). It exempts aircraft of a specified type, namely gliders, from compliance with various regulations, subject to certain conditions specified in clause 4 of the order. 11An analysis of those regulations and instruments reveals that the proposition underlying the plaintiff's case appears to be that the exemption of gliders from the specified regulations, coupled with the condition imposed by clause 4 that such aircraft be operated by a member of the Gliders Federation of Australia, or an organisation affiliated with it, amounts, in substance, to the delegation of a function of the Civil Aviation Safety Authority for the purposes of the Acts Interpretation Act. 12So understood, in my view the claim, insofar as it is based on the deeming provision of the Acts Interpretation Act, is untenable. First, s 34AB of the Acts Interpretation Act clearly contemplates that delegation must be made by an instrument in writing. So much emerges from section 34AB(1)(a), which provides that, where an Act confers power on a person or body to delegate a function or duty or power, the delegation may be made: "either generally or as otherwise provided in the instrument of delegation." 13Plainly that provision contemplates the existence of a written instrument to give effect to the delegation. As already noted, the plaintiff does not suggest that any such instrument exists in the present case. 14Even if my analysis of that provision is wrong, conceptually the matters relied upon by the plaintiff are not capable, in my view, of amounting to delegation of the Civil Aviation Safety Authority's functions or powers and, indeed, they are probably inconsistent with such delegation. The condition of the exemption in clause 4 of Civil Aviation Order 95.4 does not contemplate the performance by a delegate of specified functions of the Authority. 15The device of the pleading is to repeat, as against the Civil Aviation Safety Authority, each of the particulars of negligence relied upon as against the Club. Those particulars are set out in paragraph 8 of the amended statement of claim, as follows (the underlined particulars having been added by recent amendment): 8. PARTICULARS OF NEGLIGENCE - FIRST DEFENDANT a)Providing and/or designating a runway (runway 12/30) in a location such that the high tension electricity lines were likely to intersect flight path of aircraft approaching the runway to land from the east; b)Failing to instruct the plaintiff adequately or at all as to the danger associated with attempting to use runway 30 for landing; c)Failing to instruct the plaintiff adequately or at all as to the risk of collision with the high tension electricity lines when attempting to land on runway 30 during late afternoon; d)Instructing the plaintiff to perform a "hangar landing" in circumstances where the plaintiff was not sufficiently experienced; e)Failing to ensure that the plaintiff was sufficiently trained and/or experienced before permitting the plaintiff to fly as sole pilot in command. f)Failing to ensure that the plaintiff was operating the aircraft under the direct supervision of a Level 2 instructor in breach of regulation 7.1.1 of the Gliding Federation of Australia operational regulation. g)Failing to ensure that the day's operations were being conducted under the direct supervision of a Level 2 instructor in breach of regulation 7.1.1. of the Gliding Federation of Australia operational regulations. h)Permitting a level 1 instructor to take charge of the first defendant's operations in breach of clause 17.1.3.1 of the GFA manual of standard procedures. 16It may readily be seen that none of those particulars is identified as a breach of any function or duty having its foundation in the Civil Aviation Act. The alleged breaches relate expressly to the designation of the runway and the instruction, training and supervision of the plaintiff as a pilot. Accordingly, even if, as a matter of the proper construction of the Acts Interpretation Act, delegation may be effected de facto, as opposed to by an instrument in writing and assuming such delegation is capable of enlivening the deeming provision of section 34AB, the current pleading fails to identify any proper or reasonable claim on that premise. 17The second basis for the plaintiff's claim against the Civil Aviation Safety Authority is the alleged existence of a non-delegable duty. That part of the claim is pleaded in paragraphs 11 and 12 of the Statement of Claim, as follows: 11. Further, and in the alternative the second defendant owed to the plaintiff a non-delegable duty to provide for and maintain a system for the safety of civil aviation with particular emphasis on the prevention of aviation accidents. 12. PARTICULARS OF FACTS GIVING RISE TO NON-DLEGABLE DUTY a)The second defendant owed to the plaintiff a duty to establish and administer a regulatory framework for maintaining, enhancing and promoting the safety of civil aviation with particular emphasis on preventing aviation accidents and incidents. b)The duty arose from the following facts: i.The second defendant was incorporated pursuant to s.8 Civil Aviation Act 1988; ii.Pursuant to s.9 Civil Aviation Act 1988 the second defendant was required to perform the function of conducting the safety regulation of, inter alia, civil air operations in Australian territory; iii.For the purpose of exercising its function under s.9 Civil Aviation Act 1988 was invested with the functions of: iv.developing and promulgating appropriate, clear and concise aviation safety standards; v.developing effective enforcement strategies to secure compliance with aviation safety standards; vi.issuing certificates, licences, registrations and permits. vii.Pursuant to s.9A Civil Aviation Act 1988 the second defendant was obliged to regard the safety of air navigation as the most important consideration in the exercise of the second defendant's powers and the performance of the second defendant's functions; viii.The incorporation of the second defendant, the grant of its powers and the investment of its functions were designed to prevent or minimize a risk of personal injury recognised by the legislature as being of such magnitude and/or complexity that individuals would be unable to take adequate steps for their own protection; 12. The second defendant breached its said duty. 18The content of the duty set out in particular 12(a) recites almost in exact terms the main object of the Civil Aviation Act stated in section 3A of the Act. The particulars do no more than to recite aspects of the operation of the statute. Thus, in particular 12(b), there is reference to the incorporation of the Civil Aviation Safety Authority under the Act, the functions conferred upon it under section 9 of the Act and the statutory obligation in section 9A of the Act for the Authority to have regard to the safety of air navigation as the most important consideration in exercising its powers and performing its functions. No further particulars are provided. 19The case as pleaded amounts, accordingly, to a contention that, by the passing of the Act, the Civil Aviation Safety Authority has fallen under a non-delegable duty of care to provide and maintain a safe system of civil aviation. No further material facts upon which such a duty is said to exist are identified. 20It is relevant in this context also to consider the alleged breaches. No separate act or omission of the Civil Aviation Safety Authority is pleaded. Rather, the particulars of breach repeat those pleaded against the first defendant in paragraph 8 of the amended statement of claim identified above. 21An analysis of those particulars reveals no failure or shortcoming in the regulatory framework. In fact, three of the particulars allege breaches of the applicable regulations or standard operating procedures of the Gliding Federation, compliance with which, as already noted, is imposed as a condition of the exemption in Civil Aviation Order 95.4. It follows that what is alleged is not a breach of a duty owed to the plaintiff in this particular case but a personal or non-delegable duty of care owed by the Civil Aviation Safety Authority to the world at large. That proposition is untenable, in my view. It is expressly inconsistent with the powers of delegation contained in the Civil Aviation Act to which I have already referred. 22If, contrary to the manner in which the claim is presently pleaded, it was intended to rely only on a non-delegable duty of care owed to certain classes of people including the plaintiff, no facts such as to sustain such a case are pleaded in the amended statement of claim. 23The case does not sit comfortably within the notion of non-delegability. The caution required in characterising a duty of care as personal or non-delegable was emphasised by Gummow J in Scott v Davis [2000] HCA 52; (2000) 204 CLR 334. His Honour noted at [248] that: with respect to any doctrine of non-delegability, there is a difficulty in identifying any principle which dictates an expansion of liability such that the defendant becomes, in effect, the insurer of some activity, even when it is performed by another. 24There can be no doubt, on the existing pleading, that that is the way in which the plaintiff seeks to put his case. As already noted, no feature of any particular relationship between the Civil Aviation Safety Authority and the plaintiff is pleaded; rather, the only facts, matters and circumstances alleged to give rise to the existence of the duty are drawn from the terms of the Civil Aviation Act. 25Scott v Davis was a claim based on the alleged vicarious liability of the owner of a plane for the negligence of a pilot, who was neither an employee nor an agent of the owner, having been asked to fly the plane as a guest at a party. It was in that context that Gummow J considered the notion of a non-delegable duty of care, noting (at [247]), that the appellants had not pleaded a non-delegable duty: "no doubt for the good reason that a case put on that foundation had no prospect of success". 26His Honour proceeded to consider the principles stated by Mason J in Kondis v State Transit Authority [1984] HCA 61; (1984) 154 CLR 672 identifying cases where a non-delegable duty had been held to arise. Gummow J asked rhetorically (at [248]) how fresh cases are to be decided when "the preferred criteria are historically descriptive but not normatively predictive". 27In the absence of a normatively predictive principle for the existence of a non-delegable duty a judge at first instance should, of course, take a cautious approach before dismissing a claim on a peremptory basis. As submitted on behalf of the plaintiff, a claim is not necessarily hopeless just because it is novel. The difficulty in the present case, however, is that it is at least clear, in my view, that a non-delegable duty of care owed to the plaintiff cannot arise from the terms of the statute alone, and that is the way in which the case is presently pleaded. 28Further, it is clear that the claim is presently pleaded on the premise that the Civil Aviation Safety Authority is, in effect, strictly liable for any aviation accident. A proposition of similar breadth was rejected by Gleeson CJ in New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 at [34]. 29For those reasons I am satisfied that the claim, as presently pleaded, is untenable. 30It remains to consider whether I should grant the primary relief sought of dismissing the claim as against the second defendant or the alternative relief of striking out the relevant parts of the amended statement of claim. 31A complication in that respect is the fact that the proceedings are listed for hearing in less than a fortnight. At the hearing before me, I made an inquiry as to the apparent lateness of the present application. Mr Harvey, who appeared for the second defendant, explained that those instructing him have been at pains to tease out from the plaintiff the way in which the claim was put. I am torn between considering, on the one hand, that the plaintiff ought to have pleaded the claim properly or not at all in the first instance; and, on the other hand, the fact that the plaintiff now faces the prospect of having his claim as against the second defendant struck out so shortly before the hearing with little opportunity to consider whether there is any basis on which it could properly be repleaded. 32I am minded, in the circumstances, to make an order striking out those paragraphs of the amended statement of claim which plead the claim against the second defendant and to give the plaintiff a short opportunity to consider whether he would wish to move the court for leave to file a further amended statement of claim. In reaching that conclusion, I would not wish to be taken to encourage the plaintiff in the belief that there is some pleadable claim that has not yet been articulated. Rather, I simply wish to give effect to a concern I have, after reading the correspondence, as to whether those representing the plaintiff had, in practical terms, a full opportunity to consider how else the claim might be put before the present motion was filed. 33For those reasons, I make order 2 in the notice of motion filed 13 August 2012. 34I direct the plaintiff to serve any minute of a proposed further amendment by midday on Thursday, 23 August 2012 and I direct the parties to contact my Associate by 5pm that day with a view to re-listing the matter for further argument on Friday, if necessary. 35I order the plaintiff to pay the second defendant's costs of the notice of motion.