A legal scrap in Australia involving a rural airfield should include a kangaroo, and this one does, all the way to the Court of Appeal.
A New South Wales shire council has won an appeal against a District Court damages claim brought by a Port Macquarie medical centre, after a doctor landing at Kempsey Aerodrome collided with a kangaroo on the airfield.
Prominent Brisbane injury compensation law specialist Mark O’Connor says the issue at stake focused on whether a local authority had an obligation to expend significant funds to fence a rural airfield to attempt to make its airstrip safe from wildlife, as well as whether it has any obligation to warn pilots of the risk that kangaroos and other wildlife may be on the airfield when they come in to land.
Mark O’Connor, a Director with Bennett & Philp Lawyers, says the legal stoush between Five Star Medical Centre from Port Macquarie on the mid-north coast of NSW and the Kempsey Shire Council involves questions of liability, funding and assorted kangaroos.
Legal action followed after a landing mishap in February 2014 when a doctor flying a 5 Star Medical aircraft from Port Macquarie landed at Kempsey Aerodrome. On landing, the single engined aircraft struck a kangaroo on the field.
A negligence claim against the shire council followed for around $153,120 for repairs to the aircraft. The District Court in 2017 found against the council but the matter went to appeal and in December the Court of Appeal threw out the original decision.
Mark, who did not act for any of the parties in the matter says the issue involves whether the presence of kangaroos upon an airstrip was an “obvious risk” alleviating the Kempsey Shire Council of any obligation to warn pilots of the risk of wildlife on its airstrip and further, whether it should have built an electrified fence around airstrip to prevent the incursion of kangaroos and other animals.
“Kangaroos often cause accidents on rural roads but people may not realise they are also a hazard at rural airfields”.
In this case there was a published warning that a kangaroo hazard existed at Kempsey aerodrome, but the council had stated it did not have the financial resources to build a fence to keep the roos out.
“The court found that the risk to aircraft by wildlife in the vicinity of country aerodromes was such an obvious risk that the Kempsey Shire Council did not owe a duty to warn pilots of the risk created by kangaroos et cetera on landing strips and further that it did not have an obligation to take steps to remove the wildlife from the airstrips.”
The Federal Government had been going to provide funding for the fencing of the Kempsey Aerodrome, which would have cost more than $200,000, but that decision was reversed by the Abbott Liberal National Party Government after winning power in 2013.
“By 2013 the Kempsey Shire Council was running at a net operating loss of $19 million. The court found that the council did not have the available resources to build the fence as it would reduce funds allocated for other works and purposes and any decision to build the fence required an assessment of the conflicting demands on the Council’s Budget.”
With this in mind, Mark says the wider issue of safety fencing around rural airfields is one that may need state or federal funding to help rural councils.
“In this particular case the pilot was not injured when his aircraft struck the kangaroo. But imagine if there had been several people in the aircraft. The consequences could have been catastrophic so in many ways this is a necessary wakeup call to improve rural airfield safety,” he says.
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