In brief - Kempsey Shire Council successful in appeal case
The New South Wales Court of Appeal recently upheld an appeal by
Kempsey Shire Council in its case against Five Star Medical Centre
Pty Limited arising from the collision of an aircraft with a
kangaroo on landing at Kempsey aerodrome in 2014.
The first instance decision of the New South Wales District
Court was reported by us in our February 2018 article
Airport operator found negligent for aircraft collision with a
kangaroo.
The majority in the New South Wales Court of Appeal, being
McColl and Basten JA, held that, when considering the meaning of
the "obvious risk" under section 5F of the
Civil Liability Act 2002 (NSW) (Act), the test of
obviousness is objective and does not turn on the subjective
knowledge or beliefs of the plaintiff, and should be assessed
"at a reasonable level of generality". The
plaintiff's pilot should have been and was in fact aware of the
obvious risk of colliding with a
