By Louise Cantrill, Partner and Heidi Norville, Associate

Background

On 1 October 2011 Mr Cox, after performing a “touch and go” (where the aircraft touches down momentarily before taking off again) to assess the safety of the landing strip, flew into a Ferris wheel constructed as part of the annual Old Bar Festival which was found to have encroached into the flight path of the Old Bar Aircraft Landing Area.

Initially heard in the Supreme Court of NSW, Justice Rothman found against Mid-Coast Council in favour of one of the plaintiffs (Miss Arndell, a passenger on the Ferris wheel at the time of the accident), but against Mr Cox on the basis the accident was a materialisation of an obvious risk of a dangerous recreational activity, being the risk of collision with an obstacle within the slay area of the landing flight path.

Relevantly to Mr Cox’s claim, at trial experts gave evidence that the aircraft was travelling too fast and landed too deep at an angle which was too high.  Justice Rothman confirmed a recreational activity as “one in which he engaged for enjoyment, relaxation or leisure”.

This article deals with the judgments of Justices Meagher, Payne and Emmett of the Court of Appeal entered on 31 August 2021 in relation to Mr Cox’s appeal.

Decision and reasoning

The NSW Court of Appeal dismissed Mr Cox’s appeal and confirmed the risk of harm which materialised was an obvious risk of a dangerous recreational activity. Of interest as the Court’s discussion of how to characterise the obvious risk. In this instance, it was enough to characterise it along the lines of an obstruction which may be in the splay area, but it did not need to be more specific than that. The Court made the point, however, that the characterisation of an obvious risk may not be the same as the characterisation of the same risk of harm for the purpose of establishing a duty of care.

The Court of Appeal found Cox’s flying of the plane was a recreational activity as his aviation licence was specifically called a “recreational” licence, and he was flying the plane for pleasure.  The Court held flying a plane was dangerous a recreational activity as it was an activity which carries inherent and obvious risks which “cannot be overcome by the exercise of due care”.

The obvious risks were identified by the Court as both the specific risk of the Ferris wheel which had been noticed by others in Mr Cox’s position, and the more general risk that a collision may be caused by an obstruction in any flight path.

Other factors relevant to the finding against Mr Cox, put forward by Council and accepted by the Court, were:

1. There were other objects in the splay area of the flight path of which Mr Cox was aware, even if those objects did not give rise to the risk of collision.
2. People were generally aware of the object that gave rise to a risk of harm, even if they did so in circumstances separate to the harm that eventuated.
3. Mr Cox had already performed one “touch and go” during which he avoided collision with the Ferris wheel and other obstacles.

While all of these risks led to the verdict, it is open for interpretation that either one alone would have resulted in the same outcome.

In forming their decision, the Court of Appeal also considered the Guidelines for Aeroplane Landing Areas, which provide a pilot should not use a landing area without taking all reasonable steps to ensure the physical characteristics and dimensions are satisfactory.  Mr Cox submitted he was “entitled to assume” that the splay would be free of obstructions, which reopened him to the criticism of the primary judge who found Mr Cox negligent in failing to conduct a flyover in such a way as to alert him to any hazards within his path of landing.

Implications

In Obiter dicta Justice Emmett considered section 5F of the Civil Liability Act 2002 (obvious risk) in the following manner:

1. Firstly, the fact a risk has a low probability of occurring does not affect its characterisation as obvious; and
2. Secondly, obvious risks include risks that are patent or a matter of common knowledge. This reaffirms the view that obvious risks comprise risks of which the injury party ought to have turned their mind, no matter how unlikely they were to observe that risk.

Justice Emmett’s comments above, in our view, have the potential to expand character of an obvious risk to those risks which should be obvious, even if not previously seen or contemplated by the plaintiff. This is should have some enduring effect on the application of section 5F of the Civil Liability Act 2002.

If Cox is to be followed, a section 5L defence may be effective no matter how thoroughly a participant in a dangerous recreational activity followed related instructions and/or took due care.  Further, a higher degree of interaction, skill, expertise and training a plaintiff has with certain recreational activities may actually increase the likelihood of a Court finding a risk was obvious and thereby applying section 5L of the Civil Liability Act.  In Cox, this point was emphasised by the acceptance by the Court of the Council’s argument that Mr Cox’s previous safe navigation of the aircraft minutes before the accident was relevant to the finding of an obvious risk.

Cox also confirms that, in circumstances where persons other than the one bringing a claim managed to notice a risk, that risk ought to be considered obvious, and there is no obligation on any other entity to warn of that risk.