On 1 October of 2011, at the Old Bar Festival in Old Bar NSW a pilot of a light aircraft travelled from Taree Airport, to the Old Bar Airstrip, which lays adjacent to the land on which the Festival was taking place. While attempting to land the plane, the pilot veered too far to the left and crashed into the Ferris Wheel which the plaintiff was riding on at the time with her brother. Both the plaintiff and the pilot suffered psychiatric injuries as a result of the crash. The plaintiff, aged 13 at the time of the incident, proceeded to sue both the Pilot and the Mid-Coast Council for damages as a result of negligence, via her tutor. Additionally, the Pilot brought a claim against the Council, also in negligence.
The court found that there was a duty of care owed to the class of people attending the festival, including the plaintiff, as they chose the position of Ferris Wheel, which was found to have been placed in a recommended obstacle free zone conducted by Civil Aviation Authority – in addition to allowing the Airstrip to be used. This duty of care was found to have been breached by the Council, and they were liable for damages sustained by the plaintiff as a result of the incident. Additionally, the Pilot was found liable, after the Court accepted evidence from aviation experts that the pilot was flying too high and fast for the attempted landing. The court assessed the contribution of the Pilot’s negligence at 35% of the damage to the plaintiff, Ms Arndell.
Judgement was found in favour of the plaintiff, in which the court awarded damages assessed at $1,513,023.30, covering heads of damages such as past economic loss, future economic loss, and medical expenses. Interesting to note the courts assessment of such damages considering the plaintiff was 13 at the time of the incident.
The Pilot’s claim against the council, however, was unsuccessful, and the court held that the harm suffered was the materialisation of an obvious risk of a dangerous recreational activity, as found in s 5L of the Civil Liability Act.
The decision of Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council  NSWSC 1710 can be read in full here: https://www.caselaw.nsw.gov.au/decision/1761bcf1a49d5847a34354fe
McAuley Hawach Lawyers
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