Written by Peter CarterJune 21, 2021
A series of extraordinary events led to a light aircraft colliding with a Ferris wheel at a beach festival on the NSW mid-north coast in October 2011.Pilot Paul Cox had departed Taree airport for the 6 minute flight to the Old Bar Heritage Airstrip where he conducted a precautionary “touch-and-go” on RWY 17 – ie the runway with a landing and take-off direction of 170° – before performing a second approach with the intention of landing.
Misjudging the aircraft’s height and ground speed on that approach, Cox exercised “good airmanship” by aborting the landing and climbed the Sierra 200 aircraft away to fly another circuit of the airstrip to come in again to land from the north.
Meanwhile, at the nearby Old Bar Beach Festival – to the south of the strip and closer to the beach – 13-year-old Amber Arndell was happily seated in a Ferris wheel with her 9-yr-old brother Jessie. Neither child could have anticipated Cox’s aircraft suddenly colliding with the structure during its climb, with the point of impact perilously close to their own gondola.
The pilot did not see the obstacle ahead because of the aircraft’s angle of the climb meant forward vision was obscured by the engine cowling.
Remarkably, no significant physical injuries resulted. However, both Cox and Amber Arndell sustained severe psychological injuries.
In the inevitable lawsuits that followed, both the pilot’s actions and the positioning of the Ferris wheel came under scrutiny and the NSW Supreme Court was charged with adjudicating the extent of their relative responsibility for the accident.
An important feature of the contest was that both the festival and the airstrip were on land controlled by the council and that its Airstrip Committee had recommended the 80th anniversary of its use as a stop-off point for the first flights from Sydney to Brisbane be celebrated during the festival.
The four expert aviators who provided opinions agreed – that contrary to aerodrome safety procedures – the council had allowed the wheel to be positioned inside the 5% lateral take-off obstacle clearance “splay” just 161m from the southern end of RWY 17.
“Plainly, but for the negligence of the Council, in its approval of the Festival and the Ferris wheel or in its operation of the Airstrip,” Justice Stephen Rothman ruled after 11 days of evidence and submissions ,”the injury would not have occurred. The Council is liable to the plaintiff in negligence”.
To what extent though, if at all, was the pilot also at fault?
None of the experts suggested that diverging to the left slightly from the runway centre line after take-off fell below the standard of competent airmanship or that it was an uncommon practice.
They thought – having regard to the forecast wind of 8 kts from the North – the pilot should ordinarily have used RWY 35. However, they concurred that the observations of nil wind and a “limp windsock” left the choice of runway – as regards wind conditions – to the pilot’s own discretion.
All agreed the the aircraft must only have alighted the strip near its southern end giving it only a short ground distance to gain sufficient altitude to avoid the obstacle with which it collided.
According to Justice Rothman, the pilot’s misjudgement of the landing demonstrated a breach of the duty of “due care and diligence… owed to all members of the public who may be harmed by any such lack of reasonable care and skill” that wasn’t “overcome” by the “good airmanship” displayed by aborting the landing.
This conclusion was supported by two of the highly experienced experts – Trevor Howie and John McGuirk – who concluded that Cox’s too steep and too fast approach was “a material cause” of the accident. Their colleagues, Keith Tonkin and Michael Nolan disagreed.
The judge further held that the pilot’s overfly of the aerodrome at 1500 ft – having been flown too close to the strip on the upwind leg – had “prevent[ed] him observing the nature of the obstacles at the southern end of the Airstrip”, a further instance of negligence.
His Honour ultimately decided the “appropriate assessment” was one of 35% liability for the pilot and 65% for the council.
He then went on to assess damages for pilot Cox and the Ferris wheel rider, Amber.
The evidence established that prior to the accident it was likely Amber “would have gone on to complete secondary school and obtain a career in fashion and design”.
In that context, the court accepted the evidence of psychiatrist Jonathan Phillips AM, over that of colleague Chris Rikard-Bell that as a result of the psychiatric injury from the potentially catastrophic crash, Amber was “for all practical purposes unemployable.
Amber’s future economic loss was calculated at $1.2k/week over 44 years totalling $1.42 mil. Her general damages – at 60% of the most extreme case – were assessed as $412k. Amber’s total award to be paid by the council’s insurer came in at $1.5 mil to which Cox or his insurer must reimburse 35%.
Cox’s PTSD injury was assessed at 55% of the most extreme case, yielding $378k for general damages out of a total assessment of $1.4 million which if reduced by 35%, would result in payment to him by the council’s insurer of $911k.
Cox however received no damages whatsoever as the council claimed – and was granted – immunity under the NSW Civil Liability Act from having to pay on the basis his injury resulted from the materialisation of an “obvious” risk of a dangerous activity he engaged in “for enjoyment relaxation or leisure”, namely recreational aircraft flying.
Arndell BHT Arndell v Old Bar Beach Festival Incorporated; Cox v Mid-Coast Council –  NSWSC 1710 Rothman J, 1 December 2020 Read case