Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Kempsey Shire Council v Five Star Medical Centre Pty Ltd [2018] NSWCA 308 Hearing dates: 11 May 2018 Decision date: 13 December 2018 Before: McColl JA at [1]; Basten JA at [2]; Simpson AJA at [69] Decision: (1) Allow the appeal and set aside the following orders made in the District Court and entered on 29 September 2017: (a) order 2; (b) order 4 except to the extent that it vacated order (2) made on 13 September 2017; (c) orders 5, 6 and 9, being orders consequential on order 4.

(2) In place thereof: (a) give judgment for the defendant dismissing the statement of claim filed 9 December 2015; (b) order that the plaintiff pay the defendant's costs of the proceedings in the District Court.

(3) Order that the respondent pay the appellant's costs of the appeal. Catchwords: TORTS – negligence – no duty to warn of obvious risk – plane collided with kangaroo at regional aerodrome – whether damage to aircraft materialisation of obvious risk – whether risk defined by level of risk and likelihood of materialisation – whether accessing information from website involved requesting advice or information – Civil Liability Act 2002 (NSW), ss 5F, 5G, 5H

TORTS – negligence – public authority – allocation of resources – principle that allocation of resources not open to challenge – Civil Liability Act 2002 (NSW), ss 42(a), 42(b) Legislation Cited: Civil Liability Act 2002 (NSW), ss 5B, 5F, 5G. 5H, 5I, 5L, 41, 42, 43, 43A, 44; Pt 1A, Divs 4, 5; Pt 5 Local Government Act 1993 (NSW), s 24