Legal Obligations in Wildlife Management – Abstract

July 25, 2014

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There is some circularity in any discussion of legal obligations and liabilities: a legal obligation entails a requirement to do or refrain from doing something with the possibility of incurring a liability if the requirement is not fulfilled.

Aviation industry participants are subject to legal obligations and liabilities arising in negligence, contract, and criminal law, as well as obligations under work health and safety legislation, aviation regulatory legislation, and other statutory regimes such as the Civil Aviation (Carriers’ Liability) Acts.  There is also a possibility of a claim for misleading and deceptive conduct where information is given and relied upon by another party in the course of business, but is wrong.

Statistics collected by aviation safety authorities indicate that there are a large number of wildlife strikes every year.  Many of those wildlife strikes cause damage to aircraft and consequential loss and damage to third parties.

Considering the bases of legal liability and the obligations of an airport operator to manage the airport environment to discourage the presence of wildlife, an airport operator potentially bears legal liability for damage suffered as a result of wildlife strike.  However, a review of the case law in common law jurisdictions (apart from the United States) discloses that very few cases are brought before the Courts.  A number of factors may discourage parties litigating claims, including the difficulty of proving a causative link between a wildlife strike event and the airport operator’s actions.  Additionally, legal structures for determining liability established under the influence of international conventions mean that claims against airline operators, where strict liability applies, are more easily brought than claims against airport operators where fault must be proved.  So far as contractual breach is concerned only the actual parties to a contract can seek redress.  Statutory and regulatory standards may also dissuade claims as those legislative standards act as a ‘standard of care’ which, when generally met, mean that a finding of negligence or default is unlikely.

That is not to say that the risk of liability for airport operators is remote. There are some identifiable liability risk areas. There is often a tension between optimising the commercial environment at an airport and providing the safest operational environment – an attractive commercial environment can also be attractive to wildlife. Visitors and even airport staff may engage in seemingly innocent conduct that jeopardises safety by attracting wildlife to the vicinity of the airport.  The duty to manage wildlife risk at an airport belongs to the airport operator, and the duty is non-delegable, meaning that the airport operator cannot ‘contract out’ of it.  Furthermore, there has, in the last decade or so, been a qualitative change in the character of the governing rules.  Whereas previously, the rules were contained in the Rules and Practices for Airports, an administrative direction given by the regulator, the rules are now contained in Part 139 of the Civil Aviation Safety Regulations 1998 and the Manual of Standards Part 139, which are both statutory instruments.  These factors act to heighten the liability risk for airport operators.