Flying lessons in a single engine light aircraft - a dangerous recreational activity

By Andrew Tulloch and Helen Tieu

In brief - NSW Court of Appeal unanimously dismisses appeal in Campbell v Hay

The NSW Court of Appeal has confirmed that the injuries sustained by a student flying a light aircraft under the supervision of an experienced flying instructor involved the materialisation of an obvious risk of a dangerous recreational activity.

Injury arising from obvious risk

Section 5L of the Civil Liability Act 2002 (NSW) (CLA) provides that a person injured whilst participating in a dangerous recreational activity involving an obvious risk is barred from recovering damages from another person, notwithstanding that the other person may have been negligent.
 
In Campbell v Hay [2014] NSWCA 129, the NSW Court of Appeal considered whether harm that occurred to a student flying in a light aircraft under the supervision of an experienced flying instructor was the materialisation of an obvious risk of a dangerous recreational activity.

Original decision precludes student pilot from recovering damages from instructor

The background to this appeal and the relevant sections of the CLA are discussed in our earlier article Civil liability for personal harm - dangerous recreational activity and obvious risk.
 
Briefly, Noel Campbell was injured when the light aircraft in which he was taking a flying lesson from Rodney Hay made a forced landing in a paddock due to engine failure. 
 
Mr Campbell brought proceedings in the District Court of NSW against Mr Hay seeking damages for negligence. The District Court dismissed Mr Campbell's claim. 
 
The primary judge held that Mr Hay was negligent as the pilot instructor, but the activity was a dangerous recreational activity, the risk of injury was an obvious risk, and therefore Mr Campbell was precluded from recovering pursuant to section 5L of the CLA.
 
Mr Campbell appealed the primary judge's decision. In a unanimous decision, the NSW Court of Appeal dismissed Mr Campbell's appeal. 

Court of Appeal finds that student pilot failed to establish causation

The Court of Appeal held that the primary judge erred in concluding that Mr Hay breached his duty of care owed to Mr Campbell, but that even if there had been negligence by Mr Hay in response to the engine vibrations of the plane, Mr Campbell failed to establish causation as required by section 5D of the CLA.
 

The Court of Appeal's reasoning was based on the following points.\

  • The expert evidence did not support the conclusion that Mr Hay breached his duty of care by not diverting the aircraft towards an appropriate landing strip immediately on the onset of the second set of vibrations. 
  • Mr Hay did not make an admission of reliance only upon luck in flying the aircraft after the onset of the second set of vibrations.
  • Mr Campbell failed to show that if the aircraft had been diverted to the landing strip, Mr Hay would have been able to land the aircraft safely without occasioning injury to him.
In light of the above, the Court of Appeal held that the appeal should be dismissed.

Dangerous recreational activity and the Civil Liability Act

Notwithstanding its finding on the issue of negligence, the Court of Appeal went on to consider whether Mr Campbell's injuries were sustained as a result of the materialisation of an obvious risk of a dangerous recreational activity within the meaning of section 5L of the CLA.
 
Pursuant to section 5K of the CLA, a "dangerous recreational activity" is defined as a recreational activity that involves a "significant risk of physical harm".
 
Mr Campbell asserted that he did not engage in a dangerous recreational activity within the meaning of section 5K of the CLA because he was learning to fly under the instruction and control of Mr Hay, an experienced flying instructor. On this basis, Mr Hay asserted that he was not engaged in an activity that carried with it a significant risk of physical harm. These contentions were rejected by the Court of Appeal.

Significant risk of physical harm even if the pilot instructor was experienced

The Court of Appeal agreed with the primary judge's finding that Mr Campbell's activity in undertaking instruction in an aircraft of the particular type, being a single engine light aircraft, was a "dangerous recreational activity". In arriving at this decision, the Court of Appeal held that:
  • A particular recreational activity is not a "dangerous recreational activity" unless it "involves the significant risk of physical harm", and a risk is not "significant" unless it lies beyond a threshold point on the scale of possibility of occurrence that is beyond trivial but short of likely. A risk will be "significant" if there is a real chance that it will materialise.
  • The evidence before the primary judge supported the conclusion that the aviation activity in which Mr Campbell had chosen to engage satisfied the above criteria. In assessing the likelihood that such a risk would materialise, the Court of Appeal considered the statistical evidence that 1 in 500 light aircraft flights in 2007 ended in a serious accident, which meant that it could not be seen as a trivial risk.
  • While the experience and qualifications of the pilot or instructor are to be taken into account as part of the overall circumstances of the particular activity in question, one must also take into account the risk (as here, of engine failure) that could occur in circumstances where even an experienced pilot would not be in a position to avoid an outcome involving serious injury or death.

Pilot instructor was not negligent or irrational

The Court of Appeal agreed with the primary judge's finding that Mr Campbell's injury resulted from the materialisation of an obvious risk.
 
Under section 5F(1) of the CLA, an "obvious risk" is defined as a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the person who has suffered the harm in question.
 
Mr Campbell asserted that the risk that materialised was not the risk of a forced landing but the risk that Mr Hay would respond to the engine vibrations negligently by relying on his "innate sense of luck". That is, the harm suffered was a materialisation of negligent behavior of Mr Hay and this was not an obvious risk.
 
The Court of Appeal rejected this argument, finding that the evidence did not support the conclusion that there was irrational behaviour on the part of Mr Hay. It must have been obvious to a person in the position of Mr Campbell, being an adult having his third lesson in a single-engine light aircraft, that if the aircraft were to experience engine problems, he would be reliant on Mr Hay to land the plane safely and that there was a risk that Mr Hay would not be able to do so or would, in an emergency situation, make an incorrect decision.

Court of Appeal bars student pilot from recovering damages from flying instructor

In summary, the Court of Appeal held that the injuries sustained by a student flying a light aircraft, whilst under the supervision of an experienced flying instructor, was the materialisation of an obvious risk of a dangerous recreational activity. As a result, the student was barred from recovering damages from the flying instructor pursuant to section 5L of the Civil Liability Act.
 
A particular recreational activity will be a "dangerous recreational activity" if it "involves the significant risk of physical harm". A risk will be "significant" if there is a real chance that it will materialise. A risk is an "obvious risk" if it would have been obvious to a reasonable person in the position of the person who has suffered the harm in question.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2019.

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