A passenger injured in a light aircraft cannot claim compensation.

This was the outcome in the recent decision of Noel Campbell v Rodney Victor Hay [2013] NSWDC 11. Acting Justice Marks of the NSW District Court rejected a claim for compensation made by a passenger who suffered injuries when the aircraft made a forced landing. The passenger (Campbell) was taking flying lessons in a Jabiru light plane (with a single engine) flown by experienced flying instructor (Hay).

The decision was based on the NSW Civil Liability Act 2002. There is equivalent legislation around Australia. The Act provides that a participant’s rights to claim compensation may be excluded altogether if they engage in a dangerous recreational activity, as opposed to a safe leisure activity.

Recreational activities cover sports, pursuits and activities that are engaged in for enjoyment, relation or leisure, which might (or might not) take place on a beach, park or open space. A dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. (Section 5K)

The legal argument turned upon whether there was a significant risk of physical harm when flying a light plane. If so, flying is a dangerous recreational activity.

The court adopted the views of Appellate Justice Tobias in the NSW Court of Appeal decision of Jaber v Rockdale City Council [2008] NSWCA 98 that ‘as a general guide the risk [of physical harm] should have a real chance of materialising for it to qualify as significant’ to make the recreational activity dangerous.

The court found that the risk of an accident occurring when flying a light aircraft was low – but that when an accident does occur there is a real risk of significant physical harm. And so the court concluded that flying in a light aircraft is a dangerous recreational activity.

Interestingly, the court considered that flying in a light aircraft to be ‘in a similar category to recreational parachute jumping, statistically safe, but involving some (lesser) risk of danger’.

If the recreational activity is dangerous, the organiser or operator can avoid liability if the risk of injury or death is an obvious risk which is accepted by the participant.

The Civil Liability Act contains this definition - an obvious risk to a person who suffers harm is a risk that is obvious to a reasonable person in that position. (Section 5K)

Does a passenger in a light aircraft accept as obvious the risk of injury resulting from pilot error or defective equipment?

On the basis of expert evidence, the court found that the flying instructor was negligent by (a) not flying the aircraft to one of the landing strips available after noticing a second set of vibrations from the engine; and (b) instead, continuing to fly towards Katoomba airfield, where the flight had originated. As a result, when the engine stalled, the flying instructor was not close to a landing strip, and so manoeuvred the aircraft around a tree and into a gully where he pitched the aircraft sharply up a slope.

The Civil Liability Act states in clear terms that – A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that person. (Section 5L)

The court found that the risk that the pilot might be negligent in flying the aircraft, or the risk that the aircraft engine might fail in flight, were risks that were obvious to the passenger.

Therefore the passenger failed in their claim for compensation for their injuries even though the pilot was negligent.

The significance of this decision is that pilots and operators of light aircraft (on non-scheduled flights) are protected from liability because flying is a dangerous recreational activity and because pilot error and mechanical defects are obvious risks.

The intriguing question is – what other leisure activities might come under the category of dangerous recreational activities?

In Jaber, the plaintiff dived head first from a bollard on a wharf into shallow water (and struck his head).  This was a dangerous recreational activity. In the air, it is likely that joy flights, sky diving and hot air ballooning would all come under the category of dangerous recreational activities.