The case of Campbell v Hay  NSWCA 129 highlights the availability of the defence of a “dangerous recreational activity” under section 5L of the Civil Liability Act 2002 (NSW) particularly for aviation insurers of light aircraft.
Campbell v Hay  NSWCA 129
The Plaintiff was injured on 15 May 2007 when the light aircraft which he was taking a flying lesson in suffered engine failure and his flying instructor, the Defendant, made a forced landing in a paddock.
During the flight the aircraft suffered from two sets of vibrations, before the engine suddenly stopped completely. The Defendant described the first set of vibrations as faint and subtle, and the start of the second set of vibrations as being imperceptible. From the onset of the second set of vibrations the time to complete engine failure was about 1 minute 50 seconds to 2 minutes, and there was approximately another 5 minutes before the aircraft reached the ground. The only possible landing strip after the second set of vibrations was the Dalgleish Strip, which the Defendant stated was not all that suitable but conceded would have been better than the paddock in which he was eventually forced to land.
Expert witnesses were called on behalf of the parties, who ultimately agreed that it was a reasonable alternative for the Defendant, after the first set of vibrations, to maintain the aircraft’s course, provided that it was within reach of a suitable landing area which was the case. When the experts were asked to assume that there would have been approximately 7 minutes between the second set of vibrations and the forced landing, they agreed that it would have been possible for the Defendant to have reached the Dalgleish landing strip.
The Defendant pleaded s 5L of the Civil Liability Act, that he was not liable “as a result of the materialisation of an obvious risk of a dangerous recreational activity”. Under s 5K “recreational activity” includes any sport and any pursuit or activity engaged in for enjoyment, relaxation or leisure, and “dangerous recreational activity” is defined to mean “a recreational activity that involves a significant risk of physical harm”.
The trial judge, Marks ADCJ, found that there was negligence on the part of the Defendant for not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started, and also continuing to fly, relying on some (misplaced) sense of innate luck.
The trial judge then considered the Defendant’s defence under s 5L. The Plaintiff had argued that recreational flying did not constitute a dangerous recreational activity as it was safe, bearing in mind the Defendant was an experienced pilot who had given assurances to the Plaintiff.
However, the trial judge concluded that the activity could not be described as trivial, and that even if the risk occurred only infrequently, there was a real risk that something could go wrong, including pilot error, and that if something did go wrong there was a significant risk of physical harm. In the circumstances the trial judge found that the defence under Section 5L of the Civil Liability Act had been made out, which meant that the Plaintiff’s claim failed even though he had established negligence.
Ward JA, who wrote the leading judgment on behalf of the unanimous Court of Appeal, first considered the Defendant’s Notice of Contention that he should not have been found negligent in the first place. After reviewing the evidence, including the expert evidence, Ward JA disagreed with the trial judge’s findings that the Defendant acted negligently in not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started. In addition, Ward JA found that even if breach of duty had been established, it had not established that that breach was causative of the harm that occurred.
Despite the above findings putting an end to the Plaintiff’s appeal, Ward JA went on to consider the trial judge’s findings in relation to dangerous recreational activity under s 5L of the Civil Liability Act. Ward JA noted that in the case of Fallas v Mourlas  NSWCA 32, Ipp JA emphasised the need to take into account the particular circumstances of the case in determining whether or not the activity in question was a dangerous recreational activity. Ward JA also referred to the case of Falvo v Australian Oztag Sports Association  NSWCA 17, where it was determined the definition of “dangerous recreational activity” must be read as a whole and that regard must be had as to the nature and degree of harm that might be suffered and the likelihood of the risk materialising.
With reference to statistical evidence that 1 in 500 light aircraft flights in 2007 ended in serious accident, Ward JA determined that this was not a case where the potential risk of physical harm arising from engine failure in flight could be described as trivial in the manner of that considered in Falvo. In the circumstances Ward JA was satisfied that the trial judge did not err in finding that the s 5L Civil Liability Act defence had also been made out.
Whilst an interesting decision on its facts alone, the primary importance of the decision is in relation to the upholding of the s 5L Civil Liability Act defence in relation to dangerous recreational activities. There have now been numerous decisions on dangerous recreational activities with differing results. However, in this case common sense would appear to have prevailed in that light aircraft flights would clearly appear to fall under the definition of a dangerous recreational activity. Insurers are unlikely to have too many cases involving light airplane crashes, but may be able to use the decision in relation to other cases where s 5L can be pleaded as a defence.