Campbell v Hay  NSWCA 129
Perhaps to show that the dangerous recreational activity defence found in the Civil Liability Act is not a completely superfluous piece of legislation, the New South Court of Appeal has finally upheld such a defence based on that provision in Campbell v Hay  NSWCA 129.
The Claimant had sued his flight/instructor for injuries sustained when the single engined light recreational aircraft in which he was receiving flying lessons was forced to make an emergency landing in a paddock because of engine failure.
Mr Hay was a highly experienced flying instructor.
The consensus of the experts called in the trial was that the instructor’s forced landed of the aircraft was conducted skillfully and that he had made a very good job of a bad situation. Further there was no evidence or suggestion that the instructor was aware or ought to have been aware with any problem with the aircraft’s engine.
However at first instance the Trial Judge had found that the instructor was negligent for not ensuring the aircraft was flown towards an appropriate landing strip immediately after a second set of vibrations were detected in the engine and continuing to fly relying on luck and a misplaced sense of invincibility;
Nevertheless, a dangerous recreational activity defence was upheld on the basis that the harm suffered by the Claimant in the emergency landing was the materialization of an obvious risk of a dangerous recreational activity engaged in by Mr Campbell.
The Claimant appealed arguing that that learning to fly under an experienced instructor’s instruction or control could not be categorised as a dangerous recreational activity.
Further, it was contended that the injury suffered on the forced landing was not the materialization of an obvious risk but rather materialized as a result of the foolhardy and irrational way that the instructor responded to the engine vibrations.
Mr Hay cross-appealed contending that he had not been negligent at all. The court ought to have determined the question of negligence on the basis of whether there had been a failure to exercise reasonable care based on an objective assessment of his actions and without regard to his subjective or internal feelings.
On appeal Ward JA wrote the leading judgment. Her Honour concluded the trial judge erred in concluding that there was any breach of duty of care at all and further said the claimant failed on causation and upheld the finding that there was a defence of dangerous recreational activity.
Her Honour commented at paragraph 90 that:
“neither that statement (that in Mr Hay’s experience mechanical problems with engines sometimes deal with themselves) nor the statement that Mr Hay could not see any reason why his sense of fate or luck would not look after him on this occasion, amounts to an admission that Mr Hay relied solely on a sense of luck or fate when this incident occurred. Mr Hay's evidence demonstrates to the contrary that he took a number of steps to respond to the situation, including taking control of the aircraft about a minute after the second set of vibrations had started to worsen, placing a mayday call, attempting to restart the engine, looking for suitable terrain to land and then effecting the forced landing. It cannot therefore be said that he trusted solely to luck. The evidence does not support a conclusion that the reason Mr Hay did not assume the controls earlier than he did was due to any innate sense of luck, misplaced or otherwise. At most, it could be said in criticism of Mr Hay that he had waited a short time to see if the vibrations corrected themselves. That was not unreasonable. Mr Hay's experience and that of the experts was that faint vibrations of the kind experienced were not uncommon and that they often cleared”.
Further Her Honour said:
“the evidence did not permit a finding as to whether, if Mr Hay had diverted at some point after the second set of vibrations had commenced, but not immediately upon their commencement, he would have been able to reach the strip and to land, without power, without having an accident of the kind which eventuated.” Her Honour said “the claimant was required to establish on the balance of probabilities that, but for the failure to divert the plane towards the alternate landing strip immediately when the second set of vibrations occurred the injury sustained in the forced landing would not have occurred”.
As to the dangerous recreational activity defence the court noted that it was not disputed that Mr Campbell, when taking flying lessons from Mr Hay, was engaged in a recreational activity. The claimant contended that there was no basis for the trial judge to conclude that flying a light aircraft under the supervision of an instructor with Mr Hay's experience was an activity that carried with it a significant risk of physical harm.
However the court held at paragraph 112 that:
“there was no basis for the criticism that his Honour wrongly characterised the relevant activity. At , his Honour expressly took into account the fact that there was an experienced pilot in the aircraft, when describing the activity as "flying with an experienced pilot in a single engine light aircraft". Therefore, implicit in his Honour's conclusion that Mr Campbell was engaged in a dangerous recreational activity must be that the presence of a highly experienced flying instructor in the aircraft did not objectively lessen the risk of physical harm involved in that activity to one that was trivial or not significant for the purposes of the s 5K definition.”
The court analysed the relevant case law at paragraph 116 and said that:
“consideration was given to the meaning of "significant risk of physical harm" in Falvo v Australian Oztag Sports Association  NSWCA 17 and Fallas, from which a number of propositions can be drawn. The definition of "dangerous recreational activity" must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at  in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at ). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at ).
"Significant risk" has been said to mean more than trivial and does not import an "undemanding" test of foreseeability (Fallas per Ipp JA at ); it does not mean a risk that is likely to occur (Fallas per Ipp JA at ) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at ); and as a general guide, it means a risk that is "not merely trivial, but generally speaking, one which has a real chance of materialising" (Tobias JA at -, this being the test his Honour applied later in Jaber v Rockdale City Council  NSWCA 98 at ). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at ; Basten JA at ).
Statistical information relied upon by the defence indicated that on average 1 fatal accident occurred per 500 light aircraft flights, having regard to the average hours per aircraft of around 50 hours per year. This demonstrated that there was a significant measure of risk proportional to usage and the length of the activity. Acknowledging that not too much reliance should be have on the statistical analysis the court nevertheless said at paragraph 135:
“criticism based on use by his Honour of a common sense approach to this question …. fails to acknowledge the force of his Honour's observation that if something were to go wrong with the operation of the aircraft in flight …. then a forced landing would be inevitable (unless the problem were able to be resolved in flight).
Ultimately the court concluded at paragraph 138 that:
“common sense indicates that, if there is complete engine failure in a single-engine light aircraft, then there is a risk that a forced landing will result and a risk that such a landing will result in serious injury or death. That risk exists whether or not the pilot is an experienced pilot, since it cannot be assumed that all engine failures can be resolved without forced landings in which there is a risk of serious injury or death. Furthermore, although one would certainly hope that the more experienced the pilot the less likely the risk that there will be pilot error contributing to the ultimate fate of the aircraft and its passenger(s), everyday human experience would lead one to conclude that even experienced people can make mistakes particularly when under the stress of an emergency or unexpected event”.
As to the submission that the harm suffered was not the materialization of the particular risk but rather due to the irrational negligent behaviour of Mr Hay, the court said at paragraph 149
“it must have been obvious to a person in the position of Mr Campbell (an adult having his third lesson in a single-engine light aircraft) that if the plane 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.”
The concept of dangerous recreational activity had been rendered somewhat of a dead letter by the narrow interpretation the Courts, particularly in New South Wales, had applied to it particularly by confining the scope of the recreational activity being engaged in. This reverses that trend. It also shows the extent to which statistical evidence can influence the court when trying to set up such a defence.