Background

Carter Newell's Injury Liability Gazette (Volume 2) (1) previously discussed the New South Wales District Court decision in Campbell v Hay (2).  Readers of the Gazette may recall this case involved a claim by the Plaintiff, Mr Campbell (Campbell) for injuries sustained as a result of a forced landing (due to engine failure) in a paddock in the Hartley Valley, NSW. 

At the time of the incident, Campbell was receiving a flying lesson from the defendant, Mr Hay (Hay) in a single engine 'Jabiru' aircraft. Campbell alleged Hay was aware of two occasions of engine vibration on the training flight and despite this, negligently failed to ensure the aircraft was only flown in areas close to suitable landing strips, to be used in the case of an emergency.

While the District Court found Hay to have been negligent in the way he responded to the second occasion of aircraft vibrations, the Court held he was not liable for the negligence because Campbell's injuries were sustained as a result of the materialisation of an obvious risk of a dangerous recreational activity.(3)

Campbell sought to appeal the District Court's decision, and Hay utilised a legal mechanism known in NSW as a 'Notice of Contention' (4) in order to have the negligence finding against him challenged without varying the District Court's ultimate decision which was in Hay's favour.

The Appeal

The NSW Court of Appeal (Court) confirmed the District Court had erred in concluding there was a breach by Hay of a duty of care owed to Campbell, but even if there had been negligence on the part of Hay in response to the engine vibrations, Campbell failed to establish causation.

As to the alleged failure to exercise reasonable care, the Court found:

  • The expert evidence at the hearing did not support the conclusion that there was a breach of the duty of care in not diverting the aircraft towards a nearby landing strip immediately on the onset of the second set of vibrations;(5)
  • Any delay in diverting the aircraft in the moments before the engine failure could not be criticised because in that time Hay would have been occupied with making adjustments in an attempt to rectify the second set of vibrations (as had successfully been done following the first set of vibration).(6)

In relation to the evidence not supporting a finding of causation, the Court said the only relevant issue on causation was whether Hay could have landed the plane safely had he diverted at an earlier point. This was a matter which Campbell failed to establish to the satisfaction of the Court because the answer would have depended on factors relevant to the nearby landing strip, any obstacles which may have been encountered and weather conditions at the site.

These findings were sufficient for the Court to dispose of Campbell's appeal (with costs), however the Court went on to consider the grounds of appeal raised by Campbell in any event.

Appeal - Ground 1 - Dangerous Recreational Activity

Campbell did not dispute that flying lessons were a 'recreational activity', he did however contend there was no basis for the District Court to have concluded that flying a light aircraft under the supervision of an experienced instructor (such as Hay) was an activity that carried with it a significant risk of physical harm.(7)

The Court rejected Campbell's criticism of the District Court confirming it was implicit in the District Court's finding(8) 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'.(9)

Had it been necessary for the Court to consider this issue, the Court confirmed it would have concluded the District Court 'did not err in concluding that flying a light (or ultra light) aircraft for recreational purposes constituted a dangerous recreational activity, notwithstanding the instructors level of experience'.(10) Relevantly, the Court said:

'common sense indicated that, if there is complete engine failure in a singe-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 … 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.'(11)

In view of the above, the Court concluded that had it been required to consider this ground of Campbell's appeal, it would have failed.

Appeal - Ground 2 - Materialisation of an Obvious Risk

As to Ground 2, Campbell submitted the relevant question was 'what was the risk that materialised in the harm in the present case?', the risk of engine failure mid-flight resulting in the need for a powerless forced landing, or the narrower risk that the pilot might negligently respond to the incident of engine problems mid-flight.(12)  Hay on the other hand, suggested the 'obvious risk' in this matter was the risk that the aircraft's engine might fail making a forced landing necessary with the obvious and inherent risks associated with a forced landing.(13)

In consideration of the parties' respective submissions, the Court concluded that Campbell's contentions had not been made out, noting:

'.. Hay had, at best, two minutes from the onset of the second set of vibrations before the engine failed completely.  However experienced he was, 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'

For this reason, the Court confirmed it would not have found in favour of Campbell in respect of Ground 2 of his Appeal.

Impact of Decision

Underwriters and flight training operators should take comfort from this decision, and the protections it appears to afford flight training and recreational operators.

The decision also provides a road map for understanding the Court's expectations as to how a defence raised in reliance on the dangerous recreational / obvious risk provisions of the Civil Liability Act 2002 (NSW) should be presented and the kinds of evidence necessary (and unnecessary) to successfully defend a Plaintiff's negligence claim.

While we expect litigation in this area will likely continue, there is clearly a body of case law building to suggest that flight training, in NSW at least, will remain within the category of dangerous recreational activity for the purpose of the CLA.