G'day All
Happy 2014!
Here is
something that will interest those of you who are aircraft operators in
Australia. Chances are you have
heard about this but not the ongoing significance.
It is a legal case
that seems to have redefined legal liability for passengers and
students...not only for ultralights (which was the subject of the case)
but also gliding and GA.
I have heard stories that the
insurance companies are sitting on this one. They are still charging
significant premiums for pax/student liability but it now seems unlikely
that they will ever have to pay out.
Hmmmm..read on
cheers
Rob Thompson
Noel Campbell v Rodney Victor Hay [2013] NSWDC 11
March 27, 2013
Introduction
The District Court of NSW recently dismissed a plaintiff’s claim for
injuries suffered as a result of an emergency landing of a light
aircraft on the basis that the injuries suffered by the plaintiff
resulted from the materialisation of an obvious risk of a dangerous
recreational activity.
Marks ADCJ held that although the defendant flight instructor was
negligent in carrying out the emergency landing, the defendant was not
liable for the plaintiff’s injuries pursuant to s5L of the Civil Liability Act
(‘the Act’).
Facts
The plaintiff was a student of the defendant and was learning to fly a light
aircraft. In the course of his second flying lesson the aircraft
engine stopped. The defendant took control of the aircraft and executed
an emergency landing during which the plaintiff sustained injuries.
The plaintiff alleged that his injuries resulted from the defendant’s
negligence in failing to abort the flight as soon as any engine
‘roughness’ appeared, attempting to land at an excessive speed, and
flying over rough terrain with no suitable landing sites’, amongst other things.
Marks ADCJ found that the defendant failed to exercise reasonable
care for the safety of the plaintiff in not ensuring that the aircraft
was flown towards an appropriate landing strip immediately after the
second set of engine vibrations started and continuing to fly rather
than trying to land the aircraft.’
Dangerous recreational activity defence
The defendant pleaded that the injuries suffered by the plaintiff
resulted from the materialisation of an obvious risk of a dangerous
recreational activity pursuant to s5L of the Act.
Section 5L of the Act provides that:
(1) A person is not liable in
negligence for harm suffered by another person as a result of an obvious risk
of a dangerous recreational activity
(2) This section applies whether or not the plaintiff was aware of the risk.
Marks ADCJ considered three questions:
* Was the plaintiff engaged in a recreational activity?
* Was that recreational activity ‘dangerous’?
* Was there an obvious risk?
His Honour held that the plaintiff clearly was engaged in recreational
activity; this was not controversial.
In considering whether the recreational activity engaged in by the plaintiff
was ‘dangerous’, his Honour referred to s5K of the Act which defines a
dangerous
recreational activity as ‘a recreational activity that involved a
significant risk of physical harm’.
In assessing whether a recreational activity involves a significant
risk of physical harm, Marks ADCJ stated that he must take into account‘all of
the relevant circumstances that bear on the activity in which
the plaintiff was engaged at the time he suffered his injuries’.
Those circumstances were that the plaintiff was flying with an
experienced pilot in a single engine light aircraft, and that the
aircraft was flying above ground and needed to be landed safely to avoid any
risk of harm.
His Honour held that there is a risk of something going wrong with
the operation of any aircraft which will impact on the operation of the
aircraft and the ability to land it safely. This finding was said by His Honour
to be a matter of logic, common sense and general understanding
likely to be shared in the public domain.
Support for determination of the issues on this ‘common sense’ basis, provided
there was a valid basis for doing so, was found in the
numerous authorities to which Marks ADCJ referred.
His Honour referred to and relied on evidence tendered by the
defendant. That evidence included statistics in relation to the
accidents involving light aircraft.
His Honour held that having regard to the defendant’s evidence, the
risk of something ‘going wrong’ in the operation of an aircraft in
flight and in safely landing the aircraft could not be described as
trivial, even though the risk of something going wrong occurred
infrequently.
On that basis, the court found that there was a significant risk of
physical harm. This finding, coupled with the finding that there ‘was a
not insignificant risk of something going wrong’ led the court to find
that the recreational activity in which the plaintiff was engaged was
dangerous for the purpose of s5L of the Act. Accordingly, the defendant
was not found liable to the plaintiff for his injuries.
Conclusion
This case is useful in identifying the matters a defendant needs to
prove in order to establish that the injuries suffered by a plaintiff
resulted from the materialisation of an obvious risk of a dangerous
recreational activity.
Authored by Kathryn Langton, Lawyer, Sydney.
........................................
On Thursday, 19 December 2013 2:25 PM, Ian Mc Phee <[email protected]> wrote:
The magazine Airwaves which has comes out with this months Aviation Trader has
a feature article from Hoffman to today with DA20s & DA40s etc. May even worth
a read
Ian mcphee
