Noel Campbell v Rodney Victor Hay  NSWDC 11
March 27, 2013
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’).
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.
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.
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