Campbell v Hay

[2014] NSWCA 129

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Campbell v Hay [2014] NSWCA 129

Hearing dates:

24 February 2014

Decision date:

16 April 2014

Before:

Meagher JA at [1];
Barrett JA at [7];
Ward JA at [10]

Decision:

1. Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

TORTS - negligence - duty of care - whether primary judge erred in finding that flying instructor breached duty of care to trainee pilot by not causing aircraft to be diverted immediately upon the occurrence of a second set of faint vibrations, after a first set of vibrations had been corrected five minutes earlier, or by relying on an innate sense of luck - whether appellant had established that any breach of the duty of care was a cause of the harm suffered
TORTS - negligence - defences - whether flying in a light aircraft under supervision of experienced flying instructor was a dangerous recreational activity
TORTS - negligence - defences - whether harm that occurred was the materialisation of an obvious risk of a dangerous recreational activity

Legislation Cited:

Civil Liability Act 2002

Cases Cited:

Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418
Falvo v Australian Oztag Sports Association [2006] NSWCA 17
Jaber v Rockdale City Council [2008] NSWCA 98
Laoulach v Ibrahim [2011] NSWCA 402
Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479
Streller v Albury City Council [2013] NSWCA 348
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422
Vremen and Morris v Albury City Council (2011) NSWSC 39

Category:

Principal judgment

Parties:

Noel Campbell (Appellant)
Rodney Victor Hay (Respondent)

Representation:

Counsel:
R S Sheldon SC with J H Reimer (Appellant)
D J Fagan SC with D A Lloyd (Respondent)
Solicitors:
Brydens Law Office (Appellant)
GSG Legal (Respondent)

File Number(s):

CA 2013/78034

Publication restriction:

Nil

 Decision under appeal 

Jurisdiction:

9101

Citation:

[2013] NSWDC 11

Date of Decision:

2013-02-19 00:00:00

Before:

Marks ADCJ

File Number(s):

DC 2010/120631

Judgment

1. MEAGHER JA: The appellant sued the respondent for injuries sustained when a single engine light recreational aircraft, in which he was receiving flying lessons from the respondent, had to make a forced landing in a paddock in the Hartley Valley near Katoomba because of engine failure.

1. The appellant's principal case was that there were two occasions during the flight when engine vibrations were encountered and that the respondent was negligent in not responding to those occasions by ensuring that the aircraft was only flown in areas close to suitable landing strips which could be…