Campbell v Hay

The appeal in *Campbell v Hay* concerned a negligence claim brought by a trainee pilot against their flying instructor. The trainee pilot alleged that the instructor breached their duty of care during a flight, leading to the harm suffered. The case was heard in the Court of Appeal of New South Wales.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding that the flying instructor breached their duty of care. Specifically, the court considered whether the instructor was negligent by failing to immediately divert the aircraft upon the occurrence of a second set of faint vibrations, after an initial set had been corrected approximately five minutes earlier, or by relying on luck. Furthermore, the court had to determine if the trainee pilot had established that any such breach of duty was a causative factor of the harm sustained. The court also considered whether flying in a light aircraft under the supervision of an experienced instructor constituted a dangerous recreational activity, and if the harm suffered was the materialisation of an obvious risk of such an activity.

The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The court reasoned that the instructor's actions, or inactions, in response to the vibrations constituted a breach of the duty of care owed to the trainee pilot. The court found that the instructor's reliance on luck rather than taking immediate precautionary measures was not reasonable in the circumstances. The court also concluded that the harm suffered was a direct consequence of this breach. The defence of dangerous recreational activity was not made out, as the specific circumstances of the flight and the instructor's conduct did not align with the elements required for that defence.

Consequently, the appeal was dismissed with costs.