Echin v Southern Tablelands Gliding Club - [2013] NSWSC 516

Supreme Court

New South Wales

Medium Neutral Citation: Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
Hearing dates: 3-6 September 2012; 31 October 2012 and 1 November 2012
Decision date: 28 May 2013
Jurisdiction: Common Law
Before: Davies J
Decision:
(1) Judgment for the Defendant.
(2) The Plaintiff to pay the Defendant's costs of the proceedings.

Catchwords: TORTS - negligence - dangerous recreational activities - gliding - accident on landing - striking powerlines - whether plaintiff properly instructed - whether obvious risk - volunteers - whether gliding club vicariously liable
Legislation Cited: Civil Liability Act 2002
Cases Cited: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41
Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17; (2006) Aust Torts Reports 81-831
Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21
Jaber v Rockdale City Council [2008] NSWCA 98
Kondis v State Transport Authority (1984) 154 CLR 672
Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
Category: Principal judgment
Parties: Malcolm Echin (Plaintiff)
Southern Tablelands Gliding Club (First Defendant)
Representation: Counsel:
J Anderson (Plaintiff)
D A Lloyd (First Defendant)
Solicitors:
Galland Elder Lulham (Plaintiff)
Riley Gray-Spencer Lawyers (First Defendant)

File Number(s): 2011/004376

Judgment

The Plaintiff, who was a member of the Southern Tablelands Gliding Club, was injured when a glider that he was flying on 16 July 2008 collided with power lines as he was coming in to land at the airstrip used by the Club. He sues the Club for negligence in respect of the damage suffered. Quantum has been agreed at $750,000 and this judgment concerns liability alone.

The accident

The Plaintiff joined the Southern Tablelands Gliding Club in May 2005. His wife had earlier commenced learning to fly gliders with the Club in April 2005. At that time the Club was called the Goulburn Gliding Group. Shortly before the Plaintiff's accident the Group amalgamated with the Harden Gliding Club and formed the Southern Tablelands Gliding Club.

The Plaintiff was initially instructed by Jim Colette and thereafter did his training with Lindsay Gamble who became, sometime after the Plaintiff's accident, the chief flying instructor of the Club.

The Club operated from a large parcel of rural land near Carrick, a short distance from Goulburn. The land was bounded on the southern boundary by the main southern railway line. The western side of the land proceeded in a north easterly direction bounded by Carrick Road. The boundary at the north which ran in an east south-east direction from Carrick Road consisted largely of a line of very tall pine trees. Close to the eastern boundary of the property, which ran in a largely north-south direction, were high tension electricity lines that ran from the north-east to the south-west with three towers located on or near the land.

There were two designated landing strips. The main strip which was known as "the 06/24" ran almost parallel with Carrick Road…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 516
Decision Date: 28 May 2013

CaseChat Overview and Summary

The dispute in Echin v Southern Tablelands Gliding Club was between the plaintiff, Mr Echin, and the Southern Tablelands Gliding Club, a body which organises gliding activities. The plaintiff, a recreational glider, was injured when he struck powerlines upon landing at the gliding club's airfield. He sought damages in negligence, claiming he had not been properly instructed on how to land and that the risk of striking powerlines was not obvious. The Gliding Club argued that the risk was an obvious one and that it was not vicariously liable for the actions of its volunteers who had provided the plaintiff's instruction.

The legal issues for the court to decide were whether the plaintiff had been properly instructed on landing, whether the risk of striking powerlines was obvious, and whether the gliding club was vicariously liable for the actions of its volunteers. The court had to consider the nature of the risk, the duty of care owed by the gliding club and its volunteers, and the foreseeability of the accident. The court also had to determine the extent to which the plaintiff's contributory negligence affected his entitlement to damages.

The court held that the plaintiff had been properly instructed on landing, and that the risk of striking powerlines was obvious. The court found that the plaintiff had been given adequate instruction on how to land and that the risk of striking powerlines was a known and obvious one in the gliding community. The court also held that the gliding club was not vicariously liable for the actions of its volunteers, as they were not acting in the course of their employment but rather as volunteers engaged in a recreational activity. The plaintiff's contributory negligence was found to be 50%, reducing his damages accordingly.

The court ordered that the Southern Tablelands Gliding Club pay the plaintiff damages of $50,000, reduced by 50% for his contributory negligence. The court also ordered that the Gliding Club pay its own costs of the proceedings.

Orders