Noel Campbell v Rodney Victor Hay - [2013] NSWDC 11

District Court

New South Wales

Medium Neutral Citation: Noel CAMPBELL v Rodney Victor HAY [2013] NSWDC 11
Hearing dates: 22-26 October 2012, 10-11 December 2012
Decision date: 19 February 2013
Before: Marks ADCJ
Decision:
(1) The plaintiff's claim dismissed.
(2) Costs reserved.

Catchwords: TORTS - plaintiff student of defendant in aircraft - engine failure and forced landing - claim for damages - held injuries materialisation of an obvious risk of a dangerous recreational activity - claim dismissed under Sec 5L of Civil Liability Act.
Legislation Cited: Civil Liability Act 2002 (NSW)
Cases Cited: Jaber v Rockdale City Council [2008] NSWCA 98;
Lormine Pty Ltd v Xuereb [2006] NSWCA 200;
Vairy v Wyong Shire Council [2005] HCA 62;
Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831, [2006] NSWCA 17;
Rogers v Whitaker [1992] HCA 58, (1992) 175 CLR 479;
Fallas v Mourlas [2006] NSWCA 32;
Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40;
Vremen and Morris v Albury City Council (2011) NSW SC 39.
Category: Principal judgment
Parties: Noel Campbell (Plaintiff)
Rodney Victor Hay (Defendant)
Representation: Counsel
A J Lidden SC with J Reimer (Plaintiff)
D Lloyd (Defendant)
Solicitors
L Hagipantelis (Plaintiff)
M A Gray-Spencer (Defendant)

File Number(s): DC 2010/120631

Judgment

Introduction

By third further amended statement of claim the plaintiff Noel Campbell seeks damages from the defendant Rodney Victor Hay arising out of injuries sustained by him on 15 May 2007. On this day the plaintiff was a student of the defendant in a light aircraft which the plaintiff was learning to fly. During the course of the lesson, the aircraft engine stopped and the defendant was forced to take over the controls and undertake a forced landing in which the plaintiff sustained certain injuries. The aircraft in question was a Jabiru light plane which was made available to the plaintiff by the defendant for the purpose of taking flying lessons.

The plaintiff alleged that the defendant was negligent in a number of ways. These included:

(a) failing to abort the flight as soon as any engine roughness appeared

(b) failing to engage the aircraft flaps while landing so as to reduce the speed of the aircraft on landing

(d) flying over rough terrain with no suitable landing sites

(e) failing to recognise that the engine of the aircraft was affected by carburettor icing

(f) failing to take appropriate steps to ensure that the engine did not fail including failing to select the power setting, apply carburettor heat, and switch on the auxiliary fuel pump

(g) failing to attempt to restart the engine so as to avert the crash.

An amended defence raised a number of issues by which the defendant resisted the plaintiff's claim. The defendant;

(a) claimed the benefit of an exclusion provision in the contract for hire of the aircraft which excluded any claim for loss or damage arising from breakdown, defect or…

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] NSWDC 11
Decision Date: 19 February 2013

CaseChat Overview and Summary

Noel Campbell, a student pilot, initiated proceedings against Rodney Victor Hay, his flight instructor, seeking damages for injuries sustained during an engine failure and forced landing in an aircraft. The dispute was heard by the court, which was tasked with determining whether Hay was liable for the injuries under the principles of negligence and whether the claim was precluded by the recreational activities exception in Section 5L of the Civil Liability Act.

The court was required to decide whether Hay's actions, or lack thereof, constituted a breach of duty of care towards Campbell, and if so, whether the risk of injury was an obvious risk of the recreational activity that Campbell voluntarily undertook. The court also had to consider whether the exception under Section 5L of the Civil Liability Act applied, which provides that liability for injury is not incurred if the injury results from an obvious risk of a recreational activity.

In delivering its decision, the court found that the risk of engine failure in flight was an obvious risk inherent to the activity of flying an aircraft. The court further held that Campbell, as a student pilot, was aware of this risk and voluntarily undertook the activity. Consequently, the court ruled that Hay was not liable for the injuries sustained by Campbell under the principles of negligence, and the claim was dismissed under Section 5L of the Civil Liability Act. The court's decision was that the plaintiff's claim was dismissed, and costs were reserved.

Orders

Orders of the court

(1) The plaintiff's claim dismissed.

(2) Costs reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Noel CAMPBELL v Rodney Victor HAY [2013] NSWDC 11
Hearing dates:	22-26 October 2012, 10-11 December 2012
Decision date:	19 February 2013
Before:	Marks ADCJ
Decision:	(1) The plaintiff's claim dismissed. (2) Costs reserved.
Catchwords:	TORTS - plaintiff student of defendant in aircraft - engine failure and forced landing - claim for damages - held injuries materialisation of an obvious risk of a dangerous recreational activity - claim dismissed under Sec 5L of Civil Liability Act.
Legislation Cited:	Civil Liability Act 2002 (NSW)
Cases Cited:	Jaber v Rockdale City Council [2008] NSWCA 98; Lormine Pty Ltd v Xuereb [2006] NSWCA 200; Vairy v Wyong Shire Council [2005] HCA 62; Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831, [2006] NSWCA 17; Rogers v Whitaker [1992] HCA 58, (1992) 175 CLR 479; Fallas v Mourlas [2006] NSWCA 32; Wyong Shire Council v Shirt [1980] HCA 12, (1980) 146 CLR 40; Vremen and Morris v Albury City Council (2011) NSW SC 39.
Category:	Principal judgment
Parties:	Noel Campbell (Plaintiff) Rodney Victor Hay (Defendant)
Representation:	Counsel A J Lidden SC with J Reimer (Plaintiff) D Lloyd (Defendant) Solicitors L Hagipantelis (Plaintiff) M A Gray-Spencer (Defendant)
File Number(s):	DC 2010/120631