Written by Peter CarterUpdated on July 21, 2020
A student pilot whose instructor responded to an in-flight engine failure by gliding the aircraft to a landing in a gully, has appealed a court decision that ruled he is barred from receiving injury compensation because he was engaged in a “dangerous recreational activity”.
The incident occurred in May 2007 on the return leg to Katoomba, of a training flight in a single engine Jabiru aircraft manufactured in Bundaberg. Faint engine vibrations – probably caused by carburettor icing – were felt approximately 45 minutes into the flight but disappeared when engine power was increased.
Another event began about 5 minutes later. Instructor Rod Hay took control of the aircraft about a minute and a half after it began, applied full power and carburettor heat, and switched the fuel pump on. The engine stopped about 30 sec later.
As the aircraft was descending at about 700 feet per minute, he radioed a distress call and attempted an engine re-start. He manoeuvred the aircraft around a tree then into a gully and pitched the aircraft sharply up a slope where the ultralight came to rest, injuring himself and his student.
In student Noel Campbell’s lawsuit hearing, Hay – a highly experienced flying instructor with 8,000 hours aeronautical experience – was found at fault for failing to immediately divert at the commencement of the second set of vibrations, rather than 90 sec later. Had he done so, ruled the court, the aircraft would have safely glided to a well-known private airstrip nearby.
Regardless though, the instructor was immune from liability under the Civil Liability Act because the Campbell’s injuries were sustained as a result of the “materialisation of an obvious risk of a dangerous recreational activity”, namely flying for recreation in a single-engine aircraft.
The trial judge concluded that the risk involved in the activity could not be described as trivial even though its occurrence was only infrequent and that as a result Rod Hay (and the aircraft’s insurer) was not liable at all for Noel Campbell’s injuries.
The NSW Court of Appeal reversed the lower court decision and absolved Hay of any negligence. Had Hay diverted the slow-moving aircraft towards the Dalgleish strip 90 seconds or so earlier -reasoned the court – it could not be assumed the aircraft would even have reached the strip, let alone that Hay would “have been able to land the aircraft there safely and without injury to Mr Campbell”.
“The fact that there was agreed to be a greater chance of safely landing on an airstrip rather than in a paddock does not establish causation”.
Those conclusions were enough to dispose of the appeal in Hay’s favour. The judge with whom his two colleagues expressed agreement, went on to say that Civil Liability Act immunity would appear to apply to Campbell’s “recreational” activity.
“It must have been obvious to Campbell that if the plane were to experience engine problems he would be reliant on Mr Hay to land the plane safely and that there was a risk that Hay would not be able to do so or would, in an emergency situation, make an incorrect decision”.
Campbell v Hay  NSWCA Meagher JA; Barrett JA; Ward JA, 16/04/2014 – view decision