Recreational injury · Balloons & ultralights
Injured on a Queensland hot air balloon, ultralight or joy flight?
A flight operator must take reasonable care with its aircraft, its pilots’ decisions, its briefings and its landings. For some commercial flights, a special law applies. The operator’s liability under it can’t be signed away, and there’s a strict 2-year time limit that can’t be extended, so get advice early.
- No-obligation first consultation
- No win, no fee*
- We set out our costs in writing at the start.
The risk you took on, and the risk they created.
- A firm but normal balloon landing
- Some motion and noise in flight
- Flying in winds beyond the limits
- No landing briefing given
- An aircraft not properly maintained
A risk created by a failure to properly operate, maintain or care for equipment or an animal usually isn’t an obvious risk. (Civil Liability Act 2003 (Qld) s 13(5))
Time limits
Time limits can start on the day you’re hurt.
Most recreational injury claims start with a notice of claim. These are the deadlines, in order.
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9months
Notice of claim, or sooner
Give Part 1 of a notice of claim within 9 months of the injury (or of first symptoms, if later), or 1 month after you first ask a lawyer to act for you and the party responsible is identified, whichever comes first. (PIPA s 9(3)) A late notice can still be given, but you must also give a reasonable excuse for the delay. (s 9(5))
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1month
Their first reply
Within 1 month, they must say whether they’re the right party and whether your notice complies. (ss 10, 12)
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6months
Liability decision
Within 6 months of a complying notice, they must say in writing whether they admit liability. (s 20)
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3years
Court action
Generally within 3 years of the injury. (Limitation of Actions Act 1974 (Qld) s 11) For a child’s negligence claim, generally within 3 years after they turn 18. (s 29) Claims against a product maker, and some flight claims, have different limits that can run out sooner.
If it happened to a child
A parent can give the notice of claim for a child. (PIPA s 9) A negligence claim can generally go to court up to 3 years after the child turns 18. Claims against a product maker, or for a flight, can have shorter limits that run during childhood, and the notice has the usual deadline.
A strict 2-year limit may apply
For a commercial passenger flight, a special aviation law may replace the usual claim. Where it applies, the operator is liable without proof of fault, up to a set limit, but the right to compensation ends unless a court case starts within 2 years after the flight arrives, and that can’t be extended. Whether it covers a balloon or ultralight flight depends on how the flight was run. (Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 34, applied by the Civil Aviation (Carriers’ Liability) Act 1964 (Qld))
The obvious-risk defence
Three questions decide it.
For a dangerous recreational activity, there’s no claim in negligence for an injury from one of its obvious risks. (Civil Liability Act 2003 (Qld) s 19) Many injuries come from risks that aren’t obvious.
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Question 1
Was it a dangerous recreational activity?
An activity done for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm. A gentle ride or a beginners’ trail may not be one. (Civil Liability Act 2003 (Qld) s 18)
If not, the defence doesn’t apply
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Question 2
Was the risk obvious?
One that would have been obvious to a reasonable person in your position. It can be obvious even if it couldn’t be seen. A risk created by poor operation or maintenance usually isn’t. (s 13)
If not, the defence doesn’t apply
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Question 3
Were you the one doing it?
The defence only applies to the person doing the activity, not to spectators or bystanders. (s 19)
If not, the defence doesn’t apply
All three must be true for the defence to apply. Even then, it only covers that obvious risk.
There’s also no liability for an inherent risk, one that can’t be avoided even with reasonable care. (Civil Liability Act 2003 (Qld) s 16) A failure to warn about it can still be a claim, but not usually if the risk was obvious. (s 15) Otherwise, a claim turns on whether reasonable care was taken, and whether that caused the injury.
“At your own risk” isn’t the last word.
Waivers and signs
Signed a waiver? It may not end your claim.
Queensland has no special law, like New South Wales has, that gives recreational waivers extra force. Whether a waiver stops a claim depends on whether it was part of your contract, what it clearly covers, who signed it, and consumer law.
It has to be part of the deal
Terms first shown after you booked and paid, like a form signed on arrival, may not form part of your contract.
It’s read strictly
If a waiver’s meaning is unclear, it’s read against the business relying on it.
Some things can’t be signed away
Consumer guarantees, like the guarantee that a service is provided with due care and skill, generally can’t be signed away. (Australian Consumer Law s 64) For recreational services, a waiver can limit them for personal injury, but never for a significant injury caused by reckless conduct. (Competition and Consumer Act 2010 (Cth) s 139A)
A child’s claim is their own
A parent’s signature generally can’t sign away a child’s own claim.
How it happens
How people get hurt on flights.
A flight isn’t risk-free, but many injuries come from decisions the operator controls, like when to fly and how to land. A risk created by poor operation or maintenance usually isn’t an obvious risk. (Civil Liability Act 2003 (Qld) s 13(5))
A hard or dragged landing
A basket landing too fast, tipping over, or dragged along the ground by the wind.
Flying in poor conditions
Taking off in winds or weather beyond the aircraft’s or pilot’s limits.
No landing briefing
Passengers not shown how to brace, or where to hold, before landing.
Equipment or maintenance failure
Burners, fuel lines, harnesses or aircraft parts not properly maintained.
Getting in and out
Falls climbing into or out of the basket or aircraft without help.
Who may be responsible
Who looks after what on a flight.
More than one party may be responsible. A claim can be made against each.
The flight operator
The aircraft, its pilots, and the decision to fly in the conditions on the day.
Ask for: The booking, the flight details and any incident report
The aircraft or equipment maker
A balloon, burner, harness or aircraft part with a safety defect. (Australian Consumer Law ss 7, 138)
Ask for: The make and model, and any recall or safety notice
A maintenance organisation
Inspecting and maintaining the balloon, burners or aircraft.
Ask for: Maintenance records for the aircraft
Straight after
Four things to do now.
- Step 1
Report it straight away
Tell the operator, and note the flight, the pilot and the landing site.
- Step 2
Photograph everything
The landing site, the basket or aircraft, and your injuries. Keep your booking.
- Step 3
Get the witnesses
Names and numbers of other passengers and the ground crew.
- Step 4
See a doctor
Get treatment, and keep referrals and receipts. Treatment costs may be claimable.
Compensation
What you can claim.
- Pain and sufferingSet on the Injury Scale Value, from 0 to 100. (Civil Liability Act 2003 (Qld) s 61)
- Past and future lost earningsWages and super you’ve lost, and what the injury will cost you in future.
- Treatment costsMedical, hospital and rehabilitation costs, past and future.
- Care from familyIf the care is needed because of the injury and given for at least 6 hours a week for at least 6 months. (s 59)
- Paid care and aidsHelp at home, equipment and changes you need because of the injury.
- Travel and other costsGetting to appointments, and other out-of-pocket costs.
Your own share of responsibility can reduce damages. (ss 23, 24) Medicare and Centrelink may need to be repaid from a settlement.
How a claim runs
From the first call to court, if it’s needed.
No-obligation first consultation
We look at what happened, who may be responsible, and your time limits.
Notice of claim
Part 1 of the notice goes to the operator or the party responsible, within the time limit.
Their response
They must reply within 1 month, and say within 6 months whether they admit liability. (PIPA ss 10, 12, 20)
Evidence and reports
Records, footage, witness statements, and medical and expert reports.
Conference and offers
A compulsory conference, then written final offers if it doesn’t settle. (PIPA ss 36, 39)
Court, if needed
If the claim hasn’t resolved, proceedings start within the time limit.
If your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign.
No-obligation first consultation
You decide whether to go ahead once you know your options and the likely costs.
Everything in writing
Fees and outlays are set out in a costs agreement before we start.
Capped at 50%
Our professional fees are capped at 50% of what you recover, after refunds and outlays. (Legal Profession Act 2007 (Qld) s 347)
Questions
Questions people ask.
It may. A special law covers passengers on many commercial flights, including joy flights that start and end at the same place. Whether it covers a particular balloon or ultralight flight depends on how the flight was run. Where it applies, the operator is liable for an injury from an accident on board or while getting on or off, up to a set limit, without you having to prove fault. But a court case must start within 2 years. (Civil Aviation (Carriers’ Liability) Act 1959 (Cth) ss 28, 31, 34, applied by the Civil Aviation (Carriers’ Liability) Act 1964 (Qld))
It may not. Where the aviation law applies, an agreement that tries to remove or lower the operator’s liability under it is void. (Civil Aviation (Carriers’ Liability) Act 1959 (Cth) s 32, applied by the Civil Aviation (Carriers’ Liability) Act 1964 (Qld)) Otherwise, a waiver must be part of your contract and must clearly cover what happened.
Then the usual rules apply. A notice of claim is due within the usual deadline, (PIPA s 9) and court action is generally due within 3 years. (Limitation of Actions Act 1974 (Qld) s 11) Because it may not be clear at first which law applies, get advice straight away, and treat 2 years after the flight as the last day to start court action.
Not necessarily. The defence only covers obvious risks of an activity involving a significant degree of risk of physical harm. (Civil Liability Act 2003 (Qld) ss 18, 19) A scenic flight sold to the public may not be one, and a risk created by poor operation or maintenance usually isn’t obvious. (s 13(5))
It depends on which law applies. If the aviation law applies, a court case must start within 2 years after the flight, and that can’t be extended. A notice of claim may also be needed before then. Otherwise, a notice of claim is due within 9 months of the injury (or of first symptoms, if later), or 1 month after you first ask a lawyer to act for you and the party responsible is identified, whichever comes first, (PIPA s 9) and court action is generally due within 3 years. (Limitation of Actions Act 1974 (Qld) s 11)
Hurt somewhere else?
Hurt on a flight?
Your first consultation covers which notice applies, your time limits, and what to keep. There’s no obligation to go ahead.
No win, no fee*: if your claim doesn’t succeed, you pay no professional fees for our work. You may still have to pay outlays, such as report and court fees, if your costs agreement says so. If a court case is lost or withdrawn, or you don’t do better than an offer the other side made, you may have to pay the other side’s legal costs. We explain this in writing before you sign. This page is general information, not legal advice about your situation.