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TOUCHLINE
ISSUE 19 | NOV 2014
The Plaintiff alleged that the Defendant had been negligent
on the following grounds:
1.
Providing a runway in a location such that high tension
electricity lines were likely to intersect the flight path
of gliders approaching the runway;
2.
Failing to instruct or warn the Plaintiff as to the
danger associated with using that runway for landing;
3.
Failing to warn the Plaintiff as to the risk of collision
with high tension electricity lines;
4.
Failing to ensure the Plaintiff was sufficiently trained
before permitting him to fly solo.
The Plaintiff conceded in his evidence that he was aware of
the power lines and further conceded he became aware of
them during his training at the Club. Justice Davies agreed
with the joint experts’ conclusion that the Plaintiff had
been appropriately trained in how to deal with the power
lines.
Justice Davies also found that the Plaintiff was sufficiently
experienced to fly solo and noted that the mere fact the
Plaintiff may have made errors from time to time did not
of itself show that he was not competent to fly solo and
there was no expert evidence suggesting, on the basis of
log book entries or otherwise, that the Plaintiff was not
sufficiently competent.
Consequently, Justice Davies found that the Club had not
been negligent
Although it was not necessary for the Court to consider the
defences raised by the Civil Liability Act 2002 (NSW) (CLA),
the Court went on to consider the protection provided to
volunteers and the defences and dangerous recreational
activity and obvious risk.
Community work and volunteers
There was no dispute that relevant persons from the
Club such as the duty pilot and the Claimant’s instructors
were volunteers for the purposes of Section 61 of the
CLA. Section 61 provides protection to volunteers from
any personal civil liability in respect of any act or omission
done in good faith while performing community work
(which includes work for sporting organisations which is
not for personal gain).
The Court noted that if the allegations of negligence
against the Club’s volunteers had been made out in
respect of activities for which the Club might be vicariously
liable, the Club would have had the benefit of Section 3C
of the CLA. This section provided the Club with the same
immunity as that provided to the volunteer. However, the
Court noted that these provisions would not shield the
Club from allegations of negligence for which the Club was
directly liable.
‘Dangerous recreational activity’ and
‘obvious risk’
Justice Davies noted that there was no real dispute that
the Plaintiff was engaged in a dangerous recreational
activity. The critical issue was whether a collision with
power lines was an obvious risk of that activity. The Court
noted that gliding involves a significant risk of physical
harm because although the risk of an accident is low, the
potential harm would be catastrophic. Further, the Court
noted the Plaintiff’s concession that landings were the
most dangerous aspects of gliding and that power lines
presented a danger which could potentially result in injury
or death.
Accordingly, the Court concluded that the risk of striking
power lines was an obvious risk of gliding over power lines
and most relevantly, performing a landing over power
lines. This was due to the need to descend over them or
very shortly after passing over them, and it was that risk
which materialised in the present case. Consequently, the
Plaintiff’s claim was dismissed.
In Campbell v Hay [2014] NSWCA 129 the Plaintiff sued
the Defendant for injuries sustained when the single
engine recreational aircraft in which he was receiving flying
lessons from the Defendant had to make a forced landing
in a paddock because of engine failure.
The Defendant was a highly experienced pilot and flying
instructor who had flown a total of 8,000 flying hours
(including 1,500 hours on the model of aircraft in which the
lesson was being conducted).
The accident occurred during a training flight in which the
Plaintiff was flying between Katoomba and Oberon under
the Defendant’s instruction. Approximately 45 minutes
after the flight commenced, the Defendant felt “subtle”
engine vibrations for a minute or so and he instructed the
Plaintiff to increase the engine revolutions, after which the
LEGAL
FOCUS