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TOUCHLINE
ISSUE 19 | NOV 2014 |
37
vibrations ceased. After the vibrations ceased, the aircraft
continued on its course before turning back for the return
leg to Katoomba and the Defendant instructed the Plaintiff
to reduce the aircraft speed and the aircraft flew normally
for the next five minutes.
The second set of vibrations occurred about five minutes
after the first set of vibrations when the plane was again
flying at 70 knots per hour. The second set of vibrations
lasted for about 30 seconds and the Defendant took
control of the aircraft and the vibrations worsened before
the engine stopped completely.
The Court noted that the period from the commencement
of the first set of vibrations to complete engine failure
was about 7 ½ to 8 minutes. The Defendant then started
looking for suitable terrain for a forced landing and
conducted a forced landing in a paddock.
The Plaintiff alleged the Defendant had been negligent
in not ensuring that the aircraft was flown towards an
appropriate landing strip immediately after the second
set of vibrations started and, “Continuing to fly towards
Katoomba relying on some ‘misplaced’ sense of innate
luck”.
The Court of Appeal found that the allegation that the
Defendant had been negligent by failing to immediately
seek a suitable landing strip was not supported by the
expert evidence. The Court noted that any delay in
diverting the aircraft in the last 20 or 30 seconds before
the engine failure could not be criticised as the Defendant
was occupied with making adjustments in an attempt to
rectify the second set of vibrations as had successfully
been done with the first set of vibrations.
The Court also rejected the contention that the Defendant
had simply “trusted solely to luck”. The Court noted the
only criticism that might be directed to the Defendant was
that he had waited a short time to see if the vibrations
corrected themselves, and this was not unreasonable
having regard to his experience and the expert evidence.
‘Dangerous recreational activity’ and
‘obvious risk’
The Court also rejected the Plaintiff’s contention that there
was no basis for the Trial Judge to conclude that flying
a light aircraft under the supervision of an experienced
instructor was an activity that carried a significant risk of
physical harm.
The Court noted that a complete engine failure in a single
engine light aircraft brings a risk that a forced landing
will result and the risk that such a landing will result in
serious injury or death. The Court further noted that this
risk exists whether or not the pilot is an experienced pilot,
since it cannot be assumed that all engine failures can be
resolved without forced landing.
The Court found that this risk must have been obvious to
a person in the position of the Plaintiff (an adult having
his third lesson in a single engine light aircraft) and
accordingly, the dangerous recreational activity defence
provided by the CLA would apply to the claim.
Accordingly, the Plaintiff’s appeal was dismissed.
Post-flight checklist
The following points emerge from these decisions:
• A sporting club or organisation may be able to take
advantage of the vicarious liability immunities provided
by Civil Liability legislation. However, the nature of
the allegations of negligence and the extent of control
which the organisation exerts over the volunteers will
be an important consideration in assessing whether any
vicarious liability arises.
• The fact a person is undertaking an activity under the
supervision of an experienced participant does not
remove the element of danger from that recreational
activity.
• Where the risk of an accident in a recreational activity is
low but the potential harm is catastrophic, that activity
can be characterised as ‘dangerous’ for the purposes
of Civil Liability legislation. This is especially relevant in
sports in which the safety of participants may depend
upon a single piece of equipment, such as the engine in
a single engine aircraft or an oxygen tank when scuba
diving.
• The assessment of whether a risk associated with a
‘dangerous recreational activity’ is ‘obvious’ requires
an assessment of whether it would be apparent to
a reasonable person in the position of the plaintiff.
In claims arising from sports in which the claimant
maintains a logbook of their activities, the logbook can
provide critical evidence to assist in that assessment.