Supreme Court New South Wales

• Medium Neutral Citation: Echin v Southern Tablelands Gliding Club [2013] NSWSC 516
• Hearing dates: 3-6 September 2012; 31 October 2012 and 1 November 2012
• Decision date: 28 May 2013
• Jurisdiction: Common Law
• Before: Davies J

Decision

(1) Judgment for the Defendant.

(2) The Plaintiff to pay the Defendant's costs of the proceedings.

• Catchwords: TORTS - negligence - dangerous recreational activities - gliding - accident on landing - striking powerlines - whether plaintiff properly instructed - whether obvious risk - volunteers - whether gliding club vicariously liable
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41; Falvo v Australian Oztag Sports Association & Anor [2006] NSWCA 17; (2006) Aust Torts Reports 81-831; Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21; Jaber v Rockdale City Council [2008] NSWCA 98; Kondis v State Transport Authority (1984) 154 CLR 672; Scott v Davis [2000] HCA 52; (2000) 204 CLR 333
• Category: Principal judgment
• Parties: Malcolm Echin (Plaintiff); Southern Tablelands Gliding Club (First Defendant)
• Representation: Counsel: J Anderson (Plaintiff); D A Lloyd (First Defendant); Solicitors: Galland Elder Lulham (Plaintiff); Riley Gray-Spencer Lawyers (First Defendant)
• File Number(s): 2011/004376

Judgment

1 The Plaintiff, who was a member of the Southern Tablelands Gliding Club, was injured when a glider that he was flying on 16 July 2008 collided with power lines as he was coming in to land at the airstrip used by the Club. He sues the Club for negligence in respect of the damage suffered. Quantum has been agreed at $750,000 and this judgment concerns liability alone.

The accident

2 The Plaintiff joined the Southern Tablelands Gliding Club in May 2005. His wife had earlier commenced learning to fly gliders with the Club in April 2005. At that time the Club was called the Goulburn Gliding Group. Shortly before the Plaintiff's accident the Group amalgamated with the Harden Gliding Club and formed the Southern Tablelands Gliding Club.

3 The Plaintiff was initially instructed by Jim Colette and thereafter did his training with Lindsay Gamble who became, sometime after the Plaintiff's accident, the chief flying instructor of the Club.

4 The Club operated from a large parcel of rural land near Carrick, a short distance from Goulburn. The land was bounded on the southern boundary by the main southern railway line. The western side of the land proceeded in a north easterly direction bounded by Carrick Road. The boundary at the north which ran in an east south-east direction from Carrick Road consisted largely of a line of very tall pine trees. Close to the eastern boundary of the property, which ran in a largely north-south direction, were high tension electricity lines that ran from the north-east to the south-west with three towers located on or near the land.

5 There were two designated landing strips. The main strip which was known as "the 06/24" ran almost parallel with Carrick Road from the south-western end of the land to a point approximately in the middle of the line of pine trees on the northern boundary. That was the landing strip from which the gliders were launched. The other strip ran in an approximately east-west direction down towards the southern end of the land. It was situated between the hangar and a large clump of trees to the north. That runway was known as the "12/30 or 28 runway" (sometimes called the 10 runway).

6 The numerical description derives from a convention that runways are designated by using the first two digits of their approximate orientation from north. So, the runway running from south-west to north-east was at 60 degrees and was therefore known as "06". The same runway (called a reciprocal runway) running north-east to south-west was at 240 degrees and was known as "24". Accordingly, if a plane was taking off from south-west to north-east (as the gliders did at this airfield) they would be using runway 06. If they were landing, north-east to a south-west direction, they would be using runway 24 although it is the same strip of land. Because the degree orientation is approximate, this runway is sometimes referred to as the 5/23 runway (ie 50 and 230 degrees).

7 It was possible to land the planes at other places within the boundaries of the land. There was, for example, an area that enabled a plane to land in approximately a north-east to south-west direction between the clump of trees in the middle of the land and the hangar. This was an area where the Plaintiff's wife landed as demonstrated in a DVD in evidence. There was also evidence that it was possible to "land along the pines", that is to say, from a south-easterly to north-westerly direction parallel with the row of pines at the northern end of the property finishing in an area close to the northern end of the main landing strip.

8 The Plaintiff's logbook was in evidence. It must be said at the outset that the record keeping that was to be expected from the layout of the logbook was found wanting. There were very few occasions where the instructor's signature appeared. The timings of the flights were often entered in the wrong column. Very few of the entries in the "Remarks" column were entries made by the instructor.

9 The logbook disclosed that the Plaintiff's first solo flight was flight number 76 on 5 December 2006. That was some 19 months after he commenced to fly. Thereafter he undertook a number of solo flights but also a number of dual flights generally with Mr Gamble but also with some other people including his wife. I will return to some of the flights in the logbook a little later in this judgment.

10 On the day of the accident the Plaintiff undertook four flights. The first was a 12 minute solo flight. The second of these was with Graham Hayward who was also an instructor. The third was an 8 minute solo flight. The fourth flight that day during which the Plaintiff had his accident was his 150th flight.

11 On that fourth flight the Plaintiff said he released the cable from the catch to the winch at approximately 1200 feet above ground. He said he was unable to find any "lift" from the air because it was mid-winter. He said he planned a right hand circuit to land the aircraft on runway 24, that is, from north-east to south-west on the main strip. However, the Plaintiff said that the duty pilot informed him by radio "make this a hangar landing". A hangar landing was where a plane was landed at a point close to the hangar because it was the final flight that day in respect of that plane. The benefit of a hangar landing was that there was not a great distance to tow the glider back to the hangar.

12 The usual procedure before landing is to fly what is called a downwind leg, then turn 90 degrees to the right and fly what is called the base leg and thereafter to turn 90 degrees to the right for the final approach. The Plaintiff said that, since the wind was generally from the west, he decided to land the aircraft on the 30 strip, that is to say, on the strip that runs east to west on the southern end of the property.

13 Although there was some dispute amongst the witnesses about the precise legs flown by the Plaintiff before he attempted a landing, what is tolerably clear is that his downwind leg was largely in a west-east direction where he crossed the power lines towards the east. He then turned south for the base leg and thereafter turned to the west for the final approach. This necessitated crossing the powerlines for a second time. The plan of this approach is an attachment to Mr Berry's statement.

14 The Plaintiff had commenced the flight at about 3:20pm. The logbook indicates that the flight was an 11 minute flight so it was little after 3:30pm as he approached the strip. He said he was flying towards the sun which was low in the sky. When he thought he had overflown the power lines he deployed the dive brakes in order to increase the descent rate of the glider for landing. Within a second or two of deploying the dive brakes the aircraft collided with the powerlines and fell approximately 100 feet to the ground.

The Plaintiff's training and experience

15 All of the Plaintiff's training was done with instructors at the Southern Tablelands Club. Initially Jim Collette flew with the Plaintiff and instructed him. After Mr Collette moved to the south coast the Plaintiff did his training with Lindsay Gamble who later became the Chief Flying Instructor of the Club. As mentioned earlier the logbook showed that the Plaintiff's first solo flight was flight number 76 on 5 December 2006, some 19 months after he commenced to fly. More detail is to be found in the logbook from the time of the Plaintiff's first solo flight than appears before that flight.

16 The logbook discloses that prior to the day of the accident the Plaintiff had performed six hangar landings. The first of these was with an instructor before he had flown solo. The Plaintiff was unable to remember which strip he had landed on to bring the glider close to the hanger.

17 The second hangar landing was flight 97 on 8 April 2007. The flight was a dual one with another club member called Richard Goodman who was not an instructor. The landing was on runway 12 (or 10) which was the reciprocal runway on which the Plaintiff was endeavouring to land when he had his accident. Runway 12 meant an approach from west to east on that runway. His third hangar landing was on the same day in a solo flight (no 101) and that was a landing across the power lines on runway 30 (or 28) - the way he was attempting to land on the day of the accident.

18 He gave this evidence concerning that landing (at T 60):

Q. And while you are on that page of the log book you told his Honour yesterday that flight 101 was a solo hangar landing that you did on runway 28?

A. Yes.

Q. Correct?

A. Correct.

Q. By that you mean that that was an approach on that runway 28 from the east to the west?

A. Yes.

Q. And that was a hangar landing which required you to fly over the power lines?

A. Yes.

Q. And you successfully flew over the power lines in that solo hangar landing, correct?

A. Correct.

Q. And when you flew over the power lines for the purposes of that hangar landing you knew that it was important to obtain sufficient clearance to get over the top of them?

A. Yes.

Q. And you knew that that was important because it was essential to maintain sufficient clearance, otherwise you might collide with the lines?

A. Yes.

Q. And in particular you knew that there was a top line that essentially ran from the very top of the towers and ran between them, correct?

A. I don't know that I was aware at that time, no.

Q. You knew when you went over the power lines, I suggest to you, to perform the hangar landing for flight 101 that you needed to clear the top power line. That was the relevant one you needed to clear?

A. Well clear, yes.

Q. Well clear. And by well clear, and we will come to this later, you knew that the clearance you needed to achieve was about one and a half wing spans?

A. Yes.

Q. You knew that because you had been told that by Mr Gamble, correct?

A. Correct.

19 The fourth and fifth hangar landings were flights 105 and 109. Both of those flights were with another person and both involved a landing on runway 10.

20 The final flight with a hangar landing before the accident was flight 141. This was a solo flight on 21 May 2008. The Plaintiff is unable to remember which runway he used on that occasion.

21 Evidence in relation to hangar landings was that they could be achieved by a number of approaches. First, there could have been a long landing on runway 24 (the main strip running northeast to southwest). Secondly, there could have been a tail wind landing on runway 12. Thirdly, there could have been a landing in the grassed area that was known as the auxiliary runway. This was the place where the Plaintiff's wife had landed in the DVD (referred to in para [7] above). The two experts who gave evidence in the case, Kenneth Flower and Colin Vassarotti agreed that they were the options in decreasing order of safety. The reference to a tail wind landing comes from the fact that, according to a contemporaneous note made by Mr Hayward, there was a westerly wind of 3 knots at about the time of the accident.

22 The Plaintiff said that he had never been told that a hangar landing could be performed on the main strip from northeast to southwest. He knew about doing a hangar landing on runway 10 (or 12) because he had done that. Such a landing, he agreed, did not require him to go over or deal with the power lines. He was also told that he could land on the auxiliary strip to do a hangar landing.

23 The Plaintiff said also that he was aware of the power lines including the top power line and that he knew that he needed to clear that power line. He had been taught that he needed to clear obstacles by about one and a half wing spans. He knew also that by doing a hangar landing on runway 28 he would be flying over the power lines and it was necessary to clear them.

24 He remembered that Mr Gamble had said that runway 28 from east to west could be used but that he (Mr Gamble) did not like to use it because of the power lines. The Plaintiff said that when he flew over the power lines west to east on the down wind leg he noticed the three towers between which the power lines were strung. He agreed that the relevant point to clear by way of obstacle clearance was the uppermost point of the tower although he said that he was not aware of the specific location of the top power line that was strung between the top points on the towers. The obvious power lines, he said, were the ones strung on the lower arms. Nevertheless, when he flew the down wind leg he knew that the relevant obstacle to clear was the top of the power towers and that he needed to do that when he came back on the final leg.

Particulars of negligence

25 The particulars of negligence against the Club were said to be these:

(a) Providing and/or designating a runway (runway 12/30) in a location such that the high tension electricity lines were likely to intersect flight path of aircraft approaching the runway to land from the east;

(b) Failing to instruct the plaintiff adequately or at all as to the danger associated with attempting to use runway 30 for landing;

(c) Failing to instruct the plaintiff adequately or at all as to the risk of collision with the high tension electricity lines when attempting to land on runway 30 during the late afternoon;

(d) Instructing the plaintiff to perform a "hangar landing" in circumstances where the plaintiff was not sufficiently experienced;

(e) Failing to ensure that the plaintiff was sufficiently trained and/or experienced before permitting the plaintiff to fly as sole pilot in command.

(f) Failing to ensure that the plaintiff was operating the aircraft under the direct supervision of a Level 2 Instructor in breach of regulation 7.1.1 of the Gliding Federation of Australia operational regulation.

(g) Failing to ensure that the day's operations were being conducted under the direct supervision of a Level 2 instructor in breach of regulation 7.1.1. of the Gliding Federation of Australia operational regulations.

(h) Permitting a Level 1 instructor to take charge of the first defendant's operations in breach of clause 17.1.3.1 of the GFA manual of standard procedures.

Expert evidence

26 The experts prepared a joint report, answering specific questions, on the basis of assumptions that were put to them. It is necessary, therefore, to set out the assumptions before making reference to the joint opinion expressed by them. The assumptions were these:

ASSUMPTIONS

7. The plaintiff, Mr Malcolm Echin was born on 30 October 1952, As at 16 July 2008 he was 55 years old and enjoyed good health.

8. The plaintiff was a member of the Southern Tablelands Gliding Club ("STGC") which was based at Carrick Road, approximately 10 kilometres West North West of Marulan.

9. The airfield contained three (3) unsealed runways. The main runway was 23 and ran roughly north to south. There was also a runway 28 which ran roughly west to east. There was also an auxiliary runway that was in a roughly east/west direction near the hangar. As at July 2008, the auxiliary runway was a recently mown area.

10. The relevant features of the Carrick airfield are depicted in Annexure "A" to Mr Hayward's statement.

11. The eastern entry point of runway 28 was situated about 160 metres from high transmission lines erected on "grasshopper" pylons. The power lines ran approximately perpendicular to the extended centre line of runway 28.

12. The use of runway 28 by pilots at all times up to and including 26 July 2008 was as follows:-

a. The plaintiff contends that from time to time pilot club members would land on the 12/30 runway for the purpose of performing a "hangar landing"; i.e. landing the aircraft so it stopped near the hangar thereby minimizing the time and effort required to put it away. The plaintiff further contends that at no time before the accident was he ever given any instruction in relation to utilizing the 12/30 strip only in cases of emergency or as to procedures to be adopted when utilizing the 12/30 strip.

b. The first defendant contends that pilots on occasion used runway 28 in an approach from the east, if the wind meant that other landing options were unsuitable. It was rare for Runway 28 to be used for east-west landings.

(In your report please give an alternative opinion, if necessary, upon the assumption that either a. or b. above is found to be the fact.)

13. As at 16 July 2008 the plaintiff had approximately 38 hours total experience (150 launches). He had 9 hours 11 minutes solo experience (36 launches) in Blaniks and 58 minutes solo experience (6 launches) in a Bocian.

14. The plaintiff underwent almost all of his instruction and flight training at STGC at the Carrick airfield.

15. Before any flying activities were undertaken at the Carrick airfield there was a pre-flight briefing conducted by the Duty Instructor/Pilot on the day. The Duty Instructor/Pilot was a member of the Club who had volunteered for that position. At in-flight briefings on and/or prior to the 16 July 2008:

a. The first defendant contends that it was common for the Duty Instructor/Pilot to refer to the existence and location of the power lines,

b. The plaintiff contends that it was not common for the Duty Instructor or the Duty Pilot to refer at the briefing to the existence and location of the power lines.

(Again, in your report please give an alternative opinion if necessary upon the assumption that either a. or b. above is found to be the fact.)

16. At the pre-flight briefing on 16 July 2008, the Duty Instructor/Pilot said to the plaintiff and the other members flying that day:

"The weather bureau forecast for landing is 280 degrees and 15 knots, therefore we will be using Runway 23. We will be taking out two Blaniks. "

17. Prior to 16 July 2008, the plaintiff was aware of the existence and location of the power lines.

18. By 16 July 2008 the plaintiff had completed the practical requirements of his Gliding Federation of Australia "A, B & C" certificates. He had been gliding for three (3) years and flew approximately once per month.

19. The plaintiff had previously landed on runway 28 at the southern end of the field whilst flying a Blanik solo on 21 May 2008.

20. Mr Echin was instructed using the Gliding Federation of Australia Gliding Instructor's Hand Book.

21. The first defendant's case is that the training given to the plaintiff was as set out in the statement of Mr Gamble and we refer you to that statement. The plaintiffs evidence is that at no time either on or before 16 July 2008 was he ever given any specific instruction in relation to:-

(i) Utilising the 30 strip (alternatively referred to as the 28 strip) adjacent to the hangar only in cases of emergency, or

(ii) Procedures to be adopted when utilising the 30(28) strip.

22. Please make alternative assumptions in answering the questions below that the training was given as per Mr Gamble's statement or alternatively that the position is as stated by the plaintiff.

23. Mr Gamble instructed the plaintiff on how to land the gliders using different angles to their aiming point as preparation for cross-country (i.e. for landing a glider in a paddock different to where they took off from).

24. In the normal course of their training Mr Gamble checked that the plaintiff was capable of the following:-

a. monitoring his position in the circuit around the airfield;

b. modifying the circuit as necessary to avoid obstacles;

c. landing safely; and

d. selecting an appropriate landing approach.

25. Mr Gamble instructed the plaintiff that he could use runway 28 from west to east. He also instructed the plaintiff that he could use runway 28 from east to west but he did not like to use it because of the power lines.

26. At the time of the subject incident Mr Echin had obtained a level of experience to be flying solo,

27. On 16 July 2008 the plaintiff completed three (3) winch-launch flights taking off from runway 23.

28. The plaintiff took off for a fourth flight. Whilst he was in the air and before he re-joined the circuit to land, the Duty Instructor/Pilot made radio contact with the plaintiff and said to him "make this a hangar landing" or "you might as well take it to the hangar" or "this is a hangar flight."

29. The plaintiff re-joined the circuit to make his landing. He attempted to land on runway 28 from east to west coming in over the power lines. The aircraft collided with the top cable of the power lines and tumbled approximately 100 feet before impacting the ground. The plaintiff suffered some injuries.

30. On 7 November 2010 the Chief Flying Instructor of the Gliding Club sent an email in which he said the following: "Landings on runway 28 involve flight much too close to the power lines and are banned except in an emergency. A hangar landing is not an emergency."

27 Before dealing with the answers given by the experts to questions asked of them and to their oral evidence I should say that I found both experts to be helpful and objective witnesses. They were in almost complete unanimity in the views they expressed. Indeed, a person reading their evidence or listening to it would be unlikely to be able to determine by which side each was retained unless so informed. Their evidence was of considerable assistance to me in coming to the conclusions I have reached in the matter. In what follows I have not said very much about their oral evidence because it rarely qualified what was contained in their joint report.

28 The joint opinion of the experts in their report is relevantly as follows:

Q1. Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in providing and/or designating runway 12/30?

29 The experts first considered this question on the basis that assumption 12(a) was found to be the fact. Assumption 12(a) was that from time to time pilot club members would land on that runway for the purpose of performing a hangar landing but at no time before the accident was the Plaintiff ever given any instruction in relation to utilising that runway only in cases of emergency or as to the procedures to be adopted when using that runway.

30 The experts' conclusion was this:

We agree that specific instruction in the risks to be managed and the techniques needed for a safe and accurate landing on 30 should have been a prerequisite to the Plaintiff's use of that runway. Our agreed opinion is that assumption 17 and paragraph 22 of his statement confirm he was aware of the power line hazard. ... Our agreed answer to alternative one is NO. As long as pilots are made aware of and trained to land safely over the obstruction across the approach to runway 30 (sic).

31 The experts then considered assumption 12(b) as an alternative. That assumption was that it was rare for that runway to be used for east-west landings and it was used from the east if the wind meant that other landing options were unsuitable.

32 The experts agreed that that runway should have been rarely used for east to west landings and only if prevailing conditions rendered other runways unsuitable. Their answer to the question was NO, provided pilots using the airfield were made aware of and trained to land safely over the obstruction to runway 30.

33 Accordingly, whichever alternative was found, the experts considered that the Club was not negligent provided the pilots were made aware of the obstruction and trained to land safely over it.

34 The Plaintiff not only was aware of the obstruction created by the power lines but said that he had become aware of it during his training. Further, as his evidence set out above shows, he was instructed how to deal with such obstructions, and he had landed safely on that runway over the power lines previously when flying solo. I agree with the experts' answer to this question for the reasons they give and because the Plaintiff knew of the power lines and had been appropriately trained in how to deal with them.

35 Question 2 asked:

Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in its instructions and training given to the Plaintiff prior to the commencement of the flight on 16 July 2008 in relation to landing in general and in particular in landing in the late afternoon?

36 There were two alternatives. Alternative one was that it was found as a fact that training was given in accordance with Mr Gamble's statement. The experts found that if it was, Mr Gamble's actions accorded with sound training practice within Gliding Federation of Australia (GFA) norms and their agreed answer to alternative one was NO.

37 Alternative two in answering this question was that it was found as a fact that the Plaintiff was not given specific instruction about using runway 30 only in emergency or in the procedures to be adopted when using runway 30.

38 On this alternative the experts agree that the Plaintiff should have received such instructions. They provided a qualified YES to the question with the qualification being that the Plaintiff was aware of the powerlines and he had received training before being cleared for his solo flight including landing technique, landing area selection and safe clearance of obstacles.

39 It is necessary, therefore, to consider Mr Gamble's statement and his evidence.

40 In his first statement of 6 July 2012 Mr Gamble said this:

14. During the course of training Malcolm, I covered the phrase "hangar landing". I said words to the effect:

"Sometimes you will need to land the glider close to the hangar, for example if it is the last flight for the day. If you need to do a hangar landing what that means is you land the glider close to the hangar. Normally you do this by landing long on runway 23, or you can land in the paddock near the hangar - it is pretty flat. You can use runway 28 from west to east. You can use runway 28 from east to west but I don't like to because I don't like the power lines. Sometimes you may need to use that because of wind.

15. In the normal course of their training I checked that Malcolm and Judy were capable of monitoring their position in the circuit around the airfield, modifying the circuit as necessary to avoid obstacles, how to land safely and how to select an appropriate landing approach.

16. I also taught them all the emergency proceedings for winch launching, spinning and stalling.

...

28. I do not like landing over these power lines myself and I always make sure that I have plenty of height when I pass over them.

41 In his Supplementary Statement of 3 September 2012 Mr Gamble said this:

5. I was aware from my knowledge of the Handbook when I trained the Plaintiff that one of the topics covered in the Handbook was the clearance of obstacles when approaching to land and when landing and being aware of your position in relation to field, the height above ground and one's ability to get back to flying to the field for a safe landing.

6. I do not have a specific recollection of the training I gave to the Plaintiff in relation to clearing obstacles when landing the glider. However, I believe I would have covered that topic with him. My belief is based on the following matters.

7. As at 2005 to 2006, I knew there were trees which needed to be cleared at the northern and southern end of the runway 23. I also knew there were the electricity wires to the east of runway 28. I also knew that the Handbook said that obstacles should be cleared by approximately 50 feet. It was my invariable practice in 2005 to 2006 to instruct new pilots that they had to ensure they were landing one and a half wingspans clear of any obstacles when landing. My estimate is that that is about 50 feet.

8. As I knew of the tree and power line obstacles as at 2005 to 2006 it would have been my invariable practice to refer to those obstacles when training the Plaintiff and to instruct him to make sure he cleared them by one and a half wingspans when landing.

9. Further to paragraph 28 of my earlier statement, that records my view as at 2005 to 2006 and it remains my view today. I do not recall whether l passed on that view to the Plaintiff. However, I believe that in the course of providing training to him about avoiding obstacles when landing, I would have said:

"You should try and avoid landing over those powerlines whenever you can."

10. It was my usual practice to say words to that effect to pilots under instruction in 2005 to 2006.

42 In paragraph 12 of his first Statement, a paragraph that was not read because of an objection to its form, reference had been made to teaching the Plaintiff and his wife about using different angles to their aiming point. He was asked questions about angles and the aiming point in his evidence in chief and he said this:

Q. What teaching were you referring to when you made reference to the different angles and the aiming point in this paragraph?

A. I am referring to angle to the aiming point, from the glider to the aiming point that they have selected on the field to use as a reference. This angle changes, depending on the wind strength, and doing their checks early and planning their landing patterns early and looking for obstructions, anything they might have problems with, encountered on their landing approaches and so on; animals on the strips, cars, single earth return wires, those sort of the things. Anything that might cause them problems.

Q. In paragraph 17, you have said that you taught Mr Echin and his wife to be aware of the distance from the airfield and to adopt an adequate height above obstacles. What teaching did you deliver to Mr Echin about adopting adequate height above obstacles?

A. It is a two - I have to answer this two ways. There was a time when I took - I allowed Malcolm to fly away from the field, and I wanted him to be aware of his height, his position with regards to his landing strip, and what was actually going on around him. I allowed him to fly away and to a distance and get down to a certain height where I would not allow him to go any further. I wanted him to be aware of how important it was to be aware of where he was and his height from the field so he can always get back there. And I allowed him to get down to a certain height and then I asked him, "Where's the field? What height are you?" And he realised then that he was getting on his limit to be able to get back to the field, and I used that to get him - make him aware of those situations, how important it was.

The other thing is, getting over obstacles and so on, especially on landing. Because at our field, one end we have gum trees, at the other end we have pine trees. It is important that when you join your landing circuit and you do your FUST [scil. first] check, which is a check of the situation around, select your speed, that you be aware of anything that has to be cleared on the way through. Normally, always, it is one and a half wing spans above any obstacle for clearance.

...

Q. Did you have a usual practice in relation to teaching students about clearing obstacles in the period 2006/2008?

A. Yes. What I try to do is teach getting over obstacles in a safe manner. Power lines is a classic example. What I taught was approach the power lines with adequate height above them with brakes closed. When you see the power lines go in underneath the aircraft, especially the skywire, then open your brakes, drop your nose and come down and fly the excess speed off as you land.

Q. Sitting there today, do you have a recollection whether you followed your usual practice and habit in teaching Mr Echin?

A. I can't remember at this moment going back. It is a long time ago. But I use that as a standard practice for my teaching of getting over obstacles, like these damn power lines. I hate them.

Q. Is there anything that you are aware of that would lead you to think you wouldn't have followed your usual practice in teaching Mr Echin?

A. No. What we did do, and I remember doing, a left hand circuit on runway 23. That takes us over the hangar, over the power lines and over the pine trees, and I use that to demonstrate how difficult it was to see this top wire of the power lines. Normally we do a right hand circuit onto 23 but occasionally I do a left hand circuit. That is standard for my teaching because, as I said, I did not like those power lines at that time, couldn't see them in certain conditions.

43 Mr Gamble's evidence was attacked on two levels by counsel for the Plaintiff. The first was on the basis of the poor quality of the written records, particularly the logbook, demonstrating the Plaintiff's competence or otherwise from the flights he made. The second attack was that, because Mr Gamble was training the Plaintiff using the gliding instructor's handbook, that meant that, because the Plaintiff had not yet obtained his B Certificate, he would not have been trained in relation to the hazards of power lines. This was because those matters only arose in the handbook in the context of cross-country flying - something that the Plaintiff was not at that stage qualified to do.

44 I do not accept that either of these matters have the effect of diminishing the reliability of Mr Gamble's evidence.

45 It may be accepted that the paperwork in the logbook was less than desirable in terms of detailing matters that arose during the Plaintiff's training. Nor was it satisfactory that flights were not signed off by the instructor concerned, particularly before the Plaintiff was regarded as suitable for solo flying. Those deficiencies must be seen, however, in the light of the fact that this was a small social club which did not appear to have, and might not be expected to have, strict auditing procedures to ensure that processes and practices were adhered to strictly.

46 Mr Gamble's explanation about what he taught the Plaintiff regarding obstacles and wires was entirely believable. As he said, the airfield where he was training the Plaintiff had a number of hazards surrounding it, not the least of which were the power lines on the eastern side. Whilst the issue of power lines and the like might not have been addressed for persons who were being instructed at an airfield that was entirely unobstructed, it makes perfect sense that the issue of the power lines would have been a significant concern in any training of pilots at this particular club and location.

47 I accept Mr Gamble's evidence that the Plaintiff was a competent and safe pilot who had reached the level of competency that made him safe to fly solo. It is clear that that happened a considerable time and a considerable number of flights before the unfortunate events of July 2008. By that time the Plaintiff, for example, had made a number of hangar landings including one along the airstrip that he intended to land on the day of the accident and in the same direction.

48 Mr Gamble's evidence is supported to an extent by what appears in the GFA accident/incident report of the Plaintiff's accident. Mr Jolly, the Chief Flying Instructor at the Club, said of the Plaintiff:

B Certificate requirements complete but not yet claimed - about to complete C.

49 In the result, I accept Mr Gamble's evidence including the evidence contained in his statements about what he informed the Plaintiff concerning hangar landings. That included his evidence that he had informed the Plaintiff that he could use runway 23 by landing long on it. Whilst the Plaintiff said that that was not an option which had been discussed with him I consider that he is mistaken in his recollection. Although Mr Gamble was cross-examined about his statements no challenge was made either to his evidence that he informed the Plaintiff about landing long on runway 23 to achieve a hangar landing nor to his evidence that he said to the Plaintiff that he should avoid landing over the power lines whenever he could. The Plaintiff accepted that it was possible Mr Gamble made the latter remark to him.

50 Further support for Mr Gamble's evidence is provided by Mrs Echin who said that she was aware that a hangar landing could be performed northwest to southeast on runway 23. Mr Gamble was also Mrs Echin's instructor.

51 Both the experts considered that that was an appropriate place for a hangar landing. Mr Atkinson, who was the duty pilot on the day of the accident and the treasurer of the Club, said that almost without exception when a pilot was told to make a hangar landing they either landed long on runway 23 or they landed on the auxiliary runway. Mr Atkinson assumed on the day of the accident that the Plaintiff was about to make his hangar landing on runway 23. All of these matters make it very likely that the Plaintiff was told that a hangar landing could be made by landing long on runway 23.

52 Additionally, I found Mr Gamble to be an honest and straightforward witness on whose evidence I felt I could rely.

53 Accordingly, the experts' conclusion based on the acceptance of Mr Gamble's statement is that there was not a breach of the duty of reasonable care by the Club in its instructions and training given to the Plaintiff in relation to landing in general and in particular in landing in the late afternoon. I agree with that conclusion.

54 In addition, in their oral evidence the experts said this (T 173):

WITNESS VASSAROTTI: ... In effect we are saying that the issue of whether or not there was specific reference to the presence of the power lines on every daily briefing, we didn't consider it to be of major importance because many gliding clubs operate in the vicinity of hazards similar to those wires and as long as the pilots who were flying there on the day have been trained at that site or any visiting pilots have been briefed on them separately, then it would not be normal constantly to refer to the presence of the hazard. It could be on the day if particular conditions were such that it was possible people were flying circuits near them, but basically I think as experts we agreed that it wouldn't be normal for the presence of these hazards to be dealt with every day on a regular basis.

HIS HONOUR: Do you have a different view, Mr Flower?

WITNESS FLOWER: No, that was basically how we addressed it. We felt it was common practice that where there were known hazards on any particular runway where they were of the opinion that the clubs members flew them regularly and knew it, and we went on in another place to say that that would have formed part of the instruction.

55 A little later Mr Vassarotti said that if a pilot knows wires exist there should be no reason not to be able to pick them up because they are strung between towers. The pilot should set his height by the towers. Mr Flower agreed with this. The Plaintiff also gave evidence that he knew it was necessary to clear the uppermost point of the tower (T 80):

Q. So you knew when you flew across, I suggest to you, that the relevant point for you to clear by way of obstacle clearance was the upper most point of the tower, correct?

A. Correct.

Q. The power towers?

A. That's correct.

Q. And that happened to coincide with where the top of the power lines was because that ran between the tops of the towers, correct?

A. I'm now aware of that, yes.

Q. So you knew full well when you flew your down wind leg that the relevant obstacle to clear was the top of the power towers?

A. Correct.

Q. You knew when you came back that that was important?

A. Yes.

Q. To clear that obstacle, correct?

A. Yes.

Q. And you knew at the time that in circumstances where there are power lines in place that it was important to err on the side of caution, correct?

A. Yes.

Q. And one way to err on the side of caution here was to keep well clear of the uppermost point of these towers, correct?

A. Yes.

Q. And the only downside that would have had, I suggest to you, if you had flown one and a half or even more wing spans above the top of these towers was that you might have landed a bit past where the hangar was, mightn't you?

A. Yes.

56 This evidence from the Plaintiff, from Mr Gamble and from the experts demonstrates clearly that proper instruction had been given to the Plaintiff and that the Plaintiff knew what he had to do to deal with the obstruction created by the power lines.

57 Question 3 asked:

Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in its instructions to the Plaintiff during the Plaintiff's flight on 16 July 2008 in relation to landing?

58 The experts agreed that the answer in relation to landing in general was NO. In relation to landing in the late afternoon the experts said that some glare difficulties were a reality for all pilots and could be expected to have been part of the Plaintiff's training and solo experience.

59 The Plaintiff said that the topic of dealing with the sun and the glare was covered in his training to the extent that it is covered in the manual. He said he had never experienced visibility problems because of the sun before the flight during which the accident occurred. He said that although he always wore appropriate eyewear to counteract the sun, on the day of the accident he thinks he was only wearing his standard prescription glasses because it had been a fairly overcast day.

60 In my opinion, the Club cannot be said to have been in breach of its duty by reason of any omission in saying anything to the Plaintiff about the need for appropriate eyewear. That was something he knew in any event. Further, it could not have been known in advance that the Plaintiff would choose to do his hangar landing on runway 28. Had he performed the hangar landing on either of the three landing places he would not have been flying into the sun.

61 Question 4 asked:

Did the First Defendant fail to exercise the reasonable care and skill expected of a gliding club in permitting the Plaintiff to fly as a solo pilot on 16 July 2008?

62 The experts agreed that the answer to this question was NO. That is scarcely surprising in view of the Plaintiff's history of flying as shown in the logbook. Moreover, on the day concerned he had safely flown two solo flights as well as one flight with Mr Haywood who only commented in the GFA accident/incident report:

Assessed safe solo but briefed to get ahead of aircraft, to anticipate and to smooth out control use.

Mr Hayward explained this in his oral evidence (T 147):

In my debrief to Mr Echin, who flew well, I suggested that in addition to flying well he flew a little roughly with the controls and I suggested that if he was able to think a little further ahead that the aircraft might require a manoeuvre shortly he could ease into the manoeuvre instead of roughly jerking into a manoeuvre, so smooth out his flying. So the intention was to get Mr Echin to make his flying smoother.

Nothing in that explanation suggests that the Plaintiff was not competent to fly solo.

63 I further have regard to Mr Gamble's assessment of the Plaintiff's flying ability, that he had been assessed safe for solo flying some 19 months before and had flown solo on many occasions in the intervening period without Mr Gamble or any of the instructors expressing any concerns that he was not fit to do so.

64 Question 5 asked:

As at 16 July 2008 was the First Defendant required pursuant to the GFA operational regulations, clause 7.1.1 and/or the GFA Manual of Standard Procedures clause 17.1.3.1, to ensure that the Club's operations in general and in particular the operation being conducted by the Plaintiff were directly supervised by an instructor holding an instructor's rating level two or higher?

65 The experts answered YES to this question.

66 Mr Gamble was a Level 2 instructor. Mr Gamble was present when the Plaintiff took off on his last flight but then he went home. The other instructor said to be a Level 2 who was present at the time of the accident was Mr Hayward. Although Mr Hayward said only that he held a Level 1 in his first statement, in his second statement he said that he held a Level 2 which had been reinstated on 29 June 2008. His original Log Book was produced. That showed a sticker rating him as a Level 2 instructor apparently signed, dated 29 June 2008 and issued by the GFA, the certifying authority.

67 Mr Anderson of Counsel for the Plaintiff challenged the authenticity of the certification of Mr Hayward as a Level 2 instructor. That was principally on the basis that Mr Hayward did not have the necessary hours of flying time and instructing between the date he was certified as a Level 1 and the date he was purportedly certified as a Level 2. Reference was made to section 6.4 of the GFA Operational Regulations in that regard.

68 When My Hayward was asked whose signature appeared on the certifying sticker he said it was that of Mr Drew McKinney who he said was a Level 3 instructor and whom the logbook showed he had flown three flights with on 28 and 29 June 2008. Thereafter, no questions were asked of Mr Hayward about that matter. Reliance was placed, however, on the answer to a subpoena issued to the GFA. The subpoena required production of,

Any and all records in relation to issue and/or re validation of instructor ratings held by Graeme William Hayward (GFA number 213619) during the period 9 September 1970 - 16 July 2008.

69 A letter from the GFA to the Court of 29 August 2012 said:

I confirm that, following a search, The Gliding Federation of Australia Inc has no records of the kind requested in the Subpoena.

70 I cannot conclude from that letter that Mr Hayward is not a certified Level 2 instructor. Unless all of the stickers in the logbook are fraudulent (and that, quite properly is not suggested) the fact that the GFA claims to have no records is not sufficient to overcome what does appear in the logbook and Mr Hayward's evidence. I noted at the time that Mr Hayward gave his evidence that he was a good witness who made appropriate concessions and was not evasive. More than one re-reading of the transcript of his evidence does not cause me to change that view.

71 The Plaintiff had an evidentiary onus to show that Mr Hayward was not appropriately qualified. It did not discharge that onus.

72 However, even if I had concluded that Mr Hayward was not appropriately qualified and, therefore, that there was no Level 2 instructor at the airfield at the time of the Plaintiff's accident the Plaintiff would have the difficulty in establishing the element of causation contained in s 5D(1)(a) Civil Liability Act. By virtue of the Plaintiff's training, knowledge and experience the absence of a Level 2 instructor could not be said to be a necessary cause of the harm suffered to the Plaintiff.

73 At the time the duty pilot made the radio call to the Plaintiff telling him to make a hangar landing Mr Hayward was about 50 feet from the base station where the radio was. Mr Hayward observed the circuit that the Plaintiff was flying and it did not appear to him that the Plaintiff was flying in the circuit it now seems to be accepted he flew (set out in paragraph [13] above). Mr Hayward had drawn what he believed the circuit was. That had the Plaintiff flying the downwind leg in a southwest to northeast direction (roughly parallel with runway 23), the base leg parallel with the line of pine trees on the northern verge of the property, and the final leg directly south towards the hangar. Mr Hayward said that as he perceived the Plaintiff's path the Plaintiff was not in any danger until just before he struck the wires.

74 Although Mr Atkinson first thought that the circuit the Plaintiff followed was the one set out in paragraph [13] above (he had been shown the plan attached to Mr Berry's statement) when shown the plan Mr Hayward drew and asked what he said about that route, Mr Atkinson said:

That more closely represents what I thought happened.

75 Even though I think Mr Hayward and Mr Atkinson wrongly perceived the course the Plaintiff was flying I can understand how perceptions might differ when a plane is being observed from different vantage points on the ground. I accept that Mr Hayward honestly thought the Plaintiff was flying a different circuit, one that did not until the last minute involve any danger. Accordingly, he would not have given any particular instruction to the Plaintiff about how he performed his hangar landing regardless of his level of qualification as an instructor. In that way, even if he was only a Level 1 instructor that was not a necessary cause of the damage.

76 The answer given by the experts to question 5 is undoubtedly correct - Section 7.1.1 GFA Operational Regulations. That regulation was complied with by virtue of Mr Hayward's presence, but even if it was not it was not a cause of the Plaintiff's damage.

Was the Club negligent?

77 Much of what has been discussed above with regard to the expert evidence will inform a consideration of the particulars of negligence.

(a) Providing and/or designating a runway (runway 12/30) in a location such that the high tension electricity lines were likely to intersect flight path of aircraft approaching the runway to land from the east;

78 This matter was principally discussed when dealing with Question 1 asked of the experts. It must also be remembered that the property used by the Club was not established as an airfield as such. It is part of a farming property and is still used as such. At particular times of the year (for example, at the time of the view by the Court) the Club is unable to use the property because of lambing. The Club is limited by the terrain including slope, roughness and trees where it is safe for planes to be launched and land.

79 Even the experts accepted that it was not necessarily unsafe to use runway 12/30 in an easterly direction provided certain safeguards were adhered to. No-one suggested it was unsafe to use it in a westerly direction except if there was more than a slight westerly wind.

80 This particular is not made out.

(b) Failing to instruct the plaintiff adequately or at all as to the danger associated with attempting to use runway 30 for landing;

(c) Failing to instruct the plaintiff adequately or at all as to the risk of collision with the high tension electricity lines when attempting to land on runway 30 during the late afternoon;

81 The matter of the instructions to the Plaintiff were dealt with when discussing Question 2 asked of the experts. For the reasons given there these particulars are not made out. The Plaintiff was given appropriate instruction. He was qualified to fly solo and to perform hangar landings. He had performed them 6 times previously, 3 times by himself and once when flying solo by successfully landing on the runway he was attempting to use when the accident occurred. These particulars are not made out.

(d) Instructing the plaintiff to perform a "hangar landing" in circumstances where the plaintiff was not sufficiently experienced;

82 This was dealt with when discussing Question 3 asked of the experts and to a lesser extent when dealing with Question 2. The Plaintiff was sufficiently experienced. He made the decision to land where he was attempting. Other choices, about which he knew, were available to him. That included landing west to east on the reciprocal runway because the wind speed of 3 knots was not such as to make such a landing unsafe. I accept, however, that the Plaintiff believed that the wind was greater because of what he noticed about the windsock.

83 He expressed hesitation about landing on the auxiliary strip because he thought that there was a ditch towards the end of it - the DVD of his wife's landing suggested that that might be so. Whether the ditch was there on 16 July 2008 was not demonstrated. There was, however, evidence from Mr Vassarotti that the glider being flown by the Plaintiff (a Blanik) had a sprung under-carriage which could handle rough ground much better than the one flown by his wife in the DVD (probably a Bocian he thought).

84 There was no contrary indication to landing long on runway 23.

85 This particular is not made out.

(e) Failing to ensure that the plaintiff was sufficiently trained and/or experienced before permitting the plaintiff to fly as sole pilot in command.

86 This has been dealt with in a number of places already but especially in considering Question 4 asked of the experts. In summary the Plaintiff had been flying solo for 19 months before this accident with no indication that he was not fit to do so. His long-time instructor, Mr Gamble thought he was sufficiently experienced and the fact that he was qualified to have a B Certificate is further proof.

87 The Plaintiff submitted that the evidence disclosed that before he was permitted to fly solo he had not been required to fly with the altimeter covered as the Instructor's Handbook required (p 59). Whilst showing that to be correct, the log book also shows that the Plaintiff successfully completed such a flight some four months before the accident. It was not suggested that judging height above the ground (as opposed to height above the powerlines) had any causal relevance to the accident. If permitting the Plaintiff to fly solo before he had passed that test (if I can so describe it) was negligent, the negligence was not a necessary condition of the occurrence of the harm as s 5D(1) requires.

88 In his written submissions, and amplified orally, the Plaintiff's counsel also pointed to a number of comments in the logbook and other matters suggesting errors that the Plaintiff had made on various flights. The point of highlighting these matters was to suggest that the Plaintiff was insufficiently experienced to be flying solo at the time of the accident.

89 The mere fact that, from time to time, the Plaintiff made errors from time to time does not of itself show that the Plaintiff was not competent to fly solo. Until the hearing of the case there was no evidence to suggest that the Plaintiff did not see himself capable of flying solo by the day of the accident. This was not a case of a reluctant Plaintiff required to do things he would rather not have done resulting in injury. His instructor(s) considered he was competent to fly solo, he had done it many times, and there was no expert evidence suggesting on the basis of the logbook entries or otherwise that the Plaintiff was not so competent.

90 No doubt even the most highly qualified instructor is likely to make an error from time to time in the same way that any skilled person may do in their field of competence. It is not reasonable to infer that the errors shown demonstrated that he was not capable of flying solo. This is the more so in the light of Mr Gamble's evidence that he considered the Plaintiff competent and capable, evidence which I accept.

91 This particular is not made out.

(f) Failing to ensure that the plaintiff was operating the aircraft under the direct supervision of a Level 2 Instructor in breach of regulation 7.1.1 of the Gliding Federation of Australia operational regulation.

(g) Failing to ensure that the day's operations were being conducted under the direct supervision of a Level 2 instructor in breach of regulation 7.1.1. of the Gliding Federation of Australia operational regulations.

(h) Permitting a Level 1 instructor to take charge of the first defendant's operations in breach of clause 17.1.3.1 of the GFA manual of standard procedures.

92 For reasons given when discussing Question 5 asked of the experts these particulars are not made out.

Specific defences

93 In the light of my conclusion that the Club was not negligent it is strictly unnecessary to deal with specific defences raised by the Club to the claim. In case I am wrong in that conclusion and out of deference to the careful arguments put by counsel I shall say something about each of these defences.

Community work and volunteers

94 The Defendant relies on ss 61 and 3C CLA. Section 61 provides:

61 Protection of volunteers

A volunteer does not incur any personal civil liability in respect of any act or omission done or made by the volunteer in good faith when doing community work:

(a) organised by a community organisation, or

(b) as an office holder of a community organisation.

95 "Community work" is defined in s 60 as meaning:

community work means work that is not for private financial gain and that is done for a charitable, benevolent, philanthropic, sporting, educational or cultural purpose, and includes work declared by the regulations to be community work but does not include work declared by the regulations not to be community work.

96 "Volunteer" is defined in s 60 as meaning a person who does community work on a voluntary basis.

97 Section 3C provides:

3C Act operates to exclude or limit vicarious liability

Any provision of this Act that excludes or limits the civil liability of a person for a tort also operates to exclude or limit the vicarious liability of another person for that tort.

98 The Plaintiff does not dispute that the relevant persons from the Club about whom he makes some form of complaint were volunteers within the meaning of s 60 nor that they had the protection provided by s 61. The issue is whether the Defendant obtains a similar benefit by the operation of s 3C.

99 The Defendant accepts that the protection in s 3C is only given in respect of vicarious liability which the Defendant may have. In relation to the particulars of negligence the Defendant accepts that if particulars (a), (f), (g) or (h) are made out any liability the Club would have from those matters would be a direct liability. The Defendant says, however, that any liability the Club has from the Plaintiff successfully demonstrating negligence by virtue of particulars (b) to (e) is strictly a vicarious liability.

100 The Defendant's concession in relation to particulars (a), (f), (g) and (h) is correct. If liability for any of those matters was established the Club would not have the benefit of s 3C. In relation to the remaining particulars the Defendant submitted that any breaches in those ways were breaches by Mr Gamble because he was the Plaintiff's instructor and, to the extent any of those matters is made out, Mr Gamble is the person at fault. The Defendant then submitted that Mr Gamble was the Club's agent for the purpose of training the Plaintiff and that agency resulted in the Club having a vicarious liability for his acts and omissions in that regard.

101 Reliance was placed by the Defendant on what was said by Dixon J (as his Honour then was) in Colonial Mutual Life Assurance Society Ltd v Producers & Citizens Co-operative Assurance Company of Australia Ltd (1931) 46 CLR 41 at 48-50. Whilst the Defendant accepted that Mr Gamble and the others were not employees or even office-bearers of the Club it was submitted that their relationship to the Club could be analogously compared to the position of the contractors in Hollis v Vabu Pty Ltd [2001] HCA 44; (2001) 207 CLR 21.

102 Both in written and oral submissions the Defendant said that it was vicariously liable for Mr Gamble's acts and omissions in relation to the training of the Plaintiff. Indeed, in oral submissions Counsel for the Defendant said that it was admitted on the pleadings that the Defendant was so liable although where that admission was to be found is not apparent to me.

103 Apart from this admission I would not have thought that the Defendant was vicariously liable for Mr Gamble in his role as an instructor. An examination of the matters thought persuasive by the joint judgment in Hollis at [48] to [57] finds little or no parallel in the little that the evidence disclosed about the arrangements between the Defendant and its instructors. What, however, seems tolerably clear is the lack of control the Defendant had over the instructors when they were exercising their skills and expertise as instructors. Whilst the matter of control is not the key enquiry it remains an important consideration in assessing the relationship: Hollis at [43] to [45], [49] and [73].

104 If the Defendant had some non-delegable duty of care to the Plaintiff which was breached s 5Q would operate so that the Defendant's liability would be regarded as vicarious. In those circumstances s 3C would, in conjunction with s 61, mean that the Defendant had no liability. However, it is difficult to see that the Defendant owed any such non-delegable duty: Scott v Davis [2000] HCA 52; (2000) 204 CLR 333 at [248]; Kondis v State Transport Authority (1984) 154 CLR 672 at 679-687.

105 Whichever way the matter is viewed it seems to me that the Defendant does not have a liability for the matters in particulars (b) to (e). If the Defendant has a truly vicarious liability for Mr Gamble s 3C brings about the result that it will have the same immunity as the relevant person for whom it is vicariously liable. The relevant person here (Mr Gamble) has no such liability by virtue of s 61. If the Defendant is not vicariously liable for Mr Gamble (as I am inclined to think) then it has no liability at all in respect of those particulars.

Dangerous recreational activity

106 The Defendant relies upon the provisions of Div 5, Pt 1A CLA to deny liability for the Plaintiff's injuries.

107 Section 5L provides:

5L No liability for harm suffered from obvious risks of dangerous recreational activities

(1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.

(2) This section applies whether or not the plaintiff was aware of the risk.

108 "Dangerous recreational activity" is defined in s 5K as meaning a recreational activity that involves a significant risk of physical harm. "Recreational activity" is defined as including any sport or any pursuit or activity engaged in for enjoyment, relaxation or leisure.

109 "Obvious risk" is defined in s 5F (and that definition applies to recreational activities in Div 5 by virtue of s 5K) as follows:

5F Meaning of "obvious risk"

(1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

110 There is no real dispute that the Plaintiff was engaged in a recreational activity. The two issues are whether the activity was a dangerous recreational activity and whether the harm suffered was as a result of the materialisation of an obvious risk of that dangerous recreational activity.

111 The meaning of ss 5F, 5K and 5L of the Act have been discussed in a number of decisions of the Court of Appeal from 2006 to 2008. Those decisions are best summarised in the judgment of Tobias JA (with whom Campbell JA and Handley AJA agreed) in Jaber v Rockdale City Council [2008] NSWCA 98 as follows:

[38] The appellant accepted that he knew in a general sense that diving into shallow water or water of uncertain depth might result in injury and so was aware of what the primary judge referred to as "the potential for danger". It was that "potential for danger" that constituted the relevant risk. It was, on the appellant's own evidence, one that was apparent to him. If so, it was also readily apparent to a reasonable person in his position. It matters not that it had a low probability of occurring: s 5F(3).

...

[42] The appellant nevertheless submitted that the risk of physical injury, although present, was not "significant" as the appellant dived only from a height of two to three metres into water which he believed, on the basis of observation and by treading water in the vicinity of the dive, to be of sufficient depth to safely accommodate his dive. The fact that he was wrong did not transform the risk into one which was "significant". Reliance was placed upon the following passage from the judgment of Mason P, with whom McColl JA and Hunt AJA agreed, in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31]:

"The defendant bears the burden of establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in a particular context in which the plaintiff places himself or herself."

...

[46] Thus in Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Ipp JA, with the agreement of Hunt AJA and Adams J, set out the principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" in the following terms:

[28] In my view, the definition of 'dangerous recreational activity' in s 5K has to be read as a whole. This requires due weight to be given to the word 'dangerous'. It also requires 'significant' to be construed as bearing not only on 'risk' but on the phrase 'physical harm' as well. The expression 'significant risk of physical harm' is coloured by the word 'dangerous' and the phrase 'significant risk' cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising.

[29] The view that a risk is 'significant' when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker (1992) 175 CLR 479 at 490.

[30] Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury.

[31] In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the 'risk of physical harm' may be 'significant' if the risk is low but the potential harm is catastrophic. The 'risk of physical harm' may also be 'significant' if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the 'risk of physical harm' may not be 'significant' if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is 'dangerous'."

[47] In Fallas [Fallas v Mourlas [2006] NSWCA 32] Ipp JA, with my concurrence, in a judgment delivered two weeks after his judgment in Falvo, further explained the concept of a "significant risk of physical harm" as follows (at 422):

[13] I agree with Basten JA that an objective test is required in determining whether in terms of s 5K a recreational activity is 'dangerous'.

[14] But what does 'significant' mean in s 5K? I think it is plain that it means more than trivial and does not import an 'undemanding' test of foreseeability as laid down in Wyong Shire Council v Shirt (1980) 146 CLR 40.

[15] The epithet 'real' was suggested during the course of argument. But 'real' can mean a risk that is not far-fetched or fanciful (Wyong Shire Council v Shirt at (48)) and 'significant' means more than that.

[16] On the other hand, it seems to me, a 'significant risk' does not mean a risk that is likely to occur; that would assign to it too high a degree of probability. Had it been the legislature's intention to lay down an element for the application of s 5L involving the probability of harm occurring, different words would have been used.

[17] In the present context, the word 'significant' - coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) - is not susceptible to more precise definition.

[18] Thus, I do not think it practicable or desirable to attempt to impose further definition on 'significant', other than saying that the term lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Where the particular standard lies between these two extremes cannot be prescribed by any rule of thumb. Each individual case will have to depend on its particular circumstances and by having regard to the ordinary meaning of the term.

[48] His Honour further emphasised (at 426 [113]) that in order to avoid potential situations of unfairness and injustice, it was appropriate, for the purpose of s 5K, to determine the scope of the recreational activity:

... by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred.

[49] In Fallas Basten JA observed (at 443 [144]) that there were three ways of considering whether the risk of harm was significant of which the first and third are presently relevant. The first was to assume that any risk would be significant because the results of it eventuating were likely to be catastrophic. The third was to look at the particular circumstances of the case. His Honour rejected the first approach (at 443 [145]) as it could result in the phrase "significant risk of physical harm" not being satisfied where the risk was miniscule albeit the harm very serious.

[50] Like Ipp and Basten JJA, I also preferred the third approach. I said (at 432):

[90] ... If, as I believe to be the case, the word "significant" in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind. ...

[91] I am conscious of the observations of Ipp JA in [18] of his judgment that "significant" means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide.

[92] It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of "dangerous recreational activity" in s5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs.

[51] The statement of Mason P in Lormine referred to in [42] above is derived from the foregoing paragraphs from the judgments of Ipp JA in Falvo and Fallas.

[52] The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived.

[53] In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic.

112 Whilst the determination of whether gliding is a dangerous recreational activity must be judged objectively, such a determination may be informed by views of persons with some knowledge of the sport. One such view can be gleaned from the warning contained on the membership application for the GFA to which the Plaintiff belonged. That warning relevantly says:

Gliding as with any flying activity can be DANGEROUS.

Of course, that warning must be seen in its context which was a disclaimer of responsibility by the GFA for any injury or death occasioned by gliding or participating in GFA activities. Nevertheless, it is an acceptance by those who are best placed to know that the activity promoted by them is a dangerous one.

113 Mr Vassarotti was asked by Mr Jay Anderson of Counsel for the Plaintiff whether he had heard the saying that aviation in itself was not inherently dangerous but it was terribly unforgiving of any carelessness, incapacity or neglect. Mr Vassarotti said:

I have heard it said but I think anybody who believes flight is not dangerous is deluding themselves. Flight is dangerous. There is a lot of risk and what we teach pilots to do is how to manage those risks.

114 In addition, Mr Vassarotti would not accept that flight only became dangerous if there was operator error. He said this:

There can be adverse weather, unexpected adverse weather. There can be deficiencies with air frame. When you say "operator" I would presume you're referring to the flight crew. There can be error - air frame errors that come about because of inadequate maintenance or incorrect maintenance. You can have a bird strike. These are all sorts of factors that are well away from being operator error.

115 Mr Flower said this:

Certainly in relation to being inherently dangerous, as you know there's people that are commonly scared of flight so it's something that people do get scared, and so my advice to students and their parents sometimes who fly for me I say, no, it's not inherently dangerous. As a matter of fact we have checks and balances and training to make it less dangerous, and statistically if you look at the miles travelled per driver or pilot it's statistically safer than driving a car. So it's not inherently dangerous, but we do train to ameliorate those dangers and we have special provisions for significant dangers which is flying in a gaggle, when you're in circuit when planes are flying close to each other and, as we were discussing this morning, going over obstacles, particularly wires. So it's not dangerous, inherently dangerous, sorry, but it does still run risks with it.

116 I took Mr Flower, in this passage, to be accepting that gliding had dangers, even significant dangers, but that there were methods and techniques to deal with those dangers.

117 The experts were asked their knowledge about the number of fatalities per year and they gave this evidence:

WITNESS VASSAROTTI: Well, I've been gliding for 54, 55 years and I've lost several friends through fatal gliding accidents, and I would say that the average is probably a little more than one a year, 1.5 a year over that period. But I'm only guessing. I really don't have the data and I'm looking at it from a personal perspective, but I do know that I have known more people who have died in gliding accidents than I do in any other form of accident.

LLOYD: Mr Flower, do you want to make a comment?

WITNESS FLOWER: I concur with most of that. We really don't know how many gliders there are. That would be a statement of fact you'd get from the GFA but, yeah, and the figure that I recall is, you know, around one per year fatalities.

ANDERSON: Just in relation to that, the fatalities that you have referred to in your memory, Mr Vassarotti, would it be fair to say that most of those have involved mid air collisions in competition flight?

WITNESS VASSAROTTI: No, not so, not mid air collisions. In fact, the only people I know who have been involved in mid air collisions that I've personally known have survived by using their parachutes. You would know some of them possibly but - sorry, there was one. No, not a mid air collision, just a mid air break up.

118 On the other hand, the Plaintiff said that he did not form the view at the time he read the warning on the membership application of the GFA that the activity that he was about to embark upon was one that posed a danger to him - he just did not turn his mind to the matter. He agreed, nevertheless, that landing was the most dangerous part of a flight. He knew that if he made a misjudgement when coming in to land that might lead to him suffering a significant injury or even dying. He agreed that one of the problems with coming in to land was that you might strike an obstacle and that whilst in the air there was the risk of striking another aircraft.

119 Mr Hayward said that aviation in itself was not inherently dangerous.

120 A consideration of all of this evidence demonstrates that, as a recreational activity considered generally, gliding involves a significant risk of physical harm because, although the risk of an accident is low, the potential harm is catastrophic: Falvo at [31]. The experts considered it contained dangers, some of which might be avoided and some of which might be unexpected. For these reasons I consider that gliding is a dangerous recreational activity as defined in the CLA as the cases make clear.

121 If that conclusion is wrong, it is then necessary to consider the particular activity being engaged in by the Plaintiff at the relevant time being the period immediately prior to his suffering harm: Fallas at [92]; Jaber at [50]. This was the activity of attempting to land the plane over the powerlines.

122 In addition to the evidence referred to above concerning gliding generally there was further evidence that landing over powerlines was dangerous. In the book "Basic Gliding Knowledge" published by the GFA, a book given to the Plaintiff at or shortly after the time he joined the GFA, the words "Power Lines are Deadly" appear in large print. Although these words appeared in the part of the book dealing with outlandings (landings at a field other than where the plane had been launched) they were clearly relevant to flying at and around the Carrick airfield as the Plaintiff acknowledged.

123 As noted earlier, the Plaintiff also accepted that landings were, in any event, the most dangerous aspect of the flight. He also accepted that the powerlines presented a danger, that if he struck them he was likely to crash, and that in that event he might be injured or die. Mrs Echin gave similar evidence concerning the danger of the powerlines.

124 Even if gliding generally could not be considered as a dangerous recreational activity, the act of performing a landing over the powerlines was a dangerous recreational activity.

125 The Plaintiff's evidence referred to in paragraphs [18], [23], [24] and [123] is also relevant to the determination of whether the landing over powerlines by the Plaintiff was an obvious risk within the meaning of s 5F. Where the Plaintiff himself acknowledges the danger of a particular activity it will not be difficult to hold that the risk would be apparent to a reasonable person in the Plaintiff's position: Jaber at [38]. The evidence of Mrs Echin is also informative in that regard. So too, is the evidence of Mr Gamble set out in paragraph [42] above.

126 The risk of striking the powerlines was an obvious risk of gliding over powerlines and, more particularly, of performing a landing over the powerlines because of the need for a descent over them or very shortly after passing over them. It was that risk which materialised in the present case. Section 5L precludes a recovery by the Plaintiff even in circumstances where the Club was otherwise found to be negligent.

Conclusion

127 The orders I make are these:

(1) Judgment for the Defendant.

(2) The Plaintiff to pay the Defendant's costs of the proceedings.

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Decision last updated: 28 May 2013