Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Campbell v Hay [2014] NSWCA 129
• Hearing dates: 24 February 2014
• Decision date: 16 April 2014
• Before: Meagher JA at [1]; Barrett JA at [7]; Ward JA at [10]

Decision

1. Appeal dismissed with costs

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: TORTS - negligence - duty of care - whether primary judge erred in finding that flying instructor breached duty of care to trainee pilot by not causing aircraft to be diverted immediately upon the occurrence of a second set of faint vibrations, after a first set of vibrations had been corrected five minutes earlier, or by relying on an innate sense of luck - whether appellant had established that any breach of the duty of care was a cause of the harm suffered; TORTS - negligence - defences - whether flying in a light aircraft under supervision of experienced flying instructor was a dangerous recreational activity; TORTS - negligence - defences - whether harm that occurred was the materialisation of an obvious risk of a dangerous recreational activity
• Legislation Cited: Civil Liability Act 2002
• Cases Cited: Echin v Southern Tablelands Gliding Club [2013] NSWSC 516; Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418; Falvo v Australian Oztag Sports Association [2006] NSWCA 17; Jaber v Rockdale City Council [2008] NSWCA 98; Laoulach v Ibrahim [2011] NSWCA 402; Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479; Streller v Albury City Council [2013] NSWCA 348; Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422; Vremen and Morris v Albury City Council (2011) NSWSC 39
• Category: Principal judgment
• Parties: Noel Campbell (Appellant); Rodney Victor Hay (Respondent)
• Representation: Counsel: R S Sheldon SC with J H Reimer (Appellant); D J Fagan SC with D A Lloyd (Respondent); Solicitors: Brydens Law Office (Appellant); GSG Legal (Respondent)
• File Number(s): CA 2013/78034
• Publication restriction: Nil

Decision under appeal

• Jurisdiction: 9101
• Citation: [2013] NSWDC 11
• Date of Decision: 2013-02-19 00:00:00
• Before: Marks ADCJ
• File Number(s): DC 2010/120631

Judgment

1 MEAGHER JA: The appellant sued the respondent for injuries sustained when a single engine light recreational aircraft, in which he was receiving flying lessons from the respondent, had to make a forced landing in a paddock in the Hartley Valley near Katoomba because of engine failure.

2 The appellant's principal case was that there were two occasions during the flight when engine vibrations were encountered and that the respondent was negligent in not responding to those occasions by ensuring that the aircraft was only flown in areas close to suitable landing strips which could be used in the case of an emergency.

3 The primary judge (Marks ADCJ) dismissed that claim. He found that the respondent was negligent in the way he responded to the second occasion on which there were vibrations; but that he was not liable for that negligence because the appellant's injuries were sustained as a result of the "materialisation of an obvious risk of a dangerous recreational activity" engaged in by him: Civil Liability Act 2002 (NSW), s 5L. His Honour must also to be taken to have held that the respondent's negligence caused the appellant's injuries.

4 There are three issues in the appeal. They are (a) whether the respondent was negligent in not ensuring that the aircraft was flown to an appropriate landing strip immediately after the second set of vibrations commenced; (b) whether but for that negligence the appellant's injuries would not have been sustained because the aircraft could have been landed safely on a properly formed landing strip; and (c) whether the respondent had a defence under s 5L of the Act. This last issue raises the question whether the activity in which the appellant was engaged was a "dangerous recreational activity" (s 5K) and, if so, whether the appellant's injuries were the result of the materialisation of an "obvious risk" of that activity (s 5F).

5 The first and second of these issues are raised by the respondent's Notice of Contention and the third is raised by the appellant's Notice of Appeal.

6 I agree for the reasons given by Ward JA that each of those issues should be resolved as contended for by the respondent. For those reasons the appeal must be dismissed with costs.

7 BARRETT JA: I have had the advantage of reading in draft the judgment to be delivered by Ward JA. I agree with her Honour that the respondent did not breach the duty of care owed by him to the appellant. The evidence showed that his response to the malfunction and subsequent failure of the aeroplane's engine did not involve failure to exercise reasonable care and skill. I also agree that the appellant's activity in undertaking instruction in a single engine light aircraft of the particular type was, in any event, a "dangerous recreational activity" and that his injury resulted from the materialisation of an obvious risk of that activity.

8 A particular recreational activity is not a "dangerous recreational activity" unless it "involves the significant risk of physical harm"; and a risk is not "significant" unless it is lies beyond a threshold point on the scale of possibility of occurrence that is beyond trivial but short of likely. Generally speaking, a risk will be "significant" if there is a real chance that it will materialise. These are the criteria adopted by this Court in the several cases collected and discussed in both Laoulach v Ibrahim [2011] NSWCA 402 and in Streller v Albury City Council [2013] NSWCA 348. For the reasons Ward JA gives, the evidence before the primary judge supported the conclusion that the aviation activity in which the appellant had chosen to engage satisfied these criteria.

9 I agree that the appeal should be dismissed with costs.

10 WARD JA: Mr Campbell was injured on 15 May 2007 when the light aircraft in which he was taking a flying lesson suffered engine failure and his flying instructor, Mr Hay, made a forced landing in a paddock in the Hartley Valley.

11 Mr Hay is a highly experienced pilot and flying instructor, who at the relevant time had flown a total of 8,000 flying hours (some 1,500 of which on the particular model of aircraft in which the lesson was being conducted). Mr Hay had been the chief flying instructor appointed to the Civil Aviation Safety Authority (CASA) between 1992 and 2002 and had been the chief flying instructor with Recreational Aviation Australia (RAA) from 2003. The aircraft was a two-seater, single engine, "Jaribu Light" plane, described by one of the expert witnesses retained by Mr Campbell (Mr Evans) as an "ultra light aircraft" weighing less than 600kg. Mr Campbell suffered injuries in the forced landing and brought proceedings in the District Court against Mr Hay seeking damages for negligence.

12 Although certain of the particulars of negligence raised issues as to the manner in which the forced landing had been executed (such as [15](g), (h) and (i) of the third further amended statement of claim), the expert witnesses did not criticise the manner in which the forced landing had been effected. The consensus of the experts was that Mr Hay's forced landing of the aircraft was conducted skilfully and that he had made "a very good job of a bad situation". His Honour noted (at [44]) that ultimately no allegation was made that Mr Hay had been negligent in the execution of the forced landing and that there was no suggestion that Mr Hay was aware or ought to have been aware of any problem with the aircraft engine.

13 Although the only duty of care actually pleaded in the third further amended statement of claim was a duty to provide Mr Campbell with an aircraft which was airworthy, the second set of particulars of reply related to matters in respect of Mr Hay's supervision/control of the aircraft.

14 The primary judge found (at [43]) that Mr Hay had failed to exercise reasonable care for the safety of Mr Campbell in two respects:

(a) not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started

and

(b) continuing to fly towards Katoomba relying on some (misplaced) sense of innate luck.

15 Nevertheless, his Honour found that Mr Hay was not liable in negligence for Mr Campbell's injury by reason of the operation of s 5L(1) of the Civil Liability Act 2002 (NSW). His Honour was satisfied that the harm suffered was as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by Mr Campbell.

16 His Honour did not separately deal with other defences relying on s 5H of the Civil Liability Act (no duty to warn of obvious risk) (pleaded at [14] of the Amended Defence), s 5M of the Act (no duty of care for recreational activity where risk warning given) (pleaded at [15]), s 5N of the Act (waiver of contractual duty of care for recreational activities) (pleaded at [6]), and voluntary consent (pleaded at [16]).

17 Mr Campbell appeals from his Honour's findings in two respects: first, in the finding that he had been engaged in a dangerous recreational activity, as defined by s 5K of the Civil Liability Act; and, second, in the finding that his injury was the materialisation of an obvious risk of the activity in which he was engaged. Emphasis is placed by Mr Campbell on the level of experience of Mr Hay on both aspects of his appeal, i.e., as precluding a finding that Mr Campbell was engaged in a dangerous recreational activity when "learning to fly under the instruction and control of an instructor" with Mr Hay's characteristics and as precluding a finding that the injury he suffered on the forced landing was the materialisation of an obvious risk of that activity.

18 As to the latter, the risk that Mr Campbell contends materialised was not the risk of a forced landing but the risk that Mr Hay would respond to the engine vibrations negligently or in a foolhardy and irrational way in deciding to "trust his luck and his misplaced sense of invincibility".

19 Mr Hay has filed a notice of contention, in which he challenges his Honour's finding that he failed to exercise reasonable care for the safety of Mr Campbell. Mr Hay contends, among other things, that his Honour erred in taking into account that Mr Hay had "over the years ... built up a feeling within himself that he was a very lucky person and that nothing bad was going to happen to him and that fate would look after him" ([25]) (ground 3) and that his Honour ought to have determined the question whether there was a failure to exercise reasonable care based upon an objective assessment of his actions and without regard to his subjective and internal feelings (ground 4).

20 Mr Hay also raises by way of contention the issue of causation (ground 5), contending that his Honour ought to have held that Mr Campbell failed to prove:

(a) that the aircraft would have been flown to a viable landing approach position relative to a landing strip within the aircraft's gliding range if the Respondent had commenced to fly the aircraft towards such a landing strip at the first opportunity which he ought reasonably to have taken after the second set of engine vibrations began;

(b) that any such landing strip would have been in an adequate state of maintenance and that the meteorological conditions in its vicinity would have been satisfactory, such that the aircraft would have been landed, absent engine power, without impact and without injury to the Appellant of the same severity as that which the Appellant in fact suffered; and

(c) that the failure to exercise reasonable care as found by his Honour at [43] caused the injuries to the Appellant in respect of which damages were claimed.

Background

21 The occasion on which the events the subject of the present claim occurred was the third time Mr Campbell had flown in the Jabiru aircraft with Mr Hay. He was taken on an introductory flight with Mr Hay on 2 April 2007, had his first lesson on 29 April 2007 and was having his next lesson on 15 May 2007, the day of the incident. On that day, the aircraft took off from Katoomba on a course heading westwards over the Blue Mountains towards Oberon. Mr Campbell was in control of the aircraft (under Mr Hay's instruction) for most of the time after take-off.

22 Mr Hay gave evidence as to two separate instances during the flight when he felt engine vibrations. The first set of engine vibrations was experienced approximately 45 minutes after the flight commenced when the aircraft was travelling at about 70 knots. Mr Hay felt "subtle" engine vibrations for a minute or so; he was not concerned about this as a faint vibration is not uncommon; and he instructed Mr Campbell to increase the engine revolutions (to 100 knots) after which the engine vibrations ceased. The period of vibration before the engine speed was increased to the point that the vibration ceased in the order of 30 seconds ("only a short period"). Mr Hay agreed that this was consistent with "carburettor icing", which he said was more likely at a low RPM. (Carburettor icing was what Mr Campbell had contended was the cause of the engine failure.)

23 After the first set of vibrations ceased, the aircraft continued on its course towards Oberon, with Mr Campbell still flying the plane, before turning back for the return flight to Katoomba. It was not suggested that the reason the aircraft turned back towards Katoomba was referable in any way to the vibrations. It was, as I understand it, the return leg of the flying lesson. After turning back in an easterly direction towards Katoomba, Mr Hay instructed Mr Campbell to reduce the aircraft speed back to about 70 knots (2,000 rpm). The aircraft flew normally for the next 5 minutes.

24 The second set of vibrations occurred about 5 minutes after the first set of vibrations. The aircraft was then again flying at 70 knots per hour and was approximately 10-15 nautical miles west of Katoomba. Mr Hay's evidence was that the engine vibration returned in an "imperceptible way", by which he seems to have meant that it was very faint or subtle, not rough: "the vibration was just so light as to be - it's not like, you could feel it in the airframe or anything like that"; "you certainly couldn't hear it".

25 Mr Hay said that this subtle (or "imperceptible") vibration lasted for about 30 seconds and then the vibrations increased for about one minute. Mr Hay then took control of the aircraft (this was about a minute and a half after the onset of the second set of vibrations); the vibrations worsened for 20-30 seconds (described as a period of rapid deterioration), and then the engine stopped completely.

26 On that time line, the period from commencement of the first set of vibrations to complete engine failure was about 7 and a half to 8 minutes (depending on whether the first set of vibrations lasted 30 seconds or one minute); from the onset of the second set of vibrations the time to complete engine failure was only about 1 minute 50 seconds to 2 minutes. This is important to bear in mind in light of the finding of negligence (at [43](a)), which related solely to what Mr Hay was found to have failed to do immediately at the commencement of that 1 minute 50 seconds to 2 minute period (not anything he did or did not do at the time the first set of vibrations commenced and not anything that he did or did not do at a point later in the interval between onset of the second set of vibrations and complete engine failure).

27 When Mr Hay took control of the aircraft (about a minute and a half after the onset of the second set of vibrations began and about 20-30 seconds before complete engine failure), he says that he applied full power, carburettor heat and switched the fuel pump on. Upon engine failure the aircraft had a speed of 70 knots, optimum gliding speed, and was 5,000ft above sea level, hence 2,500ft above ground level.

28 When the engine stopped completely, Mr Hay commenced a gentle left turn "and trimmed for 70 knots (which is known as "the best glide")". The aircraft was then above the Cox's River Road in Hartley, approximately 15 nautical miles from the Katoomba airfield. In his affidavit, Mr Hay said that this was when he "started looking for suitable terrain for a forced landing". He also placed a mayday call and attempted an engine start. The aircraft was by then low to the ground (its descent being at a rate of about 700 feet per minute). Mr Hay manoeuvred the aircraft around a tree then into a gully and pitched the aircraft sharply up a slope.

29 There were, according to Mr Hay, at least 6 private airstrips in the Hartley Valley area that he used for the lesson. Mr Hay said that at the time of the second set of vibrations, the aircraft was heading towards or in the general direction of an airstrip referred to as the Dalgleish strip. The forced landing occurred in a paddock about 3 nautical miles to the Dalgleish strip. There was no evidence as to the precise orientation or dimensions of that airstrip. Nor was there evidence as to the weather or wind conditions at the airstrip at that time.

30 Mr Hay said that the Dalgleish strip was "not all that suited, it's a fairly short one" [for a forced landing] but accepted that it would have been better than the field in which he had been forced to land. Only one of the expert witnesses (Mr Pidcock) had flown over the Hartley Valley terrain to familiarise himself with the area (although Mr Dent had driven over some of the roads there).

Expert witnesses

31 Each of the parties adduced expert evidence. Relevantly, on the issues relating to the piloting of the aircraft, the experts retained by Mr Campbell were Mr Rule and Mr Evans; the experts retained by Mr Hay were Mr Pidcock and Mr Dent.

32 The primary qualifications of Mr Evans and Mr Rule were as mechanical engineers, though both also had flying experience. Mr Evans had trained as a mechanical apprentice commencing in 1972. He was certified with the RAA, though not with CASA. In 2000, he trained as a pilot and became qualified as a flight instructor and then chief flight instructor, flying on microlight aircraft and then fixed wing ultralight aircraft. He had flown some 5,000 hours of which 1,300 to 1,400 were in a Jabiru aircraft. Mr Rule was a qualified automotive engineer who had industrial engineering experience and again he was certified with RAA, not CASA. He had some 1,000 hours flying experience, of which about 800 were in a Jabiru aircraft, but not as an instructor. The initial expert reports of Messrs Rule and Evans focussed on the likely causes of failure of the engine and issues as to the maintenance of the engine.

33 Mr Pidcock was a flying instructor who had held an unrestricted pilot licence from December 1989. He obtained an ultralight recreational pilot certificate in 1999 and gained an ultralight instructor rating in 2001. He trained as a flying instructor and, at the time of his report, he was the chief flying instructor of a flight training business at Orange. He had trained six RAA pilots as instructors (with the approval of RAA) and had held an RAA maintenance certificate for Jabiru aircraft for about 10 years. He had some 4009 hours flying experience including 3396 hours in RAA registered aircraft, predominantly Jabiru aircraft, of which 2751 hours involved instructing student pilots.

34 Mr Dent's expertise was in the area of aircraft maintenance. He had held a CASA licence as an aircraft maintenance engineer since 1977 and also held an RAA maintenance authority. He had been employed as an airworthiness surveyor with CASA from 1987-1989, during which time his duties included accident investigation.

35 The significance of the differing expertise on the part of the expert witnesses can be seen in the issues on which they focussed in their initial reports. As noted, Messrs Rule and Evans had focussed on mechanical issues as to the probable cause of the engine failure and the like. It was only in conclave, and then when giving concurrent evidence, that they addressed the issue as to how, in their experience, a pilot would be expected to respond when the respective sets of vibrations occurred. Mr Pidcock's report, on the other hand, addressed the manner in which Mr Hay had responded to the problems that occurred during the flight, as did his outline of further evidence.

36 For the purposes of the "piloting" conclave, the experts were asked a series of questions referred to as "piloting questions". They produced a joint set of answers to those questions. At the hearing, it emerged that there had been some confusion on the part of Mr Hay's expert witnesses as to whether they had been required to reach an agreed outcome in the conclave (or could instead have expressed a contrary view on particular issues). Mr Pidcock's evidence was that he had understood that there was a requirement for the experts to reach consensus, when explaining during the giving of concurrent evidence why he did not agree with the way in which the answer to a particular question (relating to the first set of vibrations) had been framed. This is relevant when considering the experts' opinions as to what should have happened at the onset of the second set of vibrations, to which I will refer shortly. His Honour's reasons do not suggest that he did not accept the explanation given by Mr Pidcock as to why he had felt constrained in the conclave to agree to that particular formulation of answer.

37 In Mr Pidcock's first report, in answering a question as to the forced landing and whether Mr Hay could have done anything else given the prevailing circumstances, Mr Pidcock referred to an allegation of negligence (Mr Hay not "turning back as soon as any sign of engine roughness appeared") and commented that if the engine failure had occurred over the heavily treed escarpment, the result may well have been much worse. It is not clear, however, to what point in the sequence of the vibrations the reference to engine roughness should be understood. Nor is it clear to what particular point this allegation of negligence referred (i.e., at the start of the first set of vibrations; at the start of the second set of vibrations; 30 seconds into the second set of vibrations when they began to increase; or 1 minute later when Mr Hay resumed control of the aircraft).

38 An outline of further evidence from Mr Pidcock was tendered, without objection, at the hearing. In that outline, Mr Pidcock offered his opinion as to certain matters on the assumption that the evidence in Mr Hay's affidavit (at [43]-[51]) and Mr Hay's oral evidence (at T 73) was correct and that Mr Campbell did not notice the initial vibration. Mr Pidcock's attention was there squarely drawn to the successive sets of vibrations.

39 Mr Pidcock was of the opinion that: a faint vibration of the nature described by Mr Hay was not an uncommon occurrence in flying aircraft of this type ([3]; [8]); that the proper response from a pilot in Mr Hay's situation to faint vibrations as had been described by Mr Hay was "to monitor the engine, monitor the situation and otherwise carry on with the lesson" ([6]) and record the occurrence on landing ([7]); and that it was not in accordance with the standard expected of Mr Hay to change the direction of the flight or to alert the student or otherwise to alter the lesson in response to the faint vibration ([9]). There was no suggestion by Mr Pidcock that his answer would vary as between the faint vibrations when first occurring and the second faint set of vibrations.

First set of vibrations

40 When the experts came to consider the matter in conclave, the first question they were asked was as to the manner in which Mr Hay had responded to the first set of vibrations. The question, and their answer thereto, was as follows:

(1) Should the defendant have aborted the flight or taken some other course at the time he felt the vibration referred to in paragraph 46 of his statement? [i.e., the first set of vibrations]

We do not believe the defendant should have aborted the flight or even alerted the student to the vibration at this point. He should however have subtly diverted the aircraft towards a suitable engine out landing area.

41 When taken in the course of concurrent evidence to the answer that had been given to question 1, Mr Evans and Mr Rule adhered to the view that Mr Hay should have "subtly diverted the aircraft towards a suitable engine out landing area" when the first set of vibrations commenced.

42 Mr Pidcock, however, said that his view was slightly different and that in his view Mr Hay should have ensured that the aircraft "remained in an area with suitable forced landing or engine out landing options", which he believed Mr Hay had done. His explanation for the apparent change to his opinion was that he had thought at the conclave that he was required to reach agreement. Mr Dent, similarly, was of that opinion and said during the concurrent evidence that he thought "diversion" was the wrong word to use. Mr Dent went on to say that he had understood it was all agreed that the action was not to abort the flight and that it had then been added in, not by him, that the aircraft should be subtly diverted and that he had agreed to this addition reluctantly.

43 Relevantly, Mr Evans then agreed that the proposition that one did not guide the aircraft to a suitable landing area but flew nonetheless in an area where there were suitable landing areas was a reasonable alternative. He said:

..In terms of compass heading degrees, there's a difference probably between a diversion directly to the nearest suitable landing area and continuing as far as possible on your current track whilst remaining within reach of a landing area, and certainly all that would be expected was that you would be within reach of a landing area. (my emphasis)

44 Mr Rule agreed that this was a reasonable alternative, adding only that "you'd certainly have a heightened awareness that something was about, so you would have to head towards a suitable area where this - if something happened you'd be safe".

45 The two options that the four experts agreed were reasonably available at the time of the first set of vibrations were "to divert or maintain". The upshot of the cross-examination during the giving of concurrent evidence was that a reasonable alternative for a prudent pilot in those circumstances was to maintain the aircraft's course, provided that was within reach of a suitable landing area and there was a heightened awareness that something might happen.

46 The experts were asked whether, in circumstances where there had been the earlier vibration, they considered it foolhardy in the extreme for Mr Hay to have gone from an area in the Hartley Valley, where there were half a dozen landing strips, towards Oberon, where there were none. Mr Evans' position was that it would be his preference, and better piloting, to remain within reach of a landing area at all times. Mr Rule said that he "would have definitely liked to remain within an area where, if something did happen from that incident, I would have been able to land".

47 Mr Pidcock cavilled with the proposition that there were no landing areas in the Oberon area but accepted that if there were no landing areas between the Hartley Valley and Oberon it would be a poor choice to divert the aircraft to somewhere where there were no landing areas. He also accepted the proposition put to him by Mr Campbell's counsel that if there were landing areas in that location then "the only reasonable actions of the pilot would be to pass the aircraft sufficiently close to those landing areas, one after another, so that if this vibration returned or worsened an emergency landing could be made in a landing area".

Second set of vibrations

48 As to the second set of vibrations, the experts were asked, and answered in conclave:

(3) Should the defendant have aborted the flight or taken some other course of action when he felt the vibration referred to in paragraph 53 of his statement? [i.e., the vibration in an imperceptible way at the commencement of the second set of vibrations]

Yes, he should have aborted the flight at this point.

49 The experts agreed when giving concurrent evidence, with the proposition put by Mr Campbell's then counsel to the effect that, from the time estimates that had been provided by Mr Hay, there was roughly 7 minutes flying from the time of the "initial small vibration problem". That is consistent with the time line outlined above. They also agreed that in 7 minutes (at least in still or light wind conditions) the aircraft would be able to travel 10 and a half nautical miles and that at 70 knots the engine would descend at somewhere in the order of 700 feet per minute, so that if the aircraft was at approximately 5,000 feet and the elevation of the Hartley Valley was about 2,000-2,400 feet, there would be 3-4 minutes between the engine failure and the landing.

50 The experts were asked whether, when the throttle was wound back and the vibration returned, that "would be a very good reason to have not only a landing strip in sight, or a landing area in sight, but to head towards [the Dalgleish strip] (the location of the strip referred to in this question having been later clarified). Mr Evans agreed with this proposition ("certainly to keep within reach") as did Messrs Rule and Pidcock. However, the proposition was then re-put to them by Mr Campbell's counsel as follows:

We know the defendant says that the nearest landing area when the engine stopped was Dalgleish's, about three miles away. ...Now, I want to go back a little bit before that. When the vibration returned about a minute and a half before the engine stopped, between a minute and a half and two minutes before the engine stopped, that would have been a time ... for the defendant to be concentrating on a nearby landing area which he could get to if further problems developed, wouldn't it?

51 Each of Messrs Evans, Rule and Pidcock agreed with that proposition. At that stage, therefore, what the experts were not saying was that Mr Hay should have diverted towards the strip. (He was at that time heading in the general direction of the Dalgleish strip in any event.) It was then put to them that, instead of doing this, Mr Hay had continued the lesson, heading towards Katoomba. Mr Pidcock pointed out that he would have been doing a number of things at that time but agreed that the lesson would have been a secondary consideration at that stage.

52 Relevantly, on the time line of the vibrations and engine failure outlined earlier, this question was either requiring an answer as at the time of the "imperceptible" vibrations (the 2 minute to engine failure scenario) or the time at which the imperceptible vibrations began to worsen (the 1 and a half minute to engine failure scenario). Moreover, the question does not contemplate more than what the pilot should then have "concentrated" on. It was not there put to the experts that Mr Hay should have diverted at whichever of the two points of time the experts were there being asked to consider.

53 The experts were then asked:

..if after the vibration returned, it returned for about 30 seconds and then there was a minute during which it was steadily worsening. And then there was another 20 seconds or so when it was badly behaving before it stopped, there would be no excuse whatsoever for not diverting that aircraft towards the nearest landing area...

54 I interpose to note that this question does not make clear at what point in the 2 minute scenario there put to the experts it was that the aircraft should have been diverted. What seems there to be being put is that, knowing what ultimately happened about 2 minutes after the vibrations returned, it can be said to be inexcusable not to have diverted at the start of that period. That appears to invite impermissible hindsight reasoning. That said, Mr Evans and Mr Rule agreed with the proposition. Mr Pidcock disagreed, on the basis that there would be a number of decisions to be made and the pilot in command would have to prioritise those. He said that the most important thing was to maintain the aircraft in flight and, whilst maintaining that, to look for a suitable landing spot. He accepted that if Mr Hay did not even look for any suitable area until after the engine had stopped that would be completely unsatisfactory and was prepared to agree that at that particular time Mr Hay may not have had the landing area that he was going to use in mind or that he was in an area that had landing areas available but seemed to be uncomfortable in accepting that Mr Hay was not at all times cognisant of the available landing areas.

55 Ultimately, however, what Mr Pidcock accepted, with which the other experts agreed was that "from the time of that initial vibration, wherever you're headed, you'd have kept a landing spot in reach at all times". Mr Pidcock also accepted the following proposition put to him by Mr Campbell's counsel:

... when the engine commenced to vibrate again and then was running in a gradually worsening fashion, steadily worsening fashion, for about a minute, the total period up to then being about a minute and a half, if he wasn't already looking for suitable terrain so as to land, that would be inexcusable

56 The experts, not surprisingly since it was a rough paddock in a gully, agreed that the forced landing area was not ideal. They also agreed with the proposition that Mr Hay would have been able to land safely at the Dalgleish landing strip had he got there, Mr Rule adding a proviso that the condition of the strip where he was heading was good. As to whether Mr Hay could have reached the Dalgleish landing strip had he headed there at an earlier time, what was put to the experts was the following:

If he had, at the time the vibration started again, headed toward Dalgleish's, knowing roughly where it was, and what happened happened - that is, flying for that seven minutes or thereabouts, then the engine stopping when he was at about 5,000 feet, then a gliding distance of three to four miles - he would have been able to get to Dalgleish's, wouldn't he?

57 All three experts agreed that Mr Hay would have been able to get to the Dalgleish strip on the basis of those assumptions. Mr Evans at least also appeared to have agreed that in order to know whether the outcome (in terms of a safe landing without injury) would have been better if Mr Hay had diverted his course, then an assumption would need to be made as to where he would have been at the time the engine roughness occurred.

58 Mr Evans and Mr Rule maintained that had Mr Hay taken steps to take control of the aircraft a minute or so before he did, that could have made an enormous difference to the landing outcome, Mr Rule placing some emphasis on he fact that he could then have implemented carburettor heat which may have averted the engine stoppage. Mr Pidcock considered that it was a matter of conjecture whether taking control a minute or so earlier would have made a difference. It should be remembered that if Mr Hay had taken control a minute before he did that would have been at the very instant that the vibrations started to worsen, but not the instant (30 seconds before) that the second set of vibrations had commenced.

59 The experts all agreed at the outset of the concurrent evidence that it was not "responsible piloting" to trust to luck or fate when aloft.

Primary judgment

Finding of negligence

60 His Honour found it unnecessary to make findings as to the precise cause of the engine failure (the two relevant possibilities being that it was either due to carburettor icing or the failure of the no 3 piston).

61 As noted earlier, his Honour found that there was negligence on the part of Mr Hay in two particular respects: 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. His Honour made clear that the findings as to negligence were based on the "candid concessions" of Mr Hay in his evidence and the expert opinions to which his Honour had referred.

62 As to the concessions, his Honour seems there to have been referring to Mr Hay's agreement with the proposition that he had, over 50 odd years as a pilot of various types of aircraft, built up a feeling within himself that he was a very lucky person and as to whether he had the "sort of sense" that nothing bad was going to happen to him and fate would look after him. Asked whether on this occasion (i.e., the incident) he thought it (presumably his sense of luck or fate) would look after him on this occasion, Mr Hay said "I couldn't see any reason why it wouldn't". At [42], his Honour noted that all the witness had agreed to was that, if something occurred in the course of the flight, it would not constitute responsible conduct to trust to luck or fate when aloft.

63 Mr Hay did agree that a prudent pilot, feeling the initial vibration would have headed for an area where he could land if the vibration worsened. However, this was clearly in respect of the first set of vibrations (in respect of which his Honour found no negligence) so this cannot have been one of the concessions to which his Honour referred. Moreover, any concession by this answer was inconsistent with the expert evidence as to the standard generally accepted of professional pilots on this issue.

64 His Honour noted (at [36]) that there was general consensus that at the time the initial vibrations were felt, Mr Hay did not need to alert Mr Campbell to the possibility of a problem but should have ensured that the aircraft remained in an area where a landing, forced or otherwise and under power or otherwise, could be executed; and that Mr Hay should have had a heightened awareness that there may have been a problem with the engine. At [38], his Honour noted the evidence of the experts that, at the time that the second set of vibrations occurred, responsible conduct on the part of Mr Hay would have been to ensure that he kept within reach of a possible landing area.

65 At [39], his Honour noted that the plaintiffs' experts had agreed that it was inappropriate for Mr Hay to continue to head towards Katoomba "at that stage" i.e., when the second set of vibrations occurred; that Mr Pidcock had said that the first priority was to maintain control of the aircraft and then look for a suitable landing spot and that he had agreed, in effect, that if Mr Hay did not commence to look for a suitable landing spot until after the engine had stopped then this was unsatisfactory. His Honour also noted the opinion of Mr Evans that, with the onset of engine vibrations, a prudent pilot would have remained within a suitable distance of a suitable area for forced landing.

66 His Honour further noted (at [40]-[41]) that all experts agreed that it would be safer to land on an airstrip than in a paddock with long grass and that if Mr Hay had headed directly towards the Dalgleish property at the time the second vibrations commenced then he would have been able to reach that area (my emphasis).

Finding as to s 5L defence

67 Having found that there was negligence, his Honour turned to the defence based on s 5L of the Civil Liability Act. After setting out the relevant statutory provisions, his Honour referred (at [48]-[50]) to the evidentiary material relied upon by Mr Hay in support of this defence: first, aviation occurrence statistics published by the Australian Transport Safety Bureau (ATSB) for the years 1999 to 2009; second, an article published in 2012 by Mr John Brandon, an author of a number of tutorials and guides published through RAA, containing statistics concerning the number of sport and recreational aviation aircraft accidents involving fatalities during the period from 1985 to 2011 and "fly safe" tutorials by Mr Brandon; and, third, the results of a search conducted by Mr Hay's solicitor of the ATSB website for accidents between 1 January 2006 and 31 December 2007, and copies of media reports of certain of the accidents identified from that website.

68 His Honour noted that the ATSB statistics for general aviation referred only to "VHS registered" aircraft, not to aircraft of the kind involved in the incident the subject of the proceedings (a matter that Mr Evans confirmed). As to the article by Mr Brandon, his Honour considered that the statistics for "factory-built" aircraft needed to be discounted significantly "because they include accidents with ultralights" and also noted that the accidents there recorded were limited to those with fatalities and did not give any indication of accidents involving injuries or where no injuries were sustained.

69 His Honour noted, at [52], Mr Campbell's assertion that Mr Hay had told him that he was an experienced pilot, that the aircraft was well maintained and that it was safe to fly in; and referred to the evidence of some of the experts as to the safety of recreational flying. However, his Honour observed that "feelings of comfort or safety by participants in recreational activities are not necessarily of relevance".

70 His Honour described the activity in which Mr Campbell was engaged (at [59]) as "flying with an experienced pilot in a single engine light aircraft"; noted (as is, with respect, obvious) that the aircraft was flying above ground and that the aircraft therefore needed to be landed safely in a particular fashion to avoid any risk of harm; and then referred (at [60]) to a number of conceivable risks of something "going wrong" in the operation of any aircraft (including in that list pilot error) that could impact on the ability to land the aircraft safely without causing harm to the occupants.

71 His Honour considered that the matter should be approached using logic, common sense and a general understanding of matters in the public domain ([66]). He concluded that the risk involved in the activity in which Mr Campbell was engaged could not be described as trivial and stated that, although his impression was that the risk occurred only infrequently, it remained a real risk. That conclusion was expressed to have been reached having regard to the evidentiary material concerning the incidents affecting light aircraft and the range of matters that might cause or contribute to something going wrong in the operation of an aircraft in flight and in safely landing it. His Honour concluded that the activity in which Mr Campbell was involved was in a similar category to recreational parachute jumping, namely, that it was "statistically safe, but involving some (lesser) risk of danger" ([68]).

72 His Honour considered that commonsense dictated that if something did "go wrong" with the operation of an aircraft in flight, including landing, there was a significant risk of physical harm ([69]). Coupling a not insignificant risk of "something going wrong" with a significant risk of harm (if it did), his Honour concluded that the activity in which Mr Campbell was engaged was a dangerous recreational activity for the purpose of s 5L of the Act ([70]).

73 As to whether the harm that occurred was the materialisation of an obvious risk of that dangerous recreational activity, his Honour concluded at [72] that:

... as a matter of common knowledge and common sense, there was the risk that the defendant [i.e., the pilot] might be negligent in the manner in which he operated the aircraft after the second set of vibrations occurred, and that the aircraft engine might fail in flight, and that, for whatever reason (including these two reasons), that the defendant would be compelled to conduct a forced landing. This is sufficient to result in these risks being characterised as obvious for the purposes of section 5F, albeit that there was a low probability of them occurring. As is equally obvious, the injuries suffered by the plaintiff resulted from the materialisation of these risks.

Disposition of the appeal

74 Although not the order in which the matters were argued, I propose to deal first with the issues raised in the notice of contention. Those issues go to the finding of negligence, which is logically anterior to the question whether the defence under s 5L was made out. For the reasons that follow, I consider that his Honour erred in concluding that there was a breach by Mr Hay of a duty of care owed to Mr Campbell in both of the respects that he did but that, even if there had been negligence in the response by Mr Hay to the engine vibrations, Mr Campbell failed to establish causation as required by s 5D of the Civil Liability Act and therefore the appeal should be dismissed.

Grounds of contention

Finding as to failure to exercise reasonable care - grounds 1-4 of the notice of contention

75 Senior Counsel for Mr Hay, Mr Fagan SC, emphasises that there was no finding by his Honour of any negligence on the part of Mr Hay in his response to the first set of vibrations. He points to his Honour's implicit acceptance (at [36]) of the experts' opinion that what the pilot should have ensured at that stage was that the aircraft remain in an area where a landing could have been executed and (at [37]) the agreement of the experts that there were a number of suitable landing areas within the Hartley Valley.

76 The expert evidence given concurrently at the hearing does not support the proposition that the aircraft should have been diverted from its course at the onset of the first set of vibrations. The joint answer in conclave (to question 1), which was to the contrary, was not ultimately supported by Messrs Pidcock, Dent and Evans in the witness box.

77 Instead, the consensus was that what was necessary was a heightened awareness of the potential for a problem and the need to ensure that the aircraft remained in an area where there were suitable landing strips if the need for a forced landing arose. Mr Hay places emphasis on the evidence from Mr Pidcock to the effect that if the aircraft were heading towards, or was in, an area that contained suitable landing then it would be normal for the flight to continue, not for the pilot to divert course supported by Mr Evans.

78 Whether or not the aircraft was flown out of such an area when it proceeded to Oberon, by that stage, the vibrations had resolved and the aircraft was flying normally. There is no basis for a conclusion that there was negligence in Mr Hay allowing the aircraft to proceed to Oberon once the vibrations had ceased, given the evidence of the experts that it was not uncommon for faint vibrations to occur and that they did not always lead to engine failure.

79 What then is the evidentiary basis for the conclusion by his Honour that there was a failure to exercise reasonable care by reason of the fact that the aircraft was not diverted towards a suitable landing strip immediately the second set of vibrations commenced? There was no evidence from the experts that the commencement of a second set of faint vibrations, after a first set had apparently satisfactorily been resolved, should have given rise to any greater apprehension than the first or that there should have been a heightened awareness of the risk of engine failure at that stage beyond the awareness of the pilot at the first set of vibrations.

80 Mr Hay points to the evidence that faint vibrations were not uncommon in such an aircraft. Assuming that there was nothing at the stage of the onset of the second vibrations to put the pilot on notice that they were indicative of a greater problem than the first set of variations had been (and there was no opinion to that effect by the experts), then Mr Hay submits there is nothing to suggest that the appropriate response to the onset of the second set of vibrations required more than a heightened awareness that there might have been a problem with the engine and that the aircraft should remain in an area where a landing could be executed if necessary.

81 Whatever could be said as to the level of awareness of Mr Hay at the onset of the second set of vibrations, his evidence makes clear that he was aware of them because he was able to describe their development and he assumed control of the aircraft during the course of the vibrations. The evidence shows that the aircraft was in an area where there were landing strips that could have been used for a forced landing, since Mr Hay had turned back towards Katoomba and was in the Hartley Valley (where there were six available landing strips).

82 Although the answer in conclave to question 3 was to the effect that, as at the outset of the second set of vibrations, Mr Hay should have aborted the flight (by which I assume is meant he should immediately have diverted the aircraft to a suitable landing area), in the absence of an explanation as to why any different behaviour was called for at that stage from what was required when the first set of faint vibrations commenced, it is difficult to see why Mr Hay should immediately have reacted differently when the second set of vibrations commenced.

83 In my opinion, the first basis on which the finding of negligence was made (at [43]a) is not supported by the expert evidence when the time line of the vibrations is understood. No finding was made that there was negligence at some point later than the onset of the second set of vibrations (such as when the vibrations commenced to worsen or when Mr Hay resumed the controls of the aircraft or at some point thereafter). Therefore, any proposition that there was negligence in failing to divert the course of the aircraft sooner than the point at which control was in fact taken suffers from the difficulty that there was no finding to that effect. Nor was any earlier point identified as to when the course of the aircraft should have been diverted if not immediately at the onset of the second set of vibrations.

84 Mr Hay resumed the controls and adjusted the engine settings to try to achieve the rectification of the vibrations within a minute of the commencement of the second set of vibrations. It is submitted that any delay in diverting the aircraft in the last 20 or 30 seconds before the engine failure cannot be criticised because in that time Mr Hay was occupied with making adjustments in an attempt to rectify the second set of vibrations (as had successfully been done with the first). I agree.

85 As to the emphasis placed during the questioning of the experts on an alleged failure to concentrate on or look for a suitable landing strip at an earlier time or failure to have a heightened awareness of the need to do so, Mr Fagan submits that this cannot be said to have been causative of any harm since the only thing that it is suggested would have made any difference to whether the aircraft could have reached a landing strip before the engine failed was the alteration of its course at an earlier time.

86 In my opinion, a review of the expert evidence does not support the conclusion that there was a breach of the duty of care in not diverting the aircraft towards the Dalgleish strip immediately on the onset of the second set of variations.

87 As to the finding of negligence in [43](b), a fair reading of the statements by Mr Hay does not support a conclusion that he made any admission of reliance only upon luck in flying the aircraft after the onset of the second set of vibrations, nor is such a finding warranted on the evidence.

88 Acceptance of the proposition put to Mr Hay (at Black 101R-T), did not constitute an admission that, on this particular occasion, Mr Hay had done nothing in response to the problem of the engine vibrations than trust to the sense of luck he accepted he had built up over a number of years as a pilot. Indeed, earlier (at Black 98M), Mr Hay had denied that his actions (once the second set of vibrations started and then worsened) were "just hoping for the best".

89 In cross-examination as to his decision not to take control at the immediate onset of the second set of vibrations, there was the following exchange:

Q. What did you think was going to happen Mr Hay, that some mechanical problem was going to heal itself? What did you think was going to happen?

A. They sometimes do. It is my experience that they sometimes do.

90 Neither that statement nor the statement that Mr Hay could not see any reason why his sense of fate or luck would not look after him on this occasion, amounts to an admission that Mr Hay relied solely on a sense of luck or fate when this incident occurred. Mr Hay's evidence demonstrates to the contrary that he took a number of steps to respond to the situation, including taking control of the aircraft about a minute after the second set of vibrations had started to worsen, placing a mayday call, attempting to restart the engine, looking for suitable terrain to land and then effecting the forced landing. It cannot therefore be said that he trusted solely to luck. The evidence does not support a conclusion that the reason Mr Hay did not assume the controls earlier than he did was due to any innate sense of luck, misplaced or otherwise. At most, it could be said in criticism of Mr Hay that he had waited a short time to see if the vibrations corrected themselves. That was not unreasonable. Mr Hay's experience and that of the experts was that faint vibrations of the kind experienced were not uncommon and that they often cleared.

91 Having taken into account the evidence, including the expert evidence, before his Honour, I consider that his Honour erred in finding that there was a breach of the duty of care owed by Mr Hay to Mr Campbell. Grounds 1-4 of the notice of contention are made out.

Causation - ground 5 of the notice of contention

92 There was no express finding of causation but a finding to this effect is implicit in his Honour's recitation (at [40] of his Honour's reasons) of the agreement by the witnesses that if Mr Hay had headed directly to the Dalgleish property at the time the second set of vibrations commenced he would have been able to reach that landing area.

93 Mr Hay contends that the evidence did not support a finding of causation because there was no evidence that, had the aircraft reached the Dalgleish landing strip at the time the forced landing became necessary, the orientation or dimensions of the strip, its condition and the meteorological conditions at the site would have been such as to enable the aircraft to have been safely landed without power.

94 Mr Hay did not doubt, and each of the expert witnesses accepted (as noted earlier), that had Mr Hay reached the Dalgleish strip under power, he would have been able to land safely. Nor was it doubted that Mr Hay could have reached the Dalgleish strip before a forced landing became necessary had he diverted the aircraft at an earlier time.

95 However, the critical question is whether, had Mr Hay diverted the aircraft at the time at which he was found to have been negligent in not so doing, he would have been able to land the aircraft there safely and without injury to Mr Campbell.

96 One difficulty with the evidence on which Mr Campbell relied for this proposition is that it seems to have been predicated on an assumption (not established on the facts), that if Mr Hay had headed toward the Dalgleish property at the time the second set of vibrations commenced this would have involved "flying for about seven minutes or thereabouts, then the engine stopping when he was at about 5,000 feet, then a gliding distance of three to four miles".

97 The period of seven minutes' flying time before engine failure must have been calculated from the beginning of the first set of vibrations. There was no evidence which supported the assumption which the experts were there asked to make that the aircraft flew for seven minutes from the start of the second set of vibrations before the engine stopped. Rather, the evidence was that from the commencement of the second set of vibrations it was either one minute and 50 seconds or two minutes to complete engine failure.

98 That said, the premise for the second part of the question was correct in that the engine stopped at a height of about 5,000 feet when the aircraft was at a distance of 3-4 miles from the Dalgleish property. Therefore, it may be that the experts were answering that question based only on the second part of the assumptions they had been asked to make (the first, i.e., the 7 minutes of flying time from the second set of vibrations, being irrelevant). However, the confusion in the question means that caution must be exercised before placing reliance on the answer. An assumption that there had been a 7 minute period in which the aircraft could have flown under power to, or to a point 3-4 miles away from, the Dalgleish strip, is simply not supported by the evidence.

99 What was not disputed was that when the engine failed completely it was about 3-4 miles from the Dalgleish strip and that at a height of 5,000 feet and a gliding speed of 70 knots it would take 3-4 minutes without power for the aircraft to descend to the ground. What is not clear is what time would have been taken to reach the strip under power (or partially under power) from one or more of particular points in the 2 minute interval available after the onset of the second set of vibrations had the aircraft been diverted at any such point.

100 If, as his Honour found, Mr Hay was in breach of a duty of care in failing to take control of the aircraft immediately on the commencement of the second set of vibrations, there was a period of one to one and a half minutes in which he could have flown towards the Dalgleish strip under power and then, assuming the same height of the aircraft as when the actual point when the engine failed, 3-4 minutes of gliding time for it to descend before landing.

101 Without knowing precisely the point at which the aircraft was, relative to the Dalgleish strip, when it is said it should have been diverted towards that strip (bearing in mind that it was heading in that general direction anyway), it is difficult to plot precisely where the aircraft would have been (again, relative to the Dalgleish strip) when engine failure occurred had it been diverted at that point.

102 Mr Hay did not doubt that had he reached the strip before the engine failed he would have been able to land the aircraft but this was in the context of a question assuming that he had diverted the aircraft at the time the first vibrations occurred. He said he would have had less chance later on, when the second set of vibrations occurred, because the engine was about to fail. He said that "maybe" he could have got to the nearest of the little strips when the second set of vibrations commenced but that landing there would not have been a "brilliant prospect".

103 Mr Pidcock said, in effect, that, without greater particularity, he could not express an opinion whether, if the aircraft had been diverted immediately when the vibrations started and had reached the vicinity of the Dalgleish strip before the engine failed, it would have been able to make a satisfactory landing.

104 The evidence thus did not permit a finding as to whether, if Mr Hay had diverted at some point after the second set of vibrations had commenced, but not immediately upon their commencement, he would have been able to reach the strip and to land, without power, without having an accident of the kind which eventuated.

105 What Mr Campbell was required to establish, as a factual matter, was that any breach of duty that was found to have occurred on Mr Hay's part was a necessary condition of the occurrence of the harm (s 5D(1)(a) of the Civil Liability Act). The relevant inquiry is retrospective (Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422).

106 On the basis of the primary judge's findings as to breach of the duty of care, Mr Campbell was thus required to establish on the balance of probabilities that, but for the failure to divert the plane towards the Dalgleish strip immediately when the second set of vibrations occurred (or but for the reliance found to have been placed by Mr Hay on an innate sense of luck), the injury sustained in the forced landing would not have occurred. The fact that there was agreed to be a greater chance of safely landing on an airstrip rather than in a paddock (at [41]) is not sufficient to establish causation.

107 The evidence established no more than that had Mr Hay diverted the aircraft towards the Dalgleish strip at an earlier time than when the engine stopped he would have been able to reach that strip while the aircraft was gliding. What was not established was that, if that had occurred, Mr Hay would have been able to land the aircraft safely without occasioning injury to Mr Campbell. That would have depended on various factors such as the orientation of the strip, any obstacles that might there have been encountered and the weather conditions at that site. Moreover, there is nothing shown to have been caused by any misplaced reliance on a sense of luck. The only relevant issue on causation was whether Mr Hay could have landed the plane safely had he diverted at an earlier point.

108 Therefore, even if his Honour was correct in his finding that a breach of the duty of care had been established, it was not established that that breach was causative of the harm that occurred. Ground 5 of the notice of contention is made out and this is sufficient to dispose of the appeal. I nevertheless address below the grounds of appeal raised by Mr Campbell.

Grounds of appeal

109 Mr Hay succeeded in invoking the defence to liability for negligence provided by s 5L of the Civil Liability Act. As noted above, Mr Campbell contends that his Honour erred in finding both matters necessary for such a defence, namely, that at the time of the incident Mr Campbell was engaged in a dangerous recreational activity (ground 1) and in finding that Mr Campbell was injured as a result of the materialisation of an obvious risk of the dangerous recreational activity in which he was engaged (ground 2). It is not disputed that the onus was on Mr Hay to establish the matters necessary for that defence.

Ground 1 - dangerous recreational activity

110 For the purposes of division 5 of the Civil Liability Act, a "dangerous recreational activity" is defined in s 5K as meaning a recreational activity that involves "a significant risk of physical harm".

Relevant activity

111 It is not disputed that Mr Campbell, when taking flying lessons from Mr Hay, was engaged in a recreational activity. However, Mr Campbell contends that his Honour erred in considering the relevant activity in general terms, as simply flying a, or in a, light aircraft (as opposed to flying in a light aircraft with a highly experienced instructor). The distinction is relevant because Mr Campbell contends that there was no basis for his Honour to conclude that flying a light aircraft under the supervision of an instructor with Mr Hay's experience was an activity that carried with it a significant risk of physical harm.

112 There is no basis for the criticism that his Honour wrongly characterised the relevant activity. At [59], his Honour expressly took into account the fact that there was an experienced pilot in the aircraft, when describing the activity as "flying with an experienced pilot in a single engine light aircraft". Therefore, implicit in his Honour's conclusion that Mr Campbell was engaged in a dangerous recreational activity must be that the presence of a highly experienced flying instructor in the aircraft did not objectively lessen the risk of physical harm involved in that activity to one that was trivial or not significant for the purposes of the s 5K definition.

113 The complaint by Mr Campbell in this regard is that his Honour did not properly take into account, as part of considering the relevant circumstances of the activity in question, the particular level of experience of Mr Hay as a flying instructor. In Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 at [37]), Ipp JA emphasised the need to take into account the particular circumstances of the case when determining whether the activity in question was a dangerous recreational activity (having noted, at [36], that "[f]actors such as time, place, competence, age, sobriety, equipment and even the weather may make dangerous a recreational activity which would not otherwise involve a risk of harm" and recognised that the converse may also be the case). In the present case, Mr Campbell's contention is, in effect, that whatever the general risk of flying in a light aircraft, in the present case, there was not a significant risk of physical harm because of Mr Hay's experience (and, presumably, the level of competence that was indicated thereby).

114 Mr Campbell contends that the contrary conclusion reached by his Honour leads to the surprising result that anyone who flies in a singleengine aeroplane is engaging in a dangerous recreational activity. Mr Hay submits that even if that were to be the effect of his Honour's conclusion, such a result would not have the surprising consequences to which Mr Campbell adverts, having regard to the small proportion of recreational light aircraft flights compared with the number of commercial and general aviation flights disclosed in the statistical material before his Honour.

115 Mr Hay further contends that the conclusion reached by his Honour is not surprising insofar as the nature of the activity in which Mr Campbell was engaged is such that even a highly experienced pilot exercising reasonable care may be confronted with dangerous circumstances (such as engine problems) in the demanding and difficult environment of flying a single-engine light aircraft.

Relevant test

116 Consideration was given to the meaning of "significant risk of physical harm" in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 and Fallas, from which a number of propositions can be drawn. The definition of "dangerous recreational activity" must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31]). "Significant risk" has been said to mean more than trivial and does not import an "undemanding" test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is "not merely trivial, but generally speaking, one which has a real chance of materialising" (Tobias JA at [90]-[91], this being the test his Honour applied later in Jaber v Rockdale City Council [2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136]).

117 In Fallas, Basten JA (at [131]), read the word "significant" as not requiring a particular level of physical harm but as requiring an assessment of the "risk of physical harm", which would import a consideration of the seriousness of the harm that might occur. His Honour considered that if the harm is potentially catastrophic, then a very low level of risk may be regarded as significant, whereas if the potential harm is not serious at all, then the risk may not be considered significant until it reaches a much higher level (see, similarly, the observation of Ipp JA at [30] in Falvo to the effect that 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).

118 Relevantly, in the context of the statistical evidence relied upon in the present case, Basten JA in Fallas (at [134]-[136]) sounded the need for caution in adopting the approach in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 489. His Honour recognised that, while it would be tempting to say that even a very low chance of potentially devastating harm could be significant, when considering the defence under s 5L of the Civil Liability Act, the relevance of the existence of a significant risk is that such a finding could deprive an injured party of a right of action. His Honour noted that, unlike as was the case in Rogers, the test of significant risk was not dependent upon the expectations of a person in a particular relationship with another.

Statistical evidence

119 In Fallas, Ipp JA noted that the degree of likelihood of a risk occurring might be established in many ways ([20]), including by the application of logic, common sense or experience to the particular circumstances of the case ([22]). In the present case, Mr Hay relied upon statistical and anecdotal reports as to the incidence of accidents involving recreational light aircraft of the kind I have identified above. Mr Campbell disputes the usefulness of that evidence (on which his Honour appears to have placed little weight in any event, largely determining the question by reference to common sense).

120 In particular, Mr Campbell argues that the statistics relied upon by Mr Hay did not differentiate between accidents occurring during flight training and those occurring generally, and did not take into account the level of experience of the pilots involved in the accidents. It is further contended that the number of fatal accidents in a relevant period of itself says nothing as to the risk of physical harm, without a means of comparing that number with the number of flights over the relevant period.

121 Leaving aside the media reports of light aircraft accidents, which at best might inform a common sense view of the risks attendant upon flying in light aircraft, the two sets of statistical information were the ATSB's Aviation Occurrence Statistics for the period 1999 to 2009 in its Aviation Research and Analysis Report and the statistics contained in Mr Brandon's article relating to "Recent [RAA] fatal accident history", obtained by Mr Hay's solicitor by use of a Google search.

122 The ATSB report, as its heading suggests, provides aviation occurrence data for the period 1 January 1999 to 31 December 2009, being data as to accidents or incidents involving two categories of aircraft operation (commercial air transport and general aviation). The report makes clear that the general aviation category, defined as all flying activities outside of scheduled RPT (high capacity regular public transport) and non-scheduled (charter) passenger and freight operations, does not include Australian non-VH registered aircraft. Although that category was said to include "flying training", it seems to have been accepted that statistics for the relevant period in relation to Jabiru light aircraft of the kind involved in the present incident would not have been included in the data in this report. Mr Evans confirmed that there is no requirement to report non-fatal accidents in recreational aviation registered ultralight aircraft to the ATSB. The report did, however, include a table based on occurrences involving non VH-registered Australian aircraft by state over the period 1999-2009, which appears to include all aircraft types including ultralights and gliders, that disclosed 42 occurrences in New South Wales in 2007 (that number varying from as low as 30 in 2006 to as high as 58 in 2000).

123 The ATSB report uses the number of aircraft departures (as opposed to the hours flown) as the denominator figures for the calculation of accident and fatal accident rates for all air transport operation types, on the basis that these are considered to be a more appropriate measure of the exposure or opportunity for an event to occur. Hours flown data, by contrast, is used in the report to calculate accident and fatal accident rates for different operation types (the report noting that for some operation types within general aviation there is a higher risk of accident outside of the approach/landing and takeoff phases of flight such as due to low flying requirements.

124 Reliance is placed on the ATSB report by Mr Hay as indicating (by comparison with the RAA statistics referred to in Mr Brandon's article) that the volume of flying activity for general and commercial aviation over the relevant period was much higher than that for light aircraft. The schedule (at Blue 2/407), discloses that for 2007, a total of 1,722 thousand hours were flown in the commercial air transport category and 1,832 thousand hours flown in the general aviation category. (By comparison, the article based on RAA statistics, to which I will refer shortly, indicated that average flying hours for RAA registered aircraft were in the order of about 50-55 hours per year.)

125 The ATSB report also included statistics for aircraft involved in flying training occurrences, though again those statistics do not appear to have included non-VH registered aircraft. In 2007, for example, there were 41.2 accidents per million flying training hours but no fatalities. The report included a description of some of the flying training fatal accidents over the period from 2002 to 2008 but, other than describing the flight instructor in one such incident as an experienced flight instructor, it did not give details of the level of experience of the instructors.

126 Turning to the RAA statistical information in Mr Brandon's article, this is relied upon by Mr Hay as demonstrating that in 2007, on an analysis of fatal accidents involving RAA registered aircraft, there was a fatality involved in 1 out of every 500 light aircraft flights. It was noted that the average annual hours flown by RAA aircraft for the past 15 years, including flying school machines, ranged from 44 to 60 but that in most years was between 50 and 55).

127 Mr Hay points to the comparison made in the Brandon article as to fatal accidents per 100,000 hours as between all RAA aircraft and the general aviation, training, private and business categories (the average for the former in 2007 being 5.8, the average for the latter in that year being 1.9), from which it is submitted a comparison can be made as to the safety risk or danger involved in flying light aircraft as opposed to general aviation. Mr Hay submits that for the years prior to 2007, the performance of light aircraft can be seen to have been significantly more dangerous than that of general aviation by reference to the comparative statistics there set out.

128 Mr Hay submits that these figures are indicative of the level of activity of ultralight and other recreational light aircraft flying (which, by virtue of the number of members of the RAA and the number of aircraft, is very small compared to the rest of the aviation industry). Mr Hay submits that, on its own, the statistical information that indicates on average 1 fatal accident per 500 light aircraft flights, having regard to the average hours per aircraft of around 50 hours per year, demonstrates that there is a significant measure of risk proportional to usage and the length of the activity (as compared with the ATSB information per 100,000 hours flown in other categories of aviation).

129 Against this, Mr Campbell places weight on the fact that Mr Hay had flown for about 56 years and had, over that period, been in a position where he had made 9 forced landings in none of which had any injury been suffered. Mr Campbell submits that the statistical evidence referred to above did not enable a conclusion to be drawn by his Honour that this was a dangerous recreational activity because the statistics did not enable a conclusion to be drawn as to the experience of the pilots involved in the aircraft incidents the subject of those statistics. It is submitted that general aviation statistics and "undifferentiated" anecdotal material concerning plane crashes do not provide a reliable indication from which to assess whether or not the particular activity in which Mr Campbell was engaged was a dangerous recreational one.

130 His Honour recognised that there were limitations on the use that might be made of the statistical information, to which I have earlier referred, and accepted (at [68]) that they were not "entirely apposite". The reliance placed by his Honour on that material seems to have been that they indicated that from time to time accidents occurred involving light aircraft, as substantiated by the incidents described in the media reports to which his Honour had been referred ([68]) and perhaps also that they indicated matters that might cause or contribute to something "going wrong" in the operation of an aircraft in flight and in safely landing it.

131 His Honour's conclusion as to this aspect of the defence was in large part based on the common sense approach to which Ipp JA had referred in Fallas and which his Honour considered had been demonstrated by the examples given by Ipp JA in that case at [26] and [27] and Ipp JA's approach in Falvo; as well as the approach of Harrison J in Vremen and Morris v Albury City Council (2011) NSWSC 39.

132 This approach was criticised by Mr Campbell as being one that was said to conceal both the source of knowledge of the fact and the nature of the fact said to be determined by its application. It was accepted that one could list hypothetical causes of something going wrong in flight but that there was no basis on which to use common sense to form a view as to the relative frequency with which those things occurred.

133 Mr Campbell also placed weight on the statement in Mr Brandon's report that the RAA membership had "perhaps been achieving near-reasonable safety results - taking into account the continuing introduction of faster, heavier, more complex and less docile aircraft, together with a marked reduction in the average years of experience of the RA-Aus pilot base..." as pointing to the significance placed by the author of this report on pilot experience/inexperience as a contributing factor towards the incidence of accidents.s That said, the report also went on to refer to "very puzzling instances, where those who might be regarded as very experienced and knowledgeable, expose themselves to extreme risk".

134 In at least one respect, Mr Brandon's analysis suggests that some attempt had been made to analyse the factors contributing to fatal general aviation accidents in that reference was made to a preliminary study attributing percentages to the numbers of accidents in which matters such as aircraft handling errors, flight planning or fuel starvation had been a factor and Mr Brandon's comment was that there was no reason to believe recreational aviation experience differed markedly, noting that the likelihood of engine failure was higher in sports and recreational aviation than in general aviation (though commenting that, in itself, engine failure should not cause a serious accident).

135 Leaving aside Mr Brandon's observations, the criticism based on use by his Honour of a common sense approach to this question (somewhat curious when resort is made in the appellant's own submissions to common sense without any apparent empirical basis, namely the assertion that flying light aircraft is safer than travelling by motorcycle) fails to acknowledge the force of his Honour's observation that if something were to go wrong with the operation of the aircraft in flight (particularly, as in this case, with the engine) then a forced landing would be inevitable (unless the problem were able to be resolved in flight).

136 Mr Campbell contends that his Honour was not there stating the correct test. However, his Honour had earlier set out the statements as to what was meant by significant risk of physical harm for the purposes of the definition; his Honour had referred to the statistical and anecdotal evidence as indicative that "from time to time" incidents did occur involving light aircraft (by which I understand his Honour to be accepting that there was a real or not trivial chance that in any given flight a problem of the kind to which he had adverted might materialise) and, coupled with the risk of serious injury or death if such an incident did occur, concluded that the test posed in Falvo and Fallas had been met.

137 Had it been necessary for the purposes of this appeal to determine the issue, I would have concluded that his Honour did not err in concluding that flying a light (or ultralight) aircraft for recreational purposes constituted a dangerous recreational activity in which Mr Campbell was engaged notwithstanding that a flying instructor with Mr Hay's experience was present.

138 Common sense indicates that, if there is complete engine failure in a single-engine light aircraft, then there is a risk that a forced landing will result and a risk that such a landing will result in serious injury or death. That 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 landings in which there is a risk of serious injury or death. Furthermore, although one would certainly hope that the more experienced the pilot the less likely the risk that there will be pilot error contributing to the ultimate fate of the aircraft and its passenger(s), everyday human experience would lead one to conclude that even experienced people can make mistakes particularly when under the stress of an emergency or unexpected event.

139 This is not a case where the potential risk of physical harm arising from an engine failure in flight could be described as trivial in the manner of that considered in Falvo. In assessing the likelihood that such a risk would materialise (i.e., where the risk falls on the spectrum between a trivial risk and one likely to materialise, to use the terminology of Ipp JA in Fallas), then the statistical evidence that 1 in 500 light aircraft flights in 2007 ended in a serious accident means that this cannot be seen as a trivial risk. While account is to be taken of the experience and qualifications of the pilot or instructor as part of the overall circumstances of the particular activity in question, one must also take into account that the risk (as here, of engine failure) could occur in circumstances where even an experienced pilot would not be in a position to avoid an outcome involving serious injury or death.

140 His Honour likened the activity in which Mr Campbell was engaged to that of a parachute diver. Reference was made in submissions to Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 where Davies J was prepared to conclude that the evidence demonstrated that, as a recreational activity considered generally, gliding involved a significant risk of physical harm because, although the risk of an accident was low, the potential harm was catastrophic (though his Honour went on to conclude that, even if gliding generally could not be considered a dangerous recreational activity, the act of performing a landing over powerlines as had there been attempted was).

141 In the present case, if there were to be a problem with the single engine (which could not be discounted as a trivial risk), it might be one that the flying instructor would not be able to rectify such that, even without any negligence on the part of the flying instructor, a forced landing might have to be made, carrying with it the obvious risk of death or serious injury. The presence of an experienced flying instructor was a factor to be taken into account in assessing whether there was a significant risk of physical harm. However, in my view his Honour did not err insofar as he implicitly concluded that that fact did not reduce the assessment of risk of physical harm arising from a forced landing due to engine failure to a risk that was not significant for the purposes of the definition in s 5K.

142 Ground 1 of the notice of appeal is not necessary to determine having regard to the conclusion I have reached on the grounds raised in the notice of contention. Had it been necessary to do so I would have concluded that this ground was not made good.

Ground 2 - materialisation of an obvious risk

143 "Obvious risk" is defined in s 5F(1) of the Act as meaning a risk that, in the circumstances, would have been obvious to a reasonable person in the position of the person who has suffered the harm in question. Obvious risks include risks that are patent or a matter of common knowledge (s 5F(2)); a risk of something occurring can be an obvious risk even though it has a low probability of occurring (s 5F(3)); 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 (s 5F(4)). Whether the harm actually suffered is the materialisation of an obvious risk is to be determined objectively.

144 In Fallas at [25], Ipp JA said that "a significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk ... which materialises". Basten JA at [151] said "[i]t may well be that a particular recreational activity is attended by a number of significant risks of physical harm. For s 5L to be engaged, at least one of those risks must materialise and result in the harm suffered by the plaintiff".

145 Mr Campbell contends that what was required to be considered by his Honour was what was the risk that materialised in the harm in the present case: namely, whether it was the risk of engine failure in mid-flight, resulting in the need for a powerless forced landing, or the narrower risk that the pilot might negligently respond to the incidence of engine problems mid-flight.

146 The defence particularised "obvious risk" as being the risk that the "aircraft's engine might fail making a forced landing necessary with the obvious and inherent risks associated with a forced landing" (para [14] (b)).

147 Mr Campbell argues that in fact the harm suffered was a materialisation of irrational and/or negligent behaviour of Mr Hay and that this was not an obvious risk. It is submitted that the reasonable person would not perceive it as obvious that an instructor would not respond reasonably to indications of impending engine failure.

148 Mr Hay points out that Mr Campbell was participating in a flying lesson in a two seater single engine plane; that Mr Hay was the only other person in the aircraft and the only person with the skill to pilot the aircraft in the event of emergency; and contends that it must have been obvious to a reasonable person in Mr Campbell's position that if Mr Hay, for whatever reason, did not respond adequately to an in flight emergency there would be a risk of harm. It is noted that pilot error was a matter referred to by Mr Pidcock as a relevant risk (amongst other risks such as engine failure and wire strike).

149 The premise for Mr Campbell's contention in relation to this ground of appeal has not been made out. Indeed, even if there had been a breach of duty in the delay in diverting the aircraft to the Dalgleish strip (in the one and a half minutes before Mr Hay took control of the aircraft or the mere 20-30 seconds thereafter), the evidence does not support the conclusion that this was due to foolhardy or irrational behaviour on the part of Mr Hay. Mr Hay had, at best, two minutes from the onset of the second set of vibrations before the engine failed completely. However experienced he was, it must have been obvious to a person in the position of Mr Campbell (an adult having his third lesson in a single-engine light aircraft) that if the plane were to experience engine problems he would be reliant on Mr Hay to land the plane safely and that there was a risk that Mr Hay would not be able to do so or would, in an emergency situation, make an incorrect decision.

150 Therefore, had it been necessary to determine, I would have found that ground 2 of the appeal was not made good.

Conclusion

151 For the above reasons, the appeal should be dismissed with costs.

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Decision last updated: 16 April 2014