In a NSW Court of Appeal decision of Campbell v Hay (2014) NSWCA 129, the Plaintiff, Campbell, was a student pilot learning to fly a small plane. The pilot and teacher was the Defendant, Hay. During the flight, the plane's engine began to splutter which the pilot put down to icing of the engine, and avoided disaster by revving the plane's engine. The plane recovered and they continued with the flight, however the engine began to fail again and did so entirely a few minutes later. Hay managed to glide the plane into a nearby field, but in doing so the Plaintiff sustained injury.
At first instance it was held by the Trial Judge that Hay had been negligent in failing to take action to land the plane after the first instance of engine trouble, as if he had done so at that time it was likely he would have been able to land the plane in a less dangerous area (being a nearby airstrip). However, the Court held that despite this, the Plaintiff's claim for injury failed because learning to pilot a small plane was a dangerous recreational activity, and the risk of the plane experiencing difficulty and the pilot having to try to safely land the plane in such an emergency may not succeed in doing so, resulting in injury to the Plaintiff being an inherent risk.
The decision was appealed to the Court of Appeal, and the Plaintiff's case was again dismissed by the Court. The Court of Appeal however did not reject the Plaintiff's claim on the same basis as the Trial Judge at first instance. Instead, the Court of Appeal held that there was in fact no negligence on the part of Hay, because even though he may have been able to land the plane at a nearby landing strip, if he had acted to land the plane at the first sign of problems with the engine, it could not be accepted that it was a surety he would have been able to make the landing strip and land the plane safely without injury to the Plaintiff. The Court did however, in making its determination, indicate agreement with the initial Trial Judge’s assessment that learning to fly a plane for recreational purposes was a dangerous recreational activity, and the risk that during an emergency situation he would be reliant upon Hays having to land the plane safely and he may not have been able to do so, was an inherent risk with such an activity:
"It must have been obvious to Campbell 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 Hay would not be able to do so or would, in an emergency situation, make an incorrect decision”.
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