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An aviation researcher, writer, aviation participant, pilot & agricultural researcher. Author of over 35 scientific publications world wide.

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Recreational Flying

Recreational Flying:

The peak body is Recreational Aviation Australia, which had it’s genesis in the Ultralight Federation.


 

Recent information on RAAus matters:

Shayd Hector in Launceston Court against #casa – December 2015

Jabiru AD and associated matters December 2014

Campbell and Hay – Damages  – April 2014


Blog Site:

There is a very good blog site and access to equipment. The site takes a while to navigate through, but once you join up, there is a much better interface revealed.

Administration:

Formerly known as the Australian Ultralight Federation, Recreational Aviation Australia Incorporated (RA-Aus.) is the peak body in Australia responsible for administering ultralight, recreational and LSA (Light Sport Aircraft) operations. We train and certify pilots, flying instructors and maintainers, register a fleet of almost 3,500 aircraft, and oversee the operations of 174 Flying Training Facilities throughout the country.

Our Association is also responsible for the development and promotion of flying safety standards, and for advocating on behalf of our 10,000 members. We are one of nine RAAOs (Recreational Aviation Administration Organisations) authorised to self-administer sport and recreational flying activities on behalf of the Commonwealth Government’s Civil Aviation Safety Authority. Since the Civil Aviation Regulations 1988 were never intended to regulate this class of aircraft or activities, RAAOs are permitted to operate via exemptions and delegations. Collectively, RAAOs account for almost half of all the aircraft operating in Australia

Recreational Aviation Australia Inc continues to experience sustained growth, and has been successful in securing enhanced operating privilages for its members. Our not-for-profit association is governed by an elected Board of volunteer Directors, supported by a small full-time management team who are committed to helping you realise your dream of safe, affordable flying.

Regulator:

RAA is administered [July 2015] through #casa and head of progress is Jonathon Aleck and the supporting act of Lee Ungerman [formerly RAA CEO] and Mick Poole [ex-RAA].

Question does arise: “Are these able to properly represent RAA at this level or is the “representation” purely one of convenience??

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Interesting Legal Cases:

The effect of recreational flying, when it leads to an injury or death is put into a serious area when then following decision is considered.

Noel Campbell v Rodney Victor Hay [2013] NSWDC 11 Moray & Agnew Insurance Law

You fly at your own risk – Lexology

It has been reported in a number of forums, but deserves careful consideration in our flying activities.
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Recreational Aircraft – this is updated as information comes to hand

Data that applies:

1. Gold Coast accident report October 2014 – two-seater Zenith Zodiac CH601 XL aircraft (Reg. VH-ZRS).

2. SAAA – Presidents Chat March 20122013

3. CASA Safety Alert – GFA Response DE_ID

4. http://vocasupport.com/gympie-finding-rails-against-casa/

5.

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e-Global Report

[You fly at your own risk – Why passengers injured on joy flights, hot air ballooning and skydiving have no claim for compensation Global Travel Media]:

The following report looks at some of the issues.

Skydiving is an adventure activity available in many tourist locations. It is marketed as ‘the adrenaline rush of a lifetime’.

Occasionally, these experiences end with a crash landing and a fatality.

A recent example is the fatal hot air balloon crash near Luxor, Egypt on 26 February 2013 that killed 19 and seriously injured 2 after the hot air balloon caught fire while descending to land. Another example is the crash near Carterton, New Zealand on 7 January 2012, where the hot air balloon collided with a high voltage power line, attempting to land. The hot air balloon Hawaiian-Islands_250X250pxdisintegrated and crashed, killing all 11 on board.

Have similar accidents happened in Australia? The last fatal ballooning accident in Australia was the 13 August 1989 crash near Alice Springs, in the Northern Territory, that killed all 13 on board. The hot air balloon was ascending when it collided with the basket of a hot air balloon above it, tearing the fabric and deflating – as a result the hot air balloon plunged to the ground at high speed.

What legal rights do passengers (and their families) have to claim compensation for injury and death in Australia?

Their legal rights depend on whether the joy flight, the hot air balloon ride or the sky dive is considered to be a dangerous recreational activity, as opposed to a safe leisure activity.

In the recent decision of Noel Campbell v Rodney Victor Hay [2013] NSWDC 11, the NSW District Court considered whether recreational flying was a dangerous recreational activity.

Acting Justice Marks rejected a claim for compensation made by a passenger who suffered injuries when the aircraft made a forced landing. The passenger (Campbell) was taking flying lessons in a Jabiru light plane (with a single engine) flown by experienced flying instructor (Hay). For our purposes, he was in the same legal position as if he were taking a joy flight.

The decision was based on the NSW Civil Liability Act 2002. There is equivalent legislation around Australia. The Act provides that a participant’s legal rights to claim compensation may be excluded altogether if they engage in a dangerous recreational activity, as opposed to a safe leisure activity.

Recreational activities cover sports, pursuits and activities that are engaged in for enjoyment, relation or leisure, which might (or might not) take place on a beach, park or open space. A dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. (Section 5K)

The legal argument turned upon whether there a real chance of physical harm in flying a light plane. If so, flying is a dangerous recreational activity.

The court found that the risk of an accident occurring when flying a light aircraft was low – but that when an accident does occur there is a real risk of significant physical harm. And so the court concluded that flying in a light aircraft is a dangerous recreational activity.

Interestingly for our purposes, the court considered that flying in a light aircraft to be ‘in a similar category to recreational parachute jumping, statistically safe, but involving some risk of danger’. Hot air ballooning was not mentioned in the decision, but it can be accepted as in the same category – a dangerous recreational activity.

If the recreational activity is dangerous, the organiser or operator can avoid liability if the risk of injury or death is an obvious risk which is accepted by the participant.

The Civil Liability Act contains this definition – an obvious risk to a person who suffers harm is a risk that is obvious to a reasonable person in that position. (Section 5K)

Does the passenger in a light aircraft accept as obvious the risk of injury resulting from pilot error or defective equipment?

On the basis of expert evidence, the court found that the flying instructor was negligent by (a) not flying the aircraft to one of the landing strips available after noticing a second set of vibrations from the engine; and (b) instead, continuing to fly towards Katoomba airfield, where the flight had originated. As a result, when the engine stalled, the flying instructor was not close to a landing strip, and so manoeuvred the aircraft around a tree and into a gully where he pitched the aircraft sharply up a slope.

The Civil Liability Act states in clear terms that – A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that person. (Section 5L)

The court found that the risk that the pilot might be negligent in flying the aircraft, or that the risk that an aircraft engine might fail in flight, were risks that were obvious to the passenger.

Therefore the passenger failed in their claim for compensation for their injuries even though the pilot was negligent.

The significance of this decision is that pilots and operators of light aircraft (on non-scheduled flights) are protected from liability because flying is a dangerous recreational activity and because pilot error and mechanical defects are obvious risks.

Fortunately for passenger safety, the Civil Aviation Safety Authority keeps a watchful eye over operators of joy flights, hot air balloons and skydives by requiring them to hold an airworthiness certificate and a maintenance authority to be allowed to operate these activities.

Normally, operators of dangerous recreational activities will have the participants sign a waiver form, which will be effective to avoid liability. Does this decision mean that waiver forms and disclaimer signs are not strictly necessary to protect against personal injury claims? Yes – in this decision the pilot did not rely on a signed waiver form or disclaimer sign.

Operators of joy flights, hot air balloons and sky dives therefore have an added layer of protection – even if a waiver is not signed, or is not properly signed, and they are negligent, they are protected.

But don’t stop using waiver forms and ‘You fly at your own risk’ signs! The Campbell v Hay decision is by judge in a lower court in NSW, and a different judge might come to the opposite view! And because the Civil Liability Law is slightly different in each State and Territory in Australia, the protection provided might differ from State to State.

Written by : Anthony J Cordato,

Travel & Tourism Lawyer