Learning to fly is a supervised activity.

A flying instructor owes a duty of care to a trainee pilot to exercise reasonable care for the safety of the trainee pilot. A driving instructor owes the same duty of care to a learner driver.

But flying and driving diverge when it comes to equipment failure. An engine failure for an aircraft in flight can result in serious injury. If a car which breaks down on the street, it can be inconvenient.

The question arises: Does the civil liability law negate the duty of care while learning to fly by excluding the trainee pilot’s rights to claim compensation for injuries sustained?

According to the New South Wales Court of Appeal in the decision of Campbell v Hay [2014] NSWCA 129 (Meagher JA, Barrett JA & Ward JA), a trainee pilot flies at their own risk because learning to fly in a light plane is a dangerous recreational activity.

The training flight in Campbell v Hay – the engine vibrations and the forced landing

The flying lessons were in a Jabiru aircraft. This is a single-engine light aircraft with 2 seats.

This was the third flying lesson. It took place on 15 May 2007. The trainee pilot took off from Katoomba and flew westwards over the Blue Mountains towards Oberon.

About 45 minutes into the flight, the first set of engine vibrations was experienced. The vibrations were faint and according to the flying instructor, they were due to carburettor icing at a low RPM. This is not uncommon. After about a minute, the trainee pilot was instructed to increase the engine revolutions from 70 knots to 100 knots. The vibrations ceased after about 30 seconds.

About 5 minutes afterwards, the aircraft was on the return leg towards Katoomba. The trainee pilot was flying at 70 knots (as instructed) when the engine vibrations returned. The second set of engine vibrations was faint and was not audible for 30 seconds. The vibrations increased for one minute and then they worsened for 20 – 30 seconds, when the engine stopped completely possibly due to failure of the no. 3 piston or carburettor icing. The time elapsed was less than 2 minutes.

The flying instructor took control during the final 20 – 30 seconds. He applied full power, carburettor heat and switched the fuel pump on. When the engine stopped completely, he commenced “the best glide”. At the time, the aircraft was 2,500 feet above ground level and was descending at the rate of about 700 feet per minute.  The aircraft was too far away from and too low to glide the 15 nautical miles to reach the Katoomba airfield or to reach any closer airfield. The flying instructor manoeuvred the aircraft around a tree and landed in a gully in a rough paddock near Hartley. He pitched the aircraft sharply up a slope.

The trainee pilot claimed compensation for his injuries against the flying instructor.

Did the flying instructor breach their duty of care to the trainee pilot?

In the opinion of Judge Marks (ADCJ) in the lower court, the flying instructor was negligent because he had not acted immediately after the second set of vibrations commenced, to fly the aircraft towards an appropriate landing strip.

The Court of Appeal disagreed. The Court said that the flying instructor was highly experienced and had exercised reasonable care and skill by waiting to see if the second set of vibrations corrected themselves before taking control and looking for a landing strip when the vibrations started to worsen.

The Court of Appeal went further and said that even if the aircraft had been diverted towards the closest landing strip immediately, and had reached it, there was no evidence of site conditions to say that the flying instructor would have been able to land the aircraft safely without injury to the trainee pilot. Therefore even if there were a breach of the duty of care, the causation requirement that the breach caused harm was not established.

Is taking flying lessons in a single-engine light plane a dangerous recreational activity?

The civil liability law (section 5L Civil Liability Act 2002 (NSW)) provides:

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

This exemption applies without a waiver of liability needing to be signed by the trainee pilot.

The Court of Appeal in Campbell v Hay needed to find that flying a single-engine light aircraft is a dangerous recreational activity which is defined in section 5K as:

a recreational activity that involves a significant risk of physical harm.

The Court reviewed statistical evidence on air accidents involving light aircraft and concluded that the likelihood of engine failure was higher in sports and recreational aviation than in general aviation. [see Ward JA at p 134]

As a result, the Court of Appeal said that as a matter of common sense:

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. [at p 138]

Was the risk obvious to a reasonable person in the position of a trainee pilot?

The Court of Appeal decided that it must have been obvious to the trainee pilot that if the aircraft were to experience engine problems, there was a risk that the flying instructor might not be able to land the aircraft safely no matter how experienced the flying instructor was.

The Court found that the risk was likely to materialise, even though it had a low probability of occurring (see section 5F(3)), based on statistical evidence that 1 in 500 light aircraft flights in 2007 ended in a serious accident. [at p 139]

Therefore in learning to fly a light aircraft, the trainee pilot is engaged in a dangerous recreational activity, and any physical harm suffered is at their own risk.

Conclusion – Is the recreational activity dangerous?

The Court of Appeal upheld the decision of the lower court to deny compensation for harm to the trainee pilot. Refer to You fly at your own risk for an analysis of the decision of the lower court.

The decision of Campbell v Hay applies to flight training in a single-engine light aircraft. It has wider implications to training in other aerial activities such as aircraft gliding, hang gliding, paragliding and sky diving, all of which appear to be dangerous recreational activities.

The logic of the decision might extend to a passenger on a joy flight in a light aircraft or helicopter or a hot air balloon, but this extension would need to be tested in the courts because joy flights may be regarded as non-dangerous recreational activities.

The decision of Campbell v Hay does not exclude liability if the pilot is acting in a foolhardy or irrational way. It does not apply to flying in VH-registered commercial aircraft, commercial scheduled or charter flights.

Note: Each State in Australia has equivalent legislation to the Civil Liability Act 2002 (NSW).