Recreational Flying and Liability

[Up-into-the-air]

The following deserves some careful reading and it's implications from the pilot/ owner and the regulator [casa]. It is discussed in a number of places -

Recreational Flying | Assistance to the Aviation Industry (http://vocasupport.com/?page_id=1452)

The question is "How do we ensure the safety aspects of this and that liability is shared??"

The article below makes some interesting observations:

You fly at your own risk



Cordato Partners (http://www.lexology.com/contributors/23268/)
Anthony J Cordato (http://www.lexology.com/23268/author/Anthony_J_Cordato/)
Australia
April 22 2013
http://d2dzik4ii1e1u6.cloudfront.net/images/lexology/firm/ac6bf7bb-2166-41b3-bdd1-baced6807cb5/20121105124552.png (http://www.businesslawyer.com.au)

http://d2dzik4ii1e1u6.cloudfront.net/images/lexology/author/23268/W75/H100/20121102160320/Anthony_J_Cordato.jpg Author page » (http://www.lexology.com/23268/author/Anthony_J_Cordato/)
A passenger injured in a light aircraft cannot claim compensation.
This was the outcome in the recent decision of Noel Campbell v Rodney Victor Hay [2013] NSWDC 11. Acting Justice Marks of the NSW District Court 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).
The decision was based on the NSW Civil Liability Act 2002. There is equivalent legislation around Australia. The Act provides that a participant’s 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 was a significant risk of physical harm when flying a light plane. If so, flying is a dangerous recreational activity.

The court adopted the views of Appellate Justice Tobias in the NSW Court of Appeal decision of Jaber v Rockdale City Council [2008] NSWCA 98 that ‘as a general guide the risk [of physical harm] should have a real chance of materialising for it to qualify as significant’ to make the recreational activity dangerous.
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, the court considered that flying in a light aircraft to be ‘in a similar category to recreational parachute jumping, statistically safe, but involving some (lesser) risk of danger’.
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 a 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 the risk that the 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.

The intriguing question is – what other leisure activities might come under the category of dangerous recreational activities?
In Jaber, the plaintiff dived head first from a bollard on a wharf into shallow water (and struck his head). This was a dangerous recreational activity. In the air, it is likely that joy flights, sky diving and hot air ballooning would all come under the category of dangerous recreational activities.

[FokkerInYour12]

So, for private recreational flying (possibly including paid joy flights as charter, but not normal point-to-point charter).

Come 1 Jul 2014:
1. Inform passengers that flying is a dangerous recreational activity.
2. Tell my insurance company to eliminate passenger liability to $0 as long as I only take Australian residents covered by the NDIS scheme.

[LexAir]

That's all very well but in Victoria a passenger may well succeed in a claim if "gross negligence" is proved.

Failing to provide enough fuel or oil could be considered acts of gross negligence.

[djpil]

Seems to me that, as he was taking lessons, he was part of the crew so a participant and not a passenger.

[Wally Mk2]

In some ways I tend to agree that flying (of any kind) is dangerous just like it is getting out of bed of a morning BUT it's all about risk, management of same & the acceptance of that risk by the individual.
Humans design, maintain & fly these dangerous contraptions, you get aboard one & you simply accept the risk/s involved.


Wmk2

[Creampuff]

You can only accept the risks of an activity if you understand their probabilities and consequences.

Lots of people may understand the consequences of something bad happening to or on an aircraft.

Nobody - but nobody - understands the probabilities of each and every one of the bad things that could happen to or on an aircraft, happening.

The suggesting that participants accept the risks of an activity is a fiction.

[Shagpile]

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.

Yes it looks like the court weighed more heavily on the consequence of the risk rather than the likelihood.

Interesting as in the RAAF system, a catastrophic consequence (multiple fatalities, etc) combined with the lowest likelihood comes out at low risk. It seems here the court has interpreted the "inherent risk" of flying makes it a dangerous activity for the purposes of compo.

Interesting how far it would extend to other activities that are low risk but have a worst-case-scenario outcome.

[Wally Mk2]

'creamy' you go under the knife for an Op. Do you know the probabilities & consequences? No, nobody would entirely.
Due you accept the risks? Yes, I see no difference to that or hoping aboard a plane & accepting both 'cause nobody knows all the risks or probabilities in any activity from simply driving yr car down the street to having open heart surgery.
That's why we have insurance in it's many forms as we simply don't understand the probabilities or the consequences by our actions.

That's the way I see it anyway, I accept the risk udderwise I wouldn't get out of bed:-)

Wmk2

[VH-XXX]

It seems that the majority of life insurance companies think that flying is dangerous unless you are a passenger on a commercial (joy / charter) flight or RPT.

[Creampuff]

'creamy' you go under the knife for an Op. Do you know the probabilities & consequences? No, nobody would entirely.
Due you accept the risks? Yes …No I don’t.

I only accept the risks the consequences and probabilities of which have been explained to me and I understand. For example, it was explained to me that one in 60,000 people die as a consequence of a competently administered general anaesthetic.

So, if I agree to have a general anaesthetic , understanding the probabilities of dying as a consequence of a competently administered general anaesthetic, I have accepted that risk. But I have not accepted the risk of the anaesthetic being incompetently administered, or a scalpel being left in my abdomen, or the wrong limb being amputated, all of which are also risks of the activity.

That’s why all those ‘waiver’ forms mean nothing and doctors are found negligent. I see no difference to that or hoping aboard a plane & accepting both 'cause nobody knows all the risks or probabilities in any activity from simply driving yr car down the street to having open heart surgery.

That's why we have insurance in it's many forms as we simply don't understand the probabilities or the consequences by our actions.

What we are talking about is a passenger who was injured in a Jabiru engaged in recreational activities. The result of the decision discussed at the start of this thread is that the pilot was not held liable for the injuries.

What insurance could the passenger buy to cover the risk of their own injuries, including the loss of income during recuperation, in those circumstances?

[T28D]

Insurance, Absolutely none, nada, zip you take the risk, accept the consequences if it goes pear shaped, no one should be their brothers keeper.

[Aussie Bob]

Atta boy Trojan. Cash payouts for "injury" cause more problems than they fix. Personal responsibility is a thing very few understand and a paronia of the "what if" scenario rots the mind. Just do it or don't. Your choice.

[Creampuff]

So let me get this straight. I go driving and I know there is a risk that I may be involved in an accident. A drunken idiot runs into me and injures me.

That should be entirely my problem to deal with out of my pocket because I “accepted” that risk? Have I understood you correctly? :confused:

[Dexta]

No, because you are a third party, but the passenger with the drunk idiot should not be able to claim compensation because they got into a car with a drunk idiot.

[T28D]

Entirely different issue and dealt with in part by the MVIT , impossible to equate problems under theMotor Traffic Act with aviation or indeed motor sport.

If you voluntarily enter into a risk based activity wheter it be Kite Boarding, offshore yacht racing, passenger in a Pitts Special, you carry a substantial proportion of the risk.

[Creampuff]

If I fly as a passenger on a Qantas jumbo, there is a risk that I will die because of the negligence of the pilot or an engineer who’s worked on the aircraft.

If I fly as a passenger on a Pitts Special, there is a risk that I will die because of the negligence of the pilot or an engineer who’s worked on the aircraft.

According to you folks, I “accept” the risk in both cases. Why is it ‘right’ that I am entitled to compensation in the first scenario but not the second? :confused:

[Tomahawk38]

According to you folks, I “accept” the risk in both cases. Why is it ‘right’ that I am entitled to compensation in the first scenario but not the second? http://images.ibsrv.net/ibsrv/res/src:www.pprune.org/get/images/smilies/confused.gif

In the first scenario you're travelling as a fare paying passenger and therefore are covered by the Civil Aviation Carrier's Liability Act.

In the second, you're not a fare paying passenger (assuming it's not a charter flight). If in the second scenario it were a charter flight then you'd receive (strict) liability protection

[djpil]

In the Pitts I would expect passenger liability insurance.
If dual in the Pitts then I would not expect it, not being a passenger.
(not too many people that I would ride along in a Pitts with)

[Creampuff]

Tomx

You merely described the outcome.

My question was: Why is that outcome ‘right’?

The reason for my question is, as I explained above, neither the passenger on the Jumbo nor the passenger on the Pitts Special has any clue about the probabilities of the risks involved in the activity and, therefore, never truly “accepts” those risks.

[T28D]

Maybe a little Key you are all missing, the fundamental difference between a fare paying pax and a voluntary participant in an activity that has risk attached to it.

[Creampuff]

So fare paying pax take no risks when they board an aircraft? :confused:

[kaz3g]

The reason for my question is, as I explained above, neither the passenger on the Jumbo nor the passenger on the Pitts Special has any clue about the probabilities of the risks involved in the activity and, therefore, never truly “accepts” those risks.

It isn't really about "accepting" the risk, it is about the likelihood of an injury event occurring and whether a reasonable person might believe that the risk of injury existed.

Most Jumbo passengers know enough that they don't usually travel on third world airlines. Most passengers in light aircraft know that they are less reliable and their pilots generally less trained than is the case in the better airlines. I think most passengers in a 2 seat Pitts would understand they are significantly more vulnerable than travelling by major airline. They just don't want to be responsible if their momentary adrenalin kick turns to something more permanent.

Perhaps that little placard "Passengers fly at own risk" might be the ultimate truism?

Kaz

[Avgas172]

And at the end of the day in the Pitts, in order to cover the inherent risks you would be paying for insurance that would make the flight an unacceptable risk to your wallet .... This has been well proven to be the killer of all types of light aviation in the past (eg end of Piper / Cessna) until sanity prevailed and the US govt enacted legislation to end the mostly spurious claims. If you are going to do the activity that will increase your heart rate accept that it might bite you on the bum and leave it at that, if not stick to the 737-800 for your aviation jollies.

[LookinDown]

Creamy,
If you take your point to its logical conclusion, every risky activity would need to be quantified prior to any individual accepting participation.

The problem is just how you go about quantifying risk to a lay person. Yes, one fatality every 60,000 people sounds like it has been described, but has it really? To the average person those odds sound acceptable (unless you are the 60,000th person to fly). But do they have any idea how many people fly per hour, per day, per year?

Is that 1 in 60000 just within Australia, or in the participant's State, or across the world? Is it an average taken over the last decade or just for last year?

Or should risk be quantified based on proven safety record? In an aviation related court case that i was assisting in, the senior counsel advised me that the organization's outstanding safety record counted for naught in the eyes of the law.

Then how do we compare quantitative risks of differing risky activities...aviating with caving or abseiling, or pole dancing? I would stand a much greater of injuring myself pole dancing by the way.

I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.

As pointed out, the Civil Aviation Carrier's Liability Act, which is capped too low in my opinion, covers your average fare paying passenger. Everything else is considered 'risky' and this judgment reiterate that view legally.

This is the only way rec flying for the public can be managed. All participants are entitled to be advised that they are about to do something which has a definite element of risk. They are entitled to have this pointed out both verbally and in writing eg placard or waiver form. I advise this to those who I am about to take flying then go on to brief about just how those risks are managed. Risks remain irrespective.

Of course no-one is safe from litigation against negligent or criminal failures by the PIC.
LD

[Scion]

I am aware that there is an appeal lodged in this case so we are not "out of the woods" yet by any means by way of precident.
But this is what has happened to me.


A Cautionary “Tail”.

Once upon a time a young, or not so young, gentleman aeroplane enthusiast had been entrusted by the gods of aviation with the care of some elderly aeroplanes. This trust carried with it the implication that the enjoyment of these aeroplanes should be given to folk who expressed an interest. So this enthusiast would freely give flights in the DH89 Rapide to which he felt privileged to be the caretaker..

On one occasion some members of HARS had helped get the aeroplane ready for it’s 100 hourly and they flew with the aeroplane to Albion Park for the HARS open day. This was very successful and the next year two of these HARS members also flew to the next open day. At that stage the Rapide flew in company with a Comper Swift and the opportunity was taken to get some excellent air-to –air photographs.
Everyone was elated on landing at Bankstown and as we taxied up to the hangar we were all in excellent spirits. The engines were still running and cooling whilst a member of the crew was tasked with getting out and preparing the chocks. The pilot had just shut the engines down when he received the unwelcome news that one of the HARS members , had alighted from the wing root and hurt himself. As we all got out it was evident that he was close to the tail plane and that he must have jumped from the wing root and broken his leg. We asked him what had happened but as he was in shock we assumed he could not remember. His protestations at the time were that “don’t be worried, I will not sue you”.

As expected this proved to be false and some time later court proceedings started which resulted in the judge awarding this person a total of $506,000.

After much to-ing and fro-ing the insurance company Vero, the company with which our broker had placed the insurance, decided to depart the area of aviation insurance and treated the case as a “tail” thus paying this person a swag of monies that I believe he was not entitled to. Solicitor barrister and QC engaged by the insurance company advised against settlement for any monies but the insurance company relying on their cross insurance wanted to depart aviation insurance.

Farther details of the case were that the individual concerned had
1 but little aviation experience but had been a policeman and a “financial adviser”
2 he had been introduced by a friend, a skilled HARS member, and had during the previous period been tasked with cleaning and “gophering” as his contribution to the 100 hourly. As part of this he had been instructed on how to enter and exit the Rapide safely.
3 during the court case we had to change judges as the judge who was appointed had judged him adversely in a previous case regarding financial impropriety so she had to excuse herself.
4 the major claim of negligence was that steps should have been provided and that he had fallen from the wing root rather than jumped.

Now this is the very rough outline of a case which has taken several years to progress to this stage and you must realize that the above statement is very superficial and there are lots of other features of which due to lack of time, general irritation and a wish not to waste good ink on I must decline to expound upon but if you want to know more give me a phone call or an e-mail.

But the real purpose of this article is to warn you all to the legal implications of offering “buddy flights”.

Firstly there are lots of lawyers out there who are hungry for work. This is proved by the advertising seen of the type “you deserve compensation”. They will not be put off by whether the case is right or wrong.
People will change their minds about their actions when they are perhaps advised by, for example, a greedy member of the family.
There is a group of people who believe that they are not suing an individual but suing an insurance company so that somehow makes it OK to exploit the insurance company as “they have plenty of monies”. There also seem to be those in authority who work on the premise of “what can we award to get this thing to go away”.

It is critically important to have insurance as otherwise this could have been a financial disaster

Exam question.
Discuss, We have a legal system but not a justice system!

[Creampuff]

If you take your point to its logical conclusion, every risky activity would need to be quantified prior to any individual accepting participation.
…
I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.I agree completely! :ok: Your argument supports the logical conclusion I have already stated:Nobody - but nobody - understands the probabilities of each and every one of the bad things that could happen to or on an aircraft, happening.

The suggesting that participants accept the risks of an activity is a fiction.

[LookinDown]

Good. It looks like we are in agreement in that the specific level of risk is virtually unquantifiable, and certainly in terms of anything meaningful to the layman.

"The suggesting that participants accept the risks of an activity is a fiction."

Participants aren't "accepting the risks" however so much as accepting that participation is 'risky' as deemed in law. Just a matter of risky or non risky. I don't see why it needs to be any more complex than this.

I accept my pole dancing experience will be risky. My gorgeous pole dancing instructor has advised me that as a fat old man , I could well slip from the pole during my lesson and do serious injury. She actually did this for the whole class and also had me read a waiver form, confirm that I understood it and had me sign it.

Its irrelevant how this level of risk compares with canyoning or even golf. All that matters is that I am reasonably warned of the potential 'riskiness'. If I accept this then any unforeseen outcome was agreed to be accepted by me as an informed adult.

Taking your Aunt Mable for a flight in a Jabiru or Cherokee may not warrant a waiver form but she certainly deserves to be told that flying certainly has an element of risk above everyday activities (even if this is arguable). Ideally you would do this in the presence of at least one other.

I used to advise passengers and students that I had a greater risk of being killed by a little old lady reversing without looking, out of her parking spot in a country town main street ..as I almost was a couple of times. I dont say this anymore as that risk comparison wouldnt be accepted in any review.
LD

[Wally Mk2]

All good healthy discussion on the word 'risk':-)

Summer, 1943, Europe, Brenham........those guys knew the risks.

It's a personal thing really, you either know it & accept it or yr ignorant to the fact, either way.........."leave the rest in the hands of God":-)

At the end of the day most of the gen public know or believe that flying is dangerous especially in small planes.


Wmk2

p.s....just as a side note (nufin' really to do with the thread subject) for those interested in the 'Belle' go to YouTube & search "Memphis Belle- The final chapter in Memphis"....very interesting one hr history of the Belle after WW2

[kaz3g]

The suggesting that participants accept the risks of an activity is a fiction.


It has nothing to do with the individual "accepting the risk"... See my earlier post.

The Court has decided on the evidence that a "reasonable person" would hold the view that recreational flying has an inherent level of risk associated with it such that, if something goes wrong, serious injury or death may result.

It is irrelevant whether the particular passenger "accepted" the risk.

Kaz

[Creampuff]

Although your statement about the reasoning and conclusion in the case is accurate, both are based on the interpretation of legislation.

Legislation can be changed.

I’m talking about the underlying assumptions of this and other legislation.

If the “passenger” in this case had been undergoing flying training for the purposes of eventually obtaining a commercial pilot’s licence for a career in aviation, would that have been a “recreational activity”? Not according to the definition in section 5K of the NSW legislation. (And I’m still wondering how it’s possible for a person to be a “passenger” “undergoing flying training…”.)

So the results are bizarre. Same aircraft, same instructor, same “passenger” and same obvious and inherent risks. If the “passenger” is there as a “recreational activity”, there’s no liability. However, if the “passenger” is there to train for a professional qualification there can be liability. What’s the point of that distinction? :confused:

[poteroo]

So, if the 'passenger' was there as a student pilot, being trained under RAAus for a Pilot Certificate - this would still be a 'recreational activity' because they are not actually training for a 'licence'......... let alone training for a 'professional' licence?

It then follows that, if the 'passenger' had advised of their intent to be trained initially via RAAus, but later on, via the CASA PPL and CPL syllabus, to gain a CPL....... then this is not recreational flying, but is actually professional training, and is treated differently in law?

It seems that the distinction isn't great.

Isn't the student pilot undergoing training toward a 'recreational' qualification, ie a Pilot Certificate, actually owed the same duty-of-care as the intending 'professional' pilot?

happy days,

[LookinDown]

This summary of recreational activity risks, warnings and waivers for the NSW Civil Liability Act is well worth a look through. Remember this applies only to NSW.

It explains the difference between dangerous and non dangerous recreational activity and also outlines the value of warnings and wavers.

The NSW Civil Liability Act and Community Participation Events (http://www.findlaw.com.au/articles/1918/the-nsw-civil-liability-act-and-community-particip.aspx)

[Up-into-the-air]

Well Found LookDown and worth putting here for all:

Risk Warnings

Section 5M of the CLA provides that if a "risk warning" is given there is no duty of care owed to a participant in a recreational activity in respect of the risk the subject of that warning.

A "risk warning" is a warning "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". A risk warning can be given orally or in writing including by means of a sign. A defendant is not required to establish that the plaintiff received or understood or was capable of receiving and understanding the warning although a risk warning can only be given to an incapable person (such as a child) if it was given to a legally competent parent or other person who was in control of or accompanied the incapable person. This is important because provided the warning is given to a parent, guardian or other adult supervisor, negligence liability to a child can be avoided by giving a risk warning.

It seems that there must be some coincidence between the risk which materialises and the risk against which the warning was given before liability is excluded. Even so, a risk warning "need not be specific to the particular risk and can be a general warning of the risks that includes the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)" - section 5M(5).

A risk warning cannot be relied on if contradicted by other representations. A defendant cannot rely on a risk warning unless it is given by or on its behalf or by or on behalf of the occupier of the place where the recreational activity is undertaken. A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety, eg WorkCover codes and regulations. Risk warnings cannot be relied on if the plaintiff was required to engage in a recreational activity by the defendant although what degree of power, authority and compulsion is necessary is not made clear.

In relation to any particular programme or event, if it is possible to devise a risk warning which gives a general warning of the particular risks, then liability for negligence will not be imposed if these risks occur.


Some important reading!

[Creampuff]

A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety.That’s a very big ‘out’ for aviation activities.

[Andy_RR]

It is critically important to have insurance as otherwise this could have been a financial disaster


It is arguable that the mere presence of such insurance policies encourages such lawyerly activity, since lawyers can be greedy, but are rarely stupid when it comes to the possibility of lack of reward. Of course, rolling over easily by insurance companies only further encourages this too, but the insurance co.s can pass these elevated costs that this brings on to their customers, at least in the short term. Insurance industry moral hazard, I guess...

[Scion]

Say if you have a house and any equity in it you need insurance.

[LookinDown]

I'm no lawyer Creamy.
I'm not even a bush lawyer but i think the statement is simply saying that there is no protection against criminal or negligent actions or behaviour.
Not only can a risk warning not be relied upon in such circumstances but your very insurance cover itself can no longer be relied upon.
There's an old saying in law that 'negligence is easy to claim but very difficult to defend'.
LD

[Creampuff]

The case at the start of the thread says the pilot was negligent for not taking the opportunity to land when he safely could. But he wasn't found liable. Isn't that one of the primary aims of the legislation? :confused:

As to the exception, the way I read it, if, for example, the pilot of the recreational aircraft takes off knowing there is insufficient fuel on board for the planned flight (thereby breaching a regulatory code for the protection of personal safety i.e. the Civil Aviation Regulations) and the passenger is injured during the inevitable forced landing after fuel exhaustion, the pilot would not be protected from liability.

[dubbleyew eight]

Creampuff I can see some distinctions.

when the guy was in flight training he was an active participant.

when the engine got the wobblies and the instructor took over the guy became an inactive participant unable to affect the outcome. (you try advising an instructor :-) )

in the jumbo jet the participant is innocent of all problems because the entire certified system exists to relieve him of the need to appraise the risk. all the bollocks of checks and balances and tons of paperwork is put there as a blunt instrument to stop him being killed.

3 levels of risk as I see it.

[Creampuff]

How does being an “active participant” increase someone’s understanding of the risks?

If it was the guy’s first training flight, how would he have any better insight into the risks than if he were a passenger?

It seems to me to be a distinction without a difference. :confused:

[Up-into-the-air]

The following relates to the Campbell v. Hay appeal on the Jabiru accident in training and bears serious thought:

The full judgement is difficult to find and is uploaded (http://vocasupport.com/campbell-v-hay-case-in-nsw-district-court-and-recreational-aviation-vs-damages-responsibility/) for you.

[Avgas172]

Excellent .....:ok:

[FokkerInYour12]

So, essentially the same liability as something that has experimental plastered all over it provided you take off with enough fuel etc.

Looks like insurance companies won't be paying out for GA then.