Recreational Flying and Liability
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Recreational Flying and Liability
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
The question is "How do we ensure the safety aspects of this and that liability is shared??"
The article below makes some interesting observations:
Recreational Flying | Assistance to the Aviation Industry
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
Author page »
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.
- Cordato Partners
- Anthony J Cordato
- Australia
- April 22 2013
-
Author page » 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.
Last edited by Up-into-the-air; 1st May 2013 at 00:31. Reason: More info
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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.
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.
Last edited by FokkerInYour12; 1st May 2013 at 00:45.
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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.
Failing to provide enough fuel or oil could be considered acts of gross negligence.
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
Humans design, maintain & fly these dangerous contraptions, you get aboard one & you simply accept the risk/s involved.
Wmk2
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.
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.
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.
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.
'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
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
'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 …
Due you accept the risks? Yes …
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.
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 insurance could the passenger buy to cover the risk of their own injuries, including the loss of income during recuperation, in those circumstances?
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.
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?
That should be entirely my problem to deal with out of my pocket because I “accepted” that risk? Have I understood you correctly?
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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.
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.
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?
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?
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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? 
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
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)
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)
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.
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.
Last edited by Creampuff; 2nd May 2013 at 06:46.