Echin v Southern Tablelands Gliding Club

Judgment 1I gave judgment in the principal proceedings on 28 May 2013: Echin v Southern Tablelands Gliding Club [2013] NSWSC 516. I found that the First Defendant did not breach its duty of care to the Plaintiff. Judgment was given for the First Defendant and the Plaintiff was ordered to pay the First Defendant's costs of the proceedings. 2The First Defendant now seeks an order that the Plaintiff pay its costs on an indemnity basis for one of two specified periods. The first period is from 13 March 2012 to the conclusion of the proceedings on the basis that an offer was made on that date to settle the proceedings for the sum of $300,000 inclusive of costs. The alternative period is from 29 August 2012 when the Defendant made an offer to settle the proceedings with a verdict and judgment being entered in favour of the Defendant with each party to bear their own costs. 3The Plaintiff commenced the proceedings naming the Southern Tablelands Gliding Club Inc as the First Defendant and the Civil Aviation Safety Authority (CASA) as the Second Defendant. 4The Second Defendant applied to strike out the claim against it. On 21 August 2012 McCallum J struck out the claim against the Second Defendant pursuant to r 14.28(1)(a) UCPR: Echin v Southern Tablelands Gliding Club Inc and Civil Aviation Safety Authority [2012] NSWSC 966. Thereafter the proceedings continued against the Club only.

The offers 5Prior to the judgment of McCallum J the solicitors acting for the Second Defendant wrote on behalf of both Defendants to the Plaintiff's solicitors on 13 March 2012. The letter was marked "WITHOUT PREJUDICE EXCEPT AS TO COSTS". The letter said this: We refer to the mediation of this matter on 24 January 2012. The defendants are, together, prepared to resolve your client's claim by way of payment of $300,000 inclusive of costs and all paybacks. This offer takes Into consideration the significant difficulties your client faces in successfully showing that either defendant is liable and the current evidence In support of the damages he claims. This offer is made in accordance with the principle enunciated in the matter of Calderbank v Calderbank [1975] 3 ALL ER 333 and will be relied upon in support of an application for Indemnity costs from the date of this correspondence, should the offer not be accepted and the plaintiff, at any eventual hearing, obtain an award of damages in the same or a lesser amount. This offer remains open for acceptance for 14 days from the date of this letter. We look forward to receiving your client's response. 6The Plaintiff rejected that offer. 7On 20 August 2012 the two experts completed their joint report. Precisely when this was seen by the parties and their solicitors is not clear but certainly no later than 29 August. 8On 23 August 2012 the Plaintiff's solicitors wrote to the Club's solicitors offering in accordance with the principles in Calderbank v Calderbank [1975] 3 WLR 586; [1975] 3 All ER 333 that they would settle the proceedings if the payment of a sum of $400,000 inclusive of costs in full and final settlement of the claim. The offer was said to remain open until the close of business on 24 August 2012. 9It seems that there must have been further correspondence rejecting that offer because on 29 August 2012 the First Defendant's solicitors sent to the Plaintiff's solicitors a letter also marked "Without Prejudice Save as to Costs". The letter offered to settle the proceedings with a verdict and judgment being entered in favour of the First Defendant and with each party to bear its own costs. 10The letter set out at some length reasons for the offer that was made. It is necessary to set out the letter in its entirety: We refer to our without prejudice correspondence dated 27 August 2012 and your subsequent telephone conversation with Ms Collantes of this office. We refer to the joint expert conclave report ("the report") dated 20 August 2012 which we received on 24 August 2012 and which was sent to you by email on 27 August 2012. We have now, as we understand you have, had time to consider the report. It is our client's view that the report is very favourable to its position. It is significant to note that the authors do not disagree on any of the responses to the questions provided by both parties in the joint letter of instruction dated 9 August 2012. It is also apparent given the assumptions the experts make (particularly in relation to the plaintiffs training and knowledge of the power lines) that the first defendant did not fail to exercise the reasonable care and skill expected of a gliding club in providing and/or designating Runway 30. The experts also state on several occasions that the plaintiff was aware of the power line hazard and furthermore that the plaintiffs training (which he received prior to being cleared for solo flight) would have included landing technique, landing area selection and safe clearance of obstacles. The experts further comment that it is not uncommon that many gliding clubs operate in the vicinity of power lines. Pilots are briefed on these hazards but it is not considered unusual for there to be no specific reference to them in daily briefings. The experts also agree that the training provided by Mr Gamble to the plaintiff met the GFA standards and included the need to clear obstacles whilst maintaining a safe speed. In light of the report it is our client's view that it will not be held liable as there was no breach of any duty that might be owed to your client. It is clear that the plaintiff was aware of the existence of the power lines which were known hazards and which had been regularly discussed amongst Club members. Even if the Club was to be found to have breached some duty owed, the Club still has its defences under the Civil Liability Act 2002 (NSW) in relation to being a volunteer and the plaintiff undertaking a dangerous recreational activity. From the conversation with Ms Collantes we understand that your client is still maintaining that the following issues assist your client on liability: 1. that the duty pilot "told" him via radio that he could "hangar land" the glider; and 2. that there was no Instructor with a Level 2 Instructor rating on the field on the date of the incident. In relation to numbered paragraph 1, as your client well knows all flight management decisions including the selection of where to land a glider are the sole responsibility of the pilot. The plaintiff did receive advice from the duty pilot that he could conduct a "hangar landing" but this advice was no more than a suggestion to the pilot to land safely on a runway as close as possible to the hangar. This advice cannot be interpreted as a direction to the pilot to land on a specific runway or to fly a specific circuit pattern. It is also clear that the plaintiff had a number of options of where to land the glider but chose to land over the power lines onto Runway 30. In relation to numbered paragraph 2 we have already provided you with a copy of the page of Mr Hayward's log book which clearly shows that his Level 2 Instructor rating was endorsed on 29 June 2008 (i.e. prior to the incident). Therefore on the date of the incident Mr Hayward had the appropriate qualifications to be the Level 2 Instructor at the field. We also note that your Counsel acknowledged in Court during the hearing of the Motion concerning the amendment of the pleadings that we had served evidence of Mr Hayward having a Level 2 Instructor rating on the date of the incident, In light of all of the above our client is of the view that the plaintiffs case will not succeed. However our client is prepared to compromise the proceedings on the following basis:- 1. a verdict and judgment being entered in favour of the first defendant; and 2. Each party to bear their own costs. This offer is open until 5.00pm on Thursday. 30 August 2012. This offer is made in accordance with the principles articulated in the decision of Calderbank v Calderbank [1975] 3 All ER 333. If the trial proceeds to a judgment and our client is successful, we will rely upon this correspondence to make an application for indemnity costs. 11This letter was sent by email but there is no evidence of the time of sending. It is to be noted that the Plaintiff was given only until 30 August 2012 to accept the offer. That was no doubt because the hearing was listed to commence the following Monday (3 September), 30 August being a Thursday.