Frank Acquilina v Felspin Pty Ltd t/as Byron Bay Microlights

NCAT Consumer and Commercial|2013-12-05

APPLICATION 1The application was filed on 10 December 2012. The applicant attached written submissions of some six (6) pages. The matter was first set down for hearing on 26 February 2013. That hearing was adjourned as the applicant had been unexpectedly admitted to hospital. 2The two (2) respondents nominated in the originating application were Byron Bay Microlights, BN 983 862 48 and Hang Gliding Federation of Australia ("HGFA"). 3The matter came before me on 20 May 2013. There was no appearance by HGFA. The matter was adjourned for formal hearing. The usual directions were made in relation to the lodgement and service of documents for hearing. 4On 17 May 2013 the Tribunal received extensive written submissions from HGFA giving reasons why it should not have been a party in the proceeding. 5On 6 June 2013, the applicant provided further documents to be relied on at the hearing in addition to the submission he attached to his originating application. 6On 15 July 2013 the matter came before Member Ross for formal hearing. However, it was adjourned as the the matter had been listed on a date the respondent had indicated he was overseas. The application against HGFA was withdrawn. Felspin Pty Ltd is the corporate proprietor of the business name, Byron Bay Microlights. Member Ross directed that the respondent's name be amended accordingly. Further orders were made in relation to lodgement and service of documents. 7On 18 June 2013, Felspin Pty Ltd lodged documents on which it intended to rely at the hearing.

ISSUES 13The main issue is whether the respondent provided flight training services with due skill and care under the Australian Consumer Guarantees and whether he was negligent in the performance of these flying lessons.

APPLICANT'S EVIDENCE 14Documents relied on by the applicant included: (a)Summary of submission; (b)Various emails between the parties; (c)A ledger of payments between Felspin Pty Ltd and Byron Bay Microlights; (d)Various invoices between Felspin Pty Ltd and Byron Bay Microlights for works done to the applicant's aeroplane; (e)Invoice dated 22 December 2011 from Colin Evans to the applicant for repairs to Trike aeroplane after hard landing; (f)Invoice from U-Haul Australia Wide Trailer Rentals to the applicant dated 7 November 2011; (g)Another invoice of the same type dated 31 January 2012; (h)Tax invoice dated 29 November 2011 from Airborne Wind Sports Pty Ltd to the applicant in the sum of $942.85; (i)Photo of point of impact for the aeroplane; (j)HGFA documents in relation to learning about triking. (k)Documents were also submitted by the Hang Gliding Federation of Australia. These included: (l)Detailed submissions on why they were not liable or ought to have been added as a party to the proceedings; (m)Weight Shift Micro Light Pilot Certificate Cross Country and Formation Endorsement Application of the applicant; (n)Registration Certificate of the applicant for his Edge X2 Totax Bombadier Airborne Wind Sports Micro Light Aeroplane dated 9 December 2009; (o)Registration Application; (p)Email from CASA to the applicant regarding complaint of the applicant about the actions of Mr Aquilina and HGFA; (q)Reply email of Mr Aquilina dated 8 October 2012; (r)Further email from Manager of operations of HGFA dated 16 October 2012. 15Mr Aquilina said he and his wife decided that they wished to fly around Australia in their own aircraft when he retired in 2012. To pursue that end, in July 2009 he decided to learn to fly an ultra-light or microlight aircraft. He wished to learn with an instructor certified by the Civil Aviation Safety Authority ("CASA") and in an aircraft built in Australia by Airborne Australia. He looked at the CASA website and it listed HGFA as its administrator of microlight aircraft. 16HGFA's website indicated that any schools accredited by it had to conform to minimum standards for equipment, operational systems, certification and ongoing support. As a result, Mr Aquilina approached Byron Bay Microlights which was listed as a registered HGFA flying school within the Byron Bay area. Richard Tabaka was listed as the chief flying instructor. Byron Bay Microlights were also listed as dealers for purchase of microlight aircraft produced or manufactured by Airborne Australia Micro Light. 17Mr Aquilina said that in an initial meeting with Mr Tabaka, there was another pilot in the room. There was a difference of opinion between that pilot and Mr Tabaka as to whether a microlight with a new strutted wing would provide any difficulties in relation to learning. According to Mr Aquilina, Mr Tabaka was then engaged to purchase a microlight aircraft with a strutted wing for Mr Aquilina. He commenced training on 16 January 2010. He utilised the aircraft he had purchased through Mr Tabaka as instruction fees were lower if a learner used their own aircraft. The fees were $126.00 per hour for instruction in the applicant's own microlight. 18On 5 August 2010, Mr Tabaka and the applicant were on a training flight to Mullumbimby. At that time, Mr Aquilina said he was a student pilot with less than two (2) hours solo experience. He said Mr Tabaka instructed him to perform a simulated emergency landing on a property near the Mullumbimby Golf Course. Prior to this date, Mr Aquilina had done three (3) simulated emergency landings, two (2) of which were actually completed and one (1) which was aborted some three hundred (300) feet before touching down. As a result of the knowledge acquired in earlier simulations, Mr Aquilina said he commenced preparations for landing, keeping in mind that the landing may or may not be actually completed. 19As they approached the landing, Mr Aquilina said Mr Tabaka told him they were landing on a private air strip. He said he asked Mr Tabaka if he had the property owner's permission to land. He said Mr Tabaka replied that he had such permission. Mr Aquilina said that during a fast descent he noticed the top of a barbed wire fence in long grass ahead at an altitude of about twenty (20) feet. He took action to clear that fence. He said that when he first saw the barbed wire fence, he pushed the control bar but did not power the motor. Subsequently, the aircraft stalled and came down very hard. He said "It came straight down". The landing caused damage to the undercarriage and the aircraft frame. He said the front wheel was bent as well as the supporting forks. 20Mr Aquilina was vigorously cross-examined over his version of what happened on the approach for the landing. He expressed some doubt as to whether he was instructed initially to land on the golf course. He admitted he was told before the plane took off that they would be doing an emergency simulation landing and heading towards Mullumbimby. Mr Aquilina admitted that at around 1400 feet, Mr Tabaka said to him, "We are going to do an emergency landing" and that Mr Aquilina took over power above the golf course. Mr Aquilina conceded that as he was close to landing, he had control and that he could have powered the microlight up. He said he knew at the time of hearing that he should have done so. 21Mr Acquilina said that after the plane landed, the property owner, who himself claimed to be an experienced pilot, came over to see if they were hurt. The property owner told them he thought it had been an emergency landing. Mr Aquilina said that he told the property owner it was a simulated landing. He said that the property owner became irate and said "You could both have been killed, do you realise there is a drainage area less than 2 metres behind where you landed, you have no permission to land on my property". Mr Aquilina said that he told the property owner that Mr Tabaka had ensured him that he did have permission to land. Mr Aquilina said the property owner indicated he had never seen Mr Tabaka before or given him permission. 22Mr Aquilina said that two (2) days after the accident, he ordered parts for repairs to the microlight. The respondent contacted him when he had the parts and they attended the landholder's property where they landed. The respondent flew the microlight back to the aerodrome. Repairs included replacing front and two (2) back axles. Mr Aquilina said that Mr Tabaka told him that the base tube had a bend in it, but it would not affect any flight characteristics. Mr Aquilina said Mr Tabaka undertook to replace the base tube if he ever wanted to sell the microlight. 23As a result of having lost confidence in Mr Tabaka, Mr Aquilina said that he contacted HGFA to see if it was necessary to lodge an incident report. He said he was told by their representative that such a report was not necessary as hard landings were common place. Mr Aquilina proceeded to continue with flight training. He says he continued with this even though he had lost "all confidence in Richard as an instructor and myself as a student pilot". In his written submissions, he said that after the incident he trained with Mr Tabaka for another one (1) hour and forty (40) minutes. 24On 21 August 2010, Mr Aquilina failed his final training check flight. At that time, he told Mr Tabaka that he did not wish to complete his training. After some discussions during which Mr Tabaka pressed on him the necessity to complete the course as he was so close to the end, Mr Aquilina agreed to continue. He eventually achieved his restricted licence and said his last flight was a one (1) hour solo flight on 5 October 2010 and that he had not flown since. 25In cross-examination Mr Aquilina insisted that he did not have three (3) hours of solo training before the failed check flight on 21 August. His flight book for that time said that he was "working towards competency". He said he did a solo landing on 31 August 2010, which was signed by the respondent. On 14 September 2010, he had another check flight which he passed. On 22 September 2010, he had a theory exam which he passed. He said that on 5 October 2010, he flew for an hour and did five (5) landings. He aborted the last landing twice and forced himself to land. He had lost confidence and that was the last time he flew the microlight. He said the aircraft remained in the hangar at the aerodrome and occasionally he would attend to turn over the motor. 26In response to Statutory Declarations from various witnesses who claimed they had seen him flying the plane after the last date Mr Aquilina alleged to have flown, he said that he may have been attending the aerodrome to turn the motor over. At most, he may have been taxiing the microlight in order to keep it in reasonable condition. He said that in relation to the advertisement, he asked Mr Tabaka to put fifty three (53) hours time on the advertisement for the flight time for the aeroplane. He said that when training ended on 14 September 2010, the flight book indicated there was forty seven (47) hours, thirty six (36) minutes flying time. He said that two (2) years of turning over the motor and taxiing probably explained the difference between the hours in the flight book at the end of training and the fifty three (53) hours in the advertisement. He said that on 5 October 2012, he did one (1) hour. At that time, the flight book showed, before doing that hour, he had six (6) hours, twenty two (22) minutes solo and thirty nine (39) hours, thirty three (33) minutes with an instructor. 27Despite having asserted that he had lost all confidence in Mr Tabaka, Mr Aquilina said in his evidence in chief that on 22 August 2011, nearly a year after he had completed his last flight, he contacted Mr Tabaka and asked if he would sell the aircraft through his website for his normal fee. He said Mr Tabaka advised that the market for aircraft sales was slow and the aircraft would probably sell for around $50,000.00. He further advised that as a result of the accident, the base chair and the plates to where the axles attached would have to be replaced. Mr Aquilina said he found this surprising as the rear axles had been replaced at the time of the accident and Mr Tabaka had declared the aircraft safe to fly. Why was he now considering that the wheels may have been misaligned due to the accident? He said Mr Tabaka quoted $2,500.00 to repair the aircraft and provide an aircraft condition report. If he found any other additional faults, there would need to be additional costs. 28Mr Aquilina then, for the first time, contacted his insurance broker to file a claim for the repairs. Mr Aquilina said his insurance broker informed him that as there was no incident report submitted at the time of the accident and the accident had occurred over twelve (12) months ago, any claim would not be successful. 29Mr Aquilina submitted that Mr Tabaka did not provided his services with due skill and care because he instructed a student pilot to land on a property without the owner's permission. Mr Aquilina said this was contrary to the HGFA Operation's Manual, which stated that all powered aircraft are prohibited from flying below 500 feet above a property without the property owner's permission. 30Clause 6.2 of the HGFA Operations Manual in relation to flight height limitations, states: "6.2 For the purposes of subparagraph 5.1(b), the conditions one of which must be complied with for an aeroplane to be flown at less than 500 feet above ground level are: The aeroplane must be flying in the course of actually taking off or landing; or The aeroplane must be flying: Over land that is owned by, or under control of, the pilot or of another person (including the Crown) who, or an agent or employer of whom, has given permission for the flight over the land at such a height." 31He said Mr Tabaka erroneously and deliberately led him to believe that he had permission to land on that particular strip. He said Mr Tabaka was negligent in actually going ahead with the landing on an unfamiliar paddock with long grass and without the authority of the property owner. He said that Mr Tabaka planned the subject training exercise without any reasonable margin of error for safety in mind. Mr Aquilina said that even when they had descended to 150 feet Mr Tabaka should have advised him not to land there when he saw the state of the landing area. 32Further, Mr Acquilina submitted that as the microlight was fitted with dual controls through which an instructor could take over control, Mr Aquilina said Mr Tabaka should have pre-empted Mr Aquilina's inappropriate corrective action when he saw the fence so that the landing did not take place. 33He submitted that the HGFA Operations Manual stated that Mr Tabaka was obliged to submit an incident report to HGFA within 24 hours of the accident and this was contrary to the advice provided by both Mr Tabaka and the HGFA staff. Not only did Mr Tabaka fail to report the incident. He actively advised Mr Aquilina to not report it being fully aware of the breach of regulations. This failure to advise him to report led him to suffer financial disadvantage as his insurance claim was invalidated almost a year later. Mr Aquilina said that he rang HGFA two (2) weeks after the incident and was told that there was no reason to put in a report and the staff member said "If I had a dollar for every bad landing, I'd be a millionaire". 34The HGFA Operations Manual, at clause 5.5.3 Notification of Incidents, states: "Where an incident occurs, the pilot in command, the owner, the operator and the hirer (if any) shall each be responsible for ensuring that a written notification of the incident to the senior safety officer of the club controlling the site, or direct to HGFA Operations Manager within 48 hours of the occurrence. In practice, there is considerable scope from interpreting the definition of an incident. The following guidelines are provided to indicate the requirements in this regard.

The following are defined as incidents that must be reported: Hard landings or other events where there was potential for serious injury (including near misses); Hard landing requiring the replacement of major structural elements of the aircraft." 35Finally, he said Mr Tabaka repaired the aircraft shortly after the accident and allowed him to fly it after the repairs. Only twelve (12) months later there were problems with the plane, such as the misalignment of the wheels. Mr Aquilina said this could only mean that Mr Tabaka did not apply appropriate repairs in the first incidence after the hard landing and did not carry out all repairs necessary at that time. 36Mr Aquilina also said that after the accident he spoke to other flight instructors who advised that the strutted wing was not an appropriate choice for a beginner doing flying lessons. In his written submissions attached to the originating application, Mr Aquilina made a number of other allegations against HGFA but as the application had been withdrawn against them they are not relevant to this determination. 37In late 2011, Mr Aquilina had the repairs carried out to his microlight and certified by Airborne Australia. He had attempted to sell it at a listed price of $55,000.00. He had only received one (1) offer on the aircraft for $45,000.00, which, when one deducted brokerage fees of $4,500.00, meant his net proceeds would be $40,500.00. The initial aircraft price was $75,000.00, so, he submitted, his financial loss in respect of the aircraft was $34,500.00. 38Mr Aquilina said when he commenced the course and carried it out, he had not read or seen the Operations Manual. 39In cross-examination Mr Aquilina admitted he signed the waiver on 26 November 2013. He did not acquire any independent legal advice in relation to the waiver. He also insured the aircraft for the purchase price and for personal injury. 40When he decided to sell the microlight in August 2011, Mr Aquilina said he designed the advertisements to be put onto Mr Tabaka's website. He also provided photos of the plane. He said it was in "excellent condition". He said Mr Tabaka said to him that the base tube was bent. Mr Tabaka also indicated that perhaps the axle hubs were bent. At this time, Mr Aquilina felt he was being exploited and sent an email to Mr Tabaka dated 19 September 2011 expressing his concerns. In that email, he suggested that Mr Tabaka should bear all the repairs at his own cost. Mr Tabaka did eventually reply in October, reducing the price for the parts and providing free labour. Mr Tabaka indicated he had a buyer for the plane if it was fixed. That sum would be $450.00. Mr Aquilina said that in the meantime, he had already arranged for Airborne Australia to do the repairs. These totalled $3,602.85 including transport of the aeroplane to the repairer at Newcastle. He said that the plane remained at the repairer's institution and Mr Aquilina prepared his own advertisements to sell it from there. No copies of those advertisements were in his documents. He said the advertisement indicated it had been repaired and checked over by the manufacturer. After a few purchasers viewed it, it was eventually sold in June 2013 for $46,000.00. 41In cross-examination Mr Aquilina conceded that after 5 August, he did another three and a half (3 ½) hours training with Mr Tabaka. He did his radio certificate training after the accident. He denied he was given the Operating Manual of HGFA at any time. He said he relied on another manual written by an author called Cosgrove. He further conceded that he read the waiver briefly and he could not state that he did not know what he was signing at the time. He denied that he was learning to fly for business remuneration and said that he was only flying for recreation. He conceded that Mr Tabaka would not list the plane for sale as Mr Aquilina's own advertisement stated the plane was in excellent condition. 42Mrs Aquilina also gave evidence. She indicated she went on a joy flight with the respondent. After that joy ride, she discussed with him their intention to visit outback landing places. She said the respondent showed her a book about landing areas in the western region which he said were on private properties.

RESPONDENT'S EVIDENCE 43The respondent relied on the following documents: (a)Summary of response; (b)Detailed response to Mr Aquilina's complaint; (c)Detailed response to Mr Aquilina's complaint; (d)Customer order form between the applicant and Airborne Wind Sports Pty Ltd for supply of trike and microlight aeroplane. This was dated for delivery as 21 December 2009 and was in the sum of $75,579.87; (e)Airborne Wind Sports Pty Ltd aircraft operating instructions for microlight Edge X2 912; (f)Special Certificate of Air Worthiness of CASA for the applicant's microlight aeroplane, the purpose of which was for private operations, flying, training or glider towing. This document was dated 9 December 2009; (g)Release, Assumption of Risk and Warning from Byron Bay Microlights to the applicant executed on 26 November 2009; (h)Statutory Declaration form 3 different persons stating when they saw the applicant using the microlight aeroplane; (i)Various email chains between the parties too numerous to itemise; (j)Verification Certificate from HGFA for the applicant stating he had completed all flight and theory requirements including a successful check flight for acceptance for issue of Weight Shift Pilot Certificate; (k)Training Progress Report for the applicant dated 14 September 2010. 44Mr Tabaka submitted that Mr Aquilina was bound by the The Release, Indemnity and Assumption of Risk form signed by Mr Aquilina (the waiver). It states at clause 2: "I fully accept and assume all liability for the risks, dangers and hazards involved and the possibility of injury, danger and death in any way associated with participation in the activity now and in the future". 45Clause 3 goes on to state: "I waive any and all claims I have or may have in the future against the owner or occupier (or any type of property, including real property), the operator or any supplier of services, the direction, employees, agents, suppliers, contractors and insurers and release, indemnify and hold them harmless from any and all liability, actions, claims and demands of whatever nature, however caused and by whomever brought as a result of all arising out of or connected with the activity including but not limited to claims of negligence, contract or for breach of statutory duty or statute." 46Clause 4 stated that the contents of the document were a complete bar to any action against the owner or occupier, the operator and any supplier of services arising out of participation in the activity. Where statutory guarantees could not be excluded by agreement, the liability was limited to the cost of resupplying any services under clause 5. 47Clause 9 was an agreement to not commence any proceedings against HGFA. 48By email, dated 9 October 2012, an Officer for CASA replied to the complaint by Mr Aquilina against Mr Tabaka and HGFA. That officer indicated he had referred the issues on to an officer of HGFA. 49On 16 October 2012 the operation's manager for HGFA emailed Mr Acquilina. In that email he indicated: (a)HGFA did not specify to trainer pilots margins for safety and such margins are perceived by individual trainers based on their personality, experience and skills; (b)an accident of the type described by Mr Aquilina would not normally require an investigation but an accident report should have been provided and Mr Tabaka had been counselled about this failure; (c)that Mr Tabaka had advised HGFA of his version of the accident and that he had "far more experienced judgement than Mr Aquilina. 50HGFA's operations manager also said that Mr Tabaka had only raised the issue of the need to replace the hub when Mr Aquilina had advertised the microlight as being in perfect condition. 51In another email of 17 October 2012 Mr Aquilina was asked to supply a statement from the property owner who Mr Aquilina claimed had told him Mr Tabaka did not have permission to land. No such document as ever supplied to HGFA or this Tribunal. 52In his written submission he prepared for this Tribunal hearing giving reasons why HGFA should not have been joined as a party, the Operation's Manager for HGFA concluded at Page 3: "As HGFA Operations Manager it is my opinion that at all time Mr Richard Tabaka CFI of Byron Bay Microlights conducted the training of Mr Aquilina in compliance with the CASA approved HGFA Operations Manual. Mr F, Aquilina was issued with a Weight Shift Micro Light Pilot Certificate and a VHF Operation Air Band Endorsement following successful completion of his training. Mr Aquilina queried that reply and there was a further response on 17 October 2012. The accident that caused some damage to Mr Aquilina's aircraft was caused by Mr Aquilina himself. His CFI, Mr Tabaka, reacted rapidly and appropriately to Mr Frank Aquilina's panicked and inappropriate input. Mr Tabaka prevented what would have been a more serious accident". 53In relation to the claims that the aircraft purchased on recommendation by Mr Tabaka was not appropriate due to the strutted wings, the HGFA submissions of the person who reported to CASA were: "Suggestions by Mr Aquilina the aircraft he chose to purchase and bought direct from Airborne Wind Sports was not fit for the purpose are completely bogus. The aircraft was fitted for the purpose that Mr Aquilina eventually intended it for, touring, but also it was appropriate for training and in fact almost identical aircraft used in mini weight shift micro light flight training facilities including those normally owned and used by the instructors at Byron Bay Microlights ... The difference between the strutted and wired brace of this same aircraft does not create difficulty in the training environment." 54In his evidence, the respondent also pointed out that the waiver indicated that if any legal action was to be taken, it had to be taken in New South Wales within one (1) year of participation in the training. Mr Aquilina did not bring the Application until two and a half (2 ½) years later. He said flying is a dangerous activity. He said that the Civil Liability Act limited liability for claims for persons engaging in dangerous activity where the activity had "obvious, significant risk". 55Mr Tabaka said the risks were clearly explained to Mr Aquilina before he signed the waiver. He said that on the day of the accident, he briefed Mr Aquilina before they left the aerodrome. He said that he had informed Mr Aquilina there would be an emergency landing exercise set. He said it would be Mr Aquilina's choice of a place to land. However, he had the final choice of landing site if the student's choice was not appropriate. He could not exactly remember who chose the private area landing that was finally used. He said that as the plane entered to land, everything was operating smoothly until a point at about three (3) metres above the ground where Mr Aquilina suddenly, and without warning, pushed the flight bar away from him causing the aircraft to stall in the air. That could lead it to hit the ground like a rock. He said that he had to take over controls, carry out special manoeuvres on the wing and he took control, thus causing the microlight to have a softer landing. He said there was no talking during the approach as the student carried out all necessary activities and Mr Tabaka would only say something if there was a problem. 56He said that the Operation Manual required that accident report could be put in either by the pilot or by himself, being the pilot in command, or the owner of the aircraft. Mr Aquilina did not need his permission to do so. He refuted that Mr Aquilina had not been given a copy of the Operation Manual. He said it was given to him from the beginning and there were questions during training from the Operations Manual. However, he said it was Mr Aquilina's obligation to acquire the manual from the website for HGFA. Examinations during the course of training refer to the Operations Manual. 57Mr Tabaka said that despite the accident, Mr Aquilina continued to come back to him for further training and eventually he successfully completed that training and was certified. He said that after he obtained his pilot certificate, he flew for a further six (6) hours solo. As a result, this indicated that he could have and still can, fulfil his flying desires to fly around Australia. It was a matter for Mr Aquilina if he chose not to use the skills he had acquired under training. He also queried that if Mr Aquilina had lost trust in him, why he would have been approached to sell the micro light on his behalf nearly twelve (12) months later. He also said that Mr Aquilina told him he had health problems and that is the reason he had been advised by his Doctor to stop flying. Mr Tabaka relied on the witness Affidavits which all indicated that they had seen Mr Aquilina flying the plane solo after October 2012. 58Mr Tabaka said the damage to the aircraft on the date of the accident had been overstated. It was able to be taxied to the hangar. Only the undercarriage had some damage. The axles were replaced a week later. It was in an airworthy condition and flown back to the air strip. Mr Tabaka said Mr Aquilina agreed that the base tube should be replaced so that the plane could be in the excellent condition Mr Aquilina claimed in his advertisement. Even when Mr Tabaka did find a purchaser and had dropped his quote to $450.00 with free labour to repair the problems with the microlight, Mr Aquilina did not take that offer but went elsewhere for a much higher price. In any event, he said that those repairs at that time were only necessary to put the microlight in an excellent condition as advertised rather than as airworthy. He also pointed out that Mr Aquilina did not supply any certification of repairs carried out by Airborne. Mr Tabaka also indicated that he was not acting as an agent in purchase of the micro light for Mr Aquilina in the first instance. He said this was a direct transaction between Mr Aquilina and the manufacturer. He said all the invoice documents in relation to that transaction were between Mr Aquilina and that entity. 59He indicated that he had approached the wife of the landowner when they landed about one (1) to two (2) years before starting the training with Mr Aquilina. He said he had verbal permission to use the landing area. The Tribunal notes that there was no written statement from that landowner in relation to what occurred on the date of the accident and that the evidence is a matter of the different versions of the parties. 60In cross examination, Mr Tabaka conceded that the airstrip was not approved by CASA. He said the usual emergency simulated landing procedure was to inform the student there would be an emergency landing. The student was asked to look for landing areas. The student selects the area and tells the instructor which one they have chosen. If that was considered appropriate by the instructor, they land at that point. He also conceded that the plane may have been seven (7) rather than three (3) metres above the ground and the fence when Mr Aquilina panicked and pushed the flight bar forward. He said that at that point, everything had to be done within fractions of a second in order to avoid a disaster. Mr Tabaka said that an important part of training and learning procedures was to get a student as close to actual landing as possible without there being dangerous conditions. The emergency only arose at this point some three (3) to seven (7) metres above the ground. For a proper simulation, a student has to be exposed to some level of uncertainty during such a landing procedure. He also said that at this time, Mr Aquilina also had forty (40) hours of flying so he was certainly not a beginner or completely inexperienced. It was not the first landing in which Mr Acquilina had faced fences in the area. He said that twenty (20) metres above ground was the latest point which an instructor could pull a stalled aeroplane out so that it would not hit the ground. He also conceded that the plane was pushed to the hangar not taxied as he said in his evidence in chief. He conceded that he did not put in any accident report. 61Mr Tabaka also conceded that he fixed the axles not the axle hubs on the plane. He conceded that it had some problems but did not necessarily concede they arose from the hard landing. The applicant admitted that invoice monies for purchase of the micro light went straight from him to Airborne, not to Mr Tabaka as agent.

FACTS 62The evidence of both the applicant and his wife was that the applicant wanted the flying licence so he could fly around the country after his retirement. In particular, the evidence of the applicant's wife shows this was intended as recreational activity. I find that the purpose of obtaining the licence was for the applicant to fly for recreational activity, not for commercial purposes. 63Mr Acquilina alleges a number of failures. In relation to pre-training issues he alleges he was not given an operations manual. Mr Tabaka said he did. I am unable to make any finding on this point. 64He says he was misinformed about the type of microlight to purchase and was supplied one not suitable for pilot training. 65In relation to the simulated landing, Mr Acquilina alleges that the respondent instructed him to land at an airfield for which he had no owner approval and in contravention of the obligation to fly below 500 feet only with approval. Neither party called this landowner to give evidence. He did not provide any written statement. The HGFA operations manual specifically says a microlight may fly below 500 feet when "in the course of actually taking off or landing" which was the case in this matter. It is the obligation of Mr Acquilina to discharge his onus to prove his his case on the evidence provided and the balance of probabilities. Mr Tabaka said he had acquired approval some years before. I cannot give more weight to the evidence of either of the parties on this issue so that I can find in favour of Mr Acquilina on the point. It should also be noted that Mr Acquilina's realisation of this alleged lack of the owner's consent only became known to him after the landing. The allegation of lack of due skill and care in relation to the landing itself does not rely on any finding as to the owner's consent. I do not make a finding that Mr Tabaka chose an improper airfield. 66The evidence shows that the applicant was not a novice student at the time of the accident but had flown for a significant number of training hours. He had been involved in simulated landings previously. The respondent informed him prior to take-off that the training that day would involve a simulated landing. Importantly, as the respondent submitted, the student is not informed about whether a landing will actually take place or not during the simulation. That is so the student must have in his or her mind the possibility that he or she may have to actually land the microlight. If a student was told during the simulation that the landing was not going to be completed, the simulated training would not occur in a fashion that suitably replicates a real situation. I accept the evidence of the applicant that it is the respondent who chose the landing strip that was eventually used. I accept the respondent's evidence that until the microlight was close to ground level the actions of the applicant who had control of the microlight did not give the respondent any cause for concern. The applicant appeared to be executing a simulated landing in the proper way. 67There is contested evidence as to how high the microlight was from the ground on approach. This evidence was vigorously tested by both parties. The applicant said the fence was covered by long grass and that "close to the ground" he saw it for the first time. The applicant said he "pushed the control bar but did not power the motor". The respondent said this action occurred suddenly "about 3 metres above the ground". In cross-examination Mr Tabaka conceded this could have been at about 7 metres above the ground. But whatever the height, Mr Tabaka said he only had fractions of a second to respond to prevent a catastrophic landing. Mr Tabaka immediately took hold of the instructor bar, pulled it towards himself and then pushed it away to get a softer landing. I accept the evidence of Mr Tabaka that it was not possible to abort a landing once below about 20 metres. Mr Tabaka said this landing was not the first time the applicant would have seen fences in any simulated landing. Fences around landing areas are very common objects. 68I find that the essential cause of the hard landing was, on his own admissions, the stalling caused by the very late and panicked reaction of Mr Acquilina. The respondent had very little time to respond. Yet, in the very limited time available he was able to mollify the impact through his actions. 69Nor do I accept the evidence of the applicant that he lost his nerve for flying as a result of this accident. The evidence and documents of HGFA clearly indicate the applicant received all his training qualifications. Indeed, on the contrary, Mr Acquilina continued with his lessons with Mr Tabaka and eventually did achieve the licence qualifications for which he bargained. The relationship between the applicant and the respondent did not break down until almost a year later. That breakdown was in relation to differences of view over the respondent acting as agent to sell the applicant's microlight, not any dissatisfaction with his training services. 70I have found that the damage was caused to the microlight by the applicant's panicked reaction. But was his loss of opportunity to claim for repairs on his insurance policy due to the respondent's failure to report the accident? First, the applicant provided no documents from the insurer showing a refusal to respond to a claim based at a failure to report an accident within the 12 months. Secondly, the regulations relied by the applicant indicate any one of a number of persons including himself could have reported the hard landing. Nobody did. Mr Acquilina decided not to. Instead, the respondent carried about the repairs to make the plane suitable for flying so the flying lessons could be completed. HGFA had counselled Mr Tabaka on his failure to report. 71I also find that the repairs of almost a year later were made necessary because the advertisement prepared by the applicant represented the plane was in "excellent condition". The respondent agreed to do these repairs for a cost of only $450.00. This offer was negated by the applicant going to Airborne Australia for the repairs which were done by them. 72Finally, I accept the report of HGFA that the provision of the original microlight was not contrary to acceptable standards for flying students. There was little evidence to support this claim other than a purported conversation at the very early stages of the purchase. There was no expert report opining that the plane purchased was unsuitable for students.

APPLICATION OF RELEVANT LAW 73The main issue in this matter is whether the respondent provided the flight training services in compliance with the Australian Consumer Guarantee that services "will be rendered with due care and skill" and be fit for a purpose made known. I find services were rendered with due skill and care. They did fit the purpose made known being certification for recreational flying. I would go further and say but for the proficiency and skill of Mr Tabaka the applicant may have been seriously injured and his microlight extensively damaged in the accident. These were the same findings in the HGFA inquiry. 74Further, and as a corollary of the consumer guarantee claim, and as submitted by Mr Tabaka, the Civil Liability Act provides a defence to allegations of negligence in claims involving recreational activities. A recreational activity includes any pursuit or activity engaged in for enjoyment, relaxation or leisure. Negligence means failure to exercise reasonable care and skill, a wording that carries many similarities with the consumer guarantee. This claim has been brought in contract and the Civil Liability Act applies to any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise. Mr Acquilina claims for damage to, and diminution in the value of his microlight. The Civil Liability Act does not restrict claims to those for personal injury as harm under the Civil Liability Act allows claims for damage to property. 75In Campbell v Hay [2013] NSWDC 11, the NSW District Court recently considered a claim for personal injury brought by a flying student against his instructor. While there is no claim for personal injury in this case, the court considered the Civil Liability Act in relation to recreational activity and obvious risk. That case e involved the instructor taking over control of the plane to carry out a crash landing. The Court found that flying lessons were dangerous and said at [68]-[70]: "Having regard to such evidentiary material as I have referred to concerning the incidence of incidents affecting light aircraft, the range and extent of those matters which may cause or contribute to something "going wrong" in the operation of an aircraft in flight and in safely landing it, I am of the opinion that the risk involved cannot be described as trivial. Although my impression is that such a risk occurs only infrequently, nevertheless it remains a real risk. Whilst the statistics which have been made available to the court are not entirely apposite, they do indicate that from time to time accidents occur involving light aircraft. Furthermore the particular incidents as described in the media reports to which I have referred substantiate this. As the authorities make clear, the determination of this particular matter involves the making of a value judgment, based on impression, provided, of course that there is a valid basis for doing so. The activity in which the plaintiff was involved is in a similar category to recreational parachute jumping, statistically safe, but involving some (lesser) risk of danger. As common sense dictates, if something does "go wrong" with the operation of an aircraft in flight, including landing it, there is a significant risk of physical harm. Taking into account the height at which light aircraft operate, and the speed at which they travel while landing, as matters about which there can be no controversy, I have no doubt that at the appropriate level of abstraction which is necessary in considering this matter that there was a significant risk of physical harm. As the authorities make clear, it is necessary to balance these two elements, namely the risk and the harm in determining whether the activity was dangerous for the purpose of section 5L. In the circumstances of these proceedings, this exercise dictates that the activity in which the plaintiff was engaged was relevantly dangerous. There was a not insignificant risk of "something going wrong" (as I have described this), coupled with a significant risk of harm. In all the circumstances I conclude that the recreational activity in which the plaintiff was engaged was dangerous for the purpose of section 5L of the Act." 76At [72],the court went on to say that the risks in such lessons are obvious: It is not necessary, for the determination of this matter that I consider the analysis of this section further. It is clear to me that, as a matter of common knowledge and common sense, there was a risk that the defendant might be negligent in the manner in which he operated the aircraft after the second set of vibrations occurred, and that the aircraft engine might fail in flight, and that, for whatever reason (including these two reasons), that the defendant would be compelled to conduct a forced landing. This is sufficient to result in these risks being characterised as obvious for the purpose of section 5F, albeit that there was a low probability of them occurring. As is equally obvious, the injuries suffered by the plaintiff resulted from the materialisation of these risks. 77In relation to recreational activities, the Civil Liability Act states: 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) 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. (2) This section applies whether or not the plaintiff was aware of the risk. 78The risk of a fence materialising on approach to a landing area is, in my view, obvious. It was a risk for which Mr Acquilina should have been on the lookout and he had encountered on earlier simulated landings. 79Moreover, Mr Acquilina is bound by the waivers he signed under the contract. He said he read the documents and chose not to get legal advice. The Civil Liability Act states: 5M No duty of care for recreational activity where risk warning (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff. (3) For the purposes of subsections (1) ..., a risk warning to a person in relation to a recreational activity is a warning that is given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity. The defendant is not required to establish that the person received or understood the warning or was capable of receiving or understanding the warning. (4) A risk warning can be given orally or in writing (including by means of a sign or otherwise). (5) A risk warning need not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk). 80The Civil Liability Act also allows contractual exclusion of liability for breach of duty of care in respect of recreational services: 5N Waiver of contractual duty of care for recreational activities (1) Despite any other written or unwritten law, a term of a contract for the supply of recreation services may exclude, restrict or modify any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (2) Nothing in the written law of New South Wales renders such a term of a contract void or unenforceable or authorises any court to refuse to enforce the term, to declare the term void or to vary the term. (3) A term of a contract for the supply of recreation services that is to the effect that a person to whom recreation services are supplied under the contract engages in any recreational activity concerned at his or her own risk operates to exclude any liability to which this Division applies that results from breach of an express or implied warranty that the services will be rendered with reasonable care and skill. (4) In this section, recreation services means services supplied to a person for the purposes of, in connection with or incidental to the pursuit by the person of any recreational activity. (5) This section applies in respect of a contract for the supply of services entered into before or after the commencement of this section but does not apply in respect of a breach of warranty that occurred before that commencement. (6) This section does not apply if it is established (on the balance of probabilities) that the harm concerned resulted from a contravention of a provision of a written law of the State or Commonwealth that establishes specific practices or procedures for the protection of personal safety. 81Mr Tabaka was not required to give specific notice of the risks of simulated landings. They are not only obvious they are also in the general warning under the waiver document. The 'Release, Assumption of Risk and Warning' document signed by Mr Aquilina stated the training is a "hazardous and dangerous activity". It warned of the dangers of death and disability and injury. Clause 3 waives claims for civil liability. CONCLUSIONS 82The application ought to be dismissed. G Bassett General Member Civil and Administrative Tribunal of New South Wales 14 March 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 May 2014

Consumer Claims Act 1998(NSW)

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Judgment (8 paragraphs)

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Legislation Cited (3)

Cases Cited (1)