Issue 1 - The Negligence Issue
115The plaintiff's statement of claim alleged that the defendant had been negligent in the following respects:
(a)Failure to provide a portable set of steps for disembarkation:
(b)Failure to warn the plaintiff he was in a position of peril because of the required method for disembarkation;
(c)Failure to provide handgrips or handles to assist in the process of disembarkation;
(d)Failure to provide assistance to the plaintiff in disembarking the aircraft.
116At the conclusion of the evidence, the plaintiff argued that his injury could have been avoided if the defendant had either: instructed him on how to disembark from the aircraft by using the original steps that had been removed; or by changing the original steps that had been removed; or by warning the plaintiff that he would not have steps available for disembarking; or by instructing the plaintiff on how to safely disembark the aircraft; or by instructing his crew to render assistance to disembarking passengers.
117The plaintiff argued that none of these matters involved imposing an unreasonable standard or burden on the defendant, and each could have been achieved at minimal cost.
118In essence, the plaintiff's arguments centred upon a claimed failure to provide disembarkation steps, or in the absence of such steps, an alleged failure to provide guidance or assistance with his disembarkation from the aircraft.
119I do not consider the allegations made by the plaintiff concerning alleged failure to provide handgrips or handles, to be relevant in this case because the aircraft was a restored vintage aircraft, and handles or handgrips were not part of the original fittings of the aircraft, and there was no evidence of a regulatory requirement for such things to be fitted, as for example is the case with some items that are required to be fitted onto vintage cars, such as turning indicator lights.
120The defendant seems to have proceeded upon the basis that the absence of warnings or assistance did not involve negligence on his part because he had assumed that all passengers had the required aeronautical knowledge that obviated any need for discussion or warnings on such matters. That position seems to have been based upon the assumed instruction allegedly provided to the plaintiff at some time beforehand by Mr Thiess, a matter that the plaintiff could not recall, and in fact denied.
121Following my examination of the evidence on this point I have concluded that this disparity in the evidence between the recollection of the plaintiff and the recollection of Mr Thiess does not really involve a true credit issue.
122This is because there is an ambiguity in the evidence on this point. The plaintiff stated that at the times he had previous access to the aircraft, he had the benefit of steps that had been provided and made available at the Bankstown hangar for access and egress. The evidence of Mr Thiess was that on a single occasion he had shown the plaintiff the correct manner of accessing the aircraft by using the reinforced wing area. That is not inconsistent with the use of steps. Mr Thiess' evidence makes no reference to the presence or absence of steps in that regard.
123Even on Mr Thiess' evidence, at some point the plaintiff would have had to stand on the reinforced area of the wing even with the use of steps in order to get himself to the point where he was ready to enter the aircraft door. In those circumstances, I do not regard the evidence of Mr Thiess as being relevantly contradictory of the evidence given by the plaintiff.
124In my view, on the evidence, the defendant's submission that the plaintiff had been trained by Mr Thiess on the safe method by which to enter and leave the aircraft was flawed. I accept the evidence of the plaintiff that he had used the steps for access and egress when he was working on the maintenance of the aircraft in 2008, which was the time when Mr Thiess could have seen the plaintiff. It follows that the defendant's reliance on Mr Thiess' evidence involves an overstatement of the content of the so-called training that the plaintiff had received some 16 months beforehand, even if Mr Thiess' account of those events was to be accepted.
125On the issue of a warning, in my view it is of some importance to recognize that it was the duty of the pilot or his designated crew member to ensure that the plaintiff was aware of safety issues concerning embarkation and disembarkation procedures. In my view, it is an insufficient answer for the defendant to simply assert that on the basis of his, at the time, unsourced assumption that the plaintiff had received instruction on aircraft access and egress some 16 months beforehand, on the occasion when the plaintiff was doing some work on the handbrake mechanism under the supervision of Mr Thiess, that it was therefore unnecessary for him to provide a specific safety briefing to his passengers on such matters.
126Although the plaintiff indicated that he had used his commonsense in determining how he should best enter and leave the aircraft absent the availability of steps on the day of the accident, based upon his knowledge of his own age related abilities, physical flexibility and limitations, in my view that did not absolve the defendant from issuing a safety briefing to the plaintiff and to the others present, on matters of aircraft access and egress.
127There can be no question that the defendant owed the plaintiff a duty to take reasonable care, including to the extent of giving consideration to safety and injury issues that could reasonably arise in the course of aircraft access and egress by the plaintiff as a guest passenger. This is not the kind of case where it can be reasonably said that the existence of the duty of care and the content of that duty was contentious: Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; 205 CLR 254 per Gleeson CJ at [13]. The plaintiff was the guest of the defendant on his aircraft and the proximity of that relationship required the defendant to have regard to foreseeable risks to the plaintiff's safety whilst he was on the aircraft, including when alighting from the aircraft.
128The question of whether or not the defendant had breached his duty of care, and whether as a result, should be found to have been negligent, must be decided in the context of s 5B of the CL Act .
129As has been explained by Allsop P in Price v State of New South Wales [2011] NSWCA 341 at [37], this involves consideration of the now recognised statutory formulation of the process of reasoning stated by Mason J in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40, at [47]-[48], and requires a contextual and balanced assessment of the reasonable response to foreseeable risk of injury in the given circumstances, applying Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; (2997) 234 CLR 330 at p 354, [69].
130It is therefore necessary at the outset to examine the scope of the duty owed to determine whether in the circumstances, the duty owed extended to an obligation on the part of the defendant to take reasonable care to ensure that his passengers safely disembarked his aircraft. In my view that question must be answered affirmatively.
131I consider this to be so because the aircraft in question was no ordinary aircraft. Being a vintage aircraft, it was not fitted with any stairs, steps, disembarkation handrails or grips commonly seen for example in commercial passenger aircraft. The principal method of construction of the aircraft was timber framing covered by a skin of treated cotton fabric which, apart from a reinforced standing area on the port side wing, was vulnerable to damage if not handled with care. As a result, it was plainly apparent that if the exterior of the aircraft was incorrectly handled, it could well suffer damage to its fabric or structure, and may well not withstand disembarkation forces without risk, including the risk of damage to the fabric of the aircraft, but also a risk of injury to disembarking passengers in the case of a fall. These were matters within the particular knowledge of the defendant, who was therefore best placed to consider and deal with such safety issues.
132Furthermore, at some time before 2008, it is plain that the defendant had already considered the question of a safe method of disembarkation from the aircraft. This is evident from the fact that on at least one occasion to the knowledge of the plaintiff, the aircraft carried a set of folding aluminium steps for use in the course of embarking and disembarking. The defendant had decided that these steps were rickety, and he had therefore removed them but he did not replace them with others because, despite looking for other steps, he had found nothing that he thought suitable for the purpose.
133In my view, in the context of the defendant taking passengers on his aircraft without such steps, those circumstances at the very least required that the plaintiff be warned and reminded that there was a potential risk of falling whilst alighting from the aircraft where no steps were available to assist in that process. I consider this to be so, quite apart from any duty on the part of the pilot or designated crew members to supervise egress for safety considerations.
134The analysis of whether or not the defendant had breached his duty of care, and whether or not he was negligent, has to be considered prospectively as at 22 February 2009, and against those background events.
135In my view, the question of whether the act of alighting from the aircraft onto the tarmac carried with it a foreseeable risk of injury where no steps were provided to enable passengers to step from the wing over a distance of 80cm to the ground, has an obvious answer. In that regard, I consider that there was a risk of injury associated with that activity, and that risk must have been foreseeable to the defendant for several reasons.
136First, on the previous occasion in 2008 which involved the plaintiff, the steps had been provided for embarkation and disembarkation. Secondly, it must have been obvious to the defendant, who had on many previous occasions himself got in and out of the aircraft, that a person could fall in the absence of a safe hand grip or a firm foothold during the course of access and egress. Thirdly, the defendant based his decision to remove the ladder from the aircraft on his perception that people were not safe from injury whilst using it, or that if the ladder was creating its own risk that disembarking passengers might fall forward when using it, hence the defendant's judgment that it was rickety and unsafe.
137In that latter regard, Dr Fox's reasons for withdrawing the ladder from use seem to me to have been based upon the described misuse or unsupervised use of the ladder during disembarkation of some other passengers. In my view, that is an unsound basis for withdrawal of the ladder without replacement in circumstances where passengers were invited onto the aircraft. Moreover, the withdrawal of the availability of the ladder is a compelling reason to provide supervision and assistance to disembarking passengers in order to appropriately address the risk of a fall and the related risk of resultant injury.
138On those considerations, I conclude that at the time the plaintiff travelled on the aircraft on the date in question, the risk that he might be injured from a fall, when viewed prospectively, was a foreseeable one: s 5B(1)(a) of the CL Act .
139The next question to be addressed in the analysis is that of determining whether or not the risk of harm from alighting from the aircraft by stepping down some 80cm or so from the top surface of the wing onto the tarmac without the aid of steps, was not an insignificant one in the circumstances. The harm under consideration is that of sustaining injury from a fall occasioned in the course of disembarking.
140In this regard, I consider that the risk of harm associated with that activity was not insignificant.
141First, it is a given, based on a commonsense analysis, that any descent from the wing by lowering a foot down over a distance, particularly a distance of 80cm, which is not a normally encountered stepping height, carried with it a risk of falling. In this instance, the distance over which alighting passengers had to step down in order to reach the ground was far greater than the standard length of the rise of any normally encountered stair or step. In those circumstances, the risk of missing one's step or footing must be seen as being significant, not far fetched or fanciful, and therefore not insignificant.
142Secondly, I consider that the risk of an injury from a fall in the circumstances outlined above was greatly increased if the passenger, in this case the plaintiff, was required to alight by stepping backwards and down onto the ground from a wing height of 80cm. This is because he may not have been able to at the same time see where he was placing his foot, and he would have been required to guess or approximate where he was placing his leading or descending foot in relation to the ground in circumstances where any handhold on the door frame was opportunistic, and where there was no dedicated handle or grip.
143Thirdly, the risk of a fall whilst descending must be seen to be an increased one where the downward step was required to be taken over a longer distance rather than by shorter steps as would have been the case whilst descending the steps of a short ladder that may have been placed near the wing to facilitate the safe disembarkation of passengers.
144In those circumstances, I conclude that when the plaintiff was alighting from the aircraft wing by stepping backwards, and without being provided with a ladder or steps, or assistance or guidance in that procedure, the risk of resultant injury from a fall was most definitely not an insignificant one: s 5B(1)(b) of the CL Act .
145Furthermore, I consider that in the circumstances, where the risk of injury was foreseeable, and was not insignificant, a reasonable person would have ordinarily taken precautions against the occurrence of such forms of foreseeable harm: s 5B(1)(c) of the CL Act .
146I consider that conclusion to be a compelling one in the circumstances of this case because on at least one previous occasion, to the knowledge of the plaintiff, in similar circumstances, the defendant took one of the very precautions the plaintiff now complains of as being absent on the day he was injured. That precaution was the provision of steps having been made available to the plaintiff and to the other passengers for aircraft access and egress in connection with the flight from Bankstown to Albion Park in 2008.
147I also infer from the terms and content of the conversation between the plaintiff and Dr Fox as to the absence of the steps on the day of the accident, that Dr Fox had in fact contemplated continuing to take the precaution of providing steps, but had decided against such a course, for the reasons that he gave.
148Given that Dr Fox considered the previous step ladder that he had removed as being inappropriate or unsuitable, if he was to carry passengers on that aircraft, the practical options open as alternatives to Dr Fox were to provide a different and more suitable ladder of sufficient height, stability and construction, or to arrange for either himself or a crew member such as Mr Warren to assist and guide disembarking passengers to alight onto the tarmac.
149Instead, Dr Fox had adopted what I consider to have been an inadequate and unreasonable course of not doing either of those things. He did so because he had assumed that no such assistance was required because he understood all of the passengers in question had aeronautical experience. As earlier explained, I consider that position to have been based on unsound reasons that paid insufficient regard to need to discharge the duty of care that was owed in the circumstances. In that regard, there was no evidence as to what action or inquiry, if any, was taken by Dr Fox that led him to the view that his passengers had relevant and sufficient aeronautical or other experience to justify him dispensing with a warning or briefing.
150Such an assumption may have been appropriate for example in the case of an aircraft crew member who, to the knowledge of Dr Fox, had been formally briefed on the safe method of alighting from the aircraft, but that was not the case here, especially where before the flight, the plaintiff had specifically asked Dr Fox of the whereabouts of the previously supplied ladder. In my view, that enquiry from the plaintiff ought to have brought home to Dr Fox an understanding of the need to at least consider ensuring that the plaintiff was either provided with a safe means of aircraft access and egress, or that the plaintiff be supervised and assisted to ensure that he accessed and egressed the aircraft safely. Instead, as explained above, Dr Fox responded inadequately to the risk by making an unwarranted assumption that the plaintiff did not need any of these things.
151Where the questions of foreseeability of the risk of harm and the risk of harm have been assessed as being significant, and therefore requiring precautions, as I have found to be the case here, there are nevertheless some further factors that also need to be considered before a finding of negligence can be made: s 5B(2) of the CL Act .
152The first such factor involves an assessment of probability that harm might occur: s 5B(2)(a) of the CL Act .
153In this regard, I consider that it was plainly apparent that if the plaintiff, as an alighting passenger were to lose or misplace his foothold and fall whilst stepping backwards from the wing and onto the ground, it is very probable that a fall onto the tarmac from a foot height of 80cm from the wing surface would be associated with some form of injury. It would appear obvious that if the fall were to occur from the upright or near upright position, the risk of a person's head or torso falling a greater distance than say the feet is likely, and this would appear to raise the possibility of an even more serious injury. Either way, I consider that in the present case, the risk of a fall from the aircraft wing obviously carried with it a very high probability of resultant injury: s 5B(2)(a) of the CL Act .
154The second such factor involves a consideration of the likely seriousness of the contemplated harm in the event that such a fall was foreseeable: s 5B(2)(b) of the CL Act .
155In the present case, the risk of a fall onto a hard concrete surface must be seen as carrying with it a likely risk of serious harm. Whilst it is not possible to precisely predict the extent to which injury may occur as a result of a fall, however, it seems obvious that if there was to be a fall from the height of the aircraft wing onto a hard tarmac surface over a vertical distance of 80cm, it would be very likely, and not just a remote possibility, that serious injury, including possible fractures, could result from such a fall: s 5B(2)(b) of the CL Act .
156Once the foregoing considerations having been satisfied, as I have found to be the case here, the third factor to be considered is the nature of the burden of taking precautions to avoid the risk of harm: s 5B(2)(c) of the CL Act .
157In this regard, it is plain that on previous occasions, or at least on one such similar occasion that involved the parties in respect of the Albion Park flight in 2008, a step ladder or steps that were already available and stowed on board the aircraft had been made available for the plaintiff to disembark the aircraft. On the evidence adduced, especially the evidence of Dr Fox, it does not appear that the provision of those steps or stairs was in any way significantly costly or burdensome. This is especially so in the context of Dr Fox owning an aircraft valued at approximately $150,000, as well as 5 or 6 other vintage aircraft.
158Furthermore, it does not seem to me to be unduly burdensome in either time, effort or cost, for Dr Fox or his delegated crew member to require that all of the passengers be required to remain seated on the aircraft until either he, or another responsible person, was able to be positioned at the disembarkation point in order to guide, direct or assist alighting passengers as they stepped backwards off the wing and onto the tarmac in the course of making their exit from the aircraft.
159Accordingly, I consider that the requirements of s 5B(2)(c) of the CL Act have in this case been satisfied.
160The fourth such factor to be considered in this part of the analysis is that of the social utility of the activity that created the risk of harm: s 5B(2)(d) of the CL Act .
161I conclude that whilst it is true that the defendant provided the plaintiff with a free return flight to an air show in which they had a common social interest, and this involved a degree of social utility in the pursuit of their common interest in maintaining vintage aircraft, this circumstance did not derogate from the need for Dr Fox to observe and discharge the duty of care that he owed to the plaintiff as a disembarking passenger.
162In my view, there is nothing in the circumstances surrounding that free flight which should serve to reduce the defendant's responsibility to ensure that reasonable care was exercised for the safety of the plaintiff whilst disembarking from the aircraft at the conclusion of the flight. Although the flight in question was in the form of a return favour to the plaintiff for freely providing his labour to assist in the maintenance of the defendant's aircraft, I consider it would be unreasonable to regard that fact as a disentitling factor that negatively impacted upon or affected the applicable duty of care that was owed in the circumstances: s 5B(2)(d) of the CL Act .
163Accordingly, for the reasons I have stated, I conclude that all of the requirements of s 5B of the CL Act have been satisfied to justify a finding that the defendant was in breach of the duty of care that he owed to the plaintiff, and that he was negligent in the circumstances of this case.
164In order for the plaintiff's claim to succeed it is also necessary for the plaintiff to prove that the defendant's negligence was the cause of his injuries in this case: s 5D and s 5E of the CL Act .
165In some cases, the analysis of the questions of factual and legal causation can be quite complex. In my view, this case does not involve such complexity. I am satisfied that were it not for the defendant's negligence, it would have been unlikely that the plaintiff would have fallen and sustained injury. I consider that it is highly probable that the availability of steps or appropriate guidance and assistance from a crew member, during disembarkation, would have avoided the plaintiff's injury as it is unlikely he would have fallen in those circumstances. I am therefore satisfied that but for the negligence of the defendant, the plaintiff would not have sustained the injuries which are the subject of these proceedings.
166In reaching that conclusion I have not overlooked the arguments of the defendant to the effect that I should find that the plaintiff had jumped off the aircraft, arguably evidenced by the position in which he was observed to be in after the fall in juxtaposition to the body of the aircraft, and further, the allegation that the plaintiff's fall was due to the fact that he had lost his handgrip on the door frame during his descent from the wing towards the ground.
167As to the latter point, for the reasons I have stated at paragraphs [65] - [67] of these reasons, I regard the plaintiff's loss of his handhold as a function of his descent, and not as a cause of his fall. This is because the handhold was to steady the plaintiff during his descent, and was not intended to either carry or support his weight.
168As to the former point, given that the plaintiff landed on the tarmac in pain and there were no initial witnesses to his movements, including any witnesses to any attempts on his part to get up, I do not regard it as fruitful or appropriate to attempt to infer from the relative distances between portions of the plaintiff's body and various parts of the aircraft, that he had in fact jumped from the wing. The defendant's submission to that effect that the plaintiff had jumped was based upon speculation, and I do not see any proper basis from within the evidence for an acceptance of that submission.
169As I have found that the requirements of s 5B, s 5D and s 5 E of the CL Act are satisfied, I find as a consequence, that the defendant was in this instance negligent, and that such negligence was the relevant cause of the injuries sustained by the plaintiff.
170I now turn to a consideration of the defences raised by the defendant.