Noel CAMPBELL v Rodney Victor HAY

The Evidence of the Plaintiff 4In his evidence the plaintiff said he worked for many years as a fitter and machinist and subsequently as a driver educator. He was born on 22 December 1959. 5He had always been interested in learning to fly. He lived in Kurrajong Heights and approached the Hoxton Park Aero centre at Katoomba where he met with Mr Hay, the defendant. On 2 April 2007 he was taken on an introductory flight by Mr Hay in which he was flown over the Blue Mountains and across to Hartley and back. He did not sign any documentation on that occasion, and paid $50 at the end of the flight. He was given a tax invoice which he accepted without reading it, and in particular without reading any material on the reverse side. He was not told by the defendant about any contractual waiver. The plaintiff then decided to pursue some lessons. He had his first lesson on 29 April 2007. At the beginning of this lesson and before flying the aircraft, the defendant conducted a briefing with the plaintiff. The plaintiff can no longer remember the substance of that briefing. The plaintiff had some recollection of the flight that day which was uneventful. The plaintiff remembered being shown how to use the throttle and the flaps. He denied any recollection about a number of other matters. 6The plaintiff was adamant that there was no conversation with the defendant about any contractual waiver applying to any risks. He said that the defendant told him that flying was safe and that the plane was well maintained. 7The next lesson was 15 May 2007, the day of the incident which gave rise to these proceedings. The plaintiff recalled a pre-flight briefing and inspecting the aircraft with the defendant prior to taking off on the lesson. The plaintiff said that he had very little, if any, recollection of what was covered in the pre-flight briefing, and that he had tried to put his recollections of the flying lessons out of his mind over the 5 years which have elapsed since the incident. He was adamant, however, that he did remember the incident itself that day. 8The plaintiff did recall that there was positioned in the aircraft a laminated piece of cardboard which contains a checklist. The plaintiff did remember that during the course of the flight he had taken control of the aircraft and that the defendant had instructed him in changing the engine revolutions at different altitudes. 9The plaintiff said that after the aircraft took off it headed west over the Blue Mountains towards Hartley. He was in control of the aircraft for most of the time after it had taken off. The plaintiff said that about three quarters of an hour into the flight he encountered difficulty with the engine. The motor started running quite roughly for a little time and then it stopped. As soon as it started to run roughly the defendant took control of the plane. The engine then stopped. At that stage the propeller ceased to turn. It was in a horizontal position. The plaintiff heard the defendant put out a Mayday call but had very little recall of any other details of what the defendant did. But the plaintiff was adamant, however, that at no stage did the defendant attempt to restart the engine. He said that if the defendant had tried to do so, he would have heard the noise coming from the starter motor. 10The plaintiff gave evidence about the way in which the defendant conducted the forced landing. Nothing adverse to the competency of the defendant in carrying out the forced landing itself is said by the plaintiff.

The Evidence of the Defendant. 11The defendant gave evidence. He had prepared a statement for the purpose of the hearing which was admitted into evidence. The defendant has been a flying instructor at Katoomba airfield since December 2002. He has qualifications as a toolmaker, production engineer and a senior commercial pilot. He has had over 8000 flying hours on single and multiengine aircraft with 1500 hours on the Jabiru. Between 1992 and 2002 he was chief flying instructor appointed by CASA and an examiner of airmen. Since 2003 he has been a chief flying instructor appointed by Recreational Aviation Australia (RAA). During the 56 years over which the defendant has been flying light aircraft he has been involved in approximately 9 forced or emergency landings as pilot in command. The only incident where a passenger has suffered an injury was that involving the plaintiff. 12At the time of the incident the defendant was demonstrating to the plaintiff how to change engine speed. It was the defendant's impression that the plaintiff had responded appropriately on the two prior occasions on which he had flown with him. 13On the day of the incident the defendant had conducted a briefing with the plaintiff and they walked around the aircraft. He then took off and gave the controls to the plaintiff. At about 45 minutes into the flight and whilst in slow cruise travelling at about 70 knots, the defendant said he felt faint engine vibrations. The plaintiff in his evidence denied that this occurred. The defendant said that a faint vibration is not uncommon and he was not concerned about it. He then told the plaintiff to increase the aircraft revolutions, which he did and the vibrations disappeared and the engine ran normally. At this time the aircraft was located somewhere between Hampden and Mount Victoria about 10 nautical miles from the Katoomba airport. 14A short time after that, when the aircraft revolutions had been changed, the defendant told the plaintiff to fly at 70 knots. As the plaintiff did so the defendant almost immediately observed that the vibrations returned and the engine started to run rough for about a minute. The defendant said that he immediately took control, applied full power, carburettor heat and switched the fuel pump on. The engine revolutions then increased for a short period, the engine shuddered quite violently and then stopped dead. The defendant then navigated the aircraft in gliding mode, put in a Mayday call and then said he "attempted an engine start but the propeller barely moved." At this stage the defendant said that the aircraft was close to the ground so he manoeuvred it around a tree, into a gully and pitched the aircraft sharply up a slope. It struck the ground "fairly heavily and noisily." 15After the incident the defendant completed an incident and accident report which is required by RAA and CASA. He said that he did not consider it necessary to supply every detail in that report and he believed that only a short relevant summary was required. 16In cross-examination the defendant was asked whether the initial period of engine vibration may have been indicative of carburettor icing. He thought that that was possible, but unlikely because when he increased the revolutions the vibrations went away. If carburettor icing had been present, he thought that there would be difficulty in increasing the engine revolutions. 17In his evidence the defendant said that immediately the second set of vibrations appeared and the engine began to run rough he took control, applied full power, carburettor heat and switched the fuel pump on. These were all procedures which would be taken in the event of carburettor icing. It was put to the defendant that he must have thought that carburettor icing was a problem at that stage otherwise he would not have taken these procedures. He responded that he did this as second nature, as "an instant action." 18The defendant was cross-examined extensively on why the accident and incident form did not include a lot of detail that was given by him in his statement and in his evidence. 19In describing the second set of vibrations in cross-examination the defendant said that the vibrations returned imperceptibly at first, and at a stage where the plaintiff had the controls of the aircraft. The vibrations then got progressively worse and then started to increase fairly rapidly. It was at that stage that the defendant took control and he applied full power, carburettor heat and put the fuel pump on. This is what he was doing when the engine started to shudder and then stopped. It was put to him that the first set of vibrations could have been consistent with carburettor icing and the defendant agreed. It was then put to him that the second set of vibrations could also have been consistent with carburettor icing. The defendant conceded that they could have, but said that there might be other causes. 20It was also put to the defendant that the only evidence he had given about a gradual deterioration in the state of the engine during the second episode was during the course of his evidence in court. He did not refer to any gradual deterioration either in the incident report or in his written statement which was tendered into evidence. The defendant conceded that he had omitted certain material from his prepared statement and also from the incident report. 21The defendant said that he was present after the incident when a Mr Garvin dismantled the engine and it was discovered that there was a crack in cylinder number three. The defendant agreed that there was no indication that the piston in number three cylinder was seized. 22The defendant was then asked about the area over which the aircraft was flying at the time that the initial vibrations occurred. There were about 6 private airstrips in the area the closest of which would have been about 3 miles. The defendant agreed that a prudent pilot upon feeling the initial vibration would have headed for an area where he could land if the vibration worsened. He agreed that he did not do so. The defendant also agreed that when the vibrations returned on the second occasion and were worsening that this would be even more reason for a prudent pilot to head for the nearest safe landing spot, but said that that was what he was doing. He said he was actually heading towards the closest strip which was owned by Mr Dalgleish. He said this despite the fact that there was no mention of this in either his written statement or in the incident report. On further questioning the defendant then said that he was heading in the direction of the Dalgleish strip. The defendant then qualified this further by saying that he was not heading exactly in that direction but in the "general direct direction." He later said that he really did not intentionally head in the direction of the Dalgleish strip. 23It was then put to the defendant that had the engine gradually worsened he would have made up his mind that he should get to the Dalgleish strip as quickly as possible. He said he was not doing so. He was then asked whether a prudent pilot would have done that and he replied in the affirmative. After more questioning during which I conclude that the defendant's evidence was evasive, he conceded that whilst the problem was worsening he had not determined to do anything because he was still expecting to be able to get back to Katoomba. This was notwithstanding his evidence about what a prudent pilot should have done in the circumstances. Katoomba was about 10 to 15 miles away and it would be necessary to fly over "some extremely mountainous country" with a suspect engine. The defendant agreed that these were not the actions of a prudent pilot. The defendant then conceded that he did not at any stage turn the aircraft towards the Dalgleish strip. It was then put to him that this evidence was inconsistent with prior evidence which he had given about turning the aircraft towards the Dalgleish strip. The defendant responded; "well, I, when the engine stopped I turned in that direction. I went into a gentle - that's what I think I said there I went into a gentle - when the engine stopped I went into a gentle turn. I set trimmed the aircraft for 70 knots and I went into a gentle turn. That was towards Dalgleish's and, and along the Cox's River Road." 24The defendant was asked about the circumstances in which he took control of the aircraft from the plaintiff. He said that he was going to remove control when the problems became "really severe." 25The defendant conceded that over the years he had built up a feeling within himself that he was a very lucky person and that nothing bad was going to happen to him and that fate would look after him. 26In cross-examination the defendant elaborated on the time period between the first vibrations and the start of the second period of vibrations. He thought that that was about 5 minutes. He said that if he had headed towards the nearest strip, being the Dalgleish strip at the time of the first vibrations, instead of continuing the lesson, he would "maybe" have reached that strip. He then said that when the first vibrations occurred, rather than continue the lesson, he could have gone to the nearest safe spot to land which would have been on one of the privately owned strips. He agreed that he would have made it to one of those strips and if he could do so before the engine failed he would undoubtedly have been able to land the aircraft. If he had done the same thing when the vibrations returned on the second occasion he said that he would have had less chance of making it to an airstrip because the engine was about to totally fail. However he decided to continue the lesson because he did not want to alarm the student and did not look for an alternative strip at that stage. He said that if the engine had been running he could have landed the aircraft on one of the private strips. 27Significantly, in evidence, the defendant said that that it was much safer to land an aircraft with an engine running because there were a lot more options and there was a lot more control than if the engine was not functioning. 28The defendant was recalled for further cross-examination about some of his evidence. He said that when the engine stopped he was lower than 5000 feet and would have lost a few hundred feet more. He was doing a speed of 70 knots. At that stage he was heading in an easterly direction. The Dalgleish strip was to his left, in a northerly direction. 29At the time of the first vibrations the nearest landing strip was the one beside the forest near Hampton. That was a few miles away. At that stage the aircraft was heading towards Oberon where it turned around and they were coming back to Katoomba. 30After the initial period of vibrations the aircraft speed was increased to about 90 knots and then to 100 knots and it took about 5 minutes to go through the various speeds and altitudes. After the 5-minute interval the defendant said that the faint vibrations lasted about 30 seconds before they worsened and they worsened in total over a period of about 1 minute. 31I should mention for completeness that the reference to miles contained within the defendant's evidence is to nautical miles.

The Expert Evidence 32Four expert witnesses were called in the proceedings. Two had been retained on behalf of the plaintiff and two on behalf of the defendant. The experts were given access to each other's reports and they met on several occasions during the course of the proceedings. They were sworn together and gave their evidence concurrently. The experts retained by the plaintiff were Keith Rule and Colin Evans. The defendant retained Kenneth James Pidcock and David Michael Dent. 33Having regard to their qualifications and experience, I am satisfied that each of these persons has relevant expertise in the areas in which they gave expert evidence. 34Much of the evidence of the experts was directed to what caused the engine to malfunction. The two possible causes were the failure of the no 3 piston and carburettor icing. Because of the basis upon which I have decided to determine these proceedings, it is not necessary to make findings about the precise cause of the engine failure. On the state of the evidence it was either carburettor icing or an engine "failure", probably associated with the number three piston. None of the experts postulated that a combination of these two causes may have been involved. On the evidence carburettor icing is not a rare phenomenon, and the aircraft was equipped with facilities to deal with this. On my understanding of the expert evidence piston failure is also not a rare occurrence. I do not need to deal with this part of their evidence further. 35The remainder of the expert evidence was directed to the defendant's conduct and whether it demonstrated a failure to take reasonable care for the safety of the plaintiff. 36There was general consensus that at the time that the initial vibrations were felt, the defendant did not need to alert the plaintiff that there was the possibility of a problem, but the defendant should have ensured that the aircraft remained in an area where a landing, whether forced or otherwise whether under power or otherwise could have been executed. It was not necessary that the aircraft be specifically diverted from a particular course, so long as he remained within reach of a suitable landing area. Furthermore, there was a general consensus that at that stage, namely when the initial vibrations were encountered the defendant should have had a heightened awareness that there may have been a problem with the engine. 37The expert witnesses were informed, and accepted, that the Hartley area was about 10 miles long by something of the order of 5 miles wide. They agreed that there were a number of suitable landing areas within the Hartley Valley. Assuming that the aircraft was travelling at 90 knots, it would cover 1½ nautical miles/minute, subject to wind conditions and the like. If the aircraft was approximately 5000 feet in elevation, and assuming that the Hartley Valley area had an elevation of between 2000 and 2400 feet, this would allow a distance of 2500 feet for descent. A descent rate with the engine stopped would be of the order of 700 ft/m. This would allow between 3 and 4 minutes on descent travelling at a speed of about 70 knots. 38It was the evidence of the expert witnesses that at the time that the second set of vibrations occurred, responsible conduct on the part of the defendant would have been to ensure that he kept within reach of a possible landing area. 39Witnesses Evans and Rule agreed that it was inappropriate for the defendant to continue to head towards Katoomba at that stage. Mr Pidcock said that the first priority was to maintain control of the aircraft and then to look for a suitable landing spot. However, it was put to him in cross-examination that the defendant did not commence to look for any suitable landing area until after the engine had stopped. Mr Pidcock said that on that basis, the defendant's conduct was unsatisfactory. Furthermore, Mr Pidcock agreed in cross-examination that the area in which the defendant landed the aircraft was unsatisfactory. This was because the surface was hidden by long grass and it was sloping. This was a less satisfactory landing area than landing on a private strip. 40All of the witnesses agreed that if the defendant had headed directly to the Dalgleish property at the time the second vibrations commenced, on the basis of the evidence in the proceedings he would have been able to reach that landing area. 41It was the general consensus of the expert witnesses that it was would be safer to land on an airstrip rather than in a paddock with long grass in the circumstances which confronted the defendant during the course of the flight 42All of the witnesses agreed that if something occurred in the course of the flight it would not constitute responsible conduct to "trust to luck or fate when aloft."

Findings on the negligence of the defendant 43Based upon the candid concessions of the defendant in his evidence, and upon the expert opinions which I have set out above I am satisfied that the defendant failed to exercise reasonable care for the safety of the plaintiff in; (a)not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started (b)continuing to fly towards Katoomba relying on some (misplaced) sense of innate luck. 44Ultimately, the plaintiff made no allegation that the defendant was negligent in the execution itself of the forced landing, nor could there have been, on the evidence. For completeness I note that there was no suggestion in the evidence that the defendant was aware or ought to have been aware of any problem with the aircraft engine.

Issues in the proceedings 45A number of issues arose during the course of the proceedings. These included: (1)On the last, that is the sixth day of the hearing, after the close of all of the evidence and immediately prior to the commencement of submissions the plaintiff formally sought to amend the third further amended statement of claim and produced for consideration by the court a fourth further amended statement of claim. The amendment was strenuously opposed by the defendant. There had been indications during the course of the proceedings that the plaintiff would seek to amend them, but the defendant's counsel complained that the amendments sought went beyond those which he had contemplated (I should not be taken to fully embrace this complaint). Furthermore, the defendant's counsel asserted (although the plaintiff's counsel denied) that the defendant had been seriously prejudiced by the amendments sought at this late stage in the proceedings. Included within the prejudice argument was a reference to an inability to deal effectively with a limitation argument. In any event, both parties contended that I should continue to hear submissions concerning the disposal of the substantive proceedings and deal with the application to amend in my reasons for judgment. The plaintiff's counsel undertook to furnish a succinct statement of the amended pleading, by 10am the next day, but as at 15 December 2012 had not done so. (2)The cause of the engine failure. The plaintiff asserted that it was carburettor icing to the exclusion of the alternative possible cause, namely the failure of an engine piston. This matter was the subject of extensive expert evidence. (3)Whether the defendant's conduct after becoming aware of problems with the aircraft engine on two occasions constituted a failure to take reasonable care for the safety of the plaintiff, and whether, in any event, such conduct was pleaded in the proceedings as currently constituted in the event that the amendment sought was not granted. (4)Whether the court could be satisfied that steps that the plaintiff said the defendant should have taken to have avoided or minimised the injuries which he sustained in the crash landing would, on the balance of probabilities, have averted the harm which he suffered having regard to the provisions of section 5D (1) of the Civil Liability Act 2002. (5)The assessment of damages generally. (6)The defences upon which the defendant relied on, in particular the defence under section 5L of the Civil Liability Act.

The Sec 5L defence 46Because I have concluded that the defendant cannot be held liable in negligence for the injury sustained by the plaintiff by reason of the provisions of section 5L, and that the plaintiff's claim must fail, it is appropriate that I deal from the outset with this defence. 47I set out relevant extracts from the Act: Division 4 Assumption of risk 5F Meaning of "obvious risk" (1)For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2)Obvious risks include risks that are patent or a matter of common knowledge. (3)A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4)A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable. 5G Injured persons presumed to be aware of obvious risks (1)In proceedings relating to liability for negligence, a person who suffers harm is presumed to have been aware of the risk of harm if it was an obvious risk, unless the person proves on the balance of probabilities that he or she was not aware of the risk. (2)For the purposes of this section, a person is aware of a risk if the person is aware of the type or kind of risk, even if the person is not aware of the precise nature, extent or manner of occurrence of the risk. Division 5 Recreational activities 5J Application of Division (1)This Division applies only in respect of liability in negligence for harm to a person (the plaintiff) resulting from a recreational activity engaged in by the plaintiff. (2)This Division does not limit the operation of Division 4 in respect of a recreational activity. 5K Definitions (1)In this Division: (2)dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. (3)obvious risk has the same meaning as it has in Division 4. (4)recreational activity includes: (a)any sport (whether or not the sport is an organised activity), and (b)any pursuit or activity engaged in for enjoyment, relaxation or leisure, and (c)any pursuit or activity engaged in at a place (such as a beach, park or other public open space) where people ordinarily engage in sport or in any pursuit or activity for enjoyment, relaxation or leisure. 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.

Some evidentiary material concerning a dangerous activity 48The defendant tendered some documentary evidence in support of the application of this defence. Firstly the defendant relied upon aviation occurrence statistics for the year 1999 to 2009 published by the Australian Transport Safety Bureau. Those statistics cover a wide variety of aviation activities including commercial air transport as well as general aviation. The bulk of the material therefore refers to regular public transport operations, whether in large or smaller aircraft, charter operations, aerial work including ambulance search and rescue flight control and the like, flying training, and private, business and sports aviation. This latter includes gliding, parachute operations and acrobatics. As I understand these statistics, they refer only to aircraft which are VHS registered and do not include aircraft, such as the aircraft involved in the incident in these proceedings, which are not registered. 49Likewise, the defendant sought to rely upon an article published in 2012 by a Mr John Brandon the author of a number of tutorials and guides published through Recreational Aviation Australia (RAA). This article sought to produce statistics concerning the number of sport and recreational aviation aircraft accidents during the period 1985 to 2011 which involved fatalities. However the aircraft may be limited to those which are owned by members of the RAA. In any event, the statistics include what are described as an "amateur-built (experimental) ultralight" aircraft which, it is said, "lead to an alarming increase in the number of fatal accidents during the period 2001 through 2006. Amateur built aircraft figured in 47% of fatal accidents, other home-builts in 10% and factory-builts in 43% ...." The aircraft involved in the incident the subject of these proceedings was factory-built. The graph of fatal accidents produced in this article shows that on a five-year running average there were 5.6 accidents in 2006 and 5.8 in 2007. However these accidents need to be discounted significantly because they include accidents with ultralights. On the other hand, the accidents recorded are limited to those where fatalities occurred and do not give any indication of accidents involving injuries, and those where no injuries were sustained. 50Finally, the defendant introduced into evidence the results of a search conducted by his solicitor on the Australian Safety Transport Bureau website for any accidents, presumably aircraft accidents, that occurred between 1 January 2006 and 31 December 2007. The solicitor then used the results from that search to search for information about each accident. There was attached to the solicitor's affidavit copies of media reports concerning each of these accidents. For example:

• On 5 April 2006 the pilot of a light plane was killed during a takeoff exercise in Sydney. The pilot was a licensed aircraft maintenance engineer and instructor pilot who was said to be very experienced. The cause seems to have been engine failure.
• On 9 August 2007 a light aircraft overshot the runway at Bankstown airport and lost a wing in a crash landing. No injuries were sustained. The incident was blamed on "undercarriage problems."
• On 5 October 2006 a 2-seater aerobatics plane crashed in remote country. The aircraft involved was a jet. The pilot and his passenger were both killed. The pilot was described as being very experienced.
• On 9 December 2006 the pilot of an ultralight plane was severely injured when it crashed on the New South Wales mid-north coast.
• On 10 December 2006 the pilot of a light aircraft was killed in western New South Wales when it crashed in bushland.
• On 4 February 2007 the pilot of a light plane died when it crashed near Kingscliffe. The aircraft had suffered engine failure.
• On 7 January 2007 two experienced pilots died when their ultralight plane crashed near Goulburn
• On 8 December 2007 an experienced crop dusting pilot was killed when his plane crashed in a lake.
• On 26th February 2008 two light aircraft collided in northern New South Wales. The pilot of one died and the other sustained serious injuries.
• On 26 September 2006 the pilot of a light aircraft died when the plane smashed into the side of the mountain on Flinders Island. There is a suggestion that this may have been a deliberate crash.
• On 23 February 2007 two persons died in a light plane crash near Cranbourne
• On 22 November 2006 the passenger of a light aircraft was injured during an emergency landing following problems with the landing gear. 51It was said by the defendant, relying upon these incidents that they were indicative of the plaintiff engaging in a dangerous recreational activity. 52On the other hand, the plaintiff asserts that the defendant told him that he was an experienced pilot, the aircraft was well maintained and that it was safe for the plaintiff to fly in it. In the same way, some of the expert witnesses thought that recreational flying, especially in a Jabiru aircraft was safe. Of course, many light aircraft are flown for recreational purposes every day, and I shall infer that the vast majority of the pilots feel that it is perfectly safe for them to do so. However, the determination of this matter involves the application of the relevant statutory provisions, and feelings of comfort or safety by participants in recreational activities are not necessarily of relevance.

Application of Sec 5L 53In applying the provisions of section 5L, it is necessary to consider the following matters: (1)Was the plaintiff engaged in a recreational activity? No issue arises about this matter. The plaintiff was clearly so engaged. (2)Was that recreational activity dangerous? That is, did it involve a significant risk of physical harm (section 5K)? This was a matter of controversy, and I shall deal with it shortly. (3)If so, was there an obvious risk of the dangerous recreational activity engaged in by the plaintiff as that term is defined in section 5F? This was also a matter of controversy. (4)Did the plaintiff suffer harm? This matter was not in controversy (5)Was that harm the result of the manifestation of the obvious risk? Again, no controversy arises, and a detailed consideration of this matter becomes unnecessary. 54Put simply, the question for determination is whether the plaintiff was injured as a result of the materialisation of an obvious risk of a dangerous recreational activity in which he was engaged at the time.

The relevant authorities 55The relevant authorities on what constitutes an obvious risk and what is a dangerous recreational activity are helpfully referred to and extracted in the judgment of Tobias JA in the NSW Court of Appeal in Jaber v Rockdale City Council [2008] NSWCA 98. (Campbell JA and Handley AJA agreeing). At [38] and following his Honour said: 38. The appellant accepted that he knew in a general sense that diving into shallow water or water of uncertain depth might result in injury and so was aware of what the primary judge referred to as "the potential for danger". It was that "potential for danger" that constituted the relevant risk. It was, on the appellant's own evidence, one that was apparent to him. If so, it was also readily apparent to a reasonable person in his position. It matters not that it had a low probability of occurring: s 5F(3). 39. The fact that the appellant believed that the water was deep enough, because he had purported to check its depth by treading water, does not militate against a finding on the objective facts that there was an "obvious risk" that would be readily apparent to a reasonable person in the appellant's position. A reasonable person in the position of the appellant, wishing to dive head first from the top of a bollard, two to three metres above the surface level of the water, would not regard that method, if it be such, as a reasonable substitute for testing the depth by the more reliable means of "duck diving" or by jumping feet first. 40. Accordingly, in my view the primary judge was correct to find that the relevant risk of harm to which the appellant was exposed was one which was an "obvious risk" within the meaning of s 5F(1) of the CL Act. By virtue of s 5H(1) it follows that the Council did not owe a duty of care to the appellant to warn him of that risk. For this reason alone the appeal must fail. 41. The appellant also challenged the primary judge's finding that the recreational activity undertaken by the appellant was a "dangerous recreational activity" within the meaning of s 5K of the CL Act, in that it involved a significant risk of physical harm. That it involved a risk of such harm is clear. As Hayne J observed in Vairy in a passage to which I have already referred, "because the water could be too shallow, there was a risk of injury". The question was whether that risk was significant. The primary judge held that it was and I agree with that conclusion. 42. The appellant nevertheless submitted that the risk of physical injury, although present, was not "significant" as the appellant dived only from a height of two to three metres into water which he believed, on the basis of observation and by treading water in the vicinity of the dive, to be of sufficient depth to safely accommodate his dive. The fact that he was wrong did not transform the risk into one which was "significant". Reliance was placed upon the following passage from the judgment of Mason P, with whom McColl JA and Hunt AJA agreed, in Lormine Pty Ltd v Xuereb [2006] NSWCA 200 at [31]: "The defendant bears the burden of establishing a defence under s 5L. The question is to be determined objectively and prospectively. The standard lies somewhere between a trivial risk and one that is likely to occur. Significance is to be informed by the elements of both risk and physical harm. The characterisation must take place in a particular context in which the plaintiff places himself or herself." 43. In Vairy, Gleeson CJ and Kirby J said at 426 [5]: "Swimming is a popular recreational activity along the Australian coast. It involves certain risks and sometimes results in injury, or even death. The level of risk varies according to the locality, the conditions at any given time, and the capabilities of the swimmers. Short of prohibiting swimming altogether, public authorities cannot eliminate risk. A general prohibition in a given locality may be a gross and inappropriate interference with the public's right to enjoy healthy recreation. Swimmers often enter the water by diving, or plunging head-first. This, also, is risky. Diving into water that is too shallow, or diving too deeply into water in which only a shallow dive is safe, can have catastrophic results." 44. At 428 [10] their Honours also observed: "In addressing the central question of fact in this particular case, we do not find it helpful to characterise the danger confronting the appellant at the level of diving into water of unknown depth. Such a practice, described in that general fashion, is always risky. There are, however, degrees of risk, and some risk of that kind exists every time a swimmer enters water headfirst without knowing exactly how deep it is. Even if the swimmer knows the depth of water exactly, there are few people who could calculate with any accuracy the risk involved in diving or plunging into it. Most people who plunge headfirst into the surf are taking some degree of risk and, if the risk materialises, the consequences may be devastating." 45. The foregoing passages contain observations made in the context of whether the Council in that case was in breach of its duty of care in failing to warn Mr Vairy of the risk of diving off the rocks. The question with which I am currently concerned in the present case is different. But the passages to which I have referred make clear that anyone who dives headfirst into waters of unknown depth is taking some degree of risk that they will sustain physical harm. Furthermore, the consequences of the risk materialising may be devastating. 46. Thus in Falvo v Australian Oztag Sports Association (2006) Aust Torts Reports 81-831; [2006] NSWCA 17 Ipp JA, with the agreement of Hunt AJA and Adams J, set out the principles as to how an activity is to be characterised to determine if it is a "dangerous recreational activity" in the following terms: "28. In my view, the definition of 'dangerous recreational activity' in s 5K has to be read as a whole. This requires due weight to be given to the word 'dangerous'. It also requires 'significant' to be construed as bearing not only on 'risk' but on the phrase 'physical harm' as well. The expression 'significant risk of physical harm' is coloured by the word 'dangerous' and the phrase 'significant risk' cannot properly be understood without regard being had to the nature and degree of harm that might be suffered, as well as to the likelihood of the risk materialising. 29. The view that a risk is 'significant' when it is dependant on the materiality of the consequences to the person harmed is consistent with the views expressed by the High Court in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 490. 30. Thus, in my opinion, the expression should not be construed, for example, as capable of applying to an activity involving a significant risk of sustaining insignificant physical harm (such as, say, a sprained ankle or a minor scratch to the leg). It is difficult to see how a recreational activity could fairly be regarded as dangerous where there is no more than a significant risk of an insignificant injury. 31. In substance, it seems to me, that the expression constitutes one concept with the risk and the harm mutually informing each other. On this basis the 'risk of physical harm' may be 'significant' if the risk is low but the potential harm is catastrophic. The 'risk of physical harm' may also be 'significant' if the likelihood of both the occurrence and the harm is more than trivial. On the other hand, the 'risk of physical harm' may not be 'significant' if, despite the potentially catastrophic nature of the harm the risk is very slight. It will be a matter of judgment in each individual case whether a particular recreational activity is 'dangerous'." 47. In Fallas Ipp JA, with my concurrence, in a judgment delivered two weeks after his judgment in Falvo, further explained the concept of a "significant risk of physical harm" as follows (at 422): "13. I agree with Basten JA that an objective test is required in determining whether in terms of s 5K a recreational activity is 'dangerous'. 14. But what does 'significant' mean in s 5K? I think it is plain that it means more than trivial and does not import an 'undemanding' test of foreseeability as laid down in Wyong Shire Council v Shirt [1980] HCA 12; (1980) 146 CLR 40. 15. The epithet 'real' was suggested during the course of argument. But 'real' can mean a risk that is not far-fetched or fanciful (Wyong Shire Council v Shirt at (48)) and 'significant' means more than that. 16. On the other hand, it seems to me, a 'significant risk' does not mean a risk that is likely to occur; that would assign to it too high a degree of probability. Had it been the legislature's intention to lay down an element for the application of s 5L involving the probability of harm occurring, different words would have been used. 17. In the present context, the word 'significant' - coloured or informed as it is by the elements of both risk (which it expressly qualifies) and physical harm (which is indivisibly part of the expression under consideration) - is not susceptible to more precise definition. 18. Thus, I do not think it practicable or desirable to attempt to impose further definition on 'significant', other than saying that the term lays down a standard lying somewhere between a trivial risk and a risk likely to materialise. Where the particular standard lies between these two extremes cannot be prescribed by any rule of thumb. Each individual case will have to depend on its particular circumstances and by having regard to the ordinary meaning of the term." 48. His Honour further emphasised (at 426 [113]) that in order to avoid potential situations of unfairness and injustice, it was appropriate, for the purpose of s 5K, to determine the scope of the recreational activity: "... by reference to the particular activities actually engaged in by the plaintiff at the relevant time. This would enable a decision to be made by reference to the actual circumstances giving rise to the harm, and not to a notional and artificial construct that bears little relationship to the reality of the case and to what actually occurred." 49. In Fallas Basten JA observed (at 443 [144]) that there were three ways of considering whether the risk of harm was significant of which the first and third are presently relevant. The first was to assume that any risk would be significant because the results of it eventuating were likely to be catastrophic. The third was to look at the particular circumstances of the case. His Honour rejected the first approach (at 443 [145]) as it could result in the phrase "significant risk of physical harm" not being satisfied where the risk was miniscule albeit the harm very serious. 50. Like Ipp and Basten JJA, I also preferred the third approach. I said (at 432): "90. ... If, as I believe to be the case, the word "significant" in the context of the subject definition means a risk which is not merely trivial but, generally speaking, one which has a real chance of materialising, then the subject activity was clearly capable of involving a significant risk of physical harm. This is consistent with the third approach referred to by Basten JA in [144] of his judgment and which I would respectfully adopt as the correct approach to a case of the present kind. ... 91. I am conscious of the observations of Ipp JA in [18] of his judgment that 'significant' means a standard somewhere between a trivial risk and a risk likely to materialise. A real chance of the risk materialising lies somewhere between these two standards although probably closer to the second than the first. I accept that there is merit in not seeking to define the term with precision, as its application requires a normative judgment in light of the particular facts and circumstances of each case. However, I see no danger in adopting as no more than a general guide that the risk should have a real chance of materialising for it to qualify as significant. But I emphasise that such a standard, which as I have said lies between the extremes articulated by Ipp JA, is to be regarded as what it is - no more than a general guide. 92. It will thus be appreciated that I prefer the approach of Ipp JA that, for the purposes of the definition of "dangerous recreational activity" in s5K, the scope of the relevant activity must be determined by reference to the particular activities engaged in by the respondent at the relevant time being the period immediately prior to the respondent suffering the relevant harm as a consequence of the appellant's negligence. In other words, as his Honour notes at [43], [46] and [47] of his judgment, in determining whether the relevant recreational activity involves a significant risk of physical harm, one must identify that activity at a relatively detailed level of abstraction by including not only the particular conduct actually engaged in by the respondent but also the circumstances which provide the context in which that conduct occurs." 51. The statement of Mason P in Lormine referred to in [42] above is derived from the foregoing paragraphs from the judgments of Ipp JA in Falvo and Fallas. 52. The relevant standard lies somewhere between a trivial risk and one that is likely to occur. Importantly, 'significance' is to be informed by the elements of both risk and physical harm. The context in which the appellant found himself was that he was diving into water from the top of a bollard that was two to three metres above the surface of the water. True it is that he had observed other persons diving from the wharf but there was no evidence that he had observed them diving from the particular bollard from which he himself dived or in the direction that he dived. 53. In the present case, it could not be said that the risk of physical harm was in the circumstances trivial; nor was it one which would inevitably eventuate although in my view there was a real chance of the risk materialising if, as was the case, the appellant was to misjudge the depth of the water. Furthermore, the nature of the physical harm that could be sustained if the risk materialised was acknowledged by the appellant to be extremely serious: in fact, catastrophic. 54. The factors to which I have referred in [28] above and relied upon by the appellant do not lead to any different conclusion, leaving aside those factors which are, by their nature subjective, all of them point to the risk of the appellant sustaining physical harm by diving from an enhanced height into water of unknown depth as being significant. The chance of the risk of physical harm materialising was real. 56Informed by these reasons for judgment of Tobias JA in Jaber, and by reference to other authorities to which I shall refer, I now deal with each of the discrete issues which I have identified.

Was the recreational activity dangerous? That is, did it involve a significant risk of physical harm (section 5K)? 57I commence by observing that the burden of proof lies on the defendant. 58The activity in which the plaintiff was engaged needs to be considered at such a level of abstraction that takes into account "the circumstances which provide the context" in which the plaintiff engaged in the particular activity. There is a general and helpful discussion about the appropriate levels of generality and abstraction which apply to the determination of whether a recreational activity is dangerous in the judgement of Ipp JA in Fallas commencing at [30]. The factual circumstances that applied in those proceedings were significantly different from those that apply in these proceedings, and it is not necessary that I discuss this aspect of his Honour's judgement in detail. I proceed on the basis that in determining this particular matter I must take into account all of the relevant circumstances that bear on the activity in which the plaintiff was engaged at the time that he suffered his injuries. 59As is obvious, he was flying with an experienced pilot in a single engine light aircraft. The aircraft was flying above ground and needed to be landed safely in a particular fashion to avoid any risk of harm. 60Prima facie there is a risk of something going wrong in the operation of any aircraft caused by a number of reasons. These conceivably include pilot incapacity, pilot error, engine failure, other mechanical problems (eg wing flap mechanism, undercarriage), electrical faults, hydraulic faults, fuel leak, impact with other objects such as aircraft or bird strikes, and weather conditions (eg lightning strikes, low clouds, torrential rain). There may be more which I have not listed. All of these matters impact not only on the operation of the aircraft per se, but also on the ability to land it safely without causing harm to the occupants. 61I should readily state that these were not matters of any specific evidence in the proceedings. This raises the question of the basis upon which I may proceed to deal with this aspect of the proceedings. In Fallas Ipp JA said; 19. What evidence is relevant to prove the existence of a significant risk of physical harm? 20. The degree of likelihood of a risk occurring may be established in many ways. In Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Spigelman CJ (at 278) referred to epidemiological evidence that suggested "some increase in risk". The Chief Justice said that evidence was relevant to causation. He observed: "... courts must determine the existence of a causal relationship on the balance of probabilities. However, as is the case with all circumstantial evidence, an inference as to the probabilities may be drawn from a number of pieces of particular evidence, each piece of which does not itself rise above the level of possibility. Epidemiological studies and expert opinions based on such studies are able to form `strands in a cable' of a circumstantial case." 21. The Chief Justice was considering whether evidence of increased risk might be taken into account "for the purpose of drawing the inference that the particular exposure caused or materially contributed to the injury in the specific case". Nevertheless, his remarks indicate that epidemiological evidence may be relevant to establish the degree of risk involved in a given activity. 22. Expert opinion may be relevant to the degree or incidence of a risk, as might the application of logic, common sense or experience to the particular circumstances of the case. 23. But in the end, whatever the likely incidence of the risk, what has to be determined is more than that. The composite question is whether there is a significant risk of physical harm and that requires a value judgment dependant on the circumstances of each individual case. 62In the course of discussion his Honour observed that "Professional cricket at first-class level is arguably a dangerous recreational activity as it involves several different significant risks of physical harm. One such risk is the risk of a batsman being struck by a bumper from a fast bowler ... ." (At [26]). His Honour also said; "boxing is arguably a dangerous recreational activity on the ground of a boxer may be struck by a series of heavy blows to the head and body." (At [27]). I apprehend that these observations, which were clearly made in the course of discussing whether a risk was significant and obvious, were based on his Honour's general understanding concerning these activities. 63In Vremen and Morris v Albury City Council (2011) NSW SC 39 Harrison J in the Supreme Court of New South Wales considered circumstances where two persons were injured whilst riding BMX bikes in a skate park. His Honour had observed, as part of the evidence in the proceedings, other persons carrying out similar manoeuvres to those of the plaintiff when he was injured. He characterised the activities as "objectively and prospectively a dangerous activity." In doing so his Honour considered not only the riding of these bikes per se in the skate park but the circumstances in which and the manner in which the various manoeuvres were undertaken. His Honour rejected the relevance of statistics that purported to show that over a three-year period only a few cases of BMX bike accidents had occurred requiring admission to hospital. His Honour accepted the defendant's argument that activities might be statistically "safe" but fundamentally dangerous. His Honour observed that recreational parachute jumping "which is not notoriously associated with unduly high rates of injury or death .... could in my view only be described as a dangerous activity. Motor car and motorbike racing would seem to fall into a similar category." 64Again, I apprehend that his Honour's comments and observations were based upon obvious matters of common sense, and respectfully apply the same approach. 65A similar approach was used in Falvo, where the New South Wales Court of Appeal concluded that Oztag, a game similar to touch football was not a dangerous recreational activity. The court refused to characterise "an activity involving everyday risks attendant on games such as Oztag which involve a degree of athleticism with no tackling and no risk of being struck by a hardball" as constituting a dangerous recreational activity. At [33]. 66Accordingly, I proceed on the basis that the observations which I have made above concerning the risks of "something going wrong" in the operation of an aircraft are appropriate to be made as matters of logic, common sense and a general understanding about these matters likely to be shared generally in the public domain. 67In determining this matter, I also have regard to the purpose of s5L which is to deny an injured person the right to claim compensation for the materialisation of an obvious risk of a dangerous recreational activity. Such an activity must be considered in the context of the Act as a whole, having regard to its provisions, and informed by the approach to construction considered in the authorities to which I have referred. 68Having 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. 69As 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. 70As 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.

Was there an obvious risk of the dangerous recreational activity engaged in by the plaintiff as that term is defined in section 5F? 71It will be remembered that an obvious risk is defined in section 5F. There is a discussion of the provisions of this section in the judgement of Ipp JA in Fallas. As his Honour points out; "a significant risk that converts a recreational activity into a dangerous recreational activity may be an entirely different risk from the risk (which may be obvious or not) that materialises." (at [25]). His Honour gives as one example a reference to professional cricket at first-class level and, "a careless fielder" throwing a ball and seriously injuring a batsman who was not looking at it, because the ball was "dead." In the context of boxing, his Honour gives as an example a punch thrown after the bell had rung for the end of a round. In both these cases, his Honour thought that it was arguable that the risk of such an event occurring was "obvious" for the purpose of section 5F. Presumably this is because it was thought that the risk of such an event occurring was patent or a matter of common knowledge even though there was a low probability of it occurring. 72It 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.

Conclusion 73For completeness, I find that the harm suffered by the plaintiff which is the subject of these proceedings resulted from the materialisation of an obvious risk of the dangerous recreational activity in which he was engaged. It follows that the plaintiff's claim must fail. Costs would normally follow the event, but as the parties may wish to make specific submissions about the incidence or level of costs I shall reserve costs.

ORDERS (1)The plaintiff's claim is dismissed. (2)Costs are reserved with liberty to apply in the event that the parties are unable to reach agreement concerning costs. The liberty to apply should be exercised within 21 days of this date.

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: 19 February 2013