Campbell v Hay [2014] NSWCA 129

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116 Consideration was given to the meaning of “significant risk of physical harm” in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 and Fallas, from which a number of propositions can be drawn. The definition of “dangerous recreational activity” must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31]). “Significant risk” has been said to mean more than trivial and does not import an “undemanding” test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is “not merely trivial, but generally speaking, one which has a real chance of materialising” (Tobias JA at [90]-[91], this being the test his Honour applied later in Jaber v Rockdale City Council[2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136]).

117 In Fallas, Basten JA (at [131]), read the word “significant” as not requiring a particular level of physical harm but as requiring an assessment of the “risk of physical harm”, which would import a consideration of the seriousness of the harm that might occur. His Honour considered that if the harm is potentially catastrophic, then a very low level of risk may be regarded as significant, whereas if the potential harm is not serious at all, then the risk may not be considered significant until it reaches a much higher level (see, similarly, the observation of Ipp JA at [30] in Falvo to the effect that 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).

118 Relevantly, in the context of the statistical evidence relied upon in the present case, Basten JA in Fallas (at [134]-[136]) sounded the need for caution in adopting the approach in Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 at 489. His Honour recognised that, while it would be tempting to say that even a very low chance of potentially devastating harm could be significant, when considering the defence under s 5L of the Civil Liability Act, the relevance of the existence of a significant risk is that such a finding could deprive an injured party of a right of action. His Honour noted that, unlike as was the case in Rogers, the test of significant risk was not dependent upon the expectations of a person in a particular relationship with another.

139 This is not a case where the potential risk of physical harm arising from an engine failure in flight could be described as trivial in the manner of that considered in Falvo. In assessing the likelihood that such a risk would materialise (i.e., where the risk falls on the spectrum between a trivial risk and one likely to materialise, to use the terminology of Ipp JA in Fallas), then the statistical evidence that 1 in 500 light aircraft flights in 2007 ended in a serious accident means that this cannot be seen as a trivial risk. While account is to be taken of the experience and qualifications of the pilot or instructor as part of the overall circumstances of the particular activity in question, one must also take into account that the risk (as here, of engine failure) could occur in circumstances where even an experienced pilot would not be in a position to avoid an outcome involving serious injury or death.

140 His Honour likened the activity in which Mr Campbell was engaged to that of a parachute diver. Reference was made in submissions to Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 where Davies J was prepared to conclude that the evidence demonstrated that, as a recreational activity considered generally, gliding involved a significant risk of physical harm because, although the risk of an accident was low, the potential harm was catastrophic (though his Honour went on to conclude that, even if gliding generally could not be considered a dangerous recreational activity, the act of performing a landing over powerlines as had there been attempted was).

141 In the present case, if there were to be a problem with the single engine (which could not be discounted as a trivial risk), it might be one that the flying instructor would not be able to rectify such that, even without any negligence on the part of the flying instructor, a forced landing might have to be made, carrying with it the obvious risk of death or serious injury. The presence of an experienced flying instructor was a factor to be taken into account in assessing whether there was a significant risk of physical harm. However, in my view his Honour did not err insofar as he implicitly concluded that that fact did not reduce the assessment of risk of physical harm arising from a forced landing due to engine failure to a risk that was not significant for the purposes of the definition in s 5K.

142 Ground 1 of the notice of appeal is not necessary to determine having regard to the conclusion I have reached on the grounds raised in the notice of contention. Had it been necessary to do so I would have concluded that this ground was not made good.