Campbell v Hay [2014] NSWCA 129

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Campbell v Hay [2014] NSWCA 129 Hearing dates: 24 February 2014 Decision date: 16 April 2014 Before: Meagher JA at [1]; Barrett JA at [7]; Ward JA at [10] Decision: 1. Appeal dismissed with costs [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - duty of care - whether primary judge erred in finding that flying instructor breached duty of care to trainee pilot by not causing aircraft to be diverted immediately upon the occurrence of a second set of faint vibrations, after a first set of vibrations had been corrected five minutes earlier, or by relying on an innate sense of luck - whether appellant had established that any breach of the duty of care was a cause of the harm suffered TORTS - negligence - defences - whether flying in a light aircraft under supervision of experienced flying instructor was a dangerous recreational activity TORTS - negligence - defences - whether harm that occurred was the materialisation of an obvious risk of a dangerous recreational activity Legislation Cited: Civil Liability Act 2002 Cases Cited: Echin v Southern Tablelands Gliding Club [2013] NSWSC 516 Fallas v Mourlas [2006] NSWCA 32; (2006) 65 NSWLR 418 Falvo v Australian Oztag Sports Association [2006] NSWCA 17 Jaber v Rockdale City Council [2008] NSWCA 98 Laoulach v Ibrahim [2011] NSWCA 402 Rogers v Whitaker [1992] HCA 58; (1992) 175 CLR 479 Streller v Albury City Council [2013] NSWCA 348 Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 Vremen and Morris v Albury City Council (2011) NSWSC 39 Category: Principal judgment Parties: Noel Campbell (Appellant) Rodney Victor Hay (Respondent) Representation: Counsel: R S Sheldon SC with J H Reimer (Appellant) D J Fagan SC with D A Lloyd (Respondent) Solicitors: Brydens Law Office (Appellant) GSG Legal (Respondent) File Number(s): CA 2013/78034 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Citation: [2013] NSWDC 11 Date of Decision: 2013-02-19 00:00:00 Before: Marks ADCJ File Number(s): DC 2010/120631