Liability for dangerous recreational activities

A court has found that if the risk in a dangerous recreational activity is obvious, a person cannot claim damages from the operator.

A student pilot sued his instructor for injuries he sustained when participating in a flying lesson. Part way through the lesson, the plane’s engine failed and the instructor took control of the aircraft and made an emergency landing into a bush gully. The instructor was an experienced pilot who had been involved in a number of emergency landings over his career. The student claimed negligence and sought damages for his injuries.

The court found that the instructor had been negligent in not flying towards an appropriate landing strip when the engine started to fail, instead continuing to fly and resulting in the subsequent forced landing. However, because the activity was a dangerous recreational activity, and the risk of injury was an obvious one, the court found that the student was unable to recover damages.

The courts have recognised that participants in dangerous or adventure activities cannot expect to have these experiences yet be ‘wrapped in cotton wool’ and protected from all injury. A balance must be struck, ensuring operators provide a relatively safe experience, but not necessarily a risk- or injury-free one.

Operators can also provide a very risky activity with full disclosure and acknowledgment of those risks in accompanying waivers and exclusions.

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