Nobody would argue that a flying instructor owes their student a duty of care. What is less clear however is the standard of that care. That very issue came up in the recent case of Ripper v Gobel Aviation. This is a case where an instructor's correction of a student led to a sequence that caused a crash. At issue was whether the instructor's actions amounted to a breach of a duty of his care to the student.
Background
Notes
- The facts in this case were controversial. Both the student and the flying school presented substantially different accounts of the accident and its lead-up. The judge states that the plaintiff tried to construe events in a way that suited him, and the defendant was 'evasive' and 'failed to make sensible concessions when asked reasonable questions': [17]. The summary of the facts I give in this article is based on what the judge 'found' (ie: decided what was true) after considering all the evidence before her.
- his case was appealed in 2025. This appeal relates to the amount of damages awarded only. It did not re-argue the standard of care arguments.
- Numbers in square brackets (eg: '[17]') refer to paragraphs in the judgement.
The accident flight happened on 17 December 2017 at Bendigo Airport (YBDG). The flight was a pre-solo assessment. The student pilot was 27 years old and had been flying on and off for over 10 years. He had ambitions since childhood of becoming a commercial pilot. Recently he had enrolled in a Diploma of Aviation and his check flight was part of that course. At the time of the check flight the student pilot had approximately 40 hours' experience.
The instructor had received his CASA instructor rating in late 2016. He was also rated as an RAAus instructor. The flight was an RAAus flight and was conducted in an Aeroprakt A22LS Foxbat. The check flight was the first time the instructor and the student had flown together.
The Flight
The court judgement records the weather on the day as a 'good day for flying': [63]. There was a light southerly wind, and the plan was to use runway 17. There may have been a slight crosswind from left to right across 17 although this was not really determinative in the overall outcome.
On the day of the flight the student DI'd the aircraft. The instructor conducted a pre-flight briefing, including briefing on who would control the aircraft (ie: 'handing over/taking over' procedures).
The student conducted all the pre-takeoff checks, taxied out to the holding point of runway 17, conducted his FAST checks, made a radio call, and entered the runway after waiting for another aircraft that was in the circuit.
The pilot entered the runway, lined up on the centreline and applied full power to commence the takeoff. Not long into the takeoff roll the aircraft started to veer to the left. The instructor waited briefly to see if the student would correct the deviation, and then gently applied some right rudder to correct the deviation. At more or less the same time, the student pilot also applied right rudder. The end result was that the aircraft veered to the right and off the paved part of the runway. In response to this the student pilot applied full back pressure to the control column. This caused the horizontal stabiliser to strike one of the runway lights on the right side. The aircraft then became airborne at a very nose high attitude. The instructor tried to apply forward pressure to the control column but felt some resistance. The instructor gave a 'taking over' command at which point the student released pressure. However, by this time the left wing of the aircraft had stalled. The left wing struck the ground followed by the nose of the aircraft. The aircraft ended up on the ground facing the 17 threshold.
Injuries
Both the student and the instructor were able to extricate themselves from the wreckage. Both were taken to hospital suffering minor physical injuries.
The student pilot continued to suffer pain in his back, arm and lack of strength in his hand. The student pilot made multiple attempts to continue his flying training but eventually stopped due to mental health issues arising from the accident.
Duty of Care
Ultimately, this case turned on the instructor's application of right rudder without informing the student. It was not the application of right rudder itself that was in issue, but that the instructor had not made a 'taking over' call before doing so. In fact, the judge states
...because [the instructor] had the ability to ensure proper handover and takeover procedures were adopted, [the instructor] had control over the avoidance of risk of the aircraft crashing. [339]
The flying school defendant placed a number of counter-arguments, stating that it was the student's application of full back pressure that caused the accident, and that the student was PIC at the time of the accident, but these were rejected by the judge.
The judge concluded that the flying school owed the student a duty of care to:
avoid a risk of a student pilot suffering personal injury if the instructor failed to apply proper handover and takeover procedures and did not inform the student pilot that the instructor was taking over control of the aircraft: [340] (emphasis added).
The Importance of Handover and Takeover Procedures
The importance of these procedures was very much central to the judge's reasoning. Her honour stated that handing over/taking over procedures are 'vital for the safety of operations' so that there was 'never any doubt' as to who was in control of the aircraft: [94]. Her honour also found that there was a 'requirement' for a safety briefing, including briefing on handover/takeover procedures before this type of flight.
Two things struck me about this judgement. The first was how a small action led to such a catastrophic consequence. I can imagine the instructor sitting in the right seat, observing a small deviation and deciding to correct it quietly. He may have thought it was something minor and not worth loading up the pilot with. It turns out that was not the correct approach and I suspect many people reading will agree with this. But how many times does this happen? I say this not to cast aspersions on instructors, but to recognise there are judgement calls to be made when instructing a student.
The second thing that struck me was the lack of latitude in these kinds of judgement calls. This case demonstrates that there is almost no discretion to apply when taking control of an aircraft. If an instructor wants to take control, he or she must give a 'taking over' call beforehand. Anything less is a breach of their duty of care.
Finally, the 'requirement' to do a handover/takeover briefing before each instructional flight is implied in this judgement. The judge does not make this express statement, but she certainly states it as a 'requirement' for this particular flight, and repeatedly emphasises its importance. It would be difficult to argue that such a briefing not take place.
Conclusion
I am not an instructor. I have, however, been instructed many times. I, like almost all of us, know handing over/taking over very well. Off the top of my head I can't recall a time when an instructor has taken over from me without saying 'taking over' beforehand. However, I am confident that I haven't had a handover/takeover brief before every instructional flight. Based on this case, that could be an issue now.
Food for thought!
As always, feel free to contact me if you have any questions about this post or if you need any legal advice.
Mark