In a judgment delivered on 23 December 2025, the Victorian Court of Appeal dismissed an appeal by Gobel Aviation Pty Ltd in relation to the previous award of damages to a trainee pilot arising from an accident occurring at Bendigo on 17 December 2017. The decision is in the case of Gobel Aviation Pty Ltd (In liq) v Ripper [2025] VSCA 344.

On the day of the accident, the student pilot Edward Ripper was undergoing a solo assessment flight at Bendigo Airport in a two seat ultralight aircraft accompanied by Bao Nguyen, a flight instructor employed by Gobel Aviation. Although the aircraft had dual controls, it was agreed that only one person should control the aircraft at any one time and there was a process for handover and takeover of control between a student pilot and instructor involving the instructor saying "taking over" and the student replying "handing over".

Prior to the subject flight a pre-flight safety briefing included the handover and takeover procedures.

During the take-off roll, the aircraft drifted slightly to left of centre of the runway. Without informing the student pilot Ripper, the instructor Nguyen sought to correct the path of the aircraft by applying 'subtle right rudder'. However, at almost the same time Ripper applied right rudder. Ripper applied 'full back pressure' on the control stick and the aircraft pitched up, struck a runway light and took off in a 'high-nose attitude'.

Nguyen took control of the control stick, stating he was "taking over", and Ripper released all contact from the controls. Nguyen applied the control stick to lower the nose but the left wing stalled and contacted gravel to the right of the runway and the aircraft crashed nose first into the runway.

Ripper was taken to Bendigo Hospital but discharged on the same day, although he suffered injuries to his left leg, left elbow and neck together with psychiatric injuries in the nature of post-traumatic stress disorder.

Following a 12 day hearing, her Honour Judge Robertson found that Gobel Aviation had breached the duty of care owed to Ripper. The court held that Nguyen had failed to adopt proper handover and takeover procedures and by applying right rudder without informing Ripper a dangerous situation was created. A risk of injury could have been avoided by the exercise of reasonable care.

No contributory negligence was found to be established.

Ripper was awarded approximately $800,000 in damages. The evidence established that his psychiatric injury affected his ability to fly and that but for the accident he would likely have pursued a career as a commercial pilot.

The appeal was largely based on the weight of the evidence at trial and the findings of fact. Gobel Aviation also challenged the discount applied to the assessment of future economic loss. At trial, a discount of 50% had been applied to the past economic loss claim to reflect the probability that Ripper would not have worked as a commercial pilot.

The appeal court comprising Chief Justice Niall and Justices Beach and O'Meara noted that the trial judge had stated that "Neither the plaintiff nor the flight instructor…were impressive witnesses….Aspects of the evidence of each of those witnesses was unreliable. In the end I have approached the evidence of all witnesses very cautiously and I have wherever possible tried to corroborate what each witness said with other objective evidence."

The appeal court was satisfied following detailed analysis of the reasoning applied by the trial judge that no error was shown and her findings were correctly made in relation to the factual findings.

In assessing damages for future earning capacity, the trial judge and the appeal court relied upon the High Court decision in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638. In reaching an assessment of a discount of 50% to be applied in respect of past earning loss, the trial judge took into account multiple factors not all of which factors were relevant to future loss of earning capacity. Although a different vicissitudes discount was applied to future loss than to past loss, the difference alone did not amount to error. Her Honour was required to assess risks of a significantly different nature for each period, making the variation in the discounts appropriate.

Her task was an inherently evaluative one in which she had the advantage of hearing and seeing the relevant evidence and the appeal court rejected the further appeal ground in the circumstances.

The decision is indicative of a reluctance of appeal courts to upset findings of fact and assessment of damages in circumstances where evidence is disputed and the reliability and weight of the evidence of witnesses is carefully assessed by the trial judge.

If you would like to discuss the implications of this decision or seek advice on aviation liability matters, please contact our Transport & Logistics team.