Public Liability

[turboplanner]

This case shows part of the Public Liability pattern.

 

Note that the half million dollar fine was imposed on the owner of the premises, not the tow truck driver.

 

Time line to date is five years.

 

This is just the penalty, so it's possible that on top of this will be the civil suit, which could be millions, and any criminal prosecution.

 

In aviation, this would equate to the owner or operator of an airfield, getting the penalty for a pilot incorrectly operating an airfield based aircraft at the airfield.

 

 

 

[Guest Andys@coffs]

Slight tangent...does anyone else have problems with shuting the popup window once you've read the article? I cant see an X to close the window and clicking anywhere on screen doesnt seem to help.......hiting the back button takes me backe to where I was before opening this thread. (Using IE 9.08 on win7 x64......)

 

Tubs, I can see the relevance of the article to our sport/body. In summary having rules, but then being seen to actively ignore breaches of those rules or procedures by those empowered to police them leaves us in unenviable position should we end up in court.

 

While there has been many examples of general membership perhaps not doing the right thingwith regard to reporting breaches, I cant recall immediately examples of where policing simply didnt occur. I can recall occasions when it was argued that policing was completely ineffectual, but not occasions when a formally advised complaint was just ignored?

 

Andy

 

 

[turboplanner]

I can think of a couple of examples straight off:

 

Taking off overweight

 

Taking off down wind

 

...and so on.....

 

I know the Coates operation and designed a number of trucks for them, and they never once objected to paying extra money for compliance, so this is generally a safe and conscientious Company.

 

What this decision seems to point to is the importance of not only having safety strategies and rules in place, but making sure they are publicised and policed.

 

 

[ben87r]

Turbo, Im a self employed builder. If ANYTHING happens on my site i am responsible FULL STOP END OF STORY. Its a scary thought cause i can meet all regulations, codes of practice and legislation and if anything should happen im still at fault because i "Need to take all appropriate action" So example, I have a job and i get subcontractors in, I tell them what needs to be done and what safety measures need to be in place then leave site and they do not do what has been asked of them its my fault. I needed to make it so they didn't have another choice but do what was required and if that means babysitting every trade on every job all day myself they are happy with that. Another i could put up 16' fences out the front but a 16yr old boy climbs over at midnight and brakes his leg..... MY fault. It has got so far out of hand these days its not funny. You can NOT legislate common sense but they are trying to legislate against others stupidity and it is now costing the consumer a fortune .RANT over.

 

 

[turboplanner]

1. Its a scary thought cause i can meet all regulations, codes of practice and legislation and if anything should happen im still at fault. So example, I have a job and i get subcontractors in, I tell them what needs to be done and what safety measures need to be in place then leave site and they do not do what has been asked of them its my fault.

2. Another i could put up 16' fences out the front but a 16yr old boy climbs over at midnight and brakes his leg

1. There are training courses for you here. Mitigating circumstances could be that you leave them with written information (which can be email, sms), have a Code of Practice in place and have someone in charge of the site at all times (ie he wants the job, he takes charge of the site as well). The point is the reason you are held responsible is you have the duty of care., and have to find a way of managing the site to minimise accidents. Another mitigating factor is having a history of careful management and publicly noticed compliance.

 

2. It's not the 16' fences they're getting through but the open yards with loose 4x2's holes, stacked timber, unguarded drops and so on. If someone scaled a 16'0" mesh fence you'd have a good defence, provided you'd placed suitable warning signs.

 

 

[ben87r]

and have to find a way of managing the site to minimise accidents

The problem here is you can do all of what you are saying but at the and of the day you will still be at fault. Anyone who is being irresponsible in regards to site security ect i believe to be genuinely at fault. But the other thing is if you read the regulations and legislation, the building industry is held to a separate set of rules to other business in regards to OH&S and public liability to compared to say a factory or a store ect ect. There is no common sense left in it, Where there is negligence to it i believe that the system is fair but duty of care has got to far

 

 

[turboplanner]

Yes, you will still be at fault, but you'll have minimised the risk back into manageable insurance claims rather than corporate penalties and criminal prosecution - you don't want those.

 

 

[ben87r]

Ah ok see what you mean. No i don't think the the criminal side would be much fun..

 

 

[facthunter]

Just an interesting point in passing. Taking off downwind is not illegal. At major aerodromes a down wind is often used for things like noise abatement traffic flow etc. An individual pilot may elect ? require NOT to do it and be subject to a delay, or other retrictions. If something goes wrong due to the acceptance of the downwind option, it will be the fault of the pilot accepting it. Nothing the tower has "offered?" is significant. the pilot has the responsibility for the safe operation of the aircraft.

 

A U/L pilot may do it in preference to an up-hill take-off, an obstacle affected runway etc too.

 

It is generally NOT a good idea , to do a downwind take-off . Into wind has much more going for it.. Nev

 

 

[turboplanner]

We did have a thread a mile long on that FH, and I hunted for and found the legislation you are supposed to be complying with re take off direction so there's no question about that.

 

 

[facthunter]

In the early 90's, 3 (I think) Jabiru's broke the nosewheels off when landing at Avalon at the airshow. They were given a runway that had a downwind on it and accepted it. I don't think many would know how to cope with refusing the downwind runway although it was within their rights to do so. I had quite a few "full" arguments with a mate of mine who was a CASA FOI at the time, as to whether it was reasonable to put those pilots in that position. My argument was that it was an unfamiliar situation for them to have to negotiate with the ATC . His was that they should know what a PIC's responsibilities are. He is right (technically), but I think it was expecting a bit much. Plenty of people regularly accept winds with a downwind component of over 10 knots. Most pilots in RAAus would never have done one in their training. Nev.

 

 

[turboplanner]

Here you are FH, put my arm into the haystack and felt a prick almost immediately.

 

CAR 166 reads:

 

"(2) The Pilot in Command of an aircraft that is being operated in the vicinity of a non controlled aerodrome must:

 

"(2) (f) to the extent practicable, land and take off into the wind..."

 

(empasis mine)

 

 

[facthunter]

We are talking about a non-controlled aerodrome. with CAR 166. My references were to major airports and controlled ( towered) aerodromes.

 

The presumption at a non-controlled aerodrome is that pilots WOULD land into wind. I don't know what the extent practicable means, but it suggests there can be exceptions to the rule . Operations within the vicinity of that aerodrome would consider that the traffic would be in accordance with that rule.ie, There is an assumption that they are landing and taking off into wind . It couldn't be any other way..Nev

 

 

[M61A1]

The problem here is you can do all of what you are saying but at the and of the day you will still be at fault. Anyone who is being irresponsible in regards to site security ect i believe to be genuinely at fault. But the other thing is if you read the regulations and legislation, the building industry is held to a separate set of rules to other business in regards to OH&S and public liability to compared to say a factory or a store ect ect. There is no common sense left in it, Where there is negligence to it i believe that the system is fair but duty of care has got to far

I find the trend very disturbing, where these oxygen thieves hurt themselves then instead of being laughed out of court and ordered to pay costs, they get a substantial payout or someone else gets fined. I really don't know how they, their legal team and the magistrates/judges who award the payouts can actually sleep at night, given the damage that they've done to this country in setting a precedent for someone else to do the same or similar. How do we turn the tables? Can we turn the tables?

 

 

[turboplanner]

So you're at a BBQ, knocking back a few stubbies and towards sundown someone suggests you should go up for a fly. It's 30 minutes before last light and you're 25 minutes from the airport, but you decide to take a carload out, and your best friend decides to go up with you. You know you can't make the flight before last light, maybe not even the take off but you can see the sun on the hills and off you go.

 

In the ensuing loss of control and crash, your best mate becomes a quadriplegic, so now will need major modifications to his house, a full time nurse, and an income to support his wife and children for the years he would normally expect to have dependants.

 

Who should pay?

 

 

[ben87r]

PIC. or associated insurance.

 

 

[turboplanner]

In the example the civil claim is going to be in the vicinity of $5 to $10 million, and the culpable negligence of alcohol and knowing he couldn't complete the flight before last light will kick in.

 

 

[facthunter]

Isn't your insurance voided if you are drunk? Nev

 

 

[ben87r]

I thought that the insurance would still pay and recoup their losses from the at fault party. May be mistaken

 

 

[Guest Andys@coffs]

Legally I dont think that the insurance company is ever a party to the litigation, which is why their policies invariably say, or have words to the effect that in the event of a lawsuit you allow them to manage and control the legal defence. Rather they are there to be turned to in the event that things go badly.......If your drunk then when you turn they wont be there....

 

Andy

 

 

[turboplanner]

Someone asked about manslaughter cases about a month ago. This is the first swimming pool case in NSW, just announced.

 

I'm not sure if the person who entered the enclosure was an oxygen thief or an innocent family's little boy, now gone forever.

 

This link might be easier than the attachment:

 

http://www.heraldsun.com.au/news/national/charged-for-pool-death-of-toddler/story-fndo317g-1226417283451

 

Source: Daily Telegraph/Herald Sun

 

 

 

[facthunter]

Wilful negligence might be regarded similarly Andy. Aviation is a difficult game. It is so easy to commit an offence or be alleged you did. Despite the general rule of innocent till proven guilty, we have laws of strict liability where there is no ability to introduce mitigating factors. You pay the fine and lose the points. If you end up before the courts with CASA deciding to take legal action against you, their ability to pay for lawyers etc and access resources leaves you in an impossible situation. Nev.

 

 

[M61A1]

Someone asked about manslaughter cases about a month ago. This is the first swimming pool case in NSW, just announced.I'm not sure if the person who entered the enclosure was an oxygen thief or an innocent family's little boy, now gone forever.

 

This link might be easier than the attachment:

 

http://www.heraldsun.com.au/news/national/charged-for-pool-death-of-toddler/story-fndo317g-1226417283451

 

Source: Daily Telegraph/Herald Sun

That is a perfect example of what is wrong.........the parent/s are the guilty ones here, no-one else. Yet our pathetic excuse for a justice system has made it someone else's. The pool laws in QLD (I can't speak for NSW)have gone way beyond stupid, and all because parents couldn't possibly be responsible for looking after their kids. These kinds of cases make me wild.

BTW, I am aware that there is not much I can do about it, except say how ridiculous I feel it is.

 

 

[M61A1]

So you're at a BBQ, knocking back a few stubbies and towards sundown someone suggests you should go up for a fly. It's 30 minutes before last light and you're 25 minutes from the airport, but you decide to take a carload out, and your best friend decides to go up with you. You know you can't make the flight before last light, maybe not even the take off but you can see the sun on the hills and off you go.In the ensuing loss of control and crash, your best mate becomes a quadriplegic, so now will need major modifications to his house, a full time nurse, and an income to support his wife and children for the years he would normally expect to have dependants.

 

Who should pay?

I see it this way (I'm sure there will be those that see it different).........the passenger was not a fare paying type, so was there because he wanted to, was aware that the pilot had been drinking, also aware of impending darkness.........natural selection occurs due to poor decisions, best suck it up, and try not to make the same mistake again.

Completely different if he should happen to kill/injure an uninvolved bystander.....guilty.

 

 

[Guest Andys@coffs]

That is a perfect example of what is wrong.........the parent/s are the guilty ones here, no-one else. Yet our pathetic excuse for a justice system has made it someone else's. The pool laws in QLD (I can't speak for NSW)have gone way beyond stupid, and all because parents couldn't possibly be responsible for looking after their kids. These kinds of cases make me wild.BTW, I am aware that there is not much I can do about it, except say how ridiculous I feel it is.

Really!!!!....

 

Hands up all the parents of the world who can honestly say that when their children were between the ages of first motion up to when they started at school that they had absolutely supervision of their children for 100% of the time. If there was more than 0.1% I'd be amazed.......after all we are only talking a few minutes of distraction in 3-4years.

 

Are the laws correct? probably not, if they were then they would never need to change...Are they appropriate, Hell Yes!!! I mean, if its illegal to "intentionally" set a mantrap in your house to maim or kill a burgler, who shouldnt be there in the first place... then why wouldnt it be similarly illegal to create a childtrap in the form of an unsafe pool!

 

Why do people talk in absolutes all the time, its all my fault or all their fault.....Real world is nothing like that. The fact that the child was unsupurvised has to infer that the parent has some culpability in the death but no way is it 0% or 100%. To have a pool fence unserviceable for years....a fair chunk of the culpability has to sit with the pool owner.....In any event Im pretty sure the parents will beat themselves up for the rest of their living years over the 5% culpability that is theirs. 3 people (2 parents and the child) in effect punished for the criminal negligence of someone else!!

 

A charge of manslaughter of itself infers no preconsidered intent to kill, otherwise the charge would be murder. Manslaughter infers that as a result of "stupidity" you caused the death of someone else. With the little we know from the article (which may well be short of a few facts) a charge of Manslaughter tested in court seems most appropriate to me.