Public Liability

[M61A1]

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.

Yeah, I understand that it's not all black and white, however, to charge someone with anything because someone else came onto their property and hurt themselves, to me (this is only an opinion) is a large part of what's wrong with this country. I do not own a pool, but my opinion, you should be able to have it completely unfenced and still not be responsible for intruders, minors or otherwise. Yes, I have no doubts that the parent would be beating themselves up for a lifetime, but their kids, their responsibility(100%), not the neighbours or their friends neighbours.

Anyway I'll shutup now, as this is a flying forum, but I also feel the same way about how the same rules apply to recreationl aviation.

 

 

[turboplanner]

Better go and see a Public Liability lawyer M61 to have it explained - might cost a hundred bucks or so, but that's nothing compared to not being prepared for the real thing.

 

A lot of people struggle with what seems to be the reverse philosophy of these laws, but it's not that hard to avoid trouble once you understand what your duty of care is.

 

What I've posted here are real cases based on the precedent case way back in 1924, so nothing new.

 

 

[M61A1]

Better go and see a Public Liability lawyer M61 to have it explained - might cost a hundred bucks or so, but that's nothing compared to not being prepared for the real thing.A lot of people struggle with what seems to be the reverse philosophy of these laws, but it's not that hard to avoid trouble once you understand what your duty of care is.

What I've posted here are real cases based on the precedent case way back in 1924, so nothing new.

I understand what the reality of the law is.......what I was trying to say was that I find the current trend of litigation to blame others for what was essentially your own fault and the law that allows it, very disturbing, perverse even, and I really can't see it improving any time soon.

 

 

[turboplanner]

This case hinges on failure to inspect, maintain, repair so has a direct bearing on someone renting an aircraft, or loaning an aircraft.

 

Two children died, and their mother was injured as a result of a faulty gas heater. The awful thing about this one is that initially the mother was blamed for an attempted murder/suicide.

 

Even though, as you can see from the story, the heater was moved and appears to have had some service, its probable that the plaintiff's lawyers have hired an expert who has found it wasn't inspected or serviced prior to the event .

 

The deaths occurred in May 2010

 

Coroner's inquest was in March 2013

 

The public liability phase could take another 2 to 4 years.

 

http://www.heraldsun.com.au/news/victoria/tragic-mum-vanessa-robinson-sues-landlord-over-heater-deaths-of-sons/story-e6frf7kx-1226635269344

 

 

[geoffreywh]

This is an extract of New Zealand legislation The ACCC. ( Accident Compensation Committee the scourge of "NO Win No Fee" Lawyers.) Oh I wish we had such sensible legislation here..............Note the the last sentence.........

 

Negligence

 

The key elements of negligence

 

Negligence is the failure to exercise reasonable care to avoid reasonably foreseeable damage to people or property. There are four elements:

 

• The defendant must owe the plaintiff a duty of care.
   
   
  
• The defendant must have breached this duty of care.
   
   
  
• The plaintiff must have suffered damage that was caused by the defendant’s breach of duty.
   
   
  
• The damage suffered must have been a reasonably foreseeable consequence.
   
   
  

 

 

Breaching the duty of care

 

In a negligence case, the test for whether the defendant breached a duty of care is whether the defendant did something or failed to do something that a “reasonable person” would not have done or omitted to do.

 

The degree of care required depends on the circumstances. It varies according to the degree of risk involved, the consequences of the breach, and the standard of care that the defendant has undertaken to exercise.

 

Effect of the ACC scheme: No right to sue for personal injury

 

In New Zealand, a person cannot sue another person for negligence if they suffer a personal injury that is covered by the ACC scheme (see People: Volunteers, employees and contractors). An exception is that the injured person can sue for exemplary (punitive) damages, rather than compensatory damages (see below).

 

Limitation of proceedings: How long after can a person sue?

 

The person who suffered the damage must bring the case within six years of the date on which the cause of action arose, unless the fact that they had a cause of action against the defendant was concealDefences in negligence cases

 

Illegality

 

If the plaintiff (the person suing) was engaged in an illegal activity when they suffered the damage, the defendant will not be liable for the damage.

 

 

[turboplanner]

This would eliminate the thief who was trespassing on your land with an armful of your tools and fell down an unguarded post hole, breaking his leg.

 

But I wonder how you'd go as a plaintiff, if you'd had a lunch with the farmer, including some red and you were just at 0.05 blood alcohol, and he decided to take you around the paddocks, forgetting he hadn't finished tightening the wheel nuts last night and you fell off and broke your back?

 

 

[geoffreywh]

The ACCC would cover the costs. .Much like the T.A.C.'s "No Fault" system............ But.....Getting on a tractor (single seated? ) whist legally drunk with a possibly drunk driver...(read the bit about illegal activity! ) ............. Why should you get ANYTHING?....It's that kind of thinking that has fostered the plethora of ambulance chasers that we now live with............ I don't understand how the liability can be placed at anyone else's doorstep except your own. ..It's your neck and you stuck it out.......Why on earth can't people take responsibility for their actions? . end of rant, sorry...................

 

 

[turboplanner]

I probably gave a bad example Geoff, even though I said "just at .05" and not drunk.

 

What I was trying to put was a very minor, technical breach of the law - something the person may not have been aware of, and he breaks his back, is up for $7 million total life costs and can't claim it because he was "engaged in an illegal activity" (or were you only just paraphrasing the NZ Act)

 

 

[geoffreywh]

Well yes (In NZ) . The tractor passenger can claim compensation. But not from the driver............. Whilst the Driver has a "duty of care" placed upon him. equally does the passenger agree to ride (at his own risk) and has a responsibility to look after his own arse. But the issue remains the same. Someone falls over on a wet floor and before you can say "no win no fee". you have a court case on your hands. Why can't the person look where they're going?????? ...............It all translates perfectly to aviation. There are court cases all over the place where injured passengers are suing pilots and relatives of dead pilots are suing everybody they can think of....How the hell in a sane world can the RAA be liable for a grown man's decisions? He got in the aeroplane, nobody forced him, if his training was not up to scratch it is still his decision to take off, its up to the pilot/driver/diver/whatever to make sure they have enough skill to undertake and assess the risks they are accepting.... ............ The "Nanny State" encourages this flight to litigation. I don't agree with it at all......

 

 

[turboplanner]

It was probably a bad mistake getting involved in a discussion in the New Zealand system which has little relationship to Australia.

 

All we've done is created confusion for Australians who are not affected by what happens in NZ.

 

It's clear from these discussions that most people have very little understanding of our Australian public liability system works.

 

For this reason, I've posted a live Australian case so people can follow the case and see the principles at work.

 

This particular case is not about a person who got into an aircraft knowing full well the risks, but about two innocent little children and their innocent mother.

 

A lot of people feel the same way as you do Geoff and talk about people being responsible for their own risks, Nanny State etc

 

However we don't have any control over that and as someone said on another forum, if you have equity in a house or you have assets, you need insurance.

 

One way of working out how much insurance you need is to see the payout figures, and one way of reducing your exposure to a claim is to see what these cases are all about.

 

 

[geoffreywh]

Of Course, The tragedy of the carbon monoxide poisoning is heartbreaking....I would not know how to deal with that. Either emotionally or as a defendant. I can imagine that the mother's life is ruined, so probably is the house owner's How do you appropriate blame? Glad I don't sit on the bench at that one....

 

 

[turboplanner]

Since there is a case coming it's probably not advisable to start guessing, but it would appear from the story that the plaintiff believes the property owner/rental agent had a duty of care to inspect, maintain and repair the heater.

 

This is a link to the case on which our Australian system is based. Just beware of Wikpedia wording.

 

http://en.wikipedia.org/wiki/Donoghue_v_Stevenson

 

 

[geoffreywh]

Thank you for the guidance. I read wikipedia and saw how the concept originated and has been expanding ever since. But WHY can't I discuss a case you say is upcoming? I have seen this type of thing written before. "A case is before a court so we had better not talk about it"....I have no unreasonable interest in the outcome, I have freedom of speech. I can discuss whatever I want.....For example, I read in the new Sport Pilot that there are now 3 claims against The RAA. I would like to know what they are. Who they are and the circumstances of the claims. I am a member of the organisation that is being sued. Why should I NOT know? Why should we ALL not know. Obviously SOME of the members know. Why can't we ALL know?

 

 

[Guest Andys@coffs]

I read in the new Sport Pilot that there are now 3 claims against The RAA. I would like to know what they are. Who they are and the circumstances of the claims. I am a member of the organisation that is being sued. Why should I NOT know? Why should we ALL not know. Obviously SOME of the members know. Why can't we ALL know?

I absolutely agree and outright reject the boards (actually the execs) position that only the exec can know, and begrudgingly, after the members slapped them, the rest of the board but definitely not the greater membership.......

 

I did see a letter from a preeminent Australian aviation lawyer who also, in my words, said that was a crock of sh!t and the members had ever right to understand the case and how we were going to respond in general terms..........Although I suppose if it were a member that was suing us then that would be problematic......

 

I reject it because if the current "team" cant register aircraft, a basic follow the ball activity where CASA have constantly reminded us of what the ball looks like and every place it must bounce......then how can I be sure that they can manage the complexities involved in a law case and a multimillion business!! if we cant count the number of aircraft stuck in the unregistered pile and it magically grows from 100 on feb 9th to over 400 a month or so later and rumoured to be closer to 600 now........

 

Andy

 

 

[turboplanner]

You are not allowed to discuss the merits of the case - the central issues, where you could sway the judgement or disadvantage one side or the other, particularly through the speculation we all like to do.

 

This link on sub judice gives some information

 

http://www.thenewsmanual.net/Resources/medialaw_in_australia_03.html

 

Who the plaintiff(s) and defendant(s) are and what the claim is doesn't seem to me to be anywhere near the merits of the case - I believe you SHOULD know what is happening, so all members get to take these issues more seriously and reduce or avoid future claims.

 

 

[geoffreywh]

Thanks for the link. There's nothing in there that would prevent the members from knowing undisputed facts of a claim. ie: what happened............ Speculation on why the claimant is claiming may be "in camera" while the case is " sub judice" LOL......I love Latin....WE SHOULD know about claim against us... It's (partially) my money at risk...................and I wish I had my registration. After 8 weeks ,many phone calls , texts , emails and promises, still nothing..................Makes you wonder what is going on?

 

 

[M61A1]

It was probably a bad mistake getting involved in a discussion in the New Zealand system which has little relationship to Australia.All we've done is created confusion for Australians who are not affected by what happens in NZ.

It's clear from these discussions that most people have very little understanding of our Australian public liability system works.

 

For this reason, I've posted a live Australian case so people can follow the case and see the principles at work.

 

This particular case is not about a person who got into an aircraft knowing full well the risks, but about two innocent little children and their innocent mother.

 

A lot of people feel the same way as you do Geoff and talk about people being responsible for their own risks, Nanny State etc

 

However we don't have any control over that and as someone said on another forum, if you have equity in a house or you have assets, you need insurance.

 

One way of working out how much insurance you need is to see the payout figures, and one way of reducing your exposure to a claim is to see what these cases are all about.

I think that most people understand how it works.... they just don't like how it works. Having said that, we need enough people to stand up and call "bullsh!t", for anything to change, it will never change while people blindly accept it. Sadly I doubt I will see change in my lifetime, but I have no problem ridiculing those who make exorbitant claims against others for what was essentially their own fault.Yes they may have a wife and/or child/ren, that is their problem, not society's, and arrangements should have been made before they did something stupid, or accept the consequences.

As for the heater incident, I accept there may well be a reasonable case to answer, as they were paying for the use of premises with a reasonable expectation that such items would be properly maintained.

 

 

[Guest Nobody]

In some ways Australia has taken the liability issue to a greater extreme than the USA. In many states in the USA there is a recreational use statute that removes a land owners liability if the is no charge for access to that land. Hence you can have private airports with no landing fee and no need for insurance. If the pilot has a crash for whatever reason then it's his problem.

 

As an example:

 

http://asci.uvm.edu/equine/law/recreate/id_rec.htm

 

 

[geoffreywh]

Brilliant. What a good statute. We could so use that here. It reminds me of when I was a kid. You took responsibility for yourself and your own safety. I fell out of a farmers tree once, getting conkers. He took me home, injured but not badly, and I got a clip round the ear from my mum. Nowadays she would have sued him for allowing me onto his property. Really! (plus called him a pedofile for putting me in his car......)

 

 

[turboplanner]

Brilliant. What a good statute. We could so use that here. It reminds me of when I was a kid. You took responsibility for yourself and your own safety. I fell out of a farmers tree once, getting conkers. He took me home, injured but not badly, and I got a clip round the ear from my mum. Nowadays she would have sued him for allowing me onto his property. Really! (plus called him a pedofile for putting me in his car......)

That's not correct; the farmer has to have been negligent, the woman has to prove negligence, any award is based on loss, and she has to have evidence of you harming her child or she's in big trouble.

 

 

[Teckair]

Paying for large amounts of insurance is a mug's game and the only winners are insurance companies, accident prone dills and lawyers. Insurance companies are sucking the blood out of life and people are stupid to pay for it. It is a system where careful people pay for other other peoples mistakes and insurance companies get money for doing almost nothing. The only reason why we see the litigation and claims these days is because of insurance, it is a giant con job.

 

 

[turboplanner]

Paying for large amounts of insurance is a mug's game and the only winners are insurance companies, accident prone dills and lawyers. Insurance companies are sucking the blood out of life and people are stupid to pay for it. It is a system where careful people pay for other other peoples mistakes and insurance companies get money for doing almost nothing. The only reason why we see the litigation and claims these days is because of insurance, it is a giant con job.

Insurance is another subject, maybe you should start a thread on it.

 

 

[Guest Nobody]

That's not correct; the farmer has to have been negligent, the woman has to prove negligence, any award is based on loss, and she has to have evidence of you harming her child or she's in big trouble.

But that doesn't stop someone trying it on and the farmer having to prove that he wasn't negligent in court and that can soak up a lot of time and money. That's why the law that I posted the link to in some states in the USA is very powerful. If you let people use your land, without charging them they can't sue you.

 

Imagine a bloke who owns a little farm airstrip. He decides on a particular weekend to have a fly in and let everyone camp. If he is in Idaho, provided he doesn't charge for access, he doesn't need insurance or waiver forms or anything complicated he just does it. In Australia there is no such liablity protection and if someone pranged into a tree on takeoff or burnt themselves on the campfire who covers the cost of the court case?

 

 

[turboplanner]

But that doesn't stop someone trying it on and the farmer having to prove that he wasn't negligent in court and that can soak up a lot of time and money. That's why the law that I posted the link to in some states in the USA is very powerful. If you let people use your land, without charging them they can't sue you.Imagine a bloke who owns a little farm airstrip. He decides on a particular weekend to have a fly in and let everyone camp. If he is in Idaho, provided he doesn't charge for access, he doesn't need insurance or waiver forms or anything complicated he just does it. In Australia there is no such liablity protection and if someone pranged into a tree on takeoff or burnt themselves on the campfire who covers the cost of the court case?

Nobody gets to "try something on". The plaintiff has to be able to prove negligence, or it costs them a bucket.

 

There's not a lot of point confusing Australian law with what might be occurring overseas, you would be talking years to change our legislation, and our State governments are happy with the more orderly system we have now. There's a lot more involved in this than some of the very simple examples which are thrown up.

 

Again, if you decide to convert a paddock into an airstrip, duty of care goes up in steps which could be:

 

Paddock with visitors: Duty of care to warn of risks

 

Access route out in case of fire

 

Deep trenches, work in progress guarded

 

Graded Airstrip: ALA and other standards complinace

 

Clear splays, area of ends of strip for forced landings

 

No cables in flight paths

 

Induction

 

Insurance upgraded to cover aviation activity

 

Graded Airstrip with fly in: Parking management

 

 

[turboplanner]

Sorry, just rewrote the post with a Case example, and the time expired for editing, so I've lost the lot.

 

Please disregard all the information about converting a paddock into an airstrip - what's there wasn't well written and doesn't make much sense without the rest.