Public Liability

[M61A1]

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.

I dunno... seems pretty clear who has the better system from what you've posted there.Idaho farmer, has a strip, people visit, visitors responsibility (if there are no charges-free) OR

Stupid Australians, makes strip, has to idiot proof it, so clowns don't hurt themselves, and still risks losing everything.

 

As far as proving negligence, I have seen cases where ambulance chasing lawyers get involved, and the threat is always there that "if you don't settle now, we'll take it to court, and then you'll be up for costs if you lose", so people tend to settle if possible, even if they are in no way guilty, so they don't end up out of pocket for massive court expenses. Money obtained with no negligence ever proven.

 

What sort of common sense legal system awards a man damages because he injured his foot whilst on a fishing boat, because a wave made the deck move unexpectedly? (an acquaintance of mine). The same person also has his own boat and takes others fishing.

 

 

[Phil Perry]

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?

In the UK, . . .if it could be established that the PIC had consumed a "Few Stubbies,. . .or Tinnies " then it would be fairly obvious, from witness testimony OR regrettably a post mortem examination. . . that any flight within less than the minimum 8 hours of the afrorementioned consumption of an alcoholic beverage would place any flight firmly into the "Not Allowed" bracket. With the appropriate refusal of any insurer to come to the party, so I'm not sure if this is a good descriptive scenario Turbo, but I DO see what you are getting at.

 

What annoys me somewhat is that, a long time ago, we had not two, but THREE solicitors in our club, who gave us all some very VERY useful information from which we then constructed the guidelines and operator statement under which our Club run airfield operated, and still does. They suggested that,. . .If our runways were X metres in length,. . .then we should advertise that they were in fact, only 3/4 X in length, thereby placing more responsibility upon a Pilot in Command, who SHOULD be conversant with the operating limits of his aeroplane. This way, if someone over ran a strip and ended up in a ditch,. . . with no ATC, the responsibility for this rested firmly with the pilot of that particular aircraft,. . . and no one else. We do, quite often have visiting pilots tell us that they looked at our site on GOOGLE EARTH and measured the strips at quite a bit more length than was published in all the National airfield directories. . . . .

 

We have tried to make our site as safe as possible, within the obvious financial constraints of a Flying Club, which uses voluntary radio and safety operators. . .by providing up to date fire extinguisher systems, regularly serviced and logged,. . . plus regular training sessions for use of same. . . more warning and safety signs than you could poke a stick at. . . and a Quasi-professional Air Ground radio information service which has a reputation of being second to none, and STILL. . . .we have had aircraft which have over-run runways and ended up in Farmer Fred's field next door as they were patently aircraft types in which the pilot in command should never have even attempted a landing in. . . . and were given NO prior permission to land, on radio nor by telephone call. Fortunately, ( Touch Wood ) we have not, to date, had anyone try to take us into litigation for any damage caused by their own stupidity, and we publish that all aircraft visiting require Public Liability insurance cover of £500,000. This bit isn't policed yet,. . .as it is against a persons' Human Rights in the UK to ask to see private insurance documents when visiting an airfield ! ! ! To be fair, we don't even know if visitors have even got a Pilot Licence ( or a current one at least. . . ) and are only alerted if somebody does something really silly, or sounds somewhat incompetent on an approaching radio call . . . . .

 

On the "Damaging your mate and making him a paraplegic" front, we had one of those accidents about eight years ago, where a flexwing ( Trike ) pilot landed too fast and long, hit a fence at the end and died as a result of his throat being slashed by the "A" frame to wing undersurface flying wires, and died from his injuries. . . as the weight of his passenger, during the rapid inertial decelleration forced his body forward and sideways over the flying wires. The passenger broke his spine in the accident, and became paraplegic as a result. This bloke was, at the time, a trainee lawyer. The pilot who died in the accident, lived alone in rented accommodation, and had no assets to speak of, other than a small car and the trashed aeroplane.

 

I wonder, what sort of money that young lawyer could have made, had he become qualified, and joined a good practice ? Maybe he DID from his wheelchair ? ? ? I don't know. . . The pilot did not have any passenger insurance, although this is now absolutely mandatory in the UK, and is attached to the aircraft registration at CAA headquarters,. ie, no insurance ? AIRCRAFT GROUNDED. ALSO. . . . Weightshift ( Trike ) manufacturers came up with a good FIX for this problem, ie, they designed a very simple harness, which has a loop which is is slid down the monopole ( MAST in OZ ) through which the passenger must then pass his arms, producing a shoulder harness thereby making it impossible for his body to be projected forward and into the front crew operator in the event of a sudden high "G" deceleration. The harness does not prevent the rear seat passenger from operating extension, or training bars either.

 

Sorry to go into so much detail, but the PASSENGER INSURANCE bit is now so really important, and I wouldn't dream of flying without it. You can get £2 Million now for quite a reasonable premium.

 

With one of my jobs being a supplier / manufacturer of industrial safety signage and accessories,. . I regularly have to attend building sites, and in ALL cases, I have to attend their " Induction" course, which describes all of the obvious or perceived health and safety issues which that site may present a visitor with. . . even though I've got a ticket, and all the safety gear, hard hats, reflective waistcoats etc...etc. . . .etc. . . it DOES get to be a bit of a bind sometimes and wastes a lot of my time, BUT every company is now SO TERRIFIED of legal action that this is now the norm, and it seems to get more stringent by the month. ( And YES . . .I even supply the current laminated 'Elf 'N' Safety" posters too ! ! ! ! ) Well. . . .If yer can't beat 'em,. . . . . .Join Em.

 

Phil

 

 

[Phil Perry]

I dunno... seems pretty clear who has the better system from what you've posted there.Idaho farmer, has a strip, people visit, visitors responsibility (if there are no charges-free) OR

Stupid Australians, makes strip, has to idiot proof it, so clowns don't hurt themselves, and still risks losing everything.

 

As far as proving negligence, I have seen cases where ambulance chasing lawyers get involved, and the threat is always there that "if you don't settle now, we'll take it to court, and then you'll be up for costs if you lose", so people tend to settle if possible, even if they are in no way guilty, so they don't end up out of pocket for massive court expenses. Money obtained with no negligence ever proven.

 

What sort of common sense legal system awards a man damages because he injured his foot whilst on a fishing boat, because a wave made the deck move unexpectedly? (an acquaintance of mine). The same person also has his own boat and takes others fishing.

M6. . . . . I'm not certain here,. . . . but I could have sworn you said "COMMONSENSE LEGAL SYSTEM" . . . . . . .WOT'S DAT ?

 

Phil

 

 

[turboplanner]

I dunno... seems pretty clear who has the better system from what you've posted there.What sort of common sense legal system awards a man damages because he injured his foot whilst on a fishing boat, because a wave made the deck move unexpectedly? (an acquaintance of mine). The same person also has his own boat and takes others fishing.

It doesn't matter who has the better system; the Australian system is the one we will have to face in an accident.

 

The fishing boat example you've given doesn't have an element of negligence, which is required - a wave making the deck move unexpectedly is no fault of the owner, so there will be more to this story than you've been told/written here.

 

 

[M61A1]

M6. . . . . I'm not certain here,. . . . but I could have sworn you said "COMMONSENSE LEGAL SYSTEM" . . . . . . .WOT'S DAT ?Phil

Yeah....fair cop.

[M61A1]

It doesn't matter who has the better system; the Australian system is the one we will have to face in an accident.The fishing boat example you've given doesn't have an element of negligence, which is required - a wave making the deck move unexpectedly is no fault of the owner, so there will be more to this story than you've been told/written here.

It played out pretty much as I've said.....The boat charter people were essentially threatened by ambulance chasers that if it went to court and they lost, then the bill would be much higher....so, boat owners paid up, rather than test it in court.

[turboplanner]

ambulance chasers?

 

If the boat charter people had hired a public liability lawyer, or even read this site, they would have known that a plaintiff has to spell out what the alleged negligence was before anyone started talking about winning or losing. What's missing from your story is the negligence. Many people who lose seem to forget to include that in theor story about being ripped off.

 

There have been other boat cases resulting in broken ankles etc and yes, something like a wave (usually called a "freak wave" by the loser) is involved, but the negligence is usually a failure to provide non slip footing, or a grab rail snapping off because the screws had corroded. For this story to make any sense we need to know the alleged negligence.

 

 

[farri]

Our eldest granddaughter was shoping in one of the major supermarkets when she sliped on the floor and fell heavily on one knee. It was raining and the floor was wet from a leak in the roof,directly above the spot she slipped on.

 

It was later proved that the leak had been there for several years and that the shoping center management were aware of the leak but had made no attempt to repair the roof. On previous occasions when it was raining they had simply put buckets on the floor to catch the water.

 

On this particular day there were no buckets or signs stating that the floor was wet and the wet spot wasn`t visible. As soon as staff realised that someone had slipped over they came and placed buckets on the floor.

 

Has the shoping center been negligent and failed it`s duty of care?

 

Frank.

 

Ps, The incident occured 4 years ago but the roof hasn`t been fixed.

 

 

[M61A1]

ambulance chasers?If the boat charter people had hired a public liability lawyer, or even read this site, they would have known that a plaintiff has to spell out what the alleged negligence was before anyone started talking about winning or losing. What's missing from your story is the negligence. Many people who lose seem to forget to include that in theor story about being ripped off.

There have been other boat cases resulting in broken ankles etc and yes, something like a wave (usually called a "freak wave" by the loser) is involved, but the negligence is usually a failure to provide non slip footing, or a grab rail snapping off because the screws had corroded. For this story to make any sense we need to know the alleged negligence.

That's pretty much my point... negligence should need to be proven. And it is that exact point that makes me so angry about it. I can only relate this case as told to me by the claimant, who I have known well for over 20 years. He isn't known for exaggerating, but did happen to tell anyone who would listen about how his solicitors, pretty much scared the other party and their solicitors into a payout, and the tactics they used. You only need look at cases like the drunken idiot down at the gold coast who stepped/fell in front of a car, then sued the people who served him drinks, and the driver that he hit, then was awarded massive payouts, as to what sort of things they use to scare people. My aquaintance's payout wasn't large, but still essentially the only winners were the legal people, meaning that he got his costs plus a small sum, so lawyers got most of the payout. Because he was awarded costs, he then had to pay his medical bills, and was then left with next to nothing.

[turboplanner]

Well you've still skirted round what the negligence was. Lawyers don't settle when their clients are not negligent because they would win their case.

 

So let's get past that by assuming that the person fell because there was a deficiency on the boat which the owner ought to have fixed - contributory negligence.

 

Yes the Insurer's lawyers will point out the negligence and suggest a settlement to the defendant's lawyers, and they will often settle out of court.

 

As much as their fees might appear to be, it usually covers teams of people to do research, set strategy and negotiate and it's a fraction of the costs once the court gets going; I was in a planning case last year, and each day the developer was spending about $40,000.00 and it went for a week.

 

So an out of Court settlement will cost everyone less, and its a negotiated settlement and usually reasonable because the lawyers don't have the emotion that the victim or defendant have.

 

I've been personally involved in quite a few, and in this case, where the person "injured his foot" he would be entitled to medical expenses, which he got.

 

As far as "was then left with nothing" - that's the point I've been trying to make - all the stories about people making a claim and then getting money for jam are just that - stories.

 

Why should he have got more than his medical expenses?

 

If he had been made a quadriplegic he would have received $6 or $7 million, but that would be his medical and rehabilitation costs also.

 

 

[turboplanner]

DISCLAIMER

 

The discussions on this thread do not constitute legal advice, but can help people understand SOME of the principles.

 

For legal advice always consult a lawyer and never use a forum site.

 

 

[turboplanner]

Our eldest granddaughter was shoping in one of the major supermarkets when she sliped on the floor and fell heavily on one knee. It was raining and the floor was wet from a leak in the roof,directly above the spot she slipped on.It was later proved that the leak had been there for several years and that the shoping center management were aware of the leak but had made no attempt to repair the roof. On previous occasions when it was raining they had simply put buckets on the floor to catch the water.

 

On this particular day there were no buckets or signs stating that the floor was wet and the wet spot wasn`t visible. As soon as staff realised that someone had slipped over they came and placed buckets on the floor.

 

Has the shoping center been negligent and failed it`s duty of care?

 

Frank.

 

Ps, The incident occured 4 years ago but the roof hasn`t been fixed.

If your granddaughter suffered an injury resulting in medical costs then it would be worthwhile contacting a public liability lawyer like Slater & Gordon, Maurice Blackburn & Co etc.

 

Attached is a Slater & Gordon report on a supermarket slipping accident.

 

I don't think there's a time limit to make a claim, but there have been a lot of fraudulent "slip" cases, some featured on Current Affair where people made a profession of it, so you would need good proof, but the lawyer would give you details on that.

 

 

 

[turboplanner]

You only need look at cases like the drunken idiot down at the gold coast who stepped/fell in front of a car, then sued the people who served him drinks, and the driver that he hit, then was awarded massive payouts, as to what sort of things they use to scare people.

Whether he was drunk or whether he was an idiot is likely to have been taken into account in this case, and it sounds like the people who supplied him drinks were judged to have met the requirement that it was reasonable to foresee a problem, and for all we know from this story the driver may have run a red light.

 

It's the issues which are relevant to the law which count, and often they aren't the ones that us members of the general public think.

 

There is a case in which the Shire of Wentworth (NSW) was sued, where a young couple drank away most of the night, then decided to go into Mildura for breakfast. I think from memory both were blind drunk and the vehicle was unroadworthy.

 

The man drove in but didn't feel like driving home and the girl drove the vehicle, which overturned on an unposted bend and the man's back was broken

 

The Shire spent three quarters of a million dollars trying to get out of it, but lost the case, and on top of their expense had to make a multi million dollar payout.

 

The facts relevant to the case were that the bend was sharper than normal, and the Council had a duty of care to put up a sign.

 

The case should be in Austlii.

 

Of course it might well be that they were both also charged by police with a lot of offences.

 

Here are some links to the background of the law we live with. You'll notice that the neighbour principle which some of you are complaining about was originated by Lord Atkins, who was a Queenslander.

 

http://survivelaw.com/index.php/news-list/1065-brisbane-celebrates-donoghue-v-stevensons-australian-connection

 

http://www.leoisaac.com/law/case_donoghue.htm

 

http://www.luyulei.net/cases/05_01-Principle_of_Precedent.html

 

http://www.lawteacher.net/tort-law/essays/neighbour-principle.php

 

 

[M61A1]

The case at the Gold Coast was well publicised....you should be able to find something about it. It was because of the apparent stupidity of the case that it made headlines. IMO... yes he is an idiot 1. he was drunk and got himself hurt 2. even worse blamed someone else for his actions. Your case about the drunk couple really supports what I'm trying to say, what the court can determine as negligence has become extremely "unreasonable".

 

That is my problem with where things are at, there seems to my a lawyer looking to set a new precedent all the time regardless of the flow on effect or common sense, and a magistrate dumb enough to pay someone for their own stupidity.

 

 

[turboplanner]

The difficulty you are having is the "reverse" basis of public liability.

 

Once a person comes to grips with that, then preventative action becomes second nature.

 

Employees of all big companies today are familiar with indoctrination, checklists, procedures, insurance etc - it's handled.

 

 

[turboplanner]

These links look a bit like your Gold Coast case M

 

http://www.carewlawyers.com.au/motor-vehicle-accidents/drunk-pedestrian-injured-car-accident-has-compensation-payout-reduced

 

http://archive.sclqld.org.au/qjudgment/2011/QCA11-179.pdf

 

http://www.curwoods.com.au/case-notes/insurance/compulsory_third_party/detail/index_html?content_id=117795

 

 

[M61A1]

The difficulty you are having is the "reverse" basis of public liability.Once a person comes to grips with that, then preventative action becomes second nature.

Employees of all big companies today are familiar with indoctrination, checklists, procedures, insurance etc - it's handled.

Yes I am very familiar with the concept, that's why I have such contempt for it. I despise it for all it is, I know it will not change soon.I hate it because it empowers the stupid among us to take what is not theirs and frees them of any personal responsibility, and along the way provides great riches for the legal system that created the monstrosity in the first place.

 

 

[turboplanner]

Well in that case, you may be interested in the book "Uncommon Law" by A.P. Herbert, but what we are trying to do here is minimise the risk of loss by learning what things to do and what to avoid.

 

 

[farri]

If your granddaughter suffered an injury resulting in medical costs then it would be worthwhile contacting a public liability lawyer like Slater & Gordon, Maurice Blackburn & Co etc.Attached is a Slater & Gordon report on a supermarket slipping accident.

 

I don't think there's a time limit to make a claim, but there have been a lot of fraudulent "slip" cases, some featured on Current Affair where people made a profession of it, so you would need good proof, but the lawyer would give you details on that.

Thanks Turbo. You`ve supplied a bit more information for everyone! I posted the case just as an example.

 

I`m a believer in personal responsibility but in my granddaughters case, I believe the shoping center didn`t fulfill it`s duty of care and was negligent.

 

Our granddaughter was training to become a paramedic. She`d passed all the requirements but due to the injury she couldn`t carry on so she decided to seek legal advice and claim compension.

 

It`s taken 4 years so far and she will eventually receive compensation but who knows when.

 

Frank.

 

 

[turboplanner]

About the 7th year from my experience

 

 

[Phil Perry]

I didn't know,. . . . because nobody told me,. . . .that we had a Health And Safety Inspection at our airfield during last week,. . . ( I was away ) and the people came up with a suggestion that we make some MORE warning signs to ( Hopefully ) ensure that parents keep control over their small children at all times. . .( Yes, I know,. . .I've mentioned this before,. . . ) A board meeting decided that we had to act, since the outgong management had removed all of our safe fencing because it wasn not "Pretty" ie, it was made from standard steel scaffolding tubes, erected at a height above ground of four feet six inches. . .( What's that in French measurements,. . .er,. . . 1370 mil 'Ish ) and covered with strong chicken wire.

 

The Old management decided that this looked a little too "Parochial" and replaced it with the plastic crap you see in the attached pic.

 

The only problem with the fancy white uPVC stuff, is that if you lean on it, it bends, and it doesn't prevent a dog,. . .or small child from climbing under or through it, and the Gaps left, are only covered by a piece of chain, hooked at one end.. . . this does NOT prevent unauthorised access to the airside reservation by kids and pets.

 

The outgoing management were not what I would call "Flying" orientated people, they made microlight flying suits and kneeboards etc,. . . and had NO experience of running an airfield at all.

 

You TRY to advise,. . . . but I got a flea in my ear and was told basically to stick my head up a dead bear's bum. . . .

 

Well,. . .we are stuck with this fencing, and if we wanted to extend it, each vertical pole ( 120mm square uPVC )costs £37,50 pUS 20% vat. I don't want to Know what the 2 metre cross planks cost. . . .

 

Doncha just LURVE 'Elf 'N' Safety ? ? ?

 

 

 

[turboplanner]

Here there would usually be someone on the Committee familiar with risk management, who would assess that dogs and children under the age of 7 (who are legally non-cognisant) would be the biggest risk, so would probably specify a swimming pool fence. These are now mass produced, are about 1700 mm high with flat steel top and bottom and vertical tubes close enough that an infant can't fit through. Gates have a concealed pull latch that only adults can reach, and they are usually powder coated, so tyhey are attractive, cheap, and the black ones blend in with the surrounds quite well.

 

Having said that:

 

(a) I think there's a fence nearly identical to yours, and just as ineffective very close to home

 

(b) Following 9/11 the Australia security reaction was wildly inaccurate and we have quite a few two metre high chain mesh fences stretching a few hundred metres each side of the country terminal, then ending. Please don't tell any terrorists that they can walk around the ends.

 

 

[Phil Perry]

Here there would usually be someone on the Committee familiar with risk management, who would assess that dogs and children under the age of 7 (who are legally non-cognisant) would be the biggest risk, so would probably specify a swimming pool fence. These are now mass produced, are about 1700 mm high with flat steel top and bottom and vertical tubes close enough that an infant can't fit through. Gates have a concealed pull latch that only adults can reach, and they are usually powder coated, so tyhey are attractive, cheap, and the black ones blend in with the surrounds quite well.Having said that:

 

(a) I think there's a fence nearly identical to yours, and just as ineffective very close to home

 

(b) Following 9/11 the Australia security reaction was wildly inaccurate and we have quite a few two metre high chain mesh fences stretching a few hundred metres each side of the country terminal, then ending. Please don't tell any terrorists that they can walk around the ends.

I Think that type of fencing you describe is also available here,. . .or something very similar, but it is a cost issue at the moment, the Club Committee is responsible for basic maintenance of the site, and there is a new Board of directors, who have, between them ( 5 Pilots ) bought the lease. THEY are responsible for all financing.

 

As you can see from the pic, that fence is simply not fit for purpose and is merely decorative, so it will have to be replaced as soon as possible. The signs, along with the "Stop engine if you see a loose dog / child rule" are going to be a short term stopgap measure only AND. . . .we can't fence the ENTIRE site, as this would create an obstacle for an over-running landing aircraft. . . so you can also walk around the "Ends"

 

Phil

 

 

[farri]

Not flying related!....... Food for thought?.............. Maybe!

 

Public servant sex compo case heads to High Court

 

By Elizabeth Byrne

 

 

RELATED STORY: Woman hurt during work trip sex keeps payout

 

 

RELATED STORY: ComCare may appeal work trip sex injury compo

 

 

 

 

RELATED STORY: Public servant wins compo over work trip sex injury

 

 

 

 

 

 

 

 

MAP: ACT

 

 

 

 

 

The High Court has agreed to hear a case involving a public servant who is claiming compensation for an injury she received while having sex on a work trip.

 

Insurer Comcare is challenging the woman's entitlement to compensation.

 

She was hurt when a light fitting fell on her while she was having sex in a motel room in regional New South Wales.

 

She had travelled to the town as part of her job for a Federal Government agency.

 

Comcare initially allowed the claim, but then reversed the decision.

 

After a long legal battle, the full bench of the Federal Court eventually ruled the woman was entitled to the claim because she was injured at accommodation where her employer had encouraged her to stay.

 

Comcare is challenging that, asking the High Court to clarify whether the Federal Court's ruling was sufficient in determining what falls within the course of employment.

 

Frank.

 

 

[turboplanner]

I don't think there were any aspects of public liability in this one, and this seems to be a live case so we shouldn't get into the ins and outs of it.

 

However, Comcare's action in going to the High Court to determine what falls within the course of employment sounds prudent.