Public Liability

[farri]

Hypothetical.

 

John and Jane, stay in accommodation that their employer has encouraged them use, so they decide to take advantage of the situation and make love. While they`re hard at it, a light fitting falls on jane and she is injured. Jane seeks workers compensation and it is granted.

 

Can it not be argued that the accommodation owner didn`t have the light fitting secured in such a manner that it couldn`t fall and cause injury,thereby, making it a "Public Liability" issue also.

 

Frank.

 

Ps, I`m not trying to stir! Last night I discussed this with my son-in-law who employs 75 people!....Just interested.

 

 

[turboplanner]

Looking at it form a PL perspective, whether they have been sent there, or are just travelling together is irrelevant.

 

From a PL perspective the Motel has to owe them a duty of care and that duty of care must be breached.

 

So if the Motel owner had been cleaning the lights that day and hadn't fully screwed a fitting in, then he would have been screwed.

 

If she had just lashed out with an arm or a leg and knocked over the bedside lamp, or pulled it out of its mounting, that's a reasonable use the Motel owner could forsee. an unreasonable use; the Motel owner couldn't expect to forsee.

 

It must happen often though because I see they all mount their TV's way up on the wall beyond limb arc.

 

As far as I can see this case is just someone trying to get their medical costs paid by claiming the incident was a work related one, and the motel was a workplace.

 

This is not legal advice.

 

corrected by Mod. see post #79

 

 

[facthunter]

farri, can I have a job with your son in law? I promise to check the light bulbs . Nev

 

 

[turboplanner]

.....should read "an unreasonable use; the Motel owner couldn't expect to forsee"

 

Sorry, caught out by the time limit then the thread disappeared off recents on the Iphone version

 

 

[kaz3g]

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.

The limitation period for torts (civil wrongs) is generally 6 years from the date on which the cause of action is known. Different States have different rules regarding personal injury claims and most now require a percentage measure of permanent disability to open the litigation door.

 

Transport accidents and work related injuries have their own regime.

 

Kaz

 

 

[turboplanner]

http://www.news.com.au/national-news/queensland/woman-sues-doctors-over-partner8217s-death-during-joy-flight-crash-with-pilot-barry-hempel/story-fnii5v6w-1226667749832

 

This aviation case is a good example of how public liability cases often don't go the way we would at first expect.

 

Those who have not brought themselves up to date with the post-prescriptive era, and still that the buck stops with the PIC, should follow this case, since in their eyes Barry Hempel's estate would have been the obvious target.

 

It's important to see why CASA would not be involved in this case, and that is shown on other sites.

 

This case will be of particular interest to CFIs and FIs who are in the same Chain of Responsibility as medics are.

 

Note the long time frame - the first Doctor was involved 8 years ago, the second 7 years ago and the crash 5 years ago

 

 

[aro]

I suspect that the reason the doctors are being sued is not because they are any more responsible than CASA or Barry Hempel, but because they have insurance companies behind them who are perhaps more likely to settle.

 

 

[turboplanner]

Everyone's insured to about the same level these days; they've had 25 years to learn.

 

There's a slight hint in the story.

 

 

[aro]

Maybe it's my prejudices, but I suspect CASA would fight a case harder than an insurance company. I suspect CASA would be happy to fight in court, with as many taxpayer funded lawyers as required, whereas an insurance company would be more inclined to settle.

 

I can imagine there could be difficulties suing the estate of somebody who has been dead 5 years. Your first battle might be finding an insurance company that would admit to covering liability for the case.

 

If you were the lawyer, and had the choice to sue CASA, Barry Hempel's estate or the doctors, which do you think is most likely to deliver the best result for your client?

 

 

[turboplanner]

It's a little early to start dissecting this case because it hasn't started, so facts will come out.

 

Also the Coroner has not yet handed down his findings, and there could be more claims after that

 

However, based on CASA's information to the ABC's Australian Story "The Men Who Fell from the Sky", the pilot did not have a Commercial licence, so you probably wouldn't be going after CASA for a breach of duty of care.

 

Since it's very costly to sue someone, and you'll finish up paying most of the defendant's costs if you lose, it just doesn't make sense to target someone just because they are rich or available - they usually have the best lawyers anyway. From the pattern I've seen over the past 25 years, the scattergun approach is used to get as many people as possible into the net to begin with, but it usually settles down to those who clearly breached a duty of care as the finalists.

 

 

[turboplanner]

Sorry, that title should read "The men who fell to earth"

 

 

[turboplanner]

Some time back there was an inference on this forum that there had been a case in NSW which had set a new precedent over the Donoghue and Stevenson public liability precedent, and if you had the warning plaque on your dash you couldn't be sued for negligence, or words to that effect.

 

Disclaimer: I’m not a lawyer, so the information here is based on my own experiences, and is not necessarily legally correct.

 

Following the question below, I checked out the two cases mentioned, and believe they are both routine PL cases,and are not in conflict with Donoghue vs Stevenson. In both cases prior risk warning is dealt with, but in both cases the base duty of care requirement is also dealt with, and in both cases the defendant was found neither to have breached a duty of care to provide a warning of risk, not in operations.

 

Dafydd Lewellyn: "What of the precedents set by NSW DC 11 - Noel Campbell V Rodney Victor Hay and Echin Vs STCGC ?"[/

NOEL CAMPBELL V RODNEY VICTOR HAY

 

http://www.austlii.edu.au/cgi-bin/s...m=0&synonyms=0&query=title(Campbell and Hay )

 

Briefly the student (Campbell) was flying a Jabiru under control of the Instructor (Hay) when the engine ran rough. Hay took over, the engine stopped and he made a forced landing where the aircraft hit the side of a gully injuring Campbell.

 

Having read the transcript, I agree with the decision and in my opinion this is not a new precedent.

 

I agree the plaintiff was not injured by any negligence of the defendant.

 

If the instructor had been found negligent in relation to the injury, but the Court had let him off because of warning signs, briefing or waiver, then I agree that would have been the new precedent previously posted by someone on this site.

 

The judge’s conclusion reads: “ For completeness I find the harm suffered by the Plaintiff which is the subject of these proceedings resulted from the materialisation of an obvious risk of the dangerous recreational activity in which he was engaged.”

 

There are two streams here:

 

Perhaps like some other recent crashes, if the Instructor had failed to get the aircraft trimmed for glide and had speared straight down he might have been found to be negligent, and the case would have succeeded.

 

However he made a successful forced landing which they both survived, which he was trained for, and hitting the gully was a by-product of the activity, so he was not negligent in relation to the injury.

 

To simplify the separation, imagine a person answers an ad from a Rock Climbing business, and is given a Warning that he engages at his own risk etc.

 

Despite the warning/waiver the owner/employees of the Rock Climbing company have a Duty of Care to ensure all ropes have the correct strength and have not deteriorated. If he subsequently falls and it is found the rope capacity was less than his weight the owners, might be sued for negligence.

 

If a rock, unrelated to the climbing activity falls and hits the climber on the head, then the issue can be divided into:

 

Was he warned there was a hazard?

 

(a) If not the owner may have failed his duty of care to warning of a hazard and a claim may be successful

 

(b) If so, then the injury was related to the hazardous nature of rock climbing and that seems to be the decision of this case.

 

Conclusion: This does not represent a new precedent; If you are negligent, even if you have provided a warning, plaque, waiver etc. this case doesn’t help you.

 

Echin v Southern Tablelands Gliding Club 2013

 

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWSC/2013/516.html?stem=0&synonyms=0&query=Echin

 

Legislation: Civil Liability Act 2002

 

This is an extract from the transcript relating to claim 1(b)

 

1. Echin, a club member was injured when a glider he was flying in 2008 collided with power lines as he was coming in to land at the club airstrip. He sued the club for negligence.

 

4. There were high tension lines close to the eastern boundary

 

5. Runways were 06/24 main, 12/30 secondary

 

11. On the last flight he was instructed to make a “hangar landing” on 30

 

13. He flew the downwind leg largely west-east, crossing the power lines, turned south on base,

 

turned west on final, which necessitated crossing the power lines for a second time.

 

14. Time 3:30 pm. Echin said he was flying towards the sun which was low. When he thought he

 

had overflown the power lines he deployed the dive brakes. Within a second or two he

 

collided with the lines and fell approximately 100 feet to the ground.

 

25. He gave 8 reasons why the Club was negligent, including 1(b) Failing to instruct the plaintiff

 

adequately or at all as to the danger associated with attempting to use runway 30 for landing.

 

34. The Plaintiff not only was aware of the obstruction created by the power lines but said that he

 

had become aware of it during his training. Further, as his evidence set out above shows, he

 

was instructed how to deal with such obstructions, and he had landed safely on that runway

 

over the power lines previously when flying solo.

 

The Defendant was not found to have been negligent on 1 (b), the prior warning, or of the other 7 claims.

 

The amount claimed by the Defendant was $750,000.00 which presumably was for substantial medical costs, so he didn’t get that, and he was also ordered to pay the defendant’s costs.

 

This case shows that the constant claims of “ambulance chasers” “picking the lowest fruit” and other favourite anti safety stories just don’t hold up in real life where to win a claim you have to prove negligence, and if you can’t do that you can be much worse off afterwards.

 

It is also not a precedent for a warning or sign on the dash allowing a defendant to no longer be subject to claims of negligence. He was not found to have breached his duty of care on any of the other seven claims.

 

DUTY OF CARE TO WARN PEOPLE OF A RISK

 

In both these cases two elements were discussed:

 

(a) Whether the defendant was negligent by failing to warn of the elevated risk of the operation.

 

(b) Whether the defendant was negligent in the event which caused the injury.

 

In both cases the plaintiff failed to prove negligence in both (a) and (b)

 

So these cases were routine Public Liability, no new precedents.

 

What they do is show how the system deals with the obligation to make someone aware of risk.

 

The case: Berryman v Joslyn; Wentworth Shire Council v Joslyn [2004] NSWCA (23 April 2004) spells out the significance of providing a warning.

 

In this case a couple had been at a party through the night, decided to go into Mildura for breakfast and on the way back to the party the male started falling asleep, so the unlicensed female took over and rolled the car on a sharp, unsigned bend, causing serious back injuries to the male.

 

The case showed that regardless of the condition of the plaintiff the Shire had a Duty of care to erect a “curve” sign on that road to warn people of the elevated risk.

 

The cost to the Council was $300,000.00 AFTER insurance, which also is a lesson about adequately insuring.

 

This is why organizations such as road authorities have protocols for erecting road signs, why yellow cones are put out after a spillage in a supermarket, why there are warning signs near entrances, why you sign a waiver to enter at your own risk, and why when you buy an electric drill these days you can’t use it unless you’ve torn the warning label off the trigger.

 

The important thing to understand here is that this is just a warning that you will be at higher risk, NOT that you have no claim if the owner/operator is negligent.

 

For example:

 

(a) We lost one case where a club had advertised a “Family Night” and failed to add the warning, enter at own risk. A child was injured and the father claimed he had no idea the event would be dangerous, he thought he was going to something suitable for the family. We hadn’t carried out our duty of care to warn him.

 

(b) We lost another one when a child was injured when, after the plaintiff admitted to a TV channel that he hadn’t made a public liability claim because the programme said “Motor Racing is dangerous, enter at own risk” and we had failed to say words to the effect “unless the promoter has been negligent”

 

So if you don’t have a warning system, you could be found negligent, but if you do, including a notice on the dash, this just warns the person that there is a higher risk level than an airliner, but doesn’t absolve you from a claim for negligence such as an operational blunder or failing to maintain the aircraft correctly.

 

RECOMMENDATION: This is just a very brief outline from my perspective. For those who may have been tempted by the "Precedent" posts not to insure or to reduce insurance, I'd recommend you spend about an hour's flying cost and sit down with a lawyer specialising in Public Liability so you can adequately protect yourself.

[Dafydd Llewellyn]

Everyone's insured to about the same level these days; they've had 25 years to learn.There's a slight hint in the story.

No; professional liability insurance became unavailable to CAR 35 engineers around 2001 or thereabouts. The QLD Professional Engineers registration Act had to be revised as a consequence. The practical effect of insurance is that it makes one an attractive target. The ONLY effective defence is to be not worth sueing. Is this a recipe for a developing society? I don't think so.

 

 

[Dafydd Llewellyn]

I suggest you look at Division 5 of http://www.austlii.edu.au/au/legis/nsw/consol_act/cla2002161/ - and see whether there is parallel legislation in other States. This Act and the precedents referred-to were the reason that the Sting case was settled, despite strong evidence of both negligence and fraud. I don't consider this justice. The provisions in the NSW Act were introduced because insurance was either not available or not practical for a number of common recreational activities. This is obvious for activities such as bungee-jumping; but it was not so obviously applicable to activities such as flying training in a type-certificated recreational aeroplane or to gliding, prior to these precedents.

 

I suggest you will find similar legislation in all States & territories. I do not know to what extent the precedents may be applicable outside NSW; no doubt that will be tested in the courts in due course.

 

I am far from suggesting that this situation should be taken as a carte blanche to be reckless; or to ignore a normal duty of care, but it does offer the glimmerings of some relief from the otherwise almost impossible situation of organisations like RAA and FTFs. To what extent CASA's recent volte face on the subject of the SMS reflects the implications of these precedents, is an interesting question, I think.

 

 

[turboplanner]

I'd strongly recommend you check out the difference between professional liability and public liability - two different sets of issues, two different sets of dollar amounts, two different sets of insurance.

 

 

[turboplanner]

Re the Sting case, an engine quit as engines regularly do in recreational aviation, and pilots are or should be trained to make a successful forced landing if an engine quits.

 

Many people were focused on an individual who supplied the engine which might or might not have been faulty, and the Coroner appears to have been given this focus as well.

 

If I had been the plaintiff in a case like this, I would have claimed for the cost of a replacement engine in the State Tribunal from the supplier. The supplier would not have been involved in my public liability brief.

 

If the pilot had failed to make a forced landing from altitude after the engine quit, an event he was supposed to have been trained for and qualified for. I would have run a public liability case, focusing on the training and qualifications of the pilot, the instructor and the administrator, whether there was an SMS in place with an auditing system to ensure all pilots have recency, whether there was an Instructor supervisory level? whether there was a recency regulation in place similar to the existing GA safety regulation, whether there was a log book audit regime with log books clearly indicating safety revision and practice, and so on.

 

 

[Dafydd Llewellyn]

I'd strongly recommend you check out the difference between professional liability and public liability - two different sets of issues, two different sets of dollar amounts, two different sets of insurance.

My point was that insurance is NOT the total answer to liability, and I don't give a damn what kind of liability you're talking about.

 

 

[Dafydd Llewellyn]

Re the Sting case, an engine quit as engines regularly do in recreational aviation, and pilots are or should be trained to make a successful forced landing if an engine quits.Many people were focused on an individual who supplied the engine which might or might not have been faulty, and the Coroner appears to have been given this focus as well.

If I had been the plaintiff in a case like this, I would have claimed for the cost of a replacement engine in the State Tribunal from the supplier. The supplier would not have been involved in my public liability brief.

 

If the pilot had failed to make a forced landing from altitude after the engine quit, an event he was supposed to have been trained for and qualified for. I would have run a public liability case, focusing on the training and qualifications of the pilot, the instructor and the administrator, whether there was an SMS in place with an auditing system to ensure all pilots have recency, whether there was an Instructor supervisory level? whether there was a recency regulation in place similar to the existing GA safety regulation, whether there was a log book audit regime with log books clearly indicating safety revision and practice, and so on.

That's far from the whole story of the Sting case.

 

 

[turboplanner]

My point was that insurance is NOT the total answer to liability, and I don't give a damn what kind of liability you're talking about.

It should only ever be the last resort, and thanks to tens of thousands of people who have put the effort in over the last 30 years with signage, barricades, regulations, training safety management systems and procedures liability claims have dropped to almost zero in some industries.

 

Management also is a fraction of the cost of paying out medical costs, and family support costs, and a lot of companies who used to keep the local medical centre going with daily visits for cuts, fractures, eye injuries etc are reaping the rewards for their efforts.

 

One Mining company, which I won't mention was ridiculed by employees and the neighbouring mining companies for their pedantic adherence to their safety management system, and the extreme level of the management system itself. For example, if an employee drove a ute 20 km around the site to do a job and forgot his safety glasses he had to go back for them even though the job was a five minute one. On one occasion a property owner rode his horse up to the mine office, and was made to lead the horse off the property because he didn't have a safety helmet. A lot of people had a lot of fun ridiculing the company and its employees. Moving forward five years or so, the company now has the lowest downtime and the highest production rate of the three or four similar mining companies in the same district.

 

I've mentioned before that public liability principles are very simple once you grasp the reverse type need for duty of care, and how we were so successful in speedway in reducing insurance claims that we were eventually carrying out audits on US speedways.

 

 

[turboplanner]

That's far from the whole story of the Sting case.

I agree, but I just took an abstract example to make the point that focus on the engine and it's supplier in my opinion went down the wrong track for a public liability claim.

 

 

[Dafydd Llewellyn]

I agree, but I just took an abstract example to make the point that focus on the engine and it's supplier in my opinion went down the wrong track for a public liability claim.

The Sting case was not, in fact, focussed on the engine. Its focus can more correctly be judged by the attention CASA has been giving to the RAA registration of aircraft at invalid MTOW.

 

 

[turboplanner]

The Sting case was not, in fact, focussed on the engine. Its focus can more correctly be judged by the attention CASA has been giving to the RAA registration of aircraft at invalid MTOW.

What was brought up on this site was that this NSW case provided a new Precedent, and that means a new decision which overturns or take over from an existing precedent. In these two cases when you read the transcripts, neither is a precedent.

 

So I want to make it clear I was only addressing the legal aspect.

 

Every public liability case seems to get a life of its own with several differing paths such as:

 

1. Even though the potential defendant might be transparently guilty of negligence, the potential plaintiff decides not to sue, for whatever reason, not the least being to emotionally move on.

 

2 Even though there might be a glaring case for negligence, the potential plaintiff, being unaware of the peculiar pattern of these cases omits to brief the lawyer on key elements, and this happens on may occasions. Many of these cases rest on a single point - one from my history being that two cables were not connected by the industry standard shackle arrangement and so pulled apart.

 

3. If its an Insurance claim the Insurance Company lawyers will usually be acting for the defendant, not the defendant's lawyers, and they will be deciding the strategy and what's presented to the judge.

 

4. Insurance companies in particular take a financial view (as against those involved out for blood), and quite often will assess the risk of a win vs the cost of a lose plus the plaintiffs legals costs which could be half a million, and despite the fact

 

that the plaintiff has a watertight case, may decide to settle, which leaves the moral issue up in the air for particpants in the same industry.

 

5. Following cases, whether won or lost, many companies, organizations and industries change their operations after being involved in the trauma.

 

None of these or similar are "precedents", just a byproduct of the case.

 

So regarding your comment, if CASA were giving RAA attention regarding the registration of aircraft at invalid MTOW, then that might well be a byproduct of the case and after perhaps a near - miss, prudent action, but not a legal precedent overriding the Donoghue and Stevenson case which in my opinion is elegant in its simplicity.

 

 

[Dafydd Llewellyn]

Thank you for the clarification.

 

 

[turboplanner]

http://www.youtube.com/embed/78RrsepkQKA?rel=0

[M61A1]

http://www.youtube.com/embed/78RrsepkQKA?rel=0

And here in Australia, we protect these sorts people, offer them money and a cuddle to make it all better when they hurt themselves, then blame some poor bastard who had no idea their employees were so stupid. Correction...they may have known that they were stupid, but weren't allowed to sack them due to ridiculous labour laws.