Public Liability

[turboplanner]

You haven't been paying attention M, we have ATO's, management systems, manufacturing safety standards, ongoing auditing.........and a steadily reducing toll.

 

 

[dazza 38]

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

I love stupid people, they keep me entertained.

 

 

[SDQDI]

I love stupid people, they keep me entertained.

Yep me too Which has me worried now because I find myself funny sometimes:keen:

 

 

[M61A1]

You haven't been paying attention M, we have ATO's, management systems, manufacturing safety standards, ongoing auditing.........and a steadily reducing toll.

Well aware of what's going on. all we have is a bunch of parasite industries sucking the life out of industry, and a bubble wrapped society.....it's not something to be proud of.

 

 

[turboplanner]

So I take it if you went up with another pilot who left you as a quadriplegic, through proven negligence, you're happy enough to finance the 6 million or so yourself?

 

 

[M61A1]

So I take it if you went up with another pilot who left you as a quadriplegic, through proven negligence, you're happy enough to finance the 6 million or so yourself?

I fail to see what that has to do with what I said. We will soon be a 3rd world country because we are over regulated and have changed the rules so to speak, to make dead horses competitive. In regard to this question, if I'm a paying customer, the rules are different than if I was a willing passenger in a rec aircraft. I have no problem with compensation for genuine willful negligence, but I personally believe that the concept of "negligence" in today's law is way off the mark. The idea that you need 6 million to deal with quadriplegia is absurd, and a good indicator that it is just another parasite industry, that sucks the life out of anyone with a dollar.

 

 

[turboplanner]

I fail to see what that has to do with what I said. We will soon be a 3rd world country because we are over regulated and have changed the rules so to speak, to make dead horses competitive. In regard to this question, if I'm a paying customer, the rules are different than if I was a willing passenger in a rec aircraft. I have no problem with compensation for genuine willful negligence, but I personally believe that the concept of "negligence" in today's law is way off the mark. The idea that you need 6 million to deal with quadriplegia is absurd, and a good indicator that it is just another parasite industry, that sucks the life out of anyone with a dollar.

The precedent law we work on comes from 1932

 

The rules are no different whether you are a paying customer or a passenger in a rec aircraft; the case is based on the same precedent.

 

The precedent of negligence is based on negligence where there was no intent to hurt the plaintiff

 

If it was wilful you are prosecuted under the crimes act, so if someone dies it would usually be manslaughter

 

"I personally believe that the concept of "negligence" in today's law is way off the mark"

 

As I mentioned, the Donghue v Stevenson precedent dates from 1932. No one has made anything up except people who don't know the law.

 

Awards are carefully assessed based on evidence - you can't just get $6 million because you feel like it, you have to provide evidence of costs.

 

 

[Oscar]

I fail to see what that has to do with what I said. We will soon be a 3rd world country because we are over regulated and have changed the rules so to speak, to make dead horses competitive. In regard to this question, if I'm a paying customer, the rules are different than if I was a willing passenger in a rec aircraft.

No, that's just not good enough.

 

We have standards - at varying levels - for 'recreational aviation' aircraft. 24-reg and 55-reg. aircraft have specific standards that exceed 19-reg., for instance. If I as an 'informed' passenger choose to step into a 19-reg aircraft, I do so in the knowledge that my judgement of the capability of the builder and maintainer is ultimately my responsibility. However, if I step into a 24 or 55-reg aircraft, I have a 'reasonable' expectation that that aircraft meets a higher standard. That is what the bloody standards exist to provide - an expectable level of safety. If the PIC has an RAA Certificate, an RPL or a PPL, I have a 'reasonable' expectation of a specific level of competence. I don't have the right to expect GA or RPT safety standards, but neither am I de facto 'abandoning all hope' if I choose to step into a 24 or 55-reg RAA aircraft.

 

The precedent of recreational aviation being an 'inherently dangerous activity' as a blanket legal description of participation in any level of RAA aviation fundamentally destroys the enforcement of standards and the defence of operation in accordance with standards. The charge of - or defence against - negligence is in practical terms defined by non-observance of or adherence to, accepted standards. No Court would, for example, find a defendant guilty of negligence for failing to warn a Pilates class about the possibility of Hippopotamus attack in Iceland - unless there was a specific standard that required such a warning. If there WERE - and an Icelandic Pilates class participant were injured in a Hippopotamus attack - then negligence is a reasonable judgement.

 

We all make assumptions about things every day that can injure us and we all expect that if these assumptions are legally 'reasonable', there should be some protection from the negligent action of others. To say that that is reducing us to a 'third world country' status is just complete bollocks.

 

 

[Dafydd Llewellyn]

I agree entirely with Oscar; I've spent a professional lifetime ensuring that aircraft designs comply with relevant safety standards - that's what Type Certification is all about. The safety standards are, in the main, international, but empowered by Federal legislation (See CASR 23 thru 35). I find it irritating beyond measure that this effort is largely beyond the comprehension of the legal profession. It also annoys me extremely that the ADRs for motor vehicles are declared to be Product Safety Standards for the purposes of the Trade Practices Act, but aircraft certification standards are not.

 

There is a vast inconsistency between the law and the factuality of compliance with prescribed standards. It is this inconsistency that is driving our manufacturing industries backwards. An aircraft manufacturer spend millions to get his product fully developed and certificated, and what does this gain him? The right to be the target of litigation.

 

Think about it.

 

 

[dodo]

The legal profession, and general public don't understand because it is too bloody complicated. Or to put it another way, the aircraft design and manufacture may be "fit for purpose", an the standards themselves, but the accompanying legislation is NOT.

 

Unnecessary complexity cause confusion, and then causes costs and un-antiicpated consequences.

 

dodo

 

 

[M61A1]

We all make assumptions about things every day that can injure us and we all expect that if these assumptions are legally 'reasonable', there should be some protection from the negligent action of others. To say that that is reducing us to a 'third world country' status is just complete bollocks.

My main beef is in regard to what is considered reasonable, Turbo has listed a few cases there where people were awarded compensation for what I consider realistically completely unreasonable, which forces an organisation to make tighter rules, until the next claimant finds something to blame someone else for, then tighter rules and the ever decreasing spiral continues until they just shut the whole lot down because it's too much effort and costs too much. Industry in this country is slowly but surely buckling under the burden and a lot can no longer compete, eventually we will be a risk averse bunch of uneducated fools that produce nothing, might as well be a 3rd world country. There needs to be a balance, and in my opinion, the scales are pegged out one way.

 

 

[M61A1]

There is a vast inconsistency between the law and the factuality of compliance with prescribed standards. It is this inconsistency that is driving our manufacturing industries backwards. An aircraft manufacturer spend millions to get his product fully developed and certificated, and what does this gain him? The right to be the target of litigation.

Think about it.

Agreed

 

 

[turboplanner]

I have never seen a case, and the ones I check up on are related to the transport industry and I am at the technical end of that, turn on any esoterical standard mentioned above, but when detailed technical information is required to be examined, it is usual for qualified Expert Witnesses to be brought in by each side. I repeat again, the law is based on a very simple principle which decided whether a Duty of Care was owed to someone and whether that Duty has been breached.

 

In general terms, if there is a known Standard and you complied with it, that's a good thing, so the Australian Standards are a rich source for defence, if there is a "cutting edge" procedure for doing something and you comply with it that's a good thing.

 

In my experience, the tiers of safety which Oscar mentions are likely to be given weight......if someone brings them up.

 

Daffyd, your beef is more directly related to transport laws; the Australian Design Rules were introduced to improve safety and are not related to public liability. They cover physical safety, as in reducing crashes and injurues in crashes, and medical safety as in reducing the volume of cancers from NOx and Particulates.

 

It's all the more odd that aircraft manufacture doesn't have a set of Australian Design Rules because the ADR system, and aircraft manufacure are administered by the same Department, however there would be no Recreational Aircraft building just as there's no longer any recreational car building, or special designs by people like myself because of the huge testing and certification cost.

 

 

[M61A1]

I have never seen a case, and the ones I check up on are related to the transport industry and I am at the technical end of that, turn on any esoterical standard mentioned above, but when detailed technical information is required to be examined, it is usual for qualified Expert Witnesses to be brought in by each side. I repeat again, the law is based on a very simple principle which decided whether a Duty of Care was owed to someone and whether that Duty has been breached.In general terms, if there is a known Standard and you complied with it, that's a good thing, so the Australian Standards are a rich source for defence, if there is a "cutting edge" procedure for doing something and you comply with it that's a good thing.

 

In my experience, the tiers of safety which Oscar mentions are likely to be given weight......if someone brings them up.

 

Daffyd, your beef is more directly related to transport laws; the Australian Design Rules were introduced to improve safety and are not related to public liability. They cover physical safety, as in reducing crashes and injurues in crashes, and medical safety as in reducing the volume of cancers from NOx and Particulates.

 

It's all the more odd that aircraft manufacture doesn't have a set of Australian Design Rules because the ADR system, and aircraft manufacure are administered by the same Department, however there would be no Recreational Aircraft building just as there's no longer any recreational car building, or special designs by people like myself because of the huge testing and certification cost.

It's ok Turbo, you don't need to keep on trying to explain the technicalities of it, I do understand how it works. All I'm saying is that I don't believe what we currently have is fair or just. You appear to believe that the current state of affairs is a good thing, I think that it's woeful and that we're going downhill.

Apply your last paragraph to any sport or industry, and you have the reason why it kills things off, we don't need it in rec aviation, if people want certification then GA is where they need to go.

 

 

[turboplanner]

I've been talking about Public Liability, others have raised Certification. With certification I made the point there would be no RA; just keep pushing the safety envelope with crashes, keep providing public evidence of being hostile to and disregarding of what safety standards there are and people will notice and call for it, quite rightly stating what Certification did for the car industry fatality rate

 

 

[Dafydd Llewellyn]

The legal profession, and general public don't understand because it is too bloody complicated. Or to put it another way, the aircraft design and manufacture may be "fit for purpose", an the standards themselves, but the accompanying legislation is NOT.Unnecessary complexity cause confusion, and then causes costs and un-antiicpated consequences.

 

dodo

Yes, it is bloody complicated; that is largely a consequence of two things: Firstly, we are still in the middle of a complete re-write of our legislation, to bring it into some sort of alignment with the rest of the World; and there are too many cooks involved. New Zealand made a far better job of it.

Secondly, we have had a policy, since 1985, of automatic acceptance of overseas aircraft certification, at least from a defined set of "recognised countries". That, plus the need to accommodate what had gone before, is what has caused such a plethora of different categories in CAO 95.55; when the FAA introduced "Primary category", we had to bring in parallel legislation to enable us to accept American primary category aircraft. Similarly, when the FAA introduced LSA category, we had to add that to our legislation. We already had CAO 95.10, CAO 95.25, CAO 101.28 and CAO 101.55 aircraft; and then the European manufacturers started exporting stuff that was none of the above, so that had to be added, too. We gained an experimental category as the end result of decades of lobbying by SAAA, AOPA and others - so CAO 95.55 got -19 class also.

 

By contrast, apart from FAR Part 103 - which is fairly much equivalent to CAO 95.10 - the FAA does NOT accept anything unless it gets an FAA Type certificate; and everything gets an N-number registration, and it ALL operates under FAR Part 91, and you need a standard pilot licence to fly ANYTHING. Yes, it's simpler to understand - but there's no scope for anything like the RAA, GFA, HGFA, etc. Do you really want that sort of simplification? On the whole, I suspect we'll have to go that way to tidy-up the current mess - but it would mean scrapping a lot of existing aircraft, and a lot of recreational pilots would have to get an RPL in a hurry. The alternative is to do enough study to understand what we currently have.

 

 

[turboplanner]

http://www.heraldsun.com.au/news/victoria/building-giant-grocon-and-sign-firm-hit-with-seven-criminal-charges-over-fatal-swanston-st-wall-collapse/story-fni0fit3-1226898899171

[turboplanner]

Chain of Responsibility fine

 

http://www.heraldsun.com.au/news/breaking-news/trucking-giant-slapped-with-record-fine/story-fni0xqi4-1227010421573

 

Transport owner charged with manslaughter for gross negligence

 

http://www.adelaidenow.com.au/news/south-australia/trucking-proprieter-peter-francis-colbert-54-charged-with-manslaughter-over-happy-valley-crash-that-killed-robert-brimson/story-fni6uo

 

 

[turboplanner]

Recreational Manslaughter charge

 

This case will be worth watching by Instructors, Airfield owners and Pilot's in charge of an aircraft regarding the process, defence, and decision of the Court, and potential PL claim afterwards, which is likely to spread out over several years.

 

http://www.theage.com.au/victoria/telstra-young-businesswoman-of-the-year-torie-mackinnon-charged-with-manslaughter-20140903-10brau.html

 

 

[turboplanner]

12 1/2 years for manslaughter is the highest penalty I've seen for culpable negligence - nearly double the previous cases I've looked at.

 

http://www.abc.net.au/news/2015-08-21/trucking-boss-peter-colbert-jailed-for-drivers-death/6714506

 

 

[Geoff13]

Yes read his history and comments to the court and others related to the court. Probably deserved what he got. As owners and employers we have a responsibility to our drivers and the general public to provide a safe environment. We all know that mechanical things can break down but it is how we rectify the issues that matter. To say after the event that (I wouldn't have hit that post had I been there) is not really the way to manage a critical mechanical failure.

 

 

[Ada Elle]

By contrast, apart from FAR Part 103 - which is fairly much equivalent to CAO 95.10 - the FAA does NOT accept anything unless it gets an FAA Type certificate; and everything gets an N-number registration, and it ALL operates under FAR Part 91, and you need a standard pilot licence to fly ANYTHING. Yes, it's simpler to understand - but there's no scope for anything like the RAA, GFA, HGFA, etc. Do you really want that sort of simplification? On the whole, I suspect we'll have to go that way to tidy-up the current mess - but it would mean scrapping a lot of existing aircraft, and a lot of recreational pilots would have to get an RPL in a hurry. The alternative is to do enough study to understand what we currently have.

If we had an intermediate medical (between the nothing of RAA and the class 2) such as the UK NPPL medical, is there a problem with doing this?

 

My wishlist would be:

 

- 300-750kg (so anything bigger than 95.10, up to JAR-VLA)

 

- NPPL style medical

 

- Canadian style owner maintenance

 

- RPL with all endorsements available

 

 

[Guest Andys@coffs]

If we had an intermediate medical (between the nothing of RAA and the class 2) such as the UK NPPL medical, is there a problem with doing this?My wishlist would be:

 

- 300-750kg (so anything bigger than 95.10, up to JAR-VLA)

 

- NPPL style medical

 

- Canadian style owner maintenance

 

- RPL with all endorsements available

Because history tells us that your initial description of "something between nothing and class 2" would ultimately end up being CASAfied to something about 30% more complex than a class 2, enable rights about 90% less than a class 2, about 70% more expensive than a class 2 and most would probably need to travel about 3 days to see one of the multitude of 3 Dr's that CASA would accept as being qualified..........

 

It might be an age thing but my alarm bells go off when CASA uses the word simple to describe anything they do...........

 

Also, as you in your industry are always keen to say "Evidence based practise..." What problem, which must be factually shown to exist, does such an approach actually fix, showing by evidence how the fix actually fixes? Are we having medical related crashes on a regular basis?

 

Andy

 

 

[Ada Elle]

Because history tells us that your initial description of "something between nothing and class 2" would ultimately end up being CASAfied to something about 30% more complex than a class 2, enable rights about 90% less than a class 2, about 70% more expensive than a class 2 and most would probably need to travel about 3 days to see one of the multitude of 3 Dr's that CASA would accept as being qualified..........

Which is why I suggested the CAA NPPL standard (GP certified, commercial drivers license)

 

Also, as you in your industry are always keen to say "Evidence based practise..." What problem, which must be factually shown to exist, does such an approach actually fix, showing by evidence how the fix actually fixes? Are we having medical related crashes on a regular basis?

I don't have any. I'm going to give you a hypothetical, though:

 

- two weeks after heart attack, with reduced contractility (pumping strength of the heart), not enough to cause problems at sea level (or even be detected)

 

- the hypoxia at 10000ft may trigger a combination of cerebral hypoxia, myocardial hypoxia, or myocardial irritability

 

- poor decision making, and or brief periods of blackouts, may ensue

 

Such a person does not pass the unconditional drivers license requirements. RAA, however, has a softer medical standard than driving! You don't need an unconditional license to be an RAA pilot. There is no requirement that you fly within the restrictions on driving that you have. So someone who is restricted to driving on local roads only, is allowed to fly around Australia.

 

Pipistrel state, without producing the data, that their motor-glider registered aircraft have higher crash rates than the same aircraft flown under powered airplane registration, and suggest that the laxer medical standards are the cause of this.

 

 

[Guest Andys@coffs]

I can only speak for myself when I say that if I'm told by my GP or specialist that I must restrict or change my driving in any way, then I wont be flying without discussing it specifically with my Dr and getting it documented on my medical records.......if any accident occurred then insurance company will, as a matter of normal insurance company ducking and weaving, want to understand if you and or your Dr believed you were medically fit enough to fly....

 

In my case, as a long term sufferer of IDDM type 1 , these are very real downstream realities for me at some stage......

 

would I as a type 1 IDDM pass the test you are suggesting? (ignoring anything else for this hypothetical cause we don't both know what we don't know) or is that sufficient on its own to restrict?