RAAus legal matter

[Guest ozzie]

http://www.raa.asn.au/2012/10/legal-matter/

[robinsm]

I think I have just stopped taking passengers. To many ambulance chasers out there. How can John Guthrie be sued when all people travel in Ultralights at their own risk. There is even a sticker displayed stating that. What about the aircraft manufacturer. Doesn't this open up a can of worms. My membership funds at work again I see.

 

 

[ave8rr]

What might this mean for RAAus IF the case goes the applicant's way??

 

Would members have to cough up or would RAAus have to declare bankrupcy?

 

Is there a way of having passenger/s sign something to say that there will be no proceedings in case of injury or death as a result of their ride in your aircraft prior to taking a flight???

 

 

[turboplanner]

How can John Guthrie be sued when all people travel in Ultralights at their own risk. There is even a sticker displayed stating that. What about the aircraft manufacturer. Doesn't this open up a can of worms. My membership funds at work again I see.

No can of worms, just public liability following the course it has for nearly thirty years. I've provided very detailed explanations several times about this, so there are no surprises here, and you'll find them on the threads.

 

The last paragraph is somewhat troubling and confusing since the insurance money issues seemed to be related to professional indemnity on another case just a few weeks ago.

 

We now can't discuss the accident or the merits of the Guthrie case, but there certainly would be questions about public liability insurance, since it could be expected that from time to time two or three concurrent multi million dollar cases could be running in a high risk sport.

 

 

[turboplanner]

What might this mean for RAAus IF the case goes the applicant's way??Would members have to cough up or would RAAus have to declare bankrupcy?

Is there a way of having passenger/s sign something to say that there will be no proceedings in case of injury or death as a result of their ride in your aircraft prior to taking a flight???

(a) I've promised to follow up on two cases where the Victorian Government appears to have gone straight through the Incorporated Association to the officials, contrary to what they expected.

 

(b) You cannot sign away a Tort; it isn't legal, so if you are negligent you can expect the injured party to claim off you regardless of what you have signed.

 

 

[Admin]

This is the Coroner's Report on the accident:

 

Smith and Guthrie Finding.doc

 

 

[ave8rr]

This is the Coroner's Report on the accident:http://www.recreationalflying.com/Smith and Guthrie Finding.doc

Ian, If remember correctly there was a thread or two running on this when the Coroners report was made public.

There were a number of recommendations made by the Coroner which were discussed at the time however, I don't believe any of these have ever been implemented. In particular Nr 3 in his list at the end of the Report.

 

 

[turboplanner]

It could be that the Coroner's report will have no bearing on this case.

 

 

[facthunter]

CASA should be funding this . they will be co joined to it. If the RAAus has to go bankrupt what point is in that?. Who else would take on the job without being indemnified? The RAAus does actions on behalf of CASA

 

This legal liability has been hanging over the head of this organisation for years. Members would not be affected individually, but perhaps past and present board members are. That is probably the reason that the last 2 resignations occurred but they can speak for themselves.. Nev

 

 

[boingk]

Case as I see it (university level legal experience):

 

1. Guy dies in accident as a passenger.
    
    
   
2. Wife is left with no income and/or minimal estate to support her.
    
    
   
3. Wife decides to sue RAA/pilots estate for damages in hope of financial settlement.
    
    
   

 

 

Full sympathy to the widow, but things happen and some of them are bad. If the pilot was negligent then, sure, damages are appropriate, but if the craft went down due to unforseen and unpreventable circumstances (eg engine failure over rough country resulting in fatal crash) then there shouldn't be any damages awarded as the pilot had the best interested of both himself and his passenger at heart.

 

After writing the above I got curious and searched for "6th January 2007 ultralight aircraft accident". The following link describes the accident:

 

http://www.atsb.gov.au/publications/investigation_reports/2007/aair/aair200700054.aspx

 

It is in an area I am familiar with, and know well both from ground and air experience. I would rate an engine failure in the area as an extremely dangerous event, due to the fact that it is mostly rough country and has very view suitable areas for a forced landing. Depending on their altitude they may have been even more limited - one reason I am not in favor of low cruise altitudes. As it turned out the accident was fatal due to collision with terrain, after an unpredictable failure of the crankshaft in their Rotax 912 series engine. I am saddened, but unfortunately not surprised, by the outcome of that incident.

 

Anyway... onwards and upwards gentlemen.

 

- boingk

 

 

[Guest Howard Hughes]

Just because there is a sticker on the dash does not mean you are absolved of any liability. Even if a passenger signs a waiver, you still have some liability and responsibilty. This is what liability insurance is for, let the insurance company fight it!

 

Apologies: Have just re-read the thread and Turboplanner already had it sussed at post #4!

 

 

[68volksy]

It's an interesting case. Carol was infuriated by the attitude of RA-Aus and the guy who sold the late Mr John Guthrie his aircraft. Having seen some of the correspondence it would me enough to raise the red mist in anyone. For my mind I hope and pray that something will come of this case. Anyone who was around at the time of the Coroners inquest will be aware of what was uncovered and the utter lack of any oversight of the issue by CASA or RA-Aus. Unfortunately the pilot will always be a party to such a proceeding. The crash site was suitable for a forced landing however the force of the impact was for some reason so great that there are a lot of questions unanswered about what really happened. Two pilots both highly experienced on type and they didn't seem to stand a chance.

 

The report that comes out from the ATSB about the ferris wheel accident will no doubt contribute a great deal to such a proceeding also if admissible as there appear to be a lot of similarities in regard to oversight of the "factory built" aircraft by CASA and RA-Aus. I think this might be where they've discovered grounds for a court battle.

 

 

[Captain]

Can someone please explain why this level of fairly basic detail appears to have taken a considerable time to be advised to the members.

 

If it can be advised to the members now, why not earlier and around when the Board learnt of the nature and content of the action?

 

 

[winsor68]

Can someone please explain why this level of fairly basic detail appears to have taken a considerable time to be advised to the members.If it can be advised to the members now, why not earlier and around when the Board learnt of the nature and content of the action?

Anyone still wish to attribute all the trouble to a small group of non or ex board members with a grudge to bare? Just Politics and nothing to worry about?

 

Anyone?

 

Nothing of the facts as I have read them would appear to indicate this has ANY chance of going in favour of Ra-Aus in a court of law... The recent Audit... The Coroners Report of the Sting Acccident...

 

 

[Guest Andys@coffs]

Can someone please explain why this level of fairly basic detail appears to have taken a considerable time to be advised to the members.If it can be advised to the members now, why not earlier and around when the Board learnt of the nature and content of the action?

I believe it was because I raised litegation in general at the AGM and did not accept "we cant talk about it at all" as a final answer, rather I said I dont want the intimate details but as a member who stands to loose I want some info. It was then that we were told that of the insurance portfolios that RAA holds one has been completely consumed in litigation expenses and we are not yet at a point where an agreement or mediated outcome or failing those a judgement can be made. We were told that RAA has some reserves and if the outcome was to find RAA was in some way to blame and as a result was required to provide some form of financial payment to the plantiff then the reserves may well be consumed in doing that. In the event of the worst possible outcome for RAAus the organisation could be bankrupted and wound up, or the members may be asked (not obliged) to put hand in pocket in order to keep RAAus afloat and therefore people flying.

 

In the event of the organisation being bankrupted and wound up longer term there will be an RAA replacment, but in the shorter term Im not sure of peoples ability to fly nor the status of insurance policies...

 

I dont mean to be alarmist, in life its good to know the extreme possibilities knowing that most times the result ends up being somewhere in the middle.....but not always...

 

What isnt said in the briefing is that there are a number of additional legal cases apparently on the sidelines watching to see the outcome from this one. After all litigation is always a decision made as a result of a business case. Why litigate against an organisation if a more mature case might wind up that organisation, equally if, as RAA suggest the case is not with much merit, why spend on a risky venture when some patience might mean a decision can be made against a tighter set of parameters.....

 

I've said it before after the AGM Im of the view that our current insurance circumstances are poor to terrible and I dont understand how we can fix them, and I am of a personal view that if not fixed may well cause us to bleed to death over coming timeframes.

 

Turbo has suggested that the incorporated associations acts are no protection to members and has explained, at least to me, why he believes that, however Im of the view that anyone who believes that they can commit some act and use an incorporated body to try and hide behind will find, that they end up in court themselves and possibly the incorporated body as well. Where that were to occur other members of the incorporated body who in no way contributed to the act or allowed the act would I believe be protected by the incorporation.......I guess at the end of the day we'll see in due course.......The reality for those of us that own Ultralight Aircraft and who cant exercise the right to fly under PPL we have no option but to stay till the last act of this play, unless we want to give up flying and take up some other form of recreation.

 

 

[winsor68]

My reading of the whole situation is that these problems are not new... Would the lawyers in time look to go after Board Members and Staff in this case?

 

 

[Captain]

I believe it was because I raised litegation in general at the AGM and did not accept "we cant talk about it at all" as a final answer, ..........

Thanks Andy.

 

So I assume from your note that you don't think that this extent of disclosure would have happened if you hadn't pursued it at the AGM. Is that correct, as I don't want to put words into your mouth?

 

And based on what you now know, do you feel that this advice to the members should or could have happened earlier?

 

Regards Geoff

 

 

[Gentreau]

Why would the (hypothetical) winding up of RAAus prevent anyone from flying ?

 

Aren't they simply excercising delegated powers on behalf of CASA ?

 

In that case surely the airworthiness and registration of all RAA aircraft would revert automatically to CASA ..... ?

 

 

[fly_tornado]

Full sympathy to the widow, but things happen and some of them are bad. If the pilot was negligent then, sure, damages are appropriate,

Well the courts will decide this, as unfair as the legal system is the RAA can always appeal if they are found complicit.

 

 

[Guest Andys@coffs]

Why would the (hypothetical) winding up of RAAus prevent anyone from flying ?Aren't they simply excercising delegated powers on behalf of CASA ?

In that case surely the airworthiness and registration of all RAA aircraft would revert automatically to CASA ..... ?

It all depends on the timeline you apply. If we are talking short term then at present the high level obligations are delgated to RAA and CASA has a small team that polices the organisations, not sufficient I would have said to do the work of the organisations. Further insurance policies held by RAA which have RAA Members covered would pressumably only apply while RAA itself survived.

 

None of these are insurmountable in the medium to longer term but depending on the timeline and forward warning we had, worst case if it was minimal, then I could see a period of time where we might not be able to legally fly while CASA and/or the members moved to create RAA MkII or as you suggest revert back to CASA based licensing and registration.

 

Again, its all about the timeline, long term no issues, short to medium term I could see issues

 

Andy

 

 

[Guest Andys@coffs]

Thanks Andy.So I assume from your note that you don't think that this extent of disclosure would have happened if you hadn't pursued it at the AGM. Is that correct, as I don't want to put words into your mouth?

 

And based on what you now know, do you feel that this advice to the members should or could have happened earlier?

 

Regards Geoff

Geoff

 

I dont believe the disclosure would have occured if I or someonelse hadnt raised it at the AGM.

 

Im of the view that RAA should at all times act to protect itself, but at the same time disclose as much to the membership as it can while not damaging itself or creating further legal issues for itself.

 

If that had occured from day 1 we would have had a greater amount of disclosure than we have today. In effect the disclosure today tells us nothng more than people who are on these forums regularly would have known (or more accurately have speculated) years ago.

 

The fact that we are only seeing this disclosure now, where as far as I know nothing other than the questions at the AGM have occured, suggests that perhaps not as much disclosure as members migh expect has been occuring.

 

I still cant help but feel that the content of this disclosure is like sticking a coles brand bandaid over a wound that might be as simple as a graze...or it may include a severed artery....we wont know until we bleed out if it was the later....

 

 

[Gentreau]

It all depends on the timeline you apply. If we are talking short term then at present the high level obligations are delgated to RAA and CASA has a small team that polices the organisations, not sufficient I would have said to do the work of the organisations. Further insurance policies held by RAA which have RAA Members covered would pressumably only apply while RAA itself survived.None of these are insurmountable in the medium to longer term but depending on the timeline and forward warning we had, worst case if it was minimal, then I could see a period of time where we might not be able to legally fly while CASA and/or the members moved to create RAA MkII or as you suggest revert back to CASA based licensing and registration.

 

Again, its all about the timeline, long term no issues, short to medium term I could see issues

 

Andy

I understand it would take some time to re-invent RAA, and to re-start licencing and airworthiness activities, but my point was that an RAA registered and approved aircraft which did not require any immediate registration or inspection activity would still be effectively legal, as the powers that make it so rest with CASA and are merely delegated to RAA. The disappearance of the intermediate body should not change the status of an already registered and approved aircraft .... should it ?

 

 

[Captain]

Andys@coffs' date=' post: 248859, member: 94[/email']]If that had occured from day 1 we would have had a greater amount of disclosure than we have today. In effect the disclosure today tells us nothng more than people who are on these forums regularly would have known (or more accurately have speculated) years ago.The fact that we are only seeing this disclosure now, where as far as I know nothing other than the questions at the AGM have occured, suggests that perhaps not as much disclosure as members migh expect has been occuring.

 

I still cant help but feel that the content of this disclosure is like sticking a coles brand bandaid over a wound that might be as simple as a graze...or it may include a severed artery....we wont know until we bleed out if it was the later....

Andy,

 

Members have been complaining about a lack of disclosure for as long as I have been a member here ..... and I say again that I fully understand the need for the Board to consider many items in confidence ..... but based on the manner in which this legal matter has been handled, it looks like the joint is less diclosure minded than ever.

 

And if the other thread about the Treasurer's lack of reporting has any substance, the running of the organisation is more out of control than ever.

 

If this all turns to custard, it seems to me that the members will have grounds to go the Executive.

 

And where is our illustrious CEO (so called) in all this? (I remind all members that through recent months, when all of this has been going down, the CEO has not felt the need to write a jot to report to members in the Magazine).

 

This all looks like it remains as big a disgrace as what went on at and since the infamous Member's Meeting in Temora when the then Treasurer, and now President, apologised and was going to fix it all up.

 

No wonder Don Ramsey pulled the pin and resigned from the Board when he had a good look at all this once he was inside the tent.

 

It staggers me that the majority of members do bugger all about their Organisation when the overall position is deteriorating ....and worse still, they accept the crap about this criticism all being caused by a bunch of stirrers.

 

This entire situation, and the way it is run, remains a disgrace.

 

Regards Geoff

 

 

[Guest Andys@coffs]

I understand it would take some time to re-invent RAA, and to re-start licencing and airworthiness activities, but my point was that an RAA registered and approved aircraft which did not require any immediate registration or inspection activity would still be effectively legal, as the powers that make it so rest with CASA and are merely delegated to RAA. The disappearance of the intermediate body should not change the status of an already registered and approved aircraft .... should it ?

I believe it would.

 

CASA provides a High level delegation to RAA, RAA embodies those high level obligations in its operations manual which identifies exactly what RAA members and staff must do at a detailed level to meet the high level obligations. If RAA dissapears then the high level delegation from CASA can exists but the lower level detailed material that clearly identifies who must do what is then incapable of being executed.

 

I contend that CASA with the policing team they have are incapable of doing that low level work themselves (and in any event do not have the systems needed like the licensing and registration databases, As I understand it RAA runs those themselves, they are not Governement furnished and for privacy reasons are really only available to RAAus staff) and therefore its great that CASA can delegate licensing to an external body and as needs dictate then pull that delegation back, but at the end of the day who in CASA will issue licenses for ex RAA members and how? As I said these are not insurmountable problems but problems that will need to be addressed. Until it is addressed we and they are in no mans land.........

 

As an example, when the issues were found with the some of the aircraft in Australia registered as 24 class RAA and CASA had the potential to say "continue flying while we sort it out....." They did not do that but grounded aircraft while they did, or in some cases still are, working out what to do......Why would anyone think that having seen this precedence of operation (in which CASA had a significant command and control input, and therefore the ability to mould the approach taken by RAAus) that in the event that RAAus ceased for what ever reason people could continue to fly while someone sorts it out. My moneys on us being grounded for an extended period of time if RAAus was ever wound up....

 

Andy

 

 

[turboplanner]

I agree, you would continue to be GROUNDED until a new body was set up.

 

However, this doesn't need to happen.

 

My advice, as before is for members to set aside $2000 to $3000 for contingencies to ensure this doesn't happen - not that difficult to ensure ongoing flying.

 

Rather than be concerned about finding millions of dollars from assets and members pockets, I'm intrigued as to why members wouldn't be ensuring adequate PL insurance like most community bodies.