RAAus legal matter

[68volksy]

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?

It's pretty hard to go through any corporation and after board members and staff. I believe the only avenues are generally for fraud, trading whilst insolvent or not paying superannuation for staff.

 

It takes a huge amount of knowledge and ability to take on a directorship of an organisation of this size. Many Clubs in the country are now facing the need to have a paid board due to the increased reponsibilities and increasing action being taken against directors.

 

 

[Guest Andys@coffs]

Turbo

 

In an earlier post on this thread I said:-

 

"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."

 

Perhaps that needs more explaination so people can understand the issue.

 

In what follows ignore the existance of an insurance broker until I reintroduce them, they are facilitators and advisors only and dont provide any policy coverage themselves as I understand it.

 

Our policy coverage for PL and PI used to be an insurance Company that provided aviation related insurance. They sold out of thaviation related business and today do not play in aviation insurance. When the aviation business was sold RAAus policy's were not sold because of the litigation that the RAA release refers to, rather the policy stayed with the original Company who no longer sells avaition insurance.

 

With the types of insurance we are talking about I understand that there is a need for continuing coverage while a series of the timeline of events unfold, where that timeline is:-

 

1) coverage established

 

2) act requiring insurance claim occurs

 

3) act requiring insurance claim becomes known to the policy holder (2 and 3 are different and may not occur at the same time)

 

4) act requiring insurance claim becomes known to the insurance company

 

5) litigation occurs

 

6) Judgement made.

 

Some people will look at 2) 3) and 4) and say arent they the same thing? They are not. An extreme example chosen to identify the differences is that an aircraft crashes into a car on an outback road while attempting to land and kills the aircraft and vehicle occupants. Eventually the aircraft is missed and a search starts. 2 weeks later they find the accident scene and start investigations, after a month the circumstances of the crash are known. Pressumably in this sequence 2) occurs at the crash, 3) occurs (or at least is suspected) when the aircraft is located and 4) occurs when the investigation has concluded and we now know that there is a PL related event that the insurer needs to be made aware of.

 

My limited understanding is that we need continuous coverage with the same insurer while events 1) through 4) occur. Now given that we arent talking about a single event (though this thread started talking about one single event disclosure to members) and the time between 2) and 4) can be much more than days, then working out how to change insurers is problematic. Furthermore as our current insurer isnt in the aviation business anymore they are not at all interested in increasing policy limits, rather they are interested in them staying the same but choosing to apply significant increases in policy costs year to year (19% last year) and the other aviation insurers are seeing what is occuring with RAA at the moment and saying "think we'll not get involved until we understand what is happening with the current litigation to which this thread refers"

 

So, in summary, as I understand it (which may well be flawed, cause we only a few minutes on this at teh AGM) we have to saty with the current provider, other providers arent prepared to touch us at present and we cant live with the constraints and cost of the current provider....

 

At the very least it seeems to me that we may well have been poorly advised in recent years (broker???) or our board ignored the advice if it was given.

 

In either case we are in a place that we should not be if at all possible to vacate...

 

Andy

 

 

[turboplanner]

If there was transparency, we would know the terms of the policy, so this guessing game wouldn't be necessary, we would know the sum insured, so members experienced in that field could advise if the amounts were inadequate, and we would know whether the action taken by whoever took it (ans that may not necessarily have been the board of management) was astute, or the recipe for a basket case.

 

 

[ave8rr]

TurboAt the very least it seeems to me that we may well have been poorly advised in recent years (broker???) or our board ignored the advice if it was given.

In either case we are in a place that we should not be if at all possible to vacate...

 

Andy

Andy, is it time that we all look at taking out PL insurance as individuals on RAAus Registered aircraft? My aircraft (GA Experimental RV9A) is insured for both PL and Hull but through a group scheme.

Thoughts?

 

Cheers

 

 

[Guest Andys@coffs]

Every individual will need to make that choice for themselves, there is no bulk answer that Im aware of.

 

It all comes down to what do you have to loose, and is what you have sufficient that you would become a target for those wielding the litigation shotguns....

 

In my case as I get older I seem to become more fiscally risk averse and as such I have a $10m PL policy on my 230 insurance with QBE that notes that its 2nd in precedence against the RAA policy. The establishment of precedence makes the policy cheaper (well it did at the time I renewed) because in the event of a claim the RAA policy would be called on first, and only anything not met by that policy would then need to be met by the QBE policy.

 

Sorry no real advice here, you'll need to determine that with your broker

 

Andy

 

 

[turboplanner]

It's pretty hard to go through any corporation and after board members and staff. I believe the only avenues are generally for fraud, trading whilst insolvent or not paying superannuation for staff.It takes a huge amount of knowledge and ability to take on a directorship of an organisation of this size. Many Clubs in the country are now facing the need to have a paid board due to the increased reponsibilities and increasing action being taken against directors.

In the cases I'm investigating, it appears to be as simple as sueing the individuals, bypassing the Incorporated Association, but it's going to take me a little time to verify what exact method was used.

 

As to the second part, I would disagree with you. Tens of thousands of Incorporated Associations are managing their sporting activities well by being involved in the election process, selecting the people with the most suitable skills among them, covering themselves with adequate Public Liability Insurance, setting up safe codes of conduct, and ensuring that no criminal negligence is allowed to develop.

 

The job is no harder than the responsibility in the corporate world where we either live with safe standards, or eventually go broke.

 

It's a bit hard to argue that negligence should go unpunished or that the perpetrator who ignored his/her known obligations (and many still do) should not have to pay for the rehabilitation of the injured or their families.

 

 

[turboplanner]

Andy, is it time that we all look at taking out PL insurance as individuals on RAAus Registered aircraft? My aircraft (GA Experimental RV9A) is insured for both PL and Hull but through a group scheme.Thoughts?

Cheers

You couldn't do better than to follow Andy's decision to take out his own PL policy, other than to up it to $20 or $30 million if you could afford it, and particularly if you operate at a regional airport frequented by commercial passenger aircraft, which you could hit by being in the wrong place in the circuit at the wrong time, a QED guaranteed payout on multiple victims.

 

The only reason you would have for not doing this is if your assets were worth $20 million and you were happy enough to lose them.

 

 

[eightyknots]

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

This report takes a nasty tilt at a Mr M Coates, the seller of the plane. If it wasn't the coroner writing in a report, it could be classed as libellous.

 

Also, the same coroner has a very low view of Rotax engines. Apparently, Rotax engines aren't tested properly (compared to other aircraft engines). The manufacturer also is aware of the 912's "propensity to stop suddenly" and as a result they refuse to certify them.

 

Better replace your Rotaxes with Jabirus gentlemen!

 

 

[facthunter]

Coroners are not experts on Rotax engines . There may be some confusion with the two stroke engines. I don't think he said 912's. When highly technical matters are being dealt with ( or complex forensic DNA etc ) lay people should be wary of making conclusions and generalisations readily. A judge some years ago when dealing with an incident involving the 3 engined DH "Drover" asked " which wing has two engines on it? I rest my case. Nev

 

 

[eightyknots]

Coroners are not experts on Rotax engines . There may be some confusion with the two stroke engines. I don't think he said 912's. When highly technical matters are being dealt with ( or complex forensic DNA etc ) lay people should be wary of making conclusions and generalisations readily. A judge some years ago when dealing with an incident involving the 3 engined DH "Drover" asked " which wing has two engines on it? I rest my case. Nev

This is a direct quote from the Coroner's Report:

 

"The aircraft was a Sting 2000 ultralight fitted with a Rotax 912 ULS engine and a Woodcomp electrical in-flight adjustable propeller"

 

 

[boingk]

Reading the actual technical report and summary investigation, they show in detail the failure of a crank journal within the engine that supported the crank. One conrod is damaged and there is galling (frictional welding for want of a better term) on many crank journal areas. It appears that this failure happened inflight and prior to contact with the ground.

 

In essence, the Rotax 912 underwent a catastrophic and unrecoverable failure inflight, over terrain unsuited for an emergency landing. The report does not state the planes altitude at the time of the crash, which I would deem as critical for survival in the area. Personally I do not like to navigate through bad country at any less than 3,000ft AGL.

 

- boingk

 

 

[turboplanner]

Careful boink, there's a live case going, and no information that the Coroner's report has any bearing on the case, or conclusions about the ground.

 

 

[M61A1]

Careful boink, there's a live case going, and no information that the Coroner's report has any bearing on the case, or conclusions about the ground.

I'm guessing that we are most likely dealing with "ambulance chasers" here, but, how can the Coroner's report not have any bearing on the case? Is our legal system here really that screwed up? (sadly, I think I know the answer to that question already)

 

 

[turboplanner]

The two cases are different and looking at different issues.

 

The plaintive chooses what matters to sue on.

 

(Can't tell you what they are because it bears on the PL case)

 

 

[kaz3g]

In the cases I'm investigating, it appears to be as simple as sueing the individuals, bypassing the Incorporated Association, but it's going to take me a little time to verify what exact method was used..

Hi TP

 

As you and others have stated, disclaimers and even personal waivers or indemnification may not protect an individual who has been negligent to the detriment of another. Insurance, adequate insurance, is the answer.

 

The person who sues for negligence joins anyone who might be able to contribute to the award of damages. I suggest the widow of a pax killed in a recreational aircraft might sue the pilot (or the pilot's estate), the licensing bodies (RAAus and CASA), the aircraft designer and the aircraft builder, and even the directors if they are a chance. Each of these parties MAY have separate insurance but, RAAus seemed to have opted for one insurer who has covered both pilots and the Association at the least. Probably also the directors as well. The insurance company gets hit really hard in that case.

 

If the lawsuit fails, of course, the widow/widower of the deceased pax is very likely to have a costs order against them. And this would be very big! So go for broke and hope the insurance company will be so concerned by the possible prospect of losing it will settle.

 

This then raises the concept of mitigation of loss. If the insurance company doesn't settle and then loses, the award against it could be even greater. Another reason to consider a settlement. If the widow/widower doesn't settle, she/hemay well already be bankrupt so the extra isn't quite such a burden. There is also the need for justification which is much stronger for the plaintiff than for the defendant insurer who calls the tune vis-a-vis the other respondents.

 

Kaz

 

 

[eightyknots]

The person who sues for negligence joins anyone who might be able to contribute to the award of damages. I suggest the widow of a pax killed in a recreational aircraft might sue the pilot (or the pilot's estate), the licensing bodies (RAAus and CASA), the aircraft designer and the aircraft builder, and even the directors if they are a chance.

The Coroner made some very 'unkind' (ameliorated word used here) about Mr M Coates who imported this aircraft. I wonder if the action referred to above also threatens the importer?

 

This then raises the concept of mitigation of loss. If the insurance company doesn't settle and then loses, the award against it could be even greater. Another reason to consider a settlement. If the widow/widower doesn't settle, she/hemay well already be bankrupt so the extra isn't quite such a burden. There is also the need for justification which is much stronger for the plaintiff than for the defendant insurer who calls the tune vis-a-vis the other respondents.

I really wonder about the high-stakes, go-for-broke actions that we are seeing so much of in the last decade or two. It's a real pity that Australia has become such a litigioius society. Even taking a passenger now puts recreational pilots in legal jeopardy.

 

Soon RA-Aus will only allow single seat planes to reduce the risk to them and their insurers.

 

 

[ave8rr]

Soon RA-Aus will only allow single seat planes to reduce the risk to them and their insurers.

You may very well be right eightyknots. Am I right in that in NZ you can't sue because there is a system of Accident Compensation for ALL.

 

Cheers

 

 

[turboplanner]

Not really - very few pilots are negligent, but just a few too many right now for comfort in keeping insurance affordable.

 

 

[winsor68]

IMO opinion (and based upon study of non-popular media) Australia is in actuality no more litigious than it was 25 years ago... Australians Yes.. The insurance companies have had a pretty easy trot in the Australia or am I missing something here? I mean what is the point of having insurance if the insurance companies can get away with not paying? And this happens on a BIG scale from what I see.

 

 

[eightyknots]

You may very well be right eightyknots. Am I right in that in NZ you can't sue because there is a system of Accident Compensation for ALL.Cheers

Yes, there is a univeral coverage provided by the Accident Compensation Corporation for all residents of New Zealand (including Aussies like me!) as well as any overseas visitors. Any accident, from slipping over the proverbial banana skin, to a car crash or a 'microlight' incident will mean that the victims(s) is/are covered for any hospitalisation, operations, medicines, rehabilitation as well as 80% of their lost income. This ACC system is paid for jointly by a small levy on employees and employers.

 

The entire negligence compensation claim industry was legislated out of existence by an Act of Parliament. This makes New Zealand a friendlier place. If a person fell over in a shopping centre or workplace, ACC would cover the costs while an investigator would write a report recommending ways of improving the shop or workplace so that similar accidents are prevented.

 

It sounded pretty radical when I first moved here. Now that I have seen it in operation, it makes perfect sense. I am sure that insurance rates are a lot less too. For instance, when I left OZ, my NSW 'green slip' cost me about $800.00. This is supposed to cover any other people I injure through my negligence in the case of a NSW car accident. In New Zealand, the ACC levy per car is around $NZD200.00 (= $AUD160.00). And, if I caused an injury, me -as the driver- would also get accident compensation cover.

 

Q. So then, in all this, who misses out?

 

A. The lawyers.

 

Q. Who wins?

 

A. Almost everyone (including the government who owns the ACC which tends to send dividends into consolidated revenue most years) ....except lawyers.

 

 

[dazza 38]

I remember when people who tripped, slipped or what ever.Would dust themselves off and have a go at themselves for not being more careful .These days, most people seem to want compensation when they are the stupid ones who do stupid things.

 

 

[Guest Crezzi]

Yes, there is a univeral coverage provided by the Accident Compensation Corporation for all residents of New Zealand (including Aussies like me!) as well as any overseas visitors. Any accident, from slipping over the proverbial banana skin, to a car crash or a 'microlight' incident will mean that the victims(s) is/are covered for any hospitalisation, operations, medicines, rehabilitation as well as 80% of their lost income. This ACC system is paid for jointly by a small levy on employees and employers.The entire negligence compensation claim industry was legislated out of existence by an Act of Parliament. This makes New Zealand a friendlier place. If a person fell over in a shopping centre or workplace, ACC would cover the costs while an investigator would write a report recommending ways of improving the shop or workplace so that similar accidents are prevented.

 

It sounded pretty radical when I first moved here. Now that I have seen it in operation, it makes perfect sense. I am sure that insurance rates are a lot less too. For instance, when I left OZ, my NSW 'green slip' cost me about $800.00. This is supposed to cover any other people I injure through my negligence in the case of a NSW car accident. In New Zealand, the ACC levy per car is around $NZD200.00 (= $AUD160.00). And, if I caused an injury, me -as the driver- would also get accident compensation cover.

The other side of the coin is that the NZ accident compensation system may be contributing to the country's high level of workplace fatalities and injuries (double the rate in Australia apparently)

 

http://www.auckland.ac.nz/uoa/home/template/news_item.jsp?cid=507070

 

Cheers

 

John

 

 

[eightyknots]

The other side of the coin is that the NZ accident compensation system may be contributing to the country's high level of workplace fatalities and injuries (double the rate in Australia apparently)http://www.auckland.ac.nz/uoa/home/template/news_item.jsp?cid=507070

Cheers

 

John

It may be the case that some people misuse the system and go on an 80% paid holiday. However, about five years ago there was a major review and assessing medical practicitioners are compelled to be more thorough in their examinations. Once the word got out those who were inclined to use the helpful ACC provisions were less likely to make a formal application for ACC. This has led to year-on-year reductions in claims. But, as you rightly pointed out, the issue of the high fatality rate is a matter that needs adressing.

 

ACC levies for my cars remain around the $200 mark per annum.

 

 

[68volksy]

Careful boink, there's a live case going, and no information that the Coroner's report has any bearing on the case, or conclusions about the ground.

Crash site has been viewed by many of the local pilots over the years since the accident and most consider it more than suitable for a forced landing. Some have visited the location on foot (there was a small memorial which I think is still there). Question is really why a "landing" does not appear to have been attempted. The general consensus is there were other extenuating circumstances. The force of the impact and the fact the parachute had been deployed raises too many questions really. Had they pulled the chute only to have it not fire until they were too close to the ground? Had the engine failure caused the cowling to obscure their view? Had the cabin filled with smoke? So many possibilities - I don't think anyone will ever know what really happened. The only thing that was investigated (and not very thoroughly really if you compare it to other ATSB reports) was the engine failure...

 

 

[dodo]

Volksy,

 

thanks for that. From a first reading of the coroners report it sounds very strange.

 

It reads as if they screwed up the landing, but the coroner sort of skims over the whole landing bit, except to say that many agreed it was a reasonable spot, and should have been OK (or messy but survivable)...which leaves lots of questions unanswered.

 

However, as you point out it looks like they just flew into the ground, which is very odd, and leaves a lot of other questions.

 

Either way, I think the coroners fixation on the cause of the engine failure is reasonable, but I am surprised there was no further interest. The implication is fatality is likely or assured after engine failure, which is not so, and the coroner sort of admits that by discussing the forced landing potential of the paddock they picked.

 

I think the issues around the previous owner may have distracted scrutiny from the actual event.

 

dodo