You fly at your own risk

[kaz3g]

The following was on another forum (Pprune). I am grateful my attention was drawn to it by a fellow forumite as it has wide ramifications for all of us who fly for fun.

 

I post it with the caveat that discussions should not encompass the facts or possible outcomes of any existing court actions of which you may be aware for fear of raising the ire of the presiding judge.

 

Remember the proposal from CASA a while back about placing a placard in the cockpit and including a statement as to the risks inherent in flight in a recreational aircraft in the Pre-flight pax briefing? Does it mean that we are better spending our bikkies on third party cover rather than for our pax? Should we be paying less for insurance because of this or will it lead to even higher charges? Interesting result...

 

Remember the law varies according to the jurisdiction and the same outcome may not pertain elsewhere.

 

You fly at your own risk

 

Cordato Partners

 

Anthony J Cordato

 

Australia

 

April 22 2013

 

A passenger injured in a light aircraft cannot claim compensation.

 

This was the outcome in the recent decision of Noel Campbell v Rodney Victor Hay [2013] NSWDC 11. Acting Justice Marks of the NSW District Court rejected a claim for compensation made by a passenger who suffered injuries when the aircraft made a forced landing. The passenger (Campbell) was taking flying lessons in a Jabiru light plane (with a single engine) flown by experienced flying instructor (Hay).

 

The decision was based on the NSW Civil Liability Act 2002. There is equivalent legislation around Australia. The Act provides that a participant’s rights to claim compensation may be excluded altogether if they engage in a dangerous recreational activity, as opposed to a safe leisure activity.

 

Recreational activities cover sports, pursuits and activities that are engaged in for enjoyment, relation or leisure, which might (or might not) take place on a beach, park or open space. A dangerous recreational activity means a recreational activity that involves a significant risk of physical harm. (Section 5K)

 

The legal argument turned upon whether there was a significant risk of physical harm when flying a light plane. If so, flying is a dangerous recreational activity.

 

The court adopted the views of Appellate Justice Tobias in the NSW Court of Appeal decision of Jaber v Rockdale City Council [2008] NSWCA 98 that ‘as a general guide the risk [of physical harm] should have a real chance of materialising for it to qualify as significant’ to make the recreational activity dangerous.

 

The court found that the risk of an accident occurring when flying a light aircraft was low – but that when an accident does occur there is a real risk of significant physical harm. And so the court concluded that flying in a light aircraft is a dangerous recreational activity.

 

Interestingly, the court considered that flying in a light aircraft to be ‘in a similar category to recreational parachute jumping, statistically safe, but involving some (lesser) risk of danger’.

 

If the recreational activity is dangerous, the organiser or operator can avoid liability if the risk of injury or death is an obvious risk which is accepted by the participant.

 

The Civil Liability Act contains this definition - an obvious risk to a person who suffers harm is a risk that is obvious to a reasonable person in that position. (Section 5K)

 

Does a passenger in a light aircraft accept as obvious the risk of injury resulting from pilot error or defective equipment?

 

On the basis of expert evidence, the court found that the flying instructor was negligent by (a) not flying the aircraft to one of the landing strips available after noticing a second set of vibrations from the engine; and (b) instead, continuing to fly towards Katoomba airfield, where the flight had originated. As a result, when the engine stalled, the flying instructor was not close to a landing strip, and so manoeuvred the aircraft around a tree and into a gully where he pitched the aircraft sharply up a slope.

 

The Civil Liability Act states in clear terms that – A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by that person. (Section 5L)

 

The court found that the risk that the pilot might be negligent in flying the aircraft, or the risk that the aircraft engine might fail in flight, were risks that were obvious to the passenger.

 

Therefore the passenger failed in their claim for compensation for their injuries even though the pilot was negligent.

 

The significance of this decision is that pilots and operators of light aircraft (on non-scheduled flights) are protected from liability because flying is a dangerous recreational activity and because pilot error and mechanical defects are obvious risks.

 

The intriguing question is – what other leisure activities might come under the category of dangerous recreational activities?

 

In Jaber, the plaintiff dived head first from a bollard on a wharf into shallow water (and struck his head). This was a dangerous recreational activity. In the air, it is likely that joy flights, sky diving and hot air ballooning would all come under the category of dangerous recreational activities.

 

 

[flyerme]

dangerous rec activity=free style moto-x.. my body is mangled because of it...try get insurence fot that sport $$$$$$$$$$$$$$$$$$$$$$$$.. flying? now thats alot safer:plane:

 

 

[Ballpoint 246niner]

This is what's on he placard of every rec aircraft or should be. Every PIC needs to make their pax aware and in agreement prior to flight or no flight should take place. The recent findings in case law simply support this statement.

 

 

[Guest Andys@coffs]

Thanks for posting this kaz. If i was due for insurance renewal i would be thinking the risk realestate has changed for the insurer and as such that should be reflected in the proposal pricing....that said, that assumes there were previous claims that were successful and therefore had policy payouts......that assumption may well be not true...or not materially true...

 

Andy

 

 

[farri]

On the basis of expert evidence, the court found that the flying instructor was negligent by (a) not flying the aircraft to one of the landing strips available after noticing a second set of vibrations from the engine; and (b) instead, continuing to fly towards Katoomba airfield, where the flight had originated. .

I`d like to know how far the aircraft was from a safe landing strip when it first became obivious that there was a problem with the engine.

 

Frank.

 

 

[Gnarly Gnu]

This seems reasonable, thanks for posting.

 

 

[rgmwa]

The same argument could just as easily be applied to driving a car: Low risk of an accident occurring but potentially serious consequences if it does. Therefore going for a Sunday drive is a dangerous recreational activity. Think I'd better get a placard made for the dash to warn my daredevil passengers.

 

rgmwa

 

 

[boingk]

I take every day as it comes and generally am pretty cautious with my undertakings... despite the fact that these include motorcycling and flying. I try and minimise risk where possible, while maximising the enjoyment I get out of my pastimes.

 

If you really are thinking about people getting litigious with you then you are in the wrong mindset. I would more be thinking along the lines of what happens to my personal possessions - in todays world almost anything can be waived of voided by an attorney if you have enough dosh. Part of my insurance plan involves a rather large credit card limit... to hire said attorney. It really is amazing how much the banks will give you if you keep it clean and pay it off fast. Third party insurance is enough for me in most cases.

 

Dangerous activities? Insurance bills?

 

What are those? I just do stuff I enjoy and am cautious while doing so.

 

- boingk

 

 

[johnm]

so if you are flying along and maybe from paranoia you hear a rattle (incident 1) up front or down the back or under the seat or above in the wing root ..................... or you percieve the motor is not performing like usual (incident 2) and you adjust the throttle and maybe even carb heat ! ............... and every thing then seems OK - then if you don't land at the nearest strip - you are negligent ?

 

surely that can't be how the law thinks of the actions of a licensed pilot ?

 

maybe (engine vibes) are considered to be more threatening / litigous - but I would have though carb ice could give the same symptoms

 

 

[metalman]

Interesting read Kaz, good to see the law recognising personnel responsibility for risk acceptance, it also shows ,as others have noticed , they have very little idea on dealing with a problem in the air, a vibration could be a number of things that can be a normal part of aviating ,or as this case shows ,something more serious.

 

I wonder how glider instructors would get on where out landings are all part of the ride!

 

 

[cscotthendry]

This is a topical and very relevant thread for me. I just had a good friend decline a flight in my aircraft that he dearly wants to do, because his life insurance only covers him for commercial flights.

 

Does anyone know of any insurance company that is willing to provide life cover for a day or other period for this kind of "dangerous leisure activity"?

 

 

[REastwood]

The legal system is based on 20/20 hindsight. Engine runs rough, pilot applies carby heat, vibration goes away - conclusion: Pilot acted correctly. 20 minutes later engine stops, bad landing etc. conclusion: pilot was negligent for not landing as soon as possible after the engine ran rough.

 

 

[Bandit12]

This is a topical and very relevant thread for me. I just had a good friend decline a flight in my aircraft that he dearly wants to do, because his life insurance only covers him for commercial flights.Does anyone know of any insurance company that is willing to provide life cover for a day or other period for this kind of "dangerous leisure activity"?

Interesting because my life insurance covers me, as long as I am not doing more than 75 hours a year. I could do more than that but would have to declare it and suspect that my premium might go up. Maybe your friend should just contact his insurer and ask the question.

 

 

[turboplanner]

This is only relevant to NSW at this stage.

 

Opinions on the vibrations and landing location would be relevant to us, but a good lesson on how the law see them - usually, with the benefit of hindsight you will be negligent if there is something you could have done or should have done which would have produced a different outcome, so that part's not relevant.

 

What is relevant is that a person who was found to be negligent has not had to pay out to a passenger because the judge decided flying was a dangerous recreational activity.

 

So let's for example say the passenger became a quadriplegic, with a lifetime maintenance cost of $7 million dollars.

 

Prior to that judgement, the pilot, if found guilty of negligence would have been obligated to fund the $7 million.

 

So the big question, which could produce the big changes, is who will find that money.

 

From the responses above, I'd take it that the negligent pilots are going to walk away from it.

 

That might be messy because they will only need to point out the placard, then add "but I've never lost one yet" or similar and the passenger will sue them

 

That leaves the victim and the Government of New South Wales.

 

Let's assume the victims are normal wage earners - they won't have the money.

 

One possible solution is that they could buy insurance prior to the flight - costly, messy, and you can bet some will say they were coerced into taking the flight without insurance - so will sue the pilot.

 

So a probable outcome will be less passengers sharing costs, and a downstream outcome might be an increase in charter operations.

 

That leaves the Government of New South Wales.

 

The public liability insurance and claim era started in the early 1980's with the death of two children in a South Australian kindergarten, and, seeing the potential for a hailstorm of lawsuits the State Attorneys-General met and decided to divest themselves of risky activities.

 

That led to the birth of self administering bodies including RAA.

 

My thinking is that they may:

 

(a) quickly change the law, because this case is not in the spirit of a negligent person paying compensation, and taxpayers are not going to want to pick up the bill for recreational pilots or recreational pilots' mistakes, or recreational anyone else's mistakes.

 

(b) shut down the self administering bodies and incorporate the members into the government fold where they can control their risk.

 

© apply a licence fee to cover payments for negligence - a little like third party insurance.

 

The bottom line though is someone has to pay the $7 million.

 

Then there is the implication for all recreation

 

Non-business car driving

 

Motor cycle operation

 

Boating

 

Theme parks

 

etc.

 

 

[djpacro]

That lawyer used the word "passenger" however the person was taking flying lessons, therefore a student and member of the crew so not a passenger.

 

Come flying with me as a passenger you don't get to touch the controls and be comforted by my passenger liability insurance.

 

Rent my aeroplane and have me along as instructor for a dual flight it is a totally different situation.

 

 

[Sapphire]

"Dangerous activity" is more an emotional term. Basket weaving can be perceived as dangerous if one is frightened of it. Most people arn't frightened of driving but statistics show you have a good chance of injury because of a long lifetime exposure.

 

 

[turboplanner]

That lawyer used the word "passenger" however the person was taking flying lessons, therefore a student and member of the crew so not a passenger.Come flying with me as a passenger you don't get to touch the controls and be comforted by my passenger liability insurance.

Rent my aeroplane and have me along as instructor for a dual flight it is a totally different situation.

This information came from a law office as news and contains their own spin on the situation which could be right or wrong; here are the links to the two cases mentioned.

 

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2013/11.html?stem=0&synonyms=0&query=Rodney%20Victor%20Hay

 

http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2008/98.html?stem=0&synonyms=0&query=Jaber%20v%20Rockdale%20City%20Council

 

From my experience it doesn't make any difference if the person is a student or a passenger the history has been that anyone hurt or killed as a result of someone's negligence is compensated.

 

No one should be dropping their public liability insurance just yet for at least a couple of reasons:

 

1. This case only refers to a person in an aircraft who chose to get in; all the other potential issues, such as a prop blade flying off and killing someone, a spat falling off, a beat up gone wrong where the aircraft collides with people etc all need to be covered by about two million per fatality or $7 million per total incapacitation (very rough guide only - make your decision from recent court decisions.

 

2. You may want to fly in States other than NSW.

 

 

[turboplanner]

Another reason not to drop your insurance - I just read on prune the case is still subject to appeal so we are discussing future hypotheticals.

 

 

[Guest Crezzi]

You may want to fly in States other than NSW.

In Qld there has just been this court case (not aviation) http://www.abc.net.au/news/2013-05-03/tourist-wins-payout-over-sand-dune-accident/4667148?section=qld

 

Cheers

 

John

 

 

[boingk]

"Dangerous activity" is more an emotional term. Basket weaving can be perceived as dangerous if one is frightened of it. Most people arn't frightened of driving but statistics show you have a good chance of injury because of a long lifetime exposure.

Big difference between perception and reality. Just because something is perceived as dangerous doesn't mean it is.

 

Interestingly, aircraft are the most dangerous vehicles (fatalities per trip taken) after bicycles and motorcycles.

 

- boingk

 

 

[turboplanner]

In this case the lawyers decided what dangerous was.

 

 

[kaz3g]

Interesting read Kaz, good to see the law recognising personnel responsibility for risk acceptance, it also shows ,as others have noticed , they have very little idea on dealing with a problem in the air, a vibration could be a number of things that can be a normal part of aviating ,or as this case shows ,something more serious.I wonder how glider instructors would get on where out landings are all part of the ride!

I have had 780 forced landings... All in gliders (although one of them had a motor that stopped).

 

Kaz

 

 

[turboplanner]

Just keep practising Kaz, you'll make it one day!

 

 

[cscotthendry]

Interesting because my life insurance covers me, as long as I am not doing more than 75 hours a year. I could do more than that but would have to declare it and suspect that my premium might go up. Maybe your friend should just contact his insurer and ask the question.

Bandit:

Can you tell me which insurance company you're with? My mate is very keen to fly, but for his own reasons, not without life cover.

 

 

[turboplanner]

Bandit has checked his conditions on flying in a single engine aircraft, but many insurance policies don't allow it, and if the NSW case gets anywhere look for policies to exclude any recreational activity classified as dangerous - we'll be back to reading books.