Recreational airfield Safety Operations.

[Dafydd Llewellyn]

OK, I'm a glider pilot, so I'm not bound by (or even aware of) RAAs Ops rules. I'm approaching a non-towered field, and it's not been made a temporary CZ under a NOTAM. No special procedures are given in ERSA. I call inbound on the area frequency (and if it's a known gliding field, on the gliding assigned frequency). I may or may not get a response. The response may or may not be useful. I take it into account in joining the circuit, along with any other circumstances that affect that.

 

If the strip is a private one, I need to have the owner's permission before I can land there, other than in an emergency. If the owner happens to be an RAA entity, that's how I find out about it. If the owner has made a stipulation in response to my request for permission to land there, I must observe that stipulation.

 

However, the responsibility is still mine, as PIC. Nobody on the ground, or in another aircraft, can direct me as to what I may or may not do. They can advise me of what's going on (kangaroos on strip, etc). That's my understanding; what have I missed?

 

 

[turboplanner]

If you have a passenger you may have missed the last 30 years of precedent cases, training and explanations following the beginning of the end of prescriptive legislation by governments in Australia, because you have certain duties of care to your passenger so some study would be in order.

 

If solo, Andy's question really related to the people operating the airfield, and I'm mindful of Kaz's comments about getting into details and into a situation which could constitute legal advice, but, for example if my radio was not transmitting to the point of being intelligible, which in some cases has been alleged against glider pilot, and someone was hurt as a result and someone was hurt there could be consequences and so on.

 

When you read the Donoghue vs Stevenson case it becomes clear that you can't make up a checklist of 17 or so items, but really have to live the principles every hour of the day.

 

 

[kaz3g]

Vince The opps manual is what we are discussing in section 4.01 the number 1 point says if there is more than one rec aircraft operating at a field (not a training field) then a duty pilot must be elected and it is that pilots responsibility to direct and control traffic.I know I hadn't read that before.

It actually says that the duty pilot has authority to control and direct operations...not traffic.

 

Duty pilots aren't anything new. Gliding clubs have used them for decades. The Antiquers always have someone with local knowledge do a briefing for visitors to fly-ins and ensure compliance with local rules, safety, etc.

 

Kaz

 

 

[kaz3g]

OK, I'm a glider pilot, so I'm not bound by (or even aware of) RAAs Ops rules. I'm approaching a non-towered field, and it's not been made a temporary CZ under a NOTAM. No special procedures are given in ERSA. I call inbound on the area frequency (and if it's a known gliding field, on the gliding assigned frequency). I may or may not get a response. The response may or may not be useful. I take it into account in joining the circuit, along with any other circumstances that affect that.If the strip is a private one, I need to have the owner's permission before I can land there, other than in an emergency. If the owner happens to be an RAA entity, that's how I find out about it. If the owner has made a stipulation in response to my request for permission to land there, I must observe that stipulation.

However, the responsibility is still mine, as PIC. Nobody on the ground, or in another aircraft, can direct me as to what I may or may not do. They can advise me of what's going on (kangaroos on strip, etc). That's my understanding; what have I missed?

PIC's carry the can for their decisions in relation to the approach, circuit and landing. They largely discharge their common law duty by obtaining prior permission and any briefing additional to the ERSA but still have obligations to keep a good lookout, etc. The way the CASR's are written, the pilot is always wrong in the event something bad happens...but others may be wrong, too.

 

Airfield operators also carry the can at common law if they fail to notify visiting pilots of any dangers associated with their use of the field.this obligation is mostly discharged by the ERSA entry or standard briefing instruction. Putting the information out on the web and in hard copy format is a good demonstration that the obligation has been discharged.

 

Regulatory authorities may also be subject to common law duties hence legislation that does its best to ensure everyone else is wrong instead.

 

 

[Dafydd Llewellyn]

Yes - and anybody who rides in the glider does so at their own risk, because it's experimental (and carries the placards, warnings etc) - and I'm not worth sueing.

 

 

[kaz3g]

Yes - and anybody who rides in the glider does so at their own risk, because it's experimental (and carries the placards, warnings etc) - and I'm not worth sueing.

Me either, Dafydd ...first law of negligence is to ensure the respondent has deep pockets.

 

Kaz

 

 

[turboplanner]

If you relied on that, and knew what you were doing, and you killed me, I'd get both of you for manslaughter, not that I could spend the money.

 

Because crimes cut across all the little exemptions the politicians have build for themselves, that one usually brings them around to taking responsibility.

 

Yes - and anybody who rides in the glider does so at their own risk, because it's experimental (and carries the placards, warnings etc) - and I'm not worth sueing.

Since you quoted this, there's a recent NSW case which has been referred to a couple of times recently on this forum which partly backs up your statement, but they only ride in the glider at their own risk while you are not negligent (and as we know you can be negligent just by forgetting or overlooking something.), so I'm having the Blanik and your drawing instruments.

 

 

[Yenn]

GA piloots do not have to operate in the same way that RAAus pilots are supposed to. It would be impossible to appoint a pilot to control the field. Where RAAus got the idea from i have no idea and I have never seen it used, even when CASA are in attendance, but it could be said that RAAus should enforce it, or better still romove the requirement

 

 

[kaz3g]

If you relied on that, and knew what you were doing, and you killed me, I'd get both of you for manslaughter, not that I could spend the money.Because crimes cut across all the little exemptions the politicians have build for themselves, that one usually brings them around to taking responsibility.

Thank you for maintaining an important discussion, Turbs.

 

The threshold for criminal negligence is a great deal higher than for the civil tort. The conduct must be reckless as to the likely outcome of the negligent actions.

 

A person arriving at a non-towered airfield and complying with the CAAP might still have an accident due to negligence but probably not with criminal repercussions unless something really stupid was done.

 

The scope of foreseeability which Wyong set so broad is now being restricted in recent decisions and rightly so, in my view.

 

My aircraft is insured through RGIB so the following link is provided as food for thought http://www.ruralandgeneral.com.au/insurance-consumer-what-is-negligence.php

 

Kaz

 

 

[Dafydd Llewellyn]

If you relied on that, and knew what you were doing, and you killed me, I'd get both of you for manslaughter, not that I could spend the money.Because crimes cut across all the little exemptions the politicians have build for themselves, that one usually brings them around to taking responsibility.

Since you quoted this, there's a recent NSW case which has been referred to a couple of times recently on this forum which partly backs up your statement, but they only ride in the glider at their own risk while you are not negligent (and as we know you can be negligent just by forgetting or overlooking something.), so I'm having the Blanik and your drawing instruments.

Well, the Blanik doesn't belong to me; and you're welcome to the drawing instruments. Re negligence, look at QLD Civil Liability Act S19; NSW & Vic Civil Liability Act S 5L & 5M; SA Civil Liability (recreational service) amdt bill 2008 S 39C.

 

 

[AVOCET]

If you relied on that, and knew what you were doing, and you killed me, I'd get both of you for manslaughter, not that I could spend the money.Because crimes cut across all the little exemptions the politicians have build for themselves, that one usually brings them around to taking responsibility.

Since you quoted this, there's a recent NSW case which has been referred to a couple of times recently on this forum which partly backs up your statement, but they only ride in the glider at their own risk while you are not negligent (and as we know you can be negligent just by forgetting or overlooking something.), so I'm having the Blanik and your drawing instruments.

Seems like after we've killed you , your coming back to "haunt " us !

 

 

[turboplanner]

Not any more - it appears I'm not going to get the Blanik, and there's no point in taking his drawing instruments if they aren't precious to him.

 

I did have an unusual experience a couple of weeks ago. One of my friends posted "imminently dying, love to all my friends". He'd had kidney problems for years. It was an eerie, but very rewarding experience for us to be able to say goodbye while he was still alive.

 

 

[turboplanner]

GA piloots do not have to operate in the same way that RAAus pilots are supposed to. It would be impossible to appoint a pilot to control the field. Where RAAus got the idea from i have no idea and I have never seen it used, even when CASA are in attendance, but it could be said that RAAus should enforce it, or better still romove the requirement

Rubbish Yenn, GA pilots, even Astronauts are not exempt from exercising duty of care, nor are they exempt from criminal negligence.

 

Every week I thank my lucky stars for the professional training I received.

 

 

[Dafydd Llewellyn]

Not any more - it appears I'm not going to get the Blanik, and there's no point in taking his drawing instruments if they aren't precious to him.I did have an unusual experience a couple of weeks ago. One of my friends posted "imminently dying, love to all my friends". He'd had kidney problems for years. It was an eerie, but very rewarding experience for us to be able to say goodbye while he was still alive.

Seriously, provided one operates with normal diligence, and provides the required briefing, it looks to me as though an experimental aircraft really only needs insurance for the Damage by Aircraft Act liability, plus third party. Apart from a few grandchildren, I doubt I'll be carrying anybody who is not a pilot.

 

 

[kaz3g]

Well, the Blanik doesn't belong to me; and you're welcome to the drawing instruments. Re negligence, look at QLD Civil Liability Act S19; NSW & Vic Civil Liability Act S 5L & 5M; SA Civil Liability (recreational service) amdt bill 2008 S 39C.

Don't know about the other States but in Victoria the tort of negligence is dealt with in Part X of the Wrongs Act...there is no Civil Liability Act pertaining to Victoria. Note that the common law runs alongside the Act and continues to apply where the Act does not do so exclusively.

 

The Victorian Act partly codifies the common law by dealing with issues such as foreseeability, causation and voluntary assumption of risk. The latter is important because it gives us pilots a measure of protection from claims by injured passengers...if they have been briefed on the nature of the aircraft, the pilot and the flight the burden is on them to prove that they did not voluntarily assume the risk inherent in the flight.

 

Kaz

 

 

[Dafydd Llewellyn]

Thanks, Kaz - I must have mis-read something. It obviously makes a difference if you are providing a service as opposed to simply making a seat available to a friend. The situation is murky in SA, it would seem - and I've not pursued it elsewhere.

 

 

[turboplanner]

Dafydd, this is a link to a simple explanation of the Donoghue v Stevenson 1932 case, which shows how the Shirt case which Kaz quoted fits in.

 

http://lawgovpol.com/case-study-donoghue-v-stevenson-1932/

 

 

[Dafydd Llewellyn]

Dafydd, this is a link to a simple explanation of the Donoghue v Stevenson 1932 case, which shows how the Shirt case which Kaz quoted fits in.http://lawgovpol.com/case-study-donoghue-v-stevenson-1932/

Ta - yes, I've seen that one before. I have been very interested in manufacturer's liability, especially when strict liability was introduced into the TPA. Were you aware that compliance with the ADRs is a defence against this? Aircraft manufacturers have no equivalent protection; I tried, when I was chairman of the Qld Aircraft Manufacturers' Association (now defunct) to get a parity with the provision that does this (I don't recall where it is, now - maybe there's a Motor Vehicles Standards Act - and maybe it's been overtaken by precedent) - but failed, because it would make CASA liable at the point of sale, whereas as things stand, they are liable only at the point of flight - and they also have an immunity in regard to experimental aircraft, under CASR Part 201.003. On the whole, I suspect Strict Liability with a limit, similar to the Chicago convention limit for airline passengers, will have to come in sooner or later, or we'll have no manufacturers; at least the actuarial mathematics of Strict (but limited) Liability are finite, so it's possible to insure for it.

However, that does not, so far as I can see, carry over to the question of carrying somebody at no cost, simply for their pleasure, in the spare seat in an experimental aircraft; there could hardly be a more obvious risk (apart, perhaps, from bungee jumping) and the placards and briefing required nail the lid on that, I think. If one operates in a State where there is an effective let-out for the identified dangerous recreational activity of flying in an aircraft, and given the CASA immunity, there's little potential attraction for a Lawyer under provisional fee billing. If the pilot is criminally negligent and operating where there is no let-out for an identified dangerous recreational activity, well . . .

 

The Damage by Aircraft Act and third party liability to other airspace users remains, and one needs to insure for those.

 

 

[turboplanner]

This is a reasonably comprehensive explanation of the negligence and TPA coverage of Product Liability

 

http://www.claytonutz.com/downloads/TheInternationalComparativeLegalGuideto_ProductLiability2008.pdf

 

Additional legislation, like the US Product Liability laws where a Judge applies punitive sanctions against a manufacturer - usually around $10 million per shot, was introduced in Australia, I think in the mid nineties, and I can remember being briefed on it by the company lawyer, who said it was not likely to be actively used until the first case went through the High Court, and that hasn't happened yet. I can't remember any of the details.

 

Yes, compliance with ADR's is a defence, so vehicles are now not modified away from ADR compliance, except by low volume compliance, or State Signatory compliance.

 

The Motor Vehicle Standards Act 1989 called up the ADR's and effectively ended the import of cheap second hand cars into WA. I argued for the name of the Bill to be changed to Motor Car Standards Bill to avoid low volume truck production being caught up in it but lost.

 

Trucks then became an issue, because every one of them needs to be modified to carry a load which will still ensure compliance. So the Motor Vehicle Standards Act called up a National Code of Practice, and if you complied with this you had the same protection as the ADR.

 

Operation of compliant trucks also became an issue because by incorrect loading you could take a truck outside its ADR compliance, and that was covered by the Load Restraint Guide.

 

So we finished up with a nesting group of regulations which has seen a huge reduction in truck accidents, but a number of extinctions of vehicle types such as Long Tom steel carriers.

 

It became obvious after a few years that not everyone was playing the game on the Code of Parctice, so we got the Road Safety (Vehicles) Act 1999 which mandated the Code of Practice

 

(which by now had morphed into Vehicle Standards Bulletins) into law. (Victorian Act - each State had its own Act to do this)

 

Even after this, there was a big percentage of truck suppliers and body builders - around 40% - who just continued to build now-illegal trucks.

 

People continued to die so Chain of Responsibility legislation was introduced to bite the management chain up to director level, and once the Chardinay set began to be prosecuted, compliance took a remarkable step forward to the point where only a few non- compliers exist.

 

I can see a parallel to this trend right now in RA and GA, and with CoR being so successful, you can look forward to it coming to an airfield near you eventually.

 

The downside of this is that other standards which we used to consider voluntary now matter. For example the Australian Standards, and we are now paying for the years when we left a few industry people to meet, discuss and implement impractical standards we can no longer ignore. As you would expect plaintiff lawyers have the biggest interest in these.

 

We also can't afford to ignore cutting edge technology which is moving very fast all over the world at the same time due to our digital age.

 

 

[Dafydd Llewellyn]

This is a reasonably comprehensive explanation of the negligence and TPA coverage of Product Liabilityhttp://www.claytonutz.com/downloads/TheInternationalComparativeLegalGuideto_ProductLiability2008.pdf

Additional legislation, like the US Product Liability laws where a Judge applies punitive sanctions against a manufacturer - usually around $10 million per shot, was introduced in Australia, I think in the mid nineties, and I can remember being briefed on it by the company lawyer, who said it was not likely to be actively used until the first case went through the High Court, and that hasn't happened yet. I can't remember any of the details.

 

Yes, compliance with ADR's is a defence, so vehicles are now not modified away from ADR compliance, except by low volume compliance, or State Signatory compliance.

 

The Motor Vehicle Standards Act 1989 called up the ADR's and effectively ended the import of cheap second hand cars into WA. I argued for the name of the Bill to be changed to Motor Car Standards Bill to avoid low volume truck production being caught up in it but lost.

 

Trucks then became an issue, because every one of them needs to be modified to carry a load which will still ensure compliance. So the Motor Vehicle Standards Act called up a National Code of Practice, and if you complied with this you had the same protection as the ADR.

 

Operation of compliant trucks also became an issue because by incorrect loading you could take a truck outside its ADR compliance, and that was covered by the Load Restraint Guide.

 

So we finished up with a nesting group of regulations which has seen a huge reduction in truck accidents, but a number of extinctions of vehicle types such as Long Tom steel carriers.

 

It became obvious after a few years that not everyone was playing the game on the Code of Parctice, so we got the Road Safety (Vehicles) Act 1999 which mandated the Code of Practice

 

(which by now had morphed into Vehicle Standards Bulletins) into law. (Victorian Act - each State had its own Act to do this)

 

Even after this, there was a big percentage of truck suppliers and body builders - around 40% - who just continued to build now-illegal trucks.

 

People continued to die so Chain of Responsibility legislation was introduced to bite the management chain up to director level, and once the Chardinay set began to be prosecuted, compliance took a remarkable step forward to the point where only a few non- compliers exist.

 

I can see a parallel to this trend right now in RA and GA, and with CoR being so successful, you can look forward to it coming to an airfield near you eventually.

 

The downside of this is that other standards which we used to consider voluntary now matter. For example the Australian Standards, and we are now paying for the years when we left a few industry people to meet, discuss and implement impractical standards we can no longer ignore. As you would expect plaintiff lawyers have the biggest interest in these.

 

We also can't afford to ignore cutting edge technology which is moving very fast all over the world at the same time due to our digital age.

Mainstream aviation is already there - has been, long before the ADRs came into existence. That's all set out in CASR Part 21. Where we are currently having problems, is with the notion that it is desirable to have watered-down standards for recreational aircraft in order to reduce their cost; and lax enforcement due to the absence of a certificate of Airworthiness and a Maintenance Release, in the RAA system.

 

 

[turboplanner]

The way I see it that has been unravelling for some time, so its possible the same process, CoR will be used to clean it up. You can see the strong resistance to responsibility in this thread and any other safety thread, in the reluctance of board members to set up safety structures like other Associations andso on, so the signs are there that a more formal approach will be required sooner or later. It'such more preferable if this is done without being triggered by a collision with a QLink or something similar; working to a deadline of days is not a nice experience.

 

 

[Dafydd Llewellyn]

The way I see it that has been unravelling for some time, so its possible the same process, CoR will be used to clean it up. You can see the strong resistance to responsibility in this thread and any other safety thread, in the reluctance of board members to set up safety structures like other Associations andso on, so the signs are there that a more formal approach will be required sooner or later. It'such more preferable if this is done without being triggered by a collision with a QLink or something similar; working to a deadline of days is not a nice experience.

Yep; I think the party's over. I have always seen the AUF/RAA movement as a re-invention of grass-roots GA; and inevitably, the time has come for the next step in that process.

 

 

[Yenn]

I was only pointing out that GA pilots do not have to appoint a duty pilot for the day. Who said that they are exempt from duty of care.

 

The RAAus requirement is rubbish and I have never seen it happen so I am surprised at the lack of accidents and incidents that have occured because of the non compliance. If a safety rule is completely ignored and there are no accidents, I assume that the rule is unnecessary.

 

 

[Guest Andys@coffs]

In the same way that I acknowledged that where there was a field duty safety officer or <insert your clubs nomenclature here> then it was always because the airfield committee under their own rules or safety management plan or whatever chose to have one and never because someone said "Oh RAAus rules specify we must have one". What's more I have only ever seen it once at an airfield I was a member of and then it was done in a gliding context where heaps of folk all playing at once was the norm. I personally have never seen such a "Duty Pilot" appointed at any other place I have ever been. I acknowledged that I don't go looking for it so maybe it does exist, especially as the majority of times I fly I, as far as I know, am mostly on my own...... Practically I wouldn't go looking if someone else was in the air or even in their aircraft because even if I found someone else to be King for a day, then how exactly does that assist with the folk already in the air, or the other folk who are not of RAAus.... A Cynics view might well be that we must be seen to be seen to be doing something.....all in all about as useful as an ASIC I reckon, but perhaps better in that I didn't have to pay out heaps of $ for it.

 

I have read operations at a non towered airfield as was suggested and nothing in it suggested that a Duty Pilot was to be appointed, but rather that all the things I was taught and continue to do I should continue to continue.......

 

If GA pilots are not obligated to do this then RAAus should not be obligated. If individual Airfield management committees who are best placed to manage their own liability exposure choose to do this then all who play at that airfield need to comply and not just some because of the colour and style of license/certificate.

 

Andy

 

 

[turboplanner]

but failed, because it would make CASA liable at the point of sale

In Australia, governments have been very careful to distance themselves from claims; you are looking for an academic definition, but in the cases I've seen the lawyers have come after all the people who were responsible for the product and sold it, accidents can happen when the first piece of aluminium is delivered, although CASA are in a unique position of interfering in our business so could sometimes be a co-defendant right back at the design phase, and after the sale in the servicing and operation of the aircraft, and they can paint a big red target on their backs if they know something is wrong but still allow it to continue. The auto industry operates directly from the base Department which we did in the Department of Civil Aviation days, and that's the safest option for the government.

 

However, that does not, so far as I can see, carry over to the question of carrying somebody at no cost, simply for their pleasure, in the spare seat in an experimental aircraft; there could hardly be a more obvious risk (apart, perhaps, from bungee jumping) and the placards and briefing required nail the lid on that, I think.

Kaz was talking about Victorian law and I'm not a lawyer and can't get into detail, but the plaque is a warning so the person getting into the aircraft can't claim they were expecting the same level of near absolute safety that Qantas have achieved; it does not absolve you from a negligence claim if you are negligent. I've previously posted my experience losing one case because we advertised an event as a family event and someone was injured, then losing another one because we were negligent but in particular hadn't made it clear the plaintiff had the right to sue.

 

If for example you were operating out of a property with forest all round the strip offering no place for a successful EFATO, and the passenger was killed as you came down through the trees, you could be prosecuted under the crimes act as a softener, and then sued for negligence on the grounds that you had a duty of care to ensure the airfield was safe.

 

However to get answers to your questions which carry any weight you need to sit down with a PL lawyer with a list of questions. In the briefings I've had, I've found the explanations reasonably simple.

 

I'm posting a story on the thread "Public Liability" about a Company Owner charged with Manslaughter after allegedly failing in his duty of care to maintain effective brakes, and a story on a huge Chain of Responsibility Fine.