Passenger sues pilot for £100,000 payout

[Bruce Tuncks]

I'm in agreement with farri, in that I am not going to stop taking passengers. There is risk in everything we do and I reckon this risk to be very small. And you can lower the risk even more with careful operation over landable terrain and good maintenance.

 

If the risk is one in a million, then it is almost negligible given that your chances of dying in the next 12 months ( Australian men in their 60's) is 10,000 in a million.

 

Gosh you are much more likely to be killed by lightning.

 

 

[boleropilot]

hey Jerry, the old Jag wasn't insured - it was only worth about $2k and I only took it out that day for a (promised) family visit because the family car wouldn't start...good old Murphy !

 

I was naïve enough to accept my solicitors opinion that there was very little doubt I would be found at fault in any way - turned out a real goatrope and I learned a valuable lesson (including driving an uninsured car)

 

BP

 

 

[Jerry_Atrick]

Well, one of the conflicts of interest is a solicitor's advice re litigation - the more you do it, the more they get....

 

Feel for you and can say I have had a few tough lessons learned over the years (and no duobt, more to come).

 

 

[Ron5335]

There's always 2 sides to a story

 

Insurance loophole leaves Bali scooter crash victim out of pocket

 

Rather than warn other tourists, a better result could be achieved by making tourists undergo a "Common Sense Test" before they try leave the country.

 

No Licence,No Helmet

 

It's always someone else's fault......... That's the Aussie Way.

 

Here in Aus. This guy would just have to sue the bloke who hired him the bike to get a good result.

 

 

[turboplanner]

There's always 2 sides to a storyInsurance loophole leaves Bali scooter crash victim out of pocket

Rather than warn other tourists, a better result could be achieved by making tourists undergo a "Common Sense Test" before they try leave the country.

 

No Licence,No Helmet

Australian Hire companies are not likely to hire any vehicle without the appropriate licence and safety equipment, so this situation is not likely to occur here.

 

It's always someone else's fault......... That's the Aussie Way.Here in Aus. This guy would just have to sue the bloke who hired him the bike to get a good result.

You've been reading too many Mr Risky posts on here; a motorbike accident is handled by the State third party insurance system, and if you were riding without protective gear or a motorcycle licence, you would be facing about the same amount of hurt as your injuries.

If you thought you could sue the hirer, you could try, but you would have to get over the hurdle of proving the hirer was negligent; something like a provable defective brake system.

 

 

[Ron5335]

Turbs,

 

It's just an overall summary of the situation.

 

I lived in an era where we have gone from where safety was ruled by the Darwin Principal, where stupid people doing stupid things were weeded out by their actions to a situation where everything thing is "dumbed" down to the lowest level to protect and preserve those effected by the now defunked Darwin Principle.

 

One Result.

 

There used to be !00's of boat sheds up & down the coastline who used to rent out putt-putt boats for people to tour and explore the water ways, these are now gone because of liability issues, so it would seem that the current system recognizes that the "Average Joe" does not possess the intelligence to handle the situations that may arise in operating the said putt putt boat. .

 

Now the people who are survivors of this new system are breeding, and that's more of a worry.

 

 

[turboplanner]

Turbs,It's just an overall summary of the situation.

I lived in an era where we have gone from where safety was ruled by the Darwin Principal, where stupid people doing stupid things were weeded out by their actions to a situation where everything thing is "dumbed" down to the lowest level to protect and preserve those effected by the now defunked Darwin Principle.

 

One Result.

 

There used to be !00's of boat sheds up & down the coastline who used to rent out putt-putt boats for people to tour and explore the water ways, these are now gone because of liability issues, so it would seem that the current system recognizes that the "Average Joe" does not possess the intelligence to handle the situations that may arise in operating the said putt putt boat. .

 

Now the people who are survivors of this new system are breeding, and that's more of a worry.

The survivors who are breeding will be in Bali, Kathmandu or walking Europe, or renting Jetskis or 15 hp dinghies.

The putt putts from memory were very low cost hire, but very limited in where you could go - you couldn't use them for fishing. The operation relied on them being left on the beach in a row overnight. I can recall one operator shutting down because of the cost of vandalism, so I suspect the market just changes and they went out of business like the city-fringe holiday towns. Maybe people were drowned and sued and won Ron, but just didn't make the headlines.

 

 

[Ron5335]

The survivors who are breeding will be in Bali, Kathmandu or walking Europe, or renting Jetskis or 15 hp dinghies.

Sorry Turbs but they are here, and form a part of the "Whatever your problem is, society is to blame generation"' and are encouraged by a media blitz by numerous law firms roughly stating "That if you have had an accident or think you received the rough end of the pineapple from someone" then come and see us for compensation.

 

I can get out of bed, sneeze, bend over, start a lawnmower and risk hurting my back. Why then (Using this case as an example) should a boat owner even be considered liable if a hirer injures his back in starting the 3 1/2hp motor of the boat?

 

The current system would prosecute a case based on negligence by the owner as not providing the necessary training, inadequate supervision and a host of other reasons, when in simple terms it can happen to anyone at anytime.

 

In the meantime the owner goes bankrupt trying to defend himself.

 

 

[turboplanner]

Sorry Turbs but they are here, and form a part of the "Whatever your problem is, society is to blame generation"' and are encouraged by a media blitz by numerous law firms roughly stating "That if you have had an accident or think you received the rough end of the pineapple from someone" then come and see us for compensation.I can get out of bed, sneeze, bend over, start a lawnmower and risk hurting my back. Why then (Using this case as an example) should a boat owner even be considered liable if a hirer injures his back in starting the 3 1/2hp motor of the boat?

The current system would prosecute a case based on negligence by the owner as not providing the necessary training, inadequate supervision and a host of other reasons, when in simple terms it can happen to anyone at anytime.

 

In the meantime the owner goes bankrupt trying to defend himself.

Most cases, because the amounts are big, make the newspapers. In the absence of thousands of examples of negligence, I would call it a rare occurrence when one is settled out of court and much rarer when one actually gets to court.

Same as you don't see beer bottles lining the side of the highways any more; most people have lifted their game.

 

How you could injure your back starting a 3 1/2 hp outboard, I wouldn't know, but again, you'd have to prove that the owner of that particular motor was negligent, and if it was exactly the same as a million other 3 1/2 hp outboards around the world, that would be some job.

 

 

[Ron5335]

Turbs,

 

We are on different pages.

 

Putt Putt boats are conventional timber clinker boats (14 - 16ft) powered by 3.5 - 5hp either Simplex, Chapman or Blaxland Rae engines that are inboards

 

and require starting by wrapping a belt (Usually leather) around the flywheel to start them. (There's your back problem in starting)

 

Something that was nostalgic, now gone

 

 

 

[turboplanner]

That's a slightly bigger version of what I was thinking about; I've been out in one. With that flywheel and lower compression, starting doesn't look too bad.

 

 

[Jerry_Atrick]

I ageed with both Ron and Turbs posts. IMHE, there is elements of truth in both of them. Although, I am happy to say these guys are still going strong: No Licence Fishing Boat Hire Melbourne | Bluey's Boathouse

 

As a 16 year old, I used to take the train from Ormond to Mordialloc and hire from these fellas (there were a couple of others I used to hire from as well, but alas, no web sites) for fishing - snapper mainly. I can't recall the hp on the engines and to be honest, I know some were inboard and some were outboard - oddly, although I have a pretty good memory despite poisoning my brain, the only boats I can recall starting (using a button to an electric starter motor) were from a crowd that rented out orangey/beigy boat. I think it was Mordialloc Boat Hire - who I preferred as they were inboard motors and properly enclosed cabin. Can't recall the motors in the boats of Bluey'sbut they look outboard now (and I think they were, then - I have vague memories of squeezing a plunger on something - but there was another boat hire comany that had red and white livery - so may have been them).

 

I agree with Turbs in that negligence has to be proved. I can only go on English and Welsh law, of which when I studied it, it drew from Aussie, Canadian, US and NZ cases as well, and I am guessing the same went for all other ex colonies. The concern I have is that the threshold of negligence has changed as society has evolved and there is an increasing expectation that insurance will pick up the tab anyway. I am not familiar with different Aussie state's civil legal procedure, but in the US, where juries decide, the plaintiffs' counsel will always play the poor victim against the business who is insured.. generally speaking, there seems to be a move to the insurance company footing the bill. I think this is wrong. And this is why I agree with Ron.

 

I don't agree with the strict liability of the pilot/operator in an accident. The ATSB//AAIB/NTSB and other countries reports are littered with reports where an accident has been the result of some oversight (or fraudulent practice) of the maintenance shop, where whatever the problem was, was not easily identifiable, if at all, by the pilot in their daily check. Shouldn't the maintenance shop be liable in that case?

 

However, for most other things, maybe the pilot is responsible.. For example, an engine failure that could not be foreseen occurring over tiger country - should the pilot not fly a route where they have a field suitable for emergency landings dotte along their route, even if it means a detour and added cost? But then, if you're flying from YMMB to King Island, does the px not accept a degree of risk should the engine fail over Bass Strait (for flying across the Channel here)?

 

Always tough questions. UK has seen fit to remove doubt as to who's liable. A procedural expediency, but not always fair.

 

 

[turboplanner]

Unintended Negligence in both Australia and throughout the UK is based on the 1932 Donoghue v. Stevenson precedent case.

I haven't checked the US, Canadian and NZ systems.

 

The concern I have is that the threshold of negligence has changed as society has evolved and there is an increasing expectation that insurance will pick up the tab anyway. I am not familiar with different Aussie state's civil legal procedure, but in the US, where juries decide, the plaintiffs' counsel will always play the poor victim against the business who is insured.. generally speaking, there seems to be a move to the insurance company footing the bill. I think this is wrong. And this is why I agree with Ron.

It's still the same precedent case, so there hasn't been much room for change since 1932.

What makes it look like change perhaps is the reporting of cases, particularly those where curly points of law produce a different outcome than the first quick scan of a newspaper, e.g. main dives into the Murray River, gets hurt sues Council. vs the final details on which the judge made the decision.

 

I don't agree with the strict liability of the pilot/operator in an accident. The ATSB//AAIB/NTSB and other countries reports are littered with reports where an accident has been the result of some oversight (or fraudulent practice) of the maintenance shop, where whatever the problem was, was not easily identifiable, if at all, by the pilot in their daily check. Shouldn't the maintenance shop be liable in that case? [ /quote] I'm curious about that too because there are quite a few examples of where CASA called the shot by virtue of what is said in its regulation,and, after cleverly stepping aside from most PL cases, could become the defendant in one. Unless you're a lawyer its best to stay away from a specific legal discussion like your example; but a Pl lawyer could explain the intricacies of that to you.

 

However, for most other things, maybe the pilot is responsible.. For example, an engine failure that could not be foreseen occurring over tiger country - should the pilot not fly a route where they have a field suitable for emergency landings dotted along their route, even if it means a detour and added cost? But then, if you're flying from YMMB to King Island, does the px not accept a degree of risk should the engine fail over Bass Strait (for flying across the Channel here)?

A PL lawyer could spell this out for you. I've never flown over tiger country, and never heard the term before becoming involved with RA. If it's a band of scrub you can glide over fine, but what's point of trying to save some time if you are committing yourself to a fatality if the engine fails. You should ask the PL lawyer about attempting to hand over a tort - asking him/her to accept all or part of your duty of care.

[Jerry_Atrick]

Unintended Negligence in both Australia and throughout the UK is based on the 1932 Donoghue v. Stevenson precedent case.

I haven't checked the US, Canadian and NZ systems.

Unintended negligence isn't in the vernacular of DvS, but I guess this is an Aussie reference if legal speak doesn't include recklessness, etc.

 

It's still the same precedent case, so there hasn't been much room for change since 1932.

What makes it look like change perhaps is the reporting of cases, particularly those where curly points of law produce a different outcome than the first quick scan of a newspaper, e.g. main dives into the Murray River, gets hurt sues Council. vs the final details on which the judge made the decision.

 

I looked for the [edit after fixing quotes] Barooga case name in the thread but couldn't find it.. But for argument's sake, I don't think it matters as there are other cases in this thread (e.g. fellow falling off a precipice). In DvS, two reasons were cited as the ratio for being able to find (unintended) negligence; a duty of care and the neighbour (proximity) principle. a) the presence of a snail in the drink could be attributed to negligence in the manufacturing process to ensure there were no obvious contaminants; and b) the glass was opaque - not allowing the consumer - whoever they were - to inspect the contents before drinking them.

 

This, IMHO, is sound reasoning.. Something totally within the control of the manufacturer while they are producing their product coupled with the inability for a reasonable consumer to be able to identify and avoid the tortfeasannce (apologies for misfeasance, earlier). In 1932,the threshold is set - it has to be within the reasonable control of the defendant and it also has to be that the plaintiff (in the UK now, complainant) could not have reasonably discovered and avoided the tortfeasance beforehand (which is effectively contributory negligence ). However, from the cases above and the very quick skim of the Barooga case (@turboplanner - can you pls let me know the case name again - couldn't find it), there seems to have been, what would have been considered in 1932 reasonable efforts by the defendant to educate the plaintiff of the dangers (and the man on the Clapham omnubus would have known anyway), but somehow, negligence was found.

 

In the case of the person who did not see the signs or realise that a fence was there to put a barrier between them and the precipice - and where theyintentionally climbed over it and suffered injury or death as a result of falling of the precipice or land giving way beyond the fence... if we apply the two test from DvS - was it within the control of the controlling authority? No. Was it reasonably foreseeable that to go beyind the signs and climb a bondary fence may put you in danger - yes.. If this was the case that went to the house of lords in 1932, then it may have failed on the criteria set by D&S. The fact that the plaintiff missed the signs and climbed over a barrier fence would have indicated they were of the Darwin theory gene and, well, let the loss lie where it falls. Although, there are exceptions, of course.. A toddler or young-ish child (say, less than 12 years old) may be different. And what about the autistic or otherwise mentally incapacitated adult? Would not some of the blame lay in their carers/parents who should be keeping an eye on them?

 

From the Barooga case, I am guessing some kid sadly hit their head on snag or submersed log. We were always taught to check rivers, gorges and indeed some sea areas (rocky areas) before diving in. Unlike a manufacturer, does an authority have an obligation to clear a snag in a popular swimming area of a river the second it falls or gets blocked there? If it was there for weeks, especially after being notified, then I would say yes.. But if it appeared after a regular inspection, it is bad luck of the plaintiff, but, really, they can swim about before diving in to check there is no debris that will connect with the flour-filled scone.. (again, I only skimmed this case so I may be totally off)..

 

DvS set the concept of negligence to the neighbour - but it limited negligence to what was in control of the manufacturer and to where the neighbour couldn't reasonably be expected to identify the mischief and even if they could, they could not reasonably avoid it. Since then, it appears the law is willing to find negligence beyond those simple concepts and this is what I mean by the threshold of negligence has changed - it is easier to find it today than what it was.. And thee are many commonwealth countries where negligence is cited as obiter that helps that.

 

BTW - I am no lawyer - though so don't think anything I have said is an anyway qualified.

[turboplanner]

Unintended negligence isn't in the vernacular of DvS, but I guess this is an Aussie reference if legal speak doesn't include recklessness, etc.

I hadn't seen it here before either, but it came up in google searches for UK and USA torts as a separation from Intended negligence. Outside the legal fraternity we would talk about it as public liability.

 

I looked for the [edit after fixing quotes] Barooga case name in the thread but couldn't find it.. But for argument's sake, I don't think it matters as there are other cases in this thread (e.g. fellow falling off a precipice). In DvS, two reasons were cited as the ratio for being able to find (unintended) negligence; a duty of care and the neighbour (proximity) principle. a) the presence of a snail in the drink could be attributed to negligence in the manufacturing process to ensure there were no obvious contaminants; and b) the glass was opaque - not allowing the consumer - whoever they were - to inspect the contents before drinking them.

You didn't find it because I'd had a memory lapse; it was Ballerini v. the Shire of Berrigan. I've attached details below.

The other aspect of the DvS case was the inclusion of a "foreseeable risk".

 

I haven't studied the precipice case details, so I'll leave that.

 

From the [berrigan] case, I am guessing some kid sadly hit their head on snag or submersed log. We were always taught to check rivers, gorges and indeed some sea areas (rocky areas) before diving in.

This would apply along several thousand kilometres of the Murray.

 

Unlike a manufacturer, does an authority have an obligation to clear a snag in a popular swimming area of a river the second it falls or gets blocked there? If it was there for weeks, especially after being notified, then I would say yes.. But if it appeared after a regular inspection, it is bad luck of the plaintiff, but, really, they can swim about before diving in to check there is no debris that will connect with the flour-filled scone.. (again, I only skimmed this case so I may be totally off)..

If the Council had stayed out of it, it would have been a case of diving into the Murray River, where there could be snags from time to time.

However, from memory the Shire fences and signposted and promoted this hole as a swimming hole, and therefore had a duty of care for any forseeable risks, which includes snags which may drift into it.

 

Ballerini v Shire of Berrigan went for several years and there is quite a bit on it on the web, including training analysis by some law firms. I picked the last two because it had some twists and turns which were only ironed out at the Appeal.

 

S3966.pdf

 

 

S3966.pdf

 

S3966.pdf

[turboplanner]

In the Shire of Berrigan case, snags were a reasonably forseeable risk; the paddle-wheelers were fitted with winches, and were constantly winching snags out of the way.

 

So in that case the threshold hasn't changed.

 

As I mentioned, I try not to get into details, but you have to prove the defendant had a duty of care in the first place, and then that the defendant failed to discharge that, and there can be a lot of argy-bargy as each side tries to claim the higher ground. Also most cases are settled out of court, probably to try to reduce the costs, and we virtually never get to see what the agreement was based on (for example if the Shire of Berrigan case had been settled out of court, and all we knew was that someone dived into the Murray River and received an out of Court settlement, we would probably think that was crazy).