ELAAA post on facebook...

[robinsm]

I saw this post from ELAAA today.  What does this mean for ultralight homebuilt and current 10 and 19 reg aircraft.   Are the GA maintenance rules to apply.   Will it price small home built and self made lightweight aircraft out of the market.   Please clarify?????   I am a l;ittle concerned that the lower end of this sport is going to be ignored and costed out of the realm of affordability for the average wage earner.

 

"... it will be based on a different platform. All Australian aircraft need to be and should be VH registered wether it be VH and numbers or letters and all pilots should have ICAO compliant licences not cetificates or RPL's which are not recognized anywhere else in the world."

 

 

[kasper]

If that is the direction ELAAA want to push for that would be a mistake in my opinion.

 

But there are some things that I think could be benefitcial:

 

Moving RAAus, ASRA and HGFA aircraft (all currently not using VH-) onto the VH register would be of benefit ... its just a relatively simple thing ... and would provide consistency across all Australian aircraft ... but all owners details would then be available through the CASA registry and you could decide if that was good, bad or indifferent.

 

Moving all pilots to ICAO licencing would be a disaster ... Australian aviation medicals are not even aligned with ICAO and the ICAO training requirements are beyond what is really needed for day VFR recreational flying.

 

Moving to have a CASA non-ICAO licence issued to HGFA/RAAus and ASRA pilots on the recommendation of their training organisation being RAAus/HGFA or ASRA would be a positive move - many other countries issue non-ICAO licences to microlight/ultralight pilots so its not even particularly novel .  Membership and adherence to the ops requirements of the orgs would still exist so CASA would be doing very little new/different but would get a lot better oversight of exactly how many pilots and aircraft are out there without having to go through associations.

 

The added benefit is that Australian sports aircraft and pilots will be viewed more favourably.  Trust me, its a very uphill battle discussing RAAus certificates and registrations with a foreign aviation authority to obtain permissions etc .  Been there and done that - took two years.  BUT with a non-ICAO licence and aircraft but with G- on the side it was very easy to discuss with other national authorities rights to fly and overfly ... got permission from 4 African nations in under 2 weeks and they didn't even charge me.

 

 

[old man emu]

I think it's a bit daft that ALL registerable aircraft in Australia don't carry VH- identification. At the moment, the three letter systems allows for up to 17,576 unique registration IDs. Add one more letter and you have a possible 456,976 unique ID's. It would not stop RAAus continuing to administer the aircraft it does already. If CASA wanted to do a ramp check on any aircraft, the technology is there for the inspector to access the registration database to see the details of the aircraft and what registration criteria it should meet.

 

CASA has the ability to issue pilot's licences with all kinds of restrictions. It could issue a licence based on anything from an RAAus pilot's certificate to an ATPL one simply by identifying what rights each licence permits the holder to exercise.

 

I'd reckon that CASA could work the rules so that the medical for a Day VFR rotary or fixed-wing licence MTOW 1200 kg would be the similar to a Light Rigid Drivers Licence medical standard. That is the same standard as for driving a car or motorcycle. A Light Rigid (LR) licence is required for any rigid vehicle greater than 4.5 tonnes but no greater than 8 tonnes GVM or which seats more than 12 people (including the driver). The only "medical" examination for that licence is an eye test.

 

I must be realistic about CASA doing anything. If wishes were horses, beggars would ride.

 

 

[turboplanner]

I think it's a bit daft that ALL registerable aircraft in Australia don't carry VH- identification. At the moment, the three letter systems allows for up to 17,576 unique registration IDs. Add one more letter and you have a possible 456,976 unique ID's. It would not stop RAAus continuing to administer the aircraft it does already. If CASA wanted to do a ramp check on any aircraft, the technology is there for the inspector to access the registration database to see the details of the aircraft and what registration criteria it should meet.

 

CASA has the ability to issue pilot's licences with all kinds of restrictions. It could issue a licence based on anything from an RAAus pilot's certificate to an ATPL one simply by identifying what rights each licence permits the holder to exercise.

 

I'd reckon that CASA could work the rules so that the medical for a Day VFR rotary or fixed-wing licence MTOW 1200 kg would be the similar to a Light Rigid Drivers Licence medical standard. That is the same standard as for driving a car or motorcycle. A Light Rigid (LR) licence is required for any rigid vehicle greater than 4.5 tonnes but no greater than 8 tonnes GVM or which seats more than 12 people (including the driver). The only "medical" examination for that licence is an eye test.

 

I must be realistic about CASA doing anything. If wishes were horses, beggars would ride.

 

If CASA were to start registering aircraft within their system, even with ther restrictions you mentioned, it probably poses some liability issues. At the moment the buck stops at RAA's door unless there is a CASA regulation involved, in which case CASA assumes prime responsibility and RAA secondary.

 

 

[Jim McDowall]

Turbs, if CASA was playing by the ICAO rules completely all aircraft would be registered as VH. The only reason RAAus exists in this form is by way of it being recognised as a "sports aviation body" in the legislation and CASRs. Being on the VH register is unlikely to incur any liability unless the aircraft moves and then all of the rules apply, (except the CASR's from which RAAus aircraft are exempted) apart from those which the various CAO's exempt RAAus aircraft.

 

Using liability as an excuse for not doing anything is a little bit like the current trend of labelling people as "racist" for holding a view which is different to yours. Once the flag is waved is it is hard to take it down.

 

 

[Yenn]

Where is the post from ELAAA?

 

 

[turboplanner]

Turbs, if CASA was playing by the ICAO rules completely all aircraft would be registered as VH. The only reason RAAus exists in this form is by way of it being recognised as a "sports aviation body" in the legislation and CASRs. Being on the VH register is unlikely to incur any liability unless the aircraft moves and then all of the rules apply, (except the CASR's from which RAAus aircraft are exempted) apart from those which the various CAO's exempt RAAus aircraft.

 

Using liability as an excuse for not doing anything is a little bit like the current trend of labelling people as "racist" for holding a view which is different to yours. Once the flag is waved is it is hard to take it down.

 

RAA in its present form meets Australia's laws very well as a self administering body, which I suspect is why it was set up that way.

 

 

[Jim McDowall]

RAA in its present form meets Australia's laws very well as a self administering body, which I suspect is why it was set up that way.

 

Actually, like any company, members are effectively powerless to bring the administration or board to account. ASIC are no help - the only way is to effect accountability is the courts on a issue by issue basis; and who cares that much?. Associations are the same. This is no way to administer aviation law.

 

 

[spacesailor]

RAA is shedding the 95-10 registration by any means it can.

 

They,  can go VH experimental, then be under someone else's administration.

 

" Using liability as an excuse for not doing anything is a little bit like the current trend of labelling people as "racist" for holding a view which is different to yours. Once the flag is waved is it is hard to take it down."

 

Same as the opposite to the Hetro's. 

 

Always red-under lined, (spelling). and never in the alphabetical name list that the other's use H.

 

spacesailor

 

 

[old man emu]

Well, now we know what we all fear - Liability. It has become the ogre in our Society. Nobody can do anything without appeasing this beast.

 

 

 

 

 

 

 

 

If the Parliament of the Commonwealth of Australia makes laws concerning an activity, then by definition of Democracy, those laws are the will of the People. How can the Parliament be liable if someone acts in contravention of those laws?

 

Here's an example of Liability gone mad. I live next to a park in which the Council has erected modern, safe playground equipment for the use of the community. There are swings amongst that community. Because they are exposed to the elements, the chain anchors of the swings lose their lubrication and squeak. I said to the wife, "I'm going to nick down there and give those swings a squirt of WD-40 to quieten them. " She said, "No way! If any kid has an accident after you've done that, and they find out it was you who did it, they'll blame you for the accident."

 

So now I have to contact Council and ask them to service the equipment. Then wait until their maintenance crew can schedule the five-minute job. Meanwhile, squeak, squeak, squeak.

 

 

[turboplanner]

Well, now we know what we all fear - Liability. It has become the ogre in our Society. Nobody can do anything without appeasing this beast.

 

 

 

 

 

 

 

 

If the Parliament of the Commonwealth of Australia makes laws concerning an activity, then by definition of Democracy, those laws are the will of the People. How can the Parliament be liable if someone acts in contravention of those laws?

 

Here's an example of Liability gone mad. I live next to a park in which the Council has erected modern, safe playground equipment for the use of the community. There are swings amongst that community. Because they are exposed to the elements, the chain anchors of the swings lose their lubrication and squeak. I said to the wife, "I'm going to nick down there and give those swings a squirt of WD-40 to quieten them. " She said, "No way! If any kid has an accident after you've done that, and they find out it was you who did it, they'll blame you for the accident."

 

So now I have to contact Council and ask them to service the equipment. Then wait until their maintenance crew can schedule the five-minute job. Meanwhile, squeak, squeak, squeak.

 

I’m not a lawyer so this is not legal advice, but I think your wife has misinterpreted the law. Donoghue v Stevenson is very clear on the condition of your duty of care being breached if there is a “foreseeable risk” of someone being injured, A squirt of WD40 on. Swing in my opinion would not trigger Breach, so alleged false alarm.

 

 

[Jim McDowall]

My understanding is that the duty of care can be managed if you take to ameliorate identified risks, hence the warning placard on 95.10 and experimental aircraft. CASA has sought to do this in other instances such as in the Jabiru engine mess a while back. Once  a party has been made aware of the risk, a large part of their decision to continue (ie get in the plane) transfers the risk to them eg like boarding a DC10 in late 70's)

 

Anyone can identify a risk, the follow up is how can the risk be managed and I fail to see how "tick and flick" systems can address cultural and training issues.

 

 

[turboplanner]

My understanding is that the duty of care can be managed if you take to ameliorate identified risks, hence the warning placard on 95.10 and experimental aircraft. CASA has sought to do this in other instances such as in the Jabiru engine mess a while back. Once  a party has been made aware of the risk, a large part of their decision to continue (ie get in the plane) transfers the risk to them eg like boarding a DC10 in late 70's)

 

Anyone can identify a risk, the follow up is how can the risk be managed and I fail to see how "tick and flick" systems can address cultural and training issues.

 

No that's not correct; you can't transfer a tort. Placards and signs merely advertise to the person that they are about to enter or take part in an area of higher risk for them. It gives them the option to walk away. Two cases were quoted on here drawing similar conclusions as you mention above, however, in the powered aircraft case the pilot didn't have to pay out becaise the judge found that he had not been negligent, and there was a gliding case which had been similarly misunderstood. I learnt this the hard way when we lost a case where a race meeting had been advertised as a "family event" without any warning and we copped a blast for that (we were found negligent for the base reason). We then made it mandatory for all 100 race tracks to have  a "Motor Racing is Dangerous" clause on the programme, and copped another couple of million loss after the plaintiff had assumed he couldn't claim because of the clause, but a few years later was told by a friend to sue us. We were found to have been negligent because two catch fence cables had not been joined in accordance with the Australian Standard and as a result had let a car fly into the crowd. On that occasion we received a verbal lashing because we hadn't advised the plaintiff that he had a right to sue if we were negligent, so we had to go out again and change all the programmes to say something like "Motor Racing is Dangerous" etc. "but you have the right to sue if the Promoter is negligent."

 

Now that I think about it, those aircraft placards are missing those last few words.

 

Practically, "tick and flick" systems are like aircraft check lists; I've read many accident reports where the pilot just gave the check item a cursory glance and missed the obvious message. trainers and enforcement authorities point out over and over again that you cannot flick and tick, you must "live the legislation" is the phrase they use, so people should not be criticising others who use a check list to make sure they don't miss a critical item.

 

 

[old man emu]

I’m not a lawyer so this is not legal advice, but I think your wife has misinterpreted the law. 

 

I agree with your opinion. You can try to change the missus' opinion, but you've got as much chance as King Knute.

 

 

[Jim McDowall]

In Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at 520 Gleeson CJ said:

 

“In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.”

 

Turbs, in the motor racing cases you refer to, were they appealed to the High Court?

 

 

[turboplanner]

In Swain v Waverley Municipal Council [2005] HCA 4; (2005) 220 CLR 517 at 520 Gleeson CJ said:

 

“In legal formulations of the duty and standard of care, the central concept is reasonableness. The duty is usually expressed in terms of protecting another against unreasonable risk of harm, or of some kind of harm; the standard of conduct necessary to discharge the duty is usually expressed in terms of what would be expected of a reasonable person, both as to foresight of the possibility of harm, and as to taking precautions against such harm. Life is risky. People do not expect, and are not entitled to expect, to live in a risk-free environment. The measure of careful behaviour is reasonableness, not elimination of risk. Where people are subject to a duty of care, they are to some extent their neighbours’ keepers, but they are not their neighbours’ insurers.”

 

Turbs, in the motor racing cases you refer to, were they appealed to the High Court?

 

There are good reasons you and I can't just walk in off the street and practice law. You quoted Clause  5 of the 237 clauses.

 

Clauses 234, 235, 236 relating to the Court's judgement confirm the decision centred around whether or not the Council had a duty of care and breached it.

 

This decision fits in with the Donghue v Stevenson prcendent case which was finally hammered on in 1932 by the Lords of Appeal, Lord Buckmeister, Lord Atkin, Lord Thankerton, Lord Tomlin, and lord MacMillan.

 

This is also the basis for public liability cases in New Zealand, Canada and the United Kingdom and is very similar to the earlier US cases of Pabsgraf v Long Island Railroad Co and MacPherson v Buick Motor Co.

 

So no great surprises there.

 

No, in the cases I mentioned we didn't appeal to the High Court, and there would have been no reason to based on the clarity of the precedent, because in each case we had breached our duty of care.

 

Donoghue v Stevenson had been alive and well in Australia since 1932.

 

The reason these lawsuits came to prominence in the 1980s was a successful case against the SA Government over a kindergarten fatality, and discussions between governments about them being soft touches, with a decision being made to offload activities with high claim onto the people involved in the activities.

 

It took us a while to realise than any accidental safety omission, any oversight in applying our rules etc was going to cost us money, where previously it used to cost the government money, because they "authorised/sanctioned/controlled" acvtivities, issued approvals. set regulations, inspected venues etc. and could never cover all operations in all areas.

 

We fixed the situation by tightening up our operations and ensuring we were fully insured.

 

 

[aro]

Donoghue v Stevenson is very clear on the condition of your duty of care being breached if there is a “foreseeable risk” of someone being injured

 

I think you have a very rose-tinted view of the public liability issue. The majority of cases wouldn't see the inside of a courtroom, and people are thinking more about Profit and Loss than Donoghue and Stevenson.

 

We got sued a few years ago by a guy who climbed a flagpole, slipped, landed on an object which HE HAD PLACED at the bottom of the flagpole and broke his leg.

 

The suit alleged that we were liable because we had:

 

• Failed to adequately train him not to climb the flagpole
   
  
• Failed to adequately supervise him and prevent him from climbing the flagpole
   
  
• Failed to maintain the flagpole in a condition where people would not fall from it and be injured
   
  
• + half a dozen more alleged failures
   
  

 

It's hard to imagine this succeeding in court on the basis of Donoghue v Stevenson, but no-one wants to go to court. They just go backwards and forwards for a few months for appearances, then pay a settlement.

 

 

[Neil_S]

 

 

 

We got sued a few years ago by a guy who climbed a flagpole, slipped, landed on an object which HE HAD PLACED at the bottom of the flagpole and broke his leg.

 

The suit alleged that we were liable because we had:

 

• Failed to adequately train him not to climb the flagpole
   
  
• Failed to adequately supervise him and prevent him from climbing the flagpole
   
  
• Failed to maintain the flagpole in a condition where people would not fall from it and be injured
   
  
• + half a dozen more alleged failures
   
  

 

 

I think the above proves that any concept of personal responsibility has gone the way of the dinosaurs.....

 

 

[turboplanner]

I think you have a very rose-tinted view of the public liability issue. The majority of cases wouldn't see the inside of a courtroom, and people are thinking more about Profit and Loss than Donoghue and Stevenson.

 

We got sued a few years ago by a guy who climbed a flagpole, slipped, landed on an object which HE HAD PLACED at the bottom of the flagpole and broke his leg.

 

The suit alleged that we were liable because we had:

 

• Failed to adequately train him not to climb the flagpole
   
  
• Failed to adequately supervise him and prevent him from climbing the flagpole
   
  
• Failed to maintain the flagpole in a condition where people would not fall from it and be injured
   
  
• + half a dozen more alleged failures
   
  

 

It's hard to imagine this succeeding in court on the basis of Donoghue v Stevenson, but no-one wants to go to court. They just go backwards and forwards for a few months for appearances, then pay 

 

I agree there are plenty of cases settled out of court by lawyers for the plaintiff or the defendant, particular where insurers are involved, because they see a bigger picture of averages.

 

They mostly involve cases where there is some negligence on both sides and it costs a lot less to agree on the percentage than to have the lawyers and the Court work it out for you.

 

 

[turboplanner]

I think the above proves that any concept of personal responsibility has gone the way of the dinosaurs.....

 

No it hasn't.

 

I took it that the list was from Aro's memory, and if you recall there were another half dozen reasons.

 

Even from the post, you could take it the person was an employee, and if that was the case the employer possibly had some responsibilities and the employee possibly had some responsibilities.

 

You are still responsible for your actions, and the settlements out of court, often when hundreds of thousands of dollars are involved almost always place a percentage of the negligence on the person who failed to take full responsibility.  That person has to prove that the person or company he is suing was negligent, and that is by no means easy.

 

Also, what many people fail to grasp is that personal responsibility works both ways. If you are digging a trench for a pipe across a pathway, you have the responsibility of ensuring no one can accidentally fall into it during the night. They have the personal responsibility of walking down a path, but you just removed part of it.

 

 

[aro]

I took it that the list was from Aro's memory, and if you recall there were another half dozen reasons.

 

Even from the post, you could take it the person was an employee, and if that was the case the employer possibly had some responsibilities and the employee possibly had some responsibilities.

 

I still have the claim, you prompted me to look it up.

 

There is various stuff like failing to keep a lookout, failing to provide a ladder, unnecessarily exposing him to the risk of injury, permitting him to climb the flagpole, permitting him to put himself in a position of danger etc.

 

Failing to warn him of the danger of climbing the flagpole is expressed with about 5 different wordings.

 

There's nothing there that wouldn't apply to any organization with a flagpole. No-one instructed him to climb it or knew he was going to try.

 

He was a volunteer. He tried Workcover first but they denied coverage. We were 3rd in line - he also tried the volunteer organization that referred him to us, but their insurance company also denied coverage.

 

That person has to prove that the person or company he is suing was negligent, and that is by no means easy.

 

 

 

That's not true for out of court settlements. No-one has to prove anything. They just have to convince the insurance company that they would rather pay than argue in court - and that's not hard for small settlements.

 

Small out of court settlements are actually good for insurance companies. They make their money from people buying policies, and a flow of small out of court settlements encourages claims, which encourages people to buy policies. If no-one sued, no-one would buy policies.

 

It's the big multi-million dollar claims that insurance companies don't like. A steady, predictable flow of relatively small payouts is the fuel that powers insurance companies.

 

 

[turboplanner]

I still have the claim, you prompted me to look it up.

 

There is various stuff like failing to keep a lookout, failing to provide a ladder, unnecessarily exposing him to the risk of injury, permitting him to climb the flagpole, permitting him to put himself in a position of danger etc.

 

Failing to warn him of the danger of climbing the flagpole is expressed with about 5 different wordings.

 

There's nothing there that wouldn't apply to any organization with a flagpole. No-one instructed him to climb it or knew he was going to try.

 

He was a volunteer. He tried Workcover first but they denied coverage. We were 3rd in line - he also tried the volunteer organization that referred him to us, but their insurance company also denied coverage.

 

That's not true for out of court settlements. No-one has to prove anything. They just have to convince the insurance company that they would rather pay than argue in court - and that's not hard for small settlements.

 

Small out of court settlements are actually good for insurance companies. They make their money from people buying policies, and a flow of small out of court settlements encourages claims, which encourages people to buy policies. If no-one sued, no-one would buy policies.

 

It's the big multi-million dollar claims that insurance companies don't like. A steady, predictable flow of relatively small payouts is the fuel that powers insurance companies.

 

Not being lawyers, we don't have the skills to dissect a case, and shouldn't try to do it especially when so little information has been provided. For example there would be a big difference between him deciding to climb the flagpole for a prank as against being asked to get up the top and free a rope pulley etc. he also would have contravened known standards like the falls from heights legislation which requires safety rails or harnesses. 

 

Given that your costs could be around $50,000 per day in Court if you lose, often plus the other person's $50,000,  it's not surprising that something like a broken leg would be settled out of Court by your insurance company, or if you don't have PL insurance, by yourself.  Settlements out of court often occur when each party has been partly negligent also. 

 

 

[M61A1]

I’m not a lawyer so this is not legal advice, but I think your wife has misinterpreted the law. Donoghue v Stevenson is very clear on the condition of your duty of care being breached if there is a “foreseeable risk” of someone being injured, A squirt of WD40 on. Swing in my opinion would not trigger Breach, so alleged false alarm.

 

I foresee some having an allergy to WD40 or hands slipping off the lubricated swing causing them to be quadriplegic.....

 

 

[turboplanner]

I foresee some having an allergy to WD40 or hands slipping off the lubricated swing causing them to be quadriplegic.....

 

Without referring to any real-world cases or decisions, I see two possibilities here:

 

1. You're a vexatious litigent so there's no claim

 

2. OME sprayed the entire swing with WD40 so he has to pay out $11 million

 

 

[aro]

Without referring to any real-world cases or decisions, I see two possibilities here:

 

1. You're a vexatious litigent so there's no claim

 

2. OME sprayed the entire swing with WD40 so he has to pay out $11 million

 

Do you think so? Lets write this up in the style of a personal injury lawyer. Remember they don't have to prove anything unless it goes to court, even then the standard is "balance of probabilities" i.e more likely than not it happened - much lower than the standard in e.g. a criminal trial.

 

The PI lawyer doesn't want to go to court. They want to convince the insurance company that they also do not want to go to court, they would rather settle. So the PI lawyer builds a list as long as they can of points they would require the insurance company to argue against in court.

 

The Defendant sprayed lubricant on the swing. The Plaintiff slipped and suffered injuries due to overspray of lubricant on the chains.

 

As a result of the Defendants actions in applying lubricant to the swing, they owed a duty of care to users of the swing.

 

The injuries to the Plainiff are a result of the negligence of the Defendant.

 

Particulars of Negligence

 

The Defendant:

 

• Performed maintenance on the swing without authorization
   
  
• Performed maintenance on the swing without adequate training
   
  
• Performed maintenance on the swing without adequate materials
   
  
• Failed to take adequate care when performing maintenance on the swing
   
  
• Used an unapproved lubricant on the swing
   
  
• Used spray lubricant on the swing resulting in overspray on the chains
   
  
• Failed to prevent overspray settling on the chains
   
  
• Failed to clean overspray off the chains
   
  
• Caused the swing to be in a dangerous condition
   
  
• Caused a danger to the Plaintiff 
   
  
• Failed to warn the Plaintiff that the chains were slippery
   
  
• Failed to warn the Plaintiff that the swing was dangerous
   
  
• Allowed the Plaintiff to use the swing when it was in a dangerous condition
   
  
• Failed to notify the council that the swing was dangerous
   
  
• Failed to notify the council that the swing required maintenance
   
  

 

etc.