Negligence vs Insurance where does this leave us

[facthunter]

Getting LAW is often not justice. In Aviation and other technical areas, lack of understanding of the real issues operating are often on show. Proper witnesses are needed not selective ones that happen to support the crown case Or any other person affected. Nev

[onetrack]

There was no "bad representation", the facts were argued in the Supreme Court, and every relevant fact was presented.

What did happen, was that the Ferris Wheel was removed before any surveyor measurements were taken, as to its precise position.

As the intrusion of the Ferris Wheel into the splay was reported as being a distance of 2.7M - but no-one could produce a verifiable, certifiably accurate measurement of the exact location - there was a great deal of argument over the precise position of the Ferris Wheel.

Courts deal with certified, verifiable facts - not hearsay or opinions. But they spend a great deal of time and money to get to the facts of the case.

 

Edited December 3, 2020 by onetrack

[facthunter]

That's good but is not always the case as was shown with the evidence in the Lindy Chamberlain gross injustice. events. Nev

[KRviator]

From the judgement, here is where the court found the Ferris Wheel.

 

IT pokes into the splay a damn sight more than 2m! 

[skippydiesel]

RF - I admire your position however we humans do not by logic alone maketh decisions - this is how inconsistent rulings/opinions  by courts & individuals arise.

 

Australia has a big big problem in the area of disability support /payment - we have no dedicated third party system to award fair payment to those suffering injury or illness, that leads them to be unable to support themselves and any dependents. This is done through the court process, an adversarial and uneven process that rewards those best able ($$$) to represent their case.

 

This is how we have all become paranoid about being sued AND in the end is to the advantage of the law & insurance industry's - not to us.

[Admin]

Amber Christine Arndell was just 13 when a light plane crashed into the ferris wheel set up next to an airstrip on the mid-north coast

 

 

The light plane that crashed into a ferris wheel at a fair at Old Bar Beach near Taree in 2011. Amber Christine Arndell, who was on the ride, has been awarded her $1.5m in damages. Photograph: Frank Palfreyman/AAP

 

A young woman who was on a ferris wheel when it was struck by a light plane has been awarded $1.5m in damages by a New South Wales court which heard she was “unemployable” almost 10 years after the traumatic event.

Amber Christine Arndell, then 13, and her brother were riding the 20 metre-high amusement at the annual Old Bar Beach festival near Taree in October 2011 when a two-seat light plane took off at an adjacent airstrip.

The aircraft attempted a landing before taking off again, veering left into the ferris wheel.

The NSW supreme court this week found MidCoast Council and pilot Paul Clarendon Cox negligent for breaching their care to the woman.

“[Arndell’s] evidence makes clear she was frightened the ferris wheel was going to collapse and/or the fuel from the plane would ignite – and that she and her brother would die,” Justice Stephen Rothman said this week.

Cox was ordered to cover 35% of the $1.5m in damages.

He failed in his lawsuit against the council despite the court accepting the pilot had suffered insomnia, flashbacks and other mental harm due to the crash. His landing attempt that turned into touch-and-go “displayed a lack of due care and diligence”, the judge said.

The court heard a council officer had examined the ferris wheel after it was erected and raised no issues with its placement. That was despite it intruding into the splay – a three-dimensional area meant to remain clear to allow aircraft to land and take off.

Two medical experts agreed Arndell’s experience of the collision was traumatic and had significant effects but were split on whether the trauma had been resolved and what effect earlier, traumatic events had on her recognised psychiatric illness.

The court heard the woman had ridden on another ferris wheel after the crash. She testified that occurred under pressure from her grandparents to face her problems and she was shaking and in tears during it.

Arndell was unable to attend fairgrounds and ride on a ferris wheel again until 2017 when accompanied by her partner.

The judge concluded she had a pre-existing psychological vulnerability, went through a period of decompensation and developed a generalised anxiety disorder and a major depressive disorder.

“The overwhelming cause of the plaintiff’s incapacity is the trauma associated with the collision,” he said.

Her school reports had spoken of a hard-working and confident student until late 2011 and it wasn’t unreasonable to expect that Arndell would have completed high school and worked in the fashion industry, the judge said.

The collision had made that an “impossible task” and – while not fully restricting her enjoyment of life outside work – it was “clear that for all practical purposes the plaintiff is unemployable,” the judge said.

Arndell, now 23, was awarded slightly under $1.1m for lost wages. Her non-economic loss was deemed to be worthy of a $412,200 payment.

Source: https://www.theguardian.com/australia-news/2020/dec/02/woman-awarded-15m-in-damages-after-ferris-wheel-struck-by-plane-in-nsw

[Old Koreelah]

Amazing.
I have much sympathy for those traumatized by this crash, but many of us have been thru similar or worse traumas and recovered to lead productive lives.
Do the courts find the Council has no liability for allowing such a dangerous structure to be placed so close to a busy airstrip?

[turboplanner]

3 hours ago, skippydiesel said:

RF - I admire your position however we humans do not by logic alone maketh decisions - this is how inconsistent rulings/opinions  by courts & individuals arise.

 

Australia has a big big problem in the area of disability support /payment - we have no dedicated third party system to award fair payment to those suffering injury or illness, that leads them to be unable to support themselves and any dependents. This is done through the court process, an adversarial and uneven process that rewards those best able ($$$) to represent their case.

 

This is how we have all become paranoid about being sued AND in the end is to the advantage of the law & insurance industry's - not to us.

There's a simple answer and that is to ensure you have PL Insurance (which most people have through their Household policies etc), but in particular that the PL Insurance policy covers the risk potential of your activity whether it be business or sport.

[turboplanner]

 

https://www.caselaw.nsw.gov.au/decision/1761bcf1a49d5847a34354fe

Note that the transcript of these two cases is based on NSW Law; Other States and Territories may have slight variances.

However it's a very good case for people who've had a lot of trouble working out where their duty of care applies and why; although it has to be said the merits of this case will not necessarily be the same as others. It does show however how the pilot entered a phse where he had a duty of care; it did show links between the airfield management and the owner of the airfield and what can happen there; it did show what you might have to do if you want a part of an airfield to be used for something different; it did show how facts can be established under difficult situations.

 

[skippydiesel]

1 hour ago, turboplanner said:

There's a simple answer and that is to ensure you have PL Insurance (which most people have through their Household policies etc), but in particular that the PL Insurance policy covers the risk potential of your activity whether it be business or sport.

Simple yes but hardly a good solution - why must we be held hostage to the litigation/insurance agencies. Is Au not a sort of democracy (by the people for, the people concept) or is this just to hard. 

 

I agree, someone must pay for the on-going maintenance of those who find themselves unable to work (& any dependence) but the system we have accepted (did we have a choice?) places the burden on those who are deemed to be negligent. 

 

The unfortunate sick do not have the benefit of blaming a living entity so must endure/end their lives in poverty - reasonable/fair???

 

Those who have been injured  at work/by a third party can claim for damages in a court - what they receive depends very much on their ability to hire a clever legal team and the whim of the judge on the day - reasonable/fair ???

 

Those of us who can may choose to pay for public liability (PL). Great ! BUT have you covered yourself sufficiently/ payed high enough premiums. Paranoia sets in. Urban mythology stokes the fires of uncertainty  (along with the ambulance chasing lawyers) - best pay a bit more - most will never see the doubtful benefits of this questionable investment - the legal/insurance business love a money machine - reasonable/fair???

 

If a person/entity is negligent , there should be criminal/civil penalties, under law that should not impinge on the ability or not of the convicted to be pay a fine/be jailed or otherwise penalised.

 

I would propose an independent commission, funded by the tax payer, that makes appropriate on going maintenance payments (means tested & never lump sums) to those that are unable to work, through no fault of their own. Get rid of the blood sucking middle industries or at least remove their Raison D etra.

[kgwilson]

This is a case of how our ridiculous litigation system works for the benefit of lawyers who spin the carrot of Money to their clients. In my opinion all the people telling her about entitlement, pushing and shoving and generating anxiety and expectation have done far more to cause the psychological issues that the actual incident itself. I think we are the second worst suers in the world after the USA. I find it really difficult to understand how a 13 year old who did not get physically injured is now unable to work for the rest of her life. It is just Bullshit perpetrated by psychologists, Lawyers  and everyone else getting paid here.

 

If this happened across the ditch their Accident Compensation Commission would have resolved the whole issue in a couple of months and prescribed payment amounts made and everyone would have got on with their lives and the 13 year old would now be gainfully employed somewhere, but 9 years of everyone suing everyone results in this garbage. Makes me want to puke.

[Nobody]

2 hours ago, Old Koreelah said:

Amazing.
I have much sympathy for those traumatized by this crash, but many of us have been thru similar or worse traumas and recovered to lead productive lives.
Do the courts find the Council has no liability for allowing such a dangerous structure to be placed so close to a busy airstrip?

Did you read the article? The court found that the council should pay 65% of the ~1.5m (~$975m) and the pilot 35%, so the court found that the council was mostly liable for the incident....

[turboplanner]

6 minutes ago, skippydiesel said:

Simple yes but hardly a good solution - why must we be held hostage to the litigation/insurance agencies. Is Au not a sort of democracy (by the people for, the people concept) or is this just to hard. 

 

I'm one of those people; if I was riding with you and you forgot to check your fuel before the flight and we had a rough forced landing and my back was broken and I faced a few million dollars cost to stay alive for the rest of my life, and since you forgot to check the fuel, and you covered that cost then I would be able to live a normal life and you wouldn't be beholden to anyone. You can do this by taking out insurance. As we know insurance premiums are the payouts laid off against a percentage profit. If there were no arguments this would be cheap becaise a lot of people fly and very few ever stuff up.  However people can't help themselves arguing; you might say I was partly at fault because I was a pilot and should have noticed, so its 50/50, or you could use any one of the hundreds of cracked excuses people have used on this forum discussing the subject. Then it gets costly because you need laawyers.

6 minutes ago, skippydiesel said:

 

I agree, someone must pay for the on-going maintenance of those who find themselves unable to work (& any dependence) but the system we have accepted (did we have a choice?) places the burden on those who are deemed to be negligent. 

In my opinion the burden should be placed on those who are negligent, not those who are innocent.

6 minutes ago, skippydiesel said:

 

The unfortunate sick do not have the benefit of blaming a living entity so must endure/end their lives in poverty - reasonable/fair???

No they don't, but nobody MADE them sick by being negligent. (Don't forget a plaintiff has to prove you were negligent.)

6 minutes ago, skippydiesel said:

 

Those who have been injured  at work/by a third party can claim for damages in a court - what they receive depends very much on their ability to hire a clever legal team and the whim of the judge on the day - reasonable/fair ???

I've followed a lot of these cases. The ones which are settled out of court might be a bit uncertain, but in erading the case transcripts I've never found one where the basic principles were not met. I've certainly seen a lot of odd decisions in magistrates courts, but liability cases have to meet certain standards. This judge is a good example of how thorough they are; after all the decision was going to affect a 13 year old girl for life. Clever legal teams cost about the same as lazy ones, but I would always hire a lawyer specialising in Public Liability.

6 minutes ago, skippydiesel said:

 

Those of us who can may choose to pay for public liability (PL). Great ! BUT have you covered yourself sufficiently/ payed high enough premiums. Paranoia sets in. Urban mythology stokes the fires of uncertainty  (along with the ambulance chasing lawyers) - best pay a bit more - most will never see the doubtful benefits of this questionable investment - the legal/insurance business love a money machine - reasonable/fair???

You have to make a decision based on the top payouts to date, so I agree that part is hard. Urban Mythology is just that and Danny DeVito usually pays ambulance chasing lawyers; I've never heard of or seen one. My experience is the plaintiff is often encouraged to sue by friends (who won't be paying) sometimes years after the event). Negligence makes money - yes, but cheaper to check your fuel in preflight.

6 minutes ago, skippydiesel said:

 

If a person/entity is negligent , there should be criminal/civil penalties, under law that should not impinge on the ability or not of the convicted to be pay a fine/be jailed or otherwise penalised.

You should read the Donongue vs Stevenson case (1932) which is the precedent. The Defendant made a simple mistake so where this case applies there should not be criminal or civil penalties. The Defendant is already suffering with his own recriminations and the out of pocket costs in being involved in years of litigation - he did the right thing by paying insurance premiums, his insurance company paid the plaintiff.

 

However, if he knew that what he was doing was wrong and met the requirements for culpable negligence he'll face criminal charges including manslaughter ( which is not involved here)

6 minutes ago, skippydiesel said:

 

I would propose an independent commission, funded by the tax payer, that makes appropriate on going maintenance payments (means tested & never lump sums) to those that are unable to work, through no fault of their own. Get rid of the blood sucking middle industries or at least remove their Raison D etra.

You should be aware that some of these middle industries go broke; it's not the lucrative game you think.

 

However you, skippydiesel, should you wish CAN change this to whatever system would work better. You just have to join a branch of the political party in power, in your case Gladys, have your idea approved at a Branch Meeting with a notion to present it as a Resolution for State Council to present to the Parliamentary Party and they can then put it forward as a Bill have it debated in the Houses, and with their majority pass it.  One person did this last year in Victoria; his Bill was about 600 pages though, so you have to do the legwork.

 

[turboplanner]

17 minutes ago, kgwilson said:

If this happened across the ditch their Accident Compensation Commission would have resolved the whole issue in a couple of months and prescribed payment amounts made and everyone would have got on with their lives and the 13 year old would now be gainfully employed somewhere, but 9 years of everyone suing everyone results in this garbage. Makes me want to puke.

I've had personal experience of your system. My wife tripped on a concrete step undercut (form faulty forming) and broke her knee. The owner knew the step had been incorrectly made because by the time we went back next day the fault had been ground off (luckily I had a photo). Total costs which included medical in NZ and Aus, extra seat space in aircraft came to about $6,000.00. We got zero from the ACC. 

[M61A1]

27 minutes ago, turboplanner said:

I've had personal experience of your system. My wife tripped on a concrete step undercut (form faulty forming) and broke her knee. The owner knew the step had been incorrectly made because by the time we went back next day the fault had been ground off (luckily I had a photo). Total costs which included medical in NZ and Aus, extra seat space in aircraft came to about $6,000.00. We got zero from the ACC. 

At the risk of sound rude.....Does your wife watch where she's walking now?

 

 

 

[skippydiesel]

Turb's me old budy budy - me thinks you are a hard man - you should not forget "to err is human........." - negligence can be one small oversight/wrong decision in an otherwise perfect record. ( I am not talking criminal negligence here where willful neglect is proven but the little accident that can lead to big claims) 

 

So you would condemn, the otherwise innocent, to a life of paying exorbitant premiums, in the off chance he/she may make a mistake and be covered (at least in part) or may "drop of the twig" in the comfort of knowing he was covered without making a claim for the last 60-70 years or so - great option I dont think.

 

Turbs, are you well enough insured against that random claim that might just come your way because you made a very small mistake that happened to result in life long injury to someone ? Ill answer for you - you cant be be sure,  that's not how the "market" works - there will always be another court case (perhaps yours) that brakes with president and ups the pay out, above what your broker has recommended and someone goes broke.

 

Its a vicious, nasty, inefficient, inequitable, system that we have allowed to become the norm..

[graham brown]

Adventure tourism in NZ is worth 3 billion a year and exists because they addressed this issue of looking after those who were injured and not going through the blame game. Our system of determining blame before the help/ money is proved to those injured is not a great system IMHO. Insurance does not address this issue it avoids it.

[turboplanner]

17 minutes ago, skippydiesel said:

Turb's me old budy budy - me thinks you are a hard man - you should not forget "to err is human........." - negligence can be one small oversight/wrong decision in an otherwise perfect record. ( I am not talking criminal negligence here where willful neglect is proven but the little accident that can lead to big claims) 

 

So you would condemn, the otherwise innocent, to a life of paying exorbitant premiums, in the off chance he/she may make a mistake and be covered (at least in part) or may "drop of the twig" in the comfort of knowing he was covered without making a claim for the last 60-70 years or so - great option I dont think.

 

Turbs, are you well enough insured against that random claim that might just come your way because you made a very small mistake that happened to result in life long injury to someone ? Ill answer for you - you cant be be sure,  that's not how the "market" works - there will always be another court case (perhaps yours) that brakes with president and ups the pay out, above what your broker has recommended and someone goes broke.

 

Its a vicious, nasty, inefficient, inequitable, system that we have allowed to become the norm..

If you had taken my advice and read up on Donoghue v Stevenson then you wouldn't have written that.

[skippydiesel]

1 hour ago, turboplanner said:

If you had taken my advice and read up on Donoghue v Stevenson then you wouldn't have written that.

True o well insured one - perhaps you might oblige with a brief explanation using small words that I can understand.

 

My thanks in anticipation. 

[turboplanner]

13 minutes ago, skippydiesel said:

True o well insured one - perhaps you might oblige with a brief explanation using small words that I can understand.

 

My thanks in anticipation. 

Try the wikipedia versions - they give quite a good understanding.

 

[onetrack]

I was a one-third owner of a largish family business for many years, with 65 employees on average and $15M turnover in the early 1990's. Our family business had PL from the day we started in 1965 and it was around $2M in that era and went to $20M by the 1980's and $50M by the 1990's. The premiums are not huge in relation to losing everything you've worked for, if you don't carry PL, or only hold a low value PL policy.

I've had to make a couple of PL claims - they were settled without fuss by the insurance company. The only thing you must remember, is that PL insurance is the only insurance where you have to admit liability (negligence) to be able to make a claim against the policy.

People usually only sue when they feel they have no chance of getting compensation, or someone says they can get a bigger payout if they sue. That is not always the case.

I do feel the judge erred in this case by finding that the girl is completely unemployable for life. No-one should ever be completely unemployable for life, there has to be some type of work she can do.

I agree that she should have got some compensation, but based on the fact that the trauma she endured resulted in her not achieving a better position in the workforce - not being unemployable for life.

Edited December 4, 2020 by onetrack

[skippydiesel]

2 hours ago, turboplanner said:

Try the wikipedia versions - they give quite a good understanding.

 

Not sure that your referral to Wikipedia  was  all that helpful - How is it that the expansion of injury to encompass a much wider actionable claim furthers/improves our society? I fail to understand why every claim must be subject to an adversarial legal or quasi legal arbitration system.  It seems to me that  the intent of Donoghue v Stevenson may have been honorable/moral but has been well & truly corrupted  down the way.

 

British law has many good points but this is not one of them. Removing the awarding of compensation, for injury (however you or the court wish to define it) from the adversarial court would be a civilising and humanising act.

 

In the law, we have created a near perfect parasitic profession - self promoting/reproducing, non productive and like all good parasites, draining. Nature has its equivalent in the cycle of some fluke parasites- that are consumed on the contaminated food source of the host. The fluke then migrates to the brain of the first stage host, thereby controlling its behavior, so that the host will offer itself to be consumed by the 2nd stage host, eventually to be excreted, to infect the food source of the first stage. The fluke appears to provide no benefit to any of its hosts or the environment as a whole (this is an analogy for the place of the law industry, in our society, please do not take the story to literately).

 

It is right & proper that individual/entities, that are facing legal action, should have access to well trained advocates, so that justice is done (not just execution of he law). Unfortunately we have moved a long way from justice, with the law intruding on so many facets of our lives, in ways that do not serve us well.

[Jim McDowall]

Maybe the existence of the PL insurance gave rise to the court action.

It is noteworthy that despite the "trauma" the girl experienced she has ridden on ferris wheels again - she was old enough to refuse. Was her brother not traumatised as well? Did he also take action?

This verdict should be appealed by the Council as long run Councils have more to lose.

Also, the damages awarded were against the Council and the pilot - how was it split?

[turboplanner]

4 minutes ago, Jim McDowall said:

Maybe the existence of the PL insurance gave rise to the court action.

It is noteworthy that despite the "trauma" the girl experienced she has ridden on ferris wheels again - she was old enough to refuse. Was her brother not traumatised as well? Did he also take action?

This verdict should be appealed by the Council as long run Councils have more to lose.

Also, the damages awarded were against the Council and the pilot - how was it split?

These things usually follow a pattern (this is not legal advice, just my own experience from past issues.

• Someone gets hurt through no fault of their owm
• Their medical bills are starting to send the family broke
• Someone eventually says why don't you sue them
• The family gets a local lawyer to write a letter saying since it was the other person's fault they should pay these bills
• The other person, like the shot the M161A1 took at my wife a few posts ago says "She should have been looking where she was stepping"
• The local lawyer kicks it up to a PL legal specialist
• The specialist makes the defendant aware of liability law and claims the full cost plus his legal fees.
• The defendant offers to settle out of court for less (which is never disclosed publicly), but could be anything, eg 90% down to 5% and no fees. Out of court settlements often happen when the plaintiff doesn't have enough proof to be sure of a win.
• The plaintiff may have concrete proof, and a very solid basis for the costs incurred, so it is decided by a court.

Re ridden on Ferris wheels again:

Despite a reference to "ambulance chasers" above, and general denigration of lawyers, this case was well above that.

It was decided by a Judge of the Supreme Court of NSW

 

The Plaintiff employed a Senior Counsell (SC previously know as QC)  backed by a Law Firm to run the case.

 

The Defendants employed Senior Counsell backed by three Law Firms, and the Council represented itself in one of the cases.

 

My experience with this sort of array is in Planning Panels where the SC is sitting at the front doing the talking, one or more lawyers are sitting nearby, and two or three legal staff are sitting by them, one with a lap top going live back to the legal office.  In the point you have raised, as soon as that statement came out the seated lawyers, I suspect, would have turned around and asked the staff to get on to the office and verify the psychology status, and later there would have been an answer for the seated layers and if the point you raised was valid there would have been a signal to the SC. (Again, I'm not a lawyer, but been beathen by that a few times.

 

The split is mentioned in the transcript.

 

 

[turboplanner]

8 hours ago, skippydiesel said:

Not sure that your referral to Wikipedia  was  all that helpful - How is it that the expansion of injury to encompass a much wider actionable claim furthers/improves our society? I fail to understand why every claim must be subject to an adversarial legal or quasi legal arbitration system.  It seems to me that  the intent of Donoghue v Stevenson may have been honorable/moral but has been well & truly corrupted  down the way.

 

British law has many good points but this is not one of them. Removing the awarding of compensation, for injury (however you or the court wish to define it) from the adversarial court would be a civilising and humanising act.

 

In the law, we have created a near perfect parasitic profession - self promoting/reproducing, non productive and like all good parasites, draining. Nature has its equivalent in the cycle of some fluke parasites- that are consumed on the contaminated food source of the host. The fluke then migrates to the brain of the first stage host, thereby controlling its behavior, so that the host will offer itself to be consumed by the 2nd stage host, eventually to be excreted, to infect the food source of the first stage. The fluke appears to provide no benefit to any of its hosts or the environment as a whole (this is an analogy for the place of the law industry, in our society, please do not take the story to literately).

 

It is right & proper that individual/entities, that are facing legal action, should have access to well trained advocates, so that justice is done (not just execution of he law). Unfortunately we have moved a long way from justice, with the law intruding on so many facets of our lives, in ways that do not serve us well.

I did some research a few years ago and found  Donohue v Stevenson was the precedent not only for Great Britain, but for Australia, New Zealand, Canada and the USA. The countries apply it differently and I think one country may have moved to another, more complicated model.

 

I agree that the law is not affordable for most people, but people disagree and will not give in.