ADS-B Could We End Up Against A Similar Situation?

[turboplanner]

I'll read the NSW Civil Liability Act, and I'd be interested if you can point me towards the amendments you are talking about, but I can assure you, having lost a few million dollars for our insurance company that I quickly learned to put a light outside a toilet block if it's in a car park, join safety fence cables in accordance with best industry practice, aim a fire extinguisher at the seat of the flames, and not around the airways of a race driver, saving his life, never to use race cars for a promo at a shopping centre without a safety fence and catch fence, never to conduct an event with a Motor Racing is Dangerous sign without adding "but a patron has the right to sue for compensation, and I've posted updates on more recent cases here which affect flying. Your example of the concrete truck is correct; she also has to prove that a duty of care was owed by whoever caused the concrete truck to hit the child. It's more clear cut and easier to understand when the victim has been made a quadriplegic and needs support for his/her life. We've had one placarded aircraft case where the judge ruled there was no claim, but on the basis that the pilot was not negligent. 

In Victoria the Wrongs Act is the key piece of legislation, and there are a few current cases that make the news, so I'm interested in details of any amendments, because they could take a big financial cost off people in some industries.

[jackc]

Sadly, everyday I see examples of public liability issues in the real World,  welcome to today’s society where insurance companies PDS documents are now thicker than a Los Angeles phone book.   You can sue anyone for anything......whether it gets up in a court of law, who knows?

Best turn into a Hermit and stay under the radar where humanly possible.  Me?  At my age i am getting close to EOL and am fast running out of f....s to give.  With what I see every day, regulators are fast becoming a pack of idiots who’s fuel tanks have run out of logic, fairness, common sense and workable rules.

Get the impression I don’t care too much?  Yep you got it 🙂.  EVERY day I break road rules in the interest of mine and other peoples safety......because we are now so over regulated with b/s rules that some idiot university educated Millennial has dreamed up to try and justify his pay packet thinking they are making a perfect World.

Human Beings are fast turning into the most dense inhabitants on Earth, I would have more faith in the logic and commonsense of Cockroaches, at least they are predictable 🙂

[Markdun]

Turbo, see below.   Insurance is different...often it seems insurance companies assume liability and pay when they shouldn’t....and just pass the costs on to customers.  And sometimes this gets confused with legal liability.

 

Australia: Civil liability for personal harm - dangerous recreational activity and obvious risk

05 June 2013 

by Ross Donaldson

Colin Biggers & Paisley

 

 

 

 

In brief - Court decision gives recreational and adventure operators more guidance

A student learning to fly a light aircraft is engaging in a "dangerous recreational activity". A crash landing is an "obvious risk" of that activity in the context of civil liability legislative provisions.

Legislative reform provides more protection to recreational and adventure businesses

A body of law continues to develop to define and exclude from recovery from damages persons who are injured when participating in certain recreational or adventure activities.

This has been the consequence of legislative reform seeking to provide more protection to operators of those recreational and adventure businesses.

Emergency landing of light aircraft causes harm to student pilot

In the District Court of NSW ( Campbell v Hay [2013] NSWDC 11), the plaintiff, Noel Campbell, a student pilot, sued Rodney Hay, a pilot instructor, arising out of injuries he sustained when participating in a flying lesson. During the course of the lesson, the aircraft engine stopped and Hay took over its controls and undertook a forced landing, resulting in Campbell sustaining injury.

Briefly the background of this incident is that about 45 minutes into the flight engine vibrations were encountered. On increasing the aircraft's revolutions, the vibrations apparently disappeared. A short time after this it was said vibrations returned but the engine commenced to run well for about a minute.

Hay took control of the aircraft, applied full power and took other steps, but the engine subsequently failed. Hay put the aircraft into a gliding mode, allegedly attempting to restart the engine and undertook an emergency landing into a bush gully. Hay was an experienced pilot who had had been involved in a number of emergency landings over his career.

Student pilot claims that instructor's management of aircraft was negligent

Hay's negligent conduct alleged by Campbell focused on his management of the aircraft, leading up to and including the engine failure, and his decision in regard to managing and landing the aircraft in this period. The aircraft engine experienced roughness shortly before it failed.

Expert evidence was led in favour of Campbell to suggest that on encountering engine difficulties, a decision should have been made to seek the nearest available landing area, rather than proceed with his original course and then having to deal with the consequences of the engine ultimately failing.

Pilot instructor found negligent but argues that risk of injury was obvious

The trial judge found that Hay had not exercised reasonable care by not ensuring that the aircraft was flown towards an appropriate landing strip immediately after the second set of vibrations started and by his decision to continue to fly towards Katoomba.

Hay was found negligent as the pilot instructor, but he argued that the activity was a dangerous recreational activity, the risk of injury was an obvious risk and Campbell was precluded from recovering.

Civil liability provisions provide some protection

In NSW, pursuant to the Civil Liability Act (NSW) 2002 (the Act), a person injured whilst participating in a dangerous recreational activity and as a result of the injury arising from a risk that is an obvious risk is barred from recovering damages from another person, notwithstanding that other person may have been negligent. Those provisions offer powerful protection to operators of businesses which offer such activities. (For more information please see our earlier article A user's guide to the Civil Liability Act 2002 (NSW).)

The public policy behind this legislation is to prevent placing the burden of civil claims on operators of such activities, when society perceives that these activities are inherently dangerous and bring with them an obvious risk of injury or death.

Risk that would have been obvious to a reasonable person

Section 5L of the Act requires a number of steps to be determined before a bar operates to exclude recovery. Those steps must be that the court finds that the activity is a dangerous recreational activity, which under Section 5K means a recreational activity that involves a significant risk of physical harm and that the harm suffered is an obvious risk as defined by Section 5F, being "a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person".

Section 5F provides that an obvious risk includes a risk that is patent or a matter of common knowledge and can be a risk even if it has a low probability of occurring.

Obvious risk as defined under Victorian law

In Victoria, there is no equivalent of Section 5L of the Act. That is, there is no statutory bar to a claim in negligence if it is established that the activity involves an obvious risk, but the statutory provisions in Part X of the Wrongs Act (1958) seek to codify some of the common law as it relates to claims in negligence, including the awareness of the risk.

For example, sections 53 -55 require a court to assume the claimant had knowledge of an obvious risk, if a defence of voluntary assumption of risk is pleaded (reversing the onus of proof on this issue). Obvious risk is similarly defined as in the NSW legislation. A claimant cannot recover if the injury arises from the materialisation of an inherent risk of an activity. An inherent risk is defined to be something that cannot be avoided by the exercise of reasonable care.

Sporting clubs and adventure activity businesses need liability insurance

These provisions are the product of the tort reform following the so-called insurance crisis after the collapse of HIH Insurance. It was perceived that there was an inability of sporting clubs and operators of more risky activities to obtain liability insurance.

The definition of a "recreational" activity or services in the context of claims for damages for personal harm has also gained importance by virtue of the Australian Consumer Law and state fair trading legislation which permits operators to exclude certain terms, implied by legislation into a contract for the supply of recreational services, if certain express warnings are given to a participant.

What is a dangerous recreational activity?

In Campbell v Hay the Court had no difficulty finding that flying lessons in a light aircraft is a recreational activity. The question was whether this was a dangerous recreational activity within the meaning of the legislation. It must involve a significant risk of physical harm ( Section 5K).

The trial judge took guidance from enunciation of relevant principles by the NSW Court of Appeal decision of Jaber v Rockdale City Council [2008] NSWCA 98 to answer this question. Jaber involved a person injured from diving into shallow water.

The standard to be applied lies somewhere between identifying a trivial risk and one that is likely to occur, with reference to both the risk and the physical harm likely. An activity involving a significant risk of sustaining insignificant physical harm (described as a sprained ankle or a minor scratch to the leg) could not necessarily be regarded as a dangerous recreational activity.

The risk of physical harm must be significant, while the risk of it occurring may be low or unlikely, but not trivial. A significant risk must be somewhere between the likelihood being trivial and one that is likely to occur.

Risk of accident when flying a light aircraft not trivial or remote

The court held flying lessons were a dangerous recreational activity. The risk of something going wrong in an aircraft, off the ground with a single engine was obvious. An aircraft in difficulty needed to be landed.

The aircraft could get into difficulty for a number of reasons: pilot incapacity, pilot error, engine failure, and other mechanical problems. The likelihood of risk of injury was not trivial.

In assessing whether this was a dangerous recreational activity, the court was inclined to inform itself and make its own assessment based on its own knowledge and experience. However, Hay did lead evidence, including statistical evidence of the number of accidents involving light aircraft, including injuries and fatalities.

It is obvious, as common experience would suggest, that the risk of accident when flying a light aircraft was not trivial or remote.

Crash landing is an obvious risk of flying

In regard to whether the injury had an obvious risk, the court considered that as a matter of knowledge and common sense there is a risk of injury if Hay was negligent. A failure to manage or operate the aircraft in a reasonable manner could eventuate in a forced landing or a crash. This was sufficient to satisfy the definition of "obvious risk" in Section 5F of the Act, notwithstanding the low probability of the risk of harm occurring.

Despite a finding of the instructor's negligence, Hay was barred from recovering damages.

An obvious risk is not always obvious, despite the activity being dangerous

Showing that a dangerous recreational activity has an obvious risk is not as easy as it might seem. A decision of the District Court of NSW in Harris v Perisher Blue Pty Limited [2011] NSWDC 172 illustrates the point. The trial judge had no difficulty concluding that snow skiing at the Perisher ski resort in the Snowy Mountains was a "dangerous recreational activity", but the circumstances giving rise to the injury were not caused by an "obvious" risk.

In that case Harris sued the operator of the resort as a result of injuries he sustained when participating in a beginners' lesson. He failed to negotiate a ditch located towards the bottom of the beginners' slope. The ditch was not considered simply a product of the normal undulation and unevenness of a ski slope, but constituted something more significant and unexpected.

The court found that the risk of harm, i.e. skiing into this ditch was not "a result of a materialisation of an obvious risk of a dangerous recreational activity". Harris was not barred from recovering pursuant to Section 5L(1) of the Act. That finding was not interfered with on appeal, although the appeal focused on more fundamental, breach of duty and causation issues (see Perisher Blue Pty Limited v Harris [2013] NSWCA 38). Of course, having overcome that threshold, Harris was still required to prove that the resort operator acted negligently to recover damages. (For more information about this case please see our earlier article District Court finds non-delegable duty of school during skiing excursion.)

Recreational and adventure activity operators are getting the protection they need

The decision in Campbell v Hay adds to the body of law regarding the civil liability of operators of recreational and adventure activities to customers who suffer injury or death. Operators and their insurers can take some comfort (and perhaps protection) with the court adopting a broad interpretation of the legislation. Injuries to be expected of such activities should not be compensable.

At first glance one might think that embarking upon a course of flying lessons, an activity involving sophisticated and well maintained machines operated by highly trained people, would not constitute a dangerous recreational activity, but the court's reasoning is sound. Yet there will continue to be argument in future as to whether these statutory provisions will apply to many novel activities.

Participants in adventure activities cannot expect to be protected from all harm

In the field of recreational and adventure activities and the liability of operators, and prior to these more modern legislative reforms, the courts have grappled with the need to recognise that there must be a trade-off between the experience a recreational or adventure activity offers, (excitement, exertion, exhilaration, fear, challenge), as against the risk that an injury may be sustained.

Participants cannot expect to have these experiences (which are as much emotional as they are physical) yet be "wrapped in cotton wool" and protected from all injury. A balance must be struck, ensuring that operators provide a relatively safe experience, but not necessarily risk or injury free. (Most people participate in organised sport on that understanding.)

Alternatively, operators can provide a very risky activity but with full disclosure and acknowledgment of those risks with accompanying waivers and exclusions - for example, perhaps, in the case of parachuting and motor racing.

Even a low risk of significant harm makes a recreational activity dangerous

Where the recreational or adventure activity may cause an injury that is not trivial, even if there is a low probability of it occurring, it can be considered a dangerous recreational activity.

Similar findings have been made about diverse activities including snow skiing and shooting kangaroos by spotlight, although participating in touch rugby was found not to be and an organised gym class, or whale watching from a boat were held not to involve the supply of recreational services.

Providers of dangerous recreational activities failing to exercise reasonable care

Injured persons remain permitted to recover loss and damage involving dangerous recreational activities where the eventuality of the risk of harm is not obvious, and the operator has failed to exercise reasonable care. Examples of the application of these principles for recreational operators could include a horse trail ride operator providing a defective saddle strap which breaks and a patron falls, or a scuba dive operator placing divers in a powerful current, having failed to interpret the tide charts properly.

In these examples, a reasonable person may not have expected the eventuality of the harm, and but for the operator's negligence, the injury would not have occurred.

Content and scope of risk warnings considered in Action Paintball case

On the 13 May 2013 the NSW Court of Appeal delivered a judgment in Action Paintball Games Pty Ltd (in liquidation) v Barker [2013] NSWCA 128 which included a consideration of the content and scope of risk warnings to be given to participants of recreational activities. Under section 5M of the Act no duty of care is owed if a risk warning was given regarding a recreational activity. The plaintiff was 10 years old at the time when she participated in a laser tag game in open bushland occupied by Action Paintball. The plaintiff tripped on a tree root and suffered injury.

She was awarded damages in the District Court. The Court of Appeal found that a general warning given by Action Paintball that there were a lot of sticks and obstacles in the way and to not run at full speed was a sufficient warning of the risk to engage section 5M, and the plaintiff could not recover damages. Operators of recreational activities can take some comfort in the court adopting a pragmatic, rather than restrictive approach to the requirements of section 5M.

Ross Donaldson
[email protected]
General liability
Colin Biggers & Paisley

[turboplanner]

Thanks, I'll have a further look at that; we had a similar case in NSW to the Action Paintball case several years after the event when the person was told he could sue, and one of the things that went against us was that the operator hadn't pointed out that even though the recreational event had significant risk, he should also have advised the plaintiff he could sue if the defendant was negligent (a safety fence gave way because cables were not attached in the correct way). So there can be some twists and turns.

 

You're right about some of them where the Insurance Companies opt to settle out of court just in case they lose the case and are saddled with a bigger payout, the plaintiff is often keen to go along for the same reasons, and you sit there with your mouth open.

[Markdun]

Yes. In my view the NZ system is far, far superior.  An injured person doesn’t have to prove someone was at fault, or run the risk a defendant was bankrupt, unemployed with no assets....everyone is compensated.  No third party compulsory insurance for cars, no wasted money on useless lawyers or for profit insurance companies.  The NZ accident compensation system has got some problems for sure, but nothing like we have here.

 

One of the problems here is that judges are human and feel, as they should, for the situation of some poor fool, like the quadriplegic from diving into the sand at Bondi breaking his neck, and then look to where the person can get some money....local government or someone with insurance!  Understandable, but crazy.

[spacesailor]

N Z has the most Unfair, of all the systems.

It takes away your rights of suing for Gross negligence.

Even when accident potential is pointed ouy to the installer,s there,s  No comeback when the ' accident ' happens.

What do you get !.

Three weeks in hospital , Free. (  But accidents allways were free ).

A couple of months  ( at the most ), on minimum wage payed by the NZ A C S.

After which you are on the Dole !.

Were,s that " life long support " they tell every one.

Been there, done that, Better off here in Australia.

spacesailor

 

[Markdun]

Except for your first sentence, I agree with you Spacey.  My ‘but’, is your view of ‘most’ unfair.  I agree the policy objective should be the least worst.  And from the point of view of an individual injured due to gross negligence, the Kiwi system is unfair, like you say. But how unfair is our system, where billions of dollars each year are wasted on lawyers and insurance companies (which could go to the injured), while many injured go completely uncompensated. I was a secondary school teacher in the early 1980s and one of my year 10 students was run over by some unlicensed youths in an unregistered car. He suffered two seriously broken legs and a smashed hip with life long disabilities ensuing.  No third party insurance, and the wrong-doers had no income, no assets, and no future.  He got nothing, except a life long disability.  How unfair is that?  I’d add, if there was ‘gross negligence’, and I’m not up on whether that has a specific legal meaning, it would seem it would also be common law ‘criminal negligence’, which is defined the same as the tort of negligence, except a jury finds the negligence so bad (gross?) it warrants a criminal penalty such as term of imprisonment.

The big negative of the NZ system is there is less incentive for hazard makers to be careful.  We found it not uncommon to find a big hole in the footpath or road with just a couple of 200l empty drums thrown in and a witches hat...no signs, lights or barriers...but hey, it does make oneself more careful of other idiots.  
Can’t someone tell me off for being off topic now?  I’ve been getting high oil pressure alerts in my Jab powered Cygnet.  Does this indicate oil pressure unit is failing or that the PRV is playing up??

[jackc]

May have gone off topic but I am grateful  for the info posted:-) 

[kgwilson]

I lived with the NZ ACC system for over 30 years and my opinion is that removing the right to sue and treating everyone equally is easily the best system around. If you end up with a lifelong disability and happen to be a billionaire you get the same support as someone who is on the dole and lawyers get nothing as they aren't involved. CTP insurance premiums here are outrageously expensive for only one reason, the cost of lawsuits and compensation. When I was last in NZ back in 2018 it cost $80.00 a year to register your car and that included the ACC (CTP) levy. Interestingly the biggest drain on the ACC fund is sports injuries in a Rugby mad country and sporting organisation do not pay a levy at all. 

[Markdun]

I’ve said before flying small aeroplanes is inherently dangerous, and it always  grates whenever I hear Ra-Aus rabbiting on about how safe it is.  (And they’d probably get more growth in membership if they emphasised the danger instead of carping about safety...that is, if you’re one of those fools who want endless growth).  
Overcoming and dealing with the danger is to me, one of the fundamental joys of flying my own plane.  And that is why it erks me substantially when I’m treated like a child by Ra-Australia or CASA when they compel me to use some commercial certified person to check or do the work on my bird, with that being pot luck whether the job is done properly.  If it’s me that does it wrong, I’ve got one person to blame.

Of-course the most dangerous sport of them all is lawn bowls, but I don’t hear of any moves that they should undertake more training, particularly human factors, nor get a permission note from a doctor when they turn 75 because they might lie about their health, nor a trained and certified maintenance engineer to tend their lawns and equipment.  And the most dangerous thing we ever use is a bed; while matron might do a daily inspection, my guess is many users of beds fail to do the simplest, ‘am I safe’ check or lodge a sleep plan before embarking on 8 hours, despite this being the most likely place we will die.

[Garfly]

Dan on Denver: