Legal warning for instructors.

[Hudson]

The Melbourne Age newspaper reported (30 Nov) that a ski lesson mishap to a barrister has led to $278,000 payout. He broke his back after falling from a two to three metre ski jump while taking lessons from a ski instructor.

The report stated that "this was a tragic case of an instructor not properly looking after his students. The jury recognised that being in the snow doesn't change the responsibility of teachers to keep students away from danger". The report goes on to say that the jury was not willing to accept that businesses could avoid responsibility just because there was some risk. This case showed how unequal knowledge of the dangers dramatically increases the risk of injury.

The injured barrister said that he could have been paralysed and that the verdict of the jury was a reminder for instructors that the "safety of pupils was paramount because my injuries happened because the instructor took me somewhere we shouldn't have gone".

Flying instructors would be wise to heed the message implicit in that verdict. And that is if you stick your students neck out by taking risks in the name of realistic emergency "training", if someone gets hurt due your irresponsibility, you could be sued for big money.

A few day to day examples where potentially dangerous instructor action could go wrong: Low level mixture cuts to "simulate" engine failure. Sending a student solo without making 100% sure he is competent to make a go-around from runway level. Carrying out practice forced landings well below a safe height. Showing a student a few potentially dangerous "tricks of the trade".

How about the common fault of authorising a flight with known defects on the aircraft that could affect the safety of the flight - even though these defect are not recorded in the maintenance release. An intermittent transponder for instance - or a jammed fuel valve - intermittent radio - known nosewheel shimmy - landing lights inop - starter inop requiring prop hand start - binding of mixture, throttle or carb heat controls.

The list is endless and most instructors have seen these defects and accepted them as normal GA problems.

There is a court case looming in NSW where a pilot is going the estate of his instructor who died in the crash. If the instructor is not insured, then his next-of kin cop the lot.

Maybe it is time for instructors, especially the freelance variety, to take out personal liability insurance especially those who enjoy "realistic" emergency training techniques. Better still, don't risk financial ruin by taking unnecessary risks.

[Travelair]

Following the US in other models...:(

[Bula]

aarrrrrrggghhhhh.. interesting however from what i hear (if it is true) it has been a big issue iwith "contract" instructors. But if you document everything as a "full time" instructor and you do everything physically possible then its not on your head but the companies.....


was it the Ski instructor who was sued for the company they worked for?

Or maybe its time to get students to sign indemity forms... sad times

[DirectAnywhere]

Indemnity forms actually aren't worth the paper they're written on. The student would have common law right to sue for negligence that cannot be waived by the mere act of signing a form.

Anyone who thinks that these forms are a panacea for all things insurance related are sadly mistaken.

[compressor stall]

Was actually having the same conversation at the dinner table last night.

My thoughts run along the lines of if you are freelance you'd need it, if you are working for a flying school, then surely your company would cover you?

Mum (who claims as a level IV trainer she is a "learning facilitator" to her "clients" in a private training college :yuk: - a fact that I went to town on but I digress) is covered by the college for professional indemnity, but when working freelance needs her own. The insurance stops an ex student claiming that they were not taught properly.

Can you imagine the state of play when Student Biggles sues XYZ flight School 'cos they bombed out in a CX Sim Ride? :yuk:

[Sunfish]

(Deep Sigh) Could all of you get a copy of the judgement and read it so you understand the FACTS behind the judgement before you post?

I know its more fun to run away and speculate but in my humble opinion none of you know anything about the case.

For a start, none of us have any idea of the skill level of the injured or the specific lesson being taught at the time of the accident.:}

[HSWL]

Sunfish. By your contention Pprune members should not make constructive comment on anything because none of know the full facts of any case. Of course we all rarely know the full facts of any case, but that should not prevent healthy and interesting speculation between professionals. May as well as ask Danny to pack up his website and we can all go home and watch TV instead of reading Pprune.

I too, read the Age article as described by Hudson and on the face of it, Hudson's points were perfectly valid and a better contribution to flight safety in GA than your rather tiresome comments.

[Horatio Leafblower]

Having recently passed Torts (with merit) :} I would like to draw your attention to the Civil Liabilities Act 2002 (NSW) which provides that if you knowingly engage in an act or activity that a reasonable person would consider dangerous, you do so at your own risk; and that if you sign a waiver no court may disregard the waiver that you have signed. I am not sure about GA flying but few members of the general public would consider Ultralght flying anything other than inherently risky.

When we covered this legislation there were very few cases to study to which it was applied. Our lecturer (a full-time litigator) basically stated that in sporting and recreational cases, particularly, this legislation has killed public liability stone dead.

[Sunfish]

HSWL, how come I get pounded into the ground for "speculating" about the cause of an air crash, but it is all right for you to speculate about a judgement you have not even read?

While I have not read this judgement, I have had to read one or two in the past, and I can assure you judges are not complete idiots.

None of us have any idea of the FACTS of the case which formed the basis for the judgement. All we know is that the instructor (or his employer?) was found liable for $$$$$$.

Some of you then assume that all instructors are liable all the time, which is rubbish. For example, was this instructor teaching an advanced skier to jump, or was he teaching a beginner skier who had no right to be anywhere near a jump.

To put it another way, if my instructor says "Sunfish, I've taught you the theory of spinning, go out and try it your self" he might well be liable for the results. If on the other hand (perish the thought) I did it accidently on my own, then he would not be liable.

(Sigh) I know legal speculation is a lot of fun, but please don't jump to conclusions about instructor's liability until you have read the judgement. It just puts wind up people for no good reason.

[Icarus2001]

Hudson ever was it so. When weren't instructors responsible for the safety of their students? Nothing has changed.

As far as copying the US, we are infact now more litigious than the US. www.overlawyered.com

It is interesting that the Professional Association of Diving Instructors (PADI) the largest diving certification agency in the world requires detailed and verbose disclaimers to be signed prior to undertaking dive instruction. They do have legal weight.

The issue is negligent behaviour on the part of an instructor. Follow your company operations manual and the regs and you will be indemnified against liability.

Hudson is the case you mentioned LM at Camden? If so that is slightly different as it was a flight test. CASA is the ultimate target of that action as they have the deepest pockets. You are right in that the crash will send ripples as every ATO is a CASA agent, a de facto employee, so where is their training and checking, ops manual, chief pilot etc? How should tests be conducted? What is acceptable?Lots of legal fun & games.

[NAMPS]

I have to agree with the first paragraph of Sunfish's last post...the hypocrisy is hard to stomach :yuk:

Anyway, i'm sure the Horatio would be familiar with the term volenti non fit injuria :ok:

[Horatio Leafblower]

Yes ...but as I am sure my (more) learned friend NAMPS is aware from the case law, the question has previously been in the quality of information leading to volenti and disregarded the forseeability of the injuria. :rolleyes:

I would be interested to read the case referred to at top because I am led to believe that Victoria and most other states have enacted legislation similar to that in NSW.

If that is the case, the accident must have occurred prior to the enactment of the legislation.

Cheers



:8

[The Voice]

Just to steal the thread for a mo ..

Namps

I'm in the throes of finishing (at loooong last) my law degree ..

I am considering an elective from QUT .. Aviation Law .. would you see any merit at completing a unit such as that, given your obvious experience?


rgds

TV

[NAMPS]

TV

From a practical point of view my aviation law practice is perhaps 80% insurance law with the balance made up of administrative law (appearing in the AAT regarding regulatory issues), criminal (arising from regulatory breaches), employment law, (aviation HR issues) and the usual contract and torts issues that arise.

I don't think there is any down side in taking Aviation Law as an elective - why not study in an area you enjoy!

It also puts together all the areas that you would have had to study in an aviation context.

I would recommend joining the Aviation Law Association of Aust and NZ (ALAANZ). The good thing about ALAANZ is that people in the industry (who are not lawyers) are also members (very good for networking). Become actively involved in writing articles etc, and your name will be out there.

I know that 'light at the end of the tunnel' feeling, you have done well to persevere...I've been there. :ok:

[Cornholeeo]

how come (why do) I get pounded into the ground for "speculating" about the cause of an air crash Because you exude an air of know-it-all-ness despite an obvious lack of knowledge, and despite the copy-and-paste approach you take with the wisdom of others, that's how come (why).

And coming from a big-time CEO with a few hrs of Tomahawk-time this is, indeed, hard to stomach.

Try reading more and jawing less. You may find you will gradually acquire the knowledge you desire but, like the pros occasionally found here, it will take years. Stop looking or short-cuts. And stop trying to BS your way around.


Case Closed.

http://www.augk18.dsl.pipex.com/Smileys/bashhead.gif

[Sunfish]

Cornarse, I actually do know more than you, but not about aviation. And its a warrior, not a tomahawk:ok: