Merged: 2003 YPJT Crash - Court Case Decision

[Ex FSO GRIFFO]

From 'The West Australian' Thurs. 12.11.09,

'Liability for the crash of the Cessna twin-engine plane was apportioned two-thirds at the feet of the pilot and the company he worked for....
The other third of negligent liability was found against the engineer who designed and approved a faulty sleeve bearing that was part of the engine fuel pump.'

The pilot was also a plaintiff in the case.

The plane crashed into bush and burst into flames 90 seconds after take-off from Jandakot airport on August 11, 2003. Justice Murray described his decision as "a bit of a win for the plaintiffs".

During a 2 and a half week trial in August the court was told that the engineer used the wrong alloy in replacing a part in the right engine's fuel pump, while the pilot did not follow accepted procedures in an emergency.'

The full article is on page 9 for those who wish to peruse further.

Much food for thought here in my humble opinion.

[FokkerInYour12]

Also here:
Plane crash compo 'in millions' - The West Australian (http://au.news.yahoo.com/thewest/a/-/wa/6462851/plane-crash-compo-in-millions/)
Plane crash survivor tells of hardship - The West Australian (http://au.news.yahoo.com/thewest/a/-/breaking/6461625/plane-crash-survivor-tells-of-hardship/)
Plane crash survivors win court action - The West Australian (http://au.news.yahoo.com/thewest/a/-/breaking/6459923/plane-crash-survivors-win-court-action/)

Of specific mention: "Justice Murray said Mr Penberthy was a highly qualified pilot but there was an obligation for him to take steps that were designed to enable an aircraft to land safely."This he did not do," he said."
If the pilot's personal property is at stake here this is a big wakeup call to all pilots to restructure their finances/assets such that it's not owned in their name but in a trust. Legal advice required here for sure.

[ZEEBEE]

Of specific mention: "Justice Murray said Mr Penberthy was a highly qualified pilot but there was an obligation for him to take steps that were designed to enable an aircraft to land safely."This he did not do," he said."

Hmmm! It might have helped if Justice Murray was put into the position Alex found himself in.

It is one thing to dissect these things with the benefit of hindsight sitting in an air-conditioned office and quite another when there's a sick aircraft heading for a set of power lines.

Unfortunately, this is going to go forever....and guess who's going to win?

Justice Murray described his decision as "a bit of a win for the plaintiffs".

No, Not the plaintiffs, ......only the lawyers who will still be sending their grandchildren to private schools on the benefits of this one.

The court case is still going on with a Shrike accident that occurred circa 1986.

[flyingfox]

The conviction yesterday of an experienced pilot following an accident at Jandakot Airport raises questions about the liabilities we face while working. The conviction, according to an ABC news report, was because 'the pilot was negligent for failing to ensure the plane (sic) was safe to fly'. How can a pilot be sure an aircraft is safe to fly with regards to engineering matters? The conviction appears harsh and maybe it should be appealed for all our sakes. Judge finds pilot was negligent - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/stories/2009/11/11/2739724.htm)

[aussie027]

I assumed since he was employed by Fugro at the time their insurance company would be dealing with the case and any claims/lawsuits.

I think from memory in the GA Award , and most agreements, there is an indemnity clause to protect employees from liability when at work.

[Whiskey Oscar Golf]

The thing I find interesting about this case is the double standards being applied here. While extremely sad for all concerned, these people were at work. That would mean the accident would come under the workers compensation act, wouldn't it? If Alex was flying in the aircraft by himself and this occurred, my understanding is he would only get the relevant workers compensation numbers, not a negligence claim against his employer. The Richard Court Liberal government removed the right for an employee to sue for negligence on an injury received at work. That is my broad understanding of W.A. worker compensation law.

How is this different? I feel for Alex and all involved in the tragedy and hope this can be sorted without the lawyers making to much money and anguish.

[Diatryma]

If the pilot's personal property is at stake here this is a big wakeup call to all pilots to restructure their finances/assets such that it's not owned in their name but in a trust.

He was/is covered by Fugro's insurance. In any event you can take out Non-Ownership Liability insurance to cover you for damage done and injuries suffered if you are at fault but there is a problem with the owners insurance...... easier than messing about restructuring assets etc...

....only the lawyers who will still be sending their grandchildren to private schools on the benefits of this one.


hope this can be sorted without the lawyers making to much money

Whats wrong with lawyers making money? Everyone needs to live. If you want/need a good lawyer then you have to pay the price. Same as a good plumber, electrician etc....... What I hate is lawyers making money unscrupulously - no evidence of that here.



according to an ABC news report, was because 'the pilot was negligent for failing to ensure the plane (sic) was safe to fly'.


This is obviously rubbish. This is NOT one of the reasons the pilot was found to be negligent. Another example that you should not believe everything you read in the press...


The conviction appears harsh and maybe it should be appealed for all our sakes

Well it's not a "conviction". But I'm sure it will be appealed by Fugro's insurers if only due to the amounts involved (cost/benefit).




Di

[ZEEBEE]

Diatryma

Whats wrong with lawyers making money? Everyone needs to live. If you want/need a good lawyer then you have to pay the price. Same as a good plumber, electrician etc....... What I hate is lawyers making money unscrupulously - no evidence of that here.

What's wrong with lawyers making money ? Nothing at all.

They have their job to do....BUT

In these cases, a Judge makes a decision based on a very difficult to verify position that opens the field up for legal challenges that will go until the Sun cools down.

The apportioning of blame in this instance is guaranteed to do just that.

There was an alternative judgment that was used years ago that involved exposure to hazard in the absence of criminal negligence.
There was no criminal negligence in this case.

[The Voice]

no-one can be convicted in a civil lit matter .. apportionment for liability or vicarious liability applies .. the percentage has been decreed - the amount for which is yet to be determined .. all of which can be appealed.

For those that are minded to .. set up a family trust to hold assets. Assets of a trust (which is not a legal entity ie cannot be sued in it's own right unlike a person or a Pty. Ltd. business) .. are then for the benefit of beneficiaries named in the trust deed .. unless one of the beneficiaries is declared bankrupt - then a bankruptcy trustee can lay claim to that persons benefit under the Bankruptcy Act of the jurisdiction you live in ..

The judgment decision is in 3 parts on the W.A. Supreme Court site if you're into a little bit of light reading!

[Johnny_56]

This link is for one part of decision, makes for some interesting reading

[URL="http://decisions.justice.wa.gov.au/supreme/supdcsn.nsf/PDFJudgments-WebVw/2009WASC0316/$FILE/2009WASC0316.pdf"]

It seems that the judges main gripe was the pilots decision to turn back to the runway. The decision to turn seemed to be ok - but the judge thought that th pilot should have stopped the turn to parallel the power lines he was concerned with clearing, and continued in a straight line to maximise performance.

Raises some important issues for all pilots!

[Diatryma]

ZEEBEE,

Apart from where you agree with me in your first two sentences, I dont understand the rest of your post.

You seem to be blaming the judge (for apportioning blame which is his/her job) and the lawyers for doing their jobs.... instead of (heaven forbid) accepting that the engineer and the pilot made mistakes that they need to be accountable for and that other engineers and pilots should learn from.

Di :cool:

[Whiskey Oscar Golf]

I have rather strong legal representation in my family so I wouldn't want them to be without a quid. I also would not want them to pursue a case to the detriment of all concerned in an argument either.

I go back to my original point of workers compensation. If I am injured at work from a faulty machine do I have the right to pursue a civil case against my employer, the machine manufacturer and the person who operated that machine? I thought that line of legal argument was closed by Richard Court's government in WA? No negligence for workers comp. Please, can someone enlighten me or is aviation different and why?

[Johnny_56]

I vagually remember something re workers comp. If you're injured you can get copensation on a no blame basis - ie. even if you do something stoopid and injure yourself you can still get money. However if you believe your employers negligence has caused your injury then you can pursue them for damages, however if you do not succeed you lose your claim to workers comp payments and may have to pay and payments you have recieved back.

I think, i'm no expert

[ZEEBEE]

Di

Apart from where you agree with me in your first two sentences, I dont understand the rest of your post.

You seem to be blaming the judge (for apportioning blame which is his/her job) and the lawyers for doing their jobs.... instead of (heaven forbid) accepting that the engineer and the pilot made mistakes that they need to be accountable for and that other engineers and pilots should learn from.

You raise an interesting point and since it is fashionable to indulge in lawyer bashing, I must confess to have succumbed.

Nevertheless, my point is also valid that these cases get thrown into neverland by judiciary that simply believe that because an aircraft crashed, someone is to blame and they must pay.
Well, my experience is that someone pays BUT it is ONLY the lawyers who reap any benefits.

And that's the problem...these cases are contentious DESPITE any pronouncements by a judge who is often not qualified to understand the potentially hazardous nature of aviation.

Some accidents are just that, and neither Mr. Penberthy nor the engineer/s set out with the intent on damaging people and property.

One can't even truly say that they were negligent because both were fully aware of the nature of their environment and surely did their best to keep things as safe as they could be under the circumstances.

And so the arguments will go on and on while the funds of the parties will continue to get depleted.
By the time any final funds are allocated, they will have diminished to nothing.

[Trojan1981]

I know that there is no way of absolutely denying an individuals right to compensation and justice after acts of negligence (I am NOT infering that the pilot was negligent in this case), and rightly so.

However, if cases like this continue, passengers will only be allowed on charter flights after signing indemnity forms.

[Diatryma]

ZEEBEE,

The lawyers always "win" as it were - as they always get paid.... and as I have said I think that is fair enough.

But I think the main "winners" (if you can call them that!) in these cases are the victims who will receive the compensation they need and deserve. They will get their compensation (including interest which by the court scales is very generous), and the lawyers will get their fees.

It's just a pity the process all takes so long and the victims have to wait for years and sit through a lengthy trial and possibly appeal and possibly another trial over quantum ....the survivors are forced to re-live the event and the family and friends of the deceased have to continue to be reminded of their loss and what their loved ones went through.....but that's the system.

neither Mr. Penberthy nor the engineer/s set out with the intent on damaging people and property.

OK but that doesn't mean they are not negligent. If you drive into the back of the car in front of you because you were'nt paying attention, you are still negligent even though you didn't intend to crash.

surely did their best to keep things as safe as they could be under the circumstances

Obviously the Judge disagrees.....

Hopefully most people involved in aviation who see this decision will learn from it and realise the consequences of their decisions .... rather than burying their head in the sand moaning about lawyers and how unfair the legal system is etc....

Signing off now ZB as we could discuss this forever and never agree.

Di

Edited to add: I feel almost as sorry for the pilot and engineer as I do for the injured, the deceased and all their families and friends. I agree that it is easy to look back on their mistakes with hindsight and decide who was to blame. Certainly no one would want to be in the pilot's shoes during this horrific flight. But hopefully many pilots will learn from his mistakes - and not turn back for the strip in circumstances where you are too low but still gaining height. It would take a lot of courage and clear thinking to resist the urge I would think. But this scenario (turning back for the strip) happens far too often.

[Capn Bloggs]

Di,
If you drive into the back of the car in front of you because you were'nt paying attention, you are still negligent even though you didn't intend to crash.
Hardly relevant in this case.The judge's judgement against the pilot is very worrisome.

[Diatryma]

Capt Bloggs,

Out of context my comment is totally irrelevant. My point (if you read my post and exchanges :rolleyes:) is the it does not matter that the pilot and/or engineer in question in this case did not "set out with the intent on damaging people and property" as ZEEBEE put it. THAT is hardly relevant!

The judgement against the pilot is worrisome. So is the judgement against the engineer. But between them I believe they were responsible for the accident. Perhaps the apportionment is questionable - and I think this may be subject to appeal - we will see.

Di

[Ex FSO GRIFFO]

Aye Cap'n.......Hence the post.

And, as an aside, those powerlines, although they seem to be 'well' to the south from the point where we all get airborne, I am very sure that they will appear to be a 'significant obstacle' to the pilot of an aircraft which either is not climbing, or one which is barely controllable and maybe, perhaps, gaining altitude - although be it very slowly.

The distance, as measured by Google Earth, from the brakes release point is only some 2.63 nm, or 4.87km.....

And for those who suggest that to go 'under' may have been an option - it is NOT!

For those not familiar with the layout at JT, there are actually three (3) sets of those powerlines, two 'high' and the third is smaller and 'low' - thus effectively 'filling in' the gap and blocking off that option - if that was a 'contemplation' in the first place - it would very soon become apparent that this is not a way to go....

To paraphrase Mr Gann, of 'Fate Is The Hunter' - he was a 'poor man indeed'.....

Understand, I was not part of this, but we are all going to be affected by this decision as it may apply to us in its own way.

That golf course just prior to the freeway may look very inviting when next I am 'commiting aviation', but even that would require some manoeuvring, first to the right to 'make room' and then a substantial left turn to line up sufficiently - IF the aeroplane is behaving satisfactorily on 'one'.

Or, would I hit the ground first??

The penultimate post quote 'because you weren't paying attention' is a bit of a 'red herring' - I would imagine that this situation would have one's 'complete and absolutely undivided attention'.....

Worrisome ? - Now there's a word.....

I do not propose any 'answers'...I wouldn't dare. Only the pilot in 'that' aircraft at 'that' time with 'that load', under 'those' conditions would be able to 'in hindsight' think what MAY have been able to be done 'better'.

For us, a valuable lesson in the way the law may regard our profession and our decisions. For the pilot, no doubt he would wish it didn't happen so.....

Like I said in the first post - Much food for thought here........

Cheers.

p.s. Sorry Di - was still composing as you were posting....

[eocvictim]

An interesting thought is where would we stand if we did everything as per the SOP's or Ops manual and still came unstuck? By the sounds of things we'd still be liable...

[ZEEBEE]

An interesting thought is where would we stand if we did everything as per the SOP's or Ops manual and still came unstuck? By the sounds of things we'd still be liable...

Therein lies the conjecture.

I've resisted reposting on this as Di says, 'we could go on backwards and forwards until the case is closed' (paraphrased).

But, I don't expect to live that long...after all, I'm 63 now and my family history suggests that 30 years is stretching it.

Di seems to think that the case will be settled and the plaintiffs will walk away with their costs re-reimbursed and some sense of justice.

Sadly, the reality is different. The plaintiffs case against AGA re a Shrike accident is still ongoing and it it's been going for twenty three years now.
And there's a case where the pilot WAS clearly negligent.

In the latest case, we can only conjecture what pressures were on the pilot when faced with a nasty case of going nowhere fast.
At the worst he made an error of judgment, but who amongst us is going to throw the first stone.
Somewhere in most pilot's flying careers, there have been errors in judgment and mostly, we've got away with it.
This one was serious and the results catastrophic...but, does an error in judgment under duress equal negligence ?? I hope for most that it doesn't.

[FGD135]

those powerlines ... will appear to be a 'significant obstacle' to the pilot of an aircraft which either is not climbing, or one which is barely controllable ...

It is very likely that the pilot was assessing those power lines whilst the flaps were retracting.He had taken off with the flaps in the approach position and began their retraction during his clean up actions.

That momentary "sinking feeling" - or lack of climb - during flap retraction, may have had the effect, if the pilot was assessing the power lines at this time, of convincing him that the aircraft would not climb sufficiently to avoid them.

This is a highly likely possibility and I think was mentioned in the report.

[FGD135]

... does an error in judgment under duress equal negligence
ZEEBEE, I don't believe his actions have been legally considered to be "negligent". I'm not 100% sure, but I don't believe I have yet heard this word used in connection with the pilot's actions.

An interesting thought is where would we stand if we did everything as per the SOP's or Ops manual and still came unstuck? By the sounds of things we'd still be liable... Of course you would still be liable.

[Diatryma]

I don't think all this talk about the power lines is all that relevant in this particular case now. Evidence was put forward by an "expert" that if the pilot continued to fly straight ahead after take off, with the rate of climb being achieved and with just a marginal left directional alteration he could have flown between the pylons (at or below the height of the pylons) and over the sag in the power lines.

Obviously in the moment the pilot would not be analysing to this degree and could not be expected to. In any event it would be much too close for him to decide to take that chance.

He was not criticised by the Judge for the first turn to avoid the power lines. He was criticised for the second turn back to the strip when he was travelling parallel to the powerlines and climbing slowly.

Di

[ZEEBEE]

FGD135

ZEEBEE, I don't believe his actions have been legally considered to be "negligent". I'm not 100% sure, but I don't believe I have yet heard this word used in connection with the pilot's actions.

To be honest, I haven't heard that yet either, but without negligence it's hard to see "blame" can be apportioned.

And blame WAS apportioned by the Judge.

[Capn Bloggs]

An interesting thought is where would we stand if we did everything as per the SOP's or Ops manual and still came unstuck? By the sounds of things we'd still be liable...

Of course you would still be liable.
That stinks. One expert (the pilot) verses another expert (sitting comfortably in the witness box with 20/20 highdsight).

Diatryma,
But between them I believe they were responsible for the accident. Perhaps the apportionment is questionable - and I think this may be subject to appeal - we will see.
I sincerely hope you don't work for the ATSB or any safety-related organisation with an attitude like that.

[FGD135]

I sincerely hope you don't work for the ATSB or any safety-related organisation with an attitude like that.


Capn Bloggs, I am curious.

Do you believe that a pilot can ever be responsible (even partly) for the crash of his aircraft?, and

Do you believe that, in the case of this particular crash, the pilot was:

A. Not responsible at all, or
B. Partly responsible, or
C. Fully responsible?

[Capn Bloggs]

FGD135,

Do some reading on flight safety. The answer to your questions, especially the first one, are blindingly obvious to anybody who has even the most basic understanding of how things work in aviation safety. That you are even asking the question is a concern.

[Diatryma]

Capt,

What attitude? Just stating an opinion in a clear and logical manner.....

I'd be surprised if myself and FGD135 are the only ones who are a bit bemused by your posts. Perhaps you would make your position clearer and you would appear more logical if you tried to answer FGD's question rather than dodging the issue...

Di :E

[Diatryma]

FGD135,

I guess perhaps Capn Bloggs is referring to the fact that the thinking has changed over the years from solely blaming the pilot to recognising that there are many other contributing factors to any accident - organizational causes - Swiss cheese and all that. And thats all good IRO determining accident causation with a view to improving safety

However this is a legal case. The goal is not improving safety. The goal is determining who should pay for the deaths and injuries caused. That's reality.

And in this case (as is common in these sort of matters in my experience), the organisation (Fugro) and the pilot were essentially considered as one. They would both be covered by the same insurance policy, they were both represented by the same lawyers and Counsel and most importantly Fugro were legally responsible (vicariously) for the pilots actions as well as for their own liability.

Because of this the Judge would not have been focussed on splitting the liability between Fugro and Penberthy. Determining how much the pilot should be blamed personally for his actions, and how much influence organisational matters had on the cause of the accident would not have entered the Judges mind.

So unfortunately the pilot cops the brunt of things - particularly in the press - on behalf of both himself and the organisation he works for. In this regard I feel heartfelt sorry for him.

Di :(

[ZEEBEE]

However this is a legal case. The goal is not improving safety. The goal is determining who should pay for the deaths and injuries caused. That's reality.

And in this case (as is common in these sort of matters in my experience), the organisation (Fugro) and the pilot were essentially considered as one. They would both be covered by the same insurance policy, they were both represented by the same lawyers and Counsel and most importantly Fugro were legally responsible (vicariously) for the pilots actions as well as for their own liability.

Because of this the Judge would not have been focussed on splitting the liability between Fugro and Penberthy. Determining how much the pilot should be blamed personally for his actions, and how much influence organisational matters had on the cause of the accident would not have entered the Judges mind.

So unfortunately the pilot cops the brunt of things - particularly in the press - on behalf of both himself and the organisation he works for. In this regard I feel heartfelt sorry for him.

Thanks for that well explained clarification Diatryma

Why then do these things drag out for thirty years or more ?
Is it because the Judge being unaware of the vagaries of the technical issues leave a massive legal black hole for insurance legal departments to exploit ?
I recognise that you may not be in a position to comment, but it would be interesting to hear an opinion.

[Diatryma]

ZEEBEE,

I don't know of any that drag on for 30 years - you are obviously aware of a particular matter (AGA?) but every case is different and I don't know anything about that one....

Di