Recreational Flying and Liability
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The reason for my question is, as I explained above, neither the passenger on the Jumbo nor the passenger on the Pitts Special has any clue about the probabilities of the risks involved in the activity and, therefore, never truly “accepts” those risks.
Most Jumbo passengers know enough that they don't usually travel on third world airlines. Most passengers in light aircraft know that they are less reliable and their pilots generally less trained than is the case in the better airlines. I think most passengers in a 2 seat Pitts would understand they are significantly more vulnerable than travelling by major airline. They just don't want to be responsible if their momentary adrenalin kick turns to something more permanent.
Perhaps that little placard "Passengers fly at own risk" might be the ultimate truism?
Kaz
Last edited by kaz3g; 2nd May 2013 at 10:58.
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And at the end of the day in the Pitts, in order to cover the inherent risks you would be paying for insurance that would make the flight an unacceptable risk to your wallet .... This has been well proven to be the killer of all types of light aviation in the past (eg end of Piper / Cessna) until sanity prevailed and the US govt enacted legislation to end the mostly spurious claims. If you are going to do the activity that will increase your heart rate accept that it might bite you on the bum and leave it at that, if not stick to the 737-800 for your aviation jollies.
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Creamy,
If you take your point to its logical conclusion, every risky activity would need to be quantified prior to any individual accepting participation.
The problem is just how you go about quantifying risk to a lay person. Yes, one fatality every 60,000 people sounds like it has been described, but has it really? To the average person those odds sound acceptable (unless you are the 60,000th person to fly). But do they have any idea how many people fly per hour, per day, per year?
Is that 1 in 60000 just within Australia, or in the participant's State, or across the world? Is it an average taken over the last decade or just for last year?
Or should risk be quantified based on proven safety record? In an aviation related court case that i was assisting in, the senior counsel advised me that the organization's outstanding safety record counted for naught in the eyes of the law.
Then how do we compare quantitative risks of differing risky activities...aviating with caving or abseiling, or pole dancing? I would stand a much greater of injuring myself pole dancing by the way.
I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.
As pointed out, the Civil Aviation Carrier's Liability Act, which is capped too low in my opinion, covers your average fare paying passenger. Everything else is considered 'risky' and this judgment reiterate that view legally.
This is the only way rec flying for the public can be managed. All participants are entitled to be advised that they are about to do something which has a definite element of risk. They are entitled to have this pointed out both verbally and in writing eg placard or waiver form. I advise this to those who I am about to take flying then go on to brief about just how those risks are managed. Risks remain irrespective.
Of course no-one is safe from litigation against negligent or criminal failures by the PIC.
LD
If you take your point to its logical conclusion, every risky activity would need to be quantified prior to any individual accepting participation.
The problem is just how you go about quantifying risk to a lay person. Yes, one fatality every 60,000 people sounds like it has been described, but has it really? To the average person those odds sound acceptable (unless you are the 60,000th person to fly). But do they have any idea how many people fly per hour, per day, per year?
Is that 1 in 60000 just within Australia, or in the participant's State, or across the world? Is it an average taken over the last decade or just for last year?
Or should risk be quantified based on proven safety record? In an aviation related court case that i was assisting in, the senior counsel advised me that the organization's outstanding safety record counted for naught in the eyes of the law.
Then how do we compare quantitative risks of differing risky activities...aviating with caving or abseiling, or pole dancing? I would stand a much greater of injuring myself pole dancing by the way.
I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.
As pointed out, the Civil Aviation Carrier's Liability Act, which is capped too low in my opinion, covers your average fare paying passenger. Everything else is considered 'risky' and this judgment reiterate that view legally.
This is the only way rec flying for the public can be managed. All participants are entitled to be advised that they are about to do something which has a definite element of risk. They are entitled to have this pointed out both verbally and in writing eg placard or waiver form. I advise this to those who I am about to take flying then go on to brief about just how those risks are managed. Risks remain irrespective.
Of course no-one is safe from litigation against negligent or criminal failures by the PIC.
LD
a recent event
I am aware that there is an appeal lodged in this case so we are not "out of the woods" yet by any means by way of precident.
But this is what has happened to me.
A Cautionary “Tail”.
Once upon a time a young, or not so young, gentleman aeroplane enthusiast had been entrusted by the gods of aviation with the care of some elderly aeroplanes. This trust carried with it the implication that the enjoyment of these aeroplanes should be given to folk who expressed an interest. So this enthusiast would freely give flights in the DH89 Rapide to which he felt privileged to be the caretaker..
On one occasion some members of HARS had helped get the aeroplane ready for it’s 100 hourly and they flew with the aeroplane to Albion Park for the HARS open day. This was very successful and the next year two of these HARS members also flew to the next open day. At that stage the Rapide flew in company with a Comper Swift and the opportunity was taken to get some excellent air-to –air photographs.
Everyone was elated on landing at Bankstown and as we taxied up to the hangar we were all in excellent spirits. The engines were still running and cooling whilst a member of the crew was tasked with getting out and preparing the chocks. The pilot had just shut the engines down when he received the unwelcome news that one of the HARS members , had alighted from the wing root and hurt himself. As we all got out it was evident that he was close to the tail plane and that he must have jumped from the wing root and broken his leg. We asked him what had happened but as he was in shock we assumed he could not remember. His protestations at the time were that “don’t be worried, I will not sue you”.
As expected this proved to be false and some time later court proceedings started which resulted in the judge awarding this person a total of $506,000.
After much to-ing and fro-ing the insurance company Vero, the company with which our broker had placed the insurance, decided to depart the area of aviation insurance and treated the case as a “tail” thus paying this person a swag of monies that I believe he was not entitled to. Solicitor barrister and QC engaged by the insurance company advised against settlement for any monies but the insurance company relying on their cross insurance wanted to depart aviation insurance.
Farther details of the case were that the individual concerned had
1 but little aviation experience but had been a policeman and a “financial adviser”
2 he had been introduced by a friend, a skilled HARS member, and had during the previous period been tasked with cleaning and “gophering” as his contribution to the 100 hourly. As part of this he had been instructed on how to enter and exit the Rapide safely.
3 during the court case we had to change judges as the judge who was appointed had judged him adversely in a previous case regarding financial impropriety so she had to excuse herself.
4 the major claim of negligence was that steps should have been provided and that he had fallen from the wing root rather than jumped.
Now this is the very rough outline of a case which has taken several years to progress to this stage and you must realize that the above statement is very superficial and there are lots of other features of which due to lack of time, general irritation and a wish not to waste good ink on I must decline to expound upon but if you want to know more give me a phone call or an e-mail.
But the real purpose of this article is to warn you all to the legal implications of offering “buddy flights”.
Firstly there are lots of lawyers out there who are hungry for work. This is proved by the advertising seen of the type “you deserve compensation”. They will not be put off by whether the case is right or wrong.
People will change their minds about their actions when they are perhaps advised by, for example, a greedy member of the family.
There is a group of people who believe that they are not suing an individual but suing an insurance company so that somehow makes it OK to exploit the insurance company as “they have plenty of monies”. There also seem to be those in authority who work on the premise of “what can we award to get this thing to go away”.
It is critically important to have insurance as otherwise this could have been a financial disaster
Exam question.
Discuss, We have a legal system but not a justice system!
But this is what has happened to me.
A Cautionary “Tail”.
Once upon a time a young, or not so young, gentleman aeroplane enthusiast had been entrusted by the gods of aviation with the care of some elderly aeroplanes. This trust carried with it the implication that the enjoyment of these aeroplanes should be given to folk who expressed an interest. So this enthusiast would freely give flights in the DH89 Rapide to which he felt privileged to be the caretaker..
On one occasion some members of HARS had helped get the aeroplane ready for it’s 100 hourly and they flew with the aeroplane to Albion Park for the HARS open day. This was very successful and the next year two of these HARS members also flew to the next open day. At that stage the Rapide flew in company with a Comper Swift and the opportunity was taken to get some excellent air-to –air photographs.
Everyone was elated on landing at Bankstown and as we taxied up to the hangar we were all in excellent spirits. The engines were still running and cooling whilst a member of the crew was tasked with getting out and preparing the chocks. The pilot had just shut the engines down when he received the unwelcome news that one of the HARS members , had alighted from the wing root and hurt himself. As we all got out it was evident that he was close to the tail plane and that he must have jumped from the wing root and broken his leg. We asked him what had happened but as he was in shock we assumed he could not remember. His protestations at the time were that “don’t be worried, I will not sue you”.
As expected this proved to be false and some time later court proceedings started which resulted in the judge awarding this person a total of $506,000.
After much to-ing and fro-ing the insurance company Vero, the company with which our broker had placed the insurance, decided to depart the area of aviation insurance and treated the case as a “tail” thus paying this person a swag of monies that I believe he was not entitled to. Solicitor barrister and QC engaged by the insurance company advised against settlement for any monies but the insurance company relying on their cross insurance wanted to depart aviation insurance.
Farther details of the case were that the individual concerned had
1 but little aviation experience but had been a policeman and a “financial adviser”
2 he had been introduced by a friend, a skilled HARS member, and had during the previous period been tasked with cleaning and “gophering” as his contribution to the 100 hourly. As part of this he had been instructed on how to enter and exit the Rapide safely.
3 during the court case we had to change judges as the judge who was appointed had judged him adversely in a previous case regarding financial impropriety so she had to excuse herself.
4 the major claim of negligence was that steps should have been provided and that he had fallen from the wing root rather than jumped.
Now this is the very rough outline of a case which has taken several years to progress to this stage and you must realize that the above statement is very superficial and there are lots of other features of which due to lack of time, general irritation and a wish not to waste good ink on I must decline to expound upon but if you want to know more give me a phone call or an e-mail.
But the real purpose of this article is to warn you all to the legal implications of offering “buddy flights”.
Firstly there are lots of lawyers out there who are hungry for work. This is proved by the advertising seen of the type “you deserve compensation”. They will not be put off by whether the case is right or wrong.
People will change their minds about their actions when they are perhaps advised by, for example, a greedy member of the family.
There is a group of people who believe that they are not suing an individual but suing an insurance company so that somehow makes it OK to exploit the insurance company as “they have plenty of monies”. There also seem to be those in authority who work on the premise of “what can we award to get this thing to go away”.
It is critically important to have insurance as otherwise this could have been a financial disaster
Exam question.
Discuss, We have a legal system but not a justice system!
If you take your point to its logical conclusion, every risky activity would need to be quantified prior to any individual accepting participation.
…
I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.
…
I'm not trying to be trite, only saying that its bloody hard to come up with an acceptable measuring stick that truly informs the participant of either the absolute risk or the relative risk.
Nobody - but nobody - understands the probabilities of each and every one of the bad things that could happen to or on an aircraft, happening.
The suggesting that participants accept the risks of an activity is a fiction.
The suggesting that participants accept the risks of an activity is a fiction.
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Good. It looks like we are in agreement in that the specific level of risk is virtually unquantifiable, and certainly in terms of anything meaningful to the layman.
"The suggesting that participants accept the risks of an activity is a fiction."
Participants aren't "accepting the risks" however so much as accepting that participation is 'risky' as deemed in law. Just a matter of risky or non risky. I don't see why it needs to be any more complex than this.
I accept my pole dancing experience will be risky. My gorgeous pole dancing instructor has advised me that as a fat old man , I could well slip from the pole during my lesson and do serious injury. She actually did this for the whole class and also had me read a waiver form, confirm that I understood it and had me sign it.
Its irrelevant how this level of risk compares with canyoning or even golf. All that matters is that I am reasonably warned of the potential 'riskiness'. If I accept this then any unforeseen outcome was agreed to be accepted by me as an informed adult.
Taking your Aunt Mable for a flight in a Jabiru or Cherokee may not warrant a waiver form but she certainly deserves to be told that flying certainly has an element of risk above everyday activities (even if this is arguable). Ideally you would do this in the presence of at least one other.
I used to advise passengers and students that I had a greater risk of being killed by a little old lady reversing without looking, out of her parking spot in a country town main street ..as I almost was a couple of times. I dont say this anymore as that risk comparison wouldnt be accepted in any review.
LD
"The suggesting that participants accept the risks of an activity is a fiction."
Participants aren't "accepting the risks" however so much as accepting that participation is 'risky' as deemed in law. Just a matter of risky or non risky. I don't see why it needs to be any more complex than this.
I accept my pole dancing experience will be risky. My gorgeous pole dancing instructor has advised me that as a fat old man , I could well slip from the pole during my lesson and do serious injury. She actually did this for the whole class and also had me read a waiver form, confirm that I understood it and had me sign it.
Its irrelevant how this level of risk compares with canyoning or even golf. All that matters is that I am reasonably warned of the potential 'riskiness'. If I accept this then any unforeseen outcome was agreed to be accepted by me as an informed adult.
Taking your Aunt Mable for a flight in a Jabiru or Cherokee may not warrant a waiver form but she certainly deserves to be told that flying certainly has an element of risk above everyday activities (even if this is arguable). Ideally you would do this in the presence of at least one other.
I used to advise passengers and students that I had a greater risk of being killed by a little old lady reversing without looking, out of her parking spot in a country town main street ..as I almost was a couple of times. I dont say this anymore as that risk comparison wouldnt be accepted in any review.
LD
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All good healthy discussion on the word 'risk':-)
Summer, 1943, Europe, Brenham........those guys knew the risks.
It's a personal thing really, you either know it & accept it or yr ignorant to the fact, either way.........."leave the rest in the hands of God":-)
At the end of the day most of the gen public know or believe that flying is dangerous especially in small planes.
Wmk2
p.s....just as a side note (nufin' really to do with the thread subject) for those interested in the 'Belle' go to YouTube & search "Memphis Belle- The final chapter in Memphis"....very interesting one hr history of the Belle after WW2
Summer, 1943, Europe, Brenham........those guys knew the risks.
It's a personal thing really, you either know it & accept it or yr ignorant to the fact, either way.........."leave the rest in the hands of God":-)
At the end of the day most of the gen public know or believe that flying is dangerous especially in small planes.
Wmk2
p.s....just as a side note (nufin' really to do with the thread subject) for those interested in the 'Belle' go to YouTube & search "Memphis Belle- The final chapter in Memphis"....very interesting one hr history of the Belle after WW2
Last edited by Wally Mk2; 3rd May 2013 at 00:09.
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The suggesting that participants accept the risks of an activity is a fiction.
It has nothing to do with the individual "accepting the risk"... See my earlier post.
The Court has decided on the evidence that a "reasonable person" would hold the view that recreational flying has an inherent level of risk associated with it such that, if something goes wrong, serious injury or death may result.
It is irrelevant whether the particular passenger "accepted" the risk.
Kaz
It has nothing to do with the individual "accepting the risk"... See my earlier post.
The Court has decided on the evidence that a "reasonable person" would hold the view that recreational flying has an inherent level of risk associated with it such that, if something goes wrong, serious injury or death may result.
It is irrelevant whether the particular passenger "accepted" the risk.
Kaz
Although your statement about the reasoning and conclusion in the case is accurate, both are based on the interpretation of legislation.
Legislation can be changed.
I’m talking about the underlying assumptions of this and other legislation.
If the “passenger” in this case had been undergoing flying training for the purposes of eventually obtaining a commercial pilot’s licence for a career in aviation, would that have been a “recreational activity”? Not according to the definition in section 5K of the NSW legislation. (And I’m still wondering how it’s possible for a person to be a “passenger” “undergoing flying training…”.)
So the results are bizarre. Same aircraft, same instructor, same “passenger” and same obvious and inherent risks. If the “passenger” is there as a “recreational activity”, there’s no liability. However, if the “passenger” is there to train for a professional qualification there can be liability. What’s the point of that distinction?
Legislation can be changed.
I’m talking about the underlying assumptions of this and other legislation.
If the “passenger” in this case had been undergoing flying training for the purposes of eventually obtaining a commercial pilot’s licence for a career in aviation, would that have been a “recreational activity”? Not according to the definition in section 5K of the NSW legislation. (And I’m still wondering how it’s possible for a person to be a “passenger” “undergoing flying training…”.)
So the results are bizarre. Same aircraft, same instructor, same “passenger” and same obvious and inherent risks. If the “passenger” is there as a “recreational activity”, there’s no liability. However, if the “passenger” is there to train for a professional qualification there can be liability. What’s the point of that distinction?
So, if the 'passenger' was there as a student pilot, being trained under RAAus for a Pilot Certificate - this would still be a 'recreational activity' because they are not actually training for a 'licence'......... let alone training for a 'professional' licence?
It then follows that, if the 'passenger' had advised of their intent to be trained initially via RAAus, but later on, via the CASA PPL and CPL syllabus, to gain a CPL....... then this is not recreational flying, but is actually professional training, and is treated differently in law?
It seems that the distinction isn't great.
Isn't the student pilot undergoing training toward a 'recreational' qualification, ie a Pilot Certificate, actually owed the same duty-of-care as the intending 'professional' pilot?
happy days,
It then follows that, if the 'passenger' had advised of their intent to be trained initially via RAAus, but later on, via the CASA PPL and CPL syllabus, to gain a CPL....... then this is not recreational flying, but is actually professional training, and is treated differently in law?
It seems that the distinction isn't great.
Isn't the student pilot undergoing training toward a 'recreational' qualification, ie a Pilot Certificate, actually owed the same duty-of-care as the intending 'professional' pilot?
happy days,
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This summary of recreational activity risks, warnings and waivers for the NSW Civil Liability Act is well worth a look through. Remember this applies only to NSW.
It explains the difference between dangerous and non dangerous recreational activity and also outlines the value of warnings and wavers.
The NSW Civil Liability Act and Community Participation Events
It explains the difference between dangerous and non dangerous recreational activity and also outlines the value of warnings and wavers.
The NSW Civil Liability Act and Community Participation Events
Last edited by LookinDown; 5th May 2013 at 09:08.
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Liability
Well Found LookDown and worth putting here for all:
Some important reading!
Risk Warnings
Section 5M of the CLA provides that if a "risk warning" is given there is no duty of care owed to a participant in a recreational activity in respect of the risk the subject of that warning.
A "risk warning" is a warning "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". A risk warning can be given orally or in writing including by means of a sign. A defendant is not required to establish that the plaintiff received or understood or was capable of receiving and understanding the warning although a risk warning can only be given to an incapable person (such as a child) if it was given to a legally competent parent or other person who was in control of or accompanied the incapable person. This is important because provided the warning is given to a parent, guardian or other adult supervisor, negligence liability to a child can be avoided by giving a risk warning.
It seems that there must be some coincidence between the risk which materialises and the risk against which the warning was given before liability is excluded. Even so, a risk warning "need not be specific to the particular risk and can be a general warning of the risks that includes the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)" - section 5M(5).
A risk warning cannot be relied on if contradicted by other representations. A defendant cannot rely on a risk warning unless it is given by or on its behalf or by or on behalf of the occupier of the place where the recreational activity is undertaken. A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety, eg WorkCover codes and regulations. Risk warnings cannot be relied on if the plaintiff was required to engage in a recreational activity by the defendant although what degree of power, authority and compulsion is necessary is not made clear.
In relation to any particular programme or event, if it is possible to devise a risk warning which gives a general warning of the particular risks, then liability for negligence will not be imposed if these risks occur.
Section 5M of the CLA provides that if a "risk warning" is given there is no duty of care owed to a participant in a recreational activity in respect of the risk the subject of that warning.
A "risk warning" is a warning "given in a manner that is reasonably likely to result in people being warned of the risk before engaging in the recreational activity". A risk warning can be given orally or in writing including by means of a sign. A defendant is not required to establish that the plaintiff received or understood or was capable of receiving and understanding the warning although a risk warning can only be given to an incapable person (such as a child) if it was given to a legally competent parent or other person who was in control of or accompanied the incapable person. This is important because provided the warning is given to a parent, guardian or other adult supervisor, negligence liability to a child can be avoided by giving a risk warning.
It seems that there must be some coincidence between the risk which materialises and the risk against which the warning was given before liability is excluded. Even so, a risk warning "need not be specific to the particular risk and can be a general warning of the risks that includes the particular risk concerned (so long as the risk warning warns of the general nature of the particular risk)" - section 5M(5).
A risk warning cannot be relied on if contradicted by other representations. A defendant cannot rely on a risk warning unless it is given by or on its behalf or by or on behalf of the occupier of the place where the recreational activity is undertaken. A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety, eg WorkCover codes and regulations. Risk warnings cannot be relied on if the plaintiff was required to engage in a recreational activity by the defendant although what degree of power, authority and compulsion is necessary is not made clear.
In relation to any particular programme or event, if it is possible to devise a risk warning which gives a general warning of the particular risks, then liability for negligence will not be imposed if these risks occur.
A risk warning cannot be relied on where there is contravention of a statutory code or regulatory protocol for protection of personal safety.
It is arguable that the mere presence of such insurance policies encourages such lawyerly activity, since lawyers can be greedy, but are rarely stupid when it comes to the possibility of lack of reward. Of course, rolling over easily by insurance companies only further encourages this too, but the insurance co.s can pass these elevated costs that this brings on to their customers, at least in the short term. Insurance industry moral hazard, I guess...
Last edited by Andy_RR; 6th May 2013 at 01:46.
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I'm no lawyer Creamy.
I'm not even a bush lawyer but i think the statement is simply saying that there is no protection against criminal or negligent actions or behaviour.
Not only can a risk warning not be relied upon in such circumstances but your very insurance cover itself can no longer be relied upon.
There's an old saying in law that 'negligence is easy to claim but very difficult to defend'.
LD
I'm not even a bush lawyer but i think the statement is simply saying that there is no protection against criminal or negligent actions or behaviour.
Not only can a risk warning not be relied upon in such circumstances but your very insurance cover itself can no longer be relied upon.
There's an old saying in law that 'negligence is easy to claim but very difficult to defend'.
LD
The case at the start of the thread says the pilot was negligent for not taking the opportunity to land when he safely could. But he wasn't found liable. Isn't that one of the primary aims of the legislation?
As to the exception, the way I read it, if, for example, the pilot of the recreational aircraft takes off knowing there is insufficient fuel on board for the planned flight (thereby breaching a regulatory code for the protection of personal safety i.e. the Civil Aviation Regulations) and the passenger is injured during the inevitable forced landing after fuel exhaustion, the pilot would not be protected from liability.
As to the exception, the way I read it, if, for example, the pilot of the recreational aircraft takes off knowing there is insufficient fuel on board for the planned flight (thereby breaching a regulatory code for the protection of personal safety i.e. the Civil Aviation Regulations) and the passenger is injured during the inevitable forced landing after fuel exhaustion, the pilot would not be protected from liability.
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distinctions...
Creampuff I can see some distinctions.
when the guy was in flight training he was an active participant.
when the engine got the wobblies and the instructor took over the guy became an inactive participant unable to affect the outcome. (you try advising an instructor :-) )
in the jumbo jet the participant is innocent of all problems because the entire certified system exists to relieve him of the need to appraise the risk. all the bollocks of checks and balances and tons of paperwork is put there as a blunt instrument to stop him being killed.
3 levels of risk as I see it.
when the guy was in flight training he was an active participant.
when the engine got the wobblies and the instructor took over the guy became an inactive participant unable to affect the outcome. (you try advising an instructor :-) )
in the jumbo jet the participant is innocent of all problems because the entire certified system exists to relieve him of the need to appraise the risk. all the bollocks of checks and balances and tons of paperwork is put there as a blunt instrument to stop him being killed.
3 levels of risk as I see it.
How does being an “active participant” increase someone’s understanding of the risks?
If it was the guy’s first training flight, how would he have any better insight into the risks than if he were a passenger?
It seems to me to be a distinction without a difference.
If it was the guy’s first training flight, how would he have any better insight into the risks than if he were a passenger?
It seems to me to be a distinction without a difference.