Pax signing contracts to fly/Insurance - the Law

[weegsltl]

Hello,

I hopefully will be completing my PPL shortly and the "When you pass..." phonecalls are already coming in from friends and family.

However during a course I was involved in we got discussing about friends and family who had sued each other over incidents in flight.

Therefore I was wondering if anyone gets their pax to sign a contract or disclaimer stipulating basically that they understand the risks involved and therefore can't sue you if something goes wrong.

I will be the first to admit I know very little about the law so not sure if this is legal and if for example the pilot was found negligent that it would become void.

Comments, feedback, ideas, etc would be appriciated,

Cheers

[BEagle]

You mean just like you do whenever you take someone for a drive in your car?

Get real - before the moneygrabbing litigation society stops anyone from even the slightest risk of having fun!

Good luck with your PPL!

[charlie-india-mike]

Well said BEagle

Where are we going to! Pax to sign contract!

C-I-M

[Fly Stimulator]

Quite right!

And in any case, you cannot make yourself immune from legal action no matter what you have persuaded your passengers to sign.

[bookworm]

You've got two problems:

1) a contract that disclaims liability for injury or death would be invalid as a consequence of the Unfair Contract Terms Act 1977

2) if an accident occurs, any compensation that your passengers might get for their injuries depends on their suing you. The insurance policy for the aircraft insures you against that (but ensure that if you hire an aircraft that you are an additional insured on the policy).

IANAL

[weegsltl]

Hello,

Thank you for your replies.

Looks like granny Weegsltl can go flying without the horror of having to fill in "yet another one of those bleeding forms which I never had in my day....." ;)

Cheers

[Tall_guy_in_a_152]

I do mention to Pax that I do not have ANY insurance that will cover THEM in anyway what-so-ever should there be an incident. If the subject comes up (and I'm surprised how often it does) I also explain that most life insurance policies do not have exemptions for pax in light aircraft (only the pilot).

TG.

[Paracab]

Sorry Guys, a naive question, but, who insures P/UT ? The school ? Their own life insurance ?

Something I probably should have researched a while ago....

[DubTrub]

Tall_guy,

I will not fly pax unless they are insured under my policy (as all my pax are under the CSL clause).
Personally I think it's a bit unfair to accept that a passenger has full knowledge and appreciation of flying, insurance and other matters and risks to accept an offer of a flight from me unless as a responsible person I insure them against those potential risks.
My own opinion is that as members of the aviation community we have a duty of care to ensure that all parties are protected to the fullest extent possible.

I think if you examine your insurance policy, any additional premium to protect second-parties (i.e. passengers) might not cost an awful lot more.

Your further opinion would be welcome,
best wishes
DT

[DFC]

One thing about litigation is that one can not sue oneself for compensation.

In the case of a member's club, a member in good standing can not sue the club since to do so is the same as suing oneself.

However, if your passengers are not paid up members of the club then they (or their estate) can sue you, the club, and anyone else that they think will provide compensation or satisfaction or revenge or whatever they are after.

Of course, much depends on the legality of the flight.

Most personal insurance policies that I have come across including mortgage protection policies exclude all flying except passenger flying on a scheduled airline. (note the word scheduled the next time you take a package holiday with a charter company).

Regards,

DFC

[englishal]

My life insurance runs something along the lines of "Prohibit all flying except as a fare paying passenger".

I've never really understood what the "fare paying passenger" bit describes, for example does it cover you for flying offshore on a helicopter flight provided by your (chartered by the) company or chartering a non scheduled aircraft as part of your job?....or even as a PAX in a light aircraft, contributing towards the cost of the flight?

CU

[IO540]

englishal

I was told by an insurance broker that provided you didn't do some hazardous activity at the time you applied for the life insurance, you are still covered for death as a result of it if you start it later on.

[englishal]

Thanks IO,

If that is the case then thats good news :D

Cyer

[Tall_guy_in_a_152]

DubTrub
As a renter, I rely on the club insurance to cover the aircraft and 3rd party claims (which pax might claim on depending on circumstances). I have no personal aviation cover, but I do benefit from a company 'death in service' policy that does not exclude dangerous sports etc.

Life insurance is a highly personal matter and in my case I have no dependants (cats excepted) and Mrs TG is self financing.

IO540 / Englishal
I would strongly advise you to check with your own insurance company about starting hazardous activities after taking out the policy. At the very least I would think you have a duty to keep them fully informed of th elevel of danger you are subjecting yourself to e.g. hours per year, aerobatics etc.

[pulse1]

My life insurance company confirmed that what IO said is correct. If you weren't flying when you took your insurance, then your cover is not affected by taking up dangerous pastimes at a later date.

[dublinpilot]

Guys,

That bit about not being involved in private aviation when taking out the policy is only partly correct.

In most cases the clause excluding claims from private aviation is only inserted into the policy when you disclose, at the outset of the policy, that you are involved in private aviation.

If you subsequently take up flying (and had no intention of doing so when you took out the policy), it's too late for the assurance company to change the policy. Hence your estate can claim under the policy if you die in an private aviation accident. There is no requirement to tell your assurance company that you subsequently took up aviation.

However, this is not true of all policies. Some do include this clause in their standard conditions, and therefore you if you subsequently take up private aviation, you would not be covered. I suggest you read the wording of your policy to be sure.

dp

[IO540]

Yes, an insurer can exclude anything he likes. But what isn't excluded is implicitly included (another insurance broker's piece of info...)

Worth mentioning that quite a few insurers will accept a 50hr/year PPL at no extra cost. Any independent IFA or broker can easily dig up a load of these firms. Some go up to 100 hours without a loading.

Unless excluded, you can fly more hours after taking out the cover - just make sure that your logbook doesn't show you are flying 200 hours/year at the time you take it out :O

[gingernut]

IO540 check your info. Under contract law, there is usually a principle of caveat emptor- let the buyer beware. The one exception to this is where the contract involves insurance, insurance, where the insured, under law, has a duty of disclosure of relevant facts.

Also, regarding disclaimers, in the eyes of the court, they are not usually worth the paper they are written on, especially if personal injury is involved

Long time since I had my nose in a legal text, but I'm pretty sure the law remains unchanged

[IO540]

gingernut

I don't know whether one needs to disclose private flying if the application form doesn't ask whether you do any risky sports. It's a good question. You don't need to disclose that you ride a motorbike.

[Flying Lawyer]

weegsltl asked a good question.
Whilst his his idea for excluding liability for death/personal injury won't work for reasons already explained, he's wise to think about the financial risks involved when carrying passengers.
Many private pilots (possibly the majority) fly with inadequate passenger insurance, or no insurance cover at all for passengers. Pause to consider the financial consequences of your negligence causing their death or even serious injury which prevents them from working.
Those over ‘a certain age’ will remember a famous and very successful Grand Prix driver who pressed on in bad weather and crashed on the approach to Elstree. It's not so widely known that his family was ruined financially when the estates of his two passengers sued his estate.
Beagle
(We’re old enough to know the name of the driver. ;) )
It's not quite the same as carrying passengers in your car. Motor insurance policies are likely to provide adequate cover for claims by passengers or their estates. In contrast, most aviation policies do not.
It’s sad, but the ‘money-grabbing litigation society’ is already here. Lawyers often get the blame, but the first reaction of many people these days is to look for someone to blame and sue. On the other hand, for example, it’s understandable that the families of young children who’ve lost one of more parents through someone else’s negligence need to try to obtain compensation for them.
DubTrub
Agreed. But not all passenger cover is adequate to cover what may be a substantial claim if one or more high-earning parents of young children are killed.
DFC
Up to a point. A school which is really a business and calls itself a club is unlikely to escape liability for negligence by an employee, whether FI or engineer.

Life Insurance
I strongly advise against accepting what IO540 was told by his broker friend.
What the broker says may well apply (depending upon the terms of the life policy) to someone who accepts an invitation to fly as a passenger in a light aircraft on a few occasions, but that is very different from someone taking up a hazardous activity during the term of the life policy. Your insurance company may decide to continue your cover without exclusions and without an additional premium, but they are entitled to know.
When you make an application for insurance, you have a duty to disclose all material facts relating to the risk to be covered. A ‘material fact’ is a fact which would influence the mind of a prudent underwriter in deciding whether to accept a risk for insurance and on what terms. (eg At a higher premium.) It would be very unwise not to disclose that you're a PPL, even if the application form doesn't ask if you engage in hazardous activities.
Your duty to disclose material facts operates from inception (the period until the date cover is confirmed by the insurers) up to the renewal date of the policy. If a material fact changes during that period, you have a duty to disclose it to your insurers. They may choose to continue the cover without any additional premium, but they are entitled to know and make their decision based on all material facts. If you don’t tell them, you risk having any claim rejected. Saying you didn’t realise will not help, even if that is the truth.
Different insurers take different views about private flying. Some exclude cover while you’re flying, others accept the risk for a higher premium. You’d find it difficult to persuade a court that your insurers weren’t entitled to know you’ve taken up flying light aircraft. It’s up to you whether you take the risk of having a claim under your life policy rejected, having to sue your insurance company in the hope you’ll win. Is it a risk worth taking? The additional premium (if any) is usually quite small.

Aviation Insurance policies
Read the small print in your policy: Is the extent of your cover affected if the accident is caused by your negligent flying?
Look at the section which deals with the circumstances in which you can claim under your policy. You’ll probably find cover is greatly reduced if an accident happens while you’re in breach of aviation rules/regs. eg Will you be able to recover the cost of repairing your aircraft? Or the value if it’s written off?

Pilot error almost certainly = negligence in law.
‘Negligence’ sounds very serious but, in law, it doesn’t necessarily involve a serious error. In this context, all it means is doing something which falls below the standard to be expected of a competent and prudent pilot. Pointing out it was an error which any competent prudent pilot could have made is unlikely to help you.

Negligence which causes an accident = negligently endangering an aircraft.
Negligently endangering an aircraft = failing to comply with the ANO (and an offence.)
Failing to comply with the ANO = Failing to comply with the terms of your insurance policy.

Tudor Owen

[DubTrub]

It might beg the question: "What is adequate passenger cover?". I should imagine that this is the old piece of string situation, for will my £1M passenger insurance policy (or third party for that matter) cover the event of my passenger, a succesful and high-earning businessman, being disabled and unable to work (and provide for his family to the same extent) again?

This is of course true in a lot of situations in today's increasingly litigious society, aviation-related or not, but what can the average pilot-at-the-airfield do finacially to protect himself adequately against losing house and home if a case arose? We are all error-prone. When does human error become negligence? I suppose in the opinion of a jury.

I do think that to fly without any insurance protection at all for your passenger(s) and third parties is a bit short-sighted, but I am not suggesting that anyone is so doing.

Just rhetorical questions, really, no need to answer.

DT


FL: words similar to your "doing something which falls below the standard to be expected of a competent and prudent pilot" have appeared on PPRuNe in the recent past (although not, I recall, from your keyboard). Some excellent advice and penmanship from both sources.

[weegsltl]

Hello,

Thank you for all your replies so far, its certinaly opened up much further than I expected.

I will be the first to admit I don't understand all the legalities of insurance and been only 19 I'm not too hot on life insurance either.

Therefore could someone outline the best course of action for me to take to cover myself and my pax.

Thanks for all your help so far....

[wbryce]

what about a sticker on the aircraft

"Passengers fly at own risk" :O

[Gertrude the Wombat]

"Passengers fly at own risk" Once upon a time a client had a slightly leaking building, resulting in water under the false floor in the computer room, which resulted in some floor tiles being taken up, which resulted in some holes in the floor.

The client put up some "enter computer room at own risk" notices.

So, unable to work, I went and sat in the cafe at the client's expense for some hours until a senior enough person could be found to take the notices down. I doubt the notices had any legal validity, but I wasn't interested in taking the risk.

By all means stick "passengers' own risk" notices in your aircraft, but not only are they likely to be legally meaningless but also you might find you don't have any passengers.

[gingernut]

Sorry, worthless to rely on exclusion clauses if pursuing a claim for personal injury.

Even if you could rely upon them, they have to be communicated to the passenger before he agrees to fly with you. Here's the case which set a precedent (http://www.rubicontraininguk.com/law_cases.htm#Thornton%20v%20Shoe%20Lane%20Parking%20(1971)) (Thornton vs Shoe Lane Parking)

Check it out if you are as sad as me.

[lady in red]

It seems connected to this thread and therefore worth pointing out that if the European regulation on Minimum Third Party Liability Levels is passed, then it will be the law to insure your passengers and for an aircraft such as a C172, the amount of cover required would be £3,000,000 TP liability cover and a further £85,000 per passenger amounting to £3,255,000. The costs of obtaining this insurance are likely to cause all premiums to rocket and therefore the cost of hiring aircraft to increase dramatically.

The new regulation will make insurance compulsory at these levels and failure to obtain it would be a breach of EC and UK law plus the CAA would be likely to take some kind of action for non-compliance. It looks like it will come into force at the beginning of 2005.

[keendog]

If the object is to protect your assets in the event of death or injury to passengers or third parties in an accident then a million is woefully inadequate.

[Max AirFactor]

As a low hours ppl I don't own/share an aircraft but initially I'm hiring from a rental company and a club and may possibly borrow private cofa or permit a/c. What is the responsible thing to do re cover?

If I need my own Third party policy, is this cover provided as an aviation specific policy or a general TP liability policy.

If my current life policy excludes death/loss by private avaition then can I add this cover to the above TP policy?


And where do you go for yours.

Cheers,

MAF

[G-Foxtrot Oscar 69]

I got very worried about all this Life Insurance stuff. Gave my IFA a call.

You are almost undoubtedly excluded from flying on a life insurance policy unless it is specified on the policy.

If you have Critical Illness and Life in one it will probably be the same.

He also pointed out you may be in breach of a term of your mortgage.

Got a quote to get my policy up rated. :mad:

It is a dangerous pass time! Not like driving to the airfield?

[QDMQDMQDM]

I have a two-seater aircraft and many of my friends are doctors with young families in their thirties and hence so are many of my passengers. For this group, I consider that my £3m third party insurance should pretty much be adequate. I wouldn't go any lower than that.

Here's a question though - to what extent can you limit liability by operating the aircraft through a limited company?

QDM

[Mike Cross]

There's a problem with the title of this thread.

For a contract to be enforceable there has to be an offer, an acceptance, valuable consideration, and in intention by the parties to contract. In most cases there will therefore be no enforceable contract since one or more of these requirements will be absent.

It is also not possible to enforce a contract where the purpose of the contract is illegal.

In the absence of a contract there are plenty of other legal means of redress available, some of which it might be possible to negate by means of an agreement by the parties prior to the flight. However there are some things that cannot be negated by such an agreement, liability for damage or injury caused by your negligence being one.

I do not profess to be an expert on this, no doubt FL will correct me if I have got anything wrong.

Mike

[WestWind1950]

I'm not sure of the proper "English" expressions (been living in Germany too long), but this is what I've been told:
According to the Chicago convention, liability is restricted to a certain amount, unless the pilot does something negligent on purpose, like flying into clouds or doing aerobatics without the rating for it. In these cases the liabilty can be indefinite.
It is also recommended to have passengers sign a sort of "ticket", like what you get with an airline, where all this is mentioned. This "ticket" should be left on the ground as proof that the passenger "willingly" took the flight and wasn't forced to. I know, it sounds corny, but there have been cases I'm told where passengers have actually claimed they had not really wanted to go! I guess the ticket is really sensible to protect the pilot from any false claims. At one time I made myself some "personal" tickets just for such purposes, but never used them :bored:

Insurance is a touchy subject and comes up at nearly all instructor refresher courses... for example: who is responsible on the hour-training flight in case something happens? The pilot under training or the instructor? I hate the thought of this question being properly answered AFTER an accident has occured!

Westy

[Flying Lawyer]

Mike Cross
Apologies for the delay in replying. I've only just seen your post.

I don't see any problem with the title. It's a brief summary of the originator's question and what appears in the thread.
You're right about the elements of a contract but the law relating to those elements is a little more complicated, and academic in the circumstances being discussed.

I'm afraid I don't follow your point about the purpose of the contract being illegal. There's nothing illegal about cost-sharing provided it's done in accordance with the regs.
Nor is there anything illegal about attempting to exclude liability for death/personal injury caused by negligence. It's frequently tried - it simply isn't effective, unless the injured party doesn't know the law and/or doesn't take legal advice. Rather like the old 'Trespassers Will Be Prosecuted' notices. Prosecuted for what?

I think it's far better to keep the point simple:

If you take people flying, you are liable if death or injury is caused to them by your negligence. You cannot evade or exclude that liability by requiring them to sign an agreement.

================

Westy

Who is responsible on the hour-training flight in case something happens? The pilot under training or the instructor?

The short answer is: the one who's negligent.
Which one was negligent depends upon the circumstances. Determining that issue is often difficult.

If a student-pilot does something which (in law, even if not in ordinary language) is 'negligent', then he may be found liable for the death, injury or damage caused - including to the instructor.

In such circumstances, disputes often arise over whether the student's negligent act could/should have been salvaged by a competent instructor but, if (for example) a student suddenly does something so quickly that even a competent FI doesn't have time to counter, the student may be liable.

On the other hand, if an accident is caused by an instructor allowing a student to attempt a manoeuvre which is way beyond his ability and experience, the FI may be found partly or totally liable - including to his student. eg Allowing someone to 'have a go' at a landing when he hasn't been taught to how to land.

It probably seems very odd that a student pilot's actions are judged by the standards of a competent and prudent pilot even though, by defintion, he's clearly not or he wouldn't be a student pilot. However, there are public policy reasons for the law and the same applies to learner drivers.

[IO540]

Flying Lawyer

If you take people flying, you are liable if death or injury is caused to them by your negligence

Is there a simple answer as to who is liable for damage/injury to passengers or people/property on the ground? I have understood this to be the pilot, the operator, the owner, all jointly and severally.

Is the pilot liable only if he was negligent, whereas the others are liable regardless (strict liability)?

[FNG]

Under section 76(2) of the Civil Aviation Act 1982, the aircraft owner is subject to strict liability (ie: liability without proof of fault) for damage to persons on property on land or water caused by an aircraft flying, landing or taking off, or by something or someone falling from it.

The provision is as follows:

"...where material loss or damage is caused to any person or property on land or water by, or by a person in, or an article, animal or person falling from, an aircraft while in flight, taking off or landing, then unless the loss or damage was caused or contributed to by the negligence of the person by whom it was suffered, damages in respect of the loss or damage shall be recoverable without proof of negligence or intention or other cause of action, as if the loss or damage had been caused by the wilful act, neglect, or default of the owner of the aircraft. "

Otherwise, liability, including liability to passengers, depends upon negligence.

Note that, in a situation where the victim of damage on the ground may have a statutory no-fault claim against the aircraft owner, the owner may have recourse against the pilot if the damage was in fact due to the pilot's negligence.