Liability for aircraft inspectors?

[VP959]

I am sure that there are one or two aviation law experts within this forum, so am hopeful that I may be able to obtain some useful advice.

I must state outright that although I am trying to help a fellow aviator I appreciate that legal advice is a commodity and normally commands a price. On this occasion, though, the advice needed is specialist, connected with amateur light aviation and hence needs a rather specialist legal view that I hope I may get from someone here.

My question is this:

If you volunteer your services to the PFA, BMAA or BGA as a competent inspector, with regard to airworthiness inspections of permit to fly aircraft or gliders, just what can you legally do to limit your liability in the event of a criminal case being brought against you?

I refuse to get drawn into the details of any specific case, on the grounds that it may be sub judice, but would very much appreciate some more general advice.

I have been told that one cannot insure against the liabilities incurred from a criminal act, which in itself seems sensible.

However, if one were subject to investigation, leading to a criminal charge perhaps, would one be able to insure against the legal costs of representation towards a possible defence? How far could that insurance cover go? Could it legally include covering the costs of a defence to a manslaughter charge, for example?

I would be extremely grateful if someone (Tudor Owen?) could offer some simple legal guidance, as I find myself in somewhat of a quandary over this.

VP

PS: I am fairly confident I know the answers to the above queries with regard to civil cases for damages.

[BRL]

For those 'armchair experts' on the forum who might have a go at answering this query, I suggest you take heed from this quote in the post above......I refuse to get drawn into the details of any specific case, on the grounds that it may be sub judice, but would very much appreciate some more general advice.

I will give Tudor a shout and direct him to this thread, hopefully he will be able to answer your questions here.

[VP959]

Very grateful BRL, and thank you for reiterating my note of caution.

I wouldn't wish to presume upon Tudor's good will, but if he cares to give advice then it would be very much appreciated.

VP

[Fuji Abound]

I would like to offer some thoughts although I shall also be interested in TO's views. My profession is rather closer to tax law than civil law!

"competent inspector" - if you hold yourself out in this capacity then presumably you have a duty of care in respect of the inspection you carry out. Whether or not you get paid may be irrelevant and although you say you "volunteer" your services presumably an inspector would receive a fee of some sort.

"what can you legally do to limit your liability" - it is common for professionals to set out their terms of engagement. The purpose of doing so is to make clear the extent of your brief which in itself may provide some protection. For example, if something were to fail and your terms made it clear that item was not part of your inspection then not unreasonably you might not be held liable for failing to spot the problem. Without setting out your brief the Court would ultimately have to consider in the light of other information what you might reasonably have inspected. It is also common for these terms to seek to limit the extent of your liability - in civil matters limitation clauses of this type have been successful. I do however agree this limitation would not apply to criminal negligence.

It would be surprising if the organisation for whom you work did not set out the terms of your reference and what was included and excluded in your work. If you were "working" for them / and / or representing them you may also want to examine whether the "contract" for the inspection was with you or with them.

In civil matters it is certainly possible to obtain insurance. Of course the premium loading will depend on Council’s and in turn insurer’s view of your chances of success. I would have thought the underlying organisation for whom you “work” would carry their own professional liability insurance and anyone doing this type of work would want to have PI cover if the underlying organisation did not - although I appreciate from the terms of your question that may all be very well with hindsight.

Could all be rubbish!

[Jodelman]

"Could it legally include covering the costs of a defence to a manslaughter charge"

Look in your private motor car policy. It will almost certainly give this cover subject to certain limitations.

[VP959]

Very many thanks Fuji, I am indepted to you for your insight.

You have sparked off a thought regarding the degree of responsibility a "sponsoring authority" may have with regard to informing, and perhaps providing some limited indemnity for, it's volunteers.

I regret to say that the repercussions from this may well truly shake the world inhabited by PFA/BMAA/BGA types, as the consequences are quite significant.

Thanks again for your very useful contribution.

Edited to add: Thanks jodelman. I have been told that motor insurance is a special case, where statute law to protect third parties allows some element of protection under criminal law. I don't fully understand this, so may well be completely wrong, but have been warned that one cannot do a read across from motoring law to any other case.

VP

[Heliport]

VP959

It's good to see you doing what you can to try to help someone in his hour of need but please, for his sake and PPRuNe's, be very careful what you say while there's a court case pending.

Heliport

[VP959]

Heliport,

I don't need the warning - I gave one myself in my original post, and BRL re-iterated it. One can never have too many warnings though.

I am being extremely careful to be non-specific and the actual query is not directly related to any current case, although it may have been highlighted by one. It does have direct relevance to me and several acquaintances, hence the reason for my query.


There may be an important general issue regarding the liability of amateur aircraft inspectors, one that may not have been clear to them when they took on the role.

All of my research to date has indicated that this is the case, but, as ever, the law is subject to interpretation, so just reading statutes does not really inform as to what may happen in practice.

VP

[chrisN]

Fuji, some points you raise seem based on partial (at least) misconceptions, at least for gliding and I suspect for some of the other recreational aviation disciplines. As background, there are at least four ways BGA inspectors work: 1. Self-employed for a living or part-income. 2. As employees - of a club, or of a commercial workshop. 3. As an unpaid volunteer member of a club, typically called the club Technical Officer, with regard to the gliding club's own gliders. 4. As a private volunteer freelance inspector/repairer. Groups 1 and 2 may also double up as 3 or 4 or both. 3 may also do 4.

" . . . and although you say you "volunteer" your services presumably an inspector would receive a fee of some sort."

Many volunteer/amateur BGA-certified inspectors do some of their work for no fee at all. In fact it costs them, (a) to get a certificate, (b) to renew it periodically, (c) to use fuel to get to gliding sites or remote workshops if they use either or both for such unpaid work, (d) to run their workshop, buy or replace tools etc., and sometimes (e) providing bits of material for nothing. Maybe other things too. I have come across people outside gliding who simply cannot believe it, because they have no conception of, how anybody could be so uncommercial. (That is more a reflection of the unbelievers' characters and mores than anything else.) Those inside know that we all interdepend a lot, which is why it is labour intensive (read too much time at the airfield in relation to time in the air for most power pilots who tried gliding and gave up). My club's technical officer does club work for nothing, some favours to me and others for nothing (just as I write planning applications, handle farm matters, and go to external meetings for the club for nothing), and sometimes does repairs or CofA renewals for a fee as a part-time self employed repairer.

"It would be surprising if the organisation for whom you work did not set out the terms of your reference and what was included and excluded in your work. If you were "working" for them / and / or representing them you may also want to examine whether the "contract" for the inspection was with you or with them."

Well, prepare to be surprised. My gliding club is wholly run by amateur volunteers. We don't give ourselves contracts of employment. Furthermore, if my friend looks at my glider when I ask him to, there is no written contract. He may notice something I have not drawn attention to, or may not notice if not doing a full inspection for CofA renewal. E.g., hole in the wing fabric, he won't go looking at the undercarriage to see if it works properly, but if he gets the fuselage out of its trailer and drops the wheel he might find something amiss and then would tell me.

"Could all be rubbish!" Well, garbage (in the form of assumptions) leads to . . .

Yours in friendship, to help understanding.

Chris N.

PS - I am interested in any legal guidance too. I believe that the BGA has some form of inspector indemnity in force, which is part of what inspectors pay for when renewing, but I don't have details.

[Genghis the Engineer]

this concentrates the mind a little. (http://news.bbc.co.uk/1/hi/uk/3052591.stm)

I believe that all the associations insure their people, but whilst you can insure against damages, you can't insure against imprisonment.

G


(Edited because what I'd originally meant to say, I explained very badly).

[Fuji Abound]

ChrisN - I agree, I have very little knowledge how these organisations operate. However I am not surprised inspectors get paid little or nothing.

The point I sort to make is that whether or not they get paid may very well have little to do with their labiality when things go wrong. In fact if they do not get paid it may even make matters worse, assuming they have insurance. Insurers will sometimes take the view that a contract has not come into existence without consideration. There was a case where an auditor signed off a set of accounts. He was not paid for doing so by the client because of an arrangement with another firm. When things went wrong he was sued and the insurers refused to pay.

The second point I sought to make had nothing to do with whether or not you give yourself written contracts. Whether you are an employee of another has little to do with the existence of a contract but more to do with the actual nature of your relationship. The point you may make is quite a different issue and may be relevant in determining whether inspectors are self employed or employees - or perhaps even unpaid volunteers that fall into neither category, and in turn the extent of any liability their “employer” may have

My point was that an inspector may well be very unwise if he does not have some form of document which sets out what his responsibilities are - and perhaps more importantly what they are not. For example during a LAMS check the engineers will have a schedule of work which requires completion and a series of ADs with which they are required to comply. It is quite clear to any other party what they should and what they should not have done. If a crank were to break and there was no AD requiring inspection the engineer is clearly not "liable" for the failure because it was clearly not a requirement that he inspected that part. On the other hand if he was required to inspect a spa which subsequently failed due to exfoliation and it could be shown he had neither inspected the spa and the exfoliation was present at the time he should have inspected the spa then a claim would seem reasonable.

In short it seems unfair on any inspector, and for that matter the inspected, to ask an inspector to inspect "something" without defining what it is he is inspecting! To do so is likely to render the inspector liable for anything he should reasonably have checked. More to the point it would seem dangerous to carry out any form of inspection without having an agreed checklist from which to work. We all do it in the cockpit with our flight checks because we recognise our memories are fallible; why on earth would you carry out a check on which someone’s safety may well rely without having a program from which to work. Simply good practice and nothing to do with being paid or not.

I hate the sometimes all too litigious environment in which so many professionals have to work these days. Have you been to your solicitor lately. He will probably tell you how to complain about him before he actually does anything for you! However if you accept a position of authority you surely must accept the responsibility that goes with it, particularly when things go wrong, because the other party is entitled to believe you have diligently completed your brief and because he will presumably have some conception (or possibly some misconception) of what you should be doing. A finally analogy - if I ask a friend to look over my car I don’t necessarily expect him to spot anything more than me, after all he is not holding himself out to be an expert. If on the other hand I ask my garage to do so it is in the expectation they will identify most problems.

Of course when the garage tells me their inspection schedule specifically excluded checking the brakes I might well be a little upset and thence follows the interesting debate of whether it was reasonable for this check to be excluded or not. Courts seem to have extended what it is reasonable a client should expect from his advisor in a given situation even where the advisor has sought to exclude certain matters in his terms of engagement.

.. .. .. and of course for he avoidance of doubt I am no expert just your average b-room lawyer. Everything I say is excluded and nothing is included.

Hopefully TO will be along to set us straight.

[chrisN]

It is a sad reflection on these litigious days, and the CAA's attitude maybe, that we even have to get into this sort of debate.

In gliding there are almost zero technical faults by the BGA-certified inspectors/repairers, paid or unpaid, clear contracts/TORs or not, that led to accidents. There are very few found at all, and those few that are (e.g. poor scarf repairs to a spar, determined when opened up for some later damage) usually have sufficient redundancy of strength to survive normal flight loads. The only serious/fatal gliding accidents I can recall with technical causes were down to (a) spanner left in the works by the east European maker, and (b) two cases of incorrect gluing - all "professional" errors by licensed companies. [Pilot errors when rigging are also called "technical" in accident analyses- I exclude those from my recollection of the stats. for this purpose.]

By contrast, I know of several serious/fatal accidents in the power world down to bad repairs or maintenance by the fully certified procedure - fuel valves fitted wrong to airliner, failure to correctly sort out carb problems with a glider tug, etc. etc.. GA fora on the web have often had threads about people's dissatisfaction with their paid for, certified, expensive, and incompetent, maintenance organisations - which neither CAA nor anyone else seem able or willing to cure or force out of business.

I wonder if a bereaved family could sue the CAA for incompetent supervision of the maintenance scene? I bet not.

Chris N.
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[IO540]

I haven't read the detail in this thread but unfortunately "customer service" is a largely unknown expression in GA.

You can buy a brand new plane, for six figures (and probably seven but I have no experience of that) and the support from both the factory and the UK dealer can be absolute pits.

Including myself, I know several owners of what were at the time brand new planes, and all of them have come as close to litigation as one can get without actually instructing lawyers.

The reasons are pretty fundamental and very obvious defects; for example items of avionics which simply don't work, or whose function is crippled by some "regulatory" issue enough to make them useless.

The striking thing is that one doesn't expect this to happen at this level of expenditure, but it catches even people who are otherwise very experienced businessmen, for example.

[ProfChrisReed]

I'm a law professor, so I hope that this will be found useful. Standard exclusion: this is a general statement about the law, and not specific advice. The particular circumstances of any case may change the legal answer. [In other words, I'm warning you not to rely on this as advice]

To go back to the original questions:

1. "If you volunteer your services to the PFA, BMAA or BGA as a competent inspector, with regard to airworthiness inspections of permit to fly aircraft or gliders, just what can you legally do to limit your liability in the event of a criminal case being brought against you?"

There's nothing you can do in terms of some form of contract with the person whose aircraft you're inspecting. That only controls the civil liability as between the two of you. It's also worth noting that in that contract you can't exclude or limit your civil liability for death or personal injury caused by negligence, and can only exclude other civil liability to the extent that your contract term is reasonable. Explaining "reasonable" would take 1,000 words or so for the short answer I'm afraid.

What you can do, in terms of your criminal liability, depends on the nature of the alleged crime. Let us assume that it is based on negligence, rather than intention to cause harm.

In that case, you need to avoid being negligent to the relevant criminal standard (e.g. "gross" negligence for manslaughter).

The most obvious way of doing this is to make it clear to anyone who is relying on your purported expertise how far they can safely rely on it. This limits the scope of your duty of care. Thus, in the aircraft maintenance context, an inspector/repairer might tell he owner that problem A has been fixed, but that the symptoms might also have been caused by problem B, which hasn't been investigated. If a crash were caused by problem B, this reduces the likelihood that the inspector/repairer had been negligent. It's not always enough - if a competent person with the same skills would have said "not safe to fly unless B has been investigated" then failing to give the warning might be negligent. Context is crucial.

The questions for the court would (roughly) be (a) had the inspector/repairer led the owner to believe the aircraft was safe to fly, (b) if so, would a reasonably competent person with the same purported (not actual) expertise have done the same, and (c) if not, was the shortfall in care sufficiently bad to impose the relevant criminal liability.

Whether you're paid or not is irrelevant, save that the fact of being paid is likely to suggest to the payer that you have a particular level of expertise.

I think that PFA/BGA/MAA volunteers need to recognise that they are running both civil and criminal liability risks. They also need to accept that insurance is unlikely to be available.

However, they also need to balance the potential liability against the risk of it happening. For example, I'm a BGA Basic Instructor, which means I take new pilots for their early flights. I can't insure against my liabilities, though my club does carry insurance which might cover civil claims. I knew the risks beforehand and decided I was prepared to take them.

My view of the BGA inspectors I know is that they are very aware of the risks to pilots if they don't perform their tasks properly, and that this is what motivates them rather than the potential criminal or civil liabilities. I think the result is that I get a very high standard of maintenance and repair, much higher than if purely business motives were the main factor.

2. "I have been told that one cannot insure against the liabilities incurred from a criminal act, which in itself seems sensible. However, if one were subject to investigation, leading to a criminal charge perhaps, would one be able to insure against the legal costs of representation towards a possible defence? How far could that insurance cover go? Could it legally include covering the costs of a defence to a manslaughter charge, for example?"

There's no legal barrier to insuring against defence costs, as others have pointed out. The question is whether such insurance is available at a sensible cost, and this usually depends on whether there's a market for such insurance. Small numbers make insurance hard to find.

[VP959]

Prof,

Thank you very much for giving such a complete, authoritative and clear response. I have taken the liberty of copying it for reference, as it neatly sums up most of the things that have been worrying me of late.

Hopefully this will clear up some of the misunderstandings that I've heard over the past week or so on this topic.. Quoting a law professor should make the complacent ones who did not think that liability was an issue change their views.

Thanks again,

VP

[ProfChrisReed]

VP - don't use the potential liabilities to worry people excessively. I see far too many frightened responses to liability risks which are so small as not to be worth worrying about.

Just as an example, recently Bury St Edmunds council was reported as banning hanging baskets over the pavement because of the risk of injuries to pedestrians.

If we all take that attitude, we should chuck our aircraft into the nearest landfill site (obviously via ground transport, to reduce the potential injury and liability risks).

So, my view is recognise the risks, assess their likelihood, and live your life accordingly. There's a measurable risk of meteorite and lightning strike, but I haven't invested in a hard hat and I still travel on the London Underground. Oh, and I fly.

[VP959]

Prof,

Rest assured that this wasn't my intention.

My very real worry is the legal cost one, as even if subsequently found innocent, then you will still bear the considerable cost of your defence.

I think that the associations may want to think about arranging suitable criminal defence costs insurance for their inspectors,perhaps collectively to attract reasonable interest from the market. They may also wish to seek some form of limited liability for the associations themselves, by "employing" the inspectors in some form of seperate limited company, perhaps.

So far I am aware of two cases in the past ten years where inspectors have found themselves facing criminal charges. This is out of a pool of perhaps a few hundred across all three associations.

Although I agree that the risks are relatively small, the personal impact is staggeringly high. I've witnessed this first hand recently and would not wish it upon another under any circumstances.


Thanks again,

VP