Legal Responsibilities of Flight Instructors

[Pieman007]

Hello All, I’ve been reading with interest the different previous posts on this matter but haven’t really had any answers. If you send a student solo and he/she has an accident/incident/infringement for whatever reason and causes damage to himself/herself/the aircraft/other aircraft/property/people.
Where does liability start and end with the Instructor or is it addressed on a case by case basis? In which case is there anything an Instructor can do to protect what possessions he/she has if found to be negligent. AOPA have UK Instructor Liability Insurance on offer, is it worth its salt? Anyone bought this policy and anyone had the misfortune of having to use it?

Overall weather conditions and the belief in that the student can do the job obviously plays a part in deciding whether to send someone solo, anyone got any other nuggets of information to avoid comeback on the Instructor?

I am also a little concerned about student records being used against Instructors in court, For eg: At some stage in training there might have been a mention that circuits were unsatisfactory, but after a few more hours he might be amazing at circuits but then have a major problem when actually solo. The 'unsatisfactory' term in the records surely cant mean the Instructor was negligent sending him solo.

We are however living in a blame society so we need to cover our @rses..

[2close]

'Duty of care' and 'Due diligence' are the phrases we should all keep in mind.

I have been involved in criminal and civil law most of my working life and as a former Health & Safety professional who (apart from earning well over double what I earn now!!) got sick to death with the over-regulation within the industry I can regrettably assure you that there is an absolute mass of regulation that applies to FTOs (and RTFs) - although certain CFIs would have you believe otherwise :rolleyes: !!!!

I could detail a frightening list of activities that we undertake as FIs and expect our students to undertake, when dual and solo, that could have legal repercussions on us should it all go Pete Tong, that would make your hair stand on end.

But to keep it in perspective, you have to bear in mind what is reasonable; what level of duty of care would you, as a student, expect from both the training provider and from your instructor(s)? Keep it simple, keep it real but don't cut corners and whatever you do, if in doubt bring it to the attention of someone in managerial authority (and document it! E-Mail is a wonderful tool for covering one's arrse!!). Buck passing? Abso-bloody-lutely but that's what they are paid for.

Similarly, if the student feels uncomfortable about doing something they must be encouraged to say so. There are no prizes for bravado. That's not to say students should be prevented from attempting to do things that stretch their capabilities - that is all part of the learning process - but so long
as you are sure of the student's competence, within what is reasonable, that should provide you with an adequate defence....again, so long as you have it well documented.

As for insurance, you can have as much insurance as you like but if you fail to abide by the rules (or cannot prove that you did obey the rules) then you can be fairly sure that the insurer will walk away from you.

We live in a very litigious society and it is not going to go away in a hurry.

[VFE]

I could detail a frightening list of activities that we undertake as FIs and expect our students to undertake, when dual and solo, that could have legal repercussions on us should it all go Pete Tong, that would make your hair stand on end.

Would be interested in hearing some of these scenarios!

VFE.

[TurboJ]

The way I see it is like this:

1. All exercises prior to solo are completed to a consistently satisfactory standard. These should at least include stall recovery, PFLs, EFATOs

2. The student has flown recently with an instructor. How recent is a matter for the FTO.

3. The weather is within limits for student solo flight.

4. The FOB or company ops manual is followed to the word.

5. The student is properly briefed and is clear on what is expected to be completed during the flight.

6. The student is clear on what to do if things don't go to plan e.g. radio failure, orbiting, go-arounds etc.

7. All the above is written up in their student records prior to solo.

If all the above is completed and then things go wrong - I would suggest you can present to the AAIB or CAA or CFI the actions you took to ensure the student was correctly equipped to complete the flight.

I agree though - its a can of worms.....TJ

[llanfairpg]

The magic word is negligence and the magic phrase is reasonable person.

If you act without being negligent in the manner that a reasonable person would expect you to act you have the basis of a defence.

If you act outside of any regulation, CAA, JAR, Club/School it may be used against you to support negligence.

My experience of the flying training industry (30+ years) is that negligence in many cases would be very easy to proove. So many schools /clubs seem to operate on a whim rather than any rules, and those who do never seem to take much notice of them.

Best example is that i had the sack for refusing to fly the schools aircraft that were not fitted with upper torso restraint. The school said they had a dispensation but a letter to CAA proved they had never applied for or been issued with a dispensation.

You can get personal liabillity insurance but do not know if you can get it for flying instructors.

TURBO--by the way how do you prove that the student has done those things when he is dead!

[TurboJ]

TURBO--by the way how do you prove that the student has done those things when he is dead!

Because you will have documentary evidence from the student records of the student having completed those exercises.

If you also instruct for any of the larger schools, the student also has to fly with a more senior instructor and satisfy them that they have reached a 'standard' which is also another safeguard for the regular instructor.

You can only do so much - follow the rules and be professional -

[Pieman007]

Thanks for all the replies, interesting stuff that I will use. Personally I am a relatively new self employed FI, therefore I would imagine I would not fall under the umbrella of an FTO should something go tits up. I will be looking for Liability insurance now I think.
Would it be wise to chase for a contract of employment as another safe guard or doesn’t it make a damn bit of difference?

[18greens]

Has an instructor ever been successfully sued for poor training leading to a death?

[llanfairpg]

Because you will have documentary evidence from the student records of the student having completed those exercises.Documentary evidence of training isnt evidence of undersatnding and competence,that is the purpose of examinations and tests

A pre-solo written test and a pre-solo navigation test can provide that evidence as well as improving standards.

A pilots flying order book read and and signed by each student can cover other grey areas.

The key is to cover the areas of your backside before the incident because it is too late afterwards

[Whopity]

1. All exercises prior to solo are completed to a consistently satisfactory standard.
2. The student has flown recently with an instructor. How recent is a matter for the FTO.
NO NO NO NO NO! Before you send a student solo you fly with them and the person who flies with them sends them solo; right then not later. Its not written down anywhere but its the only way you know they are ready and able!

[xrayalpha]

Hi Whopity,

Agree wholeheartedly for first solo (although that should be obvious) and for next few solo hours. (although i suspect we have confusion over the meaning of "sending solo")

Towards the end of solo consolidation - or solo cross-country - then recency rather than immediacy is the key. If they can land at another airfield and then take-off again to fly home, no need for an instructor to check 'em out.

Does need to have a relationship with the student, be able to ask them how they feel and be able to check body language so as to cut through bravado.

As Whistler said when defending himself in court from Oscar Wilde's accusation that his painting were mere daubs of paint and no more than a few minutes work: It took a lifetime to learn how to do it in a few minutes!

That's why continuity of instructor is so important - assessments (such as later solo flights) can then be made in a shorter period of time, and by doing so help boost the student's confidence. (or not destroy any fragile confidence that has been built up).

very best,

XA

[2close]

I could detail a frightening list of activities that we undertake as FIs and expect our students to undertake, when dual and solo, that could have legal repercussions on us should it all go Pete Tong, that would make your hair stand on end.


Would be interested in hearing some of these scenarios!
VFE.

I should have clarified the adjective 'frightening' referred to the size of the list not the activities themselves!

What I mean by that is that there are scores of workplace activities that we undertake every day and that we also expect our students to perform, all of which are covered by H&S legislation.

Some hazards require formal, documented risk assessments to be conducted and safe working practices established by the development of written method statements, which in turn have to be communicated to employees (and in turn to any other persons affected by those workplace activities, i.e. students).

That is not to say that every single activity requires a formal, documented process to be recorded and there are some activities that we can accept as being normal, everyday actions, e.g. walking from A to B. That would be going well and truly down the road of conkers bonkers! Saying that, the insurers would probably have us risk assess breathing, if they could have their way!!!!!

However, walking from A to B across an active manouevering area could be a different kettle of fish. It is here that our collective bums could be severely bitten should a student get walloped by a taxiiing aircraft. Where is is written down that the student was instructed to wear a high vis vest, was informed that flashing strobes and taxi/landing lights could indicate an engine was about to start, that the bloke opening his clenched fist meant that an aircraft's brakes were about to be released? These 'tip of the iceberg' items are all taken for granted by ourselves with our years of experience but we can easily forget that some of our students have never set foot on anything smaller and less controlled than Gatwick.

Of course, as responsible FIs we tell our students these things but where can we prove it when the wheel does come off? As some wise sage once told me 'the spoken word is not worth the paper it's written on!' This is where our processes are seriously lacking. Part of the problem is regulatory authority. Who is responsible? CAA? Nope!! JAA? Nope!! In fact, it is your local authority, usually the Environmental Health Department, with highly qualified Environmental Health Officers and Health & Safety Officers who have amassed years of relevant experience in the field of general aviation activities. :rolleyes: This lack of enforcement results in a lack of regulatory compliance.

The other issue lies within the grey area between what an organisation considers to be flight safety (which does fall within the remit of the CAA) and occupational health & safety. Some ground based flight safety activities undoubtedly still fall within the latter category.

It is the employer's legal duty to ensure, so far as is reasonably practicable (and therein lies a debate in itself), that all of these policies, practices and procedures are put in place and where the employer has 5 employees (full or part time and self-employed instructors would be categorised as 'employees') or more these have to be documented. It is our legal duty as employees to ensure we comply with our employers' instructions.

I foresee the shortcomings in our present system being addressed by EASA, whereby all training facilities will have to be formally registered, inspected and audited in the way that FTOs are at present with formal documenation for....well, everything. This will place an onerous and high cost burden on some small operations that could see some going to the wall - H&S consultancy does not come cheap.

Wow, that paints a dreary picture doesn't it? The fact is it doesn't need to be all doom and gloom. All it takes is a little thought and planning.

PPPPPPP.:)

[2close]

Anyone acting as an employee should be covered by the employer's insurance and provided that person acts with due diligence and within the regulations and rules that should be sufficient to provide adequate professional indemnity.

Here's the crunch!

How can you say that you acted within the rules as laid down when your employer hasn't got any documented rules? Do you know for certain that your employer has public liability insurance?

The other issue concerns those instructors working as 'self-employed' instructors (which in itself is another discussion). These instructors I would agree should definitely have some form of PII.

Not advertising their services but I have found On Risk at Southampton to be very helpful in the past and I think I will be speaking to them again pdq.

[BigEndBob]

Of course there is a simple answer.....never send students solo.

Do away with any solo requirements, after all driving instructors don't send their students solo.

Let them go solo after they pass the LST.
They are then totally responsible for their own actions.

[TurboJ]

Before you send a student solo you fly with them and the person who flies with them sends them solo; right then not later. Its not written down anywhere but its the only way you know they are ready and able!

Sorry but I don't understand the above comment.

The fact is, is that instructors probably fly most days. Student pilots probably do not. What would the AAIB or CAA say if an instructor sent a student solo who hadn't flown for six weeks?

I would do some circuits or fly a departure with them and build some confidence in them before sending them solo. It should be written down in a Flying Order Book;

I also wouldn't send a person solo if they didn't have evidence in their log book of having completed PFLs, EFATOs, go-arounds, orbiting in the circuit, stalling both clean and in the approach to land configuration etc etc

Documentary evidence of training isnt evidence of undersatnding and competence,that is the purpose of examinations and tests


Quite right - However, we are talking about absolving the instructor of blame or negligence if things go wrong, so you need 'evidence' of having acted correctly.
- 'if it ain't written down it didn't happen' - simple as that.

[llanfairpg]

Employers insurance and personal liability insurance are not the same thing. The first covers the employers liability for the employees action, the second covers the employees own negligence, in theory.

Self employed instructors are just that self employed.

It is alright saying, i checked him out before solo but when the prosecution come up with a couple of other students you also checked out will they be your star witnesses or in fact your star accusers? You may get by on a day to day basis with mediocre standards but when that prosecution barrister gets up with the AOPA syllabus and his expert witness from the CAA your training standards may not look as good as they do in the club bar.
Some examples of incidents which may attract some litagation.

Your student takes off the door opens and he looses attention trying to close it crashes and is seriously injured. Now the schools quoted above will look at their syllabus to see if that is covered in training--big suprise.

Student has an engine failure on first solo take off turns back to the field and crashes. Can you provide wriiten evidence to support that he was told never to turn back but land ahead(And I know some schools who do not even teach EFATO till after first solo)

Your student has a tyre blowout on TO abandons the TO and crashes off the end of the runway. Can you provide written evidence that he was briefed on this type of malfunction because it is unlikely it is in your syllabus.

Somebody joining dead side runs into your student can you provide evidence he knew this could be possible.

A syllabus cannot provide evidence of the above being briefed and understood but a pre solo test written test(like ours) covers all the things that have happened over the years and not only covers my arse but those of my instructors.

[2close]

Self employed instructors are just that self employed.


Are they? Ask your local HMRC office. I can guarantee you that the majority of so called 'self-employed' instructors, if that is their only source of income, are NOT self employed (with no insurance cover).

As for the rest of your post, I could not agree more; you can guarantee that a barrister following a claim against a defendant will rip to pieces anything s/he can get her hands on to destoy your defence. We do tend to leave ourselves wide open. The industry is very much old school (and in some ways that is not a bad thing) but we do now live in the 21st century (with its many imperfections) and like it or not we need to put up our umbrellas.

I would be very interested to see your pre-solo written test (PM).

[FlyingForFun]

Llanfairpg,

I think your pre-solo written test is a good idea, but can it really cover every single possibility of something which can go wrong? Of course not. No syllabus, test or experience can possibly cover everything. I'm sure any "reasonable person" would agree to that.

There is a recognised industry standard syllabus for flight training: the AOPA syllabus. I would suggest that showing that you've followed this syllabus (by means of a training record) would show that you have acted properly, in accordance with industry standards. Any additional testing is certainly a good idea, and won't harm either you students or yourself if the worst should happen, but an absence of additional testing beyond what is required by the syllabus should not in itself be considered negligent.Documentary evidence of training isnt evidence of undersatnding and competenceTrue, but as TurboJ said earlier, a lack of documentary evidence of training says a great deal; it shows that either the student has not been trained properly, or the instructor has not completed his duties in keeping a record of the training, neither of which is acceptable.

On the other hand, the comments written in the training record should provide written evidence that each exercise was not only completed, but completed to a satisfactory standard. Where this was not done on the first attempt, there should be evidence that the exercise was repeated until a satisfactory standard was achieved. Although this might not prove that the student has achieved the required standard in the same way that a written test proves a level of knowledge (or at least proves that the student has learnt the answers to the questions, which is not the same thing as knowledge), it proves that the instructor has acted properly throughout the training.

And because there is a level of judgement involved, there are additional checks in place to ensure that new instructors, whose judgement of what is satisfactory may not yet be mature, are supervised by a more experienced instructor, and do not send students on their first solo (or first solo x-country, or first night solo).

FFF
---------------

[llanfairpg]

FF I agree but I always go for the belt and braces approach. The fact that you cannot cover everything in a test isnt a reason for not having one, its an excuse .

I do not just look to a syllabus for inspiration, our test and syllabus is based on my experience of seeing the mistakes made by myself and others over the years. I do not need to wait for change I and confident enough to bring it about myself.(sorry if that sounds arrogant, what it means is that i am always looking for ways to make things better)

At least I know that my defence barrister will be able to stand up and say, this club/school goes further than is required to ensure students are taught to a high standard.

[MrAverage]

llanfairpg

I too would be interested in the content of your pre solo written test. Is it on a website or would you be prepared to make it available somehow?

MrA

[Aztec Driver]

Here's one
Pilot Flys A-B no problem
Pilot Flys B-A screws up
Who gets into trouble
P1 ?
Aircraft Owner ?
Instructor on site off duty ?

[llanfairpg]

You need to make that question much clearer.

[Aztec Driver]

Read AAIB GBBBK December 2007 Bulletin

[Pieman007]

Have just read it. This is a very sad story.
No prosecutions seemed to follow though, and rightly so, the pilot had a licence.

[Aztec Driver]

CAA seem to think an innocent bystander is to blame !!!:=