Update on Lockhart River

[gobbledock]

And from what I heard this week plenty of problems still exist up North!!

World-first as Lockhart River air crash families seek compensation

Melanie Petrinec
Wednesday, June 13, 2012
© The Cairns Post


LATEST: THE value of traditional hunting in indigenous communities is likely to become a key factor in deciding how much compensation is paid to the families of five Lockhart River air crash victims.
As revealed on cairns.com.au yesterday, most of the victims were skilled in traditional hunting and Supreme Court Justice Jim Henry has been asked to calculate the pecuniary value of the practice in what is believed to be a world first.
On May 7, 2005, a twin-engine aircraft owned by Transair crashed into a mountain on approach to Lockhart River, killing all 15 people on board.
The families of victims Frank Billy, Gordon Kris, Mardie and Fred Bowie and Helena Woosup are suing the airline's parent company, Lessbrook Pty Ltd, and insurer QBE for up to $500,000 in damages.
The court heard all five victims resided in the tiny Cape York Peninsula town of Injinoo, just 4km from Bamaga, where many traditional Torres Strait Islander ways are still practised.
Mr Bowie's adoptive father, Erris Eseli, said his grandfather was the author of Eseli's Notebook - a history of Torres Strait customs that has been translated by scholars at the University of Queensland. In a statement tendered to the court, Mr Eseli said his son would often go fishing with him for turtle, dugong and crayfish while he was alive.
"Hunting and fishing are a very important part of our community," he said.
"From my earliest memories, I can recollect that my family has been largely dependent on the ocean as a source of food.
"The hunting and fishing that the families in Injinoo currently do is a continuation of those traditions."
Mr Eseli's wife, Mary, said in her statement that Mr Bowie was a "kind and caring young man", who was "always available to give us help".
"His death is a great loss to us," she said.
Emily Kepa, whose partner was Mr Billy, gave evidence that food was shared among all family members after hunting expeditions.
The families' barrister, Gerard Mullins, said Justice Henry would need to undertake the difficult task of calculating the value of traditional hunting.
"The question is, how does one value that pecuniary benefit?" he said.
Mr Mullins said it could possibly be worked out by hours spent hunting, or the market value of the food.
All six other compensation claims have been finalised, with the fiance of police officer Sally Urquhart receiving the biggest payout when he was awarded the $500,000 maximum in 2010.
The trial continues today.

May they R.I.P.

[flying-spike]

This sad story will never end especially for the loved ones of those that perished. While this story is in the local news, rumour has it that another Cairns operator's safety manager has walked in frustration after his employer refused to learn anything from his skills and experience.
Hopefully they are not forced to learn from another tragedy.

[Kharon]

King: O, my offence is rank, it smells to heaven,
It hath the primal eldest curse upon't—
A brother's murther. Pray can I not,
Though inclination be as sharp as will. - Hamlet.

No folks – it's not Bollocks, not this time.

Selah.

[Frank Arouet]

Dugong's.

This is getting sick!

It wasn't a Transair flight.

[Hugh Jarse]

Wasn't it an Aerotropics flight, Frank?

[puff]

Frank - it was an Aerotropics flight, but as far as I am aware they had no AOC for the Metro, it was held by Transair, thus you could argue that since the crew was employed by Transair, under their AOC that they were infact 'involved' in the flight.

[Sarcs]

I see what is being heralded as a 'Landmark Case' has come to fruition for four families of victims of the Lockhart Crash, see here:


A Supreme Court Judge has awarded the maximum compensation to four families affected by the Lockhart River air disaster on far north Queensland's Cape York in 2005.

Frank Billy, Fred and Mardie Bowie, Helena Woosup and Gordon Kris from the Cape York community of Injinoo were among 15 people who died on board the Transair plane seven years ago.

Five separate compensation claims were lodged by their families, all seeking the maximum of $500,000.

Today, Justice Jim Henry awarded that amount to four of the families.

He awarded $388,000 to the husband of Mardie Bowie and her dependents.

In each case, just over $5,000 was for funeral expenses.

In his judgment, Justice Henry acknowledged the loss of skilled services such as traditional hunting, valuing them at $25 per hour.


Families win Lockhart River air crash compo bid - ABC News (Australian Broadcasting Corporation) (http://www.abc.net.au/news/2012-10-12/families-win-lockhart-river-air-crash-compo-bid/4310080?section=qld)

[601]

Why was it necessary to go to court?

From the CASA web site


Each carrier who carries passengers for hire or reward to or from Australia, or within Australia, is required to have in place passenger liability insurance which ensures that compensation will be paid in respect of death or personal injury to passengers arising from an air accident.

What is an "Acceptable Contract of Insurance"?

An insurance policy will only constitute an acceptable contract of insurance for the purposes of the legislation if it satisfies the requirements prescribed in s.41C (2) of the Civil Aviation (Carriers’ Liability) Act 1959. Amongst other requirements, it is essential that your insurance policy grants you a right of indemnity in respect of personal injury liability:

for an amount not less than $500,000 (for domestic carriers) or 260,000 Special Drawing Rights (for international carriers) per passenger; and which cannot be voided by an insurer in the event that you fail to comply with safety requirements or become insolvent.

You are expected to hold insurance which covers all of the types/models of aircraft which you are authorised to use, or propose to use, to conduct Regular Public Transport or charter operations under your AOC.

Was the amount awarded on top of the compulsory insurance policy or the legal eagles getting a cut of the compulsory insurance for dragging it through the courts?.

[Kharon]

SARCS# 7 - I see what is being heralded as a 'Landmark Case' etc.

But, it seems only insofar as insurance and compensation matters are concerned. There are no landmark operational issues being addressed. It's a great pity that 'other' issues were not pursued as rigorously or diligently as the legal fine print on an insurance contract.

This case stunk to high heaven at the time and the smell has not improved with time.

Lockhart River shames the industry.

[TunaBum]

601

The $500,000 limit (soon to be $725,000) in exactly that - a limit.

One of the claims was awarded less than the limit.

I happen to know that most of the claimants were offered the $500,000 limit many years ago - but refused to accept. There are a number of reasons for this which I will not go into - it's complicated.

Suffice to say it was not the insurer fault that this went to court!

TB :=

[blackhand]

Suffice to say it was not the insurer fault that this went to court!
You are quite correct Tuna, but saying anymore would bring out the claims of 'racist"

[TunaBum]

au contraire Blackhand. I wonder how the families of the other victims feel at the moment - all (except one) having accepted less than the limit?

TB :oh:

[Ixixly]

Tuna Bum, I think you may had mis-read the quote from 601, it states "for an amount not less than $500,000 (for domestic carriers)". So his question still stands, why are they receiving LESS THAN $500,000? is this because its not a "Domestic Carrier" and as such covered under a different rule?

[TunaBum]

Ixixly (is that a Roman numeral? LOL)

The quoted legislation is about compulsory insurance requirements of the Carrier. The Carrier must have insurance for a minimum amount - ie: not less than $500,000.

601's post infers that there should therefore have been no need to go to court because the full $500,000 should have been automatically paid in each case. If this is not what 601 is suggesting then my apologies in advance.

TB :ok:

[Ixixly]

Huh, fair enough, wasn't having a go or anything, i'm genuinely curious, another one of those things you get shown in training but you pay little attention to till you really think about it!!

[Kharon]

About 1400 EST tomorrow, marks the end of an era. It will quietly happen in the Senate and your comments on this subject have made it happen. Brava Ppruners, well done!, well done indeed.

I will not bang on about the sad state this industry is in, or the governmental agencies which have; in no small way, contributed to it's near demise. My thoughts, hopes and care for an industry I love, have been shared with some great folk here; infinitum; et tedium (and probably, ad nauseam).

My hope is that just for a short while, we can all stick together and rid ourselves of the invidious, often incestuous, expensive, non productive,. parasite on this industry, which has become our Civil Aviation Safety Authority.

Tomorrow is a start, the 22nd gives a slim (60/40 against) chance – the rest boys and girls; is really - up to you.

Selah – sleep well (if you can).

PS, the old man says Cheers (then rasps "about bloody time": Kilkenny rules. OK).
With the indulgence of T28 –

Macbeth:
To-morrow, and to-morrow, and to-morrow,
Creeps in this petty pace from day to day,
To the last syllable of recorded time;
And all our yesterdays have lighted fools
The way to dusty death. Out, out, brief candle!
Life's but a walking shadow, a poor player,
That struts and frets his hour upon the stage,
And then is heard no more. It is a tale
Told by an idiot, full of sound and fury,
Signifying nothing.

[601]

If this is not what 601 is suggesting then my apologies in advance.

No need for an apology, it is exactly what I am suggesting.

I would imagine that an AOC holder would take out the minimum amount of insurance required under the legislation. There is an accident and as I alluded to the insurance "cannot be voided by an insurer in the event that you fail to comply with safety requirements".

So why take it to the courts if there is a chance that, as we have seen in this case, you will end up with less than the $500,000?

[Creampuff]

Because you’re not automatically entitled to anything, much less $500,000. You’re only entitled to the amount of damage, calculated in accordance with ordinary legal principles, up to the cap (currently $500,000).

If the insured and its insurance company consider your damage is only $300,000, and you want more, you have only one option: go to court and prove your damage is more than $300,000.

[TunaBum]

Thanks Creampuff. Spot on.

The insurance is not a life insurance or personal accident insurance policy where you can automatically claim the full amount. It's a liability policy. If you have a minor injury you might be offered $5,000. If you die your dependants will get the full $500,000 if they can prove they were dependant on you (or your hunting expertise!:E). If they can't prove dependancy up to the limit then they will get a lower figure.

TB :ok:

[TunaBum]

the insurance "cannot be voided by an insurer in the event that you fail to comply with safety requirements."


This means that if the carrier (or the pilot for whose actions the carrier would be liable as his/her employer) breaches regulations or fails to comply with safety requirements etc... , the insurer can not avoid paying out for death or personal injury claims. They can of course potentially deny the claim for the loss of or damage to the aircraft itself.

TB

[gobbledock]

Blah Blah Creamy, typical waffle from all those entrenched years protecting government hey?
Money is one thing, lessons and lives are another, and more important than arguing over payouts. Not much has changed friends. Planes keep crashing, FNQ is still a mess in some areas. Lessons haven't been learned and the mischief continues.
People died at Lockhart and the very least they deserve is for heads to have rolled and partial accountability accepted by the Regulator. It didn't happen and won't happen. Unnecessary loss of life and no complete rest for the families victims until true, complete justice is served.

[Creampuff]

So, my explanation of how compulsory carriers’ liability insurance works, in response to an apparently reasonable question from another ppruner, means I have no concerns about the regulatory oversight of the operator in the Lockhart River accident?

Fool. :rolleyes:

[Kharon]

Creampuff and a couple of the other wiser, older heads could and should provide more detail on insurance matters. It makes my head spin, had a long talk with a wise pelican one day about it. What I got is that we collectively have NFI, for instance if you knock over a chook shed in a forced landing, or go through a fence or pull down a power line. Think your covered, think again, your shout for a chook shed, fence or power line.

CP will correct me if wrong, the mandatory insurance is there to protect the passengers because the way aviation insurance policy is scripted, if you have 'breeched' a regulation (or whatever) the policy is null and void (nugatory even). So while Big top Insurance is desperately trying to wriggle out from under on a 'technical' breach, the 'victims' are not covered – so we have the mandatory no wriggle room policy, to protect the innocent.

It's a tough topic, worth a page of talk. Sure as eggs, I can't fathom it.

[TunaBum]

Reckon it's worth more than a couple pages in a largely unrelated thread.

Your chook shed scenario is wrong.

Your mandatory insurance supposition is wrong.

Others may have many more similiar misconceptions.

Awaiting CP to correct you (:E)

TB

[blackhand]

Tunabum
An insurance broker I deal with said to me, after a particular accident " unfortunately we do pay for stupidity"

[TunaBum]

Yes well the broker may be using the royal "we" there (much like my doctor does when he asks me "how are we?"). The broker doesn't pay anything - the insurer does and ultimately passes it on to all its customers in higher premiums (which by the way the broker gets their share of in more commission!)

But yes humans make mistakes - sometimes stupid mistakes - and that is what insurance is there for. Unless those mistakes are also in breach of regulations and/or insurance policy exclusions/conditions in which case the insurer may not have to pay.

As Kharon says most people have NFI about insurance. Until the time comes to make a claim, they often find out that what they thought (ie: that insurance covers everything!) is not necessarily correct. Not many actually go to the trouble of reading the insurance policy in advance.

In case you haven't guessed yet - yes I work in insurance. Been in aviation insurance for over 30 years.........

TB :ok:

[Fidoda]

Okay, we have all had to prove what our loved ones were worth and we have had to fight for years after the accident to receive compensation.
My damages were calculated by a Barrister (charging $450 per hour) at much more then the capped $500,000 and I still had to threaten court and appear on A Current Affair to be offered a settlement.
QBE and most Insurance companies are the lowest of the low. How dare they drag people who have already suffered enough through such an unbearable process. This is a no fault insurance. It should be immediately paid to the families of the victims. Predominantly the winners are the lawyers!

[TunaBum]

Fidoda,

Sincere condolences for your loss.

we have all had to prove what our loved ones were worth


One of the problems is that this is how it is viewed by the families left behind - ie: the compensation equates to what their ""loved ones were worth". Obviously this is not the case - how do you put any dollar limit on how much a husband (brother, son etc...) is worth? You simly can not - and if you could it would far exceed $500,000 every time.

The basis of the compensation is dependency. A 25 year old with a wife and four children to support would always reach the $500,000 limit. A 25 year old single man with no dependants would not likely reach $25,000.

A 60 year old with only a wife as dependant (all children having grown up and no longer dependant) may or may not reach the limit - depending upon his occupation at the time and how much was being earned.

So unfortunately there is usually an argument to determin the correct amount of compensation. Obviously it is extremely difficult under the circumstances for everyone to be negotiating about the value of these claims. Agree it would be much easier if there were set levels of compensation (as in workers compensation for instance) which could be paid without delay or argument (the lawyers wouldn't be happy):O. But this is not the system we have.

Lawyers - perhaps best I don't go there. Suffice to say I agree Fidoda that they are usually the winners. The unfortunate reality is that the longer these matters drag out the better for them.

TB :(