Widows Lonely Battle

[griffinblack]

From the Sunday Mail, Jun 29

Quote:

The widow and children of an RAAF top-gun pilot killed in an F-111 crash face bankruptcy as government lawyers battle to deny their compensation.

Kim Short has won her four year battle to clear the name of her late husbane Squadron Leader Anthony - known as Shorty- who died when his 30 year old fighter-bomber flew into a mountain on an island off Malaysia in 1999.

But the lawyers will now use taxpayer funds for a court battle over her claim for common-law damages to provide for herself and her children Ben, 14, Sophie, 9, and Abbey, 7.

Dr Short, from Moggill in Brisbane, said she never imagined widows and families would be treated in such a way - particularly when she had been "one of the team" herself as a former RAAF doctor.

"It's been horrendous ... very destructive," she says of the personal toll of the long fight.

Dr Short's nightmare began on the night of 18 April 1999 when her 31 year old husband's G-model F-111 strike bomber flew into a mountain on the small island of Palau Aur off Malaysia in the South China Sea.

After four years the Federal Government has finally admitted negligence for his death.

But the RAAF has been forced to hand the case over to the Australian Government Solicitor's office which is playing hard ball.

"I feel duped. My rights were destroyed," Dr Short said.

The government lawyers have told the struggling widow to accept a limited compensation payout under the Air Accidents Act.

Last July the air force agreed to issue a written apology and to pay common-law damages if Dr Short gave up any claim to a coronial inquest.

Dr Short agreed to waive her right to an inquest and there was no suggestion from the Government that it would invoke the Air Accidents Act.

"After I gave up an inquest they agreed to settle common-law damages, then they pulled the Air Accidents Act out of the hat and said I hadn't applied for compensation in the two year period," she said.

Under that law Mr Short, and therefore all air force pilots and crew, are regarded as "passengers".

And the Government is required to pay the families of passengers no more than $200,000 in compensation. It is understood Dr Short's common-law claim is much higher.

The air force has not only accepted liability for Mr Short's death, but has formally apologised to Dr Short.

All that remains is just compensation payout based on Mr Short's potential lifetime earnings and his family's standard of living.

In a letter to Dr Short, the RAAF chief, Air Marshal Angus Houston, said Mr Short was not to blame for the accident.

"I have always considered that there were contributory factors that the air force needed to address and that blame should not be attributed to Anthony," he wrote. "To that end it has been my view that his reputation as a pilot has not been, and should not be, impugned as a result of the accident."

He went on to apologise for the breakdown between Dr Short and the wider air force community.

"This should not have happened," he said.

The RAAF has 28 F-111s and just half of them are flying.

:Unquote

The fcuking government has a lot to answer for.

It reminds me of the young SAS sergeant killed in Afghanistan who left a widow a child[ren]. she was offered approx AUS$200 000 or AUS$13 000 per annum. Furthermore, she was required to make the decision to VA there and then in her lounge room. It was reported that the PM said to her "don't worry, we'll look after you". Most people envisaged similar allowance to that paid to polly's when they retire

I know of a number of other cases were families have been "looked after by the government. The Blackhawk crash families, Geoff Brooks wife etc etc.

On a different note, but along the done over subject, this is on top of our superannuation debacle. We (special forces, pilots, submariners etc) are paying super surcharges (taxes) on allowances which aren't being considered for superannuation purposes!! We are paying taxes for stuff we don't get!!

I have every confidence that my wife will be treated in an equally appalling fashion should the worst happen to me.

Message to the ADF "leadership" - how about showing some ... well .... leadership.

End of message, end of rant.

A thoroughly p1ssed off and disillusioned GB

[Tandemrotor]

griffinblack

My sincerest condolences to the widow concerned. Situations such as this are only too familiar to those of us on this side of the world! (you needn't look any further than the Mull of Kintyre Chinook accident - covered amply on these boards!)

Keep us informed.

[oldpinger]

I think the problem here is not so much the leadership shown by the ADF, but the brief to the government lawyers that they should get as much as possible for the government, ie decrease the damages paid to as low as possible through fair means or foul, and in this case, the foul has prevailed.

Obviously, the "trust us we'll look after you if you don't insist on an inquest" statement was as much use as a chocolate teapot.

The bottom line is to blame everyone but the ADF and therefore have to pay out less. This seems to be the common thread in Brooksy,Blackhawk crash etc etc ad nauseum. I guess if you expect that to happen it'll be no surprise, which was I wasn't all that surprised to see the newspaper article.

How to fix it? maybe change the rules regarding compensation and the SOPs for gov lawyers, ie the best interests of the ADF vs the financial interests of the gov.

:ok: How about this for an idea, the ADF looks after you therefore you get more people to stay in, hmmmmmm, never catch on that one, just wheel out another tired old retention bonus!:rolleyes:

Again, good luck, Kim.

[Argus]

Oldpinger identifies a relevant point in any litigation with the Australian Government - that of the difficulties of dealing with the Australian Government Solicitor (AGS).

The Australian courts have long held that the Commonwealth and its agencies are required to behave as a 'model litigant'.

The model litigant principle requires that government parties and their lawyers adhere to high standards of fairness, candour, competence and courtesy.

In the 1999 case of Scott v Handley ([1999] FCA 404 (13 April 1999), a Full Bench of the Federal Court noted that the Commonwealth was required properly:

‘to adhere to those standards of fair dealing in the conduct of litigation that courts in this country have come to expect'.

In the course of its reasons the Court defined the model litigant doctrine in these terms:

‘... the old-fashioned traditional, and almost instinctive, standard of fair play to be observed by the Crown in dealing with subjects’.

The cases cited by the Court indicate that the duties of a model litigant require a public body to adhere to a number of principles. The body must conscientiously comply with the procedures designed to minimise cost and delay; must assist 'the court to arrive at the proper and just result'; must not take purely technical points of practice and procedure; must 'not unfairly the other party's capacity to defend itself'; and must not take advantage of its own default.

Unfortunately, judging from the cases, the AGS is a slow learner. Many of its staff seem unaware of the model litigant principle. Many lack exposure to the cut and thrust of litigation conducted under the commercial realities of the world of trade and commerce. Additionally, with the resources of the Commonwealth (i.e. the long suffering taxpayer) behind it, the AGS believes it must defend until the death any perceived threat to the public purse in case some precedent is created and 'flood gates opened'. The still ongoing litigation after the [I]Voyager accident almost 30 years ago is an excellent example of litigation being prolonged unnecessarily, especially when there is no commercial risk to those instructing the agencies concerned.

It’s galling to see Defence widows treated in such a cavalier fashion. Litigation is about ensuring justice, not establishing who has the deeper pocket. If the quoted press report above is accurate, then it seems that the Commonwealth has made a representation or even a promise to Dr Short on which she has relied to her detriment. If this is so, it is open to her to argue that the Commonwealth be restrained or 'estopped' from reneging on its promise. Some lobbying of members of parliament might also assist, especially if they occupy marginal seats!