Hypothetical
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Join Date: Feb 1999
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Hypothetical
Something for all you Operators and Lawyers out there.
A guy comes into your organisation and wants to hire a plane from you, you know him as he’s flown with you before and you know he has a piece of paper that says he is licensed and has a medical certificate.
You hire him your plane and he goes flying.
Said pilot manages to bingle your plane and later at hospital is found to have a blood alcohol reading that would get your car license revoked for a lonnnnng time, (which is ok ‘cos he will probably spend some time in gaol anyway as it is so high).
Questions:
Who is responsible for ensuring that this guy was sober or not affected by drugs, his license is actually still current, (i.e., has not been revoked by CASA, and that he is currently medically fit?
Are you, as the owner/operator of the aircraft expected to police the laws on the pilots’ behalf, if so, how do you do it?
How can you, as an ordinary person identify whether the pilot is drunk, or maybe, drug affected or how can you be sure that his license is current (i.e. has not been revoked) or that he is in fact medically fit even though he has a current medical
What would happen to your insurance, particularly if others were injured?
With respect to the alcohol or drug issue what, other than asking him to take a breath test can you do to cover you’re ‘rear end’ in this situation?
With respect to the medical side, are you qualified to tell if he is actually medically fit to fly at the time?
With respect to his license, how do you know it is still current? Why don’t CASA regularly send operators a list of license numbers that have been suspended or revoked, something similar to the notice sent to merchants about credit cards that are no longer valid?
I know that the individual must be ultimately responsible for his actions but how do you as an operator ensure that you do everything you can to protect yourself in such a litigious society, not to mention keeping an upset CASA from your door?
I feel that no matter how vigilant you are you will still find yourself having to answer serious questions in a court at some time, and maybe risk your AOC or worse your life’s total financial investment.
These are only a few issues, I’m sure there are many more that exist which could be just as hazardous to you future.
A guy comes into your organisation and wants to hire a plane from you, you know him as he’s flown with you before and you know he has a piece of paper that says he is licensed and has a medical certificate.
You hire him your plane and he goes flying.
Said pilot manages to bingle your plane and later at hospital is found to have a blood alcohol reading that would get your car license revoked for a lonnnnng time, (which is ok ‘cos he will probably spend some time in gaol anyway as it is so high).
Questions:
Who is responsible for ensuring that this guy was sober or not affected by drugs, his license is actually still current, (i.e., has not been revoked by CASA, and that he is currently medically fit?
Are you, as the owner/operator of the aircraft expected to police the laws on the pilots’ behalf, if so, how do you do it?
How can you, as an ordinary person identify whether the pilot is drunk, or maybe, drug affected or how can you be sure that his license is current (i.e. has not been revoked) or that he is in fact medically fit even though he has a current medical
What would happen to your insurance, particularly if others were injured?
With respect to the alcohol or drug issue what, other than asking him to take a breath test can you do to cover you’re ‘rear end’ in this situation?
With respect to the medical side, are you qualified to tell if he is actually medically fit to fly at the time?
With respect to his license, how do you know it is still current? Why don’t CASA regularly send operators a list of license numbers that have been suspended or revoked, something similar to the notice sent to merchants about credit cards that are no longer valid?
I know that the individual must be ultimately responsible for his actions but how do you as an operator ensure that you do everything you can to protect yourself in such a litigious society, not to mention keeping an upset CASA from your door?
I feel that no matter how vigilant you are you will still find yourself having to answer serious questions in a court at some time, and maybe risk your AOC or worse your life’s total financial investment.
These are only a few issues, I’m sure there are many more that exist which could be just as hazardous to you future.
Join Date: Oct 2000
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If it please the Court..............
Pioneer, I'm neither an operator or a lawyer (he says with pride 
), but......
An interesting conundrum indeed and one that would make any lawyer salivate at the prospect of taking it up in court – regardless of which side they may be arguing. Unfortunately, until it is tried in court, there are no hard and fast answers.
DISCLAIMER: The following opinions are those of an ignorant, unqualified and frequently incorrect person. Any person who relies on these opinions in lieu of proper legal advice demonstrates prima facie that they suffer severe lack of intelligence and intellect. If you need real answers, hire a lawyer.
There is little doubt that the company would be liable for any damage caused by the intoxicated pilot if he was an employee of the company and carrying out his duties (often referred to as the ‘master-servant principle’). In fact any negligent act by an employee invokes the principle of vicarious liability. The courts’ interpretation of what constitutes carrying out his duties has been extremely broad and it is very hard for employers to avoid liability. For instance a bouncer who recklessly strangles and kills a customer would very likely expose his employer to a vicarious liability claim even though strangling clients is probably not part of his job description – at least not in the majority of pubs I frequent.
In the Australian case of Scott v Davis, the High Court found that an owner of an aircraft was not liable for the negligence of a pilot (in a fatal crash) in a situation where there was no benefit to the aircraft owner. The aircraft was borrowed by the pilot (in fact the owner asked him to take a friend on the flight) but there was no material benefit to the owner. (The original trial judge had found that the owner was liable.)
Your hypothetical would seem to sit squarely between these two situations:
On the one hand, the pilot is not your employee and therefore you would not be vicariously liable (under the vicarious liability statutes in each state) for his actions.
On the other hand, it could be argued either that you have obtained financial benefit (from the hire of the aircraft) and are therefore liable, or that the benefit arises specifically from the hire of the aircraft itself and not from the pilot’s flying of the aircraft and therefore that his negligence does not – of itself – expose you to vicarious liability. An example where this distinction might be more clear-cut would be if you hired the aircraft (i.e. handed over the keys) on the night before, knowing full well that a) the pilot had had a few beers and b) that he would not be flying until the following morning.
Looking at your specific questions:
Short answer: Yes and no. The pilot is ultimately responsible for complying with all appropriate laws and regulations. Your duty would appear to be to take all reasonable steps to ensure that the person is a fit and proper person. This may involve requesting to see a current licence etc.
Medically and physically, I don’t know. You would probably have a duty of care to persons likely to be affected (i.e. anyone that a drunk pilot could kill) to take reasonable precautions. For example, if the pilot was visibly drunk, you may be found liable to some extent. The onus on bartenders, for instance, is relatively high but it could be argued that patrons of a pub are expected to consume alcohol and that a reasonable bartender at 1am would have to be more vigilant to the possibility of drunkenness than an aircraft owner at 9am.
That would depend on the outcome of any court case. If you were found liable, I imagine that your insurer would not send you a Christmas card.
Why exclude the breath test? Apart from any privacy and cost considerations, how long do you think it will be before we have to blow in the bag every time we pick up a hire car? (Answer: The day after Avis/Hertz/Delta etc. is found to be liable when a drunk driver kills someone in one of their cars)
I guess not. Legally the test would be the ‘reasonable’ person test. White canes, Labradors and dark glasses might be a bit of a give-away about a medical problem, for instance.
Good idea. Cheaper and more up to date would be publishing a list of licence numbers (i.e. not names) showing currency or validity on the CASA website (with a hard copy service available to the non-networked among us.
), but......An interesting conundrum indeed and one that would make any lawyer salivate at the prospect of taking it up in court – regardless of which side they may be arguing. Unfortunately, until it is tried in court, there are no hard and fast answers.
DISCLAIMER: The following opinions are those of an ignorant, unqualified and frequently incorrect person. Any person who relies on these opinions in lieu of proper legal advice demonstrates prima facie that they suffer severe lack of intelligence and intellect. If you need real answers, hire a lawyer.
There is little doubt that the company would be liable for any damage caused by the intoxicated pilot if he was an employee of the company and carrying out his duties (often referred to as the ‘master-servant principle’). In fact any negligent act by an employee invokes the principle of vicarious liability. The courts’ interpretation of what constitutes carrying out his duties has been extremely broad and it is very hard for employers to avoid liability. For instance a bouncer who recklessly strangles and kills a customer would very likely expose his employer to a vicarious liability claim even though strangling clients is probably not part of his job description – at least not in the majority of pubs I frequent.
In the Australian case of Scott v Davis, the High Court found that an owner of an aircraft was not liable for the negligence of a pilot (in a fatal crash) in a situation where there was no benefit to the aircraft owner. The aircraft was borrowed by the pilot (in fact the owner asked him to take a friend on the flight) but there was no material benefit to the owner. (The original trial judge had found that the owner was liable.)
Your hypothetical would seem to sit squarely between these two situations:
On the one hand, the pilot is not your employee and therefore you would not be vicariously liable (under the vicarious liability statutes in each state) for his actions.
On the other hand, it could be argued either that you have obtained financial benefit (from the hire of the aircraft) and are therefore liable, or that the benefit arises specifically from the hire of the aircraft itself and not from the pilot’s flying of the aircraft and therefore that his negligence does not – of itself – expose you to vicarious liability. An example where this distinction might be more clear-cut would be if you hired the aircraft (i.e. handed over the keys) on the night before, knowing full well that a) the pilot had had a few beers and b) that he would not be flying until the following morning.
Looking at your specific questions:
Who is responsible for ensuring that this guy was sober or not affected by drugs, his license is actually still current, (i.e., has not been revoked by CASA, and that he is currently medically fit?
Are you, as the owner/operator of the aircraft expected to police the laws on the pilots’ behalf, if so, how do you do it?
Are you, as the owner/operator of the aircraft expected to police the laws on the pilots’ behalf, if so, how do you do it?
How can you, as an ordinary person identify whether the pilot is drunk, or maybe, drug affected or how can you be sure that his license is current (i.e. has not been revoked) or that he is in fact medically fit even though he has a current medical
What would happen to your insurance, particularly if others were injured?
With respect to the alcohol or drug issue what, other than asking him to take a breath test can you do to cover you’re ‘rear end’ in this situation?
With respect to the medical side, are you qualified to tell if he is actually medically fit to fly at the time?
With respect to his license, how do you know it is still current? Why don’t CASA regularly send operators a list of license numbers that have been suspended or revoked, something similar to the notice sent to merchants about credit cards that are no longer valid?
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The reg's don't state anything about a blood alcohol limit that I am aware of, just the old 8 hours bottle to throttle. They do mention though, that even if you have complied with the time limitaions you must not act as part of the crew if you feel your performance may still be impared, (Duty of care) How ever if a pilot came in with now obvious indication of impairment and signed a declaration stating he understood fully and would comply with such reg's , I would like to think that would satisfy most courts. I have never been breathalised before picking up a hire car. But doubt a court would hold the owner responsible if I was caught drink driving or speeding. Without proper training and approved eqiupment and the AUTHORITY to take bodily samples I think we would open a real can of worms.
In my own opinion we should all continue to exercise our best judgement and leave the policing to the police.
88B
In my own opinion we should all continue to exercise our best judgement and leave the policing to the police.
88B
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8 8s and others
Perhaps I should clarify a few things. Most of my comments in the post above are more relevant to civil liability than to criminal or regulatory compliance matters.
Thus my example of hire car companies breathalising hirers before handing over the keys would only come about if someone were to successfully sue a hire car company in the following circumstances:
[list=a][*]Bloggs rings Dodgy Bros. car company and books a car.[*]Bloggs arrives to pick up the car, slurring his words and walking with a distinct 'lean'.[*]Dodgy Bros hand over the keys.[*]Bloggs departs, drives onto the footpath and the collison kills both Bloggs and Deadguy, a pedestrian.[*]An autopsy reveals that Bloggs is 27 times over the legal limit.[*]Deadguy's family sue Bloggs' estate - but he has no money, as well as Dodgy Bros., part of the wealthy Dodgy international Group[*]The court finds that Bloggs is 50% liable (for being a drunk driver) and Dodgy is also 50% liable.[*]The court says that a 'reasonable' company would have seen that Bloggs was drunk.[*]They say that, having seen this, the company should not have handed over the keys, knowing that both a crime and a danger to the public would ensue.[*]They find that Bloggs and Dodgy are both liable to pay Deadguy's estate a squillion dollars in damages.[/list=a]
If this hypothetical case were to occur, then I would suspect that hire car companies would try to protect themselves. Remember that bars and clubs have succesfully been sued - both in Australia and elsewhere - for damages suffered by or caused by intoxicated people. The reasoning is that bar staff, who should have noticed that a person was intoxicated, did not exercise the approriate level of care by, for example discontinuing the sale of alcohol.
If car companies, aircraft owners etc. started to try to breathilse people at the moment, I am sure that someone would sue on the basis of civil liberties or some such thing. I don't think anyone other than the police can legally require it at the moment, although some employers can do random drug and alcohol testing. As you said 8 8, a 'can of worms'.
Perhaps I should clarify a few things. Most of my comments in the post above are more relevant to civil liability than to criminal or regulatory compliance matters.
Thus my example of hire car companies breathalising hirers before handing over the keys would only come about if someone were to successfully sue a hire car company in the following circumstances:
[list=a][*]Bloggs rings Dodgy Bros. car company and books a car.[*]Bloggs arrives to pick up the car, slurring his words and walking with a distinct 'lean'.[*]Dodgy Bros hand over the keys.[*]Bloggs departs, drives onto the footpath and the collison kills both Bloggs and Deadguy, a pedestrian.[*]An autopsy reveals that Bloggs is 27 times over the legal limit.[*]Deadguy's family sue Bloggs' estate - but he has no money, as well as Dodgy Bros., part of the wealthy Dodgy international Group[*]The court finds that Bloggs is 50% liable (for being a drunk driver) and Dodgy is also 50% liable.[*]The court says that a 'reasonable' company would have seen that Bloggs was drunk.[*]They say that, having seen this, the company should not have handed over the keys, knowing that both a crime and a danger to the public would ensue.[*]They find that Bloggs and Dodgy are both liable to pay Deadguy's estate a squillion dollars in damages.[/list=a]
If this hypothetical case were to occur, then I would suspect that hire car companies would try to protect themselves. Remember that bars and clubs have succesfully been sued - both in Australia and elsewhere - for damages suffered by or caused by intoxicated people. The reasoning is that bar staff, who should have noticed that a person was intoxicated, did not exercise the approriate level of care by, for example discontinuing the sale of alcohol.
If car companies, aircraft owners etc. started to try to breathilse people at the moment, I am sure that someone would sue on the basis of civil liberties or some such thing. I don't think anyone other than the police can legally require it at the moment, although some employers can do random drug and alcohol testing. As you said 8 8, a 'can of worms'.
You took the words out of my fingers 4 7 11.
But to extrapolate on the nightclub concept, a now paralysed and partially blind Bloggs suing the aircraft hirer for hiring him an aircraft when they should have seen (negligece?) that he was not in a fit state to fly.
But to extrapolate on the nightclub concept, a now paralysed and partially blind Bloggs suing the aircraft hirer for hiring him an aircraft when they should have seen (negligece?) that he was not in a fit state to fly.
