Civil liability/damage claims UK pilots
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Civil liability/damage claims UK pilots
I'm working for an Irish airline and based in the UK.
I've been issued a new contract, which I signed, and thought all was okay.
Now I have been warned by colleagues about a change in a clause regarding my Civil Liability....
I'm not sure what to think of it, how will it impact my position as a F/O and do I need some additional insurence?
This is the clause:
30. Civil Liabilities
30.1 If in the course of your employment you incur any liability
because of the death or injury of any person, including passengers or
fellow employees, or because of any damage to property, whether it be
the property of the Company or otherwise, you shall not be under any
liability to make any payment by way of damages, indemnity or
contribution to the Company by reason of the liability incurred by the
Company in respect of the said death, injury or damage to property
aforesaid.
30.2 The Company shall defend, indemnify and keep or save you against
all and any liability howsoever incurred in the course of your
employment in respect of the death or injury to any person, including
passengers or fellow employees or of any damage to property whether it
be the property of the Company or otherwise.
30.3 The provision of this clause shall only apply during the period
between the time when you report for duty at your assigned base and
the time when on returning to that base you go off duty, and provided
the liability is not attributable to negligence or gross misconduct on
your part.
I've highlighted the word "negligence". In my previous contract this clause was exactly the same, however instead of "negligence" it read "willful neglect".
No one seems to know what this change in words really means, and if our position as an pilot is really changed in the company.
1.Would it now be possible for the company to claim back any damage? How far can they go?
By example a flap over speed during a go around or accidently slightly bumping into a GPU will create some damage.... easily labbeled as negligence on the part of the pilots they can bring a claim against the pilots?
2. Is this legal under UK employment law?
3. Is there a way to take out an insurence for those situations?
4. How is this arranged with other, UK, airlines?
Any info and inputs are welcome!
I've been issued a new contract, which I signed, and thought all was okay.
Now I have been warned by colleagues about a change in a clause regarding my Civil Liability....
I'm not sure what to think of it, how will it impact my position as a F/O and do I need some additional insurence?
This is the clause:
30. Civil Liabilities
30.1 If in the course of your employment you incur any liability
because of the death or injury of any person, including passengers or
fellow employees, or because of any damage to property, whether it be
the property of the Company or otherwise, you shall not be under any
liability to make any payment by way of damages, indemnity or
contribution to the Company by reason of the liability incurred by the
Company in respect of the said death, injury or damage to property
aforesaid.
30.2 The Company shall defend, indemnify and keep or save you against
all and any liability howsoever incurred in the course of your
employment in respect of the death or injury to any person, including
passengers or fellow employees or of any damage to property whether it
be the property of the Company or otherwise.
30.3 The provision of this clause shall only apply during the period
between the time when you report for duty at your assigned base and
the time when on returning to that base you go off duty, and provided
the liability is not attributable to negligence or gross misconduct on
your part.
I've highlighted the word "negligence". In my previous contract this clause was exactly the same, however instead of "negligence" it read "willful neglect".
No one seems to know what this change in words really means, and if our position as an pilot is really changed in the company.
1.Would it now be possible for the company to claim back any damage? How far can they go?
By example a flap over speed during a go around or accidently slightly bumping into a GPU will create some damage.... easily labbeled as negligence on the part of the pilots they can bring a claim against the pilots?
2. Is this legal under UK employment law?
3. Is there a way to take out an insurence for those situations?
4. How is this arranged with other, UK, airlines?
Any info and inputs are welcome!
My quick reading is that the clause is meaningless, circular and incomprehensible. That is because I fail to see how you can incur any liability in the first place unless you have been negligent. So they say on the one hand they'll keep you indemnified in clause 30.2 if you have been negligent and on the other in 30.3 say they won't if you have been negligent; hence my comment.....
I would anticipate that an English court would bend over backwards to strike out the effect of clause 30.3 but I agree you and your colleagues would be well advised to get some specialist advice. Is the contract subject to English or Irish law?
I would anticipate that an English court would bend over backwards to strike out the effect of clause 30.3 but I agree you and your colleagues would be well advised to get some specialist advice. Is the contract subject to English or Irish law?
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Change of T&Cs
Interesting development ,I wonder what incident or event has driven this change .
A point of note is that under your companies SMS system they will have incorporated a "Reportable Occurrence" protocol ,which is mandated by E.U. and national law . Punitive action is prohibited unless gross /wilful negligence is deemed too have occurred.
So maybe you should be talking to both your NAA and EASA
Good Luck .
A point of note is that under your companies SMS system they will have incorporated a "Reportable Occurrence" protocol ,which is mandated by E.U. and national law . Punitive action is prohibited unless gross /wilful negligence is deemed too have occurred.
So maybe you should be talking to both your NAA and EASA
Good Luck .
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I wouldn't be too concerned about the clause you cite above as it refers to civil liabilities to third parties, rather than contractual liabilities to your employer.
In UK law there is a concept called "vicarious liabilty" - i.e. that your employer is liable for "torts" (civil wrongs) caused to third parties through acts that you, as an employee, commit in the course of your employment.
However if you go so far beyond the remit of your job that you are acting 'on a frolick of your own', your employer is no longer liable.
Vicarious liability in English law - Wikipedia, the free encyclopedia
"Negligence" is probably a broader term than "wilful neglect" and "gross negligence", but this clause seems to be clarifying that your employer is not liable for harm incurred by third parties where you are acting beyond the concept of vicarious liability, rather than costs incurred by your employer as a result of your failure to do your job properly (such as the example you cite above, of flap retraction too early/late so that damage is caused).
As a general point, it is possible that an employer could sue you for negligence. However, they are unlikely to do this because: a. unless you are very wealthy, you are unlikely have sufficient assets to make it worth their while, and b. there is the risk that any damages awarded against them would be reduced for contributory negligence - e.g. in your example above, is their bad training what caused you to raise the flaps at the wrong point?
In UK law there is a concept called "vicarious liabilty" - i.e. that your employer is liable for "torts" (civil wrongs) caused to third parties through acts that you, as an employee, commit in the course of your employment.
However if you go so far beyond the remit of your job that you are acting 'on a frolick of your own', your employer is no longer liable.
Vicarious liability in English law - Wikipedia, the free encyclopedia
"Negligence" is probably a broader term than "wilful neglect" and "gross negligence", but this clause seems to be clarifying that your employer is not liable for harm incurred by third parties where you are acting beyond the concept of vicarious liability, rather than costs incurred by your employer as a result of your failure to do your job properly (such as the example you cite above, of flap retraction too early/late so that damage is caused).
As a general point, it is possible that an employer could sue you for negligence. However, they are unlikely to do this because: a. unless you are very wealthy, you are unlikely have sufficient assets to make it worth their while, and b. there is the risk that any damages awarded against them would be reduced for contributory negligence - e.g. in your example above, is their bad training what caused you to raise the flaps at the wrong point?
Last edited by taxistaxing; 8th Jan 2013 at 16:13.
Its a bit more complicated than Taxistaxing says. Vicariously liability is very simple. If you're acting in the course of your employment and you are negligent and cause loss to someone, the employer is liable for your negligence. That deals with your liability to 3rd parties. This clause is not about the principle of vicarious liability which are common to all common-law jurisdictions.
This clause is something else and deals with your contractual relationship with your employer. In essence it says that if you have been negligent, i.e. in breach of the duty you owe to others at common law, then your employer can come after you under your contract of employment for what they (or their insurers) have to pay out. Simple negligence is one thing but recklessness is quite another. Recklessness essentially means, knowing the risks, you decide deliberately to take that risk. A reckless act may well be one outside the scope of your employment anyway so is rather a red-herring.
So basically the clauses read as whole acknowledge the common law vicarious liability principle and say that if you are negligent then not only have you no personal liability (30.1), but we'll indemnify you for all claims made against you due to your negligence (30.2). However the clause (30.3) says that if we the employer are vicariously liable due to your negligence we can come after you for our outlay. It contradicts the indemnities because as I said in my first post your employer would only be liable in the first place if you have been negligent.
This clause is something else and deals with your contractual relationship with your employer. In essence it says that if you have been negligent, i.e. in breach of the duty you owe to others at common law, then your employer can come after you under your contract of employment for what they (or their insurers) have to pay out. Simple negligence is one thing but recklessness is quite another. Recklessness essentially means, knowing the risks, you decide deliberately to take that risk. A reckless act may well be one outside the scope of your employment anyway so is rather a red-herring.
So basically the clauses read as whole acknowledge the common law vicarious liability principle and say that if you are negligent then not only have you no personal liability (30.1), but we'll indemnify you for all claims made against you due to your negligence (30.2). However the clause (30.3) says that if we the employer are vicariously liable due to your negligence we can come after you for our outlay. It contradicts the indemnities because as I said in my first post your employer would only be liable in the first place if you have been negligent.
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So in simple terms it's dealing with the employee's position in respect of liabilities incurred to third parties in the course of employment, rather than damage caused directly to the employer through doing the job, Which I think was the OP's concern.
e.g. contrast lowering the flaps too early and injuring passengers, versus lowering the flaps too early and damaging the aircraft.
I agree it's odd that 'negligence' is excluded from the indemnity provision. Then again the whole concept of an 'indemnity' provision at 30.2 seems odd, and fairly meaningless, given that any injured third parties would presumably sue the employer directly for the employee's acts rather than making a knock for knock claim against the employee.
I wouldn't be too worried about it. As noted previously you generally owe contractual duties to your employer and if you breach these duties there is nothing in principle to stop them pusuing you for losses stemming from the breach. There are practical reasons they are unlikely to do this, however, as outlined in my previous post.
e.g. contrast lowering the flaps too early and injuring passengers, versus lowering the flaps too early and damaging the aircraft.
I agree it's odd that 'negligence' is excluded from the indemnity provision. Then again the whole concept of an 'indemnity' provision at 30.2 seems odd, and fairly meaningless, given that any injured third parties would presumably sue the employer directly for the employee's acts rather than making a knock for knock claim against the employee.
I wouldn't be too worried about it. As noted previously you generally owe contractual duties to your employer and if you breach these duties there is nothing in principle to stop them pusuing you for losses stemming from the breach. There are practical reasons they are unlikely to do this, however, as outlined in my previous post.
