Public Liability

[Ada Elle]

I can only speak for myself when I say that if I'm told by my GP or specialist that I must restrict or change my driving in any way, then I wont be flying without discussing it specifically with my Dr and getting it documented on my medical records.......if any accident occurred then insurance company will, as a matter of normal insurance company ducking and weaving, want to understand if you and or your Dr believed you were medically fit enough to fly....

Under the RAA standards, you don't even have to ask your doctor, though! That's the ridiculous part of the drivers license medical standard. As I was saying, the RAAus standard appears to allow people with early dementia to fly. Do you want demented pilots in CTA with your loved ones on a commercial flight?

 

I don't see why the standard for flying into Sydney Harbour Scenic 1 should be any less than the standard for driving a bus down George Street in Sydney.

 

In my case, as a long term sufferer of IDDM type 1 , these are very real downstream realities for me at some stage......

would I as a type 1 IDDM pass the test you are suggesting? (ignoring anything else for this hypothetical cause we don't both know what we don't know) or is that sufficient on its own to restrict?

Subject to annual review by an endocrinologist, and no flying for six weeks after a severe hypo, assuming you have no other complications. That's the license standard for a truck driver (roughly).

 

 

[terryc]

Under the RAA standards, you don't even have to ask your doctor, though! That's the ridiculous part of the drivers license medical standard. As I was saying, the RAAus standard appears to allow people with early dementia to fly. Do you want demented pilots in CTA with your loved ones on a commercial flight?I don't see why the standard for flying into Sydney Harbour Scenic 1 should be any less than the standard for driving a bus down George Street in Sydney.

 

Subject to annual review by an endocrinologist, and no flying for six weeks after a severe hypo, assuming you have no other complications. That's the license standard for a truck driver (roughly).

I think it's great that people with early dementia can fly, Do you want demented pilots in CTA with your loved ones on a commercial flight? Well I've heard everything now, you must be running out of things to talk about. Buy a game of scrabble and find a friend.

 

 

[Ada Elle]

I think it's great that people with early dementia can fly

that must constitute the target group of RAAus pilots who want CTA without getting a medical.

 

 

[SDQDI]

That is a bit over the top Ada.

 

As for the 'your loved ones flying in the same airspace' thing, surely an analytical person such as yourself would not use such emotive bs.

 

 

[Ada Elle]

That is a bit over the top Ada.As for the 'your loved ones flying in the same airspace' thing, surely an analytical person such as yourself would not use such emotive bs.

At the moment, the RA-Aus medical standard is weaker than that to drive a car, because you are not required to obey the conditions on your car license. (What stops a pilot with shortsightedness from not wearing corrective optics while flying legally?)

 

The next question becomes, who is opposed to the institution of a GP medical, like the GFA one? That would be people who could not pass a GP medical, of whatever standard, or who do not want to pay for a GP medical (all $80).

 

Finally, what standard should this GP medical be? At the very least it should be at least as restrictive as a private drivers license; I would advocate that it should be the commercial drivers license standard, on the basis that a light aircraft flying HS1 has the same potential for carnage as a truck driver in Circular Quay (consider total kinetic and potential energy of an RV6 at 1500ft).

 

If you want to play the (wo)man and not the ball, go right ahead.

 

 

[frank marriott]

Jump up and down and created a medical test (with costs) when there is no identified problem existing seems stupid to me. If pilots are not capable of flying safely they stop without more regulations.

 

And don't assume I can't pass a GP medical - I currently (and for the last 35 years) do a class 1 every 12 months for a CPL.

 

 

[Ada Elle]

Jump up and down and created a medical test (with costs) when there is no identified problem existing seems stupid to me. If pilots are not capable of flying safely they stop without more regulations.

Just like people stop driving when they're not capable of driving safely.

 

And don't assume I can't pass a GP medical - I currently (and for the last 35 years) do a class 1 every 12 months for a CPL.

I didn't say that was the only reason.

 

As it is, how many people actually know what the medical standard for holding a drivers license is? If you don't know what it is, how can you honestly declare that you meet that standard?

 

(The declaration is not that you hold a drivers license, it is that you meet the standard.)

 

 

[facthunter]

Ada, Enough of you assumptions about the RAAus medical are WRONG in the way they work to make me think you have an axe to grind and aren't interested in listening. Over a certain age you need a statement from your doctor. If you have certain conditions that situation will apply earlier. If he/she has any doubts they will require specialist statements. People may make certain statements that aren't true often if they think they can get away with it, and I would suggest that is more open to abuse with the CPL which allows NO questions about your condition to exist before TICKING the particular section. Nev

 

 

[Ada Elle]

Enough of you assumptions about the RAAus medical are WRONG in the way they work to make me think you have an axe to grind and aren't interested in listening. Over a certain age you need a statement from your doctor. If you have certain conditions that situation will apply earlier. If he/she has any doubts they will require specialist statements. People may make certain statements that aren't true often if they think they can get away with it, and I would suggest that is more open to abuse with the CPL which allows NO questions about your condition to exist before TICKING the particular section. Nev

You can claim that things are a certain way all you like, but that doesn't make it true:

 

- The re-activation of membership medical declaration is different to the renewal medical declaration

 

- When you join RA-Aus, or reactivate a lapsed membership, you don't _ever_ need a note from your doctor.

 

My axe to grind is that the Ops manual is a schemozzle and it should be fixed long before further privileges are sought. At the very least, pilots should be obliged to fly within the conditions on their drivers license, if those are relevant to flying (such as visual correction). It appears that Issue 7 of the Ops manual was a rush job that wasn't proofread before release.

 

 

[terryc]

You can claim that things are a certain way all you like, but that doesn't make it true:- The re-activation of membership medical declaration is different to the renewal medical declaration

 

- When you join RA-Aus, or reactivate a lapsed membership, you don't _ever_ need a note from your doctor.

 

My axe to grind is that the Ops manual is a schemozzle and it should be fixed long before further privileges are sought. At the very least, pilots should be obliged to fly within the conditions on their drivers license, if those are relevant to flying (such as visual correction). It appears that Issue 7 of the Ops manual was a rush job that wasn't proofread before release.

you need to do some more reading, then take a minute and then try to comprehend what it is you just read. You jump to conclusions to quickly.

 

 

[gareth lacey]

Hi Ada, do you have an axe to grind with raa pilots seems that us old guys get up your nose! Cheers Gareth

 

 

[SDQDI]

Hi Ada, do you have an axe to grind with raa pilots seems that us old guys get up your nose! Cheers Gareth

What is this 'us old guys' thing! I'm not yet 30 and I'm sure we aren't all guys in the RAA:wink:

Ada I don't see a problem at all with the RAA medical requirements. As for the corrective lenses requirements (I personally have that as a condition on my drivers licence) it seems to me that most of us that require glasses or contacts to drive would not be foolish enough to fly without them. If there was a trend (or even one or two incidents for that matter!) of accidents caused by pilots not wearing glasses when they were meant to it might be a concern but otherwise I think we are mature enough to exercise a little bit of common sense.

 

I don't mean to attack the person but you do come across as someone that thinks the rest of us need a regulation to cover every part of our flying and that we are all Alzheimer's riddled old fogies who need to prove we are capable of running a marathon before you will be happy to share the sky's with us.

 

 

[dazza 38]

Hi Ada, do you have an axe to grind with raa pilots seems that us old guys get up your nose! Cheers Gareth

Im still trying to work out whether Ada is a boy/girl, but going by the Avatar, im wondering whether it is a straight dog or a gay dog going by the rainbow.

Or a dog that keeps spelling licence as license. I dunno, it is very confusing.

 

Each to their own.

 

 

[turboplanner]

This link will be of interest to solo pilots:

 

Homsi v Homsi [2016] VSC 354 (28 June 2016)

 

 

 

Lachlan Allan, Barrister at the Victorian Bar, posted this summary in LinkedIn.com

 

"When driving negligently, does a son owe his mother a duty of care not to die (or suffer serious injury)? Homsi v Homsi [2016] VSC 354

 

Summary

 

 

 

A driver does not owe a common law duty to take reasonable care in driving a motor vehicle to ensure that he or she does not suffer an injury or death, that may result in subsequent psychiatric injury to close relatives who later learn of the injury or death.

 

 

 

There are powerful public policy reasons which militate against the imposition of such a duty.

 

 

 

Allowable “Secondary Victim” cases, being those in which a tortfeasor owes a duty to take reasonable care to ensure that the tortfeasor’s negligent driving does not result in the death or injury of a primary victim, that may result in psychiatric injury to another person who later learns of that death or injury (but who did not themselves witness the accident or the death or injury), are restricted to cases in which there is an established and pre-existing duty of care between the tortfeasor and the primary victim, e.g.:

 

• where the tortfeasor is the employer of the primary victim; or
   
   
  
• where the tortfeasor is a road user; and the primary victim is a fellow road user.
   
   
  

 

 

Analysis

 

 

 

Mr Mahmoud Homsi was killed in a motor vehicle accident that was solely caused by his own negligence. His mother, Ms Iman Homsi, was informed of his death via telephone. She suffered a consequential psychiatric reaction. She was granted a serious injury certificate by the TAC under sub-paragraph ©.

 

 

 

Iman then sued the estate of Mahmoud for damages. The TAC defended the proceeding on behalf of the Estate.

 

 

 

Justice J Forrest considered the competing versions of the duty of care that Mahmoud may have owed to Iman (if any) that were put by each party.

 

 

 

His Honour preferred the following formulation [at 24]:

 

 

“The appropriate way to formulate the asserted duty of care [by Iman] is as follows: did Mahmoud owe Iman a duty of care in the driving of his motor vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives and, particularly, Iman?”

 

His Honour held that the answer was No, for two main reasons. At [26]:

 

 

“(a) there is no authority in this country which supports the proposition that a negligent tortfeasor owes a duty of care as asserted by Iman; and

 

(b) in any event, there are powerful policy grounds for refusing to recognise such a duty.”

 

On the first of these points, His Honour noted that [at 50]:

 

 

“…it is now clearly established in this country that the duty of care in psychiatric injury cases extends beyond that to an immediate victim. Family members who suffer psychiatric injury as a result of a negligently inflicted injury to a close relative, but who do not witness the event, may be owed a duty of care by the tortfeasor. This has been described as the duty owed by the negligent party to a ‘secondary victim’ – the primary victim being the person killed or suffering serious bodily injury.”

 

And at [60]:

 

 

“Hopefully, it has become apparent that I consider that the common law recognises that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care. The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor’s negligence.

 

His Honour noted that such cases were limited, however at [60]:

 

 

"Such a duty is dependent upon an established and pre-existing duty of carebeing owed by the tortfeasor to the primary victim.”

 

And, earlier at [59]:

 

 

“...in each of the secondary victim cases, and Tame and Annetts and Gifford by an employer; in Jaensch and King by a road user.”

 

His Honour held that the common law does not recognise that a driver owes a duty at large to protect close relatives from psychiatric harm. This is not, on current authority, an "established and pre-existing duty of care". At [62]:

 

 

“But the common law goes no further. Even accepting that the categories are never closed, the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does not take sufficient care for his or her safety) not to cause psychiatric injury to a close relative as a result of injury to himself or herself. The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.”

 

Having found that the duty contended for by Iman was not an established pre-existing category of a duty of care, His Honour held that there are “powerful public policy reasons while militate against its imposition” [at 68].

 

 

Hypothetically, [at 71]:

 

 

“… if the duty as alleged by Iman exists, then:

 

(a) A driver who killed himself and other passengers as a result of culpable driving would not only be liable to the dependants of relatives of those that he or she killed in the driving of the car but also to the driver’s close relatives.

 

(b) The parents of a young man who runs onto the road and is struck by a motor vehicle whose driver exercises reasonable care but cannot avoid the collision would be able to recover damages from their son for their psychiatric injury.”

 

His Honour accepted the “floodgates” argument in this instance [at 72]:

 

 

“No crystal ball is required to envisage the raft of claims which could be brought by relatives of negligent drivers and other road users for psychiatric injury. I acknowledge that floodgates arguments are often met with scepticism – but that should not be the case here. To hold that such a duty exists would almost certainly unlock a large number of claims against a driver who, through his or her own fault, was seriously injured or killed. Even allowing for limitation periods, there is reality in the floodgates argument.”

 

Justice J Forrest further noted that finding that a duty of care was owed in this instance might have the effect of increasing TAC premiums, and commercially impacting the TAC in a significantly adverse manner [at 73]. He further noted the deleterious effect that any such finding might have in other situations in which a person puts themselves at risk and then suffers death or injury, subsequently causing mental harm to a close relative who then learns of the death or injury, [at 74]:

 

 

• "The heroin user who unintentionally overdoses.
   
   
  
• The hang glider who, through lack of care, collides with a cliff.
   
   
  
• The farmer who puts himself in a position of danger when attacked by a bull in the cattle yard"
   
   
  

 

 

His Honour foresaw that making finding in Iman's favour in this matter might, by analogy, allowed relatives of the above potential tortfeasors to sue the estate of the tortfeasor - an undesirable outcome.

 

 

 

His Honour ordered that Iman's Statement of Claim be struck out, and the proceeding dismissed."

 

 

 

[M61A1]

This link will be of interest to solo pilots:Homsi v Homsi [2016] VSC 354 (28 June 2016)

 

 

 

Lachlan Allan, Barrister at the Victorian Bar, posted this summary in LinkedIn.com

 

"When driving negligently, does a son owe his mother a duty of care not to die (or suffer serious injury)? Homsi v Homsi [2016] VSC 354

 

Summary

 

 

 

A driver does not owe a common law duty to take reasonable care in driving a motor vehicle to ensure that he or she does not suffer an injury or death, that may result in subsequent psychiatric injury to close relatives who later learn of the injury or death.

 

 

 

There are powerful public policy reasons which militate against the imposition of such a duty.

 

 

 

Allowable “Secondary Victim” cases, being those in which a tortfeasor owes a duty to take reasonable care to ensure that the tortfeasor’s negligent driving does not result in the death or injury of a primary victim, that may result in psychiatric injury to another person who later learns of that death or injury (but who did not themselves witness the accident or the death or injury), are restricted to cases in which there is an established and pre-existing duty of care between the tortfeasor and the primary victim, e.g.:

 

• where the tortfeasor is the employer of the primary victim; or
   
   
  
• where the tortfeasor is a road user; and the primary victim is a fellow road user.
   
   
  

 

 

Analysis

 

 

 

Mr Mahmoud Homsi was killed in a motor vehicle accident that was solely caused by his own negligence. His mother, Ms Iman Homsi, was informed of his death via telephone. She suffered a consequential psychiatric reaction. She was granted a serious injury certificate by the TAC under sub-paragraph ©.

 

 

 

Iman then sued the estate of Mahmoud for damages. The TAC defended the proceeding on behalf of the Estate.

 

 

 

Justice J Forrest considered the competing versions of the duty of care that Mahmoud may have owed to Iman (if any) that were put by each party.

 

 

 

His Honour preferred the following formulation [at 24]:

 

 

“The appropriate way to formulate the asserted duty of care [by Iman] is as follows: did Mahmoud owe Iman a duty of care in the driving of his motor vehicle to ensure that he did not suffer injury or death that may result in psychiatric injury to his close relatives and, particularly, Iman?”

 

His Honour held that the answer was No, for two main reasons. At [26]:

 

 

“(a) there is no authority in this country which supports the proposition that a negligent tortfeasor owes a duty of care as asserted by Iman; and

 

(b) in any event, there are powerful policy grounds for refusing to recognise such a duty.”

 

On the first of these points, His Honour noted that [at 50]:

 

 

“…it is now clearly established in this country that the duty of care in psychiatric injury cases extends beyond that to an immediate victim. Family members who suffer psychiatric injury as a result of a negligently inflicted injury to a close relative, but who do not witness the event, may be owed a duty of care by the tortfeasor. This has been described as the duty owed by the negligent party to a ‘secondary victim’ – the primary victim being the person killed or suffering serious bodily injury.”

 

And at [60]:

 

 

“Hopefully, it has become apparent that I consider that the common law recognises that a negligent driver of a motor vehicle owes a duty not to cause psychiatric injury to those in the immediate vicinity of an accident or its aftermath occasioned by his or her lack of care. The common law also recognises a discrete duty in relation to psychiatric injury sustained by close relatives (or those in some other relevant relationship, such as fellow employees or rescuers) of a person injured or killed by a tortfeasor’s negligence.

 

His Honour noted that such cases were limited, however at [60]:

 

 

"Such a duty is dependent upon an established and pre-existing duty of carebeing owed by the tortfeasor to the primary victim.”

 

And, earlier at [59]:

 

 

“...in each of the secondary victim cases, and Tame and Annetts and Gifford by an employer; in Jaensch and King by a road user.”

 

His Honour held that the common law does not recognise that a driver owes a duty at large to protect close relatives from psychiatric harm. This is not, on current authority, an "established and pre-existing duty of care". At [62]:

 

 

“But the common law goes no further. Even accepting that the categories are never closed, the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does not take sufficient care for his or her safety) not to cause psychiatric injury to a close relative as a result of injury to himself or herself. The relationship between mother and son and foreseeability that the mother would suffer psychiatric injury as a result of the harm, injury or death is insufficient to found a duty of care on the part of the son.”

 

Having found that the duty contended for by Iman was not an established pre-existing category of a duty of care, His Honour held that there are “powerful public policy reasons while militate against its imposition” [at 68].

 

 

 

Hypothetically, [at 71]:

 

 

“… if the duty as alleged by Iman exists, then:

 

(a) A driver who killed himself and other passengers as a result of culpable driving would not only be liable to the dependants of relatives of those that he or she killed in the driving of the car but also to the driver’s close relatives.

 

(b) The parents of a young man who runs onto the road and is struck by a motor vehicle whose driver exercises reasonable care but cannot avoid the collision would be able to recover damages from their son for their psychiatric injury.”

 

His Honour accepted the “floodgates” argument in this instance [at 72]:

 

 

“No crystal ball is required to envisage the raft of claims which could be brought by relatives of negligent drivers and other road users for psychiatric injury. I acknowledge that floodgates arguments are often met with scepticism – but that should not be the case here. To hold that such a duty exists would almost certainly unlock a large number of claims against a driver who, through his or her own fault, was seriously injured or killed. Even allowing for limitation periods, there is reality in the floodgates argument.”

 

Justice J Forrest further noted that finding that a duty of care was owed in this instance might have the effect of increasing TAC premiums, and commercially impacting the TAC in a significantly adverse manner [at 73]. He further noted the deleterious effect that any such finding might have in other situations in which a person puts themselves at risk and then suffers death or injury, subsequently causing mental harm to a close relative who then learns of the death or injury, [at 74]:

 

 

• "The heroin user who unintentionally overdoses.
   
   
  
• The hang glider who, through lack of care, collides with a cliff.
   
   
  
• The farmer who puts himself in a position of danger when attacked by a bull in the cattle yard"
   
   
  

 

 

His Honour foresaw that making finding in Iman's favour in this matter might, by analogy, allowed relatives of the above potential tortfeasors to sue the estate of the tortfeasor - an undesirable outcome.

 

 

 

His Honour ordered that Iman's Statement of Claim be struck out, and the proceeding dismissed."

I can only hope that it took them all of 30 seconds to decide this was a complete load of crap and the litigant was required to pay costs. How it even got as far as a courtroom says a lot about the ridiculous state of our legal system.

 

 

[spacesailor]

And, some doctors will charge a lot more than the $80, to give you that happy look as you walk out of the medical centre.

 

How do I know this?. I got a S.C.U.B.A. ticket, while suffering with asthma, cost a lot to cover the Dr's axss

 

spacesailor

 

 

[M61A1]

Can we now expect someone else in the family to countersue the mother for raising her son as a twat?

 

 

[turboplanner]

Can we now expect someone else in the family to countersue the mother for raising her son as a twat?

If you were to study this case, you would be on the way to getting a feel of the boundaries.

 

 

[M61A1]

If you were to study this case, you would be on the way to getting a feel of the boundaries.

The problem is that there is always a lawyer out there trying to set a new precedent (and make a dollar and a name for themselves) and change the boundaries and sometimes a magistrate dumb enough to entertain someone's stupidity, and that will always cost someone. Insurance just creates the illusion that someone else is paying for it.

Some of this stuff that gets in front of a magistrate is just unbelievable. It should have been shut down on her first visit to a lawyer.

 

 

[facthunter]

Vexatious litigation is another issue for the BIG players. The average person thinks the Insurance Industry is a soft target with unlimited coffers. Often "It's OK it's insured" attitude means less attempt to carry out normal care and maintenance. Result .. not an improved safety situation and higher premiums to insure. We ALL pay for that in more than money terms. Nev

 

 

[turboplanner]

Vexatious litigation is another issue for the BIG players. The average person thinks the Insurance Industry is a soft target with unlimited coffers. Often "It's OK it's insured" attitude means less attempt to carry out normal care and maintenance. Result .. not an improved safety situation and higher premiums to insure. We ALL pay for that in more than money terms. Nev

They have a lot more tools these days; it costs virtually nothing to send a broadcast email to your industry with video footage of old Foxhunter at the local service station buying a jerry can of fuel, passing over the bridge with lumps of rust falling off his car, and a post on a website like this or a "how I torched my Indian".

 

 

[turboplanner]

This one would just about be a new record, based on what it is going to cost to maintain this girl fopr life.

 

Note what the owner's duties of care were in this case; there are definite parallels with RA aircraft.

 

What farmers need to know about the $12 million quad bike case

 

 

[M61A1]

I would be a reasonably sound argument, that since she chose to ride quad bike with flat tyres, no brakes and helmet, that she has a lot responsibility for the outcome, unless of course she was brain damaged before the accident.

 

People like this are the reason almost everything in this country is outlawed. I hope her lawyers and that magistrate are proud of themselves.

 

 

[turboplanner]

I would be a reasonably sound argument, that since she chose to ride quad bike with flat tyres, no brakes and helmet, that she has a lot responsibility for the outcome, unless of course she was brain damaged before the accident.People like this are the reason almost everything in this country is outlawed. I hope her lawyers and that magistrate are proud of themselves.

You are still looking at the situation in the reverse; in Donoghue v Stevenson, Mrs Donoghue drank the bottle of ginger beer, not knowing there was a danger; she wasn't required to know and understand the drink bottling process.

In this case the farmer had a duty of care to keep the quad bike in the equivalent of roadworthy condition and ensure that anyone riding it had a helmet.

 

 

[M61A1]

You don't get , do you.? I know what the legal requirement is, I just strongly believe that, a lot of laws in this country have it backwards. As usual, they removed the responsibility from the person actually at fault, and made some else responsible for the stupidity. We will never go forward as a nation, while you can sue someone else for you stupidity.

 

Yes, it was a nasty occurrence, but any fool could see that coming a mile away, but the legal outcome is f#cked up.

 

Whatever happened to being responsible for your actions?