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40 minutes ago, skippydiesel said:

" I have consistently suggested a collective approach to assessing & documenting the risk (fully informed consenting adults) that the few mates can sign (literally) up for.

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There was a case in the last couple of weeks in Victoria where, in awarding damages againts a person, the judge had added more money because the defendant was negligent and had failed to warn of the risk. In this case, even if the defendant had made his friends sign a document he would still have been found negligent and the major part of the award would still have been made.  On top of that, with your airstrip open, there's nothing to stop a stranger seeoing the strip and your mates' aircraft and deciding to drop in for a coffee, clipping a tree which is not supposed to be within an active ALA and taking out a couple of people on the ground, and so on.  

 

 

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Your words - "the law places a great deal of emphasis on interpretation of the words, "ought reasonably to have known (the risks)". - I suggest you have supported my statement above"

You have the duty of care; it's YOUR job to understand and address those risks; anything goes wrong it's your pocket the money's going to come from.

 

Your words again - "The bottom line is, a few hundred dollars a year invested in a good PL policy is simply good sense, in that it protects you from a host of unforeseen circumstances, that can become life-altering." and mine "I accept risk, as a fact of life, seek to manage it rather than insure against " [/quote]

A breach of Duty of care usually involves a mistake (we are not talking about Culpable Negligence here where the person knows that what he is doing is wrong]. This can be as simple as meaning to pick up 20 metres of cyclone fence that a bull has dragged across the strip, and forgetting to do it, or making a maths mistake when you measured out the strip, or the neighbour asking to dig a drain for you, and he leaves it open on Saturday becaise he's going to the races, and no one will be working. In my field, losses were due to; not having lights outside a toilet we had left up outside the track for peoples' convenience, not warning that children could be injured by flying clay, not operating a fire extinguisher (which saved a driver's life) correctly, not using a cable joining method which complied to an Australian Standard, using temporary plastic fencing to define a demonstration area. You say you accept risk, and for all I know you may be a multi-millionaire, but if you aren't you don't even understand the basics of what we are talking about and it's time to get some professional advice.

 

12 minutes ago, skippydiesel said:

- you can not protect yourself from criminal negligence or deliberate act that causes injury/loss/death to a third party.. [/quote]

We are not talking about Culpable Negligence; that's a different subject. 

 

Edited by turboplanner
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You are starting to make a case for not insuring. Surely this is a personal choice that one should not be criticised for doing. Only gamble IF you can afford to LOSE, and how much better would the Country be if people thought that way? The mates you have might be quite capable of doing the right thing but the grieving spouse and her new partner's Lawyer might think otherwise.  Nev

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5 hours ago, facthunter said:

You are starting to make a case for not insuring. Surely this is a personal choice that one should not be criticised for doing. Only gamble IF you can afford to LOSE, and how much better would the Country be if people thought that way? The mates you have might be quite capable of doing the right thing but the grieving spouse and her new partner's Lawyer might think otherwise.  Nev

Dear Nev,

"You are starting to make a case for not insuring" - wrong I have made a case for not ensuring when it is clearly not required.

"Surely this is a personal choice that one should not be criticised for doing." - I hope you are not suggesting that I am against personal choice, particularly when I am trying to show that a person need not insure (there is choice) in certain situations AND where sensible precautions are taken to avode/minimise the risk of being sued. I am not  "criticised 'anyone for insuring when they dont need to. I am QUESTIONING a concept  that seems quit foreign to a lot of people, who have bought into what I consider to be an Urban Myth.

"Gamble.................................." - I dont and I would never advocate anyone else should but then that's their personal choice, which I support.

"The mates ............................... grieving spouse and her new partner's Lawyer might think otherwise" - That's why I have strongly advocated a documented agreement between consenting adults acknowledging the risks.

 

I do not wish to offend any person on this forum but those that  promote this idea that we should and can insure ourselves against everything, irrespective of the context, are effectively diminishing an adult person's right and ability to make an informed decision about the risks that they freely involve themselves in and take responsibility for.  This reflects very poorly on us as individuals and as a society - now that is a criticism!

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We once had an employee who begged to be kept on although he had a serious heart condition. We kept him on but got him to sign a waiver saying that it was is own choice. When he died at work the family hit us for everything and won, apparently he could not sign away their rights.

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18 minutes ago, pmccarthy said:

We once had an employee who begged to be kept on although he had a serious heart condition. We kept him on but got him to sign a waiver saying that it was is own choice. When he died at work the family hit us for everything and won, apparently he could not sign away their rights.

I have repeatedly pointed out this is not a work/industrial site/risk - the same rules do not necessarily apply.

An employer has a duty of care quite different to that of a host/friend. In many ways an employer must act as a paternal figure - making decisions for the good of the employee, even when employee volunteers to put themselves at risk. 

Edited by skippydiesel

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Turbo - I give up!  You insist that industrial rules apply to the private world - I disagree.

 

Oh! In your last comment(s) you sited  one aviation possibility of  a stranger seeoing the strip and your mates' aircraft and deciding to drop in for a coffee, clipping a tree which is not supposed to be within an active ALA and taking out a couple of people on the ground, and so on."  - As a pilot you are no doubt aware that, without there being a declared/apparent emergency, your stranger would be breaking the law in landing on a private property,  in this case a paddock (as I keep saying) very much diminishing any claims he/she/relatives may make.

 

As a past employer I support comprehensive insurance to protect workers and the public should they be injured/killed in that environment.

 

As a private person, I very much hope that your vision does not become the accepted norm, in my or anyone else's  private life - such paranoia must be crippling.

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29 minutes ago, pmccarthy said:

We once had an employee who begged to be kept on although he had a serious heart condition. We kept him on but got him to sign a waiver saying that it was is own choice. When he died at work the family hit us for everything and won, apparently he could not sign away their rights.

That is correct. I’ve seen it apply in several cases. Skippy is just not getting it.

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7 minutes ago, skippydiesel said:

Turbo - I give up!  You insist that industrial rules apply to the private world - I disagree.

 

Oh! In your last comment(s) you sited  one aviation possibility of  a stranger seeoing the strip and your mates' aircraft and deciding to drop in for a coffee, clipping a tree which is not supposed to be within an active ALA and taking out a couple of people on the ground, and so on."  - As a pilot you are no doubt aware that, without there being a declared/apparent emergency, your stranger would be breaking the law in landing on a private property,  in this case a paddock (as I keep saying) very much diminishing any claims he/she/relatives may make.

 

As a past employer I support comprehensive insurance to protect workers and the public should they be injured/killed in that environment.

 

As a private person, I very much hope that your vision does not become the accepted norm, in my or anyone else's  private life - such paranoia must be crippling.

1. I’ve mentioned that there in no difference between industrial and private environments; a duty of care is a duty of care for both.

 

2. I made us clear that the USE is what counts when you fly out of a paddock. The method of closing down that use is laying down white crosses on the field, otherwise you have the duty of care. Calling it a paddock carries no weight and in fact is likely to be used against you as an example of being dodgy.

 

3. You will run out of coverage if you try to claim on what you call comprehensive insurance.

 

4. My so/called vision has been in force since 1932.

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24 minutes ago, turboplanner said:

1. I’ve mentioned that there in no difference between industrial and private environments; a duty of care is a duty of care for both.

Who ever suggested removing the duty of care - all adults have, a duty of care to their fellows but to suggest it is always the same is just not true  eg our duty of care to children is not the same, its greater, than that to adults. Duty of Care changes with context - Industrial/Private/ Family/Stranger/ Circumstance/ etc etc

 

2. I made us clear that the USE is what counts when you fly out of a paddock. The method of closing down that use is laying down white crosses on the field, otherwise you have the duty of care. Calling it a paddock carries no weight and in fact is likely to be used against you as an example of being dodgy.  -

A private property EVEN IF IT HAS A FULLY FUNCTIONAL, FORMALLY LAID OUT, AIRFIELD is still a private property. No passing pilot has a right to land there without permission (emergencies excepted)  Similarly -You have no right to drive on a person's paddock because you see him and his mates doing so and you certainly have no right to land there, just because you might see a another aircraft on the ground.  Your example is a fallacy (fancy word for an expletive).

 

3. You will run out of coverage if you try to claim on what you call comprehensive insurance.

What!!!?? - comprehensive in this context (we are not talking about car insurance) means "including or dealing with all or nearly all elements or aspects of something".

 

4. My so/called vision has been in force since 1932. -

" in force"  What!!!???? again  surely you jest ? - Are you seriously suggesting/advocating that every private land holder  (house block and upward) should carry sufficient insurance to cover against the likelihood of friends who come round to have a meal, share in some backyard cricket etc etc need to have insurance - expletive again and again - completely unrealistic , impractical, antisocial and paranoid.

 

Commonly held beliefs are not fact, just because they are in common circulation and/or held up to be true by many or few - this is akin faith -  a subject I wish to steer well clear of.

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There is a problem with the software for multiple quotes, so referring to your post #84

 

1.   The definition of Duty of Care which will count when you are sued following an injury or fatality will the the legal definition of "duty of care"

      A careful read of Donoghue v Stevenson [1932] may be of help to you.

 

2.   In any event it's your decision how you discharge your duty of care to someone who lands on your airstrip and has an accident.  Apart from that there are well publicised precedents which show there's no exemption for private property, and these include thieves who entered the property illegally.

 

3.  Public Liability Risk Insurance is a specific type, set up for dealing in claims involving multi-millions of dollars with manageable premiums.

     Its up to you to do your own research on the upper limits of what you are calling comprehensive insurance; you'll probably get a surprise

 

4.  Yes, every private land holder should have Public Liability Insurance, in fact every person should have Public Liability Insurance unless they are rich enough to self insure.  If, for example, you cook a meal and the food is off and someone becomes ill, they can sue you for the costs of hospitalisation etc. Refer back to Donoghue v Stevenson.

 

If you have house insurance, you might find it includes, say, $10 million public liability cover for events which might occur within its terms and conditions, but you need to read those terms and conditions very very carefully, because they are unlikely to include activities we are talking about on this forum.

 

       

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Thats awful pmc. You were doing the right thing in every way but were blindsided by the venality of the judge. I reckon they see an agreement not to sue as a non-invite to the gravy train ( fees and costs ) so they decide its not legal. Judges were lawyers once.

There was a case where an injured tandem parachute passenger sued even though they had signed a waiver.  The first court awarded him damages based on the reasoning of " not being allowed to sign your rights away ".

The GFA helped pay for the appeal which was won on the grounds that the risk was obvious and the passenger had clearly agreed to carry the risk.

I suspect that you would also have won with that heart guy if you had millions to appeal the first court decision.

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Insurance: If you have average luck , you will only get a third of your premiums back as claims. So it is foolish to insure for things when you can afford to carry the risk yourself.

In my view, this includes hull insurance for Jabirus and Libelles , but I do have mates who disagree and that is fine by me.  Over 40 years of not paying premiums on a glider has more than paid for a write-off and anyway its only a toy.

What very few of us can afford is to pay out for personal injury, and so insurance becomes an unwelcome necessity. Personally, I don't trust them to pay out but that is my cynical view and hopefully the stoush would be  between the injured party and the insurer. Being careful and never finding out is my aim.

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Public Liability insurance was a concept I had not encountered until I came to Australia. Where I previously lived there was something called Accident Compensation & every employer paid into it plus there were levies on car regos etc. It covered all residents for any accident anywhere. It was enshrined in law and there were specific amounts for the assessed disability etc. In return the right to sue was removed. I think it is an excellent system and removes some of the graft from the system here where someone sues a shop for millions just because they were careless and tripped on something. The USA is king when it comes to suing for just about anything but Australia is close behind. Interestingly this trend did not really start till the 1970s. Before then personal responsibility was considered normal.

 

I pay public liability for my hangar & aerodrome through our hangar owners group scheme, aeroplane via my RAA membership, car via Rego CTP, & house & contents via my homeowners insurance. I do not insure my aeroplane hull or my hangar from an asset perspective. The cost outweighs the risk in my opinion. Most of my tools etc are still covered under my homeowners cover anyway.

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1 hour ago, Bruce Tuncks said:

Thats awful pmc. You were doing the right thing in every way but were blindsided by the venality of the judge. I reckon they see an agreement not to sue as a non-invite to the gravy train ( fees and costs ) so they decide its not legal. Judges were lawyers once.

There was a case where an injured tandem parachute passenger sued even though they had signed a waiver.  The first court awarded him damages based on the reasoning of " not being allowed to sign your rights away ".

The GFA helped pay for the appeal which was won on the grounds that the risk was obvious and the passenger had clearly agreed to carry the risk.

I suspect that you would also have won with that heart guy if you had millions to appeal the first court decision.

Everyone should be aware that you can't hand off your rights on a Tort.

Safety warnings or agreements have a bearing, but that's best left to a lawyer to explain.

 

Bear in mind that a plaintiff can sue based on his/her beliefs and understandings. I know at least two cases involving RA crashes where the plaintiff insisted on suing for the wrong reasons, and so never had any hope of recovering any damages.

 

I suspect that in the example you gave about the parachutist the different results in the two courts that the first court looked at what it was presented with, and the second court looked at whether there was in fact a breach of duty of care or not, but getting into details that fine are a matter for lawyers with the qualifications to sort the facts.

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1 hour ago, Bruce Tuncks said:

What a wonderful idea kgwilson.  I wish we had that here. It would remove a big deterrent to employing a farmhand.

NZ does get some things right, even though the scheme has its critics and is not perfect it works pretty well. The ACC (Accident Compensation Commission) fund has plenty of money in it and each area is assessed for risk & it seems sports injuries is one of the highest even though sports bodies contribute nothing to the scheme. You'd think that motor vehicle claims would be one of the highest but that isn't the case except for motor cycles. To register a car for a year including the ACC levy was $80.00 & has just increased to $109.00 but a motorbike is around $500.00 so to a degree it is user pays based on evidential risk.

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