What are the risks, insurance cover wise, of taking a PAX up

[Eggbeater]

Hi All

I think that as a general rule one cannot contract out of negligence. The basic criterion by which one's actions would be judged would be those of a reasonable pilot.

Now, flying low in IMC in hilly terrrain is not something I think a reasonable pilot would do and if a pax is killed while doing this then the pilot would be liable.

With regard to the young girl who was scalped, I think that she was under age in which case her signature was worthless.

[Graham Speller]

As I understand the position in South African law:

(a) You can contract out of ordinary negligence

(b) You cannot contract out of gross negligence/wilful misconduct

(c) You can only waive your own rights, not those of your dependants

(d) However, an "indemnity" is merely an undertaking to make good (i.e. to repay) any amount that is awarded by a court to any other person, arising from your own injury or death. In other words "if my wife sues you and gets awarded R100 which you pay her, I - or my estate if I'm dead - will repay that amount to you"

(e) An indemnity is only as good as your ability to fulfil it. Put another way, if you are ordered to pay my wife R100 and my estate is insolvent, you still have to pay her and the indemnity I gave you is worthless (any attorneys like to comment on this bit?).

Even where an indemnity has been signed, this will not stop anyone from trying to "break" it, as has already been mentioned. Courts tend to favour the "victim" in personal injury cases, so there's every chance that the injured party will sue anyway, which gives rise to huge defense costs, etc.

So, what's my advice?

Firstly, a "hold harmless and indemnity undertaking" is certainly one arrow to have in your quiver. To summarise, it says "I won't sue you, even if you're negligent, and I'll repay any amount you have to pay to anyone else who does sue you arising from my injury or death". That's why this is sometimes called a "blood chit". However, its effect can be limited if the pilot (indemnitor) doesn't have the ability to fulfil the indemnity undertaking or if the claim is brought on the basis of gross negligence (the difference between ordinary and gross negligence is another subject which I'm happy to address separately, if asked)

My problem with blood chits is that I really don't want to ask my friends to sign them! After all, I wouldn't dream of doing so before they get into my car or step foot on my property for a Sunday braai, so why should I when they're about to get into my 'plane?

A better solution, for me, is threefold:

(a) point out that flying does carry certain risks and advise the pax to check with his/her insurer that any life assurance, personal accident cover (whether held privately or via employment) will NOT be adversely affected by flying as a pax in the type of aircraft concerned

(b) carry passenger legal liability (PLL) insurance (but see below)

(c) arrange specific personal accident (PA) insurance on your aircraft to provide fixed benefits to any passenger who is injured or killed, including medical expenses

Cleasrly, PA or PLL insurance has a cost associated with it, which is unavoidable.

I am also aware that passenger legal liability insurance is not easily available for certain types of aircraft. In fact, it may simply not be available at all. Under those circumstances, my advice is very, very, simple:

Don't carry pax.


Hope this helps some.

[Thunderboy]

I recently read that even if a parent signs indemnity for a minor it will not stand up in court because as the law goes a person can not sign for the life of another (or something like that).
Basicaly if you take a minor up and something happens you can be held liable as technically there is no indemnity signed for them.
This goes with schools taking kids on outing etc, which is why I asked my wife never to drive the school van with kids in it where she taught.

[Morph]

My Biking club supports a children's home in Morreesburg and we used to take the kiddies for rides on the bikes. Eventually we had to stop this because of the risks involved in having an accident etc and we would not have been able to get permission from the various parents in any case. It was a great pity because the kiddies loved it

[Tumbleweed]

Gross negligence/ willfull misconduct.

To me, this is the key point. I don't believe an indemnity covers any value other than informing them that there's a potential of an accident.

I'd like to see the legal difference between negligence and gross negligence.

My understanding is negligence would be mis -interpreting the weather report, or exeeding runway landing with the wind, engine out due to dirty fuel e.t.c. I believe any insurance cover would have to honour that. I would class any repurcussion of this as a legitimate accident, and the pax will have to accept this, as part of the 'There'a a potential for danger' verbal indemnity.

I'd also like to know if any successfull claim has ever been awardered against a pilot by a pax for this type of scenario.

Gross negligence would be serious and deliberate 'kak soek', flying outside of licence and plane parameters, low flying / pylons, wires e.t.c.

I heard of a case of a teacher couple who took a sole student boarder out with them to the drive- in, got T boned at an intersection and were sued.

I think that teachers transporting kids require a 'public licence', but even without, in the event of an accident, providing the driver was partaking in /to / from a school function, was not grossly negligent, the sueing party would have to tackle the school, board, dept Education, government e.t.c.

Graham, chuck us a arbitory figure.

Valid trike, licenced 50 hour pilot, requiring pax indemnity cover of 1 mill.

How much?

[gertcoetzee]

Graham et al,

Why does taking a passenger on a trike differ from taking a passenger on any other mode of transport? Surely there is a risk involved with all, yet we do not require someone to sign an indemnity form when getting into the car with us.

If someone drowns going down the Orange in a canoe (as has happened in the past year) I would argue that the risks involved were clear - ie medium is water, man is no fish, probability of drowning. When they get into the trike with me, the medium is air, man is no seagull, there is a probability of coming down to earth in an uncontrolled fashion. In fact, taking into consideration speed, hours spend in canoe, probability that the passenger can swim vs speed, hours spend in microlight and probability that the passenger can fly, I would rather be flying than rowing.

In the end it does not matter what the passenger (or patient, for that matter) signs, lawyers will try to negate the piece of paper, and will try to prove negligence. And they do get rich in the process.

Gert

[Morph]

True Gert,

A car however has some level of accident injury cover in the form of the bankrupt 3rd party insurance(I think they call it the road accident fund). I'm trying to establish if an idemnity will protect us, and if not what sort of insurance would be advisable to cover any potential liabilities wrt carrying passengers etc.

Then I am going to take this back to WCMC and position the situation to them.

[ICEMAN]

Morph..... the RAF (road accident fund) is funded by a portion of the heavy taxes paid on fuel (petrol/ diesel)....... so theoretically one could argue that the petrol that we buy and we use for our flying has contributed towards the RAF.......

HOWEVER....... as it is, the fund has been abused (by corrupt lawyers and Dr`s making false claims on behalf of "victims").......

Its a very frustrating process to try and utilize; just claiming for a legimate motor vehicle accident would make the Pope resort to swearing within 10 minutes, plenty red tape, its exceptionally slow..... (cancer is quicker than the RAF offices)

but it would be intersting if you can get it right!!!! or at least give them a wake up call!!

[RV4ker (RIP)]

Similar situation to waterski'ing. 2 best mates went ski'ing (Both competent) . The boat owner was driving and the skier hit a partially submerged log in the water at high speed. Broke plenty of bones. Skier was a profeesional and thus loss of income was huge. Eventually when PPS ran out he had to sue the boat owner just to put food on the table. Not nice, but fact of life. If you gonna take pax get some sort of cover. Circumstances may force your best mates to sue you even if they don't want to. Practically the situation can turn very bad, even if you are not at fault.

Graham
Welcome . Nice to have one of the insurance Guru's on the site. Any idea on what 3rd party & Pax cover (Say R1,5bar) would cost on 3 axis ML?

[Morph]

Any idea on what 3rd party & Pax cover (Say R1,5bar) would cost on 3 axis ML?

yes and can we get it direct without having to go the Misasa/Aeroclub route?

[GR8-DAD]

I've got legal liability via DJ&A : R1440/annum per R1 000 000. (inc. AV52 whatever that means?)

[Graham Speller]

I've got legal liability via DJ&A : R1440/annum per R1 000 000. (inc. AV52 whatever that means?)

My guess is, that's TP only, no passenger liability.

AV52 is insurance-speak for the War Risks extension. So, if your lighty is used as a weapon of mass destruction against, say, the Hillbrow tower (assuming it doesn't just bounce off!), it's AV52 that ensures your liability (as the owner) is covered.

R1,5m TP/PLL combined will cost around R2,500/annum (it all depends on the particular circumstances) and, yes, it it available directly. For TP only, the MISASA route costs less.

[Graham Speller]

Gross negligence/ willfull misconduct.

I'd like to see the legal difference between negligence and gross negligence.

...snip...
Graham, chuck us a arbitory figure.

Valid trike, licenced 50 hour pilot, requiring pax indemnity cover of 1 mill.

How much?

Try this:

Negligence: failure to exercise the care toward others which a reasonable or prudent person would do in the circumstances, or taking action which such a reasonable person would not.

Gross negligence: carelessness which is in reckless disregard for the safety or lives of others, and is so great it appears to be a conscious violation of other people's rights to safety.

Passenger indemnity/liability cover for trikes is not easily available in SA as yet (watch this space!). Going the alternative route - personal accident insurance - would cost around R750 per R100,000 for accidental death and disability. The proceeds of the PA policy might then be used to satisfy legal liability claims, but it's expensive if you want to get R1m coverage.

[Graham Speller]

Graham et al,

Why does taking a passenger on a trike differ from taking a passenger on any other mode of transport? Surely there is a risk involved with all, yet we do not require someone to sign an indemnity form when getting into the car with us.

If someone drowns going down the Orange in a canoe (as has happened in the past year) I would argue that the risks involved were clear - ie medium is water, man is no fish, probability of drowning. When they get into the trike with me, the medium is air, man is no seagull, there is a probability of coming down to earth in an uncontrolled fashion. In fact, taking into consideration speed, hours spend in canoe, probability that the passenger can swim vs speed, hours spend in microlight and probability that the passenger can fly, I would rather be flying than rowing.

In the end it does not matter what the passenger (or patient, for that matter) signs, lawyers will try to negate the piece of paper, and will try to prove negligence. And they do get rich in the process.

Gert

Gert

Agreed. Difference is, you have unlimited passenger liability coverage for your car, either through private insurance or the RAF. So, if something does go wrong, there is (theoretically, anyway) a infinite source of compensation to take care of claims by pax.

If you drown when canoeng on your own, there's no-one to hold responsible except yourself. I'm not sure what the position would be if I were the rower and you drowned (I'd probably be charged with murder!). Perhaps the public liability coverage you get when you insure your household contents would cover that sort of thing as well? I'll check.

The common law position in SA (and most other countries for that matter) is simply that, if you cause injury to someone as a result of your negligent act or omission, that person is entitled to recover his loss from you. Sometimes the common law is amended by statute, or it can be amended by agreement/contract (as in a passenger ticket or indemnity). This principle applies whether it's a car, canoe, trike, dog or even the football your son kicked over the wall and into the street that caused the accident.

I agree that lawyers will often try to "break" a hold harmless/indemnity undertaking. Even if they fail, you'll have huge legal costs to pay. Which is why there is no substitute for (a) carrying proper insurance or (b) not carrying pax. For me, if (a) is not do-able, because of cost/availability, then (b) is a no-brainer.

[Tumbleweed]

GRaham,

Can you tell us if a pax's generic life / disabilty policy would cover in the event of a spontanious recreational plane accident?

Hyperthetically, he has gone on a random flip and not now partaking in regular 'flying', extreme diving, similar to climbing on a theme park ride. He can't surely inform his insurance before hand each time for clarity.

I presume once they have settled the widow, they're coming after the pilot for re-imbursement. in which case, how much value does the generic R 4 mill public liability cover hold that we (pilot) seem to get with our life policies?

Thanks,