Junkie's Accident - a debate regarding claims and insurance

[Boet]

Gentlemen, to sum up this whole sorry mess: Say I ask to fly your Bushbaby ( Or whatever. ) You give me the keys, no warries. :D The man is very carefull. Exept today. I fly like a bloody fool/hero. Swoop, dive down on people, in general make an asshole and a nuisance of myself, flying YOUR airie. The unthinkable happen. I make BIG boo-boo, write YOUR aerie OFF ............heavens forbid, MYSELF TOO


NOW.


Sit quietly and THINK carefully, before answering this question:

WHAT ARE YOU, YES YOU, GOING TO DO ?????????

[FAWGie]

Boet,

Judgement as to how the pilot flew during the last moments that led to his death have to be subjective (What happened prior to that has no bearing or significance)

What I am saying is that let's assume that a pilot flies irresponsibly for most of the flight, who says that the last 2 minutes of the flight which caused the accident were irresponsible? (In the same way that you cannot try a criminal for a crime based on their previous criminal conviction)

Let's assume again that the pilot who borrowed your plane in this hyperthetical test did crazy things all over the sky, then in the last few moments of the flight encountered wind shear that caused the accident, are you going to blame the pilot based on previous actions?

So to answer your question about what I would do? I would think hard and carefully about what the percentage probability of winning a law suite would be against the deceased estate, considering the eye witness who witnessed the final moments resuting in the crash.....The contract in place (verbal or written)...and I would certainly get more than one legal opinion.... That's the legal consideration....

Then I would consider the moral aspect and consider the circumstances of the deceased's dependancies...

Then I would also consider what legal claim they might have against me as the aircraft owner.....

emotions aside...these are the cold factors needed to weigh things up.....

[skidmark]

Boet... You know what I think I've learnt? I don't think I want to let anybody fly my plane. So it becomes my problem, if there is ever going to be one. I will do my utmost to make sure things are in place legally etc. It takes guts to be an owner of a flying school but you have to have it all in place properly like I said before it will hup you in the gat. Don't be complacent keep your eye on the game all the time.

[Graham Speller]

2) His legal counsel advised him ...he had full right to claim
5) His legal counsel ...satisfied him that the Estate could afford the claim

GK Chesterton said a lot of very wise things. Including:

"To have a right to do a thing is not at all the same as to be right in doing it."

Suing estates to make up for your own lack of judgement, irrespective of whether the estate "can afford the claim", may be strictly legal....but, in my personal opinion, it's morally indefensible.

And it's not a question of whether the pilot was negligent or not. Negligence is not a crime. It's merely a part of being human. Virtually no accident would ever occur without negligence being present to one degree or another, and it's usually the pilot who made the error of judgement.

Gross negligence (or wilful misconduct) is a bit different: that infers a deliberate act, knowing full well it was wrong and that loss or damage would probably result and just not caring. Like leaving your car keys in the ignition and walking away thinking "So what...I'm insured".

For those who are interested, I think the latest African Skies magazine has an article on the subject, so I won't bore you here!

I'm always happy to answer any insurance-related questions, either here or via PM.

But not after 3:30pm today...I have a date with SuperSport 2!!!

Cheers
Graham Speller

[Cloud Warrior]

To quote Shakespeare "Neither a lender nor a borrower be" - works for me.

I still miss Junkie.

And I still think suing the estate is a shit thing to do.

[John Boucher]

Eish...... treading a fine line here or do I misunderstand this statement?

Virtually no accident would ever occur without negligence being present to one degree or another, and it's usually the pilot who made the error of judgement.

So... off I fly in perfect conditions from FAPT to Morningstar / Delta 200
I encounter 3 seasons en-route from thermals & dust devils through the anabatic wind over the mountains, the mist at Piketberg and oh my word.... the cross wind at Morningstar.... not to mention a bit of wind shear just after the trees? Negligence? Then why do fly at all? Then it is our human nature to be negligent to fly as we are uncovering ourselves to the rigours of nature... to sit glued to your couch watching the Proteas on SS2 tempting your heart to border on fribulation is also negligent then?

I too am in the insurance industry and have found it to be very "dangerous" to insinuate negligence in any situation or accident!

As for the claim against the estate... it reeks (smells bad). I still believe that it is each owner of an aircraft to see that sufficient cover is in place, irrelevant of the costs! I do... Dont go klapping other people because of your own stupidity not insuring your machine!

My exactly half a Zim cent's worth....

[Graham Speller]

Hi BN

I'm not trying to be argumentative, simply realistic. I think there's a common misconception about the meaning of the word 'negligence'. Simply put, you are 'negligent' if you do something a reasonable man would not do, or not do something a reasonable man would do. Of course, the rule is always applied after the event and, I guess, with the benefit of hindsight.

So, to use your own example, once you encountered deteriorating weather, or conditions you did not feel sufficiently experienced or trained to deal with safely, perhaps you ought to have turned back or made a precautionary landing and waited for the weather to clear? If so, the decsion to continue may well be considered "negligent". As far as I am aware, the law only recognises two types of negligence: "ordinary negligence" and "gross negligence". There are no degrees of ordinary negligence: 1% is enough.

There is no such thing as "I had no choice, I had to continue and try to deal with the conditions I encountered", irrespective of the conditions (unless you're trying to get a critically-injured person to a medical facility, for example, in an attempt to save their life, but that probably wouldn't be construed as negligence for the same reason).

My guess is that your reference to admission of negligence is based upon the instructions we all receive from our insurers that, when involved in an accident with another party (i.e. a collision between two cars) you should not admit liability (=that you were the negligent party) becaue to do so will prevent your own Insurer from fighting a claim from the other party.

That's very sensible and we should all follow that advice.

But that's not what I was referring to. What I was saying was, simply, that if we were all perfect and never made a mistake, the vast majority of accidents would not happen. Whether the mistake is one of misjudging a landing, or continuing into weather instead of diverting, is immaterial.

And, yes, I suspect that giving myself a heatattack as I watch the Proteas snatch defeat fron the jaws of victory may well be considered negligent by my cardiac surgeon! But, as I said, negligence is not a crime!

These are issues which should probably be addressed by attorneys, not insurance brokers, so I would personally welcome any input from legal types on this forum.

Enjoy the cricket!

[Dobbs]

Looking for some advice / comments on liability.

I recently suffered some damage to my Bushbaby, although it is insured, I was not PIC, but for various reasons, I ended up paying the excess.

I have for some time been lending my triike out to a friend who is in my opinion a good pilot. However, after the above incident, I asked, and received a letter from this guy confirming that he would be liable for any damage to my trike whilst he is PIC.

Now I lend him my trike for the cost of fuel and maintenance, which I understand is not legal unless I have a flight school, which I do not.

My question is - do I have legal recourse for compensation, even though it is not legal to charge for the use of the plane?

[John Boucher]

Yes Graham, hindsight is a perfect science!

Ask Graham Smith & AB and Proteas sitting pretty on 7-2 after 9! By now your pulse has maxed out at 110% of MHR and your BP has doubled in figures.... Eish! Negligence - still touchy about that one though!

I still think insurance should be compulsory for all be it a car,bike, any vehicle, aeroplane etc. One sees in the movies when the Highway Patrolman stops the driver of a vehicle and asks for registration & insurance etc. this should be the norm for all! The comment I made in the thread that was deleted was specific regarding nominated pilots as well as cover specific for schools re. excess and for training purposes. Budding students should be made aware of all the pitfalls.... 13-2 after 12 Eish... crappy!

[Graham Speller]

Looking for some advice / comments on liability.

I recently suffered some damage to my Bushbaby, although it is insured, I was not PIC, but for various reasons, I ended up paying the excess.

I have for some time been lending my triike out to a friend who is in my opinion a good pilot. However, after the above incident, I asked, and received a letter from this guy confirming that he would be liable for any damage to my trike whilst he is PIC.

Now I lend him my trike for the cost of fuel and maintenance, which I understand is not legal unless I have a flight school, which I do not.

My question is - do I have legal recourse for compensation, even though it is not legal to charge for the use of the plane?

It's perfectly legal to charge for the use of your plane. You can charge as much as anyone is prepared to pay.

You don't need a license, a flight school or a MacDonalds franchise!

I think you are getting confused between renting a plane to an individual who will pilot it, and providing an air service, meaning you privide the plane AND the pilot, for reward.

That's very different. And you need a license, a comm pilot, etc.

It's the difference between hiring a car and hailing a taxi.

Just make sure that, if you are renting your plane, you have appropriate insurance or that you are getting enough in rental to make going uninsured worthwhile. Even if you decide to self-insure the plane, you need to ensure that you're carrying appropriate legal liability coverage, for the benefit of you AND any pilot who hires the plane from you.

Back to the cricket!!!

[Tumbleweed]

My understanding of the excess is; The insurer is SHARING your risk with you by letting take the insignificant knocks and brandewyn flekke, or in the worst case, the first bite.

The 'You fux it you fix it' should apply to the excess, or in the case of a private / personal plane, all the damage. This has got to made clear before flying though.

[John Boucher]

I agree with Graham... I would however before I fly a friends plane I want to be a nominated pilot and insure my excess as I have done.... I would also obviously pay my share of the premium.... as we did at the flying school we trained at. Not trying to push insurance upon anyone but guys it is so important to have... no matter what! I also suggest that you clear this up before flying your best mate's plane. It's not only accidents caused by pilot error, negligence or what ever but look at the fire at Cato or Phisantekraal some time ago! Total loss hurts anyone....... especially if you dont have cover for that! The cricket is really not going so great! At least the Sharks & Bulls won their games and the u/19 Bokke!

This forum is meant to assist, advise or support fellow members / contributors. Information is there for you to use or to lose and hopefully we don't shoot the messenger! We are entitled to differ on opinion and have ideas of our own- that is a democracy isn't it?

[Boet]

Yes, I agree. Let`s keep this forum informative, interesting and friendly, all for the benefit of our common love of flying. Leave the slander out of it.

[Thatchman]

Surely one could assume that as one of the schools instructors, the school accepts that the instructor is an experienced responsible pilot and in this case it would be harder to prove negligence than if one hired plane to some AN Other.

The whole thing makes you also think of the converse. What if you hire a plane and suffer an injury or even worse are killed as a result of some malfunction or engine failure.
Could you or your estate make a claim in respect of negligence against the school?
I guess agreements, proof of maintenance, CAA findings etc all come into it but it makes you realise that this is a risky business and should be covered by clear written agreements.

I would assume that schools cover themselves in their agreements but their agreements would not really be in favour of the student or rentor.

I know that I never gave it a thought when I did my MPL and only near the end found out that I owed R1500 as part of my fees for insurance.

Also seeing that we are talking about risk, lets not forget the risk that you take by carrying a pax. How many pilots get the pax to sign an indemnity?

[Coyote]

I am not for one second saying that Louis schools is like this but when I started flying trikes years ago my instructor was a total Assh……le . He was unprofessional and greedy. Of my class of 10 students 2 finished their licence. I was retrenched during the coarse of my license and although I had enough money stashed away and job opportunities lined up – was told that I may not fly anymore. I was sitting in the trike about to startup and he came out and told me that I could not fly until I found another job. When I inquired about his insurance on the aircraft I was informed that there was none and that I would have to replace and repair. He had been paid in full for the entire license and I battled like hell to get my money back. I straight away went to train with another instructor and completed my licence and bought my own aircraft.

Flight schools tend to “fly under the radar” they feel that they can deal in cash and don’t have to be too professional. In my opinion the guys that have set up professional schools, charge a little more but run the school as they would run any commercial business tend to do very well. They also tend to keep their clients for life and sell them aircraft and accessories for many years. We all spend money on our hobbies why not send it to someone we like and trust. I would hate to be caught out like Junkies family has been and if any good comes out of this – flight schools will now have to disclose upfront their insurance policy.
This might force Louis to review his business practice and set it up in such a way as to limit exposure. It is a hard lesson Louis but we have all at some time had to pay the schoo fees. I hear that you run a good school and hope that you will learn your lesson and carry on offering a good service to pilots. We will all continue flying and training so maybe it is worth working something out with the family and the guys on this forum.

Maybe we can have some kind of fund-raiseing airshow at Fisantekraal for you to raise money - if you will compromise with the family??? what do you think??? Guys are always keen for a fly away/airwshow. I will definitely fly down for it and sponsor a price. (flying helmet or something)