Junkie's Accident - a debate regarding claims and insurance

[John Boucher]

....... and finally we get some good out of all the hoo-hah!

We tend to forget the importance of this forum and this thread has just proven it. Just think if the original thread (that was deleted) was part of this, I think we would be travelling at about 10 pages already (correct me if i'm wrong Morph!)

The issue of insurance & liabilty is so important and features up there with safety, CRM & compliance.

I'm out in the Northern Cape and most of you chaps are sitting Gauteng. I could arrange with certain Aviation Insurers to have a meet with you chaps but think it be easier for Graham Speller to arrange this. There are so many pitfalls, read between the lines stuff that it be apt that the insurers themselves put forward the issues to the forum....

I know that insurers decern the difference between MPL & PPL and the amount of hours flown or to be flown... This all affects your risk profile!

Regards

[Graham Speller]

I'd be very happy to arrange and host a meeting for interested microlighters to discuss insurance-related issues.

I daresay I could get a representative from Insurers and possibly an aviation lawyer to attend and put forward their own viewpoints and answer questions.

Our offices are in Bryanston and we could accommodate 30-35 people quite comfortably.

A Saturday morning would probably be best. Maybe 9am-11am? We'd provide coffee and croissants (free to our clients, the rest of you pay!!!).

Completely arbitrarily, how about Saturday 19th May? I haven't checked an aviation calendar, so do not know if this clashes with anything important.

If I can get an idea of who would like to attend, and would be available on that date, we can make some firm arrangements.

You can reply here, but please also email me at speller@jankelow.co.za as I cannot always check back on the forum as regularly as I would like.

If there are specific areas you'd like covered, just let me know.

Cheers
Graham Speller

[John Boucher]

I hope you get a good turnout Graham. This is a golden opportunity for all to be informed, rub shoulders and come out more comfortable on the other side when flying.....

Bad Nav

[Gyronaut]

I welcome the positive turn to the discussion and will certainly attend a meeting with regard to insurance issues.

On the topic at hand... herewith My 2 zim cents' worth…

Firstly let me make it clear I stand neutral on the whole issue until the facts are clear and even then I will be careful about passing judgement.

I am a former Helicopter PPL (1991) and am now the proud holder of a GPL.

I have known Louis for just over a year now since I did my initial Gyro training with him and operate from his facility at Fisantekraal. Our relationship is professional and one of mutual respect between aviators. Upon signing up to train at Aero Sport, Louis made me fully aware of all insurance implications up-front. In fact, he went so far as to say that he could not send me solo on his machine unless I took out insurance to comprehensively cover his machine or that I would be required to lodge a guarantee for the full value of his machine! In other words, “you break it you fix it, you trash it, you replace it”

I also met Junkie on one or two occasions and attended a ‘principles of flight’ lecture that he gave. I shall reserve my opinion on both gentlemen since the purpose of this discussion is not to debate their personalities but rather the “rights and/or wrongs” of the issue.

To me it comes down to the relationship between them. Was it one of “employee/employer” or an informal one of “friends”?

1. Employer/employee: If an individual delivers services for remuneration and has an accident he cannot be held liable unless negligence can be proven beyond reasonable doubt. This will be difficult in the circumstances it seems and therefore the employer must and will suffer the loss. If the employer did not take the necessary precautions to ensure the safety of the employee then he is possibly liable for a claim against him by the deceased estate.
2. Friends: If an independent instructor uses the infrastructure and facilities of a school on an “exchange for favours” basis then I am of the opinion that the school should suffer no loss at all and if a loss is suffered then the school should be compensated fully, even to the extent of compensation for loss of income suffered. Would the school have suffered a loss if it was Junkie’s own machine? I think not.

As far as stating that there would be no claims and then ‘reneging’ on the statement, I suspect that initially, as a result of the shock and horror at what happened, everyone’s reaction would be such. Perhaps after consideration and possibly some legal advice and looking at it based on the facts before him, Louis changed his mind? This in itself is not necessarily wrong.

In closing I have this to say about Louis. He has made my blood boil, I have seriously considered physically attacking him on occasion BUT he is impeccably safety conscious, sets extremely high standards, is a good instructor and is committed to aviation while trying to make an honest buck from it. In my opinion he will never be dishonest or err on the side of indulgence when it comes to compromising safety. In short I know Louis will strive to do the right thing morally. Unless he is the “employer” as in 1. above AND his employee was on duty, he has no obligation whatsoever to the estate of the unfortunate pilot and it would be unreasonable to expect him to ‘subsidise’ the estate just because he is a “good guy” (or not depending on whether you like or dislike him). It follows then that it would also be unreasonable if he were to profit from the unfortunate incident.

Now here is my unsolicited opinion: I suspect the relationship was informal, therefore 2. above applies and Louis should suffer no loss. I find the attacks on his person unacceptable and challenge the nameless people that hide behind their nicknames and badmouth him to come out into the open and lets have a look at whether it is not perhaps a case of them having some other axe to grind with Louis.

The tone of some of the posts I have seen is despicable and not in the spirit of aviation. I for one feel that Louis is getting a raw deal from some of you guys.

Now let rip at me if you like.

Len Klopper

[Tumbleweed]

Hi Len,

I thought the focus had long gone moved from personal issues and rather debate the merits of responsibility/ hire and fly.

It's one thing to hold the pilot accountable for damage. It's another matter to claim loss of revenue. It's a business risk and anyone in business should have consulted a professional broker who would have highlighted all elements of risk and advise you of the best means to cover for that.

Here's another scenario. Instructor (solo) - joy ride, survives accident, booked off for 3 months. School holds him responsible for damage (cost)and relieves him of his duties. Is he entitled to his (sick leave) wages because he's still employed untill a disciplany hearing is concluded?

Besides the merits of the accident / accountability, how would the CCMA view this?

If he (as in the case of someone entitled to drive a company car) is an approved user of that vehicle and has an accident, the company carries the burden of the downtime.

[John Boucher]

I agree with Delta.... We have long gone stepped off the topic of focussing on Louis (and my oppinion his actions which have taught the trusting bunch of chaps in this forum a lot about being "formal" or "informal" ) and have turned this thread around to that of being positive and informative to old pilots as well as budding pilots.

What's the saying in Planet of the Apes (and other movies).... "WHY CAN'T WE JUST....GET ALONG?"

[phoenix]

Hi Len, You just beat me to the punch with your post. My feelings re Loius are pretty much the same as yours, although I did not ever feel like taking a swing at him! However, Ian and I did our training at the same time and I got to know him pretty well, solo'ed within a week of each other. What I am trying to make sense of is, if a plane is underinsured for whatever reason, the considered opinion must be,at that stage, that most pilots do not walk away from a totalled plane, so the thinking must be that someone is going to pay the excess and it will be the the estate. If the pilot is paralysed for life, would the person/s take the same action one wonders. To me, this seems to be a pretty cold-blooded approach, or am I not understanding the process?
Roy

[DieselFan]

What's the saying in Planet of the Apes (and other movies)....

Here we go back the the monkey debate!!!

In terms of the company car comparison it's not used as the main source of income. Judging from the various "scenarios" it shows there's MANY different points of view.

Personally I think it sucks, period and has complicated many things.

First thing I get asked about Skyriders' Bantam is "Do they have ins?" Appropriate but sad.

[DieselFan]

Are there any other case studies similar to this? Even in GA? What happened or is norm?

[Tailspin]

When i started my training it was compulsary to be on the insurance and to be able to cover the excess, i had taken out extra insurance just incase and must say i did not need it.

This debate has woken me up and i must say i will definately in future ask before i fly somebody elses aircraft.

[Biggles]

I think i am missing something on the insurance debate...

I take someone for a flip and crash... they sustain injuries. Now assuming that I have a signed disclamer and the pax was made aware of the risks involved they can only get compensation out of me if I can be proved to be neglegent? At which piont no amount of insurance will help as insurance will not pay out considering I have been proved neglegent. So how will insurance help?

[Graham Speller]

Hi, Biggles

You're quite right....you ARE missing something! But don't feel alone: it's a very common misconception.

Here's the thing: Insurance does not exclude losses arising from negligence.

One definition of Negligence that I found useful is as follows:

"The failure to use reasonable care. The doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances. A departure from what an ordinary reasonable member of the community would do in the same community."

On the other hand, GROSS Negligence has been defined as follows:

"Failure to use even the slightest amount of care in a way that shows recklessness or a willful disregard for the safety of others."

As you can see, there's a BIG difference.

Going back to your comments, and as best as I can put it:

1 If the pax signed a disclaimer, he/she would be saying "Hurt me and I won't hold you responsible". That will cover you up to a point, INCLUDING where the hurt arises from your negligence.

2 If you are GROSSLY negligent (see above) the pax may be able to have the disclaimer set aside. So, fly me while you don't have a licence and I reckon I'll get any disclaimer set aside. Forget to check the fuel and crash, 'cos its full of water, and the disclaimer would probably hold up -you were negligent, but it was an error, not a deliberately illegal act or omission.

3 HOWEVER....the pax may sign away his/her rights but cannot, in SA law, sign away the rights of his/her dependants. So the common trick is to include what is called an "Indemnity" in addition to the disclaimer.

Basically, an Indemnity says "If you hurt/kill me and, as a result, you are found liable and ordered to pay compensation to my lovely wife and kids...don't worry, 'cos I agree that my estate will reimburse you".

As I've said on this forum before, I would rather not carry pax than ask them to agree to such a thing - personally, I think it's immoral. You may have to pay the dependants, but the pax's estate is going to reimburse you at the ultimate expense of....the dependants, who would otherwise have inherited more from the pax's estate.

I would rather arrange proper insurance, which will pay appropriate compensation to the widows and orphans that your negligence created, or I just wouldn't carry pax. At least, I wouldn't carry pax that have any dependants!

By the way, the widow or orphan could get the indemnity set aside if they could prove GROSS negligence, in the same way as the pax could get the original disclaimer torn up by the judge. So it's best that you obey the rules, make sure your licence is valid, do proper preflight checks, stick to the ANRs, don't be a cowboy, etc. But if you make a mistake, that's what insurance is there for.

WARNING! I am an insurance broker, NOT an attorney. Please verify what I have said here with a professional legal advisor before you decide to act upon it. I would welcome comments from any lawyers as I do not pretend to have all the answers.

Cheers
Graham Speller

[Fliterisk]

Greame,

Immoral or not the fact is that any pax who signs such a disclaimer must also take responsibility for his / her actions. Fact is that most pilots / people / pax never think that anything will happen to them. As a result, are prepared to sign anything, take as much risk as they want and generally believe because they are invincible, dont have to worry...

I am not for one minute saying that it happened in this case!!!!! HOWEVER, the reality is that whether Louis is right or wrong, and whether or not Junkie was negligent (gross or otherwise), there is a risk, and you are quite correct, provided there is proper insurance there should be no problem. Perhaps schools should also be accountable and more dilligence should be taken when using a school to make sure they are properly insured. In addition, individuals should also take care to ensure that their dependants are adequately taken care of (please... no sinister meaning in this), and perhaps be more vigilent when they are asked to sign something or fly for / with anyone. The case where an AMO lost everything some time ago at CATO ridge left me wondering why people do not insure (as it was implied) their livelihood. Surely more responsibility needs to be taken by all of us who fly... considering that there may be additional risk

Graeme, would I be correct in assuming then, that Louis may only have a case against Junkies estate based on GROSS negligence, and that this would have to be proven, rather than just negligence? (In your opinion )

[Graham Speller]

Immoral or not the fact is that any pax who signs such a disclaimer must also take responsibility for his / her actions.

Good point, well taken. The pax must take responsibility, I agree, but as you rightly point out, people tend to sign whatever's thrust in front of them when all they can think about is the fun ride ahead of them!

Your other points are extremely valid as well. I hope that one outcome of this debate will be that pilots and aircraft owners alike will pay far more attention to things like proper insurance, rental agreements, etc., rather than leaving everything to chance.

Graeme, would I be correct in assuming then, that Louis may only have a case against Junkies estate based on GROSS negligence, and that this would have to be proven, rather than just negligence? (In your opinion )

I don't know much about the case, to be honest. However, it will all come down to the agreement between the owner and the pilot. If the pilot agreed to accept liability for losses suffered by the owner, then that's probably game, set and match. What I was referring to was slightly different, being the relationship between a pilot and his passenger.

If you are using someone else's aircraft, it is important that you clearly understand, and agree with the owner, who will be responsible for what, in terms of an accident.

The simplest arrangement would be one where the owner remains responsible for arranging insurance for those risks against which he wants to be protected, with the pilot being responsible only for the insurance excess or any claims made against the pilot by passengers or third parties, which exceed the available liability insurance. Provided the Insurers have agreed to the arrangement (they should get a copy of the agreement, which should always be reduced to writing and signed by both parties), that should be the end of it, except where the pilot is grossly negligent, in which case he might find himself unable to claim the protection of the agreement or the insurance.

It's a difficult subject for a forum like this, which is why I've offered to host an informal meeting where these, and other issues, can be discussed and debated for a couple of hours.

Cheers

Graham (mine's the English version!!! ) Speller

[Junkie]

JUDGEMENT ON MY DAD

i probably should not be getting involved on this website but HOW DARE any put false judgement (as on page 3 of this forum by a certain person we all know WHO) on my DAD! HOW DARE YOU! he would never endanger/act the fool hurt ANYONE or himself while flying HIS OWN or ANYONE ELSE's PLANE it was his passion and love and gave it every bit of EXTRA CARE in how he was doing it. He was skilled and did not believe in playing the fool OR ACTING AS MANY OF THe THINGS BEEN SAID ON PAGE 3....SO

take a moment and think to YOURSELF quietly

HOW MUCH PAIN DO YOU THINK THIS IS CAUSING US?????????????
a very hurt heart broken
daughter who's had enough of this evil world.