Primarily for general aviation discussion, but other aviation topics are also welcome.
#1656318
mo0g wrote:Not only would he not have thought it likely to cause harm, it was literally a routine flight so demonstrably expected to be a safe flight.


I'm sorry (too late, too many glasses of wine to check) but didn't the AAIB report say that his attitude to the flight was far from that?

Rob P
#1656320
mo0g wrote:
AlexJR wrote: my comment was simply that the definition of negligence [I THINK] does not require a deliberate knowledge of a rule and a breach of it. Negligence can simply be judged upon an action and its result.


I don't think that is true, or at least the full story. It is not as simple as taking an action and causing injury = negligence. To be deemed negligent you have to have done something which you "reasonably" knew could PROBABLY cause injury (assuming a duty of care exists which obviously does in these cases).

So, did the instructors take an action which resulted in injury? Yes.

Did they know those actions would likely cause injury (not could, not might, not maybe) ? I would say no, not least because they wouldnt want to be killing themselves never mind someone else.

SHOULD they "reasonably" have known they were undertaking something which would likely cause injury? In both cases I would think that would be pretty difficult to prove to be the case, because as far as we can tell in the first one the instructor believed he was able to perform the check ride, therefore the aircraft was sufficiently similar to a normal SEP in terms of operation, and in the second case this was something undertaken previously. Whether he liked it or was comfortable with it has no bearing on whether he knew it was LIKELY to cause injury.

Yet we have people on here issuing guilty judgements. :roll:


You're setting the bar higher than the law does. Roughly* the questions are (if a duty of care exists):

1. Did the defendant's actions increase the risk of the injury/damage? and if so

2. Did the defendant take reasonable steps to avoid that risk?

*"Roughly" because it's a long book chapter to explain the nuances.

This can include risks which are not probable or likely (both terms suggest more than 50% likely to occur). How small a risk you can ignore depends on how serious the possible consequences are, which also affects hat steps you should take.

The fact that another pilot in the same circumstances thought the flight could be accomplished safely, and managed it, could be evidence that the flight wasn't negligent. But it's also possible the successful pilot was in breach of the duty of care, but isn't liable because no incident occurred.

We'll never know for sure whether, in the ferry flight example, something unexpected occurred or if the pilot should have made a precautionary landing but pressed on. The first is likely not negligence (unless even starting the flight was negligent), the second almost certainly is.

One thing I've learnt from flying, and reports like this, is that it's good to have a margin which allows you to screw up and still recover the situation. I've used my margin more than once.
#1656329
Rob P wrote:
mo0g wrote:Not only would he not have thought it likely to cause harm, it was literally a routine flight so demonstrably expected to be a safe flight.


I'm sorry (too late, too many glasses of wine to check) but didn't the AAIB report say that his attitude to the flight was far from that?

Rob P


It is early, but when I read the report I ascertained he was not 'happy', but even if he was 'concerned' I do not remember that concern being about the safety of the flight, and even if that were the case, that does not mean he considered it likely for there to be an accident.

I said "demonstrably" because he actually conducted the flight, and unless he was a gambler or had a death wish he obviously wouldnt have "expected" the flight to result in a crash, at worst he may have considered the flight more unsafe than normal.

Edit: I have now found the para in question "Witnesses reported that the instructor appeared concerned about the conditions for the flight to Gloucester. He gave them the impression that he was unhappy with the plan but there is no evidence that he raised any such concerns with the higher management of the flying school."

Devils advocate here by the way:

So, he "gave the impression" he was "unhappy" but was that with the reduced safety of the flight, or the prospect of it being a probable waste of time as they would have to turn back? Was it because he had assumed the ferry flight would not be going ahead so was already at home in his slippers having a drink in his head? He "appeared" concerned about the conditions, was that because he thought that meant the flight was a probable waste of time and he had better things to be doing? Was it because he was looking at them with a student and just thinking aloud so they understood his thought process and the subsequent go/no go? Did he expect to fly into a wall of low cloud, or did he consider it likely or did he consider it possible? Did he then speak with the other pilot to get a second opinion?

Back to my original statement, none of the above precludes the possibility he didn't think the flight was either likely to cause harm, or it wouldn't be a safe flight, "just" that it was less safe than it would be in better weather.
Last edited by mo0g on Sat Dec 08, 2018 8:06 am, edited 1 time in total.
#1656331
profchrisreed wrote:
You're setting the bar higher than the law does. Roughly* the questions are (if a duty of care exists):

1. Did the defendant's actions increase the risk of the injury/damage? and if so

2. Did the defendant take reasonable steps to avoid that risk?

*"Roughly" because it's a long book chapter to explain the nuances.


It may have been that my brief (no pun intended) exposure to law study, a long time ago, was either remembered incorrectly or has since been superseded or clarified by case law, but I've done some checking and my memory comes from Lord Atken's summary in Donoghue v Stevenson where he explicitly used the word "likely", ("You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." ) and the principle which he reaffirmed in subsequent cases (such as "and with the knowledge that the absence of reasonable care in the preparation or putting up of the products will result in an injury to the consumer's life or property".)

If there is subsequent case law which softens that stance I would be genuinely interested to see it, we are never too old to learn :)

Aside from that it would seem we are in agreement that on the face of it the decision to undertake the flight would be unlikely to be deemed negligent, and as we have no idea what the circumstances in flight were no court of law could possibly determine on the balance of probabilities that a reasonable person would have landed because of the risk of going on rather than, for example, he was simply mistaken as to his current position due to confirmation bias.

Or put it another way, they crashed not because of him, but because those holes in the cheese lined up, even if they were a lot bigger than normal and therefore more likely to.
#1656404
Lots of case law since 1932, the most pertinent being that about exposing employees to carcinogens where the risk created was less than 50%. And medical negligence cases about failures in diagnosis/treatment none of which were likely to cause the loss suffered, but increased the risk.

Nowadays the test is, in simple terms that if the risk is foreseeable, the amount of care which should be taken is one which balances the risk against the potential outcome. If one outcome might be death, then greater risk avoidance is needed.

As a simple example, if I drive along at 100 mph I'm less than 50% likely to kill someone, on most roads. But if I do, and could have avoided it by driving slower, then I'm likely to have been negligent.
#1656438
Regarding the PA28 fatal accident, I won't speculate on the thought processes and mindset of the gentleman in the P1 role. However, the student had 19 hours total time. He was not only flying with an instructor, but an examiner. In my opinion, he would have had a high level of confidence that he would not have been placed in an unduly unsafe situation. I feel so sorry for him and his family.
#1656447
profchrisreed wrote:Lots of case law since 1932, the most pertinent being that about exposing employees to carcinogens where the risk created was less than 50%. And medical negligence cases about failures in diagnosis/treatment none of which were likely to cause the loss suffered, but increased the risk.

Nowadays the test is, in simple terms that if the risk is foreseeable, the amount of care which should be taken is one which balances the risk against the potential outcome. If one outcome might be death, then greater risk avoidance is needed.

As a simple example, if I drive along at 100 mph I'm less than 50% likely to kill someone, on most roads. But if I do, and could have avoided it by driving slower, then I'm likely to have been negligent.


Could be semantics but the greater the risk = the more likely?

"..none of which were likely to cause the loss suffered, but increased the risk" = increased the likelyhood.

I mean, stepping into an aircraft increases the risk of an accident, so surely the test here is still if a reasonable person did not consider the flight a risk to life (ie they still went ahead with it) then a jury should not find a breach of a duty of care, even if the conditions made it more risky? In this case who can say whether or not he originally intended to let the student navigate, but due to the increased risk decided against it - ie he mitigated the additional risk?

Where I am prepared to accept there MAY have been a breach is during the flight, for example if he did let the student fly and navigate and was not supervising, but we do not know anything about the actual flying so it is literally impossible to declare him negligent without such information.

I should repeat, I have no problems discussing the possibilities of negligence IF this, IF that, but people have stated he WAS negligent, which is out of order in my view.
#1656449
There is nothing to learn from this discussion any more.
I don't care who thinks it was negligent, or what justification the barrack room lawyers use to assert their points.
It is getting to be like the lynch mob mentality displayed elsewhere on the net.



I think that It is usually the boss who screws up so, irrespective of the authority gradient, If I don't like the look of it, I don't go.

Would it now be a good time to lock this thread?
#1656451
tomshep wrote:Would it now be a good time to lock this thread?


No.

The semantics around the legal or casual use of the work negligence is an aside. The wider human factors brought up deserve to be talked about.

I have, on occasion, either scrubbed a flight where an instructor was happy to go, or said, when in the air, "I'm not really comfortable with this, I think we should turn around" and then did. Neither was in ab-initio flying but still fairly early in my flying career.

On another occasion, just a couple of years ago, a front had moved in quicker than forecast and I was on the way back to Bourne Park. Sitting with me was a friend of mine from work who, in another life, is a very experienced bush pilot and instructor. The cloudbase was lowering but I was ok at 800-900ft AGL, but then there was a ridge of cloud ahead. Well, I didn't know if it was a ridge or whether it continued at the lower height beyond. I would have just, where I was, been ok to go under it...but then I was landing on higher ground further to the west, into the worsening weather. I decided I wasn't going to chance it and that I'd divert in to Blackbushe.

My friend seemed a little put out at my decision not to continue but I knew the terrain and the obstacles and decided even if that bit of cloud was just a small ridge, the journey on the other side into the lowering cloudbase wouldn't have been much fun. I was P1, My friend is senior to me in work, and senior to me in flying, but I was flying, and I was the one not comfortable continuing further west.

Thankfully, having diverted into Blackbushe, GAF4F of this forum came and did a bit of car ferrying, so thank you GAF4F for that!
#1656459
Disagree.

@tomshep is bang on. It’s gone too far now, and I find it amazing that a bunch of Moderators who pounce on words as horrific as ‘to554r’ or ‘poo’, or the most remote reference to anything less than 110% PC can lock threads for pathetic trivia, yet be happy to read a diatribe of completely assumptious text that discusses how people have died on a public forum, and openly promote discussion about how and why it happened.

Sick.

Seager Publishing at its best.

Not... :roll:

It is finely balanced at the moment.


:lol: