72 SA Flyer

Pilots engaging

in general sport

aviation or private

travel often worry

about the risks

of them or their

estates being held

liable for death

or injury of their

passengers in the

event of an accident.

N our ever more litigious society,

aviation increasingly attracts lawsuits

when things go wrong. Well, you can’t

stop someone from suing you or your

estate, but there are a few things to

keep in mind to prevent them from

winning a damages claim if they do

bring an action for injuries sustained or for

the death of a loved one.

INDEMNITIES

Many pilots are of the view that having

a passenger sign an indemnity form that

holds the pilot or aircraft owner harmless

against any claim will sufce. While it may

be a good idea to reduce any agreement to

writing in order to clarify the terms between

the parties, there are a number of pitfalls

that need to be taken into account.

A written indemnity needs to cover all

possible scenarios comprehensively – and

this is where the pilot may nd that such a

document may actually limit his options in

defending himself against a massive claim.

Additionally, the indemnity may well not

be of any value at all in the circumstances

that may arise. At worst, the indemnity may

count against him or her.

Very often, attempts to avoid liability

have quite the opposite effect and may

highlight that the pilot is well aware of

his wrongful actions and simply seeks to

knowingly avoid the consequences of his

wrongfulness.

On the up side, the existence of a

signed indemnity may, however, discourage

an injured party from instituting a lawsuit in

the rst place.

WRONGFULNESS

For a damages claim to succeed, the

plaintiff (or accuser) will always need to

show that the defendant acted wrongfully in

some manner.

Wrongfulness is when the pilot or owner

acted negligently, recklessly or just plain

illegally. However, where the pilot took risks

beyond those expected by his passengers,

that could also result in a court granting a

hefty damages claim against him.

No indemnity form is going to protect

a pilot or owner whose actions are found

to be wrongful or unlawful, so it is very

important to keep things clean and act

conscientiously at all times.

Unfortunately, general aviation is

fraught with risk and danger and the

chances of death or injury in a light

aircraft are far higher than on a scheduled

commercial airline ight. There simply is

not the infrastructure, redundancy and

resources to make things as safe for a

passenger in a light aircraft on a private

ight as he or she would enjoy as a

passenger on an airliner.

And herein lies the rub.

VOLUNTARY ASSUMPTION OF RISK

The common-law defence of ‘volenti

non t injuria’ is probably the appropriate

defence in most injury claims resulting from

light aircraft accidents. Translated from

Latin, it means ‘to a willing person, no injury

is done’.

The essence of the volenti defence is

that if a person knowingly and voluntarily

places himself in a situation where there

is risk, he would not be entitled to claim

damages if he suffers injury arising from

that risk.

For a defendant to successfully raise

this defence, it is essential to show that

certain requirements have been fullled:

The rst among these is that the injured

person acted voluntarily. This may be by

way of an explicit agreement, such as

CHRIS MARTINUS, PRESIDENT AIRCRAFT OWNERS AND PILOTS ASSOCIATION – SOUTH AFRICA

Venti n fit injia

(To a willing person, injury is not done)

BELOW - An indemnity will not always be sufficient

protection against a claim. In fact it could count against you.

www.sayermag.com

signing an indemnity, or by his actions –

voluntarily getting into the aircraft.

The second requirement is that he knew

what the risks were. This could be a little

more difcult to prove, and one should take

care to ensure that passengers are aware

that they are placing themselves at some

degree of risk and that they understand the

full nature and extent of that risk.

A bona de mistake or error of

judgement by a pilot is not wrongful and

thus does not incur a risk of liability. These

are things which are simply the ordinary

risks of ying.

HOW TO PROTECT YOURSELF AGAINST

LIABILITY CLAIMS

It is perhaps counter-intuitive to make

a passenger aware of the risks and make

it clear that he is voluntarily deciding to

accept those risks.

You should not downplay the risks, you

shouldn’t tell the passenger that you are not

accepting liability for your actions either.

Pilots and owners do indeed owe a duty

of care to their passengers and a simple

disclaimer does not relieve them of that

duty.

It is not necessary to go into great depth

or explain all of the possible gruesome

consequences of ying to a passenger, but

care should be taken not to change the risk

prole during the ight. For example, if you

are taking a friend on a Sunday afternoon

sightseeing ight, do not suddenly decide

to play games with adverse weather or

engage in high-risk manoeuvres that he

did not know about before he made the

decision to get into the aircraft. If you do,

his presence in the aircraft can no longer

be considered voluntary. Once the doors

are closed and you have taken off, your

passengers cannot change their minds

and get out when you change the game by

doing things that they were not expecting.

At that point, you are in big trouble if things

go wrong.

Do not bamboozle your passengers into

believing that a ight is legal when it is not.

If you take money from them in payment for

a non-commercial ight, at least tell them

that it is illegal beforehand. Although AOPA

certainly does not condone breaking the

law, a court is not going to come to the aid

of a passenger who knowingly became an

accomplice in the illegality.

If there are irregularities in the

paperwork, your licence has expired or the

aircraft is not airworthy, it is better for you if

the passengers know about it and are given

the opportunity to voluntarily make the

decision to come along or not.

Always bear in mind that you have a

duty of care towards your passengers and

that it is almost impossible to consider

them to have voluntarily agreed to become

the victims of negligence, recklessness or

illegality.

Remember that your passengers most

likely only consented to accepting the risk

of death or injury that is to be expected on

an ordinary ight, unless there has been

explicit agreement to the contrary.

Always ensure that there is a witness

present when you explain any risks,

especially if there is no written indemnity.

Never coerce or deceive your passengers

into joining you on a ight.

It is perhaps prudent to at least carry

sufcient insurance against the legal costs

that may be incurred in defending yourself

or your estate against over-zealous litigants.

If you heed the above, there is very little

chance of nding yourself in the unfortunate

position of being liable for huge personal

injury claims.

CHRIS MARTINUS, PRESIDENT AIRCRAFT OWNERS AND PILOTS ASSOCIATION – SOUTH AFRICA

AOPA BRIEFING

VERY OFTEN,

ATTEMPTS TO

avoid liability

have quite the

opposite effect.

What are the legal

consequences when your

flight goes 'belly up'?