Safety & Training
On Balance of Probabilities
July 28, 2009 By Neil J. MacDonald
Civil litigation is not all that civil. Once a lawsuit has commenced,
it can be acrimonious and take several years, exhausting those involved
whether they be pilots, engineers, operators, or even the lawyers
Civil litigation is not all that civil. Once a lawsuit has commenced, it can be acrimonious and take several years, exhausting those involved whether they be pilots, engineers, operators, or even the lawyers themselves.
The threshold needed to win a civil litigation case is on the “balance of probabilities” or, in other words: is it more likely than not that the defendants caused the loss in question? Not a difficult burden of proof to meet!
As pilots, engineers, and operators, there is a possibility that at some time – if we are unlucky – we may attract the attention of someone who wants to sue us. Should that happen, we must be prepared to be co-operative, and patient throughout the ordeal. Consider this hypothetical case:
Your helicopter just returned from maintenance after a routine engine overhaul, and is due out on a fire contract. Once everything is ready, the pilot and engineer leave. After a few days on the fire mission, the helicopter is performing well, and everything looks fine. The engineer performs a daily inspection each evening and the pilot looks the helicopter over each morning before heading out.
On this day, 20 minutes into the flight, the engine quits. The pilot autorotates into the only clearing available – a shallow pond they have been bucketing from. The PC valve line had been chafing and has now worn through. Question: Was it placed that way during overhaul and no one picked up on it during the inspections?
The operator’s insurance policy responds and compensates the operator for the loss of the helicopter as well as the loss of business. The insurance company, under the policy, has what is called the “right of subrogation.” The insurer essentially steps into the operator’s shoes and can sue the parties it believes are at fault for the loss.
Fast forward two years. The insurer – in the operator’s name – sues the maintenance facility that performed the overhaul. The maintenance facility, in its defence, argues that the operator’s engineer is contributorily negligent for having missed the chafing on the inspections. The pilot is also personally named by the maintenance facility as a “third party” for their alleged negligence for autorotating into water. This means that if the maintenance facility is found at fault during trial, it may pursue the pilot and engineer personally for their share of the money for the loss.
By this point, both the pilot and engineer have moved on and the operator is having a difficult time getting their co-operation. Neither the pilot nor the engineer is interested in this event any more. They believe they did nothing wrong and do not want to waste their time responding to questions.
Assuming coverage is in place, the insurance companies on both sides will be funding the litigation. This is fairly straightforward on the maintenance side, but a little less so for the operator. If named as defendants or third parties, the pilot and engineer will not have to hire their own lawyers. The operator’s insurer will cover the legal fees for them as additional assureds under the policy. This obvious benefit comes with obligations, however (see my March/April column). If the pilot and engineer want their defence costs covered, they will have to make themselves available.
If the pilot or engineer fails to co-operate in their own defence, they may be in breach of the insurance contract and the insurer can then withdraw coverage, causing the pilot and engineer to be personally responsible for their defence costs as well as for any damages that flow from the lawsuit. Legal fees in a complex case can run into the hundreds of thousands of dollars. Damage awards could well exceed that.
It is important that all players involved in a loss recognize that once a lawsuit is commenced, they must make themselves available and co-operate in the litigation process.
While a pilot or engineer may feel that their job ended a long time ago, and all this legal fuss is unnecessary, it is simply not the case. Their job ends when everyone is satisfied, whether that is at the job site once everyone is safe or, in our hypothetical case, once legal obligations are met and the civil litigation process completed. While a pilot or engineer may miss time from work or perhaps personal time in order to deal with the litigation, on a “balance of probabilities” life will ultimately return to normal without any resulting permanent or personal significant loss to the parties involved.
Neil MacDonald is a lawyer with Harper Grey LLP, practising in Aviation
Law. He holds an ATPL-H, and flies part time as an Air Ambulance pilot.
This is not a legal opinion. Readers should not act on the basis of
this article without first consulting a lawyer for analysis and advice
on a specific matter.