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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 1:56 am

Quoting cam747 (Reply 49):
In this case the plane plunged 690 feet while the seatbelt sign was off, due to an (ableit very rare) fault with the aircraft - a programming error in one of the ADIRU's. I think in this instance, people who were seriously injured deserve to be compensated.

Sorry but the principle is the same, you have a duty to take reasonable steps to ensure your safety, i.e buckle up, if negligence cannot be proved and you would have remained unharmed if you had taken these reasonable steps you should not have the right to sue.

If you were in the aisles on you way to pee or an air steward undertaking duties (or up in the cabin doing stretches) then sure, compensation should be paid but if you were just in your seat unbuckled then you have failed to take the precautions that you were advised to in the safety briefing.
BV
 
cam747
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 2:15 am

Quoting BoeingVista (Reply 50):
Sorry but the principle is the same, you have a duty to take reasonable steps to ensure your safety, i.e buckle up, if negligence cannot be proved and you would have remained unharmed if you had taken these reasonable steps you should not have the right to sue.

I don't think the principle is the same. One cause is a known natural risk of flying, the other cause is a man-made programming fault.

You can say that injury from both scenarios can be avoided by having your belt on, but the fact is that the second would not have occurred had the manufacturer not made an error.
 
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Zkpilot
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 2:30 am

Quoting tommytoyz (Reply 27):

If injured passengers had been doing stuff they were told not to do, that would be another thing entirely. But I don't hear that is the case here. In any case, the cause has been determined, so it is not a question of blame, it is known what is to blame for the injuries, and it is not anything the passengers did.

There were practically no injuries to those that were seated with seat belts on (except for those who were impacted by non-strapped in pax hitting them).
Those pax and crew that were walking about the cabin and injured rightly should be compensated. Those pax who were not following the airline instructions (Qantas does state at the start of the flight that it is a REQUIREMENT to have your seat belt fastened whenever you are seated) then they should not be compensated to the same extent (basically for their own carelessness as a similar event could have happened from turbulence).
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ChazPilot
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 2:32 am

Quoting EPA001 (Reply 11):

I third this motion. Everyone should always have their seatbelt on whenever seated. You can leave it loose during flight so that it's there but unnoticable, so no arguements about comfort. This is why companys eventually resort to slaving themselves to the "health and safety culture (aka The Nanny State), and in the case of airlines I won't be surprised if they just resort to leaving the seat belt sign on all the time and make pax raise their hand to get permission to use the lav!
 
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sunrisevalley
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 2:49 am

Quoting jollo (Reply 39):
Airbus could have offered spontaneously meaningful compensations to injured passengers, along with fixing the defect in the redundancy logic. Might or might not have saved them a few mils, but they have missed an opportunity on the PR side (callous big bad company that will never admit being wrong if it hits one $ of bottom line and has to be dragged in court to get fair compensations vs. self-assured, ethical company that leaves no stone unturned in the quest of safety, including admitting a good faith mistake and taking the lumps for it)

The reality is that Airbus ( and any other manufacturer) has product liability insurance and it is the carrier of that insurance who dictates who says what and when. In exchange for this coverage all companies who have such coverage are required to say nothing and do nothing in respect of any claims. The insurance company handles everything. While it is the manufacturers name that is bandied in the press everything is under control of the insurer.
 
fiscal
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 3:36 am

Quoting BoeingVista (Reply 44):
No, you missed the safety briefing. The safety briefing contains important information that should be followed to ensure your safety and on QF part of this briefing is keep your seat belts fastened at all times while seated.

In fact I think that the wording goes something like "Qantas REQUIRES you to keep your seat belt fastened whilst you are seated..."
 
AngMoh
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 3:45 am

Quoting Grid (Reply 17):
As for the technical fault, how did that fault occur? Was it not because of negligence by the manufacturer?

Negligence is either knowingly not doing enough to prevent a problem or knowing there is a problem and not doing enough to address it. Neither is the case here.

Every product with significant amounts of software has problems/faults/defects - you can call it anything you want. But that does not mean it is poor quality. Most of this is top quality - embedded safety critical software has a quality which is many magnitudes higher than anything running on your PC. Most defects are never found and the product works fine until something which was never foreseen triggered it. In some cases you don't fix a problem because the risk of fixing it could be higher than the risk of leaving it in place. Changing a single line of code can takes months due to all the re-testing required.

When I worked in automotive, the airbag group was sued in the US on average 3 times per week. Every drunk who crashed the car at high speed would sue. Most cases were settled for the simple reason that settling costs less than fighting it in court. Lawyers know that and count on that. From the cases which went to court, none of them was lost and resulted in a pay-out, but it costs the company a ton of money in legal fees. Outside of the US this does not work, because if you sue and lose, you pay the legal costs of both parties so frivolous law suits will bankrupt you. Personally, I see this as legalized mafia-like extortion.

One more thing: I worked with a software quality assurance manager (he was french) whose previous job was to do quality assurance for Boeing. When I asked if he liked his 77W flight (brand new at that time), he said that he preferred Airbus. Surprised I asked why. The answer was "with Boeing I know what is wrong but with Airbus I don't know what is wrong so I worry less. But they have probably the same amount of issues...".
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Grid
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 4:24 am

Quoting AngMoh (Reply 56):
Quoting Grid (Reply 17):
As for the technical fault, how did that fault occur? Was it not because of negligence by the manufacturer?

Negligence is either knowingly not doing enough to prevent a problem or knowing there is a problem and not doing enough to address it. Neither is the case here.

That's not the definition of negligence used in the U.S. which is where the suit was filed.
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N1120A
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 4:57 am

Quoting cmf (Reply 34):
Which is a good example of why most of the world consider US civil suits a joke.
Quoting Grid (Reply 20):
A Texas jury just awarded a plaintiff $150 billion .. one person.

Yeah, don't bring things up out of context. A 12 year old boy was burned alive by an out of control kid who had sexually assaulted another. No one is ever going to collect that judgment.

Quoting SSTeve (Reply 40):
The US concept that pisses me off more is that cases like this never see adjudication in court because they carry such a spectre of high court costs and ridiculous judgements, so it's settled out of court by a bunch of lawyers playing at money-maximizing game theory that has nothing to do with "justice."

You clearly have no idea what you are talking about. Are you a lawyer? I don't think so.

Quoting Grid (Reply 57):
That's not the definition of negligence used in the U.S. which is where the suit was filed.

That isn't the definition of negligence anywhere. This isn't exactly a concept that was created here. Indeed, the US made negligence HARDER to prove when compared to the common law standard.
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cmf
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 5:16 am

Quoting N1120A (Reply 58):
Yeah, don't bring things up out of context. A 12 year old boy was burned alive by an out of control kid who had sexually assaulted another. No one is ever going to collect that judgment.

What was done is horrible. But a judgement at 150 billion is not reasonable by any standard. If it going to be collected or not is a different issue.
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ATCtower
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 5:21 am

While I digress, this was likely uncomfortable for the passengers, I have given restrictions to aircraft to maintain 4000'/min climbs or descents (150'/2sec) and have not been sued for doing so by over zealous crooks demanding money for ridiculous monetary gain.

This is far less than some of the 'severe' or 'extreme' turbulence reports we receive in the center as pireps and to expect an airline to be responsible for turbulence is like suing Paramount because your kid watches an R rated movie.

Buck up and quit suing over mindless BS. If you have nightmares because your plane was bumped around, ride AMTRAK.

My $.02
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jollo
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 7:39 am

Quoting sunrisevalley (Reply 54):
The reality is that Airbus ( and any other manufacturer) has product liability insurance and it is the carrier of that insurance who dictates who says what and when. In exchange for this coverage all companies who have such coverage are required to say nothing and do nothing in respect of any claims.

Well, insurance companies get paid fees "in exchange" for liability coverage. "Taking the lumps" in this case could include signing an insurance contract that gives the aircraft manufacturer the right to manage its own PR... In the case of Airbus, public perception on aircraft safety is worth many more millions than fair compensations in (very rare) cases like this one.
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 8:55 pm

Don't know why my post was deleted, but I guess I must say this again:

Subsequent remedial measures taken by Airbus and NG is not admitting fault and shouldn't be used as such. Them fixing the problem is acknowledging that there was a problem and they instituted a fix, contrary to the posters on this forum that blindly say the A330 is perfect or blame the passengers for getting hurt. They found a potential problem; unfortunately some people got hurt, but now Airbus and NG can make an adjustment and enhance safety. Everyone wins.

And let's remind folks that a court had more facts than any of us and decided compensation should be paid, so it wasn't just "a little turbulence". To say so is plainly idiotic and nonsensical. If there was no problem or fault no money would be paid, so this isn't a US culture problem. It is a carrier and manufacturer problem and they had to pay. Simple.
 
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ssteve
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 9:37 pm

Quoting neutronstar73 (Reply 62):
And let's remind folks that a court had more facts than any of us and decided compensation should be paid,

Uh, no court involved. Bunch of lawyers got together and batted around numbers until they settled.
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 11:09 pm

Quoting SSTeve (Reply 63):

thanks for the clarification!
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 11:23 pm

Quoting neutronstar73 (Reply 62):
And let's remind folks that a court had more facts than any of us and decided compensation should be paid, so it wasn't just "a little turbulence". To say so is plainly idiotic and nonsensical. If there was no problem or fault no money would be paid, so this isn't a US culture problem. It is a carrier and manufacturer problem and they had to pay. Simple.

To say that a court awarded anybody any money in this case is idiotic, nonsensical and just plan wrong. Also to say that no problem = no money paid is laughable; don't you ever read the papers? Companies settle a myriad of nuisance lawsuits because its cheaper than fighting them.

Please try to read the thread or use other sources to get you facts right; by your own admission this is the second time that you have posted incorrect information on this thread.
BV
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 11:50 pm

Quoting BoeingVista (Reply 65):

I was involved in several cases where companies had to pay, and no, I don't think you know the process. Perhaps going to law school, getting a degree and being buried under endless paper, motions, responses, and ADR would help you understand the process. Trust me. I know.

Obviously you don't know the process, or else you wouldn't post that.
 
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skygirl1990
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Thu Dec 22, 2011 11:58 pm

Quoting BoeingVista (Reply 10):
Oh the humanity!.....

It was the equivalent of bad turbulence and the PAX Should have been strapped in period, I fly QF we are all told this in the briefing. Thats the reality of this but the way of the world is tabloid headlines "OMG we nearly died and I prayed to god for one more day of life... and he answered!" and sue, sue, sue.

If you are in a car not wearing your seat belt when your partner jams on the brakes and you bang your head do you get to sue Ford? I doubt it. (Toyota maybe...)

Exactly. I have little sympathy for people who take off their seatbelts (while sitting) mid-flight. I have spent many years flying and 'after a meal service' even then I just loosen of my seat belt a little bit. Your analogy of the driving in a ford is spot on. *sigh*

I'm just also going to put it out there that in out pre-flight breifings for the pax (yes its GA but flying is flying :p ) we tell the pax to keep their belts fastened for the ENTIRE duration of the flight. And y'know what? I have never heard of anyone complaining about this.

To be honest I think airline pax should stop whining, so they can make a bit of extra cash out of it. And before anyone tells me about all the psychological trauma etc.... that doesn't make them anymore special than the people involved in said hypothetical car accident, who may well also have nightmares etc for years to come.

STOP. WHINING. And use your brains for once.
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 12:28 am

Quoting neutronstar73 (Reply 66):
I was involved in several cases where companies had to pay, and no, I don't think you know the process. Perhaps going to law school, getting a degree and being buried under endless paper, motions, responses, and ADR would help you understand the process. Trust me. I know.

Obviously you don't know the process, or else you wouldn't post that.

LOL, you were clearly wrong about the process here in asserting that a court had awarded a settlement, you admit so in post 64.

Please try to get the facts before commenting.

[Edited 2011-12-22 16:29:33]
BV
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 12:37 am

Quoting skygirl1990 (Reply 67):
I'm just also going to put it out there that in out pre-flight breifings for the pax (yes its GA but flying is flying :p ) we tell the pax to keep their belts fastened for the ENTIRE duration of the flight. And y'know what? I have never heard of anyone complaining about this.

Its been a while since I flew NZ, but I seem to remember words in their safety briefing to the effect of you are required by law to follow the directions of cabin crew..? Not trying to open another front here but technically that would make not wearing a seat belt when seated if directed to do so an offense.
BV
 
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skygirl1990
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 12:55 am

Quoting BoeingVista (Reply 69):
but technically that would make not wearing a seat belt when seated if directed to do so an offense.

Which it would be
 
liftsifter
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 1:44 pm

So wait. Passengers are being rewarded for not following international law about seat belt rules? Cool.
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CXB77L
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 3:10 pm

Quoting Autothrust (Reply 6):
??? Why has to pay Airbus? If someone should pay then Northrop.

Last time I checked, the aircraft involved in this incident was built by Airbus ...

Quoting BoeingVista (Reply 10):
It was the equivalent of bad turbulence and the PAX Should have been strapped in period, I fly QF we are all told this in the briefing. Thats the reality of this but the way of the world is tabloid headlines "OMG we nearly died and I prayed to god for one more day of life... and he answered!" and sue, sue, sue.

If you are in a car not wearing your seat belt when your partner jams on the brakes and you bang your head do you get to sue Ford? I doubt it. (Toyota maybe...)

But this isn't just turbulence. To use your analogy ... if you're in your car and not wearing a seatbelt, then due to a design defect the steering column breaks off and you are sent flying through the windscreen, can you sue the car manufacturer? Absolutely. However, the manufacturer may argue that you were contributorily negligent for not wearing a seatbelt. It does not absolve the manufacturer of all responsibility over the injury which was caused by a design defect.

Quoting Autothrust (Reply 15):
Unlike the 777 where the software is on all computers the same.

How is that relevant to the thread at hand?  
Quoting Grid (Reply 17):
Turbulence (caused by nature) is not the same as a man-made object malfunctioning, which results in the injury of dozens of people.

  

If this was caused by people not wearing their seatbelts in turbulence, or even in clear air turbulence after they have been warned to keep their seatbelts fastened, I would agree. But because this is not caused by a natural phenomenum, this is entirely a different situation.

Quoting RoseFlyer (Reply 22):
It has been established in the past that Airbus & Boeing have to pay the airlines compensation for design defects.

  

Quoting cam747 (Reply 49):
if people are injured due to normal turbulence and you don't have your belt on and get injured, then you shouldn't go suing. Its part of the risk of flying, and you get warned to keep your belt on. But that IS NOT what happened in this instance.

  

Quoting BoeingVista (Reply 50):
Sorry but the principle is the same, you have a duty to take reasonable steps to ensure your safety, i.e buckle up, if negligence cannot be proved and you would have remained unharmed if you had taken these reasonable steps you should not have the right to sue.

No it's not the same. Injury that is caused by a design defect is the fault of the company that is responsible for the design of the product that failed. At best it could be argued that the passengers who were seated but did not wear their seat belts were contributorily negligent. It cannot be argued that the passengers themselves were solely to blame, because if the design defect had not happened on that particular flight, those passengers who, despite not wearing a seatbelt, would not have been injured.

Quoting AngMoh (Reply 56):
Negligence is either knowingly not doing enough to prevent a problem or knowing there is a problem and not doing enough to address it.

  

Negligence is also involves a "reasonable person" test. Things that a "reasonable person in your position and experience ought to have known" could come back to haunt you. It's not just a matter of whether you knew of a risk or not, it's also whether a reasonble person with your knowledge and experience would have known of the risk.
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loalq
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 3:33 pm

Hmmm so it seems that in the end it actually pays off not to wear seatbelts...even though they have all gone through the same scary situation, the reckless ones -- those that elect to fly without their seatbelts (save from the occasional ones that were making their way to the toilets) -- will end up being awarded more compensation than the others...nonsense...


"Mrs Mitchell was seated in business class with a friend, and was not wearing her seatbelt as it was just after the meal service."

The connection -- that sounds almost as a rightful justificative -- made between "not wearing seatbelt" and "as it was just after the meal service" is beyond my understanding...
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neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 5:38 pm

Quoting BoeingVista (Reply 68):

I admit I was incorrect about the forum (court or out of court settlement) but you were completely lost on the law, its application, its effect, the results of such situation, the remedy, and the gravity of the event (turbulence vs. man-made effects) and that is completely evident.

But let me remind you that even though this was an out-of court settlement, you do understand that this action was IN COURT before Airbus and NG settled, right? Read up on the article to see where I pulled that out,

So that we are all square.
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 23, 2011 11:40 pm

Quoting neutronstar73 (Reply 74):

So that we are all square.

Nope, you assert a whole bunch of things that are not true and expect them to stand simply because you say so... You could indeed be a lawyer...

I am certainly aware of the process of gaining compensation from an injury and have beaten more than a few "lawyers" along the way, I remain undefeated despite having been told by talking heads from the other side that I have no case on more than one occasion so   

Quoting CXB77L (Reply 72):
No it's not the same. Injury that is caused by a design defect is the fault of the company that is responsible for the design of the product that failed.

You should look up the meaning of design defect, it certainly was not a design defect. If you are talking negligence instead then you would have to prove that Airbus / Northrop did not take reasonable care while designing and testing the unit or knew about defects in the unit.

Quoting CXB77L (Reply 72):
At best it could be argued that the passengers who were seated but did not wear their seat belts were contributorily negligent.

At worst it could be argued that those who were seated but wearing their seat belts were actually committing an offense by not following the direction of aircrews as they obliged to under law. That you should follow the directions of aircrew and have your seat belt fastened when seated is also in Qantas term of carriage (11.1)

And what about the belted passengers who were traumatised by being hit by the unbelted idiots flying around the cabin? Why no sympathy for them. If I was one of them I'd be tempted to file a suit against the unbuckled ones for assault and negligence and relieve them of their ill gotten gains that they were were paid just for being stupid.
BV
 
cmf
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 12:18 am

Quoting BoeingVista (Reply 75):
At worst it could be argued that those who were seated but wearing their seat belts were actually committing an offense by not following the direction of aircrews as they obliged to under law.

I think there is a not missing


or this doesn't make sense

Quoting BoeingVista (Reply 75):
And what about the belted passengers who were traumatised by being hit by the unbelted idiots flying around the cabin? Why no sympathy for them. If I was one of them I'd be tempted to file a suit against the unbuckled ones for assault and negligence

  
Don’t repeat earlier generations mistakes. Learn history for a better future.
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 2:29 am

Quoting cmf (Reply 76):
I think there is a not missing

Yep, missing a "not".

It should read 'seated and not wearing their seat belts were actually committing an offense by not following the direction of aircrews as they are obliged to under law..'
BV
 
CXB77L
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 3:03 am

Quoting BoeingVista (Reply 75):
You should look up the meaning of design defect, it certainly was not a design defect. If you are talking negligence instead then you would have to prove that Airbus / Northrop did not take reasonable care while designing and testing the unit or knew about defects in the unit.

Every aircraft have certain design issues. That's what service bulletins and airworthiness directives are for - correcting those defects when they are found.

And as I mentioned earlier, it's not necessary to prove that Airbus / Northrop knew of issues but did not take reasonable care, only that a reasonable person in their position knew or ought to have known of these issues.

Quoting BoeingVista (Reply 75):
At worst it could be argued that those who were seated but wearing their seat belts were actually committing an offense by not following the direction of aircrews as they obliged to under law. That you should follow the directions of aircrew and have your seat belt fastened when seated is also in Qantas term of carriage (11.1)

True. But that does not absolve the company of responsibility for passenger's injuries. It could be contributory negligence, though. It is because of the failure of a system on board the aircraft that caused the aircraft to dive unexpectedly and rapidly, which caused the injuries in the cabin. The chain of causation can be traced back directly to the failure of an on board system designed by Northrop, on an Airbus built aircraft.

Quoting BoeingVista (Reply 75):
And what about the belted passengers who were traumatised by being hit by the unbelted idiots flying around the cabin? Why no sympathy for them. If I was one of them I'd be tempted to file a suit against the unbuckled ones for assault and negligence and relieve them of their ill gotten gains that they were were paid just for being stupid.

Does this apply to all unbelted passengers, including those who were not in their seats at the time? Or the crew? Will you sue them for assault as well if your injury was caused by someone walking around the cabin?

Incidentally, assault is a criminal offence. Tortious assault is not the same as criminal assault. The term you're looking for is battery.
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wn700driver
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 5:12 am

Quoting something (Reply 5):

Second of all, how about a little less praying and a little more seat belt wearing?

Seriously. Melodrama much?

Quoting EPA001 (Reply 11):
Of course the passengers had a very bad experience, but I do not think BoeingVista tried to downplay the incident.

Hopefully the next Judge will...

Quote:

The ATSB found it was the only case of the flight computer going haywire in 28 million flight hours of the Airbus A330 or A340.

Read more: http://www.watoday.com.au/travel/tra...aMpG9
Quoting AngMoh (Reply 56):

Every product with significant amounts of software has problems/faults/defects - you can call it anything you want. But that does not mean it is poor quality. Most of this is top quality - embedded safety critical software has a quality which is many magnitudes higher than anything running on your PC.

Well, according to the article, it went "Haywire." Haywire, that was the problem...
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 5:16 am

Quoting CXB77L (Reply 78):
And as I mentioned earlier, it's not necessary to prove that Airbus / Northrop knew of issues but did not take reasonable care, only that a reasonable person in their position knew or ought to have known of these issues.

And you are arguing that a reasonable person ought to have known of an error that might happen 3 times for 2 seconds over 28 million hours (thats 3196 years) of operation?

Quoting CXB77L (Reply 78):
Incidentally, assault is a criminal offence. Tortious assault is not the same as criminal assault. The term you're looking for is battery.

Haha no, the term I used is correct in law read the NSW crimes act if you don't believe me, you try to parse it if you wish. This could easily be defined as assault. But I do know difference between suing for damages under a tort and criminal actions.


To convict you of a common assault charge, the police must prove each of the following matters beyond a reasonable doubt:

You struck, touched or applied force, or threatened another person with immediate violence.
The act was done intentionally or recklessly. *
Without consent.
Without lawful excuse.

* Recklessness, is defined as careless to the point of being heedless of the consequences; one of the obvious consequences of PAX being unbuckled while seated is of them departing their seat and flying around the cabin where they then begin assaulting seated passengers by striking them with their bodies.... the untethered PAX displayed willful blindness (another legal definition of reckless) by ignoring the clear directions of the cabin crew to be belted when seated.

Clearly if they have a valid reason to be unbuckled (working cabin crew, going to the toilet) the recklessness argument would not apply.

[Edited 2011-12-23 21:19:18]
BV
 
roseflyer
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 5:46 am

Quoting BoeingVista (Reply 75):

You should look up the meaning of design defect, it certainly was not a design defect. If you are talking negligence instead then you would have to prove that Airbus / Northrop did not take reasonable care while designing and testing the unit or knew about defects in the unit.

I think he does know the correct definition since he is describing it relatively accurately as it relates to aviation and airplane certification. A design defect is a a design problem that results in a failure or less than expected reliability, which typically would not occur if the design was done to typical standards by a competent designer.

Quoting BoeingVista (Reply 80):
Quoting CXB77L (Reply 78):
And as I mentioned earlier, it's not necessary to prove that Airbus / Northrop knew of issues but did not take reasonable care, only that a reasonable person in their position knew or ought to have known of these issues.

And you are arguing that a reasonable person ought to have known of an error that might happen 3 times for 2 seconds over 28 million hours (thats 3196 years) of operation?

Yes. 10^-7 is not adequate protection for a single failure that can cause upset to flight and impact the ability of continued flight and a safe landing without exceptional pilot skill. It needs to be 10^-9 failure probability with indication or 10^-12 passive (without indication), otherwise there needs to be redundancy, which in the case of the ADIRU there is redundancy. The fact that there was a loophole in the logic that allowed a single failure at a specific frequency to cause the autopilot disengage and the airplane to pitch the airplane down uncommanded should have been caught during typical control logic design.

It's not negligence, but a design error that was fixed. Design improvement Service Bulletins do not come with Emergency Airworthiness Directives. Design Defect Service Bulletins for all practical purpose are the only ones with ADs.

[Edited 2011-12-23 21:55:18]
If you have never designed an airplane part before, let the real designers do the work!
 
CXB77L
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 4:06 pm

Quoting BoeingVista (Reply 80):
But I do know difference between suing for damages under a tort and criminal actions.

You do not file a suit for damages in a criminal action. You're either filing a suit for damages under tort, in which case the Crimes Act does not apply, or get the State to prosecute the offender for a crime under the Crimes Act - in which case, you get no damages but the offender may be punished by the State.

So which is it? First, you mention that you'd be tempted to file a suit against unbuckled passengers who do not have a reason not to leave their seatbelt unbuckled, and then you say it's criminal assault. Yes, there are certain circumstances where an action may be tortious and criminal at the same time, but if you initiate a tortious action, you cannot rely on the definition of criminal assault as evidence that they have committed a tortious act. If you can convince the State to prosecute as a criminal matter, you cannot recover damages, and the standard of proof is higher.
Boeing 777 fanboy
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 8:06 pm

Quoting BoeingVista (Reply 80):

Wrong.

You can't sue for damages in a criminal action. A criminal action is when you commit a crime against a person, but the offense is an offense against society..ie. the state if the offended person, not the person who was harmed.

You only get damages in a civil suit...ie. you vs the person who harmed you. Even if the person you sue wasn't found guilty of a crime, a tort claim against them may still stand.


You said this:
* Recklessness, is defined as careless to the point of being heedless of the consequences; one of the obvious consequences of PAX being unbuckled while seated is of them departing their seat and flying around the cabin where they then begin assaulting seated passengers by striking them with their bodies.... the untethered PAX displayed willful blindness (another legal definition of reckless) by ignoring the clear directions of the cabin crew to be belted when seated.

You are completely wrong on this. This is not assault and there won't be anyway a prosecutor could prove it. Being unbuckled while in the seat of an aircraft with the seatbelt sign is off is nothing short of what a "reasonable person" would do under the circumstances. The aircraft suddenly hurling you about the cabin and you happen to hit someone would be an unintentional battery. This isn't "willful blindness", plain and simple.

Recklessness wouldn't stand either. Good luck with that.
 
Daysleeper
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 8:53 pm

Quoting neutronstar73 (Reply 83):
Wrong.

You can't sue for damages in a criminal action. A criminal action is when you commit a crime against a person, but the offense is an offense against society..ie. the state if the offended person, not the person who was harmed.

You only get damages in a civil suit...ie. you vs the person who harmed you. Even if the person you sue wasn't found guilty of a crime, a tort claim against them may still stand.

As BoeingVista states, Wouldn't they be able to file a seperate cival suit?

Quoting BoeingVista (Reply 75):
If I was one of them I'd be tempted to file a suit against the unbuckled ones for assault and negligence and relieve them of their ill gotten gains that they were were paid just for being stupid
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sat Dec 24, 2011 11:54 pm

Quoting Daysleeper (Reply 84):

You could, for the injuries you may have suffered, but (this is my ballpark guess) I don't think you would get too much traction for it. A court in a civil suit would likely say no standing or basis for assault, as there was no intent to cause bodily harm, and negligence may get you somewhere, but the "reasonable person standard" may put the brakes on that one, because although you are advised to keep your seatbelt buckled while seated, is it reasonable that a person seated in a airline seat with the seatbelt sign off would be unbuckled? I would posit that it would be reasonable, hence no action.

Your best bet would be what these plaintiffs did: go after the big money (Airbus and NG).
 
Daysleeper
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sun Dec 25, 2011 12:22 am

Quoting neutronstar73 (Reply 85):

I agree in that I don't think it would be worth their while, I was more confused by your post stating he was "wrong" when in fact he wasn't.
 
neutronstar73
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sun Dec 25, 2011 12:49 am

Quoting Daysleeper (Reply 86):

He is wrong on the suing for "criminal assault". You can sue in a civil suit for a tort claim, not a criminal claim.
 
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BoeingVista
Posts: 2060
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sun Dec 25, 2011 12:54 am

Quoting neutronstar73 (Reply 83):
You can't sue for damages in a criminal action. A criminal action is when you commit a crime against a person, but the offense is an offense against society..ie. the state if the offended person, not the person who was harmed.

I know this... I didn't say that you could. You would use the criminal conviction as a basis for filing a civil suit, you claim to be a lawyer but you seem to be totally unaware of the way these things work.

Quoting neutronstar73 (Reply 83):
You are completely wrong on this. This is not assault and there won't be anyway a prosecutor could prove it. Being unbuckled while in the seat of an aircraft with the seat belt sign is off is nothing short of what a "reasonable person" would do under the circumstances. The aircraft suddenly hurling you about the cabin and you happen to hit someone would be an unintentional battery. This isn't "willful blindness", plain and simple.

This may come as a shock to you but the whole world does not use the American 'justice' system, In Australia we have our own laws and interpretations and the quotes posted came from those sources of law.

A reasonable person would be expected to follow the directions of the air stewards; in the safety briefing (which a reasonable person would be expected to listen to) they are told that they are required to be belted when seated.

A reasonable person would also be expected to read and follow the airlines terms of carriage; in fact when they book they tick a box to say that they have read and agreed with these terms. How could you not expect a reasonable person to follow safety directions that they have freely agreed to follow?

It hasn't happened yet but the day when someone is prosecuted for being unbuckled is probably fast approaching, if a belted passenger had been killed by an untethered flying idiot, which was entirely possible, we may have seen some action. I would like to see a test prosecution happen if for no other reason to stop your silly line of argument that is also held by many others; safety whether in flight or in any other environment is ALL of our responsibility and we should all work together to ensure our safety and the safety of others.

I'm sure that being an American you would call this a 'freedom' issues, you have the right to be unbuckled; well what about my right not to be hit by an unbuckled passenger?
BV
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Sun Dec 25, 2011 1:26 am

Quoting RoseFlyer (Reply 81):

You do not file a suit for damages in a criminal action. You're either filing a suit for damages under tort, in which case the Crimes Act does not apply, or get the State to prosecute the offender for a crime under the Crimes Act - in which case, you get no damages but the offender may be punished by the State.

You would use the criminal prosecution to establish the offence, even if the criminal prosecution was not successful a damages claim may still succeed as the burden of proof in a civil case is less. As I say in the post above if somebody had been killed which was possible there may have been a prosecution

Quoting CXB77L (Reply 82):
So which is it? First, you mention that you'd be tempted to file a suit against unbuckled passengers who do not have a reason not to leave their seat belt unbuckled, and then you say it's criminal assault. Yes, there are certain circumstances where an action may be tortious and criminal at the same time, but if you initiate a tortious action, you cannot rely on the definition of criminal assault as evidence that they have committed a tortious act. If you can convince the State to prosecute as a criminal matter, you cannot recover damages, and the standard of proof is higher.

See above.

You would use duty of care in the civil case I imagine that there have been a many cases where car passengers have been hit by unseatbelted passengers in an accident and successfully sued. Worksafe could also procecute this.

Thinking about this as an OHS issue the law also places a duty of care on Qantas to ensure the safety of its passenger in flight and on the ground so in not insisting that seated PAX are belted QF is failing in its OHS obligations. Anybody [who has knowledge of an unsafe workplace] can ask Worksafe to investigate a workplace that they deem unsafe I might just do that to see what the result is. Worksafe has the power to bring prosecutions or issue PIN's (provisional improvement notices) to oblige an organisation to rectify the identified safety issues
BV
 
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BoeingVista
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RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 30, 2011 5:29 am

Quoting neutronstar73 (Reply 85):
A court in a civil suit would likely say no standing or basis for assault, as there was no intent to cause bodily harm, and negligence may get you somewhere, but the "reasonable person standard" may put the brakes on that one

Courts continue to define 'negligence' and 'reasonably foreseeable'

Quote:
Train victim can be sued over flying body parts

A teenager killed by a train in 2008 can be held responsible for the injuries his body parts caused a woman, an American court has ruled.

Hiroyuki Joho, 18, was hurrying to catch a train in the pouring rain with an umbrella over his head when he was struck by a train travelling at more than 70mph (112kmh). Witnesses said he was smiling as the train hit him.
http://www.stuff.co.nz/world/america...can-be-sued-over-flying-body-parts
BV
 
ikramerica
Posts: 15100
Joined: Mon May 23, 2005 9:33 am

RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 30, 2011 6:36 pm

Quoting Sandgroper (Reply 8):
If you read the article further down the highest individual is expecting several $million at least in one payout!

Brain injury. Lifetime of care. Very expensive. Read the article...

Quoting BoeingVista (Reply 10):
Oh the humanity!.....

It was the equivalent of bad turbulence and the PAX Should have been strapped in period, I fly QF we are all told this in the briefing. Thats the reality of this but the way of the world is tabloid headlines "OMG we nearly died and I prayed to god for one more day of life... and he answered!" and sue, sue, sue.

If it were simply a scare, sure. But many got injured, a few severely. That means even those who didn't get hurt can't simply brush it off. If you've been in a situation where you escaped injury while others are severely injured, you are a candidate for shell shock/ptsd.

Quoting liftsifter (Reply 71):
Passengers are being rewarded

Rewarded or awarded. I doubt the brain injury person thinks he/she is being rewarded for anything, assuming they can still think strait. Or the neck injury people, as they spend their whole life with painful twinges to remind them of this accident that was 100% their fault (according to some here), I doubt they feel rewarded for anything.
Of all the things to worry about... the Wookie has no pants.
 
Ruscoe
Posts: 1747
Joined: Sun Aug 22, 1999 5:41 pm

RE: Airbus To Pay Out $mills In QF A330 Horror Flight

Fri Dec 30, 2011 9:53 pm

On the ABC (Oz) news last night it was stated the most seriously injured passengers are not going to accept the pay out figure and are starting a separate claim for damages against Airbus and the giant American technology firm.

Also I am the first to admit I am not a legal person, but isn't the Criminal/Civil proof requirement the fundamental reason why you can be found innocent in a criminal trial but guilty in a civil one.

The statements I hear most most commonly are that in Criminal matters the standard of proof is beyond reasonable doubt, and in Civil cases, on the balance of probabilities.

If this is in fact the case, then it opens up a whole new raft of arguments, which can be used by the claimants as to why they were not wearing their seat belts.

There is also a statemnt which circulates in the community here, and that is that the guilty party is the ; one with the best insurance.

Ruscoe

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