PFA's responsibility for DIY planes

A recent Appeal Court ruling has increased the responsibility on the PFA to regulate home-built aeroplanes, writes Roger Pearson.

An estimated 35,000 people in the UK hold private pilots' licences. Expense is a factor that drives many away from this pursuit, but for those with technical ability, increasingly, the home-built aeroplane has become a cost-cutting option.

The monitoring of light aircraft, including kit-built craft, is carried out by the Popular Flying Association (PFA) under authorisation from the Civil Aviation Authority.

Until now, the PFA was thought not to be accountable to the public when things went wrong. But a recent Court of Appeal ruling has made it clear that the PFA will be held to account if an aircraft which has been checked and passed by one of its inspectors fails and causes injury.

Now, as a result, PFA members may face higher charges and insurance premiums.

Perrett v Collins, Usherwood and the PFA involves a claim by a passenger in a kit-built aircraft which crashed during its maiden flight. It had been constructed by the pilot himself and was inspected by the PFA during construction.

The court was asked to decide whether the PFA and its inspector owed a duty of care to the passenger travelling in the plane.

Judge Hallgarten QC at the London County Court found that such a duty of care was owed but the PFA appealed and the matter came before Lords Justices Hobhouse, Thomas and Buxton.

The injured man claimed that the crash was the result of the "Kit Fox" plane being fitted with a propeller that did not match the power absorption characteristics of the engine. Lord Justice Hobhouse said that this claim was still a matter of dispute as the case still has to be fully argued in court.

But he and the other judges were unanimous in their view that the PFA and its inspector were not entitled to side-step the claim by arguing they owed no legal duty of care to the injured man. Lord Justice Buxton said that he considered the "balance of justice" came down on the side of imposing a duty on them.

"The public would expect to be protected from injury by careful operation of the regulatory system and to be compensated if injured by its negligent operation," he said.

The PFA and its inspector had tried to argue that considerations found in commercial and shipping cases were applicable to this case and established that no duty of care was owed. But Jacqueline Shicluna, a partner at Stephens & Son in Chatham, says the Appeal Court's decision is one which should be seen as reinforcing basic legal principles which have been eroded by such arguments over the years. It is, she says, a victory for common sense.

"The case develops the criteria of proximity, in particular, directness and what is meant by fair, just and reasonable." She adds that if commercial and shipping cases, based upon claims for economic loss, were to be followed in personal injury cases they would limit the circumstances in which an innocent victim might recover damages.

Shicluna considers that the appeal judges have sent out a message that commercial and shipping considerations do not necessarily apply in personal injury cases. The basic principle of tortious liability for negligent conduct causing foreseeable injury to others has been restated in the clearest terms, she says.