Vicarious Liability

Can I be held responsible for someone else’s actions? by Adam Shehata.

Yes, you can… along with your CFI and the flight school owner. What many flight instructors do not realize is that the flight instructor can be held responsible for the student’s actions or inactions, even if they are not onboard during the flight. In the same vein, the flight instructor’s employer or Chief Flight Instructor (CFI) may be held liable for instructor or student actions. Both of these are examples of what is known as vicarious liability.

While vicarious liability has a strict legal definition, breaking down the term will help illustrate its meaning; vicarious meaning ‘through someone else’ and liability meaning to ‘be held responsible for one’s actions or behaviour.’ In short, vicarious liability may occur anytime someone’s actions cause damage to person or property, and a third-party had influence over the activities of the violator. The principles of vicarious liability are established through common law, and TC enforcement action is detailed in Section 8.4 of the Aeronautics Act.

When a pilot operates an aircraft under a Student Pilot Permit (SPP), one of the conditions of the permit clearly states that the student is operating under the direction of a flight instructor. Should the student cause damage to person or property and it can be shown that the flight instructor was negligent in performing their duties; the flight instructor can be held liable for the damage. A common example of such flight instructor negligence occurs when the flight instructor fails to properly brief their student prior to departure on a solo flight or fails to adequately cover a required pre-solo exercise.

Similarly, the flight instructor’s employer can be held responsible for the actions of the instructor, if it can be shown that the employer failed in their duty to oversee the instructor. Most commonly, this is the result of inadequate training, poor instructor supervision, or incomplete documentation. In some cases, the operator may condone or encourage actions that contradict regulations or the Flight Instructor Guide. When this happens and the individual or corporation has power or influence over the other party (student, instructor, etc), they can be found liable for the other’s actions.

It must be shown that any injury/damage resulted from a failure of the flight instructor, management, or operator, to take due care. As a result, the best way to avoid a situation of vicarious liability is to:

1. Be familiar with your responsibilities as a flight instructor, CFI, or employer;

2. Brief your student, instructor, or employee; and

3. Document, document, document!

If you can provide documentation proving that you have carried out your duties consistently and in accordance with proper practices, it will be very hard to prove that you failed in those duties. In particular, the Pilot Training Record (PTR) is a great tool for documenting discussions and briefings, in addition to the comments from flights. Should a NOTAM change the operations at your airport and you have briefed your student as to its contents, feel free to put this in the PTR even if no flight occurred alongside it.

Finally, an employee’s file can and should be used in a similar fashion to a student’s PTR. Having a binder or digital record which shows the training a person has received, including letters of authorization, acknowledgement of training manual procedures, elementary maintenance training, and so on, is a good way to demonstrate clear instruction and guidance to your employees; and helps protect you from vicarious liability should an incident occur.

As usual, a disclaimer must apply here: this article is not intended as legal advice, and is for general information purposes only. Additional information can be found in Aviation Safety Letter 1-2011.

This article was originally published in Aviation Solutions company newsletter in 2012. Adam Shehata is an ATP Class 1 flight instructor, and since writing this article has been called to the bar as a lawyer in Ontario. He can be reached at adam@shehata.ca.