First I would point to the fact that my post above was addressed to Darth Vaders Love-child and, as yet, there has been no response made to the many relevant questions I asked. I am most concerned in particular to receive a reply to my final question seeking the name of his ‘scheduled jet operator’ so that I can ensure I do not board an aircraft flown by pilots recruited through Darth’s dubious process of selection.
I am a little disturbed by the above posts by Devils Advocate ("the Devil"). I note that the Devil points to my own stated occupation, yet does not wish to reveal his/hers. What may we draw from that? The Devil speaks with some pretence of authority in matters of aviation:
Uhm, most Chief Pilots/Flight Ops Directors (Nb. the post holders to these positions have to be CAA approved, i.e. they must have a proven track record in the aviation business - aka. a huge responsibility);
[T]he normal course of events is for an application, followed by an interview, followed by a simulator assessment;
[T]his only came to light at the post-accident board of enquiry. E.g. (and I'm not sure if this has indeed come to light yet, but) after the recent Gulf Air accident I've spoken to pilots … ;
Imho the airline pilots job is a lot more than just about being … ; and
[A]viation (like law) has many people lurking on the periphery who are just not suited to the job … .
as well as of law:
[S]urely it ultimately shows 'due diligence' for any potential employer to delve further … ;
[A] poor rapport with their supporting council / solicitor with regard to the facts, the law, or mitigating circumstances) … ;
[T]here's such a thing as 'civil liberty' there is also (or at least there should be) the 'being bloody stupid' act … ; and
[A]viation (like law) has many people lurking on the periphery who are just not suited to the job.
Thus it seems the Devil is a pilot, or a lawyer, or perhaps both. Let me immediately say that the Devil is certainly not a lawyer, for there is no authority in anything said as to law, including the attempt to define a tort. For those interested, including my inquisitive friend, Bugg Smasher, a tort is an actionable civil wrong or injury arising from an act, or failure to act, independently of any contract. Tortious liability arises from the breach of a duty fixed by law, such breach redressable by an action for unliquidated damages. The Devil is right in that it is a ‘breach of duty’ and is of Latin derivation, but such simple definition is not found in an authoritative legal text. It is further revealing that the Devil did not use the word ‘counsel’, rather than ‘council’. I suppose it is questionable whether the Devil is even a pilot, but I give the benefit of doubt here.
Though I rarely engage in discourse with those who begin writing with the word ‘Uhm’ (is it even a word?), or those who utter phrases like ‘their personality sucks’ or ‘sh!t happens’, I will attempt to respond in kind to the Devil’s posts as follows:
There is nothing in English law that imposes a duty upon an employer (even "to show due diligence") to delve, or pry, or snoop, or solicit gossip, as to somebody’s background. In the case of aircrew selection, the duty is surely no more than to ensure that the applicant is suitably qualified, holds the requisite valid licence, and is fit (in the wider sense) to do the specified task.
My pilot friend has described the meaning of Crew Resource Management, but I see nothing in that which goes beyond a need to ensure that, in the role of captain or co-pilot, the task of flying the aircraft is executed professionally and co-operatively. There is nothing here that relies upon individuals actually liking each other. Indeed, in my military days (admittedly a very long time ago), a ‘popular’ leader was rarely a true professional and familiarity certainly did breed contempt. It is my observation that nothing has changed in the nature of humankind to render this obsolete. What useful purpose is to be achieved, then, in ‘posting a list of interviewees’ for comment from amongst their former peers or subordinates? Why seek to discharge a duty of care by listening to gossip and innuendo and then giving the applicant ‘an opportunity’ to respond to it?
No, to do these things is not to ‘show due diligence’ or to avoid ‘a breach of duty’. It is, I think, to do precisely the opposite. That is, it is to fail in one’s duty of care and to seek to somehow transfer that duty to the opinions and prejudices of others who do not in any way have such a duty. What will the airline say if there is a major accident, caused by the error of a pilot recruited in reliance upon this dubious process of ballot among peers? Will it say: “The fault lies with those who recommended this pilot to us.” Well, the airline may say it, but our courts will certainly pay no heed. The duty lies with the employer. To discharge it, the employer must show that it had in place a selection process which checked the credentials of the applicant and tested him/her to ensure that there was in this applicant the requisite level of skill and proficiency to carry out the duties of the position. Where the employer airline can show this, it matters not that there is a subsequent accident in some way caused by their appointee, for the airline was not negligent in its selection process, though it may have been elsewhere. The airline captain may be personally held liable at law if found to have breached a duty of care, though it is more likely that any tortious liability will transfer to the airline through the doctrine of vicarious liability. And it is precisely in such circumstances that the law will surely hold that listening to, or soliciting, gossip is not a proper means of discharging the duty of care in a selection process.
Another aspect of the Devil’s commentary which causes concern is in the implication that ‘pilots who actually knew, and had flown with, the Airbus commander who crashed’ unanimously believed that, in their ‘very experienced opinion’, the commander ‘was an accident waiting to happen'. The Devil rejoices in this gossip and hearsay, claiming that ‘they seem to have been proved right’. Surely there is nothing in this sad accident to support the views of the Devil. We do not know how this pilot was selected. His peers may have been consulted, or they may not. If what his peers now say is true, and it is a very large ‘if’, then there was certainly something wrong with the selection process, whatever that process might have been. But, if what his peers now say is true, then one must enquire as to their prior silence. If what they unanimously now say is true, why did not each and every one of these ‘very experienced’ pilots take their opinions to their then employers and/or the regulatory authority and thereby force a re-assessment. Such assessment might have led to more training of the individual to render him fit for the task, or it might have led to loss of that unfortunate’s licence. If what is now said is true, either would surely have been in the best interests of the individual concerned as well as in the best interests of public safety. And, either way, it may have avoided the later crash and loss of life.
Finally, the Devil claims to have ‘only ever had one interview’, and that was for the very first job, and ‘all the rest’ of the jobs (by implication then, many jobs) have been as a result of a "Highly recommended" (note the use by the Devil of a capital letter). The Devil, then, is either a most fortunate, outstanding, and very well connected pilot, or is none of these things and has merely worked for those who utilise this very strange selection process, those who deliberately substitute it for proper procedure even at the interview stage. If the latter, I do most sincerely hope that the Devil never errs disastrously, else the employer, or the Devil, will then have need of the likes of me.
[ 26 August 2001: Message edited by: Holt CJ ]