This is my layman’s view of where we sit, bearing in mind that rules are for the obedience of fools and the guidance of wise men. Unfortunately the courts assume we are fools.
RESPONSIBILITIES OF THE PILOT IN COMMAND
The scope of responsibilities of the pilot in command is contained within CAR 224, which provides;
‘(2) A pilot in command of an aircraft is responsible for:
(a) the start, continuation, diversion and end of a flight by the aircraft; and
(b) the operation and safety of the aircraft during flight time; and
(c) the safety of persons and cargo carried on the aircraft; and
(d) the conduct and safety of members of the crew on the aircraft.
(2A) A pilot in command must discharge his or her responsibility under para (2)(a) in accordance with:
(a) any information, instructions or directions, relating to the start, continuation, diversion or end of a flight; that are made available, or issued, under the Act or these Regulations; and
(b) if applicable, the operations manual provided by the operator of the aircraft.
(3) The pilot in command shall have final authority as to the disposition of the aircraft while he or she is in command and for the maintenance of discipline by all persons on board.’
The pilot in command is also responsible for ensuring that certain duties have been performed before flight. These duties may be performed by other persons, however pilots in command have final responsibility to “ensure” that tasks entrusted to them have been complied with. CAR 233 states the pre-flight duties as follows;
‘An aircraft shall not commence a flight unless evidence has been furnished to the pilot in command and the pilot in command has taken such action as is necessary to ensure that;
all required instruments and equipment are functioning properly
the gross weight of the aircraft does not exceed the limitation
the aircraft is correctly loaded for all stages of flight
the fuel supplies are sufficient for a particular flight (CAR 234 details the factors to be considered by the pilot in command in calculating the fuel requirements)
the required crew members are on board and in a fit state to perform their duties
the air traffic control instructions have been complied with
the aircraft is safe for flight in all respects; and
all relevant aeronautical maps, charts and other documentation are carried.’
CAR 138 requires ‘If a flight manual has been issued for an Australian aircraft, the pilot in command of the aircraft must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft that is set out in the manual.’
Penalty: 50 penalty units.
LIABILITIES OF AIRCREW
There are various sources from which the duties of the pilot in command and other aircrew derive. It is important to understand the difference between these sources as the nature of the responsibilities created by each of these sources varies considerably.
An important consideration which flows from the various duties imposed on aircrew is the consequences of a breach of such duties. In some instances, particularly statutory duties, the duty imposed is one of strict liability, the breach of which may attract criminal sanctions.
The main sources from which aircrew duties derive are;
contractual duties
a duty of care: arising from the law of tort; and
statutory duties: imposed by the regulations and other legislation
Contractual Duties: are imposed on the pilot in command and other crew members by the terms of their contract of employment. Another source from which contractual duties may arise is from the contract of carriage. In the majority of cases there will be no contractual agreement between aircrew and the passengers or owners of cargo. Unless someone is a party to a contract then that party is not liable, nor can they claim any rights under the terms of that contract. Pilots and other crew members have contracts with the operator and so do the passengers and owners of cargo. There is no contract between the passengers or cargo owners and the crew of an aircraft. The only exception is the pilot that enters into a formal contract with a passenger or owner of freight. This might occur where the pilot owns the aircraft or is a freelance pilot offering aircraft charter services.
A Duty of Care: is another source of liability to aircrew. This duty is created by the existence of a certain relationship (neighbour principle) recognised at law. (Neighbour Principle: The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer’s question, who is my neighbour, receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be --- persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.) The pilot in command owes a duty of care to a great number of people including passengers, fellow crew members and other persons both on the ground and in other aircraft. Once qualified or licensed, lack of experience is not sufficient grounds for imputing a lower standard of care for an individual.
The following example serves to provide a reminder as to the extent to which the courts may hold a pilot liable.
A railroad worker was killed when the canopy of a military aircraft struck the employee while he was eating his lunch on a railway right of way. Evidence disclosed that the pilot, who had ejected, had been negligent in not avoiding a thunderstorm, which had resulted in the subsequent loss of control.
The pilot whose carelessness has brought about the error will be held to be negligent provided the resulting injury was reasonably foreseeable.
Statutory Duties: are those imposed on aircrew by the volume of aviation related legislation that specifies the duties required of the individual. The most obvious legislation relating to the duties of aircrew is CAR’s. Other documentation, such as the operators Operations Manual, is equally binding on aircrew.
Aviation personnel are trained to deal with abnormal and emergency situations. Therefore during an aviation emergency situation, a person who deviates from established emergency procedures without reasonable cause, may be liable for damage so caused.
Evidence that a pilot or other crew member acted contrary to published procedures would be prima facie evidence of negligence. The burden to show that the deviation from standard procedures was justified is a heavy one and firmly on the shoulders of the plaintiff.
Negligence: In certain situations the law will require an individual to ensure a requisite level of care with regard to the welfare of other persons. If, as a result of the actions or omissions of that person who owes a duty of care to the other person, that other person suffers injury or damage, then the person who has breached their duty is guilty of negligence.
Professor Reason in Human Error (1990) distinguishes between active error, the effects of which are felt almost immediately, and latent error, the adverse consequences of which may lie dormant within the system for a long time. This can clearly be seen in aviation, where pilots at the sharp end make an active error, while latent error lies behind the lines within the management support system. Many of these are already there awaiting a trigger, usually supplied by the pilot. ‘There is a growing awareness within the human reliability community that attempts to discover and neutralise those latent failures will have a greater beneficial effect upon system safety than will localised efforts to minimise active errors.’
As long ago as 1980, Stanley Roscoe wrote that:
The tenacious retention of ‘pilot error’ as an accident ‘cause factor’ by governmental agencies, equipment manufacturers and airline management, and even by pilot unions indirectly, is a subtle manifestation of the apparently natural human inclination to narrow the responsibility for tragic events that receive wide public attention. If the responsibility can be isolated to the momentary defection of a single individual, the captain in command, then other members of the aviation community remain untarnished. The unions briefly acknowledge the inescapable conclusion that pilots can make errors and thereby gain a few bargaining points with management for the future.
Everyone else, including other crew members, remains clean. The airline accepts the inevitable financial liability for losses but escapes blame for inadequate training programs or procedural indoctrination. Equipment manufacturers avoid product liability for faulty design,. Regulatory agencies are not criticised for approving an unsafe operation, failing to invoke obviously needed precautionary restrictions, or, worse yet, contributing directly by injudicious control or unsafe clearance authorisations. Only the pilot who made the ‘error’ and his family suffer, and their suffering may be assuaged by a liberal pension in exchange for his quiet early retirement – in the event that he was fortunate enough to survive the accident
Yet it is only recently that very dubious management malpractices are being identified and their contribution to accidents given sufficient weight. For though the pilot’s actions are at the tip of the iceberg of responsibility, many other people have had a hand in it – faceless people in aircraft design and manufacture, in computer technology and software, in maintenance, in flying control, in accounts departments and in the corridors of power. But the pilot is available and identifiable.
Read the last two para and give pause to Air New Zealands stance with regard to the Erebus accident. Thanks to Justice Peter Mahon they didn’t quite get away with it. They obviously learnt their lesson though, by their consummate and exemplary handling of the Apia B767 incident which can be held as an example of how accident prevention is supposed to, and should, operate. The upshot is when standing before the Coroner you better have a damn good reason why you didn’t comply with the rules, regs etc.
I spent 27 years with Esso in its Bass Strait operation, leaving in 2004. On the 25th September 1998 the company suffered an explosion in the gas plant which killed two men, injured eight others and completely cut the gas supply to the state of Victoria for two weeks. Dr Andrew Hopkins wrote a book (Lessons from Longford) of the event and of the subsequent Royal Commission as briefing material for the legal profession. Some extracts,
“….a practice which had developed of operating the plant outside the design limits…..this practice had been allowed to develop because of inadequate oversight by Esso and that, in any case, the practice was sometimes necessary to achieve production targets.”
“Alarm Overload – The operators job was to keep the process within specified limits of temperature, volume, flow and so on. The alarm problem when limits were exceeded was compounded enormously by the sheer number of alarms which operators were expected to deal with – at least three or four hundred a day! On one occasion an incident occurred which led Esso incident investigators to count the number of alarms. The figure for a 12 hour shift was 8,500 or 12 alarms every minute!”
“……the accident was quite preventable. It was caused by a series of organisational failures: the failure to respond to clear warning signs, warning signs which management ignored, communication problems, systematic lack of attention to major hazards, superficial auditing and, as much as anything, a failure to learn from past experience. There is nothing unusual about any of this – organisational failures lie behind most major accidents.”
"…..Esso did its level best to avoid being incriminated. This is presumably why it chose to place its own accident investigation in the hands of outside lawyers and to claim legal professional privilege, that is, that anything to do with that investigation, particularly any finding, was confidential because of the lawyer/client relationship. According to critics this is standard Exxon practice around the world, whenever Exxon or its affiliates suffer major accidents, and it has prevented at least one coronial investigation in the past from getting to the truth.”
“Esso’s explanation for the accident was of course quite predictable. The company was facing claims totalling more than a billion dollars from gas customers who had been affected by the loss of supply. If it could argue that the accident was not its fault, but rather, the fault of some of its employees, it might escape liability. Moreover, if it could shift blame for the accident to the operators it would be able to defend itself against any prosecutions which the authorities might initiate.”
All the above points made applied equally well to the manner in which we conducted flying operations. Personally I made sure that the mainframe contained reports of our failures (to protect myself) and the companies failure to address those concerns. But what chance CASA taking the worlds largest multi national to task? TRANSAIR represents CASA’s inability to adequately oversee aviation operations, and that may be due to understaffing and inadequate funding, among other failings, but I’m not in a position to judge, other than something’s rotten in the state of Denmark. As posted on another thread the problem may very well lie here,
First priority in Casa is to not rock the boat
2nd priority - set up your super
3rd priority - sit out the frustration to retirement
4th priority - try and arrive at retirement intact
Sorry to be so boring, irritating and verbose. Had to cough up the phlegm and get it off the chest.