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Old 17th Aug 2013, 12:20
  #394 (permalink)  
WillowRun 6-3
Join Date: Jul 2013
Location: Within AM radio broadcast range of downtown Chicago
Age: 68
Posts: 277
Negligence, proof thereof, and "per se"

To mross: not exactly. (That is, your post, while using plain English admirably, does not quite state the point I made, or attempted to make.) There is the legal concept of negligence. A claim of negligence must sufficiently prove four elements. They are: first, the existence of a legal duty (that is, a legal duty owed by the person being sued (the defendant) to the person who was injured by the claimed negligence and who is suing (the plaintiff). (Plaintiff as a word includes a party suing on behalf of someone else, such as in the case of an estate suing on behalf of the individuals who tragically lost their lives in, just for example, the SFO Triple-7 mishap). Second is the element of breach, IOW breach by the defendant of the legal duty. We'll come back to that one shortly. Third is the element of 'proximate cause', which can be murky, ambiguous, highly contentious, very complicated. How many times has the NTSB found one single hole in the metaphoric Swiss cheese as the cause of a given accident? Legally the idea is to hit up the single-biggest-cause Without Which It Would Not Have Happened. Fourth is dumb-luck obvious: damages (the plaintiff has to have suffered damages).

Now, ordinarily, the plaintiff has to undertake and accomplish some heavy lifting in order to prove that the defendant breached the legal duty. Fair enough. But......the doctrine of "negligence per se" allows the plaintiff to point out to the court that the defendant's act or omission Violated a Law or Regulatory Standard of some importance. This is a bit of an oversimplification, but I'm highly confident that you get the idea.

Now to apply this to the main focus of this thread, which began with an observation or assertion that the US civil aviation system or community or cadre of pilots and controllers - whatever you want to call it - necessarily must take one of two actions. Either, one, cop an exception to ICAO. Or two, quit all the checkin' in with you, yadda yadda, blah blah blah.

And now, finally, to answer your Post In Re the Seeking of Clarification and/or Confirmation of My Prior Post. I am saying - My Contention Would Be - that because there is such open and notorious, widespread, commonplace, and impliedly accepted deviation from ICAO standard phraseology (here, meaning all the ICAO standard rules and practices for R/T), that a plaintiff could not rely on the ICAO standard to win the element of Breach of Duty on the basis of negligence per se. Certainly and obviously, if the R/T in a given mishap was a major causitive factor, a plaintiff could use its divergence from ICAO standard as evidence of negligence. But it would not be negligence per se. Per se, two words, five letters (two of which are recurrent), simple Latin to enunciate, yet, all the difference in the (legal) world.

Very interestingly, this effort at dejargonizing the point I sought earlier to make leads to another point of some substantive relevance (or so I surely hope). It is that those pilots and others advocating here for strict adherence to ICAO standards may want to think about the legal impact such adherence might well have. Namely, if you get uniform adherence to standard R/T accomplished, then deviations from such standard could very well indeed trigger findings of negligence per se. It is a sort of 'be careful what you wish for' suggestion. ICAO is, after all, just ICAO, a UN agency with a sort of concocted jurisdictional scope. I lack the qualifications to assess this point; maybe the risk of easier lawsuit outcomes is a risk well worth taking, in order to obtain compliance with the ICAO rules. On another thread, the learned and highly knowledge PJ2 held forth in eloquent expression on the need to not just respect, but to preserve, protect and defend the architecture of the Safety System of civil aviation. And thus, I defer to such far wiser posters on the matter of whether the press for compliance with standarisation has a downside in the form of easier "wins" against certificated air carriers in scheduled service and their aircrews, whether here in the US, in Great Britain, on the Continent, or anywhere else.

Lots of traffic in an approach corridor over my campus yesterday, on final to ORD, compass heading looked like about 40-45, altitude from purely visual observation about 1200-1500 feet, color me clueless to guess airspeed. Pretty closely metered - though I didn't time it, spacing seemed like under a minute 30. I'm guessing all the approach parameters and techniques, and their interplay with particular avionics or navigation systems (as is being painstakingly dissected on the UPS crash at Birmingham thread), are impacted when ATC packs the corridor with aircraft so close together? Or even with such spacing, it's all the same?
WillowRun 6-3 is offline