PPRuNe Forums - View Single Post - The Empire Strikes Back! on Colour Defective Pilots
Old 9th Jan 2014, 23:00
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johnobr
 
Join Date: Sep 2003
Location: Australia
Age: 40
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More ancient history...

It might be ancient history now but it certainly highlights that not much has changed in Sleepy Hollow...
Definitely not much has changed! Some more ancient history below from just after the Denison AAT victory in 1989 in correspondence from the late Laurence Gruzman QC. AOPA played an instrumental role in the campaign all those years ago as highlighted in Arthur Pape's articles he wrote for their magazine at the time.

Dear Mr Wilkinson,

Following our discussion yesterday I am prepared to express, for publication in AOPA magazine and to pilots generally, my views as to the methods which should be adopted by pilots who wish to take advantage of the recent decision of the Administrative Appeals Tribunal in the case of Denison v Civil Aviation Authority.

Denison was an extension to Commercial Pilots of Dr Arthur Pape's case, Pape v CAA, which was applicable to private pilots and I am familiar with that case and its aftermath. That case broke new ground and after that decision there was no logical basis upon which the CAA could prevent private pilots from flying at night because they were duetans, or at worst, deutans with similar disabilities to those of Dr. Pape. That disability is commonly but wrongly referred to as "colour blindness", a term which has many intricate meanings. It is sufficient to state that Dr Pape's disability is the most common form of "colour blindness" and therefore the decision in his case was applicable to most so-called "colour-blind" pilots”.

The decision in Pape dispelled forever the notion that normal colour perception by a pilot is essential for safe flight at night. A Civil Aviation Authority whose sole reason for preventing flight at night by deutans was a perception of lack of safety would have immediately removed the restriction for pilots whose disability was embraced within the reasoning in Pape's case. In fact, the CAA did not regard itself as subject to the law as laid down by the AAT and has continued for over a year to apply the outmoded criteria by which it has restricted night flight.

In view of the decision in Denison it is wrong and illegal for CAA to discriminate against pilots who suffer from the colour perception defect identified in that case and pilots suffering from such a colour defect are entitled forthwith to exercise the privileges of their private and commercial licences at night. In so doing they will be fortified by the results of a massive investigation (at public expense on both sides) and the consideration of the evidence by a highly experienced aviation tribunal in what was regarded by both parties as a test case of general application. The judgment of the tribunal was arrived at after a most exhaustive review of evidence which included masses of expert evidence and expensive experiments carried out by CAA and are contained in 60 pages of learned and practical evaluation of all the evidence and the conclusions derived therefrom. The Tribunal in Denison upheld PAPE and extended it to Commercial Pilots.

The question is what can pilots do to enjoy the results of the decision if, as in the past, the Authority ignores the findings of the AAT and puts individual pilots to the great expense and inconvenience of appealing in each case to the AAT to remove the restriction. Seven cases are still pending before the AAT by pilots seeking to obtain the benefit of PAPE's case to which, in most cases, they were automatically entitled. This is a frivolous and vexatious abuse of power by the CAA.

In my view, in these circumstances, an illegal restriction of this kind may, after due notice and consideration of any matter put forward by the CAA in an individual case, be disregarded. The Authority (Assistant Manager, Flight Standards in the Region) should be informed in writing by each pilot that unless the illegal restriction is removed within say 7 days, the pilot will exercise the privileges of his licence without regard to the restriction.

This procedure will enable the Authority to reply to the pilot putting any reasons why it alleges that the decision does not apply to the particular pilot and to threaten any action they may contemplate. However, the Authority will doubtless bear in mind that any action taken against the pilot's licence is appealable to the AAT, which, upon the basis of the decision in Denison, will find that the night operation was quite safe and that any breach was purely technical and caused by the Authority's failure to implement the findings of the AAT. Similar reasoning would doubtless be applied by a Court if the Authority charges a pilot with a breach of the regulations by flying contrary to the restriction. This advice presupposes that a pilot is otherwise qualified to fly at night and complies with recency requirements. Obtaining the necessary qualification will in some cases impose problems.

In summary, the CAA is, bound by the law in the same way as any individual member of the community. If it places itself above the law it can expect little assistance from the Courts if it seeks sanctions from individuals who disregard CAA’s illegal restrictions on their activities. The Courts do have the power of making their views felt as by ordering the CAA to pay certain costs.

I congratulate Dr Pape on the successful conclusions of the long, lonely and expensive battle which he has almost single-handedly waged against CAA on behalf of colour defective pilots. The Judgement In Denison is an historic document and a great tribute to his skill, knowledge, perseverance and courage, aided, I should say, by his wife.

Yours sincerely,

Laurence Gruzman, QC .
May, 1989 - A.O.P.A.
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