The Administrative Appeals Tribunal (AAT) recently set aside the decision of the Civil Aviation Safety Authority (CASA) to cancel the medical certificates of a Queensland commercial pilot who was alleged to have no longer met medical standards after being attacked in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).
On the evidence before the Tribunal, per Deputy President Hack SC, it was not open to say that Mr Bolton, the 23 year old pilot, had either a “condition” or some secondary consequence as a result of what happened to him to support the cancellation of his medical certificates. Mr Bolton recovered well, but CASA’s concern was that after what happened, he had an ongoing risk of seizures, which would endanger air safety. Mr Bolton’s contention was that what happened did not affect the underlying brain so seizures were not likely to result.
The weight of the accepted evidence supported Mr Bolton’s views – that there was no present ailment, so the Tribunal held that Mr Bolton met the appropriate medical standard. This conclusion is, in itself, unremarkable. What is remarkable is that this conclusion could have been jeopardised by seemingly minor procedural omissions by the representatives of the parties who were prosecuting the action.
The Tribunal was critical of both parties for failing to provide expert medical opinions which satisfied the AAT’s Guidelines for Persons Giving Expert and Opinion Evidence (Guidelines). The Guidelines ensure that independent experts are made aware that their role is to assist the Tribunal rather than advocate for the party which asked for their expert comment. Under the Guidelines:
9. A person giving evidence based on his or her special knowledge or experience in an area
a. has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
b. is not an advocate for a party to a proceeding.
Furthermore, written reports prepared for proceedings before the Tribunal must include this declaration:
I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.
While CASA’s medical expert, Dr Pooshan Navathe (also CASA’s Principal Medical Officer) did provide a statement which satisfied the Guidelines, the Tribunal explicitly stated that it would not have regard to his opinions as he was also the decision maker with respect to the cancellation of Mr Bolton’s medical certificates. Therefore, he was not truly independent. The Tribunal considered it highly irregular that Dr Navathe briefed CASA’s other expert (a consultant neurologist) by telephone, and never clearly showed what information was conveyed.
Deputy President Hack’s admonishments aside, the case demonstrates the need for both represented litigants and regulatory agencies to ensure all relevant evidential and procedural matters are properly dealt with in AAT proceedings.
Should the evidence have been different then the choice of expert witness for CASA would not just have been more embarrassing, but potentially resulted in an unsafe pilot being returned to the sky, as the Tribunal was not prepared to accept it.
Thankfully, Mr Bolton was found to neither suffer from a condition nor (if he had one) would such a condition be of a kind to endanger the safety of air navigation.
The Shine Lawyers Aviation Department acts for pilots and other aviation operators who are aggrieved by decisions made by CASA to suspend, cancel, vary, or add conditions to Australian issued aviation authorisations, pilot licences and medical certificates. This work extends to both AAT and Federal Court matters as well as general aviation legal advice.
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AAT restores right to fly for pilot - Shine Lawyers Aviation News