NZ pilot in court: Your opinions please

[Flying Lawyer]

Southland Times, NZ

Helicopter pilot back in court over TV flight
Tuesday, 25 November

A Queenstown helicopter pilot cleared of operating an aircraft with unnecessary danger was back in the High Court in Invercargill yesterday after the Civil Aviation Authority appealed the decision.

A charge against Allan Garfield Speight of operating an aircraft causing unnecessary danger to other persons and property was dismissed by Judge Phil Moran in Invercargill District Court in June.
Speight flew beneath wires on November 16 so a TV3 cameraman could film the site where a woman had been injured the previous day at the Fly By Wire ride. Judge Moran said Speight had conducted the flight with care and skill.

However, CAA Prosecutor Kim Murray told Justice Hansen that Judge Moran's decision was a "perverse result". "The element of danger was proved," Mr Murray said. He said the judge had taken Speight's experience into account, when he should have looked at the matter objectively.
"One doesn't necessarily have to place people in danger just to accomplish an aerial photography objective." The requirements of the news media on the day were irrelevant, Mr Murray said.

Defence Counsel Kevin Dawkins said news gathering was a necessary function in the community. Helicopters were commonly used in power line inspections, aerial lifting and as entertainment at rugby matches. Speight had flown under the wire only after permission to land at the site was not forthcoming and flying above the lines had prevented the cameraman getting a clear picture.
Justice Hansen asked if Mr Dawkins' logic would dictate that pilots could take greater risks if the story was more newsworthy. "What Mr Holmes (tv company) deems to be newsworthy may not be what you or I deem it to be," Justice Hansen said.

The judge reserved his decision.

Should a pilot's experience be irrelevant when determining if he's caused?
eg Should an ex-mil pilot with years of low level experience, or an experienced crop-duster, be treated the same as a low hours PPL when 'danger' is being assessed?
When deciding something where opinion is involved, should a judge be entitled to take into account the skill and experience of a pilot when deciding whether what he did caused "unnecessary danger to other persons and property"?

Forget Defence Counsel's argument about the public interest in news gathering - he walked into that retort from the Judge. No court is going to accept that news gathering / getting better pictures justifies causing unnecessary danger.
Can I also suggest we discuss the principle - leaving aside any good or bad opinions anyone holds about the pilot involved in this particular case.

[RDRickster]

So, even if he's found innocent for a second time... he still loses. Legal fees, especially court appearances, are costly! Maybe I'm not reading between the lines, but this doesn't seem to be a big offense (also indicated by the presiding judge). Am I missing something? What is the safety / procedure issue in question?

[Vfrpilotpb]

FL,

Danger, is like beauty, it is in the eye of the beholder,

having said that, a pilot with loads of experience and from a military background should be able to adequatly and safely cope with, and handle the perceived danger far better than a low hours PPL, and whilst the authorities are the proscecutors, are they just reading rules and translating the same into what they think is dangerous, or are they indeed very experienced flyers?Peter R-B

[StevieTerrier]

Do they have the equivelant of the 500' rule in NZ?

[Flying Lawyer]

I don't know, but assume there's something equivalent, Steve.

However , the charge in this instance isn't a 'Rule 5 type' charge where the final issue for a court to decide is usually a straight issue of fact. ie Did he or didn't he fly lower than/closer than etc.
If you breach the 500' rule then, subject (for example) to any 'emergency' defence, you're guilty whether you've got 10,000 hours or 100.
The charge here is the equivalent of our 'endangering' so opinion comes in to play.

I'm interested in whether pilots think the courts should take into account evidence of the skill and experience of the pilot concerned when deciding whether something was dangerous.

Should the courts be entitled to say in appropriate cases (as the first judge in this case did): 'This pilot didn't endanger anyone/anything because he has suffiicient skill and experience to do it safely.'?

What do you think?

[B Sousa]

I love it when Lawyers ask folks Opinions......Sort of Like dropping an unbaited hook in a Trout Farm........but, Im hooked.
Sometimes flying under wires is safer than flying over them....Same with Bridges, etc......Its a helicopter not a 747 and back in the days I have been there doing work etc. Yes, experience makes a difference as does the type of aircraft. I have always been fascinated why the non-flying public has this fixation that flying under anything is more dangerous....If done properly it seems normal to me, but I have only been flying Helicopters for 33 years. Ask a Cropduster how close he has come or how much telephone line he flew back to the hanger.....
Altitude Restrictions are a different matter, if the rule is 500' and he busted the rule, then its a no brainer. Emergency Aircraft Operations a bit different, but Newsies, forget it. I love Class E airspace.
On another note, I have lost many many friends flying into wires that they did not see......this does not seem to be the case.
My two cents.......

[Lu Zuckerman]

If the NZ Civil Aviation Authority feels that flying under the power lines is dangerous and places individuals in jeopardy then how would they feel about the pilots that fly so close to power lines that a man can move from a platform on the helicopter to the power line in order to effect some repair?



:E :E

[Dantruck]

FL asks: I'm interested in whether pilots think the courts should take into account evidence of the skill and experience of the pilot concerned when deciding whether something was dangerous.

Should the courts be entitled to say in appropriate cases (as the first judge in this case did): 'This pilot didn't endanger anyone/anything because he has suffiicient skill and experience to do it safely.'?

My reaction is one of: 'Well, we'd all hope so,' but that's almost certainly asking too much of one judge, isn't it?. The guy (or gal) would have to be an experienced flyer one day, and maybe an experienced plumber the next, perhaps when a case of dangerous pipework came before m'lud. Nice idea, but unless the judge can be a pre-ordained expert in all things, then won't his opinion be easily dismantled by the prosecution argueing that the judge has less personal experience than the prosecuting authority? In this case that would be the CAA, and few could argue with the statement that the CAA knows more about helicopter flying than the man in the wig.

I've always argued with car insurance companies that they should give me a discount on my premiums because I also hold every other type of driver's licence, including all the professional ones, AND have the experience to back them up. Guess what? They still think my postcode alone is a better indicator of risk!

Imperfect Worlds!

[Rotorbike]

This comes under the same topic as the flight under the bridge that was debated some time back. Except safer because nobody will throw something down from wires.

In my opinion if you knew the wires were there and had the ability/experience to fly under them without endangering anyone on the surface then you should be within your rights.

Photograhers never get in helicopters without asking to go lower and slower. If you as a pilot feel the job can be done safely nobody questions you. So maybe if the NZ CAA are to believed then helicopters should not be used for photography.

The other aspect though is when can a person be classed as suitably qualified to fly under the wires......1000, 5000 or 10,000 hours!!!

[MaxNg]

Flying Lawyer

I am an experienced pilot with many hours on powerline ops, however I would have used my experience and Not gone under the wires just for a better shot, the whole benifit of experience is to help you resolve descisions by either relating them to, or testing them against previous similar events.

Q1 Is it SAFE Y/N
Q2 Is it Legal Y/N
Q3 Is it Worth it Y/N


Colin McCrae and a few other very experienced rally drivers have recently been prosicuited for speeding whilst travelling between stages, from memory I think it was for doing 40 mph in a 30 zone. no account for experience there !

Laws are Laws, and without them well you know the answer


No Flying Lawyers

[Flying Lawyer]

Dantruck
It isn't a matter of whether the CAA knows more about flying than the judge.
If a case involves matters falling outside normal general knowledge, courts hear evidence from expert witnesses before making a decision. It's a matter of course in (for example) aviation and medical negligence cases.
Where a pilot is prosecuted, there are frequently two experts - an 'in house' CAA expert to support the prosecution and an independent expert from the industry on behalf of the defence.
I can only comment on the UK CAA, and there's no doubt they employ many pilots who can truly be described as experts, but I'm sure you won't make the mistake of assuming the CAA has a monopoly of flying expertise. There are many other pilots with equal expertise, and often greater experience, working in the industry.

Max
Breaking the speed limit is an offence whether you're Colin McRae or Fred Bloggs. Similarly, flying single engine North/South across the centre of London is an offence whether you're Nick Lappos or Tudor Owen. Straight issues of fact in each case. You either did or you didn't.
It could easily be argued that for a PPL like me to fly under wires is endangering the aircraft. Could it sensibly be argued that if Nick Lappos did so, he couldn't do so perfectly safely? The issue isn't whether he would, or whether it's best practice, but whether a court should be entitled to say: 'Having heard Mr Lappos experience and expertise as one of the top test pilots in the world, we think he's perfectly capable of doing so safely and therefore we don't think he endangered the aircraft'?

[edit]

Rick
You posted below while I was typing.
You've correctly identified the starting point in your first sentence.
The FAA has an equivalent general provision re 'endangering'. I can't remember the regulation of the top of my head.

[RDRickster]

Max,

The point isn't over a legal arguement on whether or not a specific statute was broken. If that were the case, definitions for the transgression could be spelled out in black and white and then the interpretation debated.

In contrast, the CAA (of which I know little) seems to indicate a safety issue here without specifying a definate rule violation. So, the pilot finds himself in a "gray" area. Does pilot experience count when assessing safety?

I think, "it depends" is the best answer to that question. Nevertheless, in the case above - I would say most definately. When there are no concrete standards for comparison, it falls on the pilot's decision making.

I don't mean to infer that if a pilot "gets away with it" and doesn't ball up a potentially devastating situation, that it should be condoned. However, that isn't the case here because the pilot's actions don't come across as "wreckless" to me. It seems that the pilot considered options and made a choice. None of us can evaluate those choices in front of the computer, and the benefit of the doubt should go to the pilot.

R2

[Hughesy]

The first I heard of this was on Rotorheads.

In NZ the rules are 1000ft above the highest obstacle within a 2000ft radius over populated area.

500ft agl above unpopulated areas.

But: For Commercial Transport Operations may, if necessary for the proper accomplishment of the operation, conduct approaches, departures and manoeuvres below 500 agl within the horo radius of 500ft of any person, vessel vechicle or structure provided the pilot in command-

(1) prepares a plan for the operation in conjunction with all personnal and organisations involved in the operation; and

(2) takes reasonable care to conduct the operation without creating a hazard to any person or property; and

(3) briefs all personnel and organisations involved in the operation on the plan required by 9b)(1)

Hope that helps :ok:

[Helipolarbear]

:p The US Army has long established negotiating wires as a Task, Conditions & Standards in it's Aircrew Training Manuals. I'm sure other mil have the same. If this had not been an ENG pilot, but rather Law Enforcement or HEMS/AA....what would have been the case.
Certainly experiance counts, most Heli jobs aew vetted on that basis.
I would gues that this particular pilot has had a few run ins and complaints against him in the past and the G Man in NZ wants to make an example out of him! The fact that this is an appeal on the Authority's part speaks volumes!
The judge got it right first time. Ultimate authority of the heli was with the pilot. And credit has to be attached to his account of his actions, especially when they were safely and successsfully accomplished!:}

[Dantruck]

I hear what you're saying about expert witnesses, and given their existance I guess we would all hope the judge would and should make a judgement based on everything heard. That seems to me to be only reasonable. Isn't there something in legal folklore about the courts mirroring the views of 'reasonable' people?

Given that the appeal looks to be based primarily on the aviation authority seeking to assert its own opinion, ie: no specific rule was broken, might the pilot not mount a secondary defense along the lines of bringing in additional expert witnesses to bolster his opinion of his own actions? Justification for the manoeuvre might then be held to exist in the form of shear weight of opinion. Of course the judge would have to make a judgement on that one, but at least he'd no longer be in the position of having to justify his original opinion, and that by itself might win the day for the pilot, yes?

My head hurts now!

[Heliport]

Dantruck "I guess we would all hope the judge would and should make a judgement based on everything heard. That seems to me to be only reasonable." Sounds reasonable to me too and if I've got it right, that's exactly what the first judge did. He took account of the pilot's experience and decided he conducted the flight with care and skill and didn't endanger anybody.
The NZ CAA's appealed against that saying it was a perverse result and the shouldn't have taken the pilot's experience into account, he should have looked at the matter "objectively".

How can you be 'subjectively' not guilty and 'objectively' guilty. :confused:

[Dantruck]

Beats me...

The only perverse action I can see is the NZ CAA's decision to appeal. Given, as I understand it, no new evidence is to be offered, the authority's unwillingness to accept the original judgement smacks of desperation.

Is it possible the recent higher than average accident rate for helicopters in NZ is fuelling a drive to clamp down on anything that could be conceived as 'dangerous?'

Where's Neville when you need him?

[quidam]

IMHO.

A perceived level of danger can only ever be looked at subjectively.

The difficulty that would arise is deciding what level of experience would count as sufficient.

I can only relate it to some of the 'grey' areas in RTA legislation but an opinion would have to be different depending upon whether you viewed this pilots actions from the perspective of a highly experienced pilot, a less experienced pilot, or an ordinary member of the public.

Given the relayed circs and the fact that a very small percentage of the population can actually fly helicopters or properly understand there perculiarities or limitations then this type of matter should not be left to 'what a normal person would think of as dangerous'

Professional flying is just that, and somebody with some experience should advise on these matters.

My list is probably not exhaustive but account should be taken of:
Total hours. To include relevant hours if incident is to do with specialist flying as opposed to 'ordinary' flying.

Specialist courses or training received. When courses were taken.Post course experience and recency.

Coupled with an interview of the pilot that shows that all other avenues had been considered before taking a course of perceived dangerous flight.

[Giovanni Cento Nove]

I hope Alfies mouthpiece is reading all this!

[MaxNg]

Flying Lawyer

It would be interesting to here from the NZ Authority as to what they find "perverse", is it they feel that the allowance of experience "perverse" or they fear that this judgement would open the flood gates for "experienced " pilots to flout the regulations based on thier own assesment of their experience, and therefore the outcome "perverse".

:confused:

[4dogs]

FL et al,

As has been repeatedly stressed, the reported offence is not a strict liability offence against a "hard" or "black and white" standard but rather a "catch-all" type offence where the judiciary is required to make a determination against a "soft" social standard of what is reasonable in the circumstances. All legislative regimes have soft rules to catch those events that cannot be conceivable prescribed but which nonetheless offend against society's need for "good order and discipline".

After some searching, I believe that the relevant legislation is probably one or more paragraphs from Part 5 - "Offences And Penalties" of the NZ Civil Aviation Act 1990:

Part 5—Offences And Penalties

Safety Offences

43 Endangerment caused by holder of aviation document

(1) Every holder of an aviation document commits an offence who, in respect of any activity or service to which the document relates, does or omits to do any act or causes or permits any act or omission, if the act or omission causes unnecessary danger to any other person or to any property.

(2) Every person who commits an offence against subsection (1) of this section is liable,

(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.ഊ

(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.

43A Operating aircraft in careless manner

(1) Every person commits an offence who operates any aircraft in a careless manner.

(2) Every person who commits an offence against subsection (1) of this section is liable,

(a) In the case of an individual, to a fine not exceeding $7,000; or
(b) In the case of a body corporate, to a fine not exceeding $35,000.

(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.

44 Dangerous activity involving aircraft, aeronautical product, or aviation related service

(1) Every person commits an offence who

(a) Operates, maintains, or services; or
(b) Does any other act in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.

(2) Every person commits an offence who

(a) Causes or permits any aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or
(b) Causes or permits any other act to be done in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.

(3) Every person who commits an offence against subsection (1) or subsection (2) of this section is liable,

(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.

(4) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act."


The question that FL put up for discussion was whether the experience of the pilot was a relevant consideration.

As reported, the original judge said that the flight was conducted "with care and skill". The fundamental question on appeal will be whether the original judge decided that the pilot's experience, howsoever determined, combined with his "care and skill" meant that the necessary legal element of "danger" was absent.

I believe that modern risk management and hazard identification principles make essential the proper consideration of operator knowledge, skill, attitude/behaviour and, in this case, relevant history of under-wire operations in determining the level of "danger". Similarly, I think that it is open for the judge to conclude that, while danger is omnipresent, the legislation invites some threshold judgement about when the level of danger triggers the first element of the offence. In short, the pilot's experience is very much a relevant consideration.

In this case, there is much that we don't know about the wires. Therefore, there is little we can do to really determine the risk of a wire-strike, since that appears to be the relevant "danger" in this case. Presumably, the prosecution assessed that there was a danger and the remarks attributed to the prosecution suggest that there was some acceptance that they had made their burden that a significant level of danger was indeed present.

If, and only if, the danger element was established, then the more interesting question of necessity could be addressed. If these proceedings do get to grapple with the question of whether our society's thirst for news does authorise some increased level of risk to persons and property, then it will be a watershed determination.

For mine, having flown media helo operations for a desperate and struggling network, gaining follow-up footage for yesterday's news is no mandate for undertaking a higher level of risk.

I had several Chiefs of Staff who strongly disagreed. The very short discussions we had convinced me that they were motivated only by commercialism and their prostitution to the media cause. I have no doubt that, had I had a wirestrike in similar circumstances, I would have been cursed about the cost of forcing them to pay a competitor for the feed for tonight's news (including the accident) rather than any concern for the people involved. While I am being archly cynical, the burgeoning push for industrial manslaughter legislation may itself bring about some changes in the risk management practices of ENG operators.

Stay Alive,

[Autorotate]

Unfortunately the CAA here in this country are a bunch of idiots, and those that are in management positions have absolutely no clue about the workings of the helicopter industry. They spend day after day after day picking on those operators who abide by the rules and ignoring the ones who fudge the hours, low flying and basically giving the industry a bad name.

As one person I know in there told me its a heck of a lot easier to get money for audits from those that they know can pay, than it is from those they would have trouble even finding, let alone prosectuing. Unnannounced audits are the rage at this present time, and get this, you have to pay them to do it, even though its unannounced.

This prosecution is just another one of those, we are the regulators and we are god type actions. Hopefully Alan will win the case and tell CAA where to shove it and then sue them.

Anyway just my two cents worth.

Autorotate.

[Woomera]

4dogs

Great to see you back and your usual erudite self.

It's been a bit topsy turvy round here, but you get that.

So the rumours of you being sold into slavery as Father Christmas' airways operations chief to advise him on the effects of the new NAS on his Oz deliveries, was untrue.

May we assume that Rudis red nose will be a sufficient warning of his presence in the airspace, will he get DTI and has the old bloke got his Information Pack yet.:ok:

[4dogs]

Woomera,

Just trying to juggle too many things at the same time to be able to devote an adequate amount of time to the more enjoyable things such as PPRuNe.

Surprised to see you here on the forum devoted to real aviating - an activity I am sorely missing! Oh for the quiet life of beating the air into submission while never leaving the earth's boundary layer...perhaps I will pass that on to Father Christmas and the team as the only place to fly, noting that range and endurance both may be problematical.

Stay very much alive and enjoy the festive season,

more dogs than the smartest ringer.....

[vorticey]

its gotta be better to hover below the lines rather than above, in case of an engine failure (and it keeps you out of the shady hight velicity area). so hes actualy endangering them less!
if the pilot only had 100 hrs then it would be more endangering than if he had 50000. its less dangerous to never fly near powerlines, but thats why the aerial work categry exists, so these jobs can be done with only the minimum crew required (in case something should happen). most companies have an exemption from the minimum high rule for filming, so the 500' rule probly wouldnt apply anyway. its up to the pilots discretion not to endanger people too much. if somone complains, then the pilot may have been wrong, itll get sorted out in time (with a bit of money)