Duty Of Care [Archive] - PPRuNe Forums

radarman

30th Nov 2003, 20:31

Duty of Care. The current favourite phrase for all legal beagles and corporate ass-coverers. Down at the coal face we all think we know what it means (something like moral responsibility), but is it written down anywhere so we can get a better idea of which direction we're going to get shot from when something goes wrong? If it's not properly defined in writing, does it take priority over other written instructions from different authorities?
Say I'm giving a RIS to a customer. I spot a conflictor Charlieing at the same level. I pass traffic information, thus fulfilling my legal obligation under the definition of RIS. My bloke says 'Thankyou', and continues on his way. A little later the situation is looking a bit uncomfortable, so I update the traffic info, but Bloggs just acknowledges and ploughs on. After a minute or so I get the nasty brown adrenalin feeling that I'm watching two pilots about to spear into each other. The question is, do I think 'Duty of Care' and give last-minute avoiding action in the desperate hope of avoiding a midair? If I do give a turn and it goes wrong, I'll get fried for contravening the rules for RIS. But if I don't turn and it goes wrong then I'll be crucified in court br Mr Clever-clogs QC for neglecting my responsibilities under duty of care. (Are you telling the court, Mr Radarman, that you sat and watched two aircraft fly into each other, yet did nothing to avoid the collision?)
Any constructive ideas on this DoC thingy?

Jerricho

30th Nov 2003, 20:51

If Flying Lawyer pokes his head in here, he is very good at these things.

It is a kinda grey area though. I remember having a discussion one evening about providing a service outside controlled airspace. I think you would be hard pushed to find many approach people at London Terminal who would provide anyting more than a FIS (Spot's case did come up in the conversation). Sombody suggested in a very similar sitution as described by radarman with a/c on RIS head-on dead ringer to immediately upgrade it to RAS and turn the guy. However, that opens a huge can of worms doesn't it.

Conversly, as I have seen discussed here as well, what can look hideous on a radar screen (it is easy to get a 3 miles/1000 ft mindset/keep everything 'separated'), may be totally under "control" in the air, with both drivers visual and happy do do their thing.

radarman

30th Nov 2003, 21:07

Jerricho,

Your phrase 'Can of Worms' describes things pretty well. Applies to just about everything I have to cope with when I plug in. What I was more interested in was the legal aspect of DoC vis a vis other regulations. I just used the RIS example to illustrate the apparent contradiction of DoC and other regs, didn't really want the thread to migrate to ATSORA (or whatever it's called now).

Come on you legal beagles, let's see you earn your money.

This is a crisis

30th Nov 2003, 21:16

As has been rightly said, so called Duty of Care can extend to evrything you do

e.g. Class D airpace, 2 VFR, having been given the required traffic info continue towards each other at the same level. You are sitting watching them on Radar........

I work with people who regularly say ' thats not my responsibility'. Unfortunately, today it appears to be that if you are aware of it and can do something sbout it, then it is your responsibility.

radarman

30th Nov 2003, 21:46

This is a Crisis,

Your last sentence makes my point. '.......it is your responsibility'. But what if exercising that responsibility to resolve a potential disaster requires you to contravene another regulation - in my illustration the bit in the definition of RIS which prohibits you from giving avoiding action. Do you exercise your responsibility under the (so far undefined) DoC, or do you stick to the MATS 1?

This is a crisis

30th Nov 2003, 22:06

Radarman,

This is the difficult one....and I have to admit I dont have the answer.

The only saving grace might be the first page of Mats Part 1, para 1.2

'Nothing in this Manual prevents controllers from using their discretion and initiative in any particular circumstance'

I am personally very surprised that paragraph of the manual was not removed years ago by SRG - we dont appear to be allowed any discretion these days.

Perhaps the legal guys could tell us how this part of the manual would stand up in court.

radarman

30th Nov 2003, 22:28

This is a Crisis,

Yes, the bit about 'using your initiative' etc looks good, and I guess this would cover you if you contravened some regulation and successfully extricated some pilot from a sticky situation. But I still think they would hang you out to dry if you 'used your initiative' and it didn't work out.

Seem to remember some years ago if a Lightning had an engine fire the book said 'Eject Immediately'. Some guy chose to ignore orders and stayed with the aeroplane. Against the odds he made a successful landing and was awarded a 'Good Show'. Couple of years later someone else did the same thing but speared in. He was crucified for disobeying orders. There ain't no justice. Maybe it's just part and parcel of this noble profession we have chosen. :yuk:

Arkady

30th Nov 2003, 22:55

"Nothing in this Manual prevents controllers from using their discretion and initiative in any particular circumstance"

I've always believed this to be an admission that the MATS cannot allow for all circumstances or the unanticipated effect of a series of events. It is only when practical experience has brought to light the danger of a particular combination of actions and reactions that definitive procedures can be written to prevent a reoccurrence. The provision of radar services outside controlled airspace seems the most likely area these sorts of situations can arise.

But what if the ATCO follows all the correct procedures and fails to spot the flaw. Does the above hold him/her responsible?

Saving grace or sting in the tail?

Incidentally, after quick look in the LACC part 2 I cannot find any similar entry.

bookworm

30th Nov 2003, 23:46

It is a kinda grey area though. I remember having a discussion one evening about providing a service outside controlled airspace. I think you would be hard pushed to find many approach people at London Terminal who would provide anyting more than a FIS (Spot's case did come up in the conversation).

Had an excellent RIS from Luton on a flight from Cambridge to Gloucester annd then again on the return earlier today -- thank you whoever it was. Most useful, it really does make a difference, and if "duty of care" creates a disincentive to providing it then it really is a contradiction in terms, isn't it?

Jerricho

1st Dec 2003, 00:01

Agree totally BW, it is a contradiction of terms, but unfortunately the way of the world is becoming more and more "tin plate your ass". It is a shame I know, but if you read some incident reports, the blame can be proportioned far and wide, almost along the lines of taking a bag full of sh!t, cutting a hole in it and swinging it above the investigators head. If you don't have an umbrella, you're gonna wear some.

I remember a very similar thread being discussed 2/3 months ago regarding "UK ATC being covered by criminal law".

Here (http://www.pprune.org/forums/showthread.php?s=&threadid=104706)

rotornut

1st Dec 2003, 01:01

The origin of the concept of duty of care in English law is derived from the following case heard by the Judicial Committee of the House of Lords in 1932:

M'Alister (or Donoghue) v. Stevenson (1932) A.C. 562 (H.L.)

In the reasons for judgement, Lord Atkins made a famous speech which has been regarded as THE authoritative statement to define duty of care at law:

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.

This is a crisis

1st Dec 2003, 01:16

Before much longer the Duty Watch Manager will be replaced by a Duty Lawyer with a direct intercom link to all operational ATCOs:rolleyes:

radarman

1st Dec 2003, 01:21

Rotornut,

Many thanks, at least I now have some definition of DoC. But if this definition stands as a part of English law, surely it must override instructions of lesser authority (MATS Pt1) which either contradict it or appear to prevent a person from complying with it. In other words, does the RIS instruction preventing a controller from giving avoiding action contravene the law on DoC?

This is a crisis

1st Dec 2003, 01:38

I think on reflection, I would rather incur the wrath of an SRG man than a High Court Judge!!

I have, and will continue to take any action I consider necessary to prevent a collision, regardless of what it says in Mats 1. The trick I think is to do it earlier rather than later so you guarantee it works and therefore you never have to face the man in the wig!

Legalapproach

1st Dec 2003, 01:57

Rotornut beat me to it. I had just gone to get a copy of Donoghue –v- Stevenson when he made his post.

The speech of Lord Atkins sets out what is referred to as the ‘notional duty’, that sets out a general principle. There also has to be a duty in fact.

The test for deciding whether there has been a breach of duty was established in the 1865 case of Blyth v. Birmingham Waterworks and Co.

“Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do”

Where a person is engaged in a transaction in which he holds himself out as having professional skill, the law expects him to show the average amount of competence associated with the proper discharge of the duties of that profession, trade or calling, and if he falls short of that and injures someone in consequence, he is not behaving reasonably.

I suspect that in the case of an ATCO seeing an impending collision on radar a failure to warn the relevant aircraft and give advice would amount to negligence if a collision ensued. The question of advising a steer that goes wrong is an interesting one. The advice, would on the face of it be reasonable and far more reasonable than allowing the two aircraft to plow into one another by doing nothing. If the advised steer complied with the normal rules for traffic avoidance it would be what the reasonable ATCO would be expected to do. If it went wrong it would presumably be for some unforeseen reason (or one for which there was a small chance of it occurring and a court would have to consider the magnitude of the risk in considering whether an act was negligent) and as such unlikely to be negligent. If the advice was advice that the reasonable ATCO would have or could have been expected to give in the circumstances then negligence does not arise. A defendant accused of negligence can clear himself if he shows that he has acted in accord with general and approved practice. {Vancouver General Hospital v. MacDaniel (1934)}

Gosh that was all a bit dry I’ll reward myself with 10 mins. in Jetblast now.

rotornut

1st Dec 2003, 02:15

Legalapproach
You must be a lawyer! In any case, I tend to agree with your analysis. Also, don't forget the defence of necessity. In other words, if it's necessary to break the law or rules in order to avoid the greater harm, the defendant has a good defence and cannot be convicted.

radarman

1st Dec 2003, 02:30

Legalapproach and Rotornut,

Many thanks. I guess you guys have cracked it. Think I'll print the thread for future reference if it's ever needed.

But does Lord Atkins judgement render that particular reference (and probably others) in the Mats 1 illegal?

LostThePicture

1st Dec 2003, 04:46

The MATS Part 1 is pretty explicit about controllers' and pilots' responsibilities under a RIS. I hate to trot out the manual, but a few points:

No avoiding action shall be offered.
The pilot is wholly responsible for maintaining separation from other aircraft whether or not the controller has passed traffic information.
Should a pilot request avoiding action, this shall be treated as a request for a change of radar service.
The controller may provide radar vectors for the purpose of tactical planning.... however vectors shall not be provided to maintain separation from other aircraft, which remains the responsibility of the pilot.

A RIS is a contract between controller and pilot, and the points above illustrate some, but not all, of the terms of that contract. The points also go some way to describing your "duty of care" - what the manual is more-or-less saying is that the pilot takes care of himself. If he wants better care, then he needs a new contract: RAS. Until that upgrade is agreed, his separation is not your problem. As the original post says:
If I do give a turn and it goes wrong, I'll get fried for contravening the rules for RIS. Yes, you probably will. And quite right too.

Jerricho has pointed out that pilots maintaining their own separation may get uncomfortably close (from the radar picture point of view) to their conflicting traffic. I would venture that slower aircraft doing just that would look worst of all in such a situation. All the more reason to let pilots under a RIS look after themselves - keep providing TI until the pilot calls visual or requests avoiding action.

LTP

Timothy

1st Dec 2003, 15:35

From the POV, on the one hand, of a pilot who has been at the receiving end of RIS and its precursors for a lot of years and a lot of hours, and on the other as a Magistrate, I would have thought that the following sequence would be a good compromise:

G-ABCD Anytown Pop-up traffic right 3 o'clock two miles closing heading indicating same level unverified
G-CD Roger
..
G-CD Previously reported traffic now right 3 o'clock half a mile. mode C still indicates same level unverified
G-CD Roger
..
G-CD Confirm that you have that traffic in sight; if not sighted I would strongly suggest an immediate turn to the left if safe to do so. Nothing seen on radar to affect such a turn, acknowledge.

That way there can be no doubt that you have done what you reasonably can, without actually issuing an order to change heading, and the pilot would have to be bent on an act of self- and mutual destruction to ignore you. If se does ignore you there is nothing you can do anyway.

W

Argus

1st Dec 2003, 16:37

Don't overlook the employer's duty of care. At common law, an employer has a duty to employees to take reasonable care to carry on operations so as not to subject employees to unnecessary risks of injury. The duty extends to: provision and maintenance of proper plant and equipment; proper selection of skilled managers and the provision of a safe system of work.

Also, at common law, an employer may be liable vicariously to a third party for the acts of negligence of employees.

Common law can be displaced by statutory provisions so the above shouldn't be relied on without specific advice.

Jerricho

2nd Dec 2003, 00:05

WC highlights a very important word in all this......SUGGEST.

If a controller suggested resolution of a potential conflict, not actually issuing a control instruction is definately, IMHO this is a demonstration of the "duty of care" being discussed.

t's kind of like our absolute minima procedures for airfields, with the "while what you intend to do is contravening UK law, no known traffic to effect you approach". That good old "Tin plate your @ss"

FlyingForFun

2nd Dec 2003, 00:17

Pilots point of view: in the situation you describe, I'd appreciate vectors.

A couple of years ago, I was receiving a RIS in poor vis. I had high terrain below me, and clouds above me. The controller informed me of converging traffic squawking 7000 with Mode C, showing a similar level to me, which was at a range that was greater than the vis. I kept an eye open for it, but didn't expect to see it that far off. Several minutes later, the controller called the same traffic again. Then again, with in increasing urgency in his voice. What he probably couldn't see on his screen was that I was weaving around trying to spot the traffic which, it was clear from the controller's voice, was going to be an issue. Since I didn't know where the traffic was, I couldn't make a decision on which way to turn (right would have taken me towards the traffic, and left would have put me on the same heading as the traffic and given me no chance of ever spotting it), and any vertical changes I could safely make wouldn't have got me comfortably clear given the limitations of an unverified Mode C. I couldn't ask for RAS since I was VFR, but the controller "suggested" that I might like to turn onto a specified heading, and told me when the traffic was no longer a factor. I never saw the traffic, but I was very grateful for the radar vector, whether it was strictly by the book or not.

FFF
----------------

radarman

2nd Dec 2003, 00:48

Nice to hear FFF giving the pilot's point of view.
I think alot of controllers tend to assume that the PA28 VFR pilot meandering about the sky has a perfect view of all that surrounds him. The word 'Visual' is very misleading. Just take a look at the VFR minima and you will see that a guy can be flying perfectly legally in conditions that I would consider pretty murky. And it is in just these conditions that a large number of private pilots will be concentrating more on the map than scanning the skies. So don't assume that because a pilot is flying visually he will automatically be able to spot the conflictor.
As an illustration of the problems spotting other aircraft, how many times have you been in Tower, a light aircraft reports Finals, and you just can't see him, in spite of knowing exactly where he should be.
Hence my original question in this thread - if your RIS customer shows little sign of spotting the conflictor, does Duty of Care justify your contravening MATS 1 and passing/giving/suggesting avoiding action.

bookworm

2nd Dec 2003, 00:53

I think there's a weakness in the current procedures for RIS and RAS. What I usually need is something in between.

I don't need 5 miles and 1000 ft (well it almost always comes down to 5 miles because most commonly traffic is either primary only or Mode A only). It's often impractical in anything other than very low traffic-density airspace.

At the same time, the standard RIS phraseology doesn't give me the information I most need: Which way should I turn to increase the separation?

So you tell me it's in my "11 o'clock at 4 miles crossing left to right". I can't see it. What should I do about it? Do I turn left or right? Well that all depends on whether it is crossing ahead of or behind me.

If I ask for a vector, all hell breaks loose as you urgently try to restore the separation that I never had in the first place and didn't really want! Or not, if you happen to be busy with other traffic and can't upgrade the service.

So all I can do is scan in the right general direction, hoping that the contact is in fact no longer in that general direction because that means he's no longer on a collision course... because if I turn it might make things worse.

If you could have said, "11 o'clock at 4 miles crossing left to right, turn left to increase separation", then I know what I can do with my hands as well as my eyes to reduce the risk.

radarman

2nd Dec 2003, 00:58

Just had another thought. The MATS 1 says 'avoiding action' must not be offered. S'pose you suggest a turn for 'Traffic Avoidance'. Would that be a legal way of exercising DoC without contravening MATS. It's splitting hairs, I know, but something to exercise some Pprune brains.
Enjoy. I'm off for a beer now (bottle of Rioja actually).

vintage ATCO

2nd Dec 2003, 01:13

bookworm . . . . A miss is as good as 3/5 miles . . . Whoops, I never said that! (Merlot)

Jerricho

2nd Dec 2003, 01:35

I hope neither of you two are working in the morning.

radarman

2nd Dec 2003, 06:51

Jerricho

Just got back. Hic. Three bottles of Rioja and a bruddy good Thai nosh. And nope, not working till Friday pm.

Not a regular Ppruner, but good to see some constructive comments concerning my original thread. Thanks to all for your suggestions. Back tomorrow post hangover. Hasta manana. :ugh:

aluminium persuader

2nd Dec 2003, 18:44

Having worked for 7yrs at a class G radar unit, "suggest" is a word I have used an awful lot. On more than one occaision when I've used it the pilot has responded with a "good call, and thanks". As a pilot, a radar unit will always be at the top of my list to be working, and if I heard a "suggestion", I like to think I would be moving before the controller had finished speaking.

Although this thread is kinda moving off track, this sort of example seems to be the "hot" topic. Back to the basics, this "duty of care" is getting out of hand. If we take it to extremes, are we going to make the whole world class A, because anything else would be dangerous? We seem to be absolving pilots of their responsibilities, not to mention their duty of care to us!