ATCOs and the tort of negligence

[foghorn]

On another thread there is talk of ATCOs owing a duty of care to pilots who, after being warned according to MATS Part 1, still put their aircraft in a potentially hazardous position.

This has set me thinking about the legal position of ATCOs - maybe one of our learned aviation lawyers that occasionally frequent this site might clarify.

Is an ATCO in discharging his professional duties subject to the Bolam test? (for non-lawyers this means roughly that he cannot be found liable for negligence if he acts in accordance with a reasonable body of professional opinion)

Or is the duty-of-care that is oft talked about in ATC circles some more specific duty written into some part of Aviation law and not in the tort of negligence?

[av8boy]

As this concerns air traffic controllers in the US who are employed by the FAA (but of course there are many other flavors of ATC employ out there)... The Federal Tort Claims Act imposes liability on the US government for the wrongful act or omission "of any employee of the government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. . . ." In other words (and speaking very generally), so long as the act or omission was "within the scope of employment," the US government takes the tort hit. If, however, the controller goes rouge and starts acting outside the scope of his or her employment, all bets are off.

[foghorn]

Thanks AV8boy - from my limited knowledge of the law (once upon a time having being a partly-fledged lawyer), it is similar here with regards to 'vicarious liability', however both employer and employee are jointly and severally liable unless the act was done 'on a frolic of his own' in which case just the employee is liable.

Tactically most litigants go for the employer as they have more resources etc.

[JustaFew]

...With the exception of the Mod who would claim Crown
Immunity...

[Whipping Boy's SATCO]

JustaFew, I'm not so sure the MoD can claim Crown Indemnity anymore. Certainly, in the well publicised Ben McDui case phrases such as "Vicarious Liability" were being banded around in abundance. I was my understanding that, if the charges had been proven, the MoD would have had to meet any claim unless they could prove that the controller concerned had indeed gone on a "frolic".

[peatair]

Within English law an ATCO would owe a duty of care to those to whom he provides a service and could be liable in negligence. Liability depends on their being a duty of care, breach of that duty and actual damage (e.g. personal injury).

Employers are generally liable for the torts of their "employees" when the employee is acting within the course of his employment.

The Crown Proceedings Acts date from 1947 and have generally made the Crown liable for the torts of Crown servants (e.g. military ATC) provided that a non-Crown servant would be liable in the same circumstances.

[CAP670]

A ruling in the UK High Court about 18 months ago (Merrett vs. Babb) confirms that it is quite possible for a professionally-qualified employee to assume a Duty of Care to a client or customer of the company of whom he or she is employed, and that such a Duty need not necessarily be expressly assumed and accepted by that professional employee.

This Court decision means that a qualified employee can be held personally liable for advice offered or actions taken on behalf of his or her company.

It's ultimately down to a question of "reasonableness" i.e. was it reasonable that the ATCO knew something and that he/she could have said or done something. A civil Court would decide.

A failure of a Duty of Care can arise if there is a failure by that person or company to do what it reasonably should be expected to do OR does what it reasonably should be expected not to do.

Merely complying with MATS Part 1/MATS Part 2 or JSPs doesn't necessarily cover your "six o'clock". However, the pilot(s) also have a Duty of Care as do ATS providers, AOs, airport operators, etc., etc.

Be aware that "damage" can be death, injury, nervous shock, damage to property, or a financial loss.

So, make sure you always have a good lawyer available and if you can't afford one, join GATCO, Prospect or Unison and take advantage of their legal representation insurance!

:ok: