Duty Of Care
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Duty Of Care
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?
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?
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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.
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.
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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.
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.
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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.
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.
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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?
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?
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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.
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.
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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.
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.
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"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.
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.
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).
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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
I remember a very similar thread being discussed 2/3 months ago regarding "UK ATC being covered by criminal law".
Here
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Duty of care
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.
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.
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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?
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?
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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!
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!
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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.
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.
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Duty of care cont'd...
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.
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.
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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?
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?
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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:
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:
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
- 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.
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
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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
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
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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.
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.