Another Red Baron down - all safe
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JayBe, you may want to re-read the posts in this thread, there are a few lessons in there which you might find useful in the future. 
You have obviously never been at the receiving end of an insurance claim process that didn't go smoothly (aviation or not, doesn't matter, lawyers are lawyers and insurance companies positively hate parting with their money). I am speaking from experience when I say that the advice given here to be coy with details until payments are made, is probably the best you will ever get for free
Your assumptions about how this will pan out are exactly that, assumptions, and many here will be able to tell you how often they've been bitten in the proverbial by making assumptions
You don't know what the insurance stipulates that the pilot, owner and operator were using, and you don't know what the person or company who will find themselves out of pocket will do to recover their losses.
Fact is you have exposed the pilot and yourself to the very real risk of legal action due to your indiscretions. If you are very lucky, you and he will get away unscathed, but if the wrong person reads these posts and takes the information to the legal eagles who are deliberating whether or not to pay out a handsome six figure sum, there may be trouble ahead..
I agree we should all share information to increase safety in aviation, but if this comes at a potential six figure cost to someone, I would say it would be fair to all to delay the sharing of such information until the insurance dealings are closed, and in any case we're speculating here, aren't we, and it would be up to the authorities to determine the actual cause of the accident.. Also, in this case, if it indeed happened as you reported, there's really not much to learn apart from "it's dangerous not to adhere to proper process when conducting operations" and maybe "it might kill you if you insist on being silly in the air, especially with passengers on board", and, quite frankly, no pilot should be in the air who doesn't know this already.
You have obviously never been at the receiving end of an insurance claim process that didn't go smoothly (aviation or not, doesn't matter, lawyers are lawyers and insurance companies positively hate parting with their money). I am speaking from experience when I say that the advice given here to be coy with details until payments are made, is probably the best you will ever get for free
Your assumptions about how this will pan out are exactly that, assumptions, and many here will be able to tell you how often they've been bitten in the proverbial by making assumptions
You don't know what the insurance stipulates that the pilot, owner and operator were using, and you don't know what the person or company who will find themselves out of pocket will do to recover their losses.Fact is you have exposed the pilot and yourself to the very real risk of legal action due to your indiscretions. If you are very lucky, you and he will get away unscathed, but if the wrong person reads these posts and takes the information to the legal eagles who are deliberating whether or not to pay out a handsome six figure sum, there may be trouble ahead..
I agree we should all share information to increase safety in aviation, but if this comes at a potential six figure cost to someone, I would say it would be fair to all to delay the sharing of such information until the insurance dealings are closed, and in any case we're speculating here, aren't we, and it would be up to the authorities to determine the actual cause of the accident.. Also, in this case, if it indeed happened as you reported, there's really not much to learn apart from "it's dangerous not to adhere to proper process when conducting operations" and maybe "it might kill you if you insist on being silly in the air, especially with passengers on board", and, quite frankly, no pilot should be in the air who doesn't know this already.
Last edited by PlankBlender; 20th Oct 2008 at 19:37.
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In my opinion it is entirely appropriate for people to come on here and discuss what could have caused the accident. As long as we keep our thoughts/opinions at a sensible level then the value of such a discussion is high. For example, on this thread - if only one person has learnt from this discussion that carby heat should be applied in every simulated engine failure - then it's quite possible that there is already a life saved as a result.
I hardly think a judge or an insurance company would be gathering their evidence from anonymous comments on pprune.
I hardly think a judge or an insurance company would be gathering their evidence from anonymous comments on pprune.
The issue here is not the discussion on what may have caused the accident. The issue here is an anonymous poster saying that direct discussions with the pilot revealed that he was [albeit innocently] doing an illegal activity and the accident came from that activity.
How would you like it if you were the one involved and you told a mate possibly in confidence and then he posts it on the 'net for all to see.
As for the insurance company - I would not put it past them to read something here and investigate further.
It has nothing, I say again, nothing to do with disseminating information about something that has caught many out in the past and will do so in the future.
How would you like it if you were the one involved and you told a mate possibly in confidence and then he posts it on the 'net for all to see.
As for the insurance company - I would not put it past them to read something here and investigate further.
It has nothing, I say again, nothing to do with disseminating information about something that has caught many out in the past and will do so in the future.
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robin pilot, no disrespect, but if a pilot learned from this tread that he should apply carb heat while doing PFL's he/she has paid VERY little attention during his training.
things do get forgotten for numbers off reason like distraction.
but if a pilot did a PFL and than thinks, o yeah i read on pprune to pull the carb heat I think he need to get a good hard look at him/her self.
things do get forgotten for numbers off reason like distraction.
but if a pilot did a PFL and than thinks, o yeah i read on pprune to pull the carb heat I think he need to get a good hard look at him/her self.
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Compressor stall - re "how would I like if it my mate" etc etc - good point, well made. He'd be off the christmas card list that's for sure. 
gadude - I agree mate, but reading some of the other posts on pprune it would suggest that some pilots have either never been taught this or have forgotten. Anyone can get sloppy or let bad habits creep in. This forum helps reinforce the importance of things we may have let slide over time.
If the pilot of this crash had read on here last week about someone crashing in the same cricumstances - and that the pilot was at fault for not applying carby heat - then do you think he would have gone out on Saturday and forgotten to put the heat on?
gadude - I agree mate, but reading some of the other posts on pprune it would suggest that some pilots have either never been taught this or have forgotten. Anyone can get sloppy or let bad habits creep in. This forum helps reinforce the importance of things we may have let slide over time.
If the pilot of this crash had read on here last week about someone crashing in the same cricumstances - and that the pilot was at fault for not applying carby heat - then do you think he would have gone out on Saturday and forgotten to put the heat on?
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From experience, I believe the wisest words spoken in this thread could be paraphrased as:
Keep your mouth shut, say nothing to anyone until you've spoken to a lawyer.
Events that I have peripherally been involved in have been characterised by the same individual(s) making statements to as many different regulatory bodies as are even remotely involved. These may include Crash investigators, Insurance representatives, Regulatory representatives, Police investigators, Union representatives and anyone else that may figure they have an 'interest' in the event. For the largest part, they will all ask the same or very similar questions, with some very specific to their own particular area of expertise or interest -for the most part with the intention of absolving themselves of some level of responsibility -or even opening the possibility of criminal liability for those directly involved, or those only 'making a statement' that connects them at some level to the event.
You will be frequently told that your disclosures will not be used in criminal proceedings against you or anyone else, that the investigation is only to get to the root cause and prevent a recurrence... horse-hockey. The old saw 'everything you say can and will be used against you in a court of law' applies.
During the course of the investigation as I said previously, you will be asked the same questions time and again -with subtle differences. Your answer to the questions will also change subtly with each repetition. You may not even be aware of the differences, considering that you have given exactly the same answer as previously, only in fewer words now because you have had more time to hone your response, you may have added or omitted minor details... things you previously thought were irrelevant or think of as irrelevant now.
ALL of these differences will come back to bite you or someone else involved in the arse.
NONE of the investigators want you to have the time to think through your response to their questions, either on your own or in the company of those others that may be involved. They have good reason for that, but it is not in your best interests.
I have spent many anguished hours thinking and rethinking events surrounding a crash. All of those 'what happened', 'why', 'what could have been done to prevent it', 'what could have been done better' questions. I have participated in our own 'investigations' of known facts, from which we have drawn our own conclusions as to the root-cause of events. That is often done in the knowledge of the (deceased) pilot as an individual, a friend, a colleague and their habits. In two cases I can guarantee we are a damn sight closer to the truth than the professional investigators ever got.
Don't ever make the mistake of thinking that investigators from whatever agency are interested only in the facts and truth. They are influenced by many external forces including political, commercial, avoidance of some level of responsibility particularly where that responsibility may rest with their own or another closely related agency, and even pressure from the family of a deceased pilot, desperate to protect the reputation of their lost loved-one at whatever cost.
From that past experience I now have a few 'rules':
At the end of the day, the only person you can rely on wholly and unreservedly is yourself.
Keep your mouth shut, say nothing to anyone until you've spoken to a lawyer.
Events that I have peripherally been involved in have been characterised by the same individual(s) making statements to as many different regulatory bodies as are even remotely involved. These may include Crash investigators, Insurance representatives, Regulatory representatives, Police investigators, Union representatives and anyone else that may figure they have an 'interest' in the event. For the largest part, they will all ask the same or very similar questions, with some very specific to their own particular area of expertise or interest -for the most part with the intention of absolving themselves of some level of responsibility -or even opening the possibility of criminal liability for those directly involved, or those only 'making a statement' that connects them at some level to the event.
You will be frequently told that your disclosures will not be used in criminal proceedings against you or anyone else, that the investigation is only to get to the root cause and prevent a recurrence... horse-hockey. The old saw 'everything you say can and will be used against you in a court of law' applies.
During the course of the investigation as I said previously, you will be asked the same questions time and again -with subtle differences. Your answer to the questions will also change subtly with each repetition. You may not even be aware of the differences, considering that you have given exactly the same answer as previously, only in fewer words now because you have had more time to hone your response, you may have added or omitted minor details... things you previously thought were irrelevant or think of as irrelevant now.
ALL of these differences will come back to bite you or someone else involved in the arse.
NONE of the investigators want you to have the time to think through your response to their questions, either on your own or in the company of those others that may be involved. They have good reason for that, but it is not in your best interests.
I have spent many anguished hours thinking and rethinking events surrounding a crash. All of those 'what happened', 'why', 'what could have been done to prevent it', 'what could have been done better' questions. I have participated in our own 'investigations' of known facts, from which we have drawn our own conclusions as to the root-cause of events. That is often done in the knowledge of the (deceased) pilot as an individual, a friend, a colleague and their habits. In two cases I can guarantee we are a damn sight closer to the truth than the professional investigators ever got.
Don't ever make the mistake of thinking that investigators from whatever agency are interested only in the facts and truth. They are influenced by many external forces including political, commercial, avoidance of some level of responsibility particularly where that responsibility may rest with their own or another closely related agency, and even pressure from the family of a deceased pilot, desperate to protect the reputation of their lost loved-one at whatever cost.
From that past experience I now have a few 'rules':
- Stay schtoom,
- Say nothing to ANYONE,
- Engage a lawyer immediately -either your own or a company-provided one, preferably with an aviation law practice or knowledge,
- Ask all investigators to submit their questions in writing,
- Answer all the questions (with your lawyer) truthfully and fully in writing, provide copies of those answers to all the investigators,
- Do the same for any follow-up questions, and
- Say nothing to anyone else.
At the end of the day, the only person you can rely on wholly and unreservedly is yourself.
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Maye not, maybe we should just include pprune in our cheks lol.
And we should keep in mind that we don't know the cause off the accident.
We all do forget cheks sometimes, at least i do.
I think thats why the airline blokes use a cheklist, (meaning they use a peace off paper to run down) rathen than using there memory.
I dont forget whole cheklists tough,.
just sometimes lil things like turning transponder on.
but than the tower is friendly enough to ask you what the go is
And we should keep in mind that we don't know the cause off the accident.
We all do forget cheks sometimes, at least i do.
I think thats why the airline blokes use a cheklist, (meaning they use a peace off paper to run down) rathen than using there memory.
I dont forget whole cheklists tough,.
just sometimes lil things like turning transponder on.
but than the tower is friendly enough to ask you what the go is
Radio Saigon- Your advise is sound but in one respect you are not correct. The ATSB investigation is covered by the TSI Act where you are legally required to provide information to the investigator. In return the Act is clear that the information cannot be used by any other agency. It is also clear that if the investigator makes the information public, ( as in transcripts or recordings of the interview), then its the investigator who goes to gaol. The final report cannot be used as evidence in a court of law. Often what happens though is the person who is involved in an incident or accident tells the same thing to some other agency where the protections do not apply. The ideal interview with an ATSB investigator should only have one question, "In your own time, tell us what happened?" Its called the cognitive interview (Google it and see what you come up with), it is more effective than a question and answer session.
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I am not advocating refusing to provide information Lookleft, just saying be very careful what you say, how you say it, how many times you say it and who you say it to.
The what & how should be with the advice of your lawyer and should fully and concisely answer the questions in words that cannot be misconstrued or twisted to another's' purposes.
How many times? Once should be enough.
And who you say it to? This thread exemplifies how to best not go about it.
No argument there. All I'm advocating is that if possible that information is provided to the investigator in a written response, with the advice of your legal representative.
I'll take your word for that -I have neither the time nor the inclination at the moment to go trawling through legislation. However, I believe it would be naive in the extreme to believe that an investigator would not provide information to other investigating agencies, if he thought it appropriate, necessary or believed that in doing so he might 'shake loose' some information that could be relevant to his own investigation. A quiet word in an ear over a beer or a hint that 'maybe you'll want to look at this a bit' is all it would take, keeping the investigator within the terms of the Act.
Possibly not, but the statements and evidence gathered by the investigator and the thought processes and models used to support the conclusions surely can be!
Wouldn't that be nice. Fact is, the investigators use their very specific questions to guide and direct the interview, in some cases provoking responses that may appear innocent enough, merely peripherally related to the event under investigation, but which can (and have had) a major impact on the direction of the investigation!!!
The investigators and the agencies they represent are always several pages ahead of where you are now or may soon be. In a major investigation, they will have teams of lawyers directing the investigators line of questioning. Two reasons for this are apparent to me immediately:
One, to extract information that may be only loosely related to the incident but which may prove useful (obfuscating the real reason for the incident or providing a handy scape-goat) and
Two, keeping the line-of-questioning well away from shortcomings in their own legislation, actions or investigations that may prove at best embarrassing, or open their own or another agency to legal action.
I'm not sufficiently paranoid that I'm suggesting this or anything like it happens in every investigation -most are relatively straight-forward with an easily established chain of events that lead to a consequence. I have however experienced this myself in one major investigation and have strong reason to believe a less-than-conscientious investigation has been conducted in a couple of others.
The what & how should be with the advice of your lawyer and should fully and concisely answer the questions in words that cannot be misconstrued or twisted to another's' purposes.
How many times? Once should be enough.
And who you say it to? This thread exemplifies how to best not go about it.
Originally Posted by Lookleft
...the TSI Act where you are legally required to provide information to the investigator...
Originally Posted by Lookleft
...the Act is clear that the information cannot be used by any other agency...
Originally Posted by Lookleft
The final report cannot be used as evidence in a court of law.
Originally Posted by Lookleft
The ideal interview with an ATSB investigator should only have one question, "In your own time, tell us what happened?" Its called the cognitive interview...
The investigators and the agencies they represent are always several pages ahead of where you are now or may soon be. In a major investigation, they will have teams of lawyers directing the investigators line of questioning. Two reasons for this are apparent to me immediately:
One, to extract information that may be only loosely related to the incident but which may prove useful (obfuscating the real reason for the incident or providing a handy scape-goat) and
Two, keeping the line-of-questioning well away from shortcomings in their own legislation, actions or investigations that may prove at best embarrassing, or open their own or another agency to legal action.
I'm not sufficiently paranoid that I'm suggesting this or anything like it happens in every investigation -most are relatively straight-forward with an easily established chain of events that lead to a consequence. I have however experienced this myself in one major investigation and have strong reason to believe a less-than-conscientious investigation has been conducted in a couple of others.
RS- I would be interested to know whether the investigations you were involved with were conducted in Australia after 2003. In an Australian investigation your legal representative is there for moral support and cannot direct you to not answer a question. As I said ,if an investigator in Australia, makes public information provided then he/she goes to gaol. Not a consequence to be taken lightly. As far as I am aware the ATSB only has one lawyer on staff and he/she does not direct an investigation.
The statements and evidence gathered by the investigator are not available to any other agency. Probably drifted this thread far enough
The statements and evidence gathered by the investigator are not available to any other agency. Probably drifted this thread far enough
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A relevant and topical article, with particular reference to the current situation in NZ.
Originally Posted by PacificWings feature
Right to Remain Silent? - by Leigh Neil
Safety is the number one priority for all good pilots, right? So what happens when the supposed quest for safety impinges on a pilot’s normally accepted rights and privileges? Leigh Neil reports on a recent court case in Hamilton that highlights some potentially serious issues with New Zealand’s aviation safety investigation structure and its application.
Before I get into a difficult, dry and possibly tedious dissection of relevant ICAO standards and recommendations, I invite you to consider the accident that is the background to this article. If you are a pilot, please try to imagine yourself in the position of the pilot in command of this particular flight.
In February 2006, a Warbirds Devon aircraft departed Hamilton on a VFR flight to Wellington. The pilot was in possession of the appropriate weather forecasts and reports, indicating that the flight was able to be conducted safely in the anticipated timeframe. However, the weather en-route deteriorated more rapidly than forecast and the pilot elected to divert to Ohakea in the interests of flight safety. After obtaining the correct clearances into the Ohakea TMA and control zone, the experienced Warbirds display pilot commenced his approach. When on short finals, at about 100 ft agl, the aircraft yawed and rolled uncontrollably to the right and crashed.
Now, just in case you are jumping to the conclusion that our intrepid pilot stalled on approach, remember that he is an experienced display pilot, and radar plots showed his approach speed to be too great to have caused a stall. The aircraft’s flight manual also makes it clear that the Devon’s stall characteristics are docile.
Thankfully, no crew or passengers were injured in the crash, and during the ensuing accident investigation, the conscientious pilot gave full and frank statements, providing the New Zealand Civil Aviation Authority (CAA) investigators with all information at his disposal, obviously in the interests of enabling a thorough safety analysis of the crash (as would we all, I’m sure).
After carrying out their investigation, the CAA elected to prosecute the pilot, charging him with “Unnecessary Endangerment”, apparently on the basis that he had pushed ordinary VFR weather limitations and height limits, and then flown the aircraft poorly, to the point of stalling and crashing. Not being party to every shred of evidence, it is not the intent of this article to argue the validity of the charge. Indeed, it is the court’s duty to establish its validity and it can be reasonably argued that the CAA is correct in laying charges if it appears, after a comprehensive and thorough investigation, that there may be a case to answer. What is of concern are the questions of what evidence the CAA used to establish the alleged offence, how that evidence was obtained, what defines a comprehensive and thorough investigation, and, at an organisational level, how the CAA came to be carrying out both investigation and prosecution in the first place.
By the way, for those of you that are easily bored and don’t want to read the full article, the pilot was acquitted after a jury trial.
It was relevant to the pilot’s defence that the prosecution confirmed in court that the crash was a relevant factor in their case and that they were not simply prosecuting the pilot for pushing beyond weather limitations. The defence appointed Andrew McGregor, a forensic engineer who was assisted by LAME Paul Waterhouse and who contended that the Devons’ left-hand flap actuator had failed in flight. This would explain the sudden and uncontrolled yaw/roll to the right in an aircraft known to have docile stall characteristics. Obviously, once that was established, the prosecution’s case was unlikely to succeed. What is of major concern is that this finding was only made by the defence after it appeared that the CAA investigation had been somewhat superficial.
Produced in evidence against the pilot were his own statements, made to investigators for the purposes of the accident investigation. This brings up the biggest issue of crucial importance that has been raised by this case: can there be any assurance that statements given in good faith for the purpose of accident investigation will not be utilised in subsequent criminal or disciplinary procedures?
The extremely worrying conclusion that must be drawn is: No, there can be no such assurance.
Most of us are under the impression that statements made for accident investigation purposes are privileged, and will not be used against us in criminal or disciplinary proceedings. This belief is based on the provisions of Annex 13 to the Convention on International Civil Aviation, which states:
OBJECTIVE OF THE INVESTIGATION
3.1 The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents.
It is not the purpose of this activity to apportion blame or liability.
It later clarifies this with the following:
5.4.1 Recommendation.— Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provisions of this Annex.
It is abundantly clear that the investigative and disciplinary functions should be entirely separate, and Annex 13 includes the following standard that not only prevents disclosure of most information gathered from the investigation, but also goes on to explain exactly why that prohibition is vitally necessary to flight safety.
Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:
a) all statements taken from persons by the investigation authorities in the course of their investigation;
b) all communications between persons having been involved in the operation of the aircraft;
c) medical or private information regarding persons involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings; and
e) opinions expressed in the analysis of information, including flight recorder information.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.
New Zealand’s Civil Aviation Rule Part 12.63 provides:
- the Authority shall not use or make available for the purpose of prosecution, investigation or for prosecution action any information submitted to it by a person unless the following criteria are met:
(1) the information reveals an act or omission that caused unnecessary danger to any other person or to any property; or
(2) false information is submitted; or
(3) the Authority is obliged to release the information pursuant to a statutory requirement or by order of a Court.
It can be seen above that the ICAO standard permits disclosure of that information, but only where it is deemed of such vital importance that the substantial and acknowledged negative impact on flight safety is outweighed by the benefits of disclosure. The New Zealand Rule appears to be much less demanding in its criteria for release of information and therefore is potentially at odds with the intent of Annex 13. Notwithstanding CAA’s Rule, in order to claim compliance with Annex 13, therefore, CAA must have the genuine belief that the Devon pilot’s transgression was so serious, so terrible, so injurious to the public good that his prosecution justified jeopardising all future accident investigations in this country.
Pacific Wings magazine understands that, in a letter to Irene King of the Aviation Industry Association, the Director of Civil Aviation, Steve Douglas, took issue with several points made in the Aviation Industry Association’s press release. When requested by this magazine, Mr Douglas re-iterated those concerns, including stressing strongly that the court did not determine the cause of the crash, as that was not the court’s job. This can be seen as being deliberately obtuse when it is remembered that the prosecution confirmed that the crash was a relevant factor in their case and the determination of the flap failure was undeniably crucial in casting substantial doubt on the pilot’s guilt.
It may not have been the duty of the court to establish the cause of the crash, but evidence as to the actual cause of the crash played a major role in allowing the court to find on the matter that was before it, i.e. whether the pilot was guilty of unnecessary endangerment.
Mr Douglas also justifies the disclosure of information as being appropriate and consistent with the ICAO “principles of exception”. This statement should raise a very large, very bright red flag to all aviation personnel because, if it is true, every accident in New Zealand that may result in avoidable danger to life or property (in CAA’s opinion) will justify full disclosure. ICAO Annex 13’s protection will, therefore, have virtually no effect whatsoever. Accordingly, no pilot could ever reasonably be expected to provide safety information to investigators in future. This is an intolerable situation that undermines flight safety in New Zealand to an unacceptable and unnecessary degree.
Disclosure of information gathered during accident investigation opens one more can of worms. At what point is the provider of that information notified of his rights under the New Zealand Bill of Rights Act? It is unreasonable to expect that the pilot is to be treated with less consideration or given fewer rights than the criminal who is arrested red-handed at the scene of a crime. Who is to advise him or her of those rights? I somehow doubt that any pilot will be particularly forthcoming in an accident situation if the first thing investigators tell him is that he has the right to refrain from making any statement, any statement he makes may be used in court and that he has the right to have a lawyer present. Mr Douglas fails to address this issue, commenting only that the AIA’s claim that CAA breached both the ICAO “no blame” process and the criminal investigation process merely indicated the AIA’s “poor understanding of the principles that govern the operation of the civil aviation system”. It is the view of this magazine that the AIA press release indicates a thorough understanding of the principles promoted under ICAO Annex 13 and the principles of fairness that are an integral part of the criminal justice system.
It can be seen from the foregoing paragraphs that the prosecution of this pilot, therefore, seems to breach two extremely important processes. Firstly, the intent of ICAO Annex 13, with the concomitant degradation of future flight safety, and secondly, the application of the criminal investigation process, including Bill of Rights protection, supposedly able to be taken for granted by all New Zealanders.
In relation to the separation of the judicial and investigative proceedings, ICAO established in a recent audit of the New Zealand structure that our system did not comply with that recommendation. At that time, those functions were carried out by two separate branches within CAA, with a bureaucratic “brick wall” to bolster their separation, and the audit determined that insufficient separation existed to meet the intent of Annex 13.
Subsequent to that audit, CAA have not strengthened the barriers between the two branches but have actually merged them into one unit. It appears now that only when an accident is investigated by the totally independent Transport Accident Investigation Commission (TAIC) can compliance with that part of the Annex be ensured. Unfortunately, Mr Douglas failed to address how this issue is seen by the department or how it can be addressed.
It is also interesting that the Coroner’s Report into the Air Adventures multiple-fatality crash contained the following recommendation.
“That consideration be given to the feasibility and desirability of establishing an independent confidential air safety incident reporting system in New Zealand taking account of previous difficulties with the system known as Icarus, and/or an office of aviation ombudsman.”
While targeting a slightly different scenario, this recommendation reflects the coroner’s recognition of the importance of having a robust, independent and confidential system in place to gather data on aviation incidents in the interests of enhancing flight safety.
The major remaining issue highlighted by this case is that of the degree of robustness of a comprehensive investigation for accident analysis and prevention purposes, compared to the preparation of a case for presentation in court. Most people would believe that, by taking an incident to court, the most complete and thorough determination of fact would be made. Unfortunately, those people do not understand that our judicial system is an adversarial one, whereby only those matters that are specifically at issue or relevant to the charge are considered. This only increases the relevance of a thorough safety investigation and highlights its importance ahead of the need to prosecute.
To illustrate this, consider the Devon. It can be seen that the flap failure was a vital factor in the case; however, even the defence forensic engineer was not required to carry out a complete investigation. Once he established the flap actuator had failed in flight, his job for the defence was done; the pilot was a victim of catastrophic mechanical failure, the court case can be resolved and the judicial system is satisfied. But why did the actuator fail? A comprehensive accident investigation would have made every attempt to determine that, as its purpose is to find all available facts in an attempt to improve flight safety.
No doubt, both the CAA and Andrew McGregor would prefer to be carrying out professional, thorough work that enhances flight safety. How can the New Zealand system be improved to enable that ideal to be achieved? Certainly not by creating tension and enmity between our regulatory bodies and the aviation industry. As is invariably the case, the answer starts with an open and inclusive relationship between all interested parties. I am uncomfortable when the first reaction of the director of a governmental agency appears to be justification, rather than the seeking of a forum to discuss and, hopefully, resolve issues of concern.
We are very fortunate in New Zealand that corruption is almost non-existent in our regulatory bodies, while their staff members are predominantly highly skilled, ethical and hard-working. However, as long as pilots have little trust in the system, that lack of trust will reflect on their dealings with governmental agencies and personnel.
I believe that the most important step necessary in the aviation industry’s quest for improved safety is to recognise the drawbacks in the existing structure and then work co-operatively to rectify what seem to be glaring deficiencies. I’m hoping but I’m not holding my breath!
Safety is the number one priority for all good pilots, right? So what happens when the supposed quest for safety impinges on a pilot’s normally accepted rights and privileges? Leigh Neil reports on a recent court case in Hamilton that highlights some potentially serious issues with New Zealand’s aviation safety investigation structure and its application.
Before I get into a difficult, dry and possibly tedious dissection of relevant ICAO standards and recommendations, I invite you to consider the accident that is the background to this article. If you are a pilot, please try to imagine yourself in the position of the pilot in command of this particular flight.
In February 2006, a Warbirds Devon aircraft departed Hamilton on a VFR flight to Wellington. The pilot was in possession of the appropriate weather forecasts and reports, indicating that the flight was able to be conducted safely in the anticipated timeframe. However, the weather en-route deteriorated more rapidly than forecast and the pilot elected to divert to Ohakea in the interests of flight safety. After obtaining the correct clearances into the Ohakea TMA and control zone, the experienced Warbirds display pilot commenced his approach. When on short finals, at about 100 ft agl, the aircraft yawed and rolled uncontrollably to the right and crashed.
Now, just in case you are jumping to the conclusion that our intrepid pilot stalled on approach, remember that he is an experienced display pilot, and radar plots showed his approach speed to be too great to have caused a stall. The aircraft’s flight manual also makes it clear that the Devon’s stall characteristics are docile.
Thankfully, no crew or passengers were injured in the crash, and during the ensuing accident investigation, the conscientious pilot gave full and frank statements, providing the New Zealand Civil Aviation Authority (CAA) investigators with all information at his disposal, obviously in the interests of enabling a thorough safety analysis of the crash (as would we all, I’m sure).
After carrying out their investigation, the CAA elected to prosecute the pilot, charging him with “Unnecessary Endangerment”, apparently on the basis that he had pushed ordinary VFR weather limitations and height limits, and then flown the aircraft poorly, to the point of stalling and crashing. Not being party to every shred of evidence, it is not the intent of this article to argue the validity of the charge. Indeed, it is the court’s duty to establish its validity and it can be reasonably argued that the CAA is correct in laying charges if it appears, after a comprehensive and thorough investigation, that there may be a case to answer. What is of concern are the questions of what evidence the CAA used to establish the alleged offence, how that evidence was obtained, what defines a comprehensive and thorough investigation, and, at an organisational level, how the CAA came to be carrying out both investigation and prosecution in the first place.
By the way, for those of you that are easily bored and don’t want to read the full article, the pilot was acquitted after a jury trial.
It was relevant to the pilot’s defence that the prosecution confirmed in court that the crash was a relevant factor in their case and that they were not simply prosecuting the pilot for pushing beyond weather limitations. The defence appointed Andrew McGregor, a forensic engineer who was assisted by LAME Paul Waterhouse and who contended that the Devons’ left-hand flap actuator had failed in flight. This would explain the sudden and uncontrolled yaw/roll to the right in an aircraft known to have docile stall characteristics. Obviously, once that was established, the prosecution’s case was unlikely to succeed. What is of major concern is that this finding was only made by the defence after it appeared that the CAA investigation had been somewhat superficial.
Produced in evidence against the pilot were his own statements, made to investigators for the purposes of the accident investigation. This brings up the biggest issue of crucial importance that has been raised by this case: can there be any assurance that statements given in good faith for the purpose of accident investigation will not be utilised in subsequent criminal or disciplinary procedures?
The extremely worrying conclusion that must be drawn is: No, there can be no such assurance.
Most of us are under the impression that statements made for accident investigation purposes are privileged, and will not be used against us in criminal or disciplinary proceedings. This belief is based on the provisions of Annex 13 to the Convention on International Civil Aviation, which states:
OBJECTIVE OF THE INVESTIGATION
3.1 The sole objective of the investigation of an accident or incident shall be the prevention of accidents and incidents.
It is not the purpose of this activity to apportion blame or liability.
It later clarifies this with the following:
5.4.1 Recommendation.— Any judicial or administrative proceedings to apportion blame or liability should be separate from any investigation conducted under the provisions of this Annex.
It is abundantly clear that the investigative and disciplinary functions should be entirely separate, and Annex 13 includes the following standard that not only prevents disclosure of most information gathered from the investigation, but also goes on to explain exactly why that prohibition is vitally necessary to flight safety.
Non-disclosure of records
5.12 The State conducting the investigation of an accident or incident shall not make the following records available for purposes other than accident or incident investigation, unless the appropriate authority for the administration of justice in that State determines that their disclosure outweighs the adverse domestic and international impact such action may have on that or any future investigations:
a) all statements taken from persons by the investigation authorities in the course of their investigation;
b) all communications between persons having been involved in the operation of the aircraft;
c) medical or private information regarding persons involved in the accident or incident;
d) cockpit voice recordings and transcripts from such recordings; and
e) opinions expressed in the analysis of information, including flight recorder information.
5.12.1 These records shall be included in the final report or its appendices only when pertinent to the analysis of the accident or incident. Parts of the records not relevant to the analysis shall not be disclosed.
Note.— Information contained in the records listed above, which includes information given voluntarily by persons interviewed during the investigation of an accident or incident, could be utilized inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed, it may, in the future, no longer be openly disclosed to investigators. Lack of access to such information would impede the investigation process and seriously affect flight safety.
New Zealand’s Civil Aviation Rule Part 12.63 provides:
- the Authority shall not use or make available for the purpose of prosecution, investigation or for prosecution action any information submitted to it by a person unless the following criteria are met:
(1) the information reveals an act or omission that caused unnecessary danger to any other person or to any property; or
(2) false information is submitted; or
(3) the Authority is obliged to release the information pursuant to a statutory requirement or by order of a Court.
It can be seen above that the ICAO standard permits disclosure of that information, but only where it is deemed of such vital importance that the substantial and acknowledged negative impact on flight safety is outweighed by the benefits of disclosure. The New Zealand Rule appears to be much less demanding in its criteria for release of information and therefore is potentially at odds with the intent of Annex 13. Notwithstanding CAA’s Rule, in order to claim compliance with Annex 13, therefore, CAA must have the genuine belief that the Devon pilot’s transgression was so serious, so terrible, so injurious to the public good that his prosecution justified jeopardising all future accident investigations in this country.
Pacific Wings magazine understands that, in a letter to Irene King of the Aviation Industry Association, the Director of Civil Aviation, Steve Douglas, took issue with several points made in the Aviation Industry Association’s press release. When requested by this magazine, Mr Douglas re-iterated those concerns, including stressing strongly that the court did not determine the cause of the crash, as that was not the court’s job. This can be seen as being deliberately obtuse when it is remembered that the prosecution confirmed that the crash was a relevant factor in their case and the determination of the flap failure was undeniably crucial in casting substantial doubt on the pilot’s guilt.
It may not have been the duty of the court to establish the cause of the crash, but evidence as to the actual cause of the crash played a major role in allowing the court to find on the matter that was before it, i.e. whether the pilot was guilty of unnecessary endangerment.
Mr Douglas also justifies the disclosure of information as being appropriate and consistent with the ICAO “principles of exception”. This statement should raise a very large, very bright red flag to all aviation personnel because, if it is true, every accident in New Zealand that may result in avoidable danger to life or property (in CAA’s opinion) will justify full disclosure. ICAO Annex 13’s protection will, therefore, have virtually no effect whatsoever. Accordingly, no pilot could ever reasonably be expected to provide safety information to investigators in future. This is an intolerable situation that undermines flight safety in New Zealand to an unacceptable and unnecessary degree.
Disclosure of information gathered during accident investigation opens one more can of worms. At what point is the provider of that information notified of his rights under the New Zealand Bill of Rights Act? It is unreasonable to expect that the pilot is to be treated with less consideration or given fewer rights than the criminal who is arrested red-handed at the scene of a crime. Who is to advise him or her of those rights? I somehow doubt that any pilot will be particularly forthcoming in an accident situation if the first thing investigators tell him is that he has the right to refrain from making any statement, any statement he makes may be used in court and that he has the right to have a lawyer present. Mr Douglas fails to address this issue, commenting only that the AIA’s claim that CAA breached both the ICAO “no blame” process and the criminal investigation process merely indicated the AIA’s “poor understanding of the principles that govern the operation of the civil aviation system”. It is the view of this magazine that the AIA press release indicates a thorough understanding of the principles promoted under ICAO Annex 13 and the principles of fairness that are an integral part of the criminal justice system.
It can be seen from the foregoing paragraphs that the prosecution of this pilot, therefore, seems to breach two extremely important processes. Firstly, the intent of ICAO Annex 13, with the concomitant degradation of future flight safety, and secondly, the application of the criminal investigation process, including Bill of Rights protection, supposedly able to be taken for granted by all New Zealanders.
In relation to the separation of the judicial and investigative proceedings, ICAO established in a recent audit of the New Zealand structure that our system did not comply with that recommendation. At that time, those functions were carried out by two separate branches within CAA, with a bureaucratic “brick wall” to bolster their separation, and the audit determined that insufficient separation existed to meet the intent of Annex 13.
Subsequent to that audit, CAA have not strengthened the barriers between the two branches but have actually merged them into one unit. It appears now that only when an accident is investigated by the totally independent Transport Accident Investigation Commission (TAIC) can compliance with that part of the Annex be ensured. Unfortunately, Mr Douglas failed to address how this issue is seen by the department or how it can be addressed.
It is also interesting that the Coroner’s Report into the Air Adventures multiple-fatality crash contained the following recommendation.
“That consideration be given to the feasibility and desirability of establishing an independent confidential air safety incident reporting system in New Zealand taking account of previous difficulties with the system known as Icarus, and/or an office of aviation ombudsman.”
While targeting a slightly different scenario, this recommendation reflects the coroner’s recognition of the importance of having a robust, independent and confidential system in place to gather data on aviation incidents in the interests of enhancing flight safety.
The major remaining issue highlighted by this case is that of the degree of robustness of a comprehensive investigation for accident analysis and prevention purposes, compared to the preparation of a case for presentation in court. Most people would believe that, by taking an incident to court, the most complete and thorough determination of fact would be made. Unfortunately, those people do not understand that our judicial system is an adversarial one, whereby only those matters that are specifically at issue or relevant to the charge are considered. This only increases the relevance of a thorough safety investigation and highlights its importance ahead of the need to prosecute.
To illustrate this, consider the Devon. It can be seen that the flap failure was a vital factor in the case; however, even the defence forensic engineer was not required to carry out a complete investigation. Once he established the flap actuator had failed in flight, his job for the defence was done; the pilot was a victim of catastrophic mechanical failure, the court case can be resolved and the judicial system is satisfied. But why did the actuator fail? A comprehensive accident investigation would have made every attempt to determine that, as its purpose is to find all available facts in an attempt to improve flight safety.
No doubt, both the CAA and Andrew McGregor would prefer to be carrying out professional, thorough work that enhances flight safety. How can the New Zealand system be improved to enable that ideal to be achieved? Certainly not by creating tension and enmity between our regulatory bodies and the aviation industry. As is invariably the case, the answer starts with an open and inclusive relationship between all interested parties. I am uncomfortable when the first reaction of the director of a governmental agency appears to be justification, rather than the seeking of a forum to discuss and, hopefully, resolve issues of concern.
We are very fortunate in New Zealand that corruption is almost non-existent in our regulatory bodies, while their staff members are predominantly highly skilled, ethical and hard-working. However, as long as pilots have little trust in the system, that lack of trust will reflect on their dealings with governmental agencies and personnel.
I believe that the most important step necessary in the aviation industry’s quest for improved safety is to recognise the drawbacks in the existing structure and then work co-operatively to rectify what seem to be glaring deficiencies. I’m hoping but I’m not holding my breath!
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Originally Posted by LookLeft
...the highlighted section describes the situation in australia except for TAIC insert ATSB...
This information needs to be more widely known & understood, but plainly it is not. Even this thread seems to have drawn a major ho-hum from the wider community.
Nobody plans to have a crash or an incident, but should the worst happen your best defence is to be prepared, have some idea of what you are likely to face and have some form of strategy to deal with it.
Whilst the author of the article I quoted earlier holds TAIC forth as an independent body, I believe that only the seriously naive would believe that they (whether TAIC or ATSB) as a government body would not share information with the regulator as another government body. The information shared need not necessarily be made public, just known to be potentially damaging.
Don't forget too, that as government bodies they have access to the full media machinery available to the government. A strategic "leak" of information can unleash the full fury of a misled, misinformed public opinion upon any organisation, leading to a loss of public confidence and the swift, chaotic demise of that organisation. The papers are full of it at the moment, given the current economic uncertainty.
I've seen it done, I've experienced it. It happens.
Be prepared, just in case.
