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Norfolk Island Ditching ATSB Report - ?

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Norfolk Island Ditching ATSB Report - ?

Old 28th Nov 2017, 04:01
  #1101 (permalink)  
 
Join Date: Feb 2007
Location: Victoria, Australia
Posts: 87
Originally Posted by Lead Balloon:
Nonsense.
An “organisation holding an AOC” is a person, natural or unnatural. Otherwise, an AOC could not be issued to the “organisation” in the first place.

Qantas Airways Limited is a person. CASA is a person.
Persons can be sued and prosecuted.

Response posted by Eddie Dean: Are you positive?

Answer by me: Absolutely. Companies and Authorities take on the legal (but not physical) attributes of persons - that of a Corporate Body. (And CASA as an Authority is defined as such, as are all Australian companies also.) Google & Wikipedia will answer your questions. If in doubt though, refer to the relevant Act(s). So the entity can be "sued/ charged/ whatever," however it may still be possible to "sue/ charge/ whatever" certain individuals within.
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Old 28th Nov 2017, 05:02
  #1102 (permalink)  
 
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Not so sure in CAsA's case, maybe Lead ballon would be across the legal stuff.

I'm a total legalese dyslexic, trying to read CAsA's reg's gives me an instant migraine and my eye's start to water, but wasn't there a case in the federal court in Perth some years ago brought against CAsA for alleged malfeasance, where the judge ruled CAsA could do anything they wanted and were therefore unaccountable? or did I read that all wrong.
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Old 28th Nov 2017, 05:58
  #1103 (permalink)  
 
Join Date: Jan 2002
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In past years the Attorney Generals Dept has advised CAsA that it can be sued, and likewise individuals within the organization can be done also.

In the old Compliance and Enforcement Manual...there is a 'warning' comment page.

The protocols for any 'enforcement' written there in, are not necessarily the MOs used by some CAsA persons.
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Old 28th Nov 2017, 06:25
  #1104 (permalink)  
 
Join Date: Nov 2001
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Originally Posted by thorn bird View Post
Not so sure in CAsA's case, maybe Lead ballon would be across the legal stuff.

I'm a total legalese dyslexic, trying to read CAsA's reg's gives me an instant migraine and my eye's start to water, but wasn't there a case in the federal court in Perth some years ago brought against CAsA for alleged malfeasance, where the judge ruled CAsA could do anything they wanted and were therefore unaccountable? or did I read that all wrong.
You did read that all wrong.

The very fact that CASA was a party to the proceedings in the first place shows that, as is plainly stated in section 8(2)(c) of the CA Act, CASA can be sued. The claim of malfeasance in that case, as with the other claims that were made, were found by the Court not to have been proved.
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Old 28th Nov 2017, 10:04
  #1105 (permalink)  
 
Join Date: May 2002
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There are multiple cases in the Federal Court where CASA is a party and is stated as such in the case title.

Individuals in CASA are protected from individual legal action so long as they act within the relevant legislation. The moment a government employee steps outside of that they can be subject to legal proceedings in a civil court or even prosecution in a criminal court.
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Old 28th Nov 2017, 10:16
  #1106 (permalink)  
 
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“Protected” through what mechanism?

Action can be taken, and has been taken, against individual officers of CASA, in that capacity, and by name.

The usual impediment to a successful action is the lack of admissible evidence sufficient to prove the elements of the claim to the requisite standard. That’s how the law works.
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Old 28th Nov 2017, 10:56
  #1107 (permalink)  
 
Join Date: Nov 2001
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Vicarious liability
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Old 28th Nov 2017, 13:02
  #1108 (permalink)  
 
Join Date: Apr 2013
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Originally Posted by Lead Balloon View Post
“Protected” through what mechanism?

Action can be taken, and has been taken, against individual officers of CASA, in that capacity, and by name.

The usual impediment to a successful action is the lack of admissible evidence sufficient to prove the elements of the claim to the requisite standard. That’s how the law works.
That's a very narrow view and I suggest a different view: the usual impediment to prosecuting a public servant might be that they were simply doing their job. If they are doing their job in an incompetent manner that changes things little, because this is often the case. Negligence is a step further, and generally (but not always!) if they undertake criminal actions their immunity is shot to bits.

I suspect that Australian public servants enjoy a common law protection from prosecution while doing their jobs in a responsible way (in "good faith"). There are also a great many Acts that spell this out.

I've had experience with trying to bring an action against a public servant and have witnessed the dramatic closing of the ranks by most fellow public servants against this threat. This wasn't in an aviation setting.

There is more info here:

https://www.alrc.gov.au/sites/defaul..._liability.pdf
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Old 28th Nov 2017, 20:51
  #1109 (permalink)  
 
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I was merely responding to the suggestion that individuals are protected from legal action. They are not.

Whether the legal action is successful is, of course, an entirely separate question that depends on stuff called “facts” and “law”.

Polar Aviation Pty Ltd v Civil Aviation Safety Authority [2012] FCAFC 97 (4 July 2012)

PARTIES:

POLAR AVIATION PTY LTD and CLARK ANDREW BUTSON

v

CIVIL AVIATION SAFETY AUTHORITY

TERRENCE FARQUHARSON

GARY PRESNEILL

ROBERT COLLINS

JIM MARCOLIN

PETER JOHN and

ALLAN COOK

Each of the individuals was a separate defendant/respondent in the action.
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Old 29th Nov 2017, 01:20
  #1110 (permalink)  
 
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"Character" is unfortunately a term missing in action these days in the western world so it is not possible to exhume it and paint the PIC with it. If it were otherwise we would not have had the procession of flawed Prime Ministers we have had.

Furthermore, to make your point you would have to compare the PIC character with the ATSB, CASA and his employers "character" as well. None of those are necessarily pretty either.

As for your contention regarding the PICs actions, none of us were there and few of us have even done ditching training anyway. None of us can predict our reactions to such a traumatic event nor our behaviour in the aftermath. I note that "but for' the PICs torch being spotted it is doubtful that there would be any rescue at all.

In any case the treatment of the pilot by CASA must not be a function of his alleged "attitude" - which is part of the problem with CASA.
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Old 29th Nov 2017, 07:28
  #1111 (permalink)  
 
Join Date: Sep 2009
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PIC ran out of fuel.
He had insufficient fuel for the flight, as evidenced by the crash.

End of story. Regardless of the CASA rules or not.
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Old 29th Nov 2017, 07:37
  #1112 (permalink)  
 
Join Date: Apr 1999
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Casper

Totally correct, Zanthrus. It's called responsibility and duty of care.
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Old 29th Nov 2017, 07:54
  #1113 (permalink)  
 
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I agree to a certain extent with what you said Zanthrus, but I think we shouldn’t hold such a simplistic view of aviation safety unless that view allows room for consideration of the circumstances and factors that were present leading up to events such as these. If we don’t , we miss the opportunity to make improvements to the systems that support the P in C . We fail to get safer.
So, we can have “responsibility and duty of care” as well as finding shortcomings with other individuals and/or organisations.
My two cents anyway.
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Old 29th Nov 2017, 09:32
  #1114 (permalink)  
 
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I’ve got to say that I’m really surprised by some of the attitudes here. Unless you’ve been in a similar situation, it’s difficult to imagine how you’re qualified on the character of the people involved. For mine, the captain’s handling of the situation after arrival was as good as you could hope. I thought the FO actions read really well and she should be very proud of her CRM throughout the arrival. A great result given that all survived given the circumstances. I noted the nurse backs the captain up to this day. That says more than those character assasins.
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Old 29th Nov 2017, 09:44
  #1115 (permalink)  
 
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Hear! Hear! kellykelpie

I’m always dubious of the provenance of posters with single digit numbers of posts that suddenly appear then disappear. Always smells like deliberate character assassination to me.

ratwood: Single digit number of posts, despite being a member during the 9 year period since the ditching. Very abstemious of you!

Why does the number of your posts seem to be reducing?
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Old 29th Nov 2017, 11:43
  #1116 (permalink)  
 
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LB, I was going to make an offer to ratwood to fluff his pillows, refill his brandy and light his cigar. Keyboard warriors do lead such a draining existence they need all the tender care we mere mortals can provide. The lessons seem to be lost on zanthrus as well. Such an expensive lesson lost on the bystanders. Reading reports can make for an education. Did you ever hear zanthrus about the airliner that arrived in Adelaide and found unforecast fog had rolled in, and they had no fuel to go any where else? The crew carried out a successful autoland, something they had not been trained for. PIC at fault of course I guess for not having enough fuel.
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Old 29th Nov 2017, 21:39
  #1117 (permalink)  
 
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Interesting that those with experience in the aeromedical field and those who have flown Westwinds get torn down by desk drivers who don't agree that the PIC did a poor job! I will pick up on one comment however by kelly kelpie. He (or she) states that because the flight nurse continues to support the PIC then

that says more than those character assasins.
So the fact that the F/O, whose role in the event becomes clearer and that she was left seriously injured in the flight deck, has said nothing in support of her Captain suggests that the analysis of the PICs performance is valid. Surely if he had done what was expected of any PIC and then looked after his passengers and crew in the aftermath then she would be defending him in the court of public opinion? The fact that she hasn't, in any the media or even the Senate, to me speaks volumes.

Let me ask one question of the desk drivers, would you be happy to board, or let your family board an aircraft under the command of this bloke? No if's or buts just a simple yes or no.
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Old 30th Nov 2017, 01:04
  #1118 (permalink)  
 
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desk drivers who don't agree that the PIC did a poor job
Well, this desk driver (now, but after 20K) realises the PIC may well be accused of a poor job, but the question is why. The answer to that is clearly spelled out in the report, company ethos and training being but two. If you've not had adequate training you don't know what you don't know, as Rumsfeld famously put it (known knowns, known unknowns, and unknown unknowns). If you can't get past laying it all at the PIC's door then you haven't learnt anything.

Whenever I see someone taking a whip to an individual who has erred, I always wonder what errors the whip holder has made in their life. There but for the grace of God applies to we all. You're only as good as your last flight, a NASA investigation found crews make errors on every flight, most times you get away with them, sometimes you don't.

Personally I wouldn't have a clue how to calculate a PNR or CP without getting the books out, not something that had relevance in the flying career I had.
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Old 30th Nov 2017, 01:33
  #1119 (permalink)  
 
Join Date: Dec 2001
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I’m not quite sure why Lookleft has me pegged as sitting behind a desk. I am interested in how he/she thinks PIC should have responded once at Norfolk Island without fuel to divert. I think the pressure to fly lower and lower on the approach would have been huge. Having flown RPT jets in and out of Norfolk I know both how hilly and remote it is. I don’t think that having flown for Aeromedical or a Westwind makes you anymore qualified to comment on the actions of the PIC being first out. Maybe some survival instinct kicked in and he didn’t think that the doctor could open the door. We can all only hope that we would respond in a certain way, but unless you were there, with water gushing in and lives relying on you - you have no credibility in criticising his actions.

Last edited by kellykelpie; 30th Nov 2017 at 02:30.
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Old 30th Nov 2017, 03:13
  #1120 (permalink)  
 
Join Date: Mar 2005
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you have no credibility in criticising his actions
Hear, hear. A HUET ride will instruct you as to the difficulties if totally submerged, we used to do a daylight ride every two years, can only imagine doing it in the dark, in which case you are of absolutely no help to anyone, its every man/woman for themselves, even in daylight.
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