Barry Hempel Inquest

[601]

CASA twitters and tweeters

So can we expect tweets on Fridays instead of faxes?

[Kharon]

Twheaty all y' like. I'm a Pprune man through and through; although I do indulge the odd SMS text message, like the one just now from the Coroners court : need to paraphrase it - been some not so liddel attitude adjustment from a medical boffin, some great work from the Flemish old master artist and heaps of people looking for friendly rock to hide under till the noise dies down. Spins and hardly normal tizwozzes when the Coroner began asking awkward questions and for info on 'difficult' meeting and records from them, indicating he is fully prepared to extend if required. All very entertaining – update after lunch.

Stop press – Av med file dates relate to critical junctions – whatever that may mean. Beans on toast I think, and a nice choccy biscuit. Friday Twheats Heh heh heh! nice one 601 Endless possibilities. Lunch Minnie.

[Sarcs]

Hempel inquest update

Will get a summary of today's proceedings posted in due course, here's a snippet from that Gold Coast journo again...

Pilot's doctor ignored advice, court told Crime and Court News | goldcoast.com.au | Gold Coast, Queensland, Australia

Pilot's doctor ignored advice, court told

Matthew Killoran | 01:37pm March 22, 2013


A CIVIL Aviation Safety Authority doctor assessing the pilot's licence of Barry Hempel, who was later involved in a fatal crash, disregarded a colleague's request for more medical tests to be done, a coronial inquest heard this morning.

Mr Hempel flew a Yak52 warbird that crashed near South Stradbroke Island in August 2008, killing him and passenger Ian Ross Lovell.

The inquest has been told Mr Hempel was given a pilot's licence despite having a history of seizures.

It heard when CASA approved Mr Hempel's licence in 2005 it was in possession of an ambulance report from 2002 which stated he had suffered a seizure and had at least two before that.

Ken Fleming QC said CASA records showed one doctor had requested Mr Hempel be evaluated by a neuro-psychologist, but Dr Rob Liddell disregarded the recommendation.

"You are completely ignoring the advise of the doctor above saying we need another neuro-psychologist's report," he said.

Dr Liddell denied that he ignored the recommendation.

"I would have considered it, I just didn't agree with it," he said.

[my oleo is extended]

Job well done Samantha.

Congratulations, Samantha Hare is this weeks recipient of 'The Chocolate Frog Award'
She did a superb job. I would, if I may, like to list just a couple of qualities she exhibited which just happen to be the same qualities CASA lack and do not exhibit, and by the way who once again receive this weeks not so coveted 'Chocolate Starfish Award'.

Congrats Samantha for emanating:
1. Balls (Tough and strong woman willing to tell it straight)
2. Dignity
3. Honesty
4. Truthfulness
5. Reasonableness
6. Conscience
7. Compassion
8. Accuracy
9. Clarity
10. Transparency
11. Bravery
12. Justice

FF, hang your heads in shame. Each and every one of you who had a hand in the chain of events that contributed to the death of Mr Lovell should hang their heads in shame. You have blood on your hands. You may sleep well but one day you will have to meet the Ferryman, do not forget that.

[Kharon]

Had Hempel been a Bus driver.

If this appears disjointed, I apologise. I am working from nine pages of notes, not transcript. There are important issues for discussion and I wanted to get the ball rolling, the industry may have to extract a digit and provide this unfortunate Coroner with submissions as requested, whether they are read or not is a different matter.

I have just finished reading the Samantha Hare recommendations to the Coroner, made yesterday. The statement, in my opinion helps neither the current issues, the future of aviation nor her own civil action against the CASA. We have a nearly hysterical appeal for total control of everything from a flu shot to vasectomy to be reported to CASA from your doctor of choice (or convenience) recorded as part of an already very intrusive medical system. Should this be allowed I believe every person in charge of a vehicle of any description needs to protest, loud and long against it. Why should this entire industry suffer and be further impeded for the blatant crimes of one man??.

Had Hempel been a bus driver, or a ferry captain, passenger liner helmsman, train driver or even a truck driver, little of the hysteria surrounding 'medical condition' would have eventuated. Why does it have to be so very different for aircraft pilots?.....There exists a 'robust' extensive medical system which already has great powers, some would argue too many. The State has strong systems used to ensure that persons operating 'public service' vehicles are tested and qualified as 'fit for duty' as may be reasonably foreseen; insurance companies rely on those systems, the courts rely on those systems; and, the system is 'self protecting'. A call for further intrusion should be treated as an understandably, emotional response from a person who has been subjected to a long, frustrating wait for closure.

I am not sure what effect the Samantha Hare recommendation to the Coroner had; one can only hope that CASA will persist with a case against further over regulating, now that I could willingly support. In fact many of the CASA arguments in this case had merit.

There are several areas of serious interest from yesterday's final session which are worth considering:

Opinion : It has become apparent that no matter what legislation was in place, the intention to deliberately commit an offence cannot ever be effectively countered. There is no doubt that whatever method used by CASA in an attempt to control Hempel (and there were several) was doomed to failure – many had tried and all failed to restrain Hempel. Neither Commonwealth, State, civil or aeronautical law made any impression. There was prima facia evidence presented that even the notoriously difficult to prove "Not a fit and Proper person" case could have been successfully prosecuted. This never happened to Hempel. There are too many instances where the NFPP clause has been administratively made to stick. Not for Hempel though. It is reasonable to wonder why??

Opinion: The Coroners questions directed at the notes and minutes for "Difficult Case Meetings" (DCM) almost penetrated, were CASA medical aware of the Hempel medical condition – Yes, categorically, they were. The rest of it is simply an attempt to muddy the waters, ambulance officer reports, other medical opinion and evidence were denigrated. CASA medical have been known to suspend a medical against an unsubstantiated complaint. So, why was Hempel medical not suspended against the large amount of 'hard' evidence they had? The Coroner made a statement to the effect that CASA should have had Hempel under "strict care". Yet here we are in a Coroners court with CASA forced to defend their unique (for one man) lack of positive action. The reasonable question again is why?

A new cigar and a fresh coffee have brought me, temporarily to the end of this: the more I read of the legal ducking and weaving simply reinforces the facts – Several CASA operatives legitimately, legally, medically and operationally tried to prevent this one man from harming himself and other people. In my opinion there are only two questions; who was protecting him and why? Perhaps a detailed study of the transcript will change my mind, I doubt it, I really do: but I will try – later.

[601]

It has become apparent that no matter what legislation was in place, the intention to deliberately commit an offence cannot ever be effectively countered. There is no doubt that whatever method used by CASA in an attempt to control Hempel (and there were several) was doomed to failure – many had tried and all failed to restrain Hempel.

Several CASA operatives legitimately, legally, medically and operationally tried to prevent this one man from harming himself and other people.

Totally agree.

You cannot legislate against someone who has no respect for any legislation.

[Kharon]

Like it or not.

Well, I've managed to work through the notes and observations from the last two days of the Hempel hearing. You have to give credit where it is due. Mr. Harvey is a master craftsman: successfully managing to get the Coroner to focus on the medical men and divert attention to the medical systems failure to communicate, very neatly distracted the courts attention away from the real issues. It was a very clever play. I don't like it, but I can acknowledge the guile, nerve and skill.

For instance (all paraphrased) – buried in amongst the white noise was this little gem; ex CASA medico Dr. Liddle on the stand was asked should Hempel have had a medical? – Yep says the good Doc, fully entitled to a class 2 no restrictions. It seems Hempel's own Dr. Spall had only ever requested a restricted class 2 for Hempel. CASA wanted and offered to provide a restricted class one medical.

Just have a think about that for a moment – then you have to acknowledge Harvey earns his keep. The case in a nutshell, swept away in a torrent of 'he said – she said' white noise from doctors unable to remember the fine details of events eight to 10 years go.

Justice served ?

[my oleo is extended]

Kharon,

I spent several hours last night also examinng the submissions in detail, reading the wording, intent and facts as they were positioned under the microscope.
I must agree, Mr Harvey earned his keep. I can see why FF continue to retain his robust services as he has truly mastered his craft, which is nothing new to us.
In fact to some degree when you research some of his earlier works over the years you can really see that he is a formidable player who clearly has the ability to outplay many dopey Coroners and Beaks that he has stood before!
I am sure the LSG has a giant bag of chocolate frogs awaiting him, and maybe even a couple of Hi 5's??
I do feel for Samantha Hare as I don't believe she will see the outcome she was looking for and once again another victims loved one joins the group on the sidelines who receive no logical or fair recourse.

Not that I agree with this saying, but a 'CASA person' once commented; 'Its all a game, a very seriou game, but all a game'.

"ut dilectos tuos pacem"

[Kharon]

MOIE# 501 "In fact to some degree when you research some of his earlier works over the years you can really see that he is a formidable player who clearly has the ability to outplay many dopey Coroners and Beaks that he has stood before!"

Don't know they are so much as 'dopey', but certainly aeronautically uneducated. But. No one took the trouble to point out the exacting, intrusive and, some would argue un required aspects of the CASA medical ethos. Bus 60 folks – Train – 2/300 folks – Sydney Manly ferry – Fairstar liners – etc. etc. would their union tolerate the use of an ancient RAF method for weeding out pilots, transmogrified into an administrative empire?. I mean, why just pilots?

So here we have a 'robust' coroner and a very good council assisting. No idea about CASA medicals or how hard it is to keep one – none. Then in strolls Harvey, spots the fire and carefully wafts the flames. Never a word about embuggering (Cheers Sunny) their own investigation, nobbling the ATSB and actively refusing to help the QPS from doing their thing. (Great job fellahs). Never a word about the War-birds over sight requirement, not even a dicky bird. (Agree arguable). Never a word about how very easily CASA can prevent someone working in industry; not a peep about how AOC 's vanish like smoke on the breeze, or NFPP badges are dished out like Jaffas, on administrative whimsy.

Judges, Coroners and the like have absolutely NFI: they know the law, how to apply the law, their own roles and probably, for the most part do this well (not able to offer opinion). Harvey is a heavy weight veteran wolf, battle toughened, well supported; what chance the silent lambs Clarisse?

Why, man, they did make love to this employment,
They are not near my conscience. Their defeat
Does by their own insinuation grow.
'Tis dangerous when the baser nature comes
Between the pass and fell incensčd points
Of mighty opposites.

[Sarcs]

So much for Senator Fawcett's question to DOIT on 'closing the loop':

Senate Estimates RRAT Committee 23/05/2012 pg 92-93 :
Senator FAWCETT: Who would those other stakeholders be?

Mr Dolan: Our experience has been that counsel assisting, in trying to do a comprehensive job in support of a coroner, sought other lines of information and brought it to bear in the process. Other parties, all of whom have their own interests in a coronial process, often find it necessary to test a range of alternative hypotheses. Sometimes the weight comes down to a different place than we placed it. That is just part of the relationship. If there is a coronial finding that is inconsistent with what we found or more information comes to light in the course of an inquest that is relevant to our investigation, we will reopen the investigation and make sure that is properly weighed up in our processes.

Senator FAWCETT: I notice CASA is often another player in the coronial inquests and often you will highlight something, the coroner will accept it and basically tick off in his report on the basis that a new CASR or something is going to be implemented. Do you follow those up? I have looked through a few crash investigations, and I will just pick one: the Bell 407 that crashed in October '03. CASR part 133 was supposed to be reworked around night VFR requirements for EMS situations. I notice that still is not available now, nearly 10 years after the event. Does it cause you any concern that recommendations that were accepted by the coroner, and put out as a way of preventing a future accident, still have not actually eventuated? How do you track those? How do we, as a society, make sure we prevent the accidents occurring again?

Mr Dolan: We monitor various coronial reports and findings that are relevant to our business. We do not have any role in ensuring that coronial findings or recommendations are carried out by whichever the relevant party may be. I think that would be stepping beyond our brief.

Senator FAWCETT: Who should have that role then?

Mr Dolan: I would see that as a role for the coronial services of the various states. But to add to that, because we are aware of the sorts of findings—as you say, it is not that common that there is something that is significantly different or unexpected for us, but when there is—we will have regard to that obviously in our future investigation activities and recognise there may already be a finding out there that is relevant to one of our future investigations.

Senator FAWCETT: Would it be appropriate to have—a sunset clause is not quite the right phrase—a due date that if an action is recommended and accepted by a regulatory body, in this case CASA, the coroner should actually be putting a date on that and CASA must implement by a certain date or report back, whether it is to the minister or to the court or to the coroner, why that action has not actually occurred?

Mr Dolan: I think I will limit myself to comment that that is the way we try to do it. We have a requirement that in 90 days, if we have made a recommendation, there is a response to it. We will track a recommendation until we are satisfied it is complete or until we have concluded that there is no likelihood that the action is going to be taken.

Senator FAWCETT: Mr Mrdak, as secretary of the relevant department, how would you propose to engage with the coroners to make sure that we, as a nation, close this loophole to make our air environment safer?
Mr Mrdak: I think Mr Dolan has indicated the relationship with coroners is on a much better footing than it has been ever before. I think the work of the ATSB has led that. I think it then becomes a matter of addressing the relationship between the safety regulators and security regulators, as necessary, with the coroners. It is probably one I would take on notice and give a bit of thought to, if you do not mind.
Senator FAWCETT: You do not accept that your department and you, as secretary, have a duty of care and an oversight to make sure that two agencies who work for you do actually complement their activities for the outcome that benefits the aviation community?
Mr Mrdak: We certainly do ensure that agencies are working together. That is certainly occurring. You have asked me the more detailed question about coroners and relationships with the agencies. I will have a bit of a think about that, if that is okay.
Senator FAWCETT: Thank you.

While FF LSD as a DIP to an aviation accident fatality within the coronial process are allowed to continually obfuscate and sabotage that process, may I suggest there will never be a 'closing of the loop' and all good coroner recommendations will continue to be ignored!

I also see a lot of irony in Mr Dolan's in bold statement (2nd from the top) in light of the Hempel inquest, especially considering the ATSB wasn't even a DIP to the inquest and had very little involvement in the QPS FCU's investigation or report???

[Brian Abraham]

Pity Laurie Gruzman QC is not still around.

[tail wheel]

Yes indeed. Laurie would have sorted them all out!!

[my oleo is extended]

Loop de loop

Closing the loop is an essential component of mitigating deficiencies and moving forward. It is farcical, absurd and downright dangerous having 'findings' by a Coroner, yet those very findings don't have to be fixed!!
No wonder the same events keep recurring.
Aherne hit the nail on the head using the 2003 accident analysis. Talk about kangaroo courts and half arsed systems. Can you imagine Fort Fumble auditing you, hitting you with 50 NCN's and never coming back to ensure the deficiencies have been mitigated, the fixes 'tested' an the finding closed off?
(Mind you I did hear the rumour of a big hitter in CASA once making 30 RCA's as they were called disappear mysteriously off an operators books, rumour was the CASA person had a 'mate' there. Also rumoured was that it was a sloppy job and a lot of the underpinning paperwork still exists!! All rumor I must enforce)

Obviously different standards apply to the Regulator and industry, no surprise there, 'do what we say not as we do'. But the fact that the Regulator itself doesn't have to close the loop flies in the face of a robust SMS which it constantly belts into the operators.

No wonder the industry is rooted.
I hope Aherne keeps chipping away. I have my opinions as to the 'full reason' he is sticking it to FF but at least he is standing up to them balls and all. And their pathetic shots at him do nothing but show them up for being the pathetic weak specimens they really are.

[601]

Obviously different standards apply to the Regulator and industry,

And within the Regulator.

[Lookleft]

I hope Aherne keeps chipping away. I have my opinions as to the 'full reason'
he is sticking it to FF but at least he is standing up to them balls and
all.

I think you will find that BA is not interested in sticking it to FF but more interested in showing that the ATSB is not sticking to its international obligations. Have another look at the transcript from his first appearance before the Senate. He doesn't criticise CASA as much as he does the ATSB. I would be interested to know what you think the "full reasons" are.

As for LG he would have represented BH in any court case. Alledgedly his 310 had an "accessory" in the glove box because he had upset many people in his dealings with them.

[my oleo is extended]

Lookleft, I won't go into detail publicly, check your PM's.
Just remember in life that not all things are as they seem.
Regardless, I support Ahernes testimony because it sums up CASA and ATSB' ability nicely - pony pooh.

[Bedderseagle]

Hempel Inquest

Now that the dust has settled and the coroner and barrister assisting prepare their reports ready for issuing the findings in the next month or so, there is time for some additional focus on this case. Unfortunately, I was overseas for these last additional two days of inquest so unable to attend. However, I have been able to 'interview' a number of those present on both days and also read through in detail the inquest transcripts.

I have to question Kharon's headline and some comments thereunder:

Had Hempel been a Bus driver.

Had Hempel been a bus driver, or a ferry captain, passenger liner helmsman, train driver or even a truck driver, little of the hysteria surrounding 'medical condition' would have eventuated. Why does it have to be so very different for aircraft pilots?

I feel quite confident that had Hempel indeed been a Bus Driver, he certainly would not have been driving a bus on that fateful day and mostly likely would have been locked up in custody. The 100+ violations that Hempel had along with his medical condition and his public exposures would have ensured that.

There exists a 'robust' extensive medical system which already has great powers, some would argue too many.

If a satisfactory system had existed then we can be sure Hempel would not have 'slipped through the cracks' and be allowed to have even held a PPL on that day. Whilst I do not hold a PPL myself, I come from an aeronautical family with my father and two sons having served in the Air Force and one son and a brother who have flown extensively both commercially and privately. I spend a great deal of time on commercial planes every month as a passenger travelling around the world and rely on pilots who I hope have passed stringent tests. I am not advocating major crackdowns BUT there has to be a way of stopping another Hempel type. I can not accept that everything was done to monitor Barry's commercial flying exploits.

If we accept

It has become apparent that no matter what legislation was in place, the intention to deliberately commit an offence cannot ever be effectively countered. There is no doubt that whatever method used by CASA in an attempt to control Hempel (and there were several) was doomed to failure – many had tried and all failed to restrain Hempel.

then you are opening a whole can of worms to anyone who wishes to emulate Barry. Do we really believe that CASA did enough to monitor and sanction Hempel?

You have to give credit where it is due. Mr. Harvey is a master craftsman: successfully managing to get the Coroner to focus on the medical men and divert attention to the medical systems failure to communicate, very neatly distracted the courts attention away from the real issues. It was a very clever play. I don't like it, but I can acknowledge the guile, nerve and skill.

Yes very clever play but the coroner and all present were not fooled by these tactics and CASA was made to look like an incompetent organisation. It came out that it was up to a pilot to 'turn him/herself in' in disclosing serious medical issues such as seizures and that reports by qualified paramedics would not be considered. Are they serious? So there is no external independent reviews and a pilot can find a willing doctor, without revealing or lying about their condition and walk out with a medical certificate which is accepted by CASA.

I am not sure what effect the Samantha Hare recommendation to the Coroner had; one can only hope that CASA will persist with a case against further over regulating, now that I could willingly support. In fact many of the CASA arguments in this case had merit.

At least it was encouraging and commendable that Samantha Hare had taken the trouble to table recommendations which can be worked on and incorporated into the coroner's report should he see fit and certainly by reactions and feedback by many he was impressed. Sometimes it needs someone not so close to the industry to make comments.

Enough said, looking forward to the coroner's report and recommendations.

[Sunfish]

Sea Eagle, I have to take issue with some of your comments.

Firstly Two documents are required to legally pilot an aircraft, a suitably endorsed licence and a separate medical certificate. Mr. Hepel had the former but not the latter.


As for CASA being able to prevent Mr. Hempel from using an aircraft, please give them some credit. Exactly how are they able to do this in the face of a decision by someone to deliberately break the law?

Road users are occasionally caught without licences. Mr. Hempels situation is not much different from a car driver. Since aircraft are very expensive and flown by multiple pilots, "wheel clamping" is not a practical option.

It "may" be possible to detect an offence by detecting an aircraft associated with a particular person, but you can't pull over an aircraft.

With regard to medical standards, yes they do exist for train drivers and other rail personnel. I 've linked to the standard and its administration below.

In my limited opinion, I wish pilots were treated as well as train drivers. The standard is quite specific and a model of administrative clarity compared to the arcane and some would say capricious and unfair aviation medical system pilots have to endure. I particularly like the rail categories of "fit for duty, subject to review" and "temporarily unfit" that seem to be more useful than the "on/off" system used in aviation.

Perhaps if Mr. Hempel had the benefit of the train drivers system this accident wouldn't have happened.

http://www.ntc.gov.au/filemedia/Repo...ol2May2004.pdf

[Kharon]

Round 2.

Bedders – glad someone brought the thread back to life, it sort of died away; I thought due lack of interest. Happy to discuss the issues as if over an ale, just as an alternate point of view mind you, peaceful like.

The 'bus driver' comparison always brings me back to the same debate – the deliberate intent to breach the rules. People in charge of equipment get sick, the honest Joe strolls (or crawls) to the nearest medical facility and seeks help, rings work and begs off for the duration, until declared fit. But, if you come off the trapeze or skateboard, suffer a serious injury and fail to mention it to the Medico; or continue to work knowing there is a problem; or lie to another medico about who you are, or what you do, then there is an intent to deceive. It's a bit like going through a stop sign, if you blast through, knock over a woman with a stroller on a pedestrian crossing, the law will crucify you – after the event – the law cannot prevent the intent or the event; nor, sadly can it restore the loss or alter the consequence. All that can be done is tighter penalties for committing the offence, the intent must remain within the purview of the individual. So why must an industry and a body of essentially honest individuals suffer more restriction because Hempel? who with arrogant aforethought deliberately flouted what sensible, responsible equipment operators, the world over do as routine.

BE # 510 "The 100+ violations that Hempel had along with his medical condition and his public exposures would have ensured that."

Lesser crimes than Hempel's sins have grounded a good many; CASA knew and did nothing this was compounded when those that knew and tried to do something were 'distracted'. There were two serious attempts to shut Hempel down made, check the resignations and the available information – was this was a protected species? If it was, then by whom and why is beyond my short reach, but someone, somewhere must know.

BE # 510 "I am not advocating major crackdowns BUT there has to be a way of stopping another Hempel type. I can not accept that everything was done to monitor Barry's commercial flying exploits."

Agreed – with a return to why; under the current ethos, you can get prosecuted for allegedly breaking wind; there is a clear record of the Hempel wrongdoings. But he wriggled away.

"then you are opening a whole can of worms to anyone who wishes to emulate Barry. Do we really believe that CASA did enough to monitor and sanction Hempel?"

Mild disagreement here, 99.999% of airmen are essentially compliant, responsible folk, it goes with the job. Now why should they be penalised for the aberrations of one man? It's a bit like shooting every dog because your cat got chased, no, we have to ask why some CASA operatives did so much and achieved so very little. Look at the Quadrio nightmare and draw the comparisons.

My only concern with Samantha Hare's statement is simple, after Lockhart only one of Coroners good intentions was transmogrified, we got the MOU and the resulting shambles. Given half a chance, CASA medical can and will develop a system where you can be grounded for taking some bark off your Willy on a Friday night and declared by legal to be not a fit and proper by Saturday for not reporting it.

Agree with– 'nuff said, the report is, for me, of minor importance – what results is.
One of the many problems the industry has is too many people with no idea of how it all works butting in. The road to Hell is paved with good intentions.

[Bedderseagle]

Sunfish:

As for CASA being able to prevent Mr. Hempel from using an aircraft, please give them some credit. Exactly how are they able to do this in the face of a decision by someone to deliberately break the law?

Road users are occasionally caught without licences. Mr. Hempel's situation is not much different from a car driver. Since aircraft are very expensive and flown by multiple pilots, "wheel clamping" is not a practical option.

It "may" be possible to detect an offence by detecting an aircraft associated with a particular person, but you can't pull over an aircraft.

In Hempel case, from listening to the CEO and Chief Pilot and attending the inquest Part 1, it became very clear that the Yak was Barry's private plane and he was very possessive about it and allegedly allowed no one to pilot it. Even the Chief pilot reported that he only flew in it very occasionally but with Barry. It appears Barry even locked the Yak away in another location when he went out of town so that no one could fly it.

So many people knew Barry and so many people knew what Barry was doing and 'turned a blind eye'. In Barry's case could it have been feasible to 'wheel clamp' his beloved Yak? There were just so many instances that imply that Barry was a 'protected species'. Something is just 'not right' in this whole case and hopefully something good will come out of the inquest findings for all.