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The Empire Strikes Back! on Colour Defective Pilots

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The Empire Strikes Back! on Colour Defective Pilots

Old 22nd Feb 2015, 19:08
  #541 (permalink)  
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Old 22nd Feb 2015, 19:58
  #542 (permalink)  
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Well done John, Arthur and all the CVDP team. Great news to start the day with
Best regards,
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Old 22nd Feb 2015, 22:07
  #543 (permalink)  
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Well done to Arthur Pape and all the CVDP concerned. A quick glance through the document last night it states that the decision should not be treated as a test case so is it correct to say that anyone else who cannot pass the Ishihara or Farnsworth tests is still excluded from holding an ATPL?
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Old 22nd Feb 2015, 22:20
  #544 (permalink)  
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I'm uncertain what the reference to test case means. I do know there is funding available,(or was), for public interest and test cases through the Attorney Generals Department and such funding had to be repaid through Court decisions on costs. By declaring it a non test case perhaps this allows the individual to be indemnified from such repayment if indeed this scheme was used. I think it rates as a precedent however. Perhaps creampuff can enlighten us?
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Old 22nd Feb 2015, 22:26
  #545 (permalink)  
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Well done all!

Here's CVDPA's initial analysis of the result and what is means. I'm sure Creamie will be able to offer his thoughts as well.

John wins AAT challenge allowing use of ATPL privileges!

Dear Friends & Colleagues,

After a long and anxious wait, we received news late on Friday of John’s favourable Administrative Appeals Tribunal result. After a 15 year wait, he can now finally exercise his ATPL privileges. The tribunal's full 50 page decision is available via the link to our website below:

Re O'Brien and Civil Aviation Safety Authority [2015]

The tribunal found that despite John’s severe protanope form of CVD, he is not likely to endanger the safety of air navigation in the role of captain. The result is a major victory and essentially means that he can now progress his career to the fullest extent with any domestic airline within Australia.

The tribunal did still leave a number of restrictions in place as outlined below:
  1. The class 1 medical certificate is only valid for operations within Australia;
  2. The applicant is not permitted to conduct night time operations other than as or with a qualified co-pilot; and
  3. The applicant must disclose to his employer, any person lawfully training, assessing, endorsing or re-endorsing him on any aircraft in respect of his Air Transport Pilot Licence, and other assigned flight crew members of his colour vision deficiency.
Several times, we have proposed a condition similar to (3) as an acceptable means of compromising with CASA for CVD pilots seeking to operate in an ATPL environment. From a practical point of view, this restriction poses no major obstacles.

Condition (1) is largely based on political and policy issues due to Australia’s (until recently) evidence based-CVD standards compared to the rest of the world. It is a restriction which may still take some time to fully overcome. There has been some confusion regarding the wording of this particular restriction, as many pilots also have a medical certificate which states “Holder does not fully meet requirements of ICAO Convention Chapter 6 of Annex 1.” CASA’s website states that this restriction allows the pilot to operate overseas provided they seek advance permission from the appropriate regulatory authority of that country.

We will be seeking more clarification on the wording of restriction (1) in the coming days and weeks. Ultimately, until such a time as CASA starts becoming proactive and leading the world on CVD issues, rather than following, CVD pilots like John will potentially still be limited to Australian airspace.

Condition (2), while not ideal, does not have any effect on John operating at night (or IFR) in a multi-crew environment. At first glance, it appears as though the tribunal may have overlooked the fact that under his previous CPL privileges, he was able to fly unrestricted at night in a single pilot environment and for more than a decade until early 2014. Early last year, John was forced by CASA to undergo the CAD test which he failed and as a result, this particular night restriction was added to his medical certificate. From reading the decision, it appears that the tribunal focused their attention primarily on the ATPL side of things. Perhaps inadvertently, they may have assumed that he would only ever be flying in a two-pilot airline cockpit and therefore this particular restriction posed no burden. Possibly, this is without having fully considered the consequences as they related to his CPL in the event that he ever wishes or needs to return to general aviation single pilot operations in the future.

We will also be seeking more clarification on restriction (2), given that it does appear to contradict the tribunal’s acceptance that the earlier 1989 Denison decision was conducted as a test case that related to commercial pilots. We continue to believe that all CVD pilots (including deutans and protans) should be allowed to operate unrestricted at night, as has been the practice since the Denison decision and until CASA’s regressive actions began last year. We will continue to fight hard to ensure this occurs.

While the tribunal was at pains to point out that they did not view John’s case as a test case, it is most certainly a major victory in the overall scheme of things. Comparisons can be drawn to the earlier Pape and Denison AAT decisions:

“The success of my own appeal was a just reward for a great deal of hard work and wide support, but the victory was bitter-sweet, as the Authority of the day refused to let the benefit of my success flow to any other pilot with the colour vision problem. That in turn led to a second far more comprehensive appeal for all the colour defective pilots of Australia. This case was nominally on behalf of Jonathon Denison, a young colour defective commercial pilot who had qualified for night flight in New Zealand, but who was prohibited from night flight in Australia. By mutual agreement between the parties, it was decided by the AAT to treat the Denison appeal as a wide-sweeping test case.” – Dr Arthur Pape

While John’s result is not 100% perfect, it is a massive leap forward given that it is the first time in the world that a protanope CVD pilot has successfully challenged an aviation authority in respect to being allowed to fly as a captain in an airline environment. While this is a good victory and sets a precedent, the war is far from over and we must continue to fight hard to ensure that all CVD pilots receive the justice they deserve. Whether that happens with subsequent legal challenges in the future or with political pressure remains to be seen. None of this is a quick or easy process but we remain as resolute and committed as ever.

Senator David Fawcett has already been informed of the result and we will be having further discussions with him to see what else might be able to be done to further advance our campaign both in Australia and abroad.

We will provide more updates again in the coming weeks and months, but for now, thank you to all who have supported John’s case. This result would not have been possible without each and every one of you!

Last edited by brissypilot; 23rd Feb 2015 at 08:32.
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Old 23rd Feb 2015, 04:24
  #546 (permalink)  
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Although I’m very happy and unsurprised by John O’Brien’s overall success in this case, I’d urge caution for others who assume CASA will cease its crusade.

CASA’s submissions and contentions in the O’Brien matter were exactly as would be expected from zealots on a crusade, and it remains to be seen whether Dr Navanthe was the chief and only CASA zealot, or merely the chief zealot of a bunch that remain. The Tribunal had little choice but to confine its substantive decision to John O’Brien’s specific circumstances. If CASA puts subsequent applicants through what John O’Brien had to go through, you’ll have your answer.

According to CASA, it’s a new and much more complicated and scary world compared to the olden days of the Pape and Denison decisions. According to CASA, there’s a greater awareness of the safety risk posed by pilots with CVD based upon conclusions drawn from accident and incident investigations. Fortunately the Tribunal perceived a rather obvious flaw in these contentions – obvious, at least, to someone who’s objective:
It is significant that in all of those years when many pilots with various forms of CVD have flown there has been little research made available to us upon which that contention was based.
CASA’s submission was that the CAD test is “a simulation of an aspect of a task required in an operational situation”. However, CASA had little choice but to concede, in its submissions, that the expert they called had acknowledged that the CAD test “does not simulate an aviation task”. But that concession was only in a footnote in the submissions. In my opinion, downplaying inconvenient truths isn’t the behaviour of an organisation with a properly calibrated moral compass.

More importantly in my opinion, CASA’s submission was also that even if the CAD test is not one that can reasonably fall within the description of a test that “simulates an operational situation” in terms of CASR 67.150(6)(c):

- the AAT does not have jurisdiction to review CASA’s decision to determine the CAD test for the purposes of CASR 67.150(6)(c); and

- the Applicant still hasn’t passed any of the prescribed tests.

In other words, CASA said that even if the CAD test does not simulate an operational situation as required by the law: Too bad; too sad. The AAT cannot do anything about it and the Applicant’s career certainty, and other people in like circumstances, can go hang.

My opinion is that these are not the submissions of an organisation with a properly calibrated moral compass.

I ask myself: What would I do if I were working in CASA I were considering the question: “What if we have this wrong and the CAD test is not a test that simulates an operational situation in terms of CASR 67.150(6)(c)?”

I would have a cold chill down my spine, because I would be wondering how much stress might have been caused, and how many careers might have been put in disarray, if CASA has it wrong.

I would have this nagging feeling that perhaps the operational reality of the tens of thousands of hours flown safely in fact by pilots with colour vision deficiencies may mean that they are being treated unfairly by not having the chance to demonstrate compliance with the colour vision standard through the administration of a test that does simulate an operational situation, as stated in the law.

I would wonder what valid objection there could be to setting a test that simulates a real aviation situation in which the identification of the meaning of lights that happen to be coloured was a safety-critical activity, to see if the applicant could manage the situation as safely as his or her colleagues without CVD.

I would be submitting that if the AAT came to the view that the CAD test does not “simulate an operational situation” in terms of CASR 67.150(6)(c), I would be acting immediately to determine a proper test and reducing the stress and uncertainty for pilots and aspiring pilots, whether or not the AAT had jurisdiction to review the decision. That would seem to me to be the fair and honourable thing to do.

But that’s just me.

It is fascinating to read CASA and its experts’ convolutions to avoid the inconvenient truth that John O’Brien has no problems with PAPI approaches and other tasks in reality. Some highlights from the Tribunal’s decision:
The information obtained by CASA from [CAD] testing of Mr O’Brien is little more than that to which they were already aware, having had the diagnosis of protanopia confirmed in previous tests.

In their paper 2006/04, the UK CAA identified two tasks as being the most safety critical, demanding of colour vision and without redundancies. These were the coloured red green parking lights for positioning a plane at an aerobridge and the PAPI lights.

… Mr. O'Brien pointed out that he had no trouble seeing these lights and in any case, explained that most airports are now moving to a different system which involved symbols instead of colour. [My comment: Whoops, how inconvenient - first-hand evidence of facts. Perhaps the aviation colour environment is becoming simpler, not more complex...]

The UK CAA also decided that the PAPI lights were the more demanding and more safety critical of the two and decided to set the performance criteria of their new CAD on successful performance by subjects in a simulated PAPI test.

The evidence of Professor John Barbur is that the PAPI is the most appropriate test of colour recognition for pilots as it is very demanding in terms of colour vision and there is little or no redundancy in that system which is, in essence, a redundant system to the primary systems in any event.

Professor Barbur’s evidence was clear and it seemed to be accepted by the experts from CASA and by Associate Professor Geoffrey Stuart.

There was some disconnect in the evidence of Professor Barbur. Initially he said pilots who pass the CAD test or just missed out should be given the PAPI test but later said that pilots who fail the CAD test should be excluded in terms of pilots.

The evidence of Mr O’Brien was that he has never had difficulty identifying the PAPI light guidance throughout his years of flying; he said he had never incorrectly identified the lights. [My comment: Whoops, more inconvenient first-hand evidence of facts.] The concern raised by CASA was in the context of low visibility close to the runway, such as in the FedEx accident or at 5 km. This is in the context that the PAPI is an additional aid to the primary system within the aircraft, and presumably an aid to a pilot’s visual identification of the runway during approach and landing. [My comment: I’ll return to the FedEx accident later.]

[After 8 more paragraphs of analysis of the various theories and positions of various experts, we come to this rather startling turnaround:] Professor Barbur and others urged us not to become overly focused on the PAPI test, reminding us that there are many other colour demanding tasks for the pilot.
In other words, if a candidate with CVD passes “the most appropriate test of colour” - the PAPI test – we should just forget that and look over there at all those confusing colours.

It’s almost as if they’ve decided the outcome, and they just move the goal posts as necessary to achieve that outcome. There’s a word for that.

This was my favourite bit on this issue:
Professor Barbur also pointed out that performance on the PAPI test could be variable amongst subjects for reasons other than their level of CVD. Some examples of these variables include:

(a) Experienced pilots may perform better because they have learnt to use cues such as luminance differences between the reds and whites of the test and there is also a natural variability between subjects in their ability to do this. …
You see: There has to be explanation for the inconvenient truth of candidates passing the test, and it cannot be that the candidate performs just as well as someone without CVD.

A couple of CASA FOIs gave written evidence about how confusingly colourful modern cockpits have become and the scary situations in which complete power failures on the ground have resulted in control towers having to use light signals. At this point of the submissions I thought: At last! Someone from CASA is going to provide some factual evidence about the actual performance of actual pilots with CVD in these real-life circumstances.

Perhaps, at last, someone from CASA was going to provide first-hand evidence of the substantially slower performance of pilots with CVD, compared to pilots without CVD, in these confusingly colourful modern cockpits. First-hand evidence to show that despite the design and redundancy of these modern cockpits, and despite their training and experience, pilots with CVD are substantially slower and less effective and efficient than their non-CVD colleagues in those cockpits. Things called “facts” about the performance of CVD pilots in a thing called “reality”.

Perhaps, at last, someone from CASA was going to provide evidence of the actual mayhem caused when pilots with CVD were thrust into circumstances in which a control tower could not communicate through VHF and the CVD pilots were unable to arrange separation with other aircraft, use other means of communication with the tower (mobile phone/sat phone), see whether a runway is clear to land and otherwise operate safely. Things called “facts” about the performance of CVD pilots in a thing called “reality”.

But, so far as I can tell, no first-hand evidence of those facts was provided by CASA.

Now to the FedEx accident.

A copy of the NTSB report of the investigation into the FedEX accident is here: http://asndata.aviation-safety.net/r...722_N497FE.pdf The Executive Summary states, among other things, that (my bolding):
The National Transportation Safety Board determines that the probable cause of the accident was the captain’s and first officer’s failure to establish and maintain a proper glidepath during the night visual approach to landing. Contributing to the accident was a combination of the captain’s and first officer’s fatigue, the captain’s and first officer’s failure to adhere to company flight procedures, the captain’s and flight engineer’s failure to monitor the approach, and the first officer’s color vision deficiency.
I’d commend the entire report. I’d just note a couple of paras of the Analysis, at pages 53 and 55, bolding mine:
During postaccident interviews, all three pilots reported observing red and white lights on the PAPI display, consistent with normal PAPI operation. [My note: the Flight Engineer was a qualified pilot on type. Hence the reference to “all three pilots”.] Although the flight engineer and captain reported seeing a pink PAPI signal on one of the four PAPI lights at some time during the approach, they also reported seeing red and/or white lights (which would have provided appropriate glidepath guidance) at the same time.

In postaccident statements, the flight crew and ground observers indicated that there were no obstructions to visibility along the approach path. However, the comments made by the first officer (“gonna lose the end of the runway”) and captain (“disappear a little”) suggest that they may have encountered a temporary obstruction to visibility (for example, clouds or mist) as they approached runway 9. If such an obstruction existed, it may also have obscured the PAPI lights. Although a temporary obstruction might help explain the flight crew’s failure to recognize the PAPI guidance while that obstruction was present, it does not explain why the three pilots failed to recognize the presence of four red PAPI lights throughout the rest of the approach. Further, according to FedEx procedures (and FAA regulations), if the approach end of the runway became obscured at any time during the visual approach, the pilots should have performed a go-around.
Who reckons the FedEx accident would not have happened if the first officer had had no CVD?

CASA’s crusade on CVD is, objectively, a focus on the easy trivia at the expense of dealing with the substantial and far greater risks to aviation safety. Easy targets versus hard problems.

Of course, it makes no difference to CASA, because they get paid the same either way.
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Old 23rd Feb 2015, 06:14
  #547 (permalink)  
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Great Post

Last edited by outofwhack; 23rd Feb 2015 at 07:48.
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Old 24th Feb 2015, 12:09
  #548 (permalink)  
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Yes - great analysis Creamy

Some good coverage about the result on the ABC tonight:

Queensland pilot wins right to captain airliner despite poor colour vision - ABC News (Australian Broadcasting Corporation)

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Old 24th Feb 2015, 13:06
  #549 (permalink)  
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"CASA's considering a counter appeal."

What a pack of you know what's!
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Old 24th Feb 2015, 13:58
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Skidmore's response to the O'Brien AAT decision was very disappointing in tonight's Senate RRAT hearing, it gives substance to Creamie's warnings.

Skidmore's immediate response to carefully worded question by Senator Fawcett which asked, in effect, after two AAT losses, and no demonstrated safety issues etc, would CASA be changing their approach to CVD, Skidmore was almost off his chair with a snap answer:

" We still have time to appeal" or words to that effect.

Interesting body language. He then made it very clear that the O'Brien AAT decision was not a precedent -- so tough, all you other guys ('cause it is mostly guys, not girls) with the problem.

Seems the departure of Dr. Navathe has not made much difference.

His attitude to Angel Flight was similar -- "We are not going to take action at this time, but will continue surveillance" --- or words to that effect.

It was clear, in my opinion, that Mr. Skidmore is multilingual, he speaks fluent Bureaucratese as well as English. Senator Heffernan felt he had the gab to front Jimmy Sharman's boxing tent at the Show, and said so. It will be interesting to see what Hansard says there.

All in all, a very disappointing (unless you are a member of the CASA Iron Ring) first appearance before the RRAT.

Tootle pip!!
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Old 24th Feb 2015, 19:32
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On the basis of his appearance before the Committee last night, I continue to have no confidence that Mr Skidmore will produce any substantially different outcome than his precedessor. But then again, I always knew that the next Messiah would be like the previous.

I will post the relevant extracts from the Hansard, but I was left in no doubt that:

1. CASA is considering whether to appeal the AAT's decision in relation to John O'Brien.

2. CASA's position is that the AAT's decision is applicable only to John O'Brien.

So anyone who thinks that the departure of Dr Navanthe would result in CASA calling off its crusade, think again.

Candidates with CVD are just too easy a target for a regulator. Just imagine how much busy-work will be created by putting every candidate through what John O'Brien had to go through. It's like the regulatory reform program: no-risk, low-stress work for bureaucrats, indefinitely.

All in the name of "air safety" of course. CVD is, after all, such a big safety issue.

(Mr Skidmore's statements about the response to the Forsyth report were also instructive. I was reminded of Mr Byron's February 2005 statement about hoping to have a plan soon. Mr Skidmore's comments about Forsyth report findings about CASA's relationship with the industry were particularly interesting. For anyone who thinks the report is going to do anything other than gather dust: I have some cheap shares in the Brooklyn Bridge.)
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Old 24th Feb 2015, 20:03
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Definitely a concerning response from Skidmore.

Let's not forget, it's not two AAT losses that CASA have had on CVD. This is the 3rd AAT loss after the earlier Pape and Denison appeals. When will these guys accept that they've got it wrong?

"The success of my own appeal was a just reward for a great deal of hard work and wide support, but the victory was bitter-sweet, as the Authority of the day refused to let the benefit of my success flow to any other pilot with the colour vision problem. That in turn led to a second far more comprehensive appeal for all the colour defective pilots of Australia. This case was nominally on behalf of Jonathon Denison, a young colour defective commercial pilot who had qualified for night flight in New Zealand, but who was prohibited from night flight in Australia. By mutual agreement between the parties, it was decided by the AAT to treat the Denison appeal as a wide-sweeping test case." – Dr Arthur Pape
déjà vu?
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Old 25th Feb 2015, 00:11
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But Brissy, according to CASA, it’s a new and much more complicated and scary world compared to the olden days of the Pape and Denison decisions: all those confusing colours in those airport gate signals and complicated modern cockpits. According to CASA, there’s a greater awareness of the safety risk posed by pilots with CVD based upon conclusions drawn from accident and incident investigations.

All that’s really changed is that Part 67 now gives CASA all sorts of powers to intrude into the private and medical lives of individuals. As I said earlier, the busy-work of putting individuals under the medical microscope is no-risk, low-stress employment for bureaucratic do-gooders, indefinitely. All in the name of "air safety" of course.

Meanwhile, almost all, if not all, of the aviation accidents ‘caused’ by pilots have nothing to do with CVD or medical problems.

But why bother taking on the real problems of aviation safety when there's the busy-work of picking off easy targets. CASA gets paid the same, either way.
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Old 25th Feb 2015, 06:23
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It has been long standing CASA policy that our standards development processes should ensure that regulations are necessary, risk based, cost effective, and that no unnecessary cost burdens are put on the aviation community. Late in 2013 the Government announced the Deregulation agenda which puts additional emphasis on the CASA policy and further extends it. The Deregulation agenda involves significant red tape reduction requirements and also requires any new regulatory costs to be offset, although not necessarily from the same regulated sector.

I recently wrote to all Industry and CASA SCC subcommittee co-chairs, asking them to ensure that these aspects of the Deregulation agenda are considered in the course of subcommittee deliberations. Working groups struck by the subcommittees should similarly be required to take these Government requirements into account. Industry and CASA members are requested to assist in identifying how regulatory costs can be reduced, either as a result of removing unnecessary regulations, modifying inefficient regulations, or by simplifying and streamlining CASA’s administrative processes, including systems and procedures used for the issue of civil aviation authorisations, application forms and the role of industry delegates.

In addition to the discussions on these matters that will be held at the SCC and subcommittee levels, it would assist us if you could send your proposals for improving the efficiency of our regulations and processes to [email protected] so a full listing of these can be maintained.

Thanks to all for assisting with this important initiative.

Standards Division


The above was distributed throughout CASA (in one form or another) several days ago.

An opportunity to have an input ??

Should solve all the problems, and herald a glorious new beginning in the annals of the adventures in aviation regulation.

Yeah!! Verily!! the start of a Golden Age in Aviation Regulation, all the problems of a recalcitrant industry will be swept away - literally -- as most of the industry is an entirely unnecessary impediment to achieving aviation safety heaven, where:

Safety Is Our First Priority !!!! according the Holy Scriptures Chapter S.9A(1).

Or am I being just a teensy weensy little bit cynical??

Tootle pip!!
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Old 25th Feb 2015, 08:33
  #555 (permalink)  
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One of the major problems that CASA has is one of trust. Very few folk in this business trust the regulator. If Mr Skidmore can fix that we might see some change(?)

Oh, and a complete review of the Act would certainly help.

Fighting the CVD issue is a waste of money and certainly not in proportion to any perceive safety benefit!
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Old 25th Feb 2015, 11:55
  #556 (permalink)  
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from a purely layman's point of view we now have a system where pilots have the following:

1. A medical that is valid for day - pvt - VFR operations only,
2. A medical that says valid up to CPL and within Australian Airspace only. So NVFR, CIR, CPL are all good, or
3. A medical that says the holder does not meet certain ICAO requirements.

The more CASA get into this, the bigger mess they make of it.
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Old 25th Feb 2015, 21:01
  #557 (permalink)  
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But surely you feel ‘safer’, YPJT, as a consequence of the beneficent intervention of our regulatory saviours (blessed be our regulatory saviours).
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Old 26th Feb 2015, 03:59
  #558 (permalink)  
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One of the major problems that CASA has is one of trust
Sadly, it is but one of a very long list of major problems, some of which (but by no means all) have been touched on by the ASRR (Forsyth) report.

Sadly, I do not see much changing for the better.

Tootle pip!!
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Old 27th Feb 2015, 06:05
  #559 (permalink)  
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And Just Culture does not work without a high level of Trust!
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Old 28th Feb 2015, 05:15
  #560 (permalink)  
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I thought that this, from the Tribunal's decision, gives an extraordinarily revealing insight into the mindset of Dr Navanthe (at least):
The evidence of Associate Professor Navathe was that a pilot’s licence goes on forever, but it is the medical certificate which enables the person to use the licence.
You see: The only barrier that prevents medically malfunctioning pilots from killing punters in a 30,000' death plunge is Avmed and its certificates.

It is a mindset that that is, evidently, almost completely uninformed - if not completely uniformed - by any knowledge of operational reality. But for the blessed intervention of the zealots on a medical crusade, apparently all of those doped up, drunk, sick, hungover and otherwise medically malfunctioning pilots would go undetected - unnoticed by colleagues, training and checking systems, ATOs during mandatory periodic checks, air traffic controllers who listen and watch them, and miraculously avoiding making a smoking hole in the ground.

Of course CASA never suspends or revokes pilots licences using administrative powers: It's left to Avmed to wield its holy certification sword as the one and only line of defence against licences that go on 'forever'.

It's therefore no wonder to me that Avmed is labouring under the misconception that their efforts are essential and make a positive difference to aviation safety.

The pilot in command of a 787 recently collapsed at the controls and died soon after in hospital. That tragedy helps to remind us what a Class 1 Medical Certificate really means: it really means that the holder has the same probabilities of suffering sudden incapacitation as the general population, CVD or no CVD.
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