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Canadian Court Requires CVR Disclosure

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Canadian Court Requires CVR Disclosure

Old 23rd Sep 2010, 22:21
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Air Accident Investigations - New EU Law

]A new EU law to ensure the independence of air accident inquiries was approved by the European Parliament on Tuesday. The law also requires airlines to produce a list of those on board the plane within two hours of an accident. Before a flight, passengers will be entitled to name a person to be informed in the event of an accident.
The new EU regulation will ensure that a safety investigation into an accident is conducted free of pressure from regulatory or other authorities. Any statements taken from individuals by a safety investigator, as well as voice and image recordings inside cockpits and air traffic control units, will be used only for safety investigation, unless there is an overriding reason for disclosure to the judiciary. This will ensure that people can testify without fear to the safety investigators, whose purpose is not to attribute blame but to establish the facts.

As is the case at present, the safety investigation authority will be obliged to make public the final accident report "in the shortest possible time and if possible within twelve months of the date of the accident or serious incident".

Each Member State must set up a civil aviation accident emergency plan and ensure that all airlines based on its territory have a plan to assist victims of accidents and their relatives.

The full text is at: Air accident investigation: Parliament lays down strict criteria*

Looks like a sensible approach from the EU (for a change!).
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Old 24th Sep 2010, 06:59
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As I mentioned a few posts earlier, but it seems it did not quite filter through:

A TRANSCRIPT of the CVR contains FACTUAL INFORMATION pertaining to an accident / incident, wchich is compiled by a panel of experts, over a period of time, often including lengthy deliberations on the identification of even single words. This should be public domain for the benefit and learning of all, and it is in many jurisdictions.

The problem is that in Canada even the transcript is protected by law, and is not made part of an investigation report. In some cases (like the one under discussion) this may raise the suspicion that certain factual information available on the tapes was witheld by some party with a vested interest. This may or may not be the case (probably not, the composition of the CVR group should be a guarantee), but certainly the public availability of the CVR transcript would help clarify things.

I ASSUME the matter is not proving that a third person was in the cockpit (that is actually admitted in the report), but whether the presence of that person was pertinent to the accident in any way. That information would only be available from the CVR.

My personal view is that it is about time Canada, providing global benchmark standards in so many other fields, grows up to the rest of the word on this matter.
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Old 24th Sep 2010, 11:27
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Just out of interest, for anyone with a knowledge of International Law, does the CVR belong to the state the aircraft is registered in? If so, would Canada not need to approach France to ask for French property?

If this is not the case then could a non-aviation regulatory authority demand access to QAR data, say for H&S or Noise purposes.

This could be a legal minefield.
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Old 24th Sep 2010, 12:20
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Well, it's pretty clear I need to come into line with the consensus, and not be such an iconoclast......so I will agree with the consensus in here that we don't need accountability and transparency in the cockpit...better to keep everyone in the dark after an accident....

Now where's my logbook...I need to go burn it....that way I can parker pen in 200 hours, borrow $50,000 so I can go buy a seat in an airliner....

ahhhhh... nice to be part of the family now...not be such an outsider......feels great....
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Old 24th Sep 2010, 14:27
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...does the CVR belong to the state the aircraft is registered in?
No, the CVR like any other aircraft part or integral component is the property of the owner (airline, leasing company, etc.). The actual recording is owned by the operator (just like flight logs, maintenance records, etc.).

The relevant authorities may ask for (and even forcibly take) any CVR recording within the applicable lesislative framework (in all juristictions I'm familiar with, only with cause, related to reported accidents/incidents).

Per ICAO rules, the competent authority is always of the state on/over whose territory the accident/incident happened, irrespective of state of registry. If the event happened over international waters, it is usually the authority of the state of registry. The competent authority has full rights over the recovered recorders and recordings, according to their own laws and regulations (the source of much frustration in some investigations, just look at the recent Ethiopian accident at Beyrut).

Most 'civilised' authorities will invite the authorities of the state of AOC/registry/aircraft manufacturer to be a party to an investigation either actively or as observers, but this is not a legal requirement, and the authority of the accident state will remain the sole responsible for the investigation and the subsequent report.

Last edited by andrasz; 25th Sep 2010 at 10:32.
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Old 24th Sep 2010, 15:12
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johns7022;
Well, it's pretty clear I need to come into line with the consensus, and not be such an iconoclast......so I will agree with the consensus in here that we don't need accountability and transparency in the cockpit...better to keep everyone in the dark after an accident....

Now where's my logbook...I need to go burn it....that way I can parker pen in 200 hours, borrow $50,000 so I can go buy a seat in an airliner....

ahhhhh... nice to be part of the family now...not be such an outsider......feels great....
I see you have taken my comment personally and have chosen to respond with sarcasm instead of curiosity.

The notion I was trying to convey was not "conformity" or "consensus" of views or "going along to get along" in a forum but the importance of understanding the investigative process and the reasons behind the protection of certain (raw data) information from indiscriminate release and not merely the offering of an unsupported opinion.

Perhaps you might imagine what CNN would do with original CVR information. We already know what the legal profession will do with such information and it is against the use of flight safety information for prosecutions that is the entire point of this thread.

The reasons are solidly-based; a differing opinion is welcome because disagreement often takes understanding forward but such "non-conformity" must be based upon reasons-why. You don't provide those reading your post with anything substantiating your opinion.

You say (and still do, I see) that "special interests" and "hiding flight crews' mistakes" are behind the "intentional, legal secrecy" of the CVR. Arguably a very few countries run their affairs that way but not the majority. Most countries adhere to ICAO Annex 13 which describes how the investigative process is to be conducted. Take a look specifically at Chapter 5.

You say that we need flight crews to be "accountable" and need "transparency" in the process but then proceed to equate the expressed need to protect the CVR with the opposite of these laudable requirements.

There's always a counterpart for such processes: "Transparency and "accountability" for whom? - any law or media outfit that comes along?, or a duly-constituted group of experienced experts with only one goal in mind which is to find out what happened? The difference is what the thread is about.

Because accountability and transparency don't come in the package you want or expect does not mean that these principles don't apply. In fact, SMS broadens accountability beyond the cockpit, to the organization where an "accountable executive" is appointed.

There is indeed transparency in the investigative and reporting process where it concerns an aircraft accident but for reasons which should be readily understood, not for just anyone who comes along with a gripe or a lawsuit. The aviation industry is as safe as it is today precisely because of the investigative process being discussed here and that is what is being protected.

There is no conspiracy to hide information from the flying public. There is the need to protect such information from use in courts because it is intended as safety information only. As I stated previously in this thread, if prosecution is to go forward, do it on independently-discovered evidence and don't coat-tail on information that is intended to enhance flight safety. Use that information to prosecute crews and that information will, in one way or another, dry up very quickly. Is that what you desire?

If you still have solid reason to say what you did, let's hear it because an institutional hiding of evidence from an accident investigation represents a very serious matter.

The goal here isn't consensus, it is informed disagreement. I made the suggestion to read the thread because both your posts show that you don't understand these processes and I thought a reading of other contributions would broaden your understanding, ...if you're curious.

PJ2

Last edited by PJ2; 24th Sep 2010 at 15:28.
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Old 24th Sep 2010, 18:09
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There is the need to protect such information from use in courts because it is intended as safety information only. As I stated previously in this thread, if prosecution is to go forward, do it on independently-discovered evidence and don't coat-tail on information that is intended to enhance flight safety. Use that information to prosecute crews and that information will, in one way or another, dry up very quickly. Is that what you desire?
PJ2, I know your way of thinking is shared among many pilots, but for all other professionals it is a twisted ill logic which have only one goal - hide the evidence and escape from prosecution.
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Old 24th Sep 2010, 18:52
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CargoOne;

"Twisted" is an interesting adjective to apply to a system in which the resulting success in terms of safety levels is nothing short of spectacular when compared with how other professions handle events, untoward outcomes, accidents and fatalities.

The main comparison is the medical profession which, seeing this very success in terms of preventing accidents and fatalities, is adopting aviation's methods of prevention through appropriate monitoring, data-collecting and preventative investigation.

As has already been discussed, shipping, rail, public transport and even the automobile industry is following aviation's long history of dealing with these issues directly and successfully, and not, as you claim, "hiding evidence and escaping prosecution".

This doesn't mean that aviation's approach to these issues is without fault or immune to the influence or the outright pressures of special interests; it is a human activity, after all.

Take a look at the evidence, not what is merely written or said. The success of this approach to safety is not due to mere views and opinions shared by pilots. This success is due purely to our industry's willingness to look at the nasty bits and do something about them before they kill or cost.

Would that such an enlightened attitude were resident in other professions and industries.

While litigation can, in the short term, (and sometimes even does) lead to change, it also engenders a strong culture of silence both corporately and professionally. That quickly leads to the very activities of hiding evidence which you complain aviation is trying to accomplish through its processes of protecting safety data. By comparison to a rational approach to accident investigation and prevention, is this unenlightened litigious approach not the very definition of "twisted"?

There is no perfect system, nor is there a system invented which always avoids unfairness or even abuse.

However, if you prefer a system whether transportation-related or healthcare related, etc, which runs on the principle of "tombstone safety" and which characteristically "punishes the perpetrators" before knowing why, and which prefers discovery and prosecution to learning, you would do well to avoid using such a system.

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Old 25th Sep 2010, 01:00
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Everyone: This thread exists because of an accident in a first world, first rate country.

Alas, as to the horrible crash in Islamabad, we can only speculate.

And, as someone interested in aviation safety and learning from air carrier accidents, I am saddened by the attitude of the so-called competent authorities in the Islamabad case.
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Old 25th Sep 2010, 10:39
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Well said, aterpster!

Another element that seems to have been overlooked in the thread: from what was said so far it appears that the reason a court proceeding is requesting the CVR recordings is to DEFEND one of the involved parties (Canadian ATC - who based on the accident report did nothing wilfully wrong, but was not quite up to speed with the unfolding weather scenario either...) from litigation, rather than to prosecute anyone. They are doing so because they believe certain FACTUAL information was ommitted from the accident report.
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Old 7th Oct 2010, 16:30
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I see today that the Colgan case is to be heard March, 2012, (Jury selection in March 2012 for trial on Flight 3407 - City & Region - The Buffalo News). The judge in the case will rule on whether the cockpit voice recorder will be played in open court so, "Jurors would benefit from hearing the tape because it will shed light on the pilots' demeanor and emotions during the last moments of the flight, and it is also possible that the screams of victims would be heard, Russ said.", ("Russ" is a lawyer for families of the victims.)

Perceptions of hearing/seeing and resultant psychological "conclusions" are interpretive acts, open to well-understood manipulative strategies by those, like advertising people, politicians and lawyers, whose job it is to understand the human psychology of such persuasive tactics.

The "principle", if it may be called that, behind playing the actual CVR is that of, "getting closer to the truth" but the approach is emotive and even sensational. For legal purposes, finding out the "truth" is not possible without the interpretive act and that is the process which is open to manipulation. The jury will not learn the "truth" from hearing the actual CVR, because, like any eye/ear witness, they have no experience with which to "hear" the conversations and therefore context within which to correctly judge the crew's actions.

That enormous trauma was experienced by the victims, all victims including the crew, is not in doubt, but "hearing screams" does not establish truth of what happened which is what the collection of flight data is intended to do.

Bringing in "expert testimony" only removes that process by one step - it is still an interpretive act using data collected for safety to prosecute a legal case.

Such interpretation is a valid process when carried out by trained and experienced accident investigators who have no interest in the outcome of any prosecution. Investigators go where the data leads them, and while no human interpretive process can "uncover the real thing", (there is no "real thing" underneath, there is only interpretation alone), the process of investigation is informed by vastly different understandings than the legal process.

Using data collected for safety to prosecute a case against a crew or a company is simply creating a Trojan Horse.

andrasz;
from what was said so far it appears that the reason a court proceeding is requesting the CVR recordings is to DEFEND one of the involved parties (Canadian ATC - who based on the accident report did nothing wilfully wrong, but was not quite up to speed with the unfolding weather scenario either...) from litigation
DEFEND [sic] and prosecute are bed-partners. It should be clear to anyone who thinks that using safety data for "defence" (for whom?) is justified, that such a door swings both ways, and next time that same justification will be used to prosecute a case which, "in the public interest", may appear to some judge to be sufficiently "egregious" to permit "special considerations" in the use of safety information for legal ends. Once the barn door is open, all is possible.

The objection here is not to prosecutions per se, (another, discussable matter), but to the use of safety information for legal action. If the parties want to prosecute, then find their own data from independent means.

Some say that pilot associations have no choice in the matter because such data-collecting is mandated by law. That is a naive argument. The day that door to which you refer is opened by the courts is the day that will signal a shift in the acceptability of the already-deep invasions into the lives of flight crews by the data-gathering process.

Pilot associations and pilots endure such robust invasions of their workplace for one purpose only and that is to increase the safety of their industry and their operation.

Legal or not, once such data begins to find its way into prosecutions, the industry will witness a turn-around in the pilot communities' willingness to endure such processes and we will see first, resistance, and then a determined lobby against data collection slowly develop with a commensurate increase in accidents because not-knowing-why but winning a legal argument is the preferred outcome.

We are seeing very strong resistance by pilot associations to cockpit video recording for these very reasons. While the investigative utility of such a tool would be invaluable, with the courts even in first-world countries now willing to endure such arguments as we have seen in the Toronto case and with Youtube enthusiasts waiting to post, the advent of such technology is thankfully a very long way off.

The other, more important aspect which hasn't been mentioned in the thread is the notion of "criminal behaviour". Such a notion is related to time. Here is why: In the short term, we may convince a jury that a crew "engaged in criminal behaviour" of some sort and we may use collected safety information to "prove" the case. The result of such a trend will be as described herein, and such data collection will, over time, (decades), be curtailed. Where then is the real criminal act?

PJ2
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Old 7th Oct 2010, 23:23
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To sum up, the camel's nose in the tent precedes the camel itself.

This of course is not the first time and I'm sure that subjective arguments will be available to justify when it's OK and not OK to take this kind of safety data source into a court of law to subjectively argue for "justice" for some party.

If we (collectively) wish to draw the line then I submit that it must be codified to the extent that it will be recognized in the law of the land. Having pilot (sic) or other groups, agree in principal does nothing to change the status quo
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Old 8th Oct 2010, 02:51
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I'm sorry

But the CVR should be played in open court. Colgan is at the very heart of a tremendously complex issue that will only get worse. The simple reality is that aviation safety is becoming more and more dependent on automation. The primary pitfall is the degradation of both actual hand flying and professional judgement. It's clear that more and more accidents are the result of crew allowing the equipment to do the flying...and all to often the thinking.

The illusions some have that flying is somehow safer are just that illusions. We need higher standards and that means more training and higher pay. It won't happen unless multiple incidents of professional misconduct (and thats EXACTLY what Colgan was) are handled in an open, transparent and expensive manner. I hope provisions exist for the award of heavy punitive damages against Colgan.
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Old 8th Oct 2010, 03:03
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Slf...not sure where the "professional misconduct" is...Mistakes and poor airmanship, yes...but "misconduct"???

Stick to sitting in the back...
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Old 8th Oct 2010, 03:32
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Clear to whom, if you please?

Golly, SLF, you wouldn't by any chance be some sort of shyster, would you? I just have to ask because you seem to have that coupling of money with safety that only they seem to see. What, you are going to scare people into operating safely?

"Crash and die and I am going to sue you for every penny!" Sorry but I really don't think that this unfortunate crew would really have focused on the matters at hand any more closely even if they had known that someone should be having a very big payday coming thanks to their mistakes.

When a fat cheque for punitive damages lands in some shyster's pocket, then what? You mean he turns around and gives the money to some foundation working directly for improved safety? That is news to me; I thought the simoleons went to buy him flashy stuff and "Screw the rest of us," who end up stuck with the bill in the form of higher air travel costs.

I don't think that such operators should get away with this sort of stuff but I really don't think that letting hordes of blood-sucking lawyers run amok is the way forward either.

If we hear you scream on the CVR tape then let us hope that is just because you rammed the plastic fork into your thumb trying to get that bullet-proof bag of peanuts open so, "Safe journey."
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Old 8th Oct 2010, 04:05
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SLFinAZ;

You are of course entitled to your personal opinion, and that is all it is.

You range over a number of current, high-profile issues without understanding and without gathering your thoughts carefully then setting them out in your post. In doing so you have not addressed the issues raised nor refuted the arguments made in support of the present approach to collecting and using safety information. There is a long historical approach to this work which has proven very successful in this industry; - you need to make yourself aware of such history and processes before launching. Nor have you demonstrated any success coming out of the punitive approaches you advocate.

Cooler minds need to guide this process so that accidents like the Colgan accident do not occur again. Your approach, while offered with, I believe, good intentions, (prevention through punishment), will bring about exactly the opposite effect, leaving the commercial aviation industry, and those we carry, wide open for another such accident.

The approach is not a "get-out-of-jail-card" but traditional enforce-and-punish approaches are not the way to continue the improvement in flight and passenger safety.

Please think about this and especially re-read the thread carefully. If you can still state without hesitation or emotion that punishing-rather-than-comprehending will make the industry safer, then you need to start researching this and providing the forum with information which supports such a view, because the evidence is entirely contrary to both your understandings of how the industry makes itself as safe as it is, and your opinion in particular.

Offered with respect,

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Old 8th Oct 2010, 07:09
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What is most interesting about this thread, which deals with a very important subject, is that there has only been one comment from a legal expert, and that brief and restricted.

I don't think the issues can be solved. I don't know whether they can be resolved, and even if they can be, I don't know whether a resolution can be established for the duration or if it has to be continually renegotiated.

PJ2 is quite right that the "discourse of safety/accident investigation" is different from the "discourse of responsibility" (I avoid the perjorative connotations of the "b" word). Both are human negotiative processes, and both can proceed apprropriately or be abused, and are, regularly.

Anyone who has been involved in civil court proceedings knows, as a colleague of mine memorably put it in an address to the International System Safety Conference in Ottawa in 2004, that such proceedings are not primarily about finding out what went on or what is going on, but simply about reaching a conclusion by some means or other. My take is that the point of view "if I/you do everything properly, then I/you have nothing to hide, and therefore I/you can have no significant objection to data in which I have an interest being made public" does not survive any personal experience with antagonist proceedings, legal or administrative.

Let us put some flesh on the bones of PJ's contention that these are different "discourses" (or "negotiations", or whatever your preferred technical word is).

The fact is that pilots, and controllers, work a safety-critical job in an environment that is almost never optimal and often involves contradictory requirements. They have chosen to do that job, and each and every one will have some method of resolving those contradictory requirements, by adhering to some and violating others. And when a person ends up in antagonist proceedings, hisher antagonist is going to emphasise the requirements that heshe did not fulfil (and there are inevitably some).

For examples, think of the constellation of issues around fatigue, the commute to base, low pay, and family stability obligations, which almost every "commuter airline" pilot has to try to resolve somehow. (I am sure many if not most would go for a relaxed commute the day before, a stay overnight at the Airport Hilton, and a decent breakfast before starting the day's - or night's -work, but that has traditionally not been on offer. Does anyone seriously think Colgan's accident pilots rode jump seats to work in the middle of the night and slept on couches because they preferred to?) And if that doesn't grab you, then think about how pilots and controllers cope with malfunctioning equipment, such as the controllers in the Amazonas involved in the Legacy/GOL mid-air collision that were supposed to be working in the environment of (according to the authorities) "full radar coverage" which clearly wasn't. And if that doesn't grab you, then maybe it is time to familiarise yourself with Jens Rasmussen's work on "migration to the boundary", which is his word for adapting to contradictory constraints.

So, a "safety" discourse will attempt to consider this environment, how an operator adapts, and whether this adaptation is appropriate or not. In reference to Colgan, it would consider, for example, making employers responsible for providing adequate rest accomodation (a hotel room) to pilots before a shift, at no cost to the pilot, and introducing measures to ensure a pilot uses it.

A "responsibility/blame" discourse will point out that the pilots broke company regulation concerning rest time, and may well attempt to argue that the pilots thereby brought themselves into a state of fatigue. If they had "deep pockets", there would follow the argument that they are wholly responsible and therefore liable for the damage they caused. Since they did not have "deep pockets", it will be interesting to see how the argument then progresses. It might try to put responsibility on the employer, who will then argue that it has clear working practices in place to which their employees contractually obligated themselves, that the working practices were adequate, and that the employees violated their obligations.

It is obvious to me, and, I would argue, should be to others, that these discourses are different.

PJ now wants to argue from this, and I think we should all be able to see why, that certain kinds of data, which everybody agrees is essential for the safety discourse, should be protected from the responsibility discourse. It is, I hope, easy to see on the basis of the foregoing considerations why this is desirable.

However, and this is a very big but, the discourse of responsibiity has three thousand years of history behind it, some two thousand nine hundred more than the discourse of aviation safety. And has developed certain principles. One of these principles is that which I will crudely call disclosure (our legal colleagues can correct me if this is the wrong word). I put it crudely as follows: if there exists evidence pertaining to a case, then parties to the case have a prima facie right to examine that evidence. Further, they have equal right to the evidence; if one has access to it, then all.

Now, the rules regarding what is "evidence" and what is not are pretty complicated, and by no means the same in all jurisdictions. Hence disputes about "admissible evidence" (that phrase really just means "evidence").

Now, it is all well and good for a legislative body (Parliament, Congress) to decide, and enact a law, that no one shall have access to a particular document (by which I include all manner of stored record of past events) such as a CVR recording. But the legal principles above are much older and more well-established, and the judiciary can well decide that plaintiff's or defendant's fundamental rights trump any recent legislative decision to keep some things secret, especially if it can be shown that that secrecy is somewhat threadbare.

That is the nub. That is my take on what PJ and others are worried about. It is not clear to me that this conflict has any solution.

PBL
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Old 8th Oct 2010, 11:27
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SLFinAz

I think you should maybe read the paper "Punishing people or learning from failure" by Sidney Dekker. You will probably find it quite interesting and thought provoking.

It is available on the web for free and just needs a google search
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Old 8th Oct 2010, 11:57
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PBL, I'm not too sure what the Canadian legal system is like, but I do know that Tort Law can be horribly complicated and most generally tried by lay people, who may not understand the vagaries of aviation.

To be judged by our peers is fair enough, to be judged by those who have absolutely no knowledge of aviation at all? Is that fair?

Consider aviation to be a field of academia, would it be fair to have my paper on chemistry dissected by a non-chemist, who will then judge if it were correct or not?
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Old 8th Oct 2010, 13:46
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Ex Cargo Clown,

I'll pass on whether it's fair.

It is, however, traditional for at least 1500 years in English law, which relies heavily on precedent. It's hard to beat 1500 years.

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