Aviation Briefs

Quite a number of VFR aircraft had been caught at Parkes the previous day by weather and many were returning to Bankstown at around the same time. At about 5 miles west of Bathurst, an APT aircraft called Sydney FS was taxying for an IFR departure from Bathurst and he requested details of other traffic in the area. The following interchange occurred:

“Alpha Bravo Charlie, Sydney, nil traffic. ” “Sydney, Delta Echo Foxtrot (the writer), 5 miles West of Bathurst, cruising 4,000 and overflying for Bankstown. ” (pause) . . . “Alpha Bravo Charlie, Sydney, there are a number of aircraft operating Sartime or Nosar from Parkes overflying Bathurst for Bankstown. ” “Alpha Bravo Charlie, thanks a lot!”

This situation could not be unfamiliar to many pilots – Flight Service responding ‘nil traffic’ to an aircraft which has flight planned IFR. However, the Flight Service Officer concerned should have been well aware that there were, or were likely to be other aircraft in the vicinity of Bathurst at the time. In this instance there were no disastrous consequences, but the incident does highlight the responsibility of Flight Service Officers and Controllers to take reasonable care in the performance of their duties.

As a matter of law, an Air Traffic Controller or a Flight Service Officer owes to the pilots and passengers of aircraft flying within the airspace for which he has responsibility, a duty to take reasonable care and give all such instructions and advice as might be necessary to promote the safety of aircraft within his or her area of responsibility. If he or she breaches that duty of care, then at law he or she will be liable for the foreseeable consequences of such breach. That fundamental principle of the law of negligence has been applied by Australian Courts in relation to Air Traffic Controllers.

In 1975, the Western Australian Supreme Court held an Air Traffic Controller liable in negligence to a pilot and passenger injured in a collision between two light aircraft which were approaching to land at Jandakot. In that case, the controller had observed the two aircraft approaching the aerodrome and made a judgment that one would touch down in front of the other. Immediately after forming that opinion, he turned his attention to other matters for the space of a minute or so and did not observe the two aircraft again until they mere almost on the point of collision. The Court held that in relying on his judgment, that one aircraft would land in front of the other, when he knew that this opinion was one difficult to be sure of and by then, failing to observe the aircraft for the time that he did, the Controller had failed to keep the lookout which it was his duty to keep and his failure had contributed to the collision.

In 1984, the New South Wales Supreme Court heard a case concerning a midair collision between two aircraft shortly after each had taken off and were within the perimeter of the aerodrome control zone. The Court found that the air traffic controller was in breach of his duty of care to the plaintiffs, in that he failed to keep and maintain a proper lookout and failed to alert the pilots of the dangerous situation which be knew to be developing and to its possible consequences. He had failed to act in accordance with the standards of a “reasonable man in his position in all the circumstances” and this failure had contributed to the collision between the two aircraft.

It is clear that Air Traffic Controllers and Flight Service Officers cannot simply rely on the responsibilities of pilots to maintain separation from other aircraft in VMC in order to escape liability for accidents which might occur within the Controllers’ areas of responsibility. If they know of, or should reasonably have been aware of, circumstances which could give rise to a potentially dangerous situation, they are under a legal obligation to take all reasonable steps to prevent an accident occurring. To advise ‘nil traffic’ where a controller knows or ought to know that other aircraft are operating in the area could quite readily give rise to legal liability if that advice should contribute to an accident.

As an interesting side light, it should be noted that an action by victims of an aircraft accident, or the relatives of persons killed in such an accident, based on the negligence of a Flight Service Officer or Air Traffic Controller, against either that person personally or his or her employer (ie the Commonwealth), would not be affected by the restrictions of the Civil Aviation (Carriers Liability) Act(s) and liability would thus be unlimited. – Brian Kinsella.

1988 International Air Safety Law Congress.

The Association extends its gratitude to the many eminent local and overseas speakers and commentators whose input made the World Congress conducted in Sydney during October undoubtedly the most significant conference on air safety law yet conducted in Australia and hearty congratulations are due to the Organising Committee. Appropriately, the central focus of the Congress was on the question of deregulation.

According to critics and despite the obviously enormous economic benefits produced, deregulation has caused a reduction in air safety, particularly in the USA; whilst the number of passenger fatalities have decreased more than 50%, it is disturbing, that the number of near midair collisions reported by the FAA between 1983 and 1987 increased by approximately 124%. That alarming statistic prompted the establishment of the Aviation Safety Commission whose report filed in April 1988 recommended substantial amendments to airways operations, maintenance, licencing and aviation administration.

According to Australian authorities however, there will be no compromise of air safety in this country when the Australian industry is deregulated in 1990. The CAA insist that it will ensure the continued effectiveness of air safety regulation and supervision. According to a DoTC and Communications spokesman who addressed the Congress, the Australian approach to deregulation has been designed to provide the appropriate structures and adequate expertise necessary to cope with any resultant increase in air safety surveillance workload flowing from increased industry activity. Safety had not become an issue in Canada following deregulation in that country he said and “there is no reason why it should become one here”.

The obvious flaw in that proposition however, is that it ignores the fact that, for example, much of the equipment used by Air Traffic Controllers is hopelessly antiquated and simply not adequate to manage greatly increased aviation activity. Furthermore, one cannot help but wonder how the Authority proposes to increase its airways operational and maintenance surveillance personnel levels when even now experienced air traffic controllers and licensed aircraft maintenance engineers are becoming increasingly difficult to locate and are leaving the CAA in droves.

Doubtless our Australian regulators have turned their minds to those challenges but has over-bureaucratisation and administrative lethargy been placed on the agenda for close attention as it was in the US following the report of the Aviation Safety Commission? (Refer separate CAA Airworthiness story elsewhere this issue).

Deregulation or not, no industry can realistically be expected to function properly under the administration of top heavy and cumbersome bureaucracies: the American experience must not be ignored. Legibus Mundi Adstrictus Sed lnstar Avis Subvolo.