Aviation Briefs

It arises from the mid air collision and subsequent ground impact of two Boeing 747 aircraft near Sydney International Airport. The two aircraft were on approach, their movements monitored and controlled by junior ATC and FSO staff (the more senior staff were on sick leave with stress or had commenced early retirement) and flying conditions were good.

This tragedy occurred due to an unfortunate misunderstand related to the necessity to have 1 O aircraft on holding patterns, a malfunction in the radar equipment, a trainee Air Traffic Controller and a failure to notice that the two aircraft were insufficiently separated (indeed, were ordered onto a collision course).

The Plaintiffs allege a failure to institute and maintain a proper

and safe system of air traffic control.

In particular, from the evidence it appears that:

(a) for years the airport operated regularly at 106. 5% capacity; (b) despite frequent requests from the FAG and the CAA, reports from experts and much newspaper publicity, the Commonwealth failed to repair or upgrade its radar equipment;

(c) the Commonwealth knew that the inexperienced ATCs had buckled under similar pressure before;

(d) the cost of rectifying the problem amounted to about $10 million for radar, a training and recruitment policy for ATCs and better staff conditions; and

(e) even the most expensive step of providing a third runway was roughly equivalent to the value of the 747 aircraft involved.

Each of these factors pales into insignificance beside the loss of life and property.

No-one else could rectify the situation. The Air Navigation Act ensures that the Commonwealth controls aircraft movements into Sydney as surely as if each aircraft was on a string. The relationship between the Commonwealth and the flying passenger is so close and their safety is so directly affected that a duty of care in the law arises. The Commonwealth breached that duty of care by failing to take the obvious and practicable steps known to it and urged upon it to avoid risk to these persons; the nature of those ri$kS was clear following a whole series of ‘near miss’ or ‘incident’ reports.

In its defence, the Commonwealth alleges that political and Budgetary considerations (the fear of losing ALP seats and spending any money) meant that it was exercising the highest functions of Government policy formation in setting priorities and allocating funds where most needed and it claims immunity from actions in negligence for damages when it is exercising that function. If there is not enough money to go around, it says, then it is a political judgment where it is best spent. The Commonwealth may be able to evade liability in this case if it is put solely on the basis that it should have provided a third runway or an alternative airport at Badgerys Creek, but it cannot claim budget policy reasons for a failure to provide suitable equipment and staff for known dangers in a known situation. The Commonwealth was not exercising a discretion in failing to renew equipment and train its staff – it was being negligent. If the Commonwealth thought that there were budgetary constraints on provision of safe aircraft services, then it had a duty to warn the public so they could stay at home or travel by sea. But it failed to give any warning and instead, purported to provide a proper service.

You will recall His Honour’s questioning of the Treasury official who dared to tell you that the Commonwealth had no money to provide these facilities. That defence has been rejected as was the allegation that the deceased pilots, passengers and the residents, all knew and consented to bear the risk of flying into the Mascot morass.

You will probably bear that outrageous defence in mind when awarding huge damages to those I represent.

Briefly in conclusion, if the Commonwealth is running an unsafe system contrary to its expert advice, then it (and indirectly, you, Mr Taxpayer) will pay for it in damages for negligence. No fancy arguments of ‘policy formation’, ‘discretion’ or ‘power without duty’ will save it in the current climate of the extension of liability and protection of the white-knuckled consumer. ” Dean Letcher QC.

‘See and Be Seen’: Back to the Courtroom

This column recently (AA, January 1989 p. 109) attracted some interesting reader reaction. Some correspondence was congratulatory, but others were strongly critical of the view expressed by the author as to the legal responsibilities of Flight Service Officers in particular. One critic wrote: “It is the responsibility of pilots of Sartime and Nosar aircraft to maintain a continuing listening watch and to respond to other aircraft with their intentions. Likewise IFR/RPT pilots operating in such an area below 5,000 feet are aware that there may be such aircraft operating. The AIP and VFG clearly lays down the responsibility of pilots in such situations. ”

Other correspondents also indicated that they believed that so long as an FSO complied with the legal requirements of the relevant statutory rules and regulations, they would have fully complied with their obligations and would thus be protected against any actions against them based on negligence.

The critics however have missed the real point of the article, namely, that the law imposes on any person in a position such as that of an FSO or ATC legal obligations over and above those set out in statutory rules and regulations. Those additional obligations arise out of the common law and consist of a duty to take reasonable care and give all such instructions and advice as might be necessary to promote the safety of aircraft within the FSO’s or ATC’s area of responsibility. It is a duty which exists quite independently of any statutory responsibilities. It is quite possible, therefore, for an FSO or ATC to be held liable by a court in negligence even though he or she had complied strictly with all rules and/or regulations pertaining to his or her area of operations. – Brian Kinsella

It is pleasing to see that this column is being read by a wide range of people. We welcome any contributions from readers regarding legal issues, be they brickbats or bouquets.