38TH ANNUAL CONFERENCE, Santiago, Chile, 15-19 March 1999WP No. 172Review of IFATCA Policy on Legal Liability |
Introduction
The review of existing IFATCA Policies (Legal) continues on the work programme of SC 7. This paper seeks to review the policies on legal liability of the Controller that can be found in IFATCA Manual policy relating to legal matters section 1.0 – 1.2.
Discussion
Paragraph 1.1.3 of the IFATCA Manual, on page 4411, reads:
| “IFATCA can never support any Controller who is guilty of negligence of duty. However, the Federation must reserve the right to use any legal means available to it, to protect any member who is accused of such crime.” |
SC 7 is of the opinion that the paragraph 1.1.3 on page 4411 should be amended to read:
“IFATCA can never support any Controller who is guilty of gross negligence and / or flagrant dereliction of duty. However, the Federation must reserve the right to use any legal means available to it, to protect any member who is accused of such tort .”
To use the word negligence alone actually lowers the standard by which IFATCA would be obligated to provide assistance. Negligence alone could mean something simple, like just not paying total attention. A small error could be classified as negligence. Are we saying that IFATCA should not assist Controllers if we are negligent or made a small error?
In other words on a scale of one through ten if paragraph 1.1.3 on page 4411 is left as it is presently written, IFATCA would only be obligated to assist Controllers to stage three. However, if the word gross negligence is used, IFATCA would be obligated to assist controllers to stage ten.
If the word negligence alone is used we are in fact relieving IFATCA of its responsibility. SC 7 is of the belief that the aim and objective of IFATCA is to seek the interest of the Air Traffic Controllers and in this, IFATCA must be prepared to go the full distance in providing assistance. If left as is, we are in fact reducing the distance IFATCA must go.
SC 7 proposes that paragraph 1.1.4 on page 4411 should be renumbered 1.1.5 on page 4411 and a new 1.1.4 on page 4411 should be inserted to read as follows:
“IFATCA defines that, it should be necessary to prove ‘mens rea’ (guilty mind) beyond all reasonable doubt, before a crime can exist.”
This paragraph should be inserted because it clearly defines, what is IFATCA’s policy on crime and when a crime exists. With no defined policy there must be confusion. In this paragraph IFATCA is saying, in order to establish that a crime exist, this must be done beyond a reasonable doubt and one must establish ‘mens rea’ or guilty mind.
‘Mens rea’ or guilty mind is difficult to prove. Hence, it is only to the benefit of Air Traffic Controllers to make it extremely difficult to establish that a crime exists. This paragraph is also necessary because IFATCA is an International body, thus, the laws are different in each Country. Hence, gross negligence may be a civil offence in one Country, and it may be deemed a criminal offence in another.
Paragraph 1.1.4, which now reads:
| “All other cases involving an Air Traffic Controller must fall under the Civil Law, and must be heard by a competent Civil Court and must be subject to the following conditions.” |
should be renumbered as paragraph 1.1.5 and should be amended to read:
“All other cases where ‘mens rea’ can not be proven, must fall under Civil Law as opposed to Criminal Law, and must be heard by a competent Civil Court, and must be subject to the following:”
This committee proposes this amendment for the same reasons stated above.
Conclusions
These amendments have been designed to enhance the umbrella of protection being afforded to Air Traffic Controllers, whose responsibility are grave and onerous. It accordingly behoves the organisation to ensure that its membership does receive greater protection from liability.
Recommendations
It is therefore recommended that the following amendments be made to the existing IFATCA Professional Policies.
That paragraph 1.1.3 on page 4411 should read:
“IFATCA can never support any Controller who is guilty of gross negligence and/or flagrant dereliction of duty. However, the Federation must reserve the right to use legal means available to it, to protect any member who is accused of such tort.”
Insert a new paragraph 1.1.4. on page 4411 as follows:
“IFATCA defines that it should be necessary to prove ‘mens rea’ (guilty mind) beyond all reasonable doubt, before a crime can exist.”
That the preamble to paragraph 1.1.5 on page 4411 should read:
“All other cases where ‘mens rea’ cannot be proven, must fall under Civil Law, as opposed to Criminal Law. It must be heard by a competent Civil Court, and must be subject to the following conditions.”
Last Update: September 28, 2020