48TH ANNUAL CONFERENCE, Dubrovnik, Croatia, 20-24 April 2009WP No. 159Review of the Legal Section Relating IFATCA’s Just Culture PolicyPresented by PLC |
Summary
This paper updates the legal chapter of the Professional and Legal Manual in a way that will reflect and support the Just Culture philosophy. Just Culture is the way forward according to ICAO and IFATCA, but still it is not implemented in many States. Going through terms used in the legal world, the just culture philosophy and the former legal chapter this paper is a guideline to MAs that need some help with implementing just culture and the right legal working environment.
Introduction
1.1 The PLC was requested by IFATCA’s executive board to review the legal section of the Technical and Professional Manual and insert the just culture policy.
1.2 Because this is an extensive task this paper is divided in three subcategories. First an explanation of the legal section that will provide some clarity to MAs about the different terms and approaches used in the legal ‘world’ as well as the meaning and benefit of the IFATCA legal section for the members. Second an explanation of just culture and the way PLC would want it to be inserted in the legal section. Finally a complete rewrite of the legal section inserting just culture and deleting or redesigning certain paragraphs.
Discussion
2.1 The Legal ‘World’ Process
2.1.1. To understand a bit of all that has to be taken into account when an ANSP has to deal with a legal matter regarding liability of an ATCO, the following basics are to be known.
2.2.2. When it comes to legislation and regulation there are global, regional (regional in this context is not defined) and national rules. Globally the most important documents are the Chicago Convention and its Annexes. For example; the International Civil Aviation Organisation (ICAO) states in Annex 13 (Standard 3.1) to the Chicago Convention that;
“The sole objective of the investigation of an accident or incident is prevention. It is not the purpose of this activity to apportion blame or liability.”
This reference document serves for people around the world and spells out which States may participate in an investigation; it also defines the rights and responsibilities of such States (States may file exceptions to ICAO and its Annexes). Chapter 8 covers incident reporting and the necessity for a non-punitive environment for the voluntary reporting of safety hazards. Regional legislation comes for instance from the European Union and National legislation comes from the countries the ATCO is working in and covers both private and criminal liability legislation.
In principle a State is liable in case of negligence in the exercise of its responsibilities (art. 28 Chicago Convention) and the same applies for an ANSP in case of negligence in the provision of ANS. The liability would be shared between different actors (State, ANSP, individuals).
2.1.2. IFATCA’s Role
The legal section of the IFATCA Professional and Technical Manual is neither legislation nor regulation. The legal section is a collection of best practices in the world on how a State, a Public Prosecutor, an ANSP, a Member Association and an ATCO should deal with legal affairs. IFATCA can assist MA’s with formal letters, advice and support whenever this is requested, however IFATCA lacks the knowledge of a legal counsellor and can only do as much as the resources allow.
2.1.3. Terminology
The following terms are often used in legal matters and require some explanation;
Gross Negligence:
This term is multi interpretable and with regard to air traffic control not exactly defined. According to Eurocontrol an ‘honest mistake’ is one that is in line with people’s experience and training. Gross negligence, wilful violations, or destructive acts are not honest mistakes. According to a dictionary negligence is: “the failure to use reasonable care, the doing of something which a reasonably prudent person would not do, or the failure to do something which a reasonably prudent person would do under like circumstances”. A departure from what an ordinary reasonable member of the community would do in the same community. It applies to a person who fails to use the reasonable level of skill expected of a person engaged in that particular activity. Legally spoken negligence is a ‘legal cause’ of damage if it ,directly and in natural and continuous sequence, produces or contributes substantially to producing such damage, so it can reasonably be said that if not for the negligence, the loss, injury or damage would not have occurred. Negligence may be a legal cause of damage even though it operates in combination with the act of another, a natural cause, or some other cause if the other cause occurs at the same time as the negligence and if the negligence contributes substantially to producing such damage. To raise a question of negligence, there needs to be a duty of care on the person, and harm must be caused by the negligent action. In other words, where there is a duty to exercise care, reasonable care must be taken to avoid acts or omissions which can be foreseen to be likely to cause harm to persons or property. If, as a result of a failure to act in this reasonably skilful way, harm/injury/damage is caused to a person or property, the person whose action caused the harm is negligent. (GAIN, Op. Cit. p.6)
Criminal Law:
The term criminal law, sometimes called penal law, refers to any of various bodies of rules in different jurisdictions whose common characteristic is the potential for unique and often severe impositions as punishment for failure to comply. Criminal punishment, depending on the offence and jurisdiction, may include execution, loss of liberty, government supervision (parole or probation), or fines. Criminal law typically is enforced by the government, unlike the civil law, which may be enforced by private parties. The claiming party is the Public Prosecutor.
Civil Law:
The body of laws of a state dealing with the rights of private citizens. The claiming party is the accuser and damage is settled through financial compensation.
Vicarious liability:
Vicarious liability is a legal concept, which refers to one party being held liable for the injury or damage sustained by another party, despite the fact that they had no active involvement in the incident. People or entities typically charged with vicarious liability include supervisors or companies since they bear responsibility for the actions of their employees. To avoid vicarious liability, an employer must demonstrate either that the employee was not negligent and was reasonably careful or that the employee was acting in his own right rather than on the employer’s business. Nowadays vicarious liability is the exception and not the rule in criminal law. In Western jurisprudence, concurrence (or simultaneity) is the apparent need to prove the simultaneous occurrence of both “actus reus” (guilty action) and “mens rea” (guilty mind), to constitute a crime.
Accountability:
Accountability is being liable to be called to account, or to answer for responsibilities and conduct. Air traffic controllers are responsible professionals who take accountability for their work. The other side of responsibility is the liability and possible blame that comes along with the job.
2.1.4. Vicarious Liability in the Legal Section
PLC would like to add the following two paragraphs in the LM.1.1 as these are general statements. In addition to this PLC urges all MAs to pay special attention to the creation of a deficiency database, in order to highlight the liability of individual parties.
“In the event of an accident or incident that can be shown to have been caused wholly or in part due to inadequate standards, regulations, staffing, equipment and training or any other professional tool given to the ATCO, the employer will be vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such an act of omission was specifically authorized by the employer.
Member Associations shall bring to the attention of their national administration written details of any persistent deficiency in order to create a deficiency data base and to emphasize their vicarious liability.”
Adding the above paragraphs will give the opportunity to delete or move some specific examples in the current legal section.
2.2 Just Culture (Just Culture Guidance Material for Interfacing with the Judicial System, Eurocontrol, 2008)
2.2.1. History
The international aviation community has long-ago come to realize that in order for the industry to be successful it must move beyond the existing ‘blame culture’ that singles out individuals and criminalizes error(s) and eliminates legal impediments to a new type of operating environment that we refer to as ‘just culture’.
As the sole objective of any investigation is the prevention of accidents and /or incidents, the investigation process must not apportion blame or liability. This is not to say there is no role for legal actions in aviation. In many countries there are laws enabling (or obliging) authorities to investigate aviation related occurrences. In cases where operators are guilty of wilful misconduct in a form perceived to be beyond the limits of acceptability such as acts of sabotage, gross negligence or substance abuse it is necessary that criminal prosecution will follow. In these instances the operator could reasonably foresee the negative outcome of his or her actions. But in the majority of cases the operators were acting with best intentions and did not wish, nor expect their actions would lead to disastrous results.
2.2.2. Definition
All definitions of just culture draw a line between acceptable and unacceptable behaviour. The three questions just culture revolves around are; who in the State, ANSP or society gets to draw the line? What and where should the role of domain expertise be in judging whether behaviour is acceptable or unacceptable? How protected against judicial interference is safety data? The common answers are that the more a State has made clear structural arrangements about who gets to draw the line, the more predictable the judicial consequences are likely to be. The greater the involvement of the domain expertise in support of drawing the line jointly with judicial system, the less controllers and ANSPs are likely to be exposed to unfair or inappropriate judicial proceedings. The better protected safety data is from judicial interference, the more likely controllers in that State could feel free to report.
Just Culture is defined by IFATCA (p.4421) as (this definition is completely in line with the Eurocontrol definition):
| “A culture in which front line operators or others are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but where gross negligence, wilful violations and destructive acts are not tolerated.” |
2.2.3 The Aim
The aim of just culture is that it protects people against being blamed for honest mistakes. ‘Not honest mistakes’ in this case are gross negligence or destructive acts. This aim is as well that everybody in a position to judge whether an act was reasonable or not, is to see the situation in which the behaviour took place from the point of view of the person whose actions they are.
2.2.4 The Principle
Our job has the intrinsic mismatch that it has to be simultaneously safe and efficient; there is the potential to adversely effect safety through emphasizing efficiency, reliability for cost reduction, diligence (= careful and persistent application or effort) for higher production. If an entire centre is crying out for controllers to be efficient, how can we (or a prosecutor) then turn around after an occasional failure and all of a sudden demand that they should have been thorough all along instead? It is easy to claim that the individuals in question should have tried a little harder, should have looked a little better or should have concentrated more. But on closer inspection, we can discover a context that conspired, in various obvious and less obvious ways, against people’s ability to do a good job, even if he came to work to do a good job.
2.2.5 Just Culture in the Legal Section
Just culture is now covered in LM.2.1, but it is not yet covered in the general policy LM.1.1. PLC wants to insert just culture in the general policy as well.
PLC would like to add the following paragraph to the legal section in order to cover just culture;
“During the legal proceedings following an investigation, all legal representatives should consider the controllers work environment and any other pertinent factors that contributed to the incident or accident as an overall evaluation of the event (holistic approach).”
2.3 Redesign Legal Section
2.3.1 Structure
PLC redesigned LM.1 into a new legal section. The new legal section LM.1 will be divided in numbered paragraphs to make it conveniently arranged. The existing LM.1.1 remains, but gets a new lay out and some added paragraphs. LM.1.2 will cover the former LM.1.10. The other LM paragraphs no longer exist.
The reason to delete the current paragraphs (LM.1.2 till LM.1.11.) is that they are written based on specific problems. With the introduction of vicarious liability and just culture into the legal section these specific examples are now covered in the more generic part LM.1.1. First of all the Legal section will be more readable, shorter and clearer. Second the added generic statements cover every specific example that was in before, as well as every specific example that was not yet mentioned. Through this new format the Legal section looks a lot more like an actual ‘law book’ where not every subject is covered, but generic statements cover all and make interpretation possible. This way there is little chance that your specific problem can not be covered by the new LM.1.1.
PLC did not look into LM. 2 ‘Accident and Incident Investigation’ as this was recently updated in 2007.
PLC deleted policy in LM.3 ‘Policy relating to legal assistance’ but did not redesign the section.
2.3.2 Additional Statement
PLC would like to add a general statement of IFATCA to express its position with regard to prosecution in aviation matters. This is due to the changing community in which it is more frequent to sue everyone when there is money to be gained. The following statement would be put in the LM.1.1 General Policy:
“IFATCA is of the opinion that the increasing criminal and civil prosecution of controllers following aviation accidents and incidents is not in the publics benefit. This is a matter of how and where laws are applied in a very technical area and is not just a matter of inappropriate laws. This problem, then, should not be addressed through an international convention proscribing criminal prosecution in these cases, but rather through an international understanding of the problems created in the technical field by such prosecutions and an understanding of the various matters of public policy involved.” (This general statement is in line with IFALPA)
2.3.3 Legal aspects of cross border operations
Last year PLC presented a paper called ‘ATC cross border legal issues’. There are still a lot of unsolved questions regarding which law and court are applicable. At this moment PLC is not able to make a statement about the preferred solution and requires more time to study this issue.
2.3.4 Deletion of Section LM.3.1.
PLC would like to delete LM.3.1. ‘Legal Assistance Insurance’. The vision of PLC is that one general statement can be made regarding this issue and this can be put in the LM.1.1. As a principle PLC believes that it is not the MA, but the employer who is responsible to cover the costs of claims and defence and to be adequately insured.
The following paragraph is designed to cover this issue:
“The controller’s employer should indemnify the controller for all damages and legal costs for defence incurred if a controller is held liable as a result of carrying out his duties for his employer.”
Conclusions
3.1 The legal section of the IFATCA Manual should reflect and support the IFATCA just culture philosophy/ policy with regard to accident/ incident investigation.
3.2 The legal section of the IFATCA Professional and Technical Manual is neither legislation nor regulation. The legal section is a collection of best practices in the world on how a State, a Public Prosecutor, an ANSP, a Member Association and an ATCO should deal with legal affairs.
3.3 This paper explained the basics of legal affairs and just culture in order to assist MAs and guide them through the ‘legal world’ and IFATCA’s legal section. In order to update and clarify the legal section PLC has proposed changes which are written in paragraph 2.1.4, 2.2.5 and 2.3. Appendix A is the proposed new Legal section LM.1.
3.4 A distinctive line should be drawn between accidents (involving victims) and simple occurrences where no life was in danger. While Just Culture would be applicable to both, the practice shows that it is much easier implemented in the latter case. Intervention of the department of justice and prosecution in the case of accidents is to be expected also due to political, public, media, victims and their relatives’ pressure.
3.5 The definition of “negligence” as a key word in the just culture policy is not unambiguous. Member association must seek for a clear definition between what is accepted as a honest mistake and what is negligence.
3.6 Special attention is drawn to reporting deficiencies to National Authorities and the Management in order to create a deficiency data base in order to highlight the liability of individual parties. PLC urges all controllers to report all deficiencies in standards, regulations, staffing, equipment, training and tools.
Recommendations
4.1 To be added in LM.1.1.:
4411 – IFATCA is of the opinion that the increasing criminal and civil prosecution of controllers following aviation accidents and incidents is not in the public interest. This is a matter of how and where laws are applied in a very technical area and is not just a matter of inappropriate laws. This problem, then, should not be addressed through an international convention proscribing criminal prosecution in these cases, but rather through an international understanding of the problems created in the technical field by such prosecutions and an understanding of the various matters of public policy involved.
4413 – In the event of an accident or incident that can be shown to have been caused wholly or in part due to inadequate standards, regulations, staffing, equipment and training or any other professional tool given to the ATCO, the employer will be vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorized by the employer.
4413 – Member Associations shall bring to the attention of their national administration written details of any persistent deficiency in order to create a deficiency data base and to emphasize their vicarious liability.
4413 – During the legal proceedings following an investigation, all legal representatives should consider the controllers work environment and any other pertinent factors that contributed to the incident or accident as an overall evaluation of the event (holistic approach).
4413 – The controller’s employer should indemnify the controller for all damages and legal costs for defence incurred if a controller is held liable as a result of carrying out his duties for his employer.
4.2 To be moved:
4413 – LM.1.2. par. 3. (Guidelines and procedures shall be established in order to prevent incidents occurring from the use of false or misleading information provided to the controller).
Move to 4 1 2 7 WC.2.5. Automation / Human Factors.
4414 – LM.1.3. par. 2. (An aerodrome controllers cannot be held liable for any accident or incident that occurs on that portion of the aerodrome or its vicinity under his control if there is no direct visual observation of the area and a surface movement surveillance system is not in use. Surface movement surveillance systems shall only be used to supplement direct visual observation).
Move to LM.1.1.
4414 – LM.1.3. par. 4(a). (Aerodrome controllers: Where apron management services are established and provided by an aerodrome ATS Unit, exclusively or in co-operation with other aerodrome stakeholders: aerodrome controllers functions, duties and responsibilities must be clearly determined).
Move to 3 2 2 7 ADME 2.5. Responsibility and functions of Aerodrome Controllers with regard to surface movement.
4419 – LM.1.9. par 1,3 and 4 (A States must have in place regulations detailing procedures to be followed before Separation Assurance can be transferred to the cockpit. – The Initial and final points at which Separation Assurance is transferred from ATC to the pilot must be accurately defined in all cases. – The responsibility for providing separation between the intercepting aircraft and all other aircraft must be clearly defined).
Move to 4 1 2 10 WC.2.9. Co-operative Separation.
44110 – LM.1.10. Third Party Risk.
Move completely to LM.1.2 new paragraph named Third Party Risk.
44111 – LM.1.11. (TCAS/ACAS; Guidelines and procedures shall be established in order to prevent incidents arising from the use of false or misleading information provided by Airborne Collision Avoidance Systems [ACAS]).
Move to 3 2 1 1 AAS 1.1. Airborne Collision Avoidance Systems (ACAS).
4.3 To be deleted:
4.3.1 LM.1.1 Foundational and General Policy
4411 – par. 2 (Member Associations shall support the efforts of PLC in discovering all cases in which the air traffic controller was named as a defendant before a court of competent jurisdiction for aircraft accidents or incidents).
4412 – sub b (Controllers in States having a Roman Law system to be covered by the requirement that the Sate must prove tort beyond all reasonable doubt, before a controller can be liable in Civil law).
4412 – sub c (Controllers in all States, especially those having Anglo-Saxon legal systems, to have a fixed maximum civil liability).
4412 – sub f (Employing Agencies to be responsible under Statutory Law, as the airlines, to pay a maximum fixed sum to the victim(s) or their next of kin as an ex gratia payment pending the resolution of insurance claims, and the balancing of such payments between the insurers, the airlines and the employers to be carried out under government supervision, thus avoiding unnecessary hardship and prolonged Court proceedings for the general public involved in accidents).
4412 – sub h (Where good legal limitation of liability exists in a State, this should remain unless the eventual law is an improvement).
4413 – par. 3 (A controller shall not be held liable for any accident or incident which may occur as a result of non-adherence to any proper instruction or clearance issued by the said Controller).
4.3.2 LM.1.2. Liability in automated systems
4413 – par. 1 (The legal aspects of an air traffic controller’s responsibilities must be clearly identified when working with automated systems).
4413 – par. 2 (A controller shall not be held liable for any incident or accident resulting from the total or partial failure of any Air Traffic Control System).
4414 – par. 1 (A Controller shall not be held liable for incidents that may occur due to the use of inaccurate data if he is unable to check the integrity of the information received).
4414 – par. 2 (A Controller shall not be held liable for incidents in which a loss of separation occurs due to a resolution advisory issued by an automated system).
4.3.3 LM.1.3. Liability related to Aerodrome Controllers
4414 – LM.1.3. par. 1 (PLC should collect all relevant information concerning the liability of Aerodrome Controllers with regard to flight operations in conditions of poor or restricted visibility).
4414 – LM.1.3. par 4b (the legal liability for the issue of push-back and taxi clearances must be clearly defined. This is especially relevant in situations where an interaction of controlled aircraft and vehicles and personnel not controlled by the ATS Unit exists).
4.3.4
LM.1.4. Operating within Delegated Airspace
LM.1.5. Weather Deviation Procedures in Asia-Pacific Region
LM.1.6. Interference with ATC Radiotelephony
LM.1.7. Legal Liability of working with Unserviceable or Inadequate Equipment
LM.1.8. Inadequate Staffing
To be deleted completely.
4.3.5 LM.1.9. Transfer of Control Functions – Legal Aspects
4419 – par. 2 (The legal responsibility for Separation Assurance must be defined in the regulations governing the use of the procedure).
4.3.6 LM.3.1. Legal Assistance Insurance
To be deleted completely.
References
Aspects of Internations Co-operation in Air Trafic Management, Walter Schwenk, Rüdiger Schwenk, 1997.
Just Culture Guidance Material for Interfacing with the Judicial System, Eurocontrol, 2008.
Appendix A – New Policy relating to the legal liability of the controller
LM.1.1. FOUNDATIONAL AND GENERAL POLICY
IFATCA POLICY is that:
1.1.1 “IFATCA is of the opinion that the increasing criminal and civil prosecution of controllers following aviation accidents and incidents is not in the public interest. This is a matter of how and where laws are applied in a very technical area and is not just a matter of inappropriate laws. This problem, then, should not be addressed through an international convention proscribing criminal prosecution in these cases, but rather through an international understanding of the problems created in the technical field by such prosecutions and an understanding of the various matters of public policy involved.”
1.1.2 “It is imperative to provide adequate legislative protection for the air traffic controller in order to reduce such strains as may be engendered from improper legal status.”
See : WP 49 – Brussels 1979
See also : WP 62 – Athens 1985 ; WP 59 – Toronto 1980 ; WP 63 – Brussels 1979 and WP 51 – Copenhagen 1978
1.1.3 “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.”
1.1.4 “IFATCA defines that it should be necessary to prove “mens rea” (guilty mind) beyond all reasonable doubt, before a crime can exist.
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:
a) No controller to be imprisoned pending a civil court hearing, nor after a civil court hearing if it is proven that a controller has committed a tort only;
b) No controller subjected to disciplinary action under administrative law to have the administrative case heard prior to the Civil Court action. If there is likelihood of a Civil action, it would be fairer to transfer the controller to non-active duties without loss of any financial benefits in all cases, thereby avoiding prejudging the Civil Court’s ruling;
c) Employing Agencies to be responsible for the torts of their employees;
d) Military authorities and controllers to be subject to the same legislation when either they are controlling general air traffic, or an accident occurs involving general air traffic and operational air traffic, the latter being under military control or flying without control;
e) IFATCA is not renouncing legal liability for air traffic controllers, but seeking only to keep it within reasonable bounds so that the controller may suffer less stress in carrying out his day-to-day duties.”
See : WP 172 – Santiago 1999
See also : WP 155 – Toulouse 1998 (2) and WP 64 – Athens 1985
1.1.5 “IFATCA shall continue the efforts towards a suitable Convention limiting the Legal Liability of air traffic controllers.”
See : WP 64 – Athens 1985
1.1.6 “The government of each country should pass legislation to abolish independent civil liability of air traffic controllers, and where this has not yet been done provide them with adequate legal counsel.”
See : WP 117 – Christchurch 1993
See also : WP 49 – Brussels 1979 and WP 53 – Montreal 1980
1.1.7 “In the event of an accident or incident that can be shown to have been caused wholly or in part due to inadequate standards, regulations, staffing, equipment and training or any other professional tool given to the ATCO, the employer will be vicariously liable for negligent acts or omissions by his employee in the course of employment whether or not such act or omission was specifically authorized by the employer.”
1.1.8 “Member Associations shall bring to the attention of their national administration written details of any persistent deficiency in order to create a deficiency data base and to emphasize their vicarious liability.”
1.1.9 “During the legal proceedings following an investigation, all legal representatives should consider the controllers work environment and any other pertinent factors that contributed to the incident or accident as an overall evaluation of the event (holistic approach).”
1.1.10 “The controller’s employer should indemnify the controller for all damages and legal costs incurred if a controller is held liable as a result of carrying out his duties for his employer.”
1.1.11 “An aerodrome controller cannot be held liable for any accident or incident that occurs on that portion of the aerodrome or its vicinity under his control if there is no direct visual observation of the area and a surface movement surveillance system is not in use. Surface movement surveillance systems shall only be used to supplement direct visual observation.”
See : WP 165 – Kaohsiung 2006
LM.1.2. THIRD PARTY RISK
IFATCA POLICY is that;
1.2.1 “Third Party Risk can be defined as the probability that individuals on the ground are affected by aircraft accidents.”
1.2.2 “Procedures to reduce third party risk should clearly describe the responsibility of the ATCO providing ATS to the emergency aircraft.”
1.2.3 “ATCO’s providing ATS to aircraft in an emergency situation should not be held liable for losses suffered by third parties caused by the emergency aircraft.”
See : WP 164 – Hong Kong 2004
Last Update: September 29, 2020