NZ pilot in court: Your opinions please
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FL et al,
As has been repeatedly stressed, the reported offence is not a strict liability offence against a "hard" or "black and white" standard but rather a "catch-all" type offence where the judiciary is required to make a determination against a "soft" social standard of what is reasonable in the circumstances. All legislative regimes have soft rules to catch those events that cannot be conceivable prescribed but which nonetheless offend against society's need for "good order and discipline".
After some searching, I believe that the relevant legislation is probably one or more paragraphs from Part 5 - "Offences And Penalties" of the NZ Civil Aviation Act 1990:
The question that FL put up for discussion was whether the experience of the pilot was a relevant consideration.
As reported, the original judge said that the flight was conducted "with care and skill". The fundamental question on appeal will be whether the original judge decided that the pilot's experience, howsoever determined, combined with his "care and skill" meant that the necessary legal element of "danger" was absent.
I believe that modern risk management and hazard identification principles make essential the proper consideration of operator knowledge, skill, attitude/behaviour and, in this case, relevant history of under-wire operations in determining the level of "danger". Similarly, I think that it is open for the judge to conclude that, while danger is omnipresent, the legislation invites some threshold judgement about when the level of danger triggers the first element of the offence. In short, the pilot's experience is very much a relevant consideration.
In this case, there is much that we don't know about the wires. Therefore, there is little we can do to really determine the risk of a wire-strike, since that appears to be the relevant "danger" in this case. Presumably, the prosecution assessed that there was a danger and the remarks attributed to the prosecution suggest that there was some acceptance that they had made their burden that a significant level of danger was indeed present.
If, and only if, the danger element was established, then the more interesting question of necessity could be addressed. If these proceedings do get to grapple with the question of whether our society's thirst for news does authorise some increased level of risk to persons and property, then it will be a watershed determination.
For mine, having flown media helo operations for a desperate and struggling network, gaining follow-up footage for yesterday's news is no mandate for undertaking a higher level of risk.
I had several Chiefs of Staff who strongly disagreed. The very short discussions we had convinced me that they were motivated only by commercialism and their prostitution to the media cause. I have no doubt that, had I had a wirestrike in similar circumstances, I would have been cursed about the cost of forcing them to pay a competitor for the feed for tonight's news (including the accident) rather than any concern for the people involved. While I am being archly cynical, the burgeoning push for industrial manslaughter legislation may itself bring about some changes in the risk management practices of ENG operators.
Stay Alive,
As has been repeatedly stressed, the reported offence is not a strict liability offence against a "hard" or "black and white" standard but rather a "catch-all" type offence where the judiciary is required to make a determination against a "soft" social standard of what is reasonable in the circumstances. All legislative regimes have soft rules to catch those events that cannot be conceivable prescribed but which nonetheless offend against society's need for "good order and discipline".
After some searching, I believe that the relevant legislation is probably one or more paragraphs from Part 5 - "Offences And Penalties" of the NZ Civil Aviation Act 1990:
Part 5—Offences And Penalties
Safety Offences
43 Endangerment caused by holder of aviation document
(1) Every holder of an aviation document commits an offence who, in respect of any activity or service to which the document relates, does or omits to do any act or causes or permits any act or omission, if the act or omission causes unnecessary danger to any other person or to any property.
(2) Every person who commits an offence against subsection (1) of this section is liable,
(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.ഊ
(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.
43A Operating aircraft in careless manner
(1) Every person commits an offence who operates any aircraft in a careless manner.
(2) Every person who commits an offence against subsection (1) of this section is liable,
(a) In the case of an individual, to a fine not exceeding $7,000; or
(b) In the case of a body corporate, to a fine not exceeding $35,000.
(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.
44 Dangerous activity involving aircraft, aeronautical product, or aviation related service
(1) Every person commits an offence who
(a) Operates, maintains, or services; or
(b) Does any other act in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.
(2) Every person commits an offence who
(a) Causes or permits any aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or
(b) Causes or permits any other act to be done in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.
(3) Every person who commits an offence against subsection (1) or subsection (2) of this section is liable,
(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.
(4) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act."
Safety Offences
43 Endangerment caused by holder of aviation document
(1) Every holder of an aviation document commits an offence who, in respect of any activity or service to which the document relates, does or omits to do any act or causes or permits any act or omission, if the act or omission causes unnecessary danger to any other person or to any property.
(2) Every person who commits an offence against subsection (1) of this section is liable,
(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.ഊ
(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.
43A Operating aircraft in careless manner
(1) Every person commits an offence who operates any aircraft in a careless manner.
(2) Every person who commits an offence against subsection (1) of this section is liable,
(a) In the case of an individual, to a fine not exceeding $7,000; or
(b) In the case of a body corporate, to a fine not exceeding $35,000.
(3) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act.
44 Dangerous activity involving aircraft, aeronautical product, or aviation related service
(1) Every person commits an offence who
(a) Operates, maintains, or services; or
(b) Does any other act in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.
(2) Every person commits an offence who
(a) Causes or permits any aircraft, aeronautical product, or aviation related service to be operated, maintained, or serviced; or
(b) Causes or permits any other act to be done in respect of any aircraft, aeronautical product, or aviation related service, in a manner which causes unnecessary danger to any other person or to any property.
(3) Every person who commits an offence against subsection (1) or subsection (2) of this section is liable,
(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of a body corporate, to a fine not exceeding $100,000.
(4) The provisions of this section shall be in addition to and not in derogation of any regulations or rules made under this Act."
The question that FL put up for discussion was whether the experience of the pilot was a relevant consideration.
As reported, the original judge said that the flight was conducted "with care and skill". The fundamental question on appeal will be whether the original judge decided that the pilot's experience, howsoever determined, combined with his "care and skill" meant that the necessary legal element of "danger" was absent.
I believe that modern risk management and hazard identification principles make essential the proper consideration of operator knowledge, skill, attitude/behaviour and, in this case, relevant history of under-wire operations in determining the level of "danger". Similarly, I think that it is open for the judge to conclude that, while danger is omnipresent, the legislation invites some threshold judgement about when the level of danger triggers the first element of the offence. In short, the pilot's experience is very much a relevant consideration.
In this case, there is much that we don't know about the wires. Therefore, there is little we can do to really determine the risk of a wire-strike, since that appears to be the relevant "danger" in this case. Presumably, the prosecution assessed that there was a danger and the remarks attributed to the prosecution suggest that there was some acceptance that they had made their burden that a significant level of danger was indeed present.
If, and only if, the danger element was established, then the more interesting question of necessity could be addressed. If these proceedings do get to grapple with the question of whether our society's thirst for news does authorise some increased level of risk to persons and property, then it will be a watershed determination.
For mine, having flown media helo operations for a desperate and struggling network, gaining follow-up footage for yesterday's news is no mandate for undertaking a higher level of risk.
I had several Chiefs of Staff who strongly disagreed. The very short discussions we had convinced me that they were motivated only by commercialism and their prostitution to the media cause. I have no doubt that, had I had a wirestrike in similar circumstances, I would have been cursed about the cost of forcing them to pay a competitor for the feed for tonight's news (including the accident) rather than any concern for the people involved. While I am being archly cynical, the burgeoning push for industrial manslaughter legislation may itself bring about some changes in the risk management practices of ENG operators.
Stay Alive,
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Unfortunately the CAA here in this country are a bunch of idiots, and those that are in management positions have absolutely no clue about the workings of the helicopter industry. They spend day after day after day picking on those operators who abide by the rules and ignoring the ones who fudge the hours, low flying and basically giving the industry a bad name.
As one person I know in there told me its a heck of a lot easier to get money for audits from those that they know can pay, than it is from those they would have trouble even finding, let alone prosectuing. Unnannounced audits are the rage at this present time, and get this, you have to pay them to do it, even though its unannounced.
This prosecution is just another one of those, we are the regulators and we are god type actions. Hopefully Alan will win the case and tell CAA where to shove it and then sue them.
Anyway just my two cents worth.
Autorotate.
As one person I know in there told me its a heck of a lot easier to get money for audits from those that they know can pay, than it is from those they would have trouble even finding, let alone prosectuing. Unnannounced audits are the rage at this present time, and get this, you have to pay them to do it, even though its unannounced.
This prosecution is just another one of those, we are the regulators and we are god type actions. Hopefully Alan will win the case and tell CAA where to shove it and then sue them.
Anyway just my two cents worth.
Autorotate.
Join Date: Mar 2001
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4dogs
Great to see you back and your usual erudite self.
It's been a bit topsy turvy round here, but you get that.
So the rumours of you being sold into slavery as Father Christmas' airways operations chief to advise him on the effects of the new NAS on his Oz deliveries, was untrue.
May we assume that Rudis red nose will be a sufficient warning of his presence in the airspace, will he get DTI and has the old bloke got his Information Pack yet.
Great to see you back and your usual erudite self.
It's been a bit topsy turvy round here, but you get that.
So the rumours of you being sold into slavery as Father Christmas' airways operations chief to advise him on the effects of the new NAS on his Oz deliveries, was untrue.
May we assume that Rudis red nose will be a sufficient warning of his presence in the airspace, will he get DTI and has the old bloke got his Information Pack yet.
Join Date: Jun 1999
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Woomera,
Just trying to juggle too many things at the same time to be able to devote an adequate amount of time to the more enjoyable things such as PPRuNe.
Surprised to see you here on the forum devoted to real aviating - an activity I am sorely missing! Oh for the quiet life of beating the air into submission while never leaving the earth's boundary layer...perhaps I will pass that on to Father Christmas and the team as the only place to fly, noting that range and endurance both may be problematical.
Stay very much alive and enjoy the festive season,
more dogs than the smartest ringer.....
Just trying to juggle too many things at the same time to be able to devote an adequate amount of time to the more enjoyable things such as PPRuNe.
Surprised to see you here on the forum devoted to real aviating - an activity I am sorely missing! Oh for the quiet life of beating the air into submission while never leaving the earth's boundary layer...perhaps I will pass that on to Father Christmas and the team as the only place to fly, noting that range and endurance both may be problematical.
Stay very much alive and enjoy the festive season,
more dogs than the smartest ringer.....
Join Date: Jun 2001
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100% better choice than hovering over the powerlines!
its gotta be better to hover below the lines rather than above, in case of an engine failure (and it keeps you out of the shady hight velicity area). so hes actualy endangering them less!
if the pilot only had 100 hrs then it would be more endangering than if he had 50000. its less dangerous to never fly near powerlines, but thats why the aerial work categry exists, so these jobs can be done with only the minimum crew required (in case something should happen). most companies have an exemption from the minimum high rule for filming, so the 500' rule probly wouldnt apply anyway. its up to the pilots discretion not to endanger people too much. if somone complains, then the pilot may have been wrong, itll get sorted out in time (with a bit of money)
if the pilot only had 100 hrs then it would be more endangering than if he had 50000. its less dangerous to never fly near powerlines, but thats why the aerial work categry exists, so these jobs can be done with only the minimum crew required (in case something should happen). most companies have an exemption from the minimum high rule for filming, so the 500' rule probly wouldnt apply anyway. its up to the pilots discretion not to endanger people too much. if somone complains, then the pilot may have been wrong, itll get sorted out in time (with a bit of money)
