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Human Error in Aviation and Legal Process
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and Legal Process
Human Error in Aviation
Human error, in various forms, is a causal factor in the majority of aircraft accidents, incidents, and safety occurrences. Much of the error by professionally trained and licensed operators (Flight Crew, Air Traffic Controllers, and Aircraft/ATC Maintenance Technicians) arises from either the failure to apply standard operating procedures in the way intended or in the making of poor tactical judgements.
Legal Process and Human Error
Air transport must expect to be subject to the same legal process as any other activity. Such legal process should be expected to be entirely separate from accident investigation, and the desirability of entirely open and honest safety reporting during everyday operations. It is in the public interest that those responsible for the safety of air operations should be accountable for their actions. However, it is also in the public interest that the behaviour and actions of those whose actions may have contributed to an accident are fully understood, especially in the wider context of organisational and social culture, and that lessons are learnt and action taken to reduce the risk of future accidents. This requires an open and honest safety reporting and compliance with safety investigations which may not be achieved if those involved are fearful of prosecution.
In recent years, aviation professionals have been more and more concerned with what is considered an increased focus on legal issues in aviation safety occurrences. This has resulted in fear of prosecution and criminal sanctions for information provided in the context of safety occurrences investigations and reports, even in cases where tasks are perceived to be exercised in a responsible and professional manner. While such fears cannot defend a lack of compliance with mandatory reporting systems, they can nevertheless have an impact on the flow of important safety data, and consequently aviation safety.
This lead the way to the development of the concept of “Just Culture”. At the heart of the argument of Just Culture is the underlying principle that there is very rarely any prior intent to be negligent, whether directly or indirectly, on the part of the professionals involved in aircraft accidents and incidents. There is now an identified need to achieve a balance between the needs and responsibilities of judicial authorities and aviation safety.
Standards and Recommended Practices (SARPS) for the State Investigation of Aircraft Accidents and Serious Incidents are provided by Annex 13 to the Convention on International Civil Aviation (Chicago Convention). Annex 13 invites States to seek a rational relationship between their obligation to promote aviation safety and their administration of justice. Legal guidance regarding the protection of information from safety data collection and processing systems can be found at Attachment E of Annex 13.
Under EU law, there are regulations dealing with the issue of investigation and reporting. Historically, Council Directive 94/56/EC of 21 November 1994 established the fundamental principles governing the investigation of civil aviation accidents and incidents. This was followed, in June 2003, by Directive 2003/42/EC of the European Parliament and of the Council on occurrence reporting in civil aviation. The intent of Council Directive 94/56 was to transpose under EU law the standards of ICAO Annex 13. With the passage into law of Regulation 996/2010 on the investigation and prevention of accidents and incidents in civil aviation, Directive 94/56 was repealed and replaced by the new legislation. On 20 April 2014 Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation came into effect. The regulation, as well as its implementing rule, Regulation (EU) 2015/1018, became applicable on 15 November 2015 and repeals Directive 2003/42/EC of the European Parliament and of the Council, and Commission Regulations (EC) No. 1321/2007 and (EC) No. 1330/2007. It also amends the aircraft accident investigation Regulation (EU) No. 996/2010.
At the EUROCONTROL level, a EUROCONTROL Safety Regulatory Requirement dealing with Reporting and Assessment of Safety Occurrences in ATM (ESARR2) was adopted in 1999.
Those instruments can be used towards the implementation of a Just Culture. However, as those instruments must be first transposed by the States, their implementation as resulted in different national legal frameworks with respect to safety reporting and the handling of safety information.
Current EU Law and Guidance Material:
- Regulation (EU) No 376/2014 of the European Parliament and of the Council of 20 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation;
- Commission Implementing Regulation (EU) 2015/1018 laying down a list classifying occurrences in civil aviation to be mandatorily reported.
- Guidance material for Regulation (EU) 376/2014 and Regulation (EU) 2015/1018
- Prosecution of Your Crew Following an Incident in a Foreign Country: Are You Ready for This? Tim Brymer, Aviation & Aerospace Partner Clyde & Co LLP;
Global Aviation Information Network (GAIN) / Flight Safety Foundation