>
>Chris
>
>Talk to a serious litigation lawyer (not a company staffer) about the
>following points in terms of NZ law. This pilot's refusal to exercise a
>reasonable amount of behaviour management (duty of care) within the
>confines of his professional duties will no doubt constitute 'wilful
>misconduct'. (Get the lawyer to check the Florida Federal District Court
>finding on the 'Cali' accident. Your jurisdiction will have similar
>rules in these matters to Florida's.) So, too, the company's action in
>not grounding the man almost certainly falls short of the reasonable
>standard of duty of care to passengers (you're bound to find in your
>civil aviation act or equivalent) - wilful misconduct again. (Industrial
>legislation will always give way to public safety. Anyone defending this
>person's 'right to work' - apart from being morally reprehensible -
>could also be 'joined' as a defendant.) A finding of wilful misconduct
>invalidates insurance cover, so any damages will become the liability of
>the company (the CEO should know this, if he or she already doesn't) and
>that of the individual defendants (incl, co-pilot, supporters). The
>circumstances you have outlined come close to definition of allowing him
>to fly passengers as 'criminal negligence'. Jail terms could be a
>consequence. A crew member, knowing the man, and not refusing to fly
>with him, could also become liable to be so charged. Further, a Court
>awarding damages would see the circumstances - ie, key people knew about
>the problem - as accentuating the degree of misconduct, bringing into
>play the question of higher, 'exemplary', awards. Not pretty stuff, but
>worth a chat with a lawyer about.
>
>Here's a true story for your lawyer to test his teeth on: Three aircraft
>are hired by a football club to go away for an end-of-season
>celebration. Pilot 'A' hasn't flown the type before, and gets an
>endorsement that morning, with instructor 'B'. The footballers arrive
>mid-afternoon, but the planes aren't ready. Most of the passengers are
>drinking as they wait, and a part of the group gets noisy and
>boisterous. The other two pilots refuse to fly them, so 'A' says he'll
>take them. 'B' becomes aware of that, and knows the law forbids carriage
>of intoxicated people, but does nothing. 'A''s flight ends in disaster,
>crashing on finals after an expedited (presumably under pressure from
>the passenger to get on the ground and to a toilet) circuit in poor
>weather. 'A' survives, but several passengers do not. Get the lawyer to
>define both 'A' and 'B''s legal positions. Compare 'B''s with the
>accountant who becomes aware that a partner in the firm is giving advice
>on how to cheat the tax office, though the amounts are small, and the
>scheme is such that the fraud will be impossible to detect.
>
>For those feeling a tad uncomfortable with all this savage reality,
>consider this: None of the above is exeptional in the other professions.
>Whether you are an architect designing shopping malls, an engineer
>building bridges, or a brain surgeon, public safety is an issue, and
>amongst the things you are expected to have done 'reasonably' is to have
>prepared yourself for your work - including not only undertaking
>prescribed training, but showing that you have met the training
>objectives - in this case, by demonstrating co-operative behaviour
>skills. You don't get to cut holes in people unless you can demonstrate
>that you are up-to-date in all professional aspects of knowledge and
>skill. It's only quirks of history - such as disproportionate industrial
>'muscle', and too-easily evaded government regulation (vice
>self-regulation) - that have resulted in the 'profession' of aviation
>not realising that it, too, is bound by these laws. They're out there
>all right, and closing in. Every pilot making a living out of flying
>passengers around ought to take a long hard look at not only the
>training they are undergoing, but the benefits they are getting from it.
>Many of us on this forum have a duty to assist them to come to grips
>with that. Won't be easy, I know, but it's a 'reasonable expectation'.
>
>Cheers
>
>Doug
>
>