Re: Liability for the Rogue
stephen phillips (s.phillips_at_cowan.edu.au)
Thu, 09 Jul 1998 14:35:02 +0800
Doug Edwards wrote:
>
> G'Day
>
> I can't get the dog to fetch a stick or a ball, but I have taught her
> one new trick. I can get her to bay and howl 'on command'. I stumbled
> upon it by accident .(It's got to be a deeply-buried atavistic reflex
> implanted in the cortex aeons ago in case dogs ever took up flying.)
> Whatever, she'll howl all right. I just have to whisper in her ear,
> 'Rogue'.
>
> My brother-in-law is an Obstetrician, delivers babies. He keeps the
> record of every birth until the child has grown to adulthood - age 21.
> Only then, when he can be certain (under law) that no Court will hold
> him liable for a medical condition that might be found attributable to a
> want of competence on his part during the delivery, does he ditch the
> record. (He lives amongst boxes, the medical records and his indemnity
> insurance policies.)
>
> Two fairly recent fatal accidents out here have been attributed to GLOC
> (G-induced loss of consciousness) during aerobatic practice. I went
> around to a school where aerobatics are taught and asked about their
> GLOC teaching. 'What's GLOC,' asked an instructor.
>
> In Israel a year ago, as the opening ceremony for the Maccabean Games
> got underway, a pedestrian bridge, carrying athletes from all around the
> World, collapsed. Several Australian competitors died as a result, and
> others were seriously injured. The trial is now underway, the charge,
> manslaughter. Five people are so charged. They include not only the
> design engineer and the construction supervisor, but the CEO of the
> Games organisation itself. Imagine how he took the news. In London two
> doctors are facing the same charge, for operating 'without sufficient
> competence.' In a nearby region, a licenced aircraft maintenance
> engineer has also been charged with manslaughter. He was the supervisor
> of a competent apprentice, who unaccountably failed to properly secure
> an engine control linkage. The engine failed in flight, all on board
> died. The engineer described how his absolute faith and trust in a
> diligent and highly-skilled subordinate had led him to only occasionally
> 'look over his shoulder' and double-check his work.
>
> Read closely what I said in my last. It was not, 'This is the law,
> according to me.' It was, 'Here are some possibilities, check them out
> for yourself, talk to a lawyer about them.' We all owe it to ourselves,
> our families, not to mention those we teach and advise. The reality may
> not be palatable, but it's the reality nonetheless. Denial is in action
> when a preferred version of the status quo is superimposed over an ugly
> truth.
>
> Chris has been commendably open about a very difficult and sensitive
> situation. In many such cases, the individual under scrutiny might
> complain as to this level of disclosure - and consequent prejudice to
> repute and/or character. In safety-critical operations, the law will not
> afford the protections of defamation (or libel) in such natters. We are
> expected to put the facts out into the open and actively seek resolution
> of any problems thus disclosed.
>
> Indeed, as a CRM leader, Chris would be in the proper position were a
> Rottweiler-lawyer to ask, 'And what advice did you seek, what steps did
> you take?' (Not that I'm suggesting that was his motive for inviting our
> comments. His doing that was simply and admirably professional.)
>
> Along similar lines, when risk to public safety is the issue, the 'duty
> of care' provision acts so as to say, 'Ground the pilot (or train
> driver, or explosives engineer) first, investigate second.' By all
> means, ensure there is no prejudice, that a thorough and balanced
> investigation takes place, without pre-judging, and that the person
> involved is given support and representation. But first, you have to
> ground them. And if a responsible executive fails to ensure that
> happens, refer to the above. If a key adviser happens not to pass on
> that message, refer to the above. If the CRM program chief ... But,
> again, please don't just take my word for it, check it out for yourself,
> talk to your lawyer.
>
> Gotta go now, dog wants attention, so she's chewing through the modem
> lead. My she's a r.... !
>
> Cheers
>
> Doug
Well doug,
If we are going to stay on matters legal let us look at the variuos
OH&S legislation. Unless I am much mistaken about the only workplace
specifically excluded from OH&S law (within Aust) is the Mining industry
in WA. Otherwise all workplaces are subject to the OH&S law; which in
all states (and probably NZ) requires that each and every employee (yes
employee) is responsible for safety in the workplace. Accordingly, if
as a member of the crew you become aware of a situation, behaviour or
condition that effects safety of the worklace you are required 'by law'
to bring that situation, behaviour or condition to the notice of the
employer who is required to take appropriate and 'reasonable' steps to
rectify the matter. The employer is also required to provide all
workers with a workplace free from hazards (within reason) - this makes
the postion for airlines an interesting one if we subscribe to the
theory that it is all gloom and doom!! Nevertheless, OH&S may just
provide the answer to many of the problems present in the aviation
workplace - interestingly enough there has been little if any action in
this area either here in OZ or elsewhere.
PS. A friend had a dog called Alice which when asked "What would you
rather be a fighter pilot or dead?" would roll on her back and play
dead. Of course it worked for any group not just "knucks", but then it
wouldn't be so much fun!!!!!!!!!!!!!
Cheers