Human Error in Aviation and Legal Process

EUROCONTROL's Just Culture Task Force and list of prosecution experts

rady — Wed, 13 Oct 2021 07:39:51 +0000

EUROCONTROL's Just Culture Task Force and list of prosecution experts

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Human Error in Aviation and Legal Process

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SKYbrary

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EUROCONTROL

EUROCONTROL's Just Culture Task Force

Over the last few years, EUROCONTROL has championed developments in this crucial safety area with a dedicated EUROCONTROL Just Culture Task Force (JCTF). The Task Force is a group with a wide membership from aviation, rail, maritime and healthcare, as well as members of the judiciary, meeting regularly under the auspices of EUROCONTROL.

Since 2007, JCTF has been promoting debate about the legal questions relating to safety and justice, to foster and support dialogue between safety and judicial experts, and to develop relevant guidance material and policies in order to support the implementation and dissemination of a Just Culture concept in consideration of the relevant provisions of Regulation (EU) 376/2014.

The JCTF has developed a “model policy” regarding criminal investigation and prosecution of criminal offences further to the reporting of civil aviation incidents and accidents. The objective of this policy is to provide direction regarding the criminal investigation and prosecution of potential criminal offences resulting from aviation accidents or which come to the attention of prosecutors through the reporting of civil aviation incidents.

Together with the International Federation of Air Traffic Controllers' Associations (IFATCA) and the European Cockpit Association (ECA), EUROCONTROL has devised and delivered special Just Culture courses for aviation experts and prosecutors. These courses are designed to train local experts to assist the judiciary, if they so request, while also providing members of the judiciary (judges and prosecutors) with insights to the civil aviation safety.

List of aviation prosecution experts

EUROCONTROL in cooperation with IFATCA and the ECA supports its Member States and their judiciaries in finding aviation safety experts trained in Just Culture principles to assist national prosecutors entrusted with the judicial review of aviation incidents and accidents. Experts can be requested to help prosecutors understand the details of aviation occurrences so prosecutors can make an informed decision whether a judicial investigation or criminal prosecution is necessary or not.

When requested by a judicial authority of a EUROCONTROL Member State, EUROCONTROL will be able to make a recommendation on a suitable expert. It remains the decision and choice of any prosecutor to avail themselves of an expert from the list, thus leaving them the freedom of action in full respect of the independence of the justice system.

The Just Culture experts on the list are air traffic controllers or pilots who have been through advanced training and confirmed as prosecution experts based on criteria established by the Just Culture Task Force, IFATCA and ECA.

Anyone who would like to seek EUROCONTROL’s support in finding aviation safety experts trained in Just Culture principles, could fill-in and send a request on the dedicated EUROCONTROL webpage.

HELVETICA Just Culture Manual

rady — Sun, 30 May 2021 08:02:43 +0000

HELVETICA Just Culture Manual

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Human Error in Aviation and Legal Process

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SKYbrary

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SKYbrary

Editor's note: HELVETICA is the name of the Swiss association of Air Traffic Controllers.

Safety is a continually evolving process of finding what makes organizations in high-consequence industries resilient, understanding their margin of safety and what puts them at risk. The concept of just culture supports organizational safety resilience by promoting an environment of openness that encourages reporting and learning from mistakes, free from fear of reprisal. Just culture emerged from the study of organizational culture influences on sociotechnical systems safety[1].

In High consequence industries, employees in safety sensitive positions work in vastly complex sociotechnical systems. Public debate about accountability and responsibility of individual actors spark when “near misses” or incidents are being investigated either by the accident and incident investigation bodies or the judiciary.

A ‘just culture’ aims to respond to anxiety about blame-free approaches on the one hand and a concern about people’s willingness to keep reporting safety-related issues on the other[2]. With the EC Implementation Regulation 376/2014 IFATCA has identified that Just Culture can be two faceted. One being at the corporate level and the other one at the judicial level. A just culture sets out the conditions that legitimize managerial (or judicial) intervention[3] in the sanction or restoration of individuals in the organization.

International (ICAO) and in particular the European Regulation on prevention of aviation accidents (996/2010) and the Regulation reporting of incidents (376/2014) explicitly allude to the delicate balance between the interest of justice (law) and safety.

Therefore, safety needs a prospective, forward-looking accountability and safety information becomes important to make the adequate changes. It is crucial to have safety-related events and issues reported, to understand – in oversimplified words – the difference between ‘work as done’ and ‘work as imagined’ which is shaped by ‘work as prescribed’ in rules and procedures, to listen to multiple narratives from all the stakeholders involved and to share the experience and the ensuing information in order to let the system evolve into a safer one for all those following us in the system.

This can only be achieved when individuals – no matter whether they are managers, project owners, engineers, ATSEP, ANSE or ATCO – are able, allowed and willing to share safety information by reporting incidents and other safety-related issues, and when there is a commitment to act on what is shared in order to learn and make things better.

Today’s challenge is that the reporter will only share this information if s/he can do this in an honest, non-discriminatory and non-punitive nature.

That is where Just Culture comes in. Just Culture is “a culture in which front-line operators and others are not punished for actions, omissions or decisions taken by them which are commensurate with their experience and training, but where gross negligence, willful violations and destructive acts are not tolerated“ [European Commission, Eurocontrol & IFATCA]. It is one means to achieve a better working environment by holding people accountable – allow people to give and share their account – without punishing them, and consequentially allowing the system to learn from past events.

Just Culture has found its way into many safety-critical business branches – such as transport, medicine, nuclear technology and more – and recent regulation acknowledges the need for protecting the reporter. However, that protection is not (yet) reflected in national legislation, nor has the administration of justice been given any guidelines regarding its important role in a “Just Culture”, which is both accepted by the current regulation. Motivated by the numerous prosecutions, court cases and fines the Swiss administration of justice has started or issued on incidents in Air Traffic Management (ATM), Swiss ATCA produced the attached guidance material for its members and other involved operators and personnel (ATCOs, ATSEP and management). This version is an adapted version of the original which has been distributed internally in November 2017. Swiss ATCA hopes it is a contribution to the discussion on the delicate balance between the administration of justice and the safety world. Though embedded in the Swiss legal and operational processes, Swiss ATCA believes that this publication can serve you as an individual or as an organization in your country, though it might need some adaptions to be consistent with your operational and legal framework.

^ Just culture: A case study of accountability relationship boundaries influence on safety in HIGH-consequence industries, J. McCall & S. Pruchnicki, 2017
^ ‘Just culture:’ Improving safety by achieving substantive, procedural and restorative justice, S. Dekker & H. Breakey, 2016
^ Weder NZZ Fehlerkultur für mehr Sicherheit April 2016

Safety and Justice Online Toolkit

rady — Sun, 30 May 2021 06:30:41 +0000

Safety and Justice Online Toolkit

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Human Error in Aviation and Legal Process

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SKYbrary

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SKYbrary

Description

A Just Culture is all about continuously giving the right response to situations and actions which can be judged from multiple viewpoints. There is not always an obviously “right” answer, but some responses are felt as “more just” than others.

Establishing a Just Culture has as much to do with supporting and acknowledging good actions, as it has to do with correcting bad actions. However, in today’s world one is easily forced to focus on the bad actions, forgetting to promote the good ones.

To support professionals “in the field” in their endeavour to create a Just Culture, the “Just Culture” Toolkit is designed to assist in the interpretation of human behaviour in professional environments. The development of this tool has been sponsored by SKYbrary within the framework of the Just Culture implementation and enhancement initiative run by EUROCONTROL Safety Team. This toolkit was developed by Job Brüggen, Safety manager at Air Traffic Control the Netherlands and Patrick Kools of GoGen - Beyond Rules.

The Safety and Justice Toolkit provides to the user a handy model for the classification of human behaviour without academic “abracadabra”. It serves as a general-purpose tool that is a balance between what is available from the university world and the practitioners out there in the field.

Not only will the Toolkit help classify the observed behaviour, but also assist in determining the correct “Just Culture” follow-up that matches the observed behaviour. The aim of the Toolkit is to enable organisations to react “justly” to different situations, and to help create an upward spiral leading to a Just Culture with optimal safety performance.

Obviously this is not a general-purpose model that should be the fixed and final guide to determine decisions. Common sense should be used and measures taken that fit the particular organisational culture.

Visit now the Safety and Justice Toolkit

Protection of Safety Information Sources

rady — Sat, 29 May 2021 14:51:13 +0000

Protection of Safety Information Sources

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Safety Management

Content source:

ICAO

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SKYbrary

Definitions

Safety information - information contained in safety data collection and processing systems (SDCPS) established for the sole purpose of improving aviation safety, and qualified for protection under specified conditions. (ICAO Annex 13)

Inappropriate use - use of safety information for purposes different from the purposes for which it was collected, namely, use of the information for disciplinary, civil, administrative and criminal proceedings against operational personnel, and/or disclosure of the information to the public. (ICAO Annex 13)

Description

The protection of safety information from inappropriate use is essential to ensure its continued availability in future, since the use of safety information for other than safety-related purposes may reduce the availability of such information, with an undesirable effect on safety.

During the 35th Assembly of International Civil Aviation Organisation (ICAO), it was noted that existing national laws and regulations in many States may not address adequately the protection of safety information from inappropriate use.

Following the Assembly, ICAO has produced a legal guidance for the protection of information from SDCPS and it is included in Attachment E to Annex 13. This guidance is aimed at assisting States to enact national laws and regulations to protect information gathered from SDCPS, while allowing for the proper administration of justice. The objective is to prevent the inappropriate use of information collected solely for the purpose of improving aviation safety.

Principles for Protection of Safety Information

The guidance in Attachment E to ICAO Annex 13 takes the form of a series of principles that could be adapted or modified to meet the particular needs of the State enacting laws and regulations to protect safety information.

Note: The principles given below are an extract from Attachment E to Annex 13.

General Principles

The sole purpose of protecting safety information from inappropriate use is to ensure its continued availability so that proper and timely preventive actions can be taken and aviation safety improved.
It is not the purpose of protecting safety information to interfere with the proper administration of justice in States.
National laws and regulations protecting safety information should ensure that a balance is struck between the need for the protection of safety information in order to improve aviation safety, and the need for the proper administration of justice.
National laws and regulations protecting safety information should prevent its inappropriate use.
Providing protection to qualified safety information under specified conditions is part of a State’s safety responsibilities.

Principles of Protection

Safety information should qualify for protection from inappropriate use according to specified conditions that should include, but not necessarily be limited to: that the collection of information was for explicit safety purposes and the disclosure of the information would inhibit its continued availability.
The protection should be specific for each SDCPS, based upon the nature of the safety information it contains.
A formal procedure should be established to provide protection to qualified safety information, in accordance with specified conditions.
Safety information should not be used in a way different from the purposes for which it was collected.
The use of safety information in disciplinary, civil, administrative and criminal proceedings should be carried out only under suitable safeguards provided by national law.

Principles of Exception

Exceptions to the protection of safety information should only be granted by national laws and regulations when:

There is evidence that the occurrence was caused by an act considered, in accordance with the law, to be conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct;
An appropriate authority considers that circumstances reasonably indicate that the occurrence may have been caused by conduct with intent to cause damage, or conduct with knowledge that damage would probably result, equivalent to reckless conduct, gross negligence or willful misconduct;
A review by an appropriate authority determines that the release of the safety information is necessary for the proper administration of justice, and that its release outweighs the adverse domestic and international impact such release may have on the future availability of safety information.

Public Disclosure

Subject to the principles of protection and exception outlined above, any person seeking disclosure of safety information should justify its release.

Formal criteria for disclosure of safety information should be established and should include, but not necessarily be limited to, the following:

Disclosure of the safety information is necessary to correct conditions that compromise safety and/or to change policies and regulations;
Disclosure of the safety information does not inhibit its future availability in order to improve safety;
Disclosure of relevant personal information included in the safety information complies with applicable privacy laws;
Disclosure of the safety information is made in a de-identified, summarized or aggregate form.

Responsibility of the Custodian of Safety Information

Each SDCPS should have a designated custodian. It is the responsibility of the custodian of safety information to apply all possible protection regarding the disclosure of the information, unless:

The custodian of the safety information has the consent of the originator of the information for disclosure; or
The custodian of the safety information is satisfied that the release of the safety information is in accordance with the principles of exception.

Protection of Recorded Information

Considering that ambient workplace recordings required by legislation, such as cockpit voice recorders (CVRs), may be perceived as constituting an invasion of privacy for operational personnel that other professions are not exposed to:

Subject to the principles of protection and exception above, national laws and regulations should consider ambient workplace recordings required by legislation as privileged protected information, i.e. information deserving enhanced protection; and
National laws and regulations should provide specific measures of protection to such recordings as to their confidentiality and access by the public. Such specific measures of protection of workplace recordings required by legislation may include the issuance of orders of non-public disclosure.

Just Culture in Railways

rady — Fri, 28 May 2021 06:20:17 +0000

Just Culture in Railways

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Human Error in Aviation and Legal Process

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SKYbrary

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SKYbrary

European Union Railway Agency

The European Union Agency for Railways (ERA) is mandated to issue single safety certificates and vehicle (type) authorisations valid in multiple European countries and to ensure an interoperable European Rail Traffic Management System, in the development and implementation of the Single European Railway Area.

ERA Mission

Make the railway system work better for society
Contribute to the effective functioning of a Single European Railway Area without frontiers.

ERA Vision

The Agency, as a respected authority, will be the engine for change driving the Single European Railway Area. ERA promotes a harmonised approach to railway safety, seeks to improve accessibility and use of railway system information, act as the European Authority under the 4th Railway Package issuing vehicle (type) authorisations and single safety certificates, while improving the competitive position of the railway sector.

Safety Culture and Just Culture in Railway

Safety is a main driver of the efficiency and reliability of railway services, it is the essential precondition for successful rail business in Europe – and a positive safety culture is vital for improving rail safety. In many other sectors of high risk transport and industry, a positive safety culture already has improved safety records, encouraged pro-active thinking, responsible behaviour, and staff engagement Safety should not be compromised when different business goals conflict. ERA’s vision statements, targets and indicators, resource allocation, and all aspects of daily operations support this. Good safety management is always risk based.

In an operational railway environment, individuals, despite their training, expertise, experience, abilities, and good will, may be faced with situations where the limits of human performance combined with unwanted and unpredictable systemic influences may lead to an undesirable outcome. Investigation and analysis of occurrences should focus first on system performance, the conditions and factors that influence the work practice rather than on apportioning blame or individual responsibility. This approach is to be followed all times except in cases of gross negligence, wilful violations and destructive acts which seriously compromise the level of railway safety.

By newly introducing the words “culture” and “trust” as features of good rail safety management, European legislators have recognized the value of a positive safety culture for the European railway sector. To bring this alive, the European Union Agency for Railways, in collaboration with the European Commission, organised a first European Rail Safety Summit on 10-12 April 2018 in Dubrovnik. At this event were brought together renowned speakers from different sectors to share experience on all aspects of safety culture, and also introducing and presenting the Just Culture concept.

Just Culture is about creating a workable balance between Safety and Sanctions through an important message: Stay away from professionals that make an honest mistake, but someone who consciously takes an irresponsible risk should be sanctioned. Achieving this is easier said than done, a fate it shares with most other types of specialised cultures.

ERA will promote safety, reporting and just culture principles amongst management and employees and with other parties, including its contractors, suppliers, and service providers and it will actively foster mutual respect, support and cooperation to build trust across the organisations and create a shared understanding of workplace reality.

Just Culture

Need for Just Culture in Healthcare

rady — Fri, 28 May 2021 06:19:02 +0000

Need for Just Culture in Healthcare

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Human Error in Aviation and Legal Process

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SKYbrary

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SKYbrary

The Necessary Change

“People make errors, which lead to accidents. Accidents lead to deaths. The standard solution is to blame the people involved. If we find out who made the errors and punish them, we solve the problem, right? Wrong. The problem is seldom the fault of an individual; it is the fault of the system. Change the people without changing the system and the problems will continue.” Don Norman Author, the Design of Everyday Things

Healthcare system

Healthcare is a risky business. While the maxim ‘first, do no harm’ is a fundamentally important precept, and the aim of a ‘zero harm’ care environment is a laudable one, no healthcare system will ever be completely harm free. How the needs and interests of patients and professionals are managed in the aftermath of healthcare harm is therefore a significant, but largely overlooked, aspect of care quality.

Medication errors continue to be a concern of healthcare providers and the public, in particular how to prevent harm from medication mistakes. Many healthcare workers are afraid to report errors for fear of retribution including the loss of professional licensure and even imprisonment. For example if a healthcare professional makes an error that causes no harm we consider them to be lucky. If another person makes the same error resulting in injury to a patient we consider them to be blameworthy and disciplinary action may follow. The more severe the outcome, the more blameworthy the person becomes. This is a flawed system based upon the notion that we can totally control our outcomes.

Creating a Just Culture

Honesty and a willingness to learn from error are fundamental to the creation of a Just Culture. Regrettably, however most people still work in systems where individual blame and recrimination are the norm and where deep learning from error is still the exception.

Many errors go unreported by healthcare workers; The major reason errors are not reported is that self-reporting will result in repercussions. Healthcare workers may suffer worry, guilt, anxiety, self-doubt, blame, and depression following serious errors, both for themselves (for disciplinary actions) and for the patient who has been harmed.

Disciplining healthcare workers for honest mistakes is counterproductive, but the failure to discipline workers who are involved in repetitive errors poses a danger to patients. A blame-free culture holds no one accountable and any conduct can be reported without any consequences. Finding a balance between punishment and blamelessness is the basis for developing a Just Culture. Most healthcare workers are silent, instead of admitting their mistake and discussing it openly with peers. This can result in further patient harm if the system causing the mistake is not identified and fixed; thus self-denial may have a negative impact on patient care outcomes. As a result, healthcare leaders, in collaboration with others, must put systems in place that serve to prevent errors while promoting a “Just Culture” way of managing performance and outcomes. This culture must exist across disciplines and departments.

Just Culture strikes a balance between punishment and blamelessness. It fosters an environment of openness and fairness in order to facilitate the honest reporting of errors. Just Culture identifies three types of behavioral choices: human error, at-risk behavior, and reckless behavior. It establishes a fair and transparent process for evaluating errors and determining a course of action based on the quality of the behavior and not on the outcome of the error. . By designing safe systems that work proactively, a Just Culture is prepared to assess the daily risks inherent in its operations. This leads to maximum reliability and the prevention of future events.

Just Culture is also about ensuring that a company has a learning culture. When things go wrong and we want to learn from error and incidents, understanding the differences between human error, risky behaviour and reckless behaviour is vital as well as understanding the natural bias we are all subject to in particular outcome and hindsight bias.

Just Culture is a model of shared accountability where both management and staff are held accountable. This model can be integrated into any healthcare setting by classifying behaviors associated with errors and providing consistent follow-up with employees.

Just Culture

Just Culture in Day-to-Day Operations

rady — Fri, 28 May 2021 06:17:41 +0000

Just Culture in Day-to-Day Operations

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Human Error in Aviation and Legal Process

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SM ICG

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SKYbrary

Description

Just Culture is a culture where front-line operators or other persons are not punished for actions, omissions or decisions taken by them that are commensurate with their experience and training, but in which gross negligence, willful violations and destructive acts are not tolerated.

Just Culture in Practice

While the formal broad description of just culture is stemming from the EUROCONTROL SAFREP TF (Safety Reporting and Data Flow Task Force) and was picked up by the EU regulations on performance (EU Regulation No 390/2013) and occurrence reporting (EU Regulation No 376/2014), what does it really mean for everyone to apply just culture in daily operations?

We must assume that people set out to do their best – they act with good intent – and organisations and individuals must therefore adopt a mind-set of fairness. This mind-set works at several levels, notably at the level of the individual, the group or team, the organisation, the profession and the nation, and affects the behaviour of persons and the system as a whole. It is worth reflecting on whether you see the human primarily as a hazard and source of risk, or primarily as a resource and source of flexibility and resilience. Each mind-set may take you in a different direction, but the former is more likely to lead to the road of blame, which does not help understand work as done.

The mind-set of fairness will allow us to understand normal work that includes deviations from work as we imagined it, such as:

Why would a controller allow an aircraft to fly below minimum safe altitude?
Why would an engineer take an undocumented shortcut?
Why would a supervisor not take action to ensure aircraft avoid a thunderstorm?
Why would a controller use equipment she/he is not licenced to use?
Why would a pilot ignore manufacturer’s manuals and airline emergency procedures?

What seemed like the right thing to do or not do in a particular situation may seem strange or inappropriate in hindsight. While we can’t get rid of hindsight, we can remove some of the bias by trying to see things from the person’s point of view, and by avoiding language that is ‘counterfactual’ and judgemental (about what they could have or should have done).

Just Culture has different facets and dimensions – judiciary, corporate, media and societal. Of course, it should not be limited to aviation industry. Just Culture is equally applicable in everyday life of many high reliability industries, as well as in our personal life.

For more routine situations, assuming goodwill and adopting a mind-set of fairness is a prerequisite to understanding how things work. When people’s actions are understood in context, work-as-done can be discussed more openly with less need for self-protective behaviour.

The principles of Just Culture will allow us also to unravel why:

A school submitted children to an exam with no preparation?
A nurse falsifies the time taken for an emergency admission?
A call centre worker puts the phone down deliberately cutting you off?

Watch the Just Culture in Practice video produced by ENAIRE:

Just Culture

rady — Fri, 28 May 2021 06:16:34 +0000

Just Culture

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Category:

Just Culture

Content source:

SKYbrary

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SKYbrary

Description

One key to the successful implementation of safety regulation is to attain a “just culture” reporting environment within aviation organisations, regulators and investigation authorities. This effective reporting culture depends on how those organisations are able to handle blame and punishment.

Only a very small proportion of human actions that are unsafe are deliberate (e.g. criminal activity, substance abuse, use of controlled substances, reckless noncompliance, sabotage, etc.) deserve sanctions of appropriate severity. A blanket amnesty on all unsafe acts would lack credibility in the eyes of employees and could be seen to oppose natural justice. A “no-blame” culture per se is therefore neither feasible nor desirable.

What is needed is a “just culture”, an atmosphere of trust in which people are encouraged, even rewarded, for providing essential safety-related information - but in which they are also clear about where the line must be drawn between acceptable and unacceptable behaviour.

There is a need to learn from accidents and incidents through safety investigation so as to take appropriate action to prevent the repetition of such events. In addition, it is important that even apparently minor occurrences are investigated, in order to prevent the occurrence of major accidents. Safety analysis and investigation is a necessary and effective means of improving safety, by learning the appropriate lessons from safety occurrences and adopting preventative actions. Therefore, it is important that an environment exists where occurrences are reported, the necessary processes are in place for investigation and for the development of necessary preventative actions such as re-training, improved supervision etc.

Conditions for Just Culture

Under “Just Culture” conditions, individuals are not blamed for ‘honest errors’, but are held accountable for willful violations and gross negligence.

People are less willing to inform the organisation about their own errors and other safety problems or hazards if they are afraid of being punished or prosecuted. Such lack of trust of employees prevents the management from being properly informed of the actual risks. Managers are then unable to make the right decisions in order to improve safety. Because a totally “no-blame” culture is neither feasible nor desirable, most people should be held accountable when a mishap occurs.

In an attempt to solve that problem, James Reason described a “Just Culture” as an atmosphere of trust in which people are encouraged, and even rewarded, for providing essential safety-related information, but in which they are also clear about where the line must be drawn between acceptable and unacceptable behaviour.

Hence, a Just Culture supports learning from unsafe acts in order to improve the level of safety awareness through the improved recognition of safety situations and helps to develop conscious articulation and sharing of safety information. Consequently, a Just Culture can be regarded as an enabler, and even indicator of, (a good) Safety Culture.

Statement Outlining Just Culture

People are understandably reluctant to report their mistakes to the organisation that employs them or the government department that regulates them. To encourage them to do so, these organisations should publish statements summarising the fundamental principles of a just culture which they will follow. Additionally, they must ensure that these principles are applied at all levels of their organisations.

Such a statement should cover the following matters:

Confidentiality

People are reluctant to draw attention to errors made by themselves or their colleagues, due to personal embarrassment. They must be confident that their identity, or the identity of any person implicated in the report will not be disclosed without their permission or unless this is required by law. An assurance should also be given that any subsequent safety action taken will, as far as possible, ensure the anonymity of the persons involved. This comes from the fact that the notion of Just Culture is driven partly by fear; fear of being judged and blamed, especially fear of being blamed unfairly.

Punitive Action

A person who breaks the law or breaches a regulation or company procedure through a deliberate act or gross negligence cannot expect immunity from prosecution. However, if the offence was unpremeditated and unintentional, and would not have come to light except for the report, he/she should be protected from punishment or prosecution.

Loss of Licence

The circumstances of a report may indicate that the performance of an individual is below the acceptable level. This may indicate the need for further training, or even cancellation of an individual's licence. Such action must never be punitive.

An example of a statement made by a regulator is contained in the introduction to UK CAA CAP 382: Mandatory Occurrence Reporting.

Key Features for Developing and Maintaining a Just Culure

The following list outlines some of the key features that need to be addressed when developing and maintaining a Just Culture in an organisation:

Just Culture policy documented;
Definitions agreed about what is “acceptable” behaviour, and what is “not acceptable”. (Note: these will be specific to, and aligned with, values derived from national, organizational and professional cultures);
Sanctions agreed for unacceptable behaviour;
Process to deal with actions in the “grey area”;
Just Culture policy communicated throughout the organisation;
Reporting systems linked to Just Culture policy;
Fair treatment being applied;
Breaches of the policy being monitored (e.g., error punished or violations excused);
Reports being followed-up; actions taken to address error-producing conditions.

Just Culture Manifesto

The Just Culture principles need to reach each and every country and industry to help making Just Culture a reality in all organisations and societies. The Just Culture Manifesto presents five commitments critical for the need to balance safety and the administration of justice and invites people who agree with the Just Culture principles to commit to them.

More information about the Just Culture Manifesto and the list with the people who have already joined it can be found at Just Culture Manifesto.

Human Error in Aviation and Legal Process

rady — Thu, 27 May 2021 09:27:44 +0000

Human Error in Aviation and Legal Process

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Category:

Human Error in Aviation and Legal Process

Content source:

SKYbrary

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SKYbrary

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.

International Level

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.

European Level

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
Regulation (EU) No 2018/1139 of the European Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.

2023 Progress Update

Eurocontrol's Hindsight magazine provided an update on Just Culture progress with its Summer 2023 issue. Articles addressed issues such as barriers to Just Culture and the use of criminal prosecution. One article discussed a "Model for a Transport Prosecution Policy," and said the model "acknowledges that criminal charges should only be pursued in cases where there is a blatant disregard for safety standards or intentional misconduct."

Another article examined Dutch aviation prosecution cases. "The Netherlands is often held up as a beacon of good practice when it comes to Just Culture in the judiciary," the report said. Regarding commercial air transport, the article said, "Prosecution takes place only in the event of an accident, serious incident or endangerment, or persistent violations, caused by intent or gross negligence." The report also noted: "Consumption of alcohol by pilots and crew are the main factor in criminal cases in major commercial air transport."

The article showed that the vast majority of prosecutions in civil aviation during the period from 2020 through 2022 involved unruly passengers (246 cases). This contrasts with only ten cases of prosecutions involving commercial air transport employees or air traffic controllers.

U.S. Level

The U.S. Federal Aviation Administration (FAA) emphasizes the "Just Culture" approach mentioned above. FAA programs encourage voluntary information sharing, and non-punitive responses to honest mistakes. An example is the Aviation Safety Action Program (ASAP), which offers aviation professionals protection from punitive actions, even when clearances and regulations have been violated--as long as the violation was unintentional and voluntarily reported without misrepresentation.

The FAA website says the goal of the ASAP program is to "enhance aviation safety through the prevention of accidents and incidents." The ASAP web page adds that "Its focus is to encourage voluntary reporting of safety issues and events that come to the attention of employees of certain certificate holders."

FAA Advisory Circular 120-66C provides details on the ASAP program. The document lists what it calls the "Big Five" circumstances under which an ASAP report will NOT be accepted. Those involve cases of possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification. The reporting process normally begins with a crew member or other employee submitting an online report. This report goes to the relevant Event Review Committee (ERC), typically made up of representatives from an operator's training department and management, along with FAA officials when required.

Based on the timeliness of the report and other considerations, the ERC will consider whether to accept the report. If the report is accepted, the ERC may recommend counseling or remedial training, but the employee involved does not face loss of job or certificate.

Enforcement Action vs. Compliance Action

The FAA draws a distinction between an enforcement action, such as revoking an airman certificate, and a compliance action, such as counseling under the ASAP program. According to the January/February 2024 edition of FAA Safety Briefing, since October 2015, the FAA has taken more than 44,000 compliance actions to correct safety issues.

Under voluntary reporting programs that lead to compliance actions, pilots can learn from one another's errors. The FAA says it appears these programs contributed to an overall decrease in the accident rate over the past several decades.

Case Studies Involving Prosecution

On September 10, 1976, a McDonnell Douglas DC-9-32 collided with a Hawker Siddeley HS-121 Trident 3B over Croatia, killing 176 people. A Yugoslav air traffic controller received a seven-year prison sentence and was released after serving more than two years.

On November 21, 1989, a British Airways Boeing 747-136 on an instrument approach to London Heathrow Airport deviated to the right of the runway 27R center line. During the missed approach, the aircraft cleared a hotel by approximately 12 ft. According to a news report, the aircraft flew so low it set off car alarms. The captain was convicted of negligently endangering his passengers. He was fined 2,000 British pounds and ordered to pay legal costs of 1,500 pounds, and he had resigned from British Airways after losing his captain's qualification. The captain took his own life in 1992.

On December 10, 1998, a Delta Air Lines Boeing 767 aborted its takeoff roll at Schiphol (Amsterdam) Airport when the pilots observed a towed Boeing 747 crossing the runway in front of them. At the time of the incident, low-visibility procedures were in force. Three air traffic controllers were prosecuted. In the initial court case, a judge ruled one controller was not guilty, but that the other two were. They were sentenced a a fine of about 450 U.S. dollars or 20 days in jail. On appeal in 2002, a court found all three controllers guilty but did not impose any sentence.

On August 6, 2005, an ATR 72-202 crashed into the sea 26 km off Palermo-Punta Raisi Airport in Italy, killing 16 people. The accident took place after a loss of engine power due to fuel exhaustion. An investigation found that the incorrect replacement of a fuel quantity indicator contributed to the accident. News accounts said a court handed down prison sentences for the captain, the first officer, and five other employees of a Tunisian airline. Reportedly, the court said the crew lost time praying out loud instead of following emergency procedures.

DH8A, Ansett, Palmerston North NZ, 1995(Legal Process - Flight Crew)

rady — Wed, 26 May 2021 10:31:31 +0000

DH8A, Ansett, Palmerston North NZ, 1995(Legal Process - Flight Crew)

Article Information

Category:

Human Error in Aviation and Legal Process

Content source:

SKYbrary

Content control:

SKYbrary

The Event

Flight 703 accident in New Zealand in 1995

Date:

9 June 1995 at 9:22 am local time.

Location

Palmerston North Airport, New Zealand

Summary

Flight 703, an Ansett DHC-8 scheduled to fly from Auckland Airport to Palmerston North, crashed west of the Taratua Ranges and 16 km east of Palmerston North airport, during an instrument approach in bad weather. During the approach to a right turn which would place the aircraft on final approach to runway 25, the right landing gear failed to fully extend and the co-pilot began to manually extend it using a hydraulic pump. The aircraft's power settings had already been reduced to Flight Idle which was normal, but the aircraft was inadvertently allowed to descend too low toward the undulating terrain leading into Palmerston North. Although Ansett New Zealand Flight 703's Ground Proximity Warning System sounded an alarm four seconds before the aircraft hit the ground, the crew was unable to avoid the accident. According to the Transport Accident Investigation Commission report an audio alarm of "Terrain! Terrain! Pull up!" should have sounded 17 seconds before impact, but the GPWS malfunctioned, for reasons which have never been determined.

There were 3 crew members and 18 passengers on board the aircraft. All passengers, except for one United States citizen, were New Zealand citizens.

One crew member and 3 passengers lost their lives and the other two crew members and 12 passengers were seriously injured. The aircraft was damaged beyond repair.

The Non Judicial Investigations

Carried out by:

Transport Accident Investigation Commission of New Zealand Investigation 95-011, "de Havilland DHC-8 ZK-NEY, controlled flight into terrain, near Palmerston North, 9 June 1995", Final Report

The Findings:

The causal factors were:

The captain not ensuring the aircraft intercepted and maintained the approach profile during the conduct of the non-precision instrument approach.
The captain's perseverance with his decision to get the undercarriage lowered without discontinuing the instrument approach.
The captain's distraction from the primary task of flying the aircraft safely during the first officer's endeavors to correct an undercarriage malfunction
The first officer not executing a Quick Reference Handbook procedure in the correct sequence
The shortness of the ground proximity warning system warning.

The Criminal Prosecution

Persons Prosecuted: The Captain

The Court: Courts of New Zealand

The system: Judge

The Charge(s):

The Captain was charged with 4 counts of manslaughter.
The Captain was charged with three counts of unlawfully injuring passengers.

The Plea(s): Not guilty

Prosecutors Sentencing Request: Imprisonment

Significant aspects of the trial:

6 weeks trial
CVR used against the pilot.
As part of the criminal enquiry, the police requested that the Accident Investigation Commission provide them with actual CVR tape, not just a transcript of the recording, but the Commission refused to do so. The matter went to the High Court and the court ruled that the CVR was inadmissible in court. The matter went to the Court of Appeal and the 5 judge bench overturned this ruling and held that the police did have the right to obtain the actual CVR. The police executed the search warrant and took possession of the CVR tape.

In September 1999 legislation was passed prohibiting the use of flight recorders in criminal or civil proceedings against pilots (Flight Safety Foundation, 2000)

The Judgement: The captain was later acquitted of all charges.

The Sentence(s):

Exemplary damages for compensation
The claims of the families of those who were killed, against Ansett for compensatory damages were dismissed by the court as statutorily barred by New Zealand's accident compensation scheme, but their claims against Ansett for exemplary damages were allowed to go forward, as these claims were not barred by the Act.

Related Facts

Seven months before the crash of Flight 703 from Auckland, the Airways Corporation introduced a new instrument approach to Palmerston North for planes landing in bad weather. Instead of the approach, in this case, being over the Manawatu Plain, it was over the Tararua Ranges and the Manawatu Gorge, notorious for its strong winds. Some pilots allegedly reported that they did not feel safe with this approach and refused to use it.

Category:CasesxAviation/JC_prototype_-_GOGEN

Human Error in Aviation and Legal Process

EUROCONTROL's Just Culture Task Force and list of prosecution experts

EUROCONTROL's Just Culture Task Force and list of prosecution experts

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DH8A, Ansett, Palmerston North NZ, 1995(Legal Process - Flight Crew)

DH8A, Ansett, Palmerston North NZ, 1995(Legal Process - Flight Crew)

The Event

Summary

The Non Judicial Investigations

The Criminal Prosecution

Related Facts

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