VOCA

An aviation researcher, writer, aviation participant, pilot & agricultural researcher. Author of over 35 scientific publications world wide.

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How CASA seeks to get a decision in the AAT – Is this legal??

This hearing in the AAT involving a matter is of great importance in seeing how CASA has been using the system to beat pilots, operators, AOC holders and others.

The following are a series of “grabs” from the decision which have great importance for us all:

The medical evidence

 

  1. For some time now the Tribunal, in common with most of the courts and tribunals of this country, has had published Guidelines for Persons Giving Expert and Opinion Evidence (the Guidelines). The Guidelines have the aim of ensuring that those who give expert or opinion evidence do so as independent experts, seeking to assist the Tribunal, rather than as advocates for the cause of the party calling that expert. If followed, the Guidelines ought ensure that the factual assumptions that underlie the opinions expressed are demonstrated, not left to speculation. None of the reports relied upon by the parties to these proceedings came close to satisfying the Guidelines.

How CASA uses the regs against us:

23. CASA called Dr Pooshan Navathe, its principal medical officer and the primary decision-maker. Some of Dr Navathe’s evidence detailed, quite unnecessarily, the legal framework for regulatory aviation medicine, the processes of aviation medicine decision-making within CASA, risk management and suchlike. The relevance of that evidence was never explained to me.

How far will CASA legal branch go??:

24. Despite the fact that the statement does contain the declaration of duty required by the Guidelines it could not be plainer that Dr Navathe is an advocate for his own decision. I do not propose to have any regard to his opinions. For the future I would trust that CASA’s Legal Branch would exercise independent judgement in deciding what witnesses ought be relied upon and the content of their statements. They ought, obviously enough, be confined to matters that are relevant and witnesses ought be those who can truly provide an independent opinion.

In fact the AAT calls into doubt the use of “..their definitions..”:

  1. There is, in my view, no evidence that Mr Bolton has any safety-relevant condition. The term “condition” is not defined. Given that “safety-relevant” is defined in reg 67.015 of the CASR by reference to “a medically significant condition” it must be used in the sense of a state of health. The evidence of Dr Hastings and Dr Somerville (and that of Dr Navathe) does not suggest that Mr Bolton has any condition, medically significant or otherwise, rather it is to the effect that, as a consequence of his injury, he has a higher than normal risk that he has such a condition. The case of Mulholland and Civil Aviation Safety Authority[18], referred to in CASA’s Statement of Facts, Issues and Contentions, was an entirely different case. Mr Mulholland had experienced occasions of loss of consciousness brought about by a temporally insufficient flow of blood to the brain. What was controversial in the case was the cause of the condition; the condition itself was not in issue.

And a proper win to the pilot:

  1. I will then set aside the decision to cancel and substitute a decision that Mr Bolton’s medical certificates not be cancelled.