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Legal remedies on effect of CASA on CVD Pilots – Safety case?? NO!!

The following was published yesterday in the  Australian and again demonstrates that CASA has again not made a safety case for the changes:

 

There are legal remedies for CASA’s decisions based on pilots’ colour impairment

THE Civil Aviation Safety Authority recently wrote to pilots querying the effect of colour impairment on aviation safety and encouraging them to consider whether it is safe for them to fly. This has many alarmed.

CASA’s letter refers to “recent medical research” but does not specify what that research is. It says the “possibility exists” that a pilot’s colour vision deficiency “could” adversely affect aviation safety to a greater degree than previously thought.

Media reports suggest CASA is referring to a comparative study recently completed by Dougal B. Watson of the Civil Aviation Authority in New Zealand. That study addresses not whether colour deficiency affects safety but how colour deficiency is assessed internationally.

The report’s author acknow­ledges the lack of high-quality medical evidence to support one threshold of safe colour deficiency versus another; the limited exploration of which colours are necessary for safe flying; and the small number of documented aircraft accidents or incidents where colour deficiency was identified as a contributory factor.

In the absence of other medical research, it is difficult to see the proper legal basis for a broad conclusion that colour deficiency affects aviation safety.

The Administrative Appeals Tribunal considered the effect of a pilot’s colour deficiency on safety in a detailed and well-reasoned decision in 1987 after hearing detailed medical and operational evidence. The medical evidence addressed what purposes colour was capable of serving in the operation of aircraft. The operational evidence addressed the use that pilots made of colour cues.

The tribunal concluded that in most situations colour was redundant because the information communicated by colour was otherwise rapidly and readily perceptible by the pilot. For example:

 The indicator lights for the landing gear were green when down and locked, and otherwise red; but there were generally three green lights and one red light.

 Lights flashed in emergencies.

 Red was perceived by the pilot as yellow — still distinct from white.

 The pilot’s perception of the intensity of light was unaffected by colour deficiency.

 The approach to a runway in a city was identified by a competent pilot knowing where he was, and the black hole, runway lights and threshold lights — the tribunal accepted that pilots did not rely on finding a concentration of coloured lights to locate an airfield.

The tribunal granted the pilot a private licence to fly at night, subject to certain conditions. It held that this reduced the risk to air navigation safety to a level not significantly different from that of a pilot with normal vision at night. Two years later, the tribunal made a similar decision in respect of a commercial pilot’s licence.

The tribunal has recently shown a willingness to overrule CASA on safety-related issues. In March and last month, it rejected the evidence of CASA and cleared those pilots to fly.

Remarkably, in one of those cases the tribunal rejected the ultimate conclusion of CASA’s principal medical officer and made the following observations:

“We do not consider this aspect of (the PMO’s) evidence to have been well-supported or well-reasoned and we formed the impression that (it) may well have been influenced by his desire to justify the decision he had made … We were also troubled by the significant differences between the opinions expressed in the (PMO’s) statement of 8 October 2013 … and his oral evidence.”

Pilots should feel reassured that there are legal standards for the assessment of safety relevant issues under aviation legislation.

The evidence to which CASA refers must be made available to pilots and the link between colour deficiency and safety established before adverse administrative action can properly be taken. Following the outcry, CASA has itself reassured the industry that there will be full consultation in respect of any change.

The tribunal has been willing to robustly assess safety issues and ensure that legal standards are met. An upcoming appeal against restrictions precluding a pilot with colour deficiency from acting as a captain will be a timely test of the current evidence.

Kathryn Howard is a senior associate at law firm Holding Redlich