Appendix A - Duty Of Care Flashcards
‘Common law’ is a judge-made law, which has built up through the courts over the centuries; it is distinct and separate from laws made by statute (i.e. Acts of Parliament).
Under common law a person is under a general obligation to take reasonable care to avoid acts or omissions that he can reasonably foresee as being likely to damage something or injure someone to whom he owes a duty of care.
If there is a breach of this general obligation and damage or “loss” results, the person who has been injured or suffered property damage will be able to make a “negligence claim” for compensation.
For a negligence claim to be viable, a claimant must prove that:
- a person has been negligent (i.e. has failed to take reasonable care); and
- loss or injury is suffered by some other person as a result; and
- the negligent person owed a duty of care to the claimant who has suffered loss or injury.
Common law is applicable to ATS personnel in the delivery of their core work task…
…in the same way that it is applicable to all other professions and members of the public in their general conduct and day-to-day activities.
In interpreting common law in relation to the provision of ATS, it would be unwise to rely on specific examples, as each case has to be taken on its own unique merit and circumstances.
To decide if a duty of care is owed by one person to another, the courts will consider the three criteria which were set out in the 1990 case of Caparo Industries v Dickman:
- First the loss suffered must have been “reasonably foreseeable”;
- Second, there must be “proximity” between the claimant and the person who has been negligent. This means that the person who is alleged to have been negligent was in a position to exercise some control over the events that have led to the claimant’s loss.
- Third, it must be fair, just and reasonable to impose a duty of care.
Controllers/FISOs clearly owe duty of care to flight crew, passengers, and the general public on the ground, in the delivery of an ATS. However…
…the depth and boundaries of this duty of care cannot be defined in advance for each specific scenario and situation, as they will vary depending on the exact circumstances at the time, including: the type of airspace, type of ATS, dynamics of the situation (i.e. how ‘foreseeable’ was the event?).
The only time that these factors will ultimately be decided upon is in court when examining the specifics of the situation under scrutiny.
Establishing whether or not there is a duty of care is however only the first step. The next question is how to discharge that duty of care (i.e., how careful do you have to be?).
Although every case depends upon its particular facts, there is one key question that normally arises: is there any relevant set of standards or procedures?
If there is, the issue of whether or not a person has discharged his duty of care is likely to be heavily influenced by whether or not he has complied with those relevant standards and procedures.
If there are no relevant standards or procedures, it may be more difficult to establish whether or not a person has acted appropriately.
Duty of care requirements have been a primary consideration in the production of the procedures in this document and, where possible, specific actions have been published that are considered to meet these requirements.
However, the nature of the ATS task in providing the UK FIS means that it is not possible to be totally prescriptive about all actions to be taken, particularly with regard to unknown traffic and the passing of advice and warnings on high risk conflictions to pilots who have requested lower level ATS (i.e. Basic Service and Traffic Service).
Consequently, there is a need for controllers/FISOs to remain free to use their professional judgement to determine the best course of action for them to take for any specific situation.
A crucial element of duty of care is achieved through controllers/FISOs making all reasonable endeavours to provide the level of ATS that a pilot requests.
Due to the nature of the unknown traffic environment, it is inevitable that there will be occasions when controllers are unable to meet in full the ATS definitions that a pilot expects, (i.e. due to limited surveillance capability, workload, or traffic density). In these situations, any reductions should be made clear to the pilot, and this ability is catered for in the ATS Principles for these air traffic procedures.
However, these actions, taken either tactically by a controller or as a strategic measure by an ATS provider, should be in response to justifiable limitations.
An employee will be indemnified by their employer if they are sued under a civil claim of negligence for anything they do (or fail to do) as part of the proper fulfilment of their duties as an employee.
In addition, the employer is in any event generally liable for the acts and omissions of its employees (known as “vicarious liability”).
However…
..an individual employee remains personally responsible so far as any criminal, regulatory or employment consequences are concerned.
What this means is that anyone who thinks they have suffered damage as a result of something done by an employee in the course of their employment has choices: they can sue that employee as an individual; they can sue the employer; or sue both the individual and the employer. If the individual is sued, either alone or jointly with the employer, for anything they do (or fail to do) as part of the proper fulfilment of their duties as an employee, that employee is entitled to look to the employer to indemnify him.
ATS providers need to have an ongoing process to provide assurance that they have taken all reasonable steps to ensure their staff are meeting their duty of care requirements. The effective implementation and use of Quality and Safety Management Systems are means of generating such assurance.
In addition to ATS providers, the CAA/MOD also discharge a Duty of Care in the way it exercises its regulatory duties, which include establishing and monitoring ATS standards
