Features Procedures Safety & Training
A New Age of Public Scrutiny

A new trend shaping up in world courts is the persecution of pilots (and technicians) for wilful negligence that leads to accidents. Popular sentiment appears to be that it’s about time that air crews paid a price for the lives they have snatched and for the pain they have inflicted on the remaining loved ones who are left to grieve the unnecessary death or dismemberment. As an accident reconstructionist who analyzes accidents and their causal factors in court, I am often overwhelmed at the callous errors of others and it seems only just that they should pay the price for their actions or inactions.

Mind you, not everyone agrees. Pilots’ and maintenance technicians’ unions quickly jump to defend their members and argue that punitive measures accomplish nothing. In the Air Garuda Boeing 737 crash that killed 21 during a runway overrun, the pilot survived after making an approach that was far too “hot and high” with minimal flap over the protestations of the co-pilot to initiate a go-around. Five judges concluded Capt. Koruda should spend several years in jail to consider his perseverance with his unstabilized approach. Of course, the International Federation of Air Line Pilots Associations (IFALPA) condemned the court’s action, observing, “the criminalization of individuals involved in accidents ‘does little’ to improve air transport safety.” I beg to differ. In our particular industry, we have witnessed a high accident rate for decades and other measures seem to have met with little success. The first case of criminal negligence I recall in Canada found a Navajo pilot guilty after “reckless behaviour” resulting in death and injuries to passengers when he crash landed in a busy Winnipeg intersection after running out of fuel on an IFR flight! Expect to see a lot more criminal negligence cases in court.

However, before readers make decisions on this issue, we need to define some terms and the considerations that could lead to a criminally negligent finding to put it all into perspective. Many pilots and AMEs have escaped punishment for wilful negligence in the past because crashes were deemed “accidental.” However, research into people’s behaviour and “human factors” has given us, (and the courts) new insights. To err is human. However, there are many types and levels of human error to consider before passing judgment – say, on an accident pilot.
 
The first level occurs when a pilot is dispatched on a task and has an accident due to a lack of knowledge or training. Additional training is warranted – not punishment. The second level is simple negligence, where, for example, a pilot simply did not brief passengers adequately for a subsequent weather diversion and landing in water when an overland flight was anticipated. In this case, since the pilot simply under-22estimated the risk, punishment is not as effective as training and increased awareness. The third level is gross negligence (reckless conduct), which involves a conscious disregard of the risk, and this lack of accountability cannot be corrected by training. If the example pilot who landed in the water took off with an over gross load with the C of G out of limits in forecast marginal weather with no personal flotation devices aboard, then this is a situation where punishment is generally appropriate. This type of aggressive flying behaviour often includes intentional rule violations demonstrating anti-authority issues. In fact the erring individuals generally realize their behaviour is contrary to their own better judgment – but they carry on regardless. While this type of activity accounts for only three to five per cent of mishaps investigated, the effect on organizations, crews and the public perception of the industry have grave consequences for all. Because the pilot’s actions were intentional, there is a need to punish the individual by applying criminal negligence charges and preventing the offender from actively flying and risking the lives of others.

For those who feel my attitude is hard-nosed, one only needs to see the unnecessary suffering to survivors or maimed passengers to realize that misdeeds of such severity cannot go unpunished. There is absolutely no reason why pilots, engineers or management staff should reign above the law. We are living in a new age and it’s not just satellite tracking equipment or cockpit cameras or HUMS equipment monitoring our actions. More and more, our roles and activities are coming under public scrutiny and unless we want to be persecuted in court and sentenced to jail we better “straighten up and fly right.”

Ken Armstrong is an ATP rated pilot who has likely flown more helicopter types than anyone in the world and has taught advanced flying skills in dozens of countries.