John Hoore and Civil Aviation Safety Authority
[2014] AATA 292
•13 May 2014
[2014] AATA 292
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2013/2992
Re
John Hoore
APPLICANT
And
Civil Aviation Safety Authority
RESPONDENT
DECISION
Tribunal Mr R Bartsch, Member
Dr W Isles, MemberDate 13 May 2014 Place Sydney The Tribunal sets aside the decision dated 31 May 2013 to cancel Mr Hoore's medical certificates.
The Tribunal remits the matter to the respondent for reconsideration with the direction that at the time of the reviewable decision the extent to which the applicant did not meet the medical standards for a Class 1 or Class 2 medical certificate is not likely to endanger the safety of air navigation if the following conditions are imposed:
(i)That the applicant can operate as a pilot in command only in the capacity of a flight instructor, and then only when a qualified pilot is occupying the other control seat of the aircraft and is appropriately qualified, endorsed and rated to fly the particular exercise, manoeuvre or sequence. This specifically excludes the ab-initio training of student pilots.
(ii)Flights are permitted only under visual meteorological conditions (VMC) by day.
(iii)No instrument flight training, simulated forced landings or engine failures, aerobatic, or stalling sequences are permitted.
(iv)Flights permitted only in fully dual control fitted aircraft with side-by-side seating.
(v)No passengers are to be carried.
(vi)That the applicant wears a seat belt with torso restraint at all times during flight.
(vii)That the trainee pilot be made aware of, and agree to, these imposed conditions prior to undertaking any training with the applicant.
................................................
Mr R Bartsch, Member
CATCHWORDS
CIVIL AVIATION – Conditions for commercial and private pilot license – cancellation of Class 1 and 2 medical certificates – medical standard for issuing Class 1 and 2 medical certificates – safety of navigation – safety relevant condition - malignant melanoma with spread to lymph nodes - special conditions - decision under review set aside and remitted with directions
PRACTICE AND PROCEDURE – whether Tribunal has jurisdiction to review decision – expired medical certificates - operative effect of Tribunal’s decision – applicant’s interests affected
STATUTORY INTERPRETATION - application of regs 67.180 and 67.195 of the Civil Aviation Safety Regulation 1998 – whether the question posed by reg 67.180(2)(e)(ii) must answered favourably to the applicant before the question of imposing conditions pursuant can be considered - no evident basis for construing in such a restrictive manner – broad interpretation consistent with statutory purpose
LEGISLATION
Civil Aviation Act 1988; s 9A
Civil Aviation Regulation 1988; regs 5.04, 11.056,
Civil Aviation Safety Regulations 1998; regs 67.010, 67.150, 67.155, 67.180, 67.195Administrative Appeals Tribunal Act 1975; s 27(1)
CASES
Civil Aviation Safety Authority v Ovens [2011] FCAFC 75
Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67
Re White and Civil Aviation Safety Authority [2008] AATA 543; (2009) 105 ALD 33
Serong and Civil Aviation Safety Authority [2006] AATA 1123; (2006) 93 ALD 673
Mulholland and Civil Aviation Safety Authority [2006] AATA 452Taggart and Civil Aviation Safety Authority [2012] AATA 690
REASONS FOR DECISION
Mr R Bartsch, Member
Dr W Isles, MemberINTRODUCTION
The applicant, Mr Hoore, is 75 years old. He is a professional electrical engineer but has long held a passion for flying. He attained his Private Pilot Licence in 1977 and continued his pilot training and progressed to a Commercial Pilot Licence in 1980. Two years later he gained a Grade 3 Flight Instructor Rating and by 1985 had attained a Grade 1 Instructor Rating. For more than 20 years Mr Hoore was the Chief Pilot and Chief Flying Instructor of a flying school operated by the Scout Association of New South Wales. Over the past 37 years he has accumulated over 5800 hours of aeronautical experience and as a part-time flight instructor conducts instructional flights on a volunteer basis.
On 20 February 2013 Mr Hoore was diagnosed with a malignant melanoma of the right earlobe. The melanoma was excised and two out of three lymph nodes in the neck that were biopsied showed spread of the melanoma. No other metastases have been found on CT scans of the brain, chest, abdomen and pelvis.
The Civil Aviation Safety Authority (CASA) was concerned about the possibility of spread to other organs, and in particular, to the brain, which could result in sudden loss of consciousness, seizures as well as cognitive decline. On 31 May 2013 CASA suspended Mr Hoore's Class 1 and Class 2 medical certificates. A Commercial Pilot Licence and a current Class 1 medical certificate are necessary for Mr Hoore to operate as a commercial pilot and to exercise the privileges of his flight instructor rating.
Mr Hoore seeks a review of the decision of CASA to suspend his medical certificates. He understands the risk of recurrence and agrees with CASA that by virtue of his medical condition if he were to fly as pilot in command without any conditions imposed upon his medical certificate this would represent an unacceptable level of risk to air safety.
The respondent, however, contends that the risks associated with Mr Hoore’s condition are such that there are no conditions that could be imposed upon his medical certificate such that the risks to air safety could be ameliorated to acceptable levels.
Mr Hoore disagrees with this conclusion. He maintains he would not represent any additional risk to air safety if certain conditions were imposed on his medical certificates. The conditions he suggests in his submission [at para 7, p 2] is that he be restricted to operating as pilot in command only on “aircraft with dual controls, and that the second control seat be occupied by a person who has the skills and authorisations (licence and ratings) to act as pilot in command” in the event he becomes incapacitated.
Mr Hoore is not satisfied that CASA has fully considered this option or indeed any other conditions that may be imposed upon his medical certificate pursuant to reg 11.056 of the Civil Aviation Regulation 1988 (CAR). He believes that CASA has not provided any reasons to justify their position.
PRELIMINARY ISSUES
Jurisdiction to Review Decision
In a letter to Mr Hoore dated 24 December 2013 the respondent informed him that his medical certificates had expired in October 2013 and queried the utility of the parties continuing with the hearing in this matter. They advised him to make a new medical application as soon as possible. Mr Hoore told the Tribunal that it would take him some time to make his application as he required various specialists’ reports which were difficult to obtain at that time of year. The respondent suggested to the Tribunal that there was no utility in proceeding unless his medical application had been received and approved. The Tribunal considered that this would further delay the applicant’s application, which had already been delayed for reasons beyond his control.
The issue regarding the jurisdiction of the Tribunal in such instances was considered by the Federal Court in Civil Aviation Safety Authority v Ovens [2011] FCAFC 75. In that case the Full Court questioned the utility of remitting the matter to the Tribunal given that the impugned certificate had expired and been replaced by a later certificate. On the basis that both parties advocated remittal, the Full Court decided to remit that matter but varied the order by deleting the words which qualified the remittal so as to leave it open to the Tribunal to decide whether anything remains to be determined and whether there was any utility in the application proceeding.
The Tribunal acknowledges the decision in Ovens and accepts that any decision it now makes may have no operative effect but will, nevertheless, serve as a factor to be considered by CASA in regard to the issue of any new medical certificates should Mr Hoore seek to re-apply. On this point it is worth noting, however, that in Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 the Tribunal considered the question of standing regarding persons who may apply to the Tribunal for review under s 27(1) of the Administrative Appeals Tribunal Act1975 (the AAT Act) and the breadth of an applicants’ 'interests' covered. The Tribunal considers that Mr Hoore's interests fall within the ambit of s 27(1) because CASA stated in the current proceedings that they would pay “full regard” to this decision when considering Mr Hoore’s application for a new certificate.
During the proceedings Mr Hoore indicated that he intends to apply to CASA to renew his medical certificate. The respondent advised that they would not be bound by the Tribunal's decision if Mr Hoore's medical certificates were expired. At the time of the hearing the Tribunal did not consider whether or not this has validity, however, the respondent nevertheless agreed that they would have full regard to the decision of the Tribunal.
As a final comment on the issue of jurisdiction of the Tribunal in situations where an applicants’ licence or certificate has expired, the Tribunal considers, notwithstanding the legality of their submission, that CASA’s timing in bringing to the attention of the applicant and the Tribunal notice of the certificate’s expiration was most inappropriate. In knowing the likely ramifications, CASA ought to have raised this issue well in advance so the applicant and the Tribunal could have responded accordingly and in a timely manner.
Statutory Construction
In the course of finalising the reasons for decision in this matter and after having considered the relevant authorities, it came to the Tribunal’s attention that an alternative construction of the application of regs 67.180(2) and 67.195 of the Civil Aviation Safety Regulation 1998 (CASR) may arise (see Ovens at [48]). More specifically the issue was whether, as a matter of statutory construction, the question posed by reg 67.180(2)(e)(ii) of the CASR (as read with reg 11.055 of the CAR) must be answered favourably to the applicant (i.e. the extent to which the applicant fails to meet the applicable medical standard does not present an unacceptable risk to air navigation) before the question of imposing conditions pursuant to reg 11.056 of the CAR can be considered.
As this issue arose after the hearing in this matter concluded, the parties were invited to provide further submissions at a subsequent listing. In its written submission the Respondent contended that there was no evident safety basis, nor any warrant arising from the terms of the legislation itself, for construing reg 67.180 in such a restrictive manner. The Tribunal agrees with this proposition.
Pursuant to s 9A(1) of the Act its statutory objective is to ensure in exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration. It is this purpose which guides the interpretation of all other provisions under the Act where there is any ambiguity as to their intended meaning or operation. This position is consistent with s 15AA of the Acts Interpretation Act 1988 which requires that when interpreting a statutory provision, it is the interpretation of that provision which best achieves the Act’s purpose or objective which must be preferred over other interpretations. Consequently, the Tribunal prefers a broader construction of reg 67.180, as a restrictive interpretation would be inconsistent with the Acts’ statutory purpose and would undermine the operation of other provisions and regulations.
At the subsequent listing both parties were in agreement with the Tribunal’s position as to the preferred construction of regs 67.180(2) and 67.195. As was submitted by the respondent:
“[T]he question posed in subparagraph 67.180(2)(e)(ii) of the CASR, does not need to be answered favourably to the applicant before the Tribunal can proceed to the question of imposing conditions under regulation 11.056 . . . [T]he availability of the power to impose conditions, and the effectiveness of any such condition(s) is a relevant matter to take into account in determining whether the extent of the failure of an applicant to meet the relevant medical standard is likely to endanger the safety of air navigation.”
The Tribunal has adopted this position in determining the issues in this matter.
ISSUES
Both parties agree that the applicant does not meet the medical standard for the issue of either a Class 1 or Class 2 medical certificate. The issue in dispute is whether the extent to which Mr Hoore fails to meet the requisite medical standard is likely to endanger the safety of air navigation.
The main issue for the Tribunal to determine is whether there are any conditions, in accordance with the provisions of reg 11.056 of CAR that could be imposed upon a medical certificate that would ameliorate the threat posed to air safety by Mr Hoore’s failure to meet the medical standard.
If conditions are imposed it is important to appreciate that the Tribunal must consider the safety of persons other than Mr Hoore, including people and property on the ground and in the air. Any such conditions imposed on a medical certificate must be necessary in the interests of the safety of air navigation, having regard to the medical condition of the person.
CASA’s principal concern, and therefore also that of the Tribunal, must be the safety of air operations generally and this is clearly set out in s 9A of the Civil Aviation Act 1988 (the “Act”) which, relevantly, provides:
(1)In exercising its powers and performing its functions, CASA must regard the safety of air navigation as the most important consideration.
In Re White and Civil Aviation Safety Authority [2008] AATA 543; (2009) 105 ALD 33 at [79] the Tribunal accepted that the nature of the potential incapacity in question is a relevant consideration to bear in mind. The Tribunal must therefore be cognisant of the interdependence of any such conditions and the potential incapacity in terms of its likelihood to endanger the safety of air navigation.
THE STATUTORY SETTING
Pursuant to s 20AB(1) of the Act and reg 5.04(1) of the CAR a licence holder is required to hold a current medical certificate appropriate to that licence. In the case of a flight instructor, a Class 1 medical certificate is required and, in the case of a private pilot licence, either a Class 1 or a Class 2 certificate is appropriate.
Under reg 67.180(1) of the Civil Aviation Safety Regulations 1998 (CASR) CASA must issue a medical certificate to an applicant who meets the requirements of reg 67.180(2). Paragraph (e) of that sub-regulation relevantly provides:
(2) For subregulation (1), the requirements are:
…
(e) either:
(i) the applicant meets the relevant medical standard; or
(ii) if the applicant does not meet that medical standard
the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation.
In addition, under reg 11.056 of the CAR conditions may be imposed on a medical certificate that allows CASA to be satisfied that the extent to which a person fails to meet the medical standard is not likely to endanger the safety of air navigation.
Under reg 67.010 of the CASR the relevant medical standard for a Class 1 medical certificate is medical standard 1. Medical standard 1 is defined in that reg to meet the standards set out in Table 67.150.
The respondent states that in this case the relevant section of Table 67.150 is as follows:
Abnormalities, disabilities and functional capacity
1.1 Has no safety-relevant condition of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) An abnormality;
(b) A disability or disease (active or latent);
(c) An injury;
(d) A sequel of an injury or an accident or limitations of a surgical operation.
Under reg 67.010 the relevant medical standard for a Class 2 medical certificate is medical standard 2. Medical standard 2 is defined in that regulation to meet the standards set out in Table 67.155.
The respondent states that the relevant section of Table 67.155 is:
Abnormalities, disabilities and functional capacity
2.1Has no safety relevant condition of any of the following kinds that produces any degree of functional incapacity or a risk of incapacitation:
(a) An abnormality;
(b) A disability or disease (active or latent);
(c) An injury;
(d) A sequel of an accident or a surgical operation
The respondent states that the applicant does not meet the standards outlined above in sections 1.1 or 2.1 of the Tables.
MEDICAL EVIDENCE
The medical diagnosis of the applicant is not in dispute. The report of 19 March 2013 provided by Dr Andrew Spillane, Associate Professor of Surgical Oncology, summarises the situation well:
Mr Hoore has been diagnosed with malignant melanoma. The primary tumour was situated on the right earlobe. It was Breslow thickness 5.5mm, Clark's level 5, had no ulceration and a mitotic rate of 32 per mm2 (in the original punch biopsy). He has subsequently had an amputation of the earlobe and a sentinel node biopsy of 3 lymph nodes in the neck. This has demonstrated two lymph nodes containing metastatic melanoma out of the three lymph nodes removed. He has subsequently had a staging CT scan of his brain, chest, abdomen and pelvis. This does not show any evidence of distant metastatic spread of the melanoma. He is now considering whether to have further neck and parotid gland surgery.
This is a very serious melanoma with a high risk of recurrence. His 10 year survival would be of the order of 20% - 30%. The risk of a recurrence would be highest in the next 2 - 5 years.
Associate Professor Pooshan Navathe, Principal Medical Officer with CASA, presented the medical case for the respondent. While agreeing that there was currently no evidence of metastases, he pointed out the prognosis from Dr Spillane, which stated a high risk of recurrence and a 10-year survival rate of 20-30 per cent.[1] He also referred to a table, which is reproduced, in his statement.[2] It does not reference the study from which it is derived, but shows the results of nine studies that list the percentage of brain metastases caused by different primary tumours. The risk of brain metastases following a diagnosis of malignant melanoma, varied from 4 to 16 per cent.[3] No other information such as the staging of the tumours and time from diagnosis for the appearance of metastases was provided. A/Prof Navathe also pointed out that the risk in Mr Hoore's case would be at the higher end of the spectrum because of the advanced histologic staging of the tumour, the spread to lymph nodes and its location on the head and neck.
[1] Report of A/ Prof Spillane.
[2] Statement of A/Prof Navathe at p 23.
[3] Statement of A/Prof Navathe at [81].
A/Prof Navathe further referenced a study that indicated seizures were a presenting symptom in 19 per cent of cases of brain metastases.[4] He listed the following possible presenting symptoms for brain metastases:
[4] Statement of A/Prof Navathe at [75].
·Seizures
·Memory loss, poor judgment, difficulty solving problems
·Decreased coordination
·Vision Changes - double vision, decreased vision
·General ill feeling or lethargy
·Headache -- new or more severe than usual
·Numbness, tingling pain and other changes in sensation
·Personality changes
·Rapid emotional changes or strange behaviours
·Speech difficulties
·Vomiting with or without nausea
·Fever
·Weakness of a body area
A/Prof Navathe explained that symptoms such as seizures might present with no warning, while many of the others would have a slower onset and would be detectable before undertaking a flight. However, he also pointed out that more subtle symptoms such as changes in judgment and cognition would be more difficult to detect and could lead to subtle incapacitation.
Mr Hoore did not present opposing medical evidence but did point out that the study, quoting the risk of brain metastases of 4 to 16 per cent, was general in nature and did not define the time periods for the presenting symptoms.
A/Prod Navathe went on to explain in oral testimony the possible consequences of a seizure of a pilot in the cockpit. During a seizure the person can have sometimes quite violent spasms, contractures of the body and limbs and would become incapacitated. In a single pilot operation this would be obviously disastrous. In a dual control cockpit with two pilots, a fitting pilot could interfere with the controls such as the rudder or the control column. An unconscious pilot could slump forward onto the control column. In addition the second pilot could find the situation distracting, which could be dangerous if in a critical stage of flight.
Mr Hoore does not contest this but highlights an inconsistency in the respondent's argument, pointing out that CASA does not regulate the health of passengers who can sit in the second control seat in dual control aircraft. Such passengers could be subject to seizures with the same potential outcome.
CAN ANY CONDITION BE IMPOSED ALLOWING A CERTIFICATE TO ISSUE?
In accordance with reg 67.195 of the CASR, CASA may issue a medical certificate subject to any condition that is necessary in the interests of the safety of air navigation, having regard to the medical condition of the person. The conditions, which may be imposed by CASA, are flexible and cannot be fettered by CASA policy.
In Serong and Civil Aviation Safety Authority [2006] AATA 1123; (2006) 93 ALD 673 at [27] the Tribunal stated:
The conditions, which may be imposed on individual applicants, will depend on their circumstances. To limit the conditions imposed by CASA under reg 67.195, or to treat the conditions as if they were mandatory in every case is, in our view, an impermissible fetter on the discretion granted by reg 67.195,which expressly permits any condition necessary in the interests of air navigation to be applied to a medical certificate issued by CASA.
In Serong the Tribunal concluded (at [28]) that the applicant “may be subject to any condition that is necessary, in the individual applicant’s case, to ensure the safety of air navigation. This may or may not require operations with a co-pilot. It applies to Class 1 and Class 2 medical certificates”.
THE ROLE OF FLIGHT INSTRUCTOR AS AN AMELIORATING FACTOR
Mr Hoore believes that, if he were restricted to flying only as a flight instructor, the presence of another licensed pilot would ameliorate the risk to an acceptable level. The flight instructor in most situations would be seated in the co-pilot seat on the right-hand side, while instructing a pilot seated in the left-hand seat. Although when teaching a trainee flight instructor the seating would be reversed, he did not see that as a problem. In fact Mr Hoore argued that because the other pilot has exposure to flying the aircraft from that particular (left-hand) seat, it may in fact be safer than would be the case in which a pilot in the right-hand seat (had to take control), in situations where they had not been specifically trained to fly the aircraft from that position.
In cross-examination, Mr Hoore agreed with the possible consequences described by A/Prof Navathe in the case of incapacitation. He also agreed that the flight instructor is the Pilot in Command who is responsible for safety of the flight and that the instructor must remain vigilant at all times.
Mr Mathew Ford, a Flight Training Examiner for CASA, made a statement dated 4 November 2013 and gave oral testimony by phone. He expanded on the role and the operational implications of a flight instructor becoming incapacitated. He pointed out that the pilot being instructed is often seeking to upgrade his general flying skills as with commercial pilot licence training, and may be inexperienced and lacking the skills and confidence needed to safely take over as pilot in command and manage the incapacitation event. At other times the trainee pilot is attempting to gain qualifications in a specific area such as instrument flying training. Sometimes during flight instruction simulated procedures are undertaken which will stretch the capacity of the trainee pilot. The flight instructor must be vigilant at these times in case they may have to intervene to ensure the safety of the flight.
Mr Hoore contends that if he were to become incapacitated the other pilot could take over as Pilot in Command. He pointed out that most of the additional workload is in fact generated by the instructor. If the instructor were incapacitated this would cease and the trainee pilot could then concentrate on safely flying the aircraft. In Mr Ford's report he often uses the term "student" pilot. Mr Hoore reminded the Tribunal during his questioning of Mr Ford that every trainee that he would be with would already be a licenced pilot. This pilot would already be capable of flying the aircraft, would already have done the flight planning, already be handling communication with Air Traffic Control, would be operating from the left-hand seat and would be situationally aware. He maintains that situations where the instructor would be forced to take the controls are very unlikely, stating that he could not recall ever having done so.
Mr Hoore also took issue with CASA's referral of his case to Mr Ford. He pointed out that the email from Ms Swain to Mr Ford was sent in September 2013, over three months after the suspension of his certificates. He felt that this showed that full regard had not been afforded to his suggested certificate conditions at the time that CASA had decided to suspend his certificate. The respondent replied that the request to Mr Ford was made to gather expert opinion in response to Mr Hoore's later application to the Tribunal. It was not needed at the time of the original decision as CASA’s medical branch already had members with pilot licences and operational experience who were qualified to make such decisions. He also questioned Mr Ford's qualification to give evidence on medical conditions. But it was pointed out by the respondent that Mr Ford's report and testimony were restricted to pilot incapacitation only. This is supported by the email from Ms Swain dated 4 September 2013, in which she requests him to consider the case where the instructor may become incapacitated.
CASA'S RISK ASSESSMENT PROCESS
Ultimately the decisions made by CASA on medical certificates and the imposition of conditions is a risk-based process. Mr Hoore questioned not only CASA's risk assessment process, but also whether due consideration was given to the conditions he suggested could be placed on his certificate.
The respondent points out that every decision is made case-by-case and is based on individual circumstances. No two situations are the same. A/Prof Navathe explained in considerable detail the regulatory medical decision-making process in his written submission[5] and in oral testimony. He stressed the role of evidence based medicine and the collegial nature of the decision making process. He explained the medical staff of CASA are experienced in aviation medicine and many of the doctors hold pilots licences and are experienced pilots. A/Prof Navathe explained that before a decision is made to suspend a medical certificate, the case is referred to the Complex Case Management (CCM) Committee to gain a broader opinion from his colleagues in the medical branch of CASA. This process was followed for Mr Hoore and notes of the CCM of 29 May 2013 are included in evidence.[6]
[5] Statement of A/Prof Navathe, at pp 7-16.
[6] T Documents, at T43-140.
Mr Hoore pointed out that the notes were minimal, did not detail who was present at the meeting, did not give detailed reasons for the decisions taken and did not seem to give consideration to the conditions he suggested could be placed on his certificate. A/Prof Navathe explained that CASA may deal with up to 30 cases in any session and consequently do not record in great detail the discussions. The important thing for him is that there is consensus from a number of his experienced colleagues. He also suggested that the line in the CCM notes under "Aeromedical Considerations: Agree, risk of sudden incapacitation cannot be mitigated” does refer to Mr Hoore's suggested licence condition.
In making his case for the imposition of the flight instructor only condition, Mr Hoore points to a number of cases where pilots have been issued with "fly as or with a co-pilot" conditions on their medical certificates. He mentioned the case of a Mr Keith Roby who had this condition imposed, inter alia, on his licence by CASA in 2006. A/Prof Navathe replied that Mr Roby had Atrial Fibrillation. His treatment was curative but there was a small risk that necessitated the placement of the condition on his medical certificate. He thought the risk of incapacitation in Mr Roby's case was smaller than for Mr Hoore.
Mr Hoore also listed some Tribunal cases where similar conditions had been placed on licences such as Mulholland and Civil Aviation Safety Authority [2006] AATA 452 and Taggart and Civil Aviation Safety Authority [2012] AATA 690. A/Prof Navathe replied that he was not in a position to comment in any detail on each case. However, each case is unique and the decision whether or not to place conditions on medical certificates is made on a case-by-case basis. He thought it likely that in these cases the risk of pilot incapacitation was considered to be lower than in Mr Hoore's situation.
Mr Hoore also questioned the consistency of CASA's own regulations in relation to their risk analysis on the second pilot in his case. In his submission[7] he referred to CASR Part 61.405 that provides pilots with the option of having a drivers medical certificate, which he sees as being of a lesser standard but more easily achievable. This is evidenced by the restriction placed on such pilots by the regulation, that they can carry no more than one passenger. However, this restriction is lifted if there is a licenced pilot in the second control seat. This he asserts is clear evidence that CASA accepts the ameliorating effect a second pilot has on the risk to air safety.
[7] Applicant’s Submissions, at [43], [44].
Mr Hoore also quoted some aviation studies that in his view strengthened his case. An Australian Transport Safety Bureau (ATSB) Report in January 2007 analysed medical conditions affecting pilots involved in accidents and incidents from 1975 to 2006. Significantly all 10 fatal accidents involved single pilot operations.[8] The CASA Aviation Safety Year Book of 2013 reinforces CASA's view that all decisions are evidence based and made on a case-by-case basis. Mr Hoore was not convinced of this and brought their statement to our attention.[9] He also directed the Tribunal to the Flight Safety Digest of January 2005 that reported a study on In-Flight Medical Incapacitation of U.S. Airline Pilots from 1993 to 1998. They reported 50 medical events of which only two resulted in non-fatal accidents and there were no passenger deaths. However, it was reported [at 7] that of the 47 flights affected, in seven the safety of the flight was affected.
[8] Newman D January 2007, ATSB Safety Report B2006/0170, at p 16.
[9] Civil Aviation Safety Authority, Aviation Safety Year Book, 2013, at p 9.
Mr Hoore suggested that his likely flight time hours as an instructor was another factor to be taken into any risk analysis. He claimed that he would work only perhaps 100 hours per year. A/Prof Navathe agreed with his proposal that as there were no special conditions related to actual flying that increased the risk of having a seizure, then the risk of onset of a seizure is a temporal one. Thus by flying only 100 hours in a year, the risk of an adverse event occurring in those hours would be commensurately reduced as compared to, for example, a pilot that flew 900 or 1000 hours annually.
CONCLUSION
The medical diagnosis of malignant melanoma with spread to lymph nodes but no distant metastases is not disputed. Both parties agree that there is a possibility of metastatic spread, including to the brain, which could have serious consequences in a pilot. There could be sudden loss of consciousness and/or seizures, as well as more subtle but unrecognised diminution in cognition. Although Mr Hoore points out that the studies quoted by CASA do not entirely address his situation, they do nevertheless provide us with some sense of the probability of an adverse outcome. This is substantial and real and is not remote. The applicant does not meet the medical standards set out in sections 1.1 and 2.1 of Tables 67.010 and 67.155 of the CASR respectively.
Consideration must now be had as to whether the imposition of a condition or conditions pursuant to reg 11.051 of the CASR can be made that would allow the Tribunal to be satisfied that the extent to which Mr Hoore fails to meet the medical standard is not likely to endanger the safety of air navigation.
Mr Hoore questioned CASA's decision making and risk assessment procedures, but they were able to explain a robust process performed by well-qualified experts, albeit not necessarily well documented. There was little mention of certificate conditions in the CASA documentation, and it is possible that due consideration was not afforded to these aspects in the process of suspending Mr Hoore's medical certificates.
Mr Hoore's evidence about the rarity of a flight instructor ever having to take over the controls during advanced instructional sequences is accepted. The argument of having a second pilot continuously present who, by nature of the training being undertaken, is well prepared and capable to take-over as pilot in command is compelling. However, CASA's concern about the distraction and possible physical interference with flight controls by a fitting or unconscious flight instructor does carry weight.
On this point, it is noteworthy that in White the respondent submitted, and the applicant did not dispute, that the nature of the incapacity that might be caused by a seizure event was also relevant in any risk assessment. In that case the Tribunal found that such an event would lead to a degree of incapacity totally destructive of the applicant’s ability to control an aircraft in flight. The expert medical witness in his oral evidence pointed out that the risks involved in a seizure are not subtle, but produce an active incapacity. It was stated: “even a safety pilot might not be able to wrench the applicant's hands off the controls.”
Although the medical conditions in the White case were entirely different, the risk of this hazard was not raised by the respondent or by their witnesses. In any case, a significant mitigating factor in this matter is the fact that the proposed conditions suggested by the applicant are such that the applicant, in performing advanced instructional sequences, would rarely be manipulating the controls during flight.
The relevance is also reduced because of the fact that passengers are allowed to sit in the pilot seat without medical oversight. Also important is the concern that the second pilot in commercial pilot training may in some circumstance be relatively inexperienced. Mr Hoore did not contest this.
Mr Hoore's presentation of some aviation studies showing the small number (or lack) of pilot incapacity accidents in two-pilot operations was persuasive, as was his argument of limited flying hours reducing the risk of an inflight event occurring. The risk, as a measure of the product of likelihood and consequence, is proportionally reduced as a direct consequence of the reduction of the likelihood of the incapacitating event.
The information presented by the applicant about other cases being given "as or with co-pilot" conditions on their certificates was not of great assistance, because little information was available and they had other medical conditions with different prognoses.
In respect to issues associated with consideration of the level of situational awareness of the other pilot (that is, not the pilot in command) in instances of incapacitation, the Tribunal is of the opinion that the other pilot would need to be under advanced instruction sequences. However, the safety of air navigation during all advanced instructional scenarios, as suggested by the respondent, could not, in the opinion of the Tribunal, be mitigated to acceptable levels. In the case of instrument flight training, the trainee by virtue of the nature of this training, would necessarily be concentrating of instrument flying, and could be quite oblivious to any subtle onset of incapacitation of the pilot in command. This was an issue highlighted by Mr Ford in his oral evidence in respect to the use of training devices such as ‘foggles’ during instrument flight training.
We have concluded, and indeed it was never a contentious issue, that Mr Hoore does not meet the medical standard for the issue of either a Class 1 or Class 2 medical certificate. The extent to which Mr Hoore fails to meet the standard is unlikely to endanger the safety of air navigation with conditions imposed to ameliorate that situation. The respondent believes no such conditions exist. We disagree with this determination. We have accordingly imposed conditions, which require, inter alia, that the applicant fly at all times with an appropriately qualified and rated pilot.
DECISION
For the reasons set out above, and having regard to the Tribunal’s obligation under s 9A(1) of the Civil Aviation Act 1988, to regard the safety of air navigation as the most important consideration, the Tribunal sets aside the decision dated 31 May 2013 to cancel Mr Hoore's medical certificates. The Tribunal remits the matter to the respondent for reconsideration with the direction that at the time of the reviewable decision the extent to which the applicant did not meet the medical standards for a Class 1 or Class 2 medical certificate is not likely to endanger the safety of air navigation if the following conditions are imposed:
(viii)That the applicant can operate as a pilot in command only in the capacity of a flight instructor, and then only when a qualified pilot is occupying the other control seat of the aircraft and is appropriately qualified, endorsed and rated to fly the particular exercise, manoeuvre or sequence. This specifically excludes the ab-initio training of student pilots.
(ix)Flights are permitted only under visual meteorological conditions (VMC) by day.
(x)No instrument flight training, simulated forced landings or engine failures, aerobatic, or stalling sequences are permitted.
(xi)Flights permitted only in fully dual control fitted aircraft with side-by-side seating.
(xii)No passengers are to be carried.
(xiii)That the applicant wears a seat belt with torso restraint at all times during flight.
(xiv)That the trainee pilot be made aware of, and agree to, these imposed conditions prior to undertaking any training with the applicant.
The Tribunal recognises that because Mr Hoore's medical certificates expired on 12 October 2013, the Tribunal's decision has no operative use. However, we note that the Respondent has stated that should Mr Hoore reapply for medical certificates, it will have regard to the Tribunal's decision.
The Tribunal is aware that Mr Hoore's malignant melanoma may deteriorate with time and that he also has other medical conditions that CASA must consider. While it is hoped that this would not be the case, under Part 67 of the CASR, any significant development in his health status would be required to be reported to CASA, particularly the appearance of metastases. CASA would then have to reassess Mr Hoore's medical certification.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Mr R Bartsch, Member and, Dr W Isles, Member
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Associate
Dated 13 May 2014
Dates of hearing 20 December 2013, 9 January 2014 and 2 May 2014
Date of Final Submissions 2 May 2014 Solicitors for the Respondent Ms Swain, CASA Legal Services Group
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