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Passenger carriage in seats with dual controls


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Notice on the RAA website:-

 

Passenger carriage in seats with dual controls

 

August 13, 2014 | members

 

At present CAR 226 (1) © permits a passenger to be carried in a seat with dual controls only if the passenger is an appropriately qualified pilot licence holder, a student or Is authorised by CASA.

 

226 Dual controls

 

(1) During flight, a person may occupy a control seat of an aircraft equipped with fully or partially functioning dual controls only if:

 

(a) the person holds an appropriate pilot licence for the type of aircraft and the class of operations in which the aircraft is flown; or

 

(b) the person is a student pilot assigned for instruction in the aircraft; or

 

© the person is authorised by CASA.

 

Penalty: 25 penalty units.

 

(2) In authorising a person to occupy a control seat in pursuance of subregulation (1), CASA may grant the authority subject to such conditions as CASA considers necessary in the interests of safety.

 

(3) A person authorised under paragraph (1)(b) must not contravene a condition subject to which the authority is granted.

 

Penalty: 25 penalty units.

 

(4) An offence against subregulation (1) or (3) is an offence of strict liability.

 

Note: For strict liability , see section 6.1 of the Criminal Code .

 

An Exemption (EX153-14) has been issued by CASA to formalise RA-Aus Pilot Certificate holders’ ability to carry a passenger in a seat which has dual controls.

 

 

 

Essentially, from members perspective, nothing changes, provided pilots conduct an appropriate passenger briefing including the information in Schedule 2 of the Exemption, that controls are not to be interfered with during a flight, and there is adequate communications possible between pilot and passenger.

 

CASA have produced an excellent video presentation at the link below

 

which provides some additional insight into an appropriate passenger brief.Jill Bailey Operations Manager

 

 

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If only I was contracted to fly Minister Truss somewhere, and had an opportunity to brief him in respect of seating in the right hand seat. It might just provide him with an insight into why pilots are frustrated by the regulators' convoluted, legalistic and unrealistic approach to aviation safety. He might also understand why strict liability is such an aggravation to pilots?

 

happy days,

 

 

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  • 2 weeks later...

Like so many of the 'deep in the fine print' rules from CASA, this is probably just one of many that had slipped through, only to be conveniently discovered during audits.

 

This time however, instead of trying to retrospectively jump up and down on us, saying 'ignorance is not an excuse', it looks like CASA has admitted there was an oversight, released an update clarification, and we all carry on as before.

 

No groundings and no complete ground up re-registrations.

 

Just hope no-one at CASA decides to request ALL pax temp member forms to use as a basis for applying the 25 points to all pax pilots over the last, (how many?), years!043_duck_for_cover.gif.77707e15ee173cd2f19de72f97e5ca3b.gif

 

 

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PPLs are covered by CAO 20.16.3 para 11

 

11 Carriage of passengers in seats at which dual controls are fitted

 

11.1 Except as provided in paragraph 11.2, in all aircraft for which the Certificate of Airworthiness specifies a minimum crew of 1 pilot, a person may occupy a seat at which fully or partially functioning dual controls are fitted if the pilot gives adequate instruction to that person to ensure that the controls are not interfered with in flight and there is satisfactory communication available at all times between the pilot and that person.

 

Kaz

 

 

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To me, this brings up a can of worms with regard to what is 'adequate instruction' (and there is precisely zero useful advice in that CASA video!) on not interfering with controls - including safe stowage of loose baggage - or 'satisfactory communication'. In the hugely over-represented area of litigation in regard to aircraft accidents, I think some sort of 'standard' by which a PIC can have at least a chance of demonstrating compliance with some set of agreed minimum conditions, is likely to be a necessary first line of legal defence.

 

 

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That would be a prescriptive standard.

 

If there was an accident and it was found the standard was inadequate then the government or body which set the standard would have to pay out.

 

Lessons were learned by governments decades ago, so prescriptive legislation (which everyone complained about by the way) is not going to make a return any time soon.

 

In simple terms, if the flight was successful your communication was satisfactory.

 

If you finish up with a broken back because your passenger burst into song just as you were turning final, or dropped his extensive Mariah Carey CD set and jammed controls, then it might have been unsatisfactory.

 

It certainly steers people away from the old "I'm a safe pilot mate, never failed to bring one back in twenty years!" briefing.

 

I'd also keep a copy of the CASA video, to use as part of my defence because I don't think, and it's only my opinion, that it really explains to a pilot the full reasons for the briefing, and the key issues to cover (both safety, so it doesn't happen, and legal so you know what to protect yourself against).

 

 

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Some would say that if you allowed anybody with a Mariah Carey CD set into your aircraft, you deserve what you get... but seriously, what other form of defence would one have than being able to have a chance of demonstrating that one had met some sort of 'standard' - even if that is only a recommendation, or perhaps checklist? I'd be surprised in there are not many instructors who have had some experience of students freezing on the pedals, for instance, even though they would have, surely, had not just advice but experience in the use of the controls.

 

Possibly, and I have no legal expertise whatever to support this idea, the catch-all 'Recreational Aviation is a dangerous activity' clause MIGHT cover one, but I have my doubts. What do other 'dangerous recreational activity' sports do by way of safety briefings? Can we draw any guidance from those?

 

 

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The dangerous activity warning alerts the passenger that he/she is not getting on an aircraft with the safety expectations of a 747, and the NSW case we have discussed on this forum shows that there is some protection for the pilot (a) if he does this, and (b) is not negligent.

 

But the larger part is the pilot ensuring he is discharging his Duty of Care for all eventualities.

 

 

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If I may be allowed to point out a couple of aspects that may be relevant:

 

Firstly, aircraft design standards are put in place by Federal Parliament - see CASR 23 thru CASR 35.

 

Secondly, CARs and CASRs and CAOs are Disallowable Instruments in the Federal Parliament.

 

So whilst these are indeed prescriptive, LOL if you have any ideas of sueing the Government about them.

 

BTW, CAO 95.4 does supply an exemption to CAR 226 in respect of gliders insofar as persons qualified or instructed in accordance with the GFA Operational Regulations are concerned. There does not appear to be an equivalent provision in CAO 95.55.

 

 

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LOL if you have any ideas of sueing the Government about them.

It was the successful suit against the South Australian Government in the early 1980's which started the mass shedding of prescriptive legislation, and in some cases the closure of complete Departments (example Department of Labour and Industry in Victoria).

 

So don't be too quick to laugh.

 

I've mentioned several times the intriguing situation where certain government bodies, having had liabilities transferred to active participants by their governments, have missed the power of control, stepped back into some prescription thus re-assuming liability.

 

Of course none of them have exemption from criminal charges of culpable negligence, including their Ministers, so the mix can get very interesting where there is a flow of serious injuries or fatalities.

 

 

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I'm definitely not laughing. I do not know what limitation of this sort apply to State Government, as opposed to federal government. Aviation regulation, apart from airline licences and some other peripheral matters concerning airport noise mainly, is a Federal matter; the States do not have control over it or responsibility for it.

 

The FAA in the U.S.A. is protected by the U.S. Tort Claims Act, I understand - although I don't know the details of it. CASA is able to be sued, under S8.2 of the Civil Aviation Act - and we've been suffering from their backside-covering ever since; but in fact, CASA does not put the legislation in place, Federal parliament does - can one sue Federal parliament? If you can, then we have anarchy, not government.

 

CASA is responsible for enforcement, see CASR part 11.

 

Also see http://www.nolo.com/legal-encyclopedia/suing-government-negligence-FTCA-29705.html

 

 

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You told me a few weeks ago that you "got it", and it looked to me as if you had, but after that post I don't think you have grasped the elements, so rather than continue to try to explain and have you continue to search for the "bingo" moment, I'd recommend you go straight to Slater & Gordon, Maurice Blackburn & Co, Shine, or any of the Public Liability lawyers, as I've recommended several times on this forum and get a briefing in person. In what you do, you are particularly at risk, and I can see where Department of Infrastructure and Regional Development is going with their current policy.

 

 

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Turbs, I'm not questioning your advice re personal liability; I got out of the CAR 35 game for precisely that reason. However the question of the broadening of liability beyond the boundaries of the prescriptive legislation has profound implications for aircraft manufacture and maintenance; I do not see that those activities will be sustainable, under the conditions you describe. In other words, I'm not questioning whether you are correct, I'm questioning whether we can survive as a society under those conditions.

 

 

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We said the same thing about the transport industry for about a decade but it weeded out most of the rogues.

So who are the rogues? What this will do, is force our manufacturers offshore - what significance, if any, do the precedents you quote have in, say, South Africa? If I were Sue Woods, I'd be looking seriously at ceasing to trade in Australia; do people want to have to import a Jabiru from South Africa? Because that's where this is headed. The OAK milk people saw the writing on the wall forty years ago. I have seen a steady decline in Australian manufacturing industry, throughout my life, largely because of the legal obstructions to small business, and this legal precedent looks likely to complete the process.

The end result of this rampant de-facto protection racket between the underwriters and the legal profession will inevitably be that the only way to purchase consumer goods will be by importing them, and the TPA liability for importers of recreational aircraft already means that they are mostly not worth sueing, rogues or not. So making things tighter in regard to manufacturer's liability will have entirely the reverse effect - nobody will be able to obtain reasonable redress. You want to try to sue Aeropract or Czech Aero Industries? LOL.

 

The same thing will happen for our service industries; and when that has occurred, we will be truly a banana republic. If you truly advocate this process, you are a kind of Australian that I truly despise.

 

 

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Dafydd your ranting is about 30 years out of date.

 

To give you an example, one of the early "victims" was the water slide industry where severe back injuries, and paraplegia were reasonably common, but it adapted and got back on its feet decades ago, and today when you turn your children loose on a waterslide park you're much more likely to be taking them home safe and sound.

 

 

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No, the little guys have survived well over the decades, but the dodgy brothers, those lovable characters who would extend chassis without flitch plates, which subsequently cracked, and their mates who would walk away from warranty obligations all got caught up in the swirl.

 

 

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No, the little guys have survived well over the decades, but the dodgy brothers, those lovable characters who would extend chassis without flitch plates, which subsequently cracked, and their mates who would walk away from warranty obligations all got caught up in the swirl.

Well, the parallel to that is dodgy maintenance - and there's plenty of that around in the recreational aircraft area.

 

 

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About 30 years ago I took the guy who owned the Luge at Rotorua around possible sites for a Luge in Victoria. He wanted to expand his business. Then he found out about Australian liability laws. He said "But we have two or three fractured femurs a year, we would go broke". I think people still hurtle down the hill at Rotorua and there is still no Luge in Australia.

 

 

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I know that Luge well, took my daughter aged 4 down it. They had billycarts with a stick between your legs for a brake. You pulled back on the stick which pivoted around a fulcrum and dragged along the ground. I came straight from racing so it had no fears for me, and the first part was fine, but then it dropped away and that was when I found the stick was hopelessly ineffective, and when you pulled harder it just lifted the front wheels off the ground and you were out of control.

 

It wasn't going to get any better so I put the front wheels back on the ground wrapped my legs and arms round my daughter threw the billy cart around sideways and rolled off.

 

Fortunately for that bastard I didn't find him that day or I would have choked him.

 

A few years ago we took a helicopter flight up Fox Glacier. On the way back, without any of us asking for the thrill of our lives the pilot aimed at the rock wall and pulled us into a series of what felt like 2g - 3g turns with the g forces pushing out checks hard against our teeth.

 

The week after we left the pilot and a load of tourists were killed there.

 

Nice place NZ.

 

There is a great, and safe Luge at Gumbuya Park, an hour or so out of Melbourne.

 

 

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Guest steve-nz

Ouch, not a nice read.

 

Not good hearing about pilots that fly that way, no need to show off and risk others lives.

 

At least we don't have snakes etc here I guess....

 

 

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You're way ahead of us regarding snakes. What a pleasure it is to be able to walk through thick bush without having to keep your eyes glued for that tell tale glint through the grass.

 

The Fox Glacier thing may have been a temporary lowering of standards. We'd been up some years before and it's magic looking down on those huge chunks of ice.

 

 

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A few years ago we took a helicopter flight up Fox Glacier. On the way back, without any of us asking for the thrill of our lives the pilot aimed at the rock wall and pulled us into a series of what felt like 2g - 3g turns with the g forces pushing out checks hard against our teeth.

The week after we left the pilot and a load of tourists were killed there.

 

Nice place NZ.

 

.

That sort of thing comes under S 20A of the Civil Aviation Act (Reckless use of an aircraft) and it's a criminal offence. You cannot take civil proceedings against somebody whilst they are being dealt with for a criminal offence; so "duty of care" etc takes a back seat. Maybe you can go for them after they get out of gaol?

20A Reckless operation of aircraft

 

(1) A person must not operate an aircraft being reckless as to whether the

 

manner of operation could endanger the life of another person.

 

(2) A person must not operate an aircraft being reckless as to whether the

 

manner of operation could endanger the person or property of another

 

person.

 

 

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That was New Zealand Dafydd, no point in getting excited about what goes on in NZ or USA because the systems are different.

 

One thing is common though; where culpable negligence is involved the insurers usually like to see a criminal trial and a conviction - makes their job a lot easier.

 

 

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