Possible Injustice in ‘Just Culture’

Norwegian Civil Aviation Authority

27-29 January 2015

Presentation By:

Kevin Humphreys

Director Safety Regulation

Irish Aviation Authority

EU Definition of ‘Just Culture’

“Means a culture in which front line

operators or others are not punished for

actions, omissions or decisions taken by

them that are commensurate with their

experience and training, but where gross

negligence, willful violations and destructive

acts are not tolerated.” 1/

1/ Commission Regulation (EU) No. 691/2010 of 29 July 2010, Official Journal of the European Union, Brussels, L2013, 2010

Dictionary Definition of ‘Just’

• “Fair or impartial in action or judgment

• Conforming to high moral standards; honest

• Consistent with justice; a just action

• Rightly applied or given

• Legally valid; lawful

• Well founded; reasonable

• Correct, accurate or true” 2/

2/ Collins English Dictionary, Harper Collins, Glasgow G4 ONB, 1995

4

Malaysia Air Lines Flight MH370 En Route Kuala Lumpur to Beijing

08 March 2014

You Tube: https://www.youtube.com/watch?v=lBiFzWxLWb4

5

Aberfan, South Wales 21 October 1966

Death Toll: 116 Children and 28 Adults

You Tube: https://www.youtube.com/watch?v=lBiFzWxLWb4

Chance and Mortality 3/

“There is no desirable way to die – death by organ

failure is a ghastly business in a modern hospital,

far too long prolonged. Death by dementia is

something few of us would wish on our worst

enemies. Sudden and wholly unexpected death

leaves a crater in the lives of loved ones”

3/ Chance and Mortality – The Guardian , Saturday, 03 January 2015 p. 32

Universal Declaration of Human Rights4/

• Article 6. Everyone has the right to recognition

everywhere as a person before the law.

• Article 7. All are equal before the law and are entitled

without any discrimination to equal protection of the law.

All are entitled to equal protections against any

discrimination in violation of this Declaration and against

any incident to such discrimination.

• Article 8. Everyone has the right to an effective remedy

by the competent national tribunals for acts violating the

fundamental rights granted him by the constitution or by

law.

4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York,

Random House 2001) p.311/312

Universal Declaration of Human Rights4/ (cont’d)

• Article 9. No one shall be subjected to arbitrary arrest,

detention or exile.

• Article 10.Everyone is entitled in full equality to a fair and

public hearing by an independent and impartial tribunal,

in the determination of his rights and obligations and of

anty criminal charge against him

• Article 11. (1) Everyone charged with a penal offense has

the right to be presumed innocent until proved guilty

according to law in a public trial at which he has had all

the guarantees necessary for his defence.

4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York,

Random House 2001) p.311/312

Universal Declaration of Human Rights4/ (cont’d)

• Article 11. (2) No one shall be held guilty of any penal

offense or of any act or omission which did not constitute

a penal offense, under national or international law, at the

time when it was committed. Nor shall a heavier penalty

be imposed than the one that was applicable at the time

the penal offense was committed.

• Article 12. No one shall be subject to arbitrary

interference with his privacy, family, home or

correspondence, nor to attacks upon his honour and

reputation. Everyone has the right to the protection of the

law against such interference or attacks.

4/ Glendon, Mary Ann, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York,

Random House 2001) p.311/312

Criminalisation of Error “In their study of the criminalisation of

aviation professionals, authors Mateou and

Mateou outline several cases where, as a

result of both the advancement in the

investigation of aviation accidents as well as

the greater demand by modern society for

accountability, the judicial authority has an

increasing impact on the events subsequent

to an aviation accident.” 5/

5/ Cited in Sofia Michaelides-Mateou and Andreas Mateou, Flying in the Face of Criminalisation, The Safety Implications of

Prosecuting Aviation Professionals for Accidents, (Surrey, England: Ashgate Publishing Limited, 2010), p. 3

Criminalisation of Error (cont’d)

Mateou and Mateou 6/ examined 34 fatal accidents

which resulted in criminal charges being taken

against either the pilots, engineers, air traffic

controllers or management certification authorities

or manufacturers.

6/ Sofia Michaelides-Mateou and Andreas Mateou, Flying in the Face of Criminalisation

Criminalisation of Error (cont’d)

“In examining the intermingling of the judicial

and technical investigations and how use

was made of evidence from the technical

investigation by a court of law, they found

cases that involved the prosecution of pilots,

air traffic controllers and aviation

regulators.”7/

7/ Michaelides-Mateou and Mateou, Flying in the Face of Criminalisation, p. 55

Criminalisation of Error (cont’d)

“Unless the appropriate authority for the administration of justice determines that this disclosure outweighs the adverse domestic or international impact such impact may have on any future investigation.” 8/ (Italics added).

The above italicised caveat may be identified as the fundamental problem with the criminalisation of error and the difficulty in achieving justice when professionals give their testimony to a body on the understanding that the information will not be used for any purpose other than safety enhancement.

8/ ICAO Annex 13

ICAO on Blame or Liability

“Any investigation conducted in accordance with

the provisions of this annex shall be separate

from any judicial or administrative proceedings to

apportion blame or liability.” 9/

9/ ICAO Annex 13 to the Convention on International Civil Aviation, International Standards and Recommended Practices,

International Civil Aviation Organisation, Quebec, Canada, 2010, p.53

Churchill

“You will have the greatest trade, you have

all the gold. But these things do not oppress

my mind with fear because I am sure the

American people under your leadership will

not give themselves over to vainglorious

ambitions and that justice and fair play will

be the lights that guide them.” 10/

10/ Jennent Conant, The Irregulars. Roald Dahl and the British Spy Ring in Wartime Washington, (New York: Simon & Schuster

Paperbacks, 2008), p. 273

Justice and Safety

• UN

• ICAO

• Universal Declaration of

Human Rights

ICAO’s Definition of Safety

“The state in which the possibility of harm to

persons or of property damage is reduced to

and maintained at or below an acceptable

level through a continuing process of hazard

identification and safety risk management.” 11/

11/ ICAO Doc 9859, Safety Management Manual (SMM), AN/474, 2nd Edition, International Civil Aviation Organisation, Canada,

2009, p. 2.2

Managing the Risks of

Organisational Accidents

“Irrespective of the concept invoked to define

what safety is at a particular point in time, as

society progresses it demands a higher

degree of safety. Thus, safety is a target

moving continuously towards zero risk.” 12/

12/ James Reason, Managing the Risk of Organisational Accidents, (Hants, England: Ashgate Publishing Limited, 1997), p. 176

Purposes of an Accident or Incident

Investigation

• To identify and then describe the course of the events (what,

where and when?);

• To identify the direct causes and contributing factors that led to

the accident (why?);

• To identify measures to reduce risk in order to prevent future

similar accidents from occurring (learning);

• To evaluate the basis for potential prosecution and blame;

• To evaluate the question of guilt in order to avoid the liability

for compensation. 13/

13/ Michaelides-Mateou and Mateou, Flying in the Face of Criminalisation, p. 31

Culture

“Few phrases occur more frequently in

discussion about hazardous technologies

than safety culture; few things are so sought

after and yet so little understood.” 14/

14/ Reason, Managing the Risk of Organisational Accidents, p. 191

Occurrence Reporting

Despite having failed to protect information

given in accident investigations, all safety

thinking believes that from a reporting

culture a learning culture will develop and

this can all be accomplished in a ‘just

culture’.

Collecting Safety Information

The sensitive nature of safety information is such that the way to ensure its collection is by guaranteeing its confidentiality, the protection of its source and the confidence of the personnel working in civil aviation. It is this protection of sources and the confidence of the people reporting which form the main problems of guaranteeing a ‘just culture’ in reporting systems. Similar to ICAO and accident information protection, protections are not universal and are subject to domestic legislation.

Cultural Difference

“Whilst acknowledging that in aviation safety there are cross cultural

issues, it is easy to portray one culture as perhaps better or more suited

than another. It is recognised that different cultures have strengths and

weaknesses. When applied to aviation safety, cross cultural endeavours

are designed to build upon cultural strengths as they related to safety

practices while minimising the downside of cultural weaknesses. From

an administrative or academic viewpoint such statements are common

sense. 15/

15/ A.J. Stolzer, C.D. Halford and J.J. Goglia, Implementing Safety Management Systems in Aviation, (Surrey, England:

Ashgate Publishing Ltd., 2011), p. 151

Cultural Difference (cont’d)

“The real world of aviation safety is

considerably different. This is particularly

evident when an aircraft built by a large Western

consortium is operated by a non-Western airline

and crashes on the high seas. Very quickly

international convention is strained and

contentious cross cultural issues come Into play

to the detriment of aviation safety.” 15/

15/ A.J. Stolzer, C.D. Halford and J.J. Goglia, Implementing Safety Management Systems in Aviation, (Surrey, England:

Ashgate Publishing Ltd., 2011), p. 151

EUROCONTROL on

Preserving Justice

’Just Culture Task Force’, as a classical

drama where two antagonists are involved,

one with the aim of preserving justice by

investigation and prosecuting possible

perpetrators and the other with the aim of

enhancing aviation safety through

independent investigation and reporting.

Justice (cont’d)

• To expect to find a single definition of justice may be a

hapless and pompous task.

• What constitutes justice even within natural societies is

subject to profound disagreement. In general, justice is

about identifying to whom rights are owed and to whom

associated duties should be assigned and how much of the

burden of protecting those rights each action with duties

should bear. 16/

16/ Paul G. Harris, World Ethics and Climate Change, (Edinburgh: Edinburgh University Press, 2010), P. 32.

Justice (cont’d)

“The media and politicians demand to know what went wrong and what

is the organisation going to do? There is a clamouring for information

on who made a mistake? Who should be held responsible? Orders for

discovery, freedom of information and legislation means that people

who have already submitted reports of mistakes and safety problems

can fall in the hands of those for whom it was not intended, perhaps a

prosecutor. Here Dekker 17/ talks about the unfortunate operator, say a

pilot or an air traffic controller or a doctor or nurse, whom he refers to

as ‘the view from below’

17/ Sidney Dekker, Just Culture, (Surrey, England: Ashgate Publishing Ltd., 2011)

Justice (cont’d)

“Is justice something that meets legal criteria

(which needs a lawyer) or is justice what

takes difference perspectives, interests,

duties and alternative consequences into

evaluation for which an ethicist may be

needed.” 18/

18/ Sidney Dekker, Just Culture, (Surrey, England: Ashgate Publishing Ltd., 2011)

Munich

The captain, James Thain was held responsible by the German

Ministry of Transport for having not cleared the wings of snow and ice.

However, the real reason the aircraft crashed was established with the

help of the British Airline Pilots Association. Captain Thain appealed,

failing in his first appeal to be absolved of blame and finally being

absolved in 1968. Although not criminally charged, Captain Thain’s

professional life was destroyed and he was dismissed by British

European Airways (BEA), which was considered a gross miscarriage of

justice. 19/

19/ Ronald Hurst, Pilot Error, (London: Crosby Lockwood Staples, 1976) p. 53.

Public Inquiry

In the case of Napoleonic code countries, after an aircraft accident, a

judicial investigation will take place in parallel with a technical

investigation. In common law countries, Commissions of Inquiry are

set up only when there appears to be a public need. It is this element

of ‘gravity’ or ‘public need’ which brings unfortunate publicity upon the

enquiries. Two conflicting interests exist in such a Public Inquiry. The

first is the need to demonstrate to the public that all the facts are

brought forth, and that no individual or organisation, whether State or

commercial, can hide their errors or responsibilities. Secondly, the

general publicity causes heartbreak and misery to the bereaved by the

general and sometimes ghoulish levels of interest. 20/

20/ Hurst, Pilot Error, p. 248.

Criminalisation of Error (cont’d)

“On the topic of the criminalisation of human error flight safety has been

vocal. The focus of our efforts has been on the legal protection of

safety information. Increasingly, voluntarily provided safety information

is being used in court cases, sometimes even trivial cases. We are not

talking about the usual states with lax protection but advanced aviation

nations like Canada and UK. It is one thing to see confidential

information disclosed in the emotional turmoil of a major accident, it is

another to see it casually offered up by the courts in the normal course

of business. The judges rightly point out that there is no protection for

this information under common law or legislation. Even though your

regulator may have agreed to protect information and promised not to

use it against the person who made the report, that promise has no

bearing on anybody else who might want to use it.” 21/

21/ William Voss, AeroSafety Workd, The Journal of Flight Safety Foundation, March 2001, Vol. 6, Issue 2, p.7.

Justice (cont’d)

• “… is a process not a result and truth is not the only goal of a trial, we

want privacy, fairness, equality and finality. Every time we play with the

rules to make it easier to convict the guilty we make it easier to convict

the innocent.” 22/

• Quoting Seamus Heaney, ‘that before any process of renovation we

should take stock and shore up the vital foundations.’ 23/

• Kennedy says that law is the supreme regulator, a civilising force. As

it is put in Hurst, ‘air law is part of general law.’ 24/

22/ Helena Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, (London: Vintage, 2004), p. 30.

23/ Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, p. 30.

24/ Kennedy, Just Law, The Changing Face of Justice and Why it Matters to Us All, p. 30.

Thank You

END