Safety of Air Navigation Trumps Unreasonable Delay
In the case of Eagle v Civil Aviation Safety Authority  FCA 1016, the Federal Court found that the Civil Aviation Safety Authority does not have a duty to act without unreasonable delay when granting licences, permissions or approvals. Carneys Aviation lawyer Bradley Hayward considers the implications of the decision.
Case Note – Eagle v Civil Aviation Safety Authority  FCA 1016
In this case, the Applicant was the aptly-named Mr Eagle (the ‘pilot’), who was employed as an airline captain. In January 2010, the pilot was diagnosed with a safety-relevant medical condition. CASA issued the pilot with a new Medical Certificate, Class 1, in March 2010. In October 2010, the pilot applied for the certificate to be renewed. After undergoing further tests for his condition in May, August and November 2011, the pilot was cleared of the medical condition. A further case conference occurred with CASA in March 2012, following which CASA indicated its intention to issue the pilot with a Medical Certificate. The certificate was finally issued in April 2012.
The pilot claimed that CASA owed him a duty to avoid unreasonable delay in making a decision about whether or not to grant his application for a Medical Certificate. The claim was made on two grounds:
- That CASA breached a statutory duty to avoid unreasonable delay; and
- That CASA breached a common law duty, as in the tort of negligence, to avoid unreasonable delay.
A person may apply to CASA for the issue of a Medical Certificate: CASR 67.175. Under CASR 67.180(2), CASA must issue a person with a Medical Certificate if:
(a) the applicant has undergone any relevant examinations that, in the opinion of CASA, are necessary in this particular case; and
(i) the applicant meets the relevant medical standard; or
(ii) if the applicant does not meet that medical standard – to the extent to which he or she does not meet the standard is not likely to endanger the safety of air navigation.
The captain (or ‘pilot-in-command’) of an air transport aircraft must hold an Air Transport Pilot Licence (ATPL): CAR 5.166 (note this has now been superseded by CASR 61.665). The ‘relevant medical standard’ for the holder of an ATPL is ‘Class 1’: CAR 5.04(3)(a) (note this has now been superseded by CASR 61.415(1)(a)). However, the general rule applying to any authorisation issued by CASA is set out in CASR 11.055(1), which provides that CASA may issue an authorisation only if ‘granting the authorisation would not be likely to have an adverse effect on the safety of air navigation’.
A statutory authority can be subject to a duty of care when performing its statutory duty: Sutherland Shire Council v Heyman (1985) 157 CLR 424. However, the duty of care must be considered in light of the statutory provisions under which the authority operates: Stuart v Kirkland-Veenstra (2009) 237 CLR 215 at 254 per Gummow, Hayne and Heydon JJ. Where a duty of care would give rise to inconsistent obligations, it must be considered that the duty of care does not exist: Sullivan v Moody (2001) 207 CLR 562.
For CASA, the relevant statutory context is its obligations under the civil aviation legislation. Specifically, CASA has an obligation under s 9A(1) of the Civil Aviation Act 1988 (Cth), which states:
In exercising its powers and functions, CASA must regard the safety of air navigation as the most important consideration.
Reasoning of the Court
In relation to the claim for breach of statutory duty, Justice Bennett considered that s 9A(1) does not necessarily imply any requirement as to the timing of the issue of certifications. CASA has an obligation to issue a Medical Certificate to an applicant only if it is satisfied that the applicant meets the criteria specified in CASR 67.180. Included in that obligation is to be satisfied either that the applicant has no medical condition that is ‘safety-relevant’, or, if such a condition exists, that granting the Medical Certificate would not adversely affect the safety of air navigation.
The implied duty supposedly owed to the pilot would be in direct conflict with the statutory duty to regard the safety of air navigation as the most important consideration. This means that an implied statutory duty to avoid unreasonable delay cannot exist in this case, as it is in conflict with the express statutory duties set out in the Act and the Regulations to give regard to the safety of air navigation.
Turning to the alleged common law duty, Bennett J said (at ) that CASA owes duties to maintain, enhance and promote aviation safety to the public generally, not to any individual personally. Justice Bennett also noted (at ) that ‘[t]he private interests of persons in the position of the pilot may commonly be inconsistent with the statutory imperative to place air safety first’. Her Honour continued:
If the proper pursuit of CASA’s duties and responsibilities resulted in actual or perceived “delay” in the making of a favourable decision for a particular applicant, being the medical certification by reason of its pursuit of a deliberative process, there can be no relevant duty to ensure that the process is attended to expeditiously in order to satisfy the interest of an applicant in obtaining medical certification where CASA was required to satisfy itself that the statutory requirements of reg 67.180 read with reg 11.055 had been met.
The application was struck out on the ground that the pleading failed to disclose a reasonable cause of action.
The aviation industry relies heavily upon the licences, authorities, permissions and approvals issued by CASA in order to carry on its business. Delays in the processing of applications can be costly for individuals (e.g., pilots, engineers, and air traffic controllers) and businesses (e.g., airlines, general aviation operators, and maintenance and repair organisations) whose livelihood depends upon the regulatory approval to operate. It is accepted that this financial pressure exists, but even those in the industry would agree that it is a good public policy that does not allow these pressures to compromise the safety of air navigation.
Whilst it may appear at first glance to do so, this decision does not entirely remove the responsibility of CASA to act expeditiously. The possibility remains, as Bennett J said (at ), that ‘there may be a common law duty of care owed by CASA in some circumstances’. It is just that those circumstances did not arise in this case. A common law duty might arise, for example, in circumstances where the administrative delay itself is a threat to aviation safety.
CASA should, and indeed must, avoid delays where the delay itself would adversely affect the safety of air navigation. This means that CASA should be aware that the livelihood of the applicant (whether it is an individual or an organisation) often depends upon the timely processing of the application. Where delays cause undue financial stress, that stress itself may prejudice the applicant’s ability to ensure a safe operation, and thus may be adverse to aviation safety. Whilst this case demonstrates that the safety of air navigation is always of the utmost importance, there is no excuse for CASA allowing ‘safety’ to become a mask for inefficiency.
Operators and aviation personnel should take fair warning from this decision, however, to ensure that any application for renewal of a licence, authority, permission or approval they hold should be made in adequate time to allow CASA to give full consideration to the interests of the safety of air navigation in granting the approval. CASA will not necessarily be responsible for any financial loss suffered by an individual or an aviation business as it considers those issues, because the applicant’s interests are, by law, to be considered of lesser importance than the overriding consideration of air safety.
Author: Bradley Hayward, Solicitor