AATrestores right to fly for pilot who was victim of assault
The Administrative Appeals Tribunal (AAT) recently set aside the decision of the Civil Aviation Safety Authority (CASA) to cancel the medical certificates of a Queensland commercial pilot who had suffered a fractured skull, when he was assaulted while out with friends in March 2013: Daniel Bolton and Civil Aviation Safety Authority [2013] AATA 941 (23 December 2013).
On the evidence before the Tribunal, per Deputy President Hack SC, it was not open to say that Mr Bolton, the 23 year old pilot, had either a “condition” or somesecondary consequence to a head injury, so as to support cancellation of his medical certificates. Mr Bolton suffered a fractured skull, and extradural haemorrhage which was caused by the impact of a punch. The depressed part of the skull was elevated surgically and Mr Bolton recovered well. CASA’s concern was that such an injury carried with it an ongoing risk of post traumatic seizures, which would endanger air safety. Mr Bolton’s contention was that his fracture and haemorrhage did not affect the underlying brain so seizures were not likely to result.
The weight of the accepted evidence supported Mr Bolton’s views – essentially, that there was no present injury, so the Tribunalheld that Mr Bolton met the prescribed medical standard. This conclusion is, in itself, unremarkable. What is remarkable is that this conclusion could have been jeopardised by seemingly minor procedural omissions by the representatives of the parties who were prosecuting the action.
The Tribunal was scathing of both parties for failing to provide expert medical opinions which satisfied the AAT’s Guidelines for Persons Giving Expert and Opinion Evidence (Guidelines). The Guidelines ensure that independent experts are made aware their role is to assist the Tribunal rather than advocate for the party which asked for their expert comment. Under the Guidelines:
9. A person giving evidence based on his or her special knowledge or experience in an area
a.has an overriding duty to provide impartial assistance to the AAT on matters relevant to the person’s area of knowledge or experience;
b.is not an advocate for a party to a proceeding.
Furthermore, written reports prepared for proceedings before the Tribunal must include this declaration:
I acknowledge that I have an overriding duty to provide impartial assistance to the Tribunal. No matters of significance have been withheld from the Tribunal.
While CASA’s medical expert, Dr PooshanNavathe (also CASA’s Principal Medical Officer) did provide a statement which relevantly satisfied the Guidelines, the Tribunal explicitly stated that it would not have regard to his opinions as he was also the relevant decision maker with respect to the cancellation of Mr Bolton’s medical certificates. Thus, he was not truly independent. In addition, the Tribunal considered it highly irregular that Dr Navathe briefed CASA’s other expert (a consultant neurologist) by telephone, and never clearly showed what information was conveyed.
Deputy President Hack’s admonishments aside, the case demonstrates the need for both represented litigants and regulatory agencies to ensure all relevant procedural matters are dealt with in AAT proceedings.
Should the evidence have been different (ie, suggesting more clearly that Mr Bolton did have an injury or condition which should have supported the AAT affirming the cancellation of his medical certificates) then the choice of expert witness for CASA would not just have been more embarrassing, but potentially resulted in an unsafe pilot being returned to the sky, as the Tribunal was not prepared to accept it.
Thankfully, Mr Bolton was found to neither suffer from a condition nor (if he had one) would such a condition be of a kind to endanger the safety of air navigation.