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determined in accordance with the principles of common law where negligence is
conduct falling below the standard demanded for the protection of others against
unreasonable harm. This standard is measured by what the reasonable person of
ordinary prudence would do in the circumstances.
Negligence comprises three elements (Stewart, 1997):
• the existence of a duty of care owed to the plaintiff by the defendant;
• a breach of that duty, or a failure to conform to the standard of care; and
• damages to the person resulting from the breach, provided that there is some
‘relation’ or ‘proximity’ between the parties.
The plaintiff will fail in the action unless damage is proved (of a kind recognised by
law) and it must be caused by the act or omission complained of. For example, we
have the interesting finding in The Public Trustee v The Commonwealth of Australia,
which arose out of the crash of a Beechcraft Super King Air at Sydney Airport in
1980, where the controller was found to be in breach of his duty, but since it made no
difference to the ultimate outcome of the flight, there was no action or inaction on the
part of the controller that contributed to the crash of the aircraft (Boughen, 1994).
The duty of care owed by controllers has been described as being “to take reasonable
care to give all such instructions and advice as may be necessary to promote the safety
of aircraft within their area of responsibility” (Shawcross and Beaumont, 1977, cited
by Bartsch, 1996:192). This duty of care arises because the proximity or closeness of
controllers and pilots is determined by the degree of reliance existing in the
relationship: that is, are pilots reliant upon the acts, advice or information provided by
controllers? “It is difficult to envisage any public authority in which the element of
reliance is more prevalent than it is with the control of air traffic” writes Bartsch
(p189). The apparent paradox that sometimes leads to confusion as to the respective
responsibilities of pilots and controllers has been clarified by Hopkin (1995:28):
35
The pilot is legally responsible for the safety of the aircraft and its passengers. The
controller is legally responsible for the safety of the air traffic control instructions.
The issue of miscommunications, therefore, is at the heart of potential air traffic
controller liability.
Airservices Australia is vicariously liable for any negligent act or omission on the part
of a controller because legislation prohibits an employee being joined as a codefendant
or from being sued by a plaintiff. The relevant document outlining the
duties and responsibilities of air traffic controller is the Manual of Air Traffic
Services which contains instructions detailing communications and phraseologies to
be employed.
Bartsch (1996) defines three main categories of potential liability. These are;
• a duty to provide information that is accurate and not misleading;
• a duty to warn of known dangers; and
• a duty to warn of potential dangers.
Listed in order of increasing uncertainty of outcome, it will be more difficult for a
plaintiff to prove negligence in the latter situations. This due to the difficulty of not
only showing the existence of a duty of care, but of proving that it was subsequently
breached.
5.1 Duty to Provide Accurate Information
In 1975, the High Court of Australia considered the question of whether air traffic
controllers owed a duty of care to pilots (and consequently their passengers) in
Australian National Airlines Commission v Commonwealth and Canadian Pacific
Airways Ltd. On the 29th of January 1971, a Canadian Pacific Douglas DC-8 had
landed at Sydney’s Kingsford-Smith Airport and the pilot had requested permission to
backtrack along Runway 16. The air traffic controller gave the instruction “take
taxiway right” which the pilot mistook for “you can backtrack if you like”. In the
resulting confusion a Trans Australian Airlines (TAA) Boeing 727 was cleared for
take-off on the same runway—due to a hump in the runway the TAA crew were
unable to see the DC-8. The fin and rudder of the DC-8 was torn off in the collision
with the airborne B727’s belly but there were no fatalities (Job, 1992).
The High Court found that both defendants, the controllers and the Canadian Pacific
crew, were negligent with contributory negligence on the part of the TAA crew.
Justice Mason referred to the failure of the air traffic controller to keep a proper look
out and for issuing a clearance for immediate take-off without maintaining adequate
visual and radio observations as being “a serious departure from the standards of a
　
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