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reasonable man” (Bartsch, 1996:194). The case clearly demonstrated that an air
traffic controller may be held negligent if he or she provides misleading information
upon which the pilot relies and which subsequently causes damage. It also showed
that pilots are not relieved of responsibility to maintain situational awareness by
gathering information from their own eyes, ears and instruments. The Canadian
Pacific crew was found to be negligent in, amongst other things, not paying attention
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to the controller’s instruction, in not querying or seeking confirmation of that
instruction, and in failing to call the surface movements controller promptly after
receiving the instruction to do so (Boughen, 1994).
The United States courts have followed a similar line of reasoning. In Fair v United
States in 1956 the court made it clear that:
when air traffic controllers provided information to pilots, whether or not required to do
so under the circumstances, knowing that the information will be relied upon, the
information must be accurate. If providing inaccurate information becomes a
contributing cause of an accident, government liability will follow. (cited by Bartsch,
1996:195)
A similar conclusion was reached almost 20 years later in Spaulding v United States.
Perhaps most unsettling for controllers and pilots is that the notion of
miscommunication between the Canadian Pacific crew and the tower controller, while
a safety issue, was not an issue in determining legal liability. In a court of law, it is
not necessary for the prosecution to prove anything at all about a controller’s or
pilot’s state of mind at the time of the act—it is enough to establish that particular
actions were carried out in certain circumstances. We can conclude that controllers
must not only issue safe instructions but follow up and ensure that their instructions
are being carried out.
5.2 Duty to Warn of Known Dangers
The duty of controllers to warn of known dangers has been classified by Bartsch
(1996) according to the following situations:
• mid-air collision;
• wake turbulence; and
• weather related accidents.
The controller’s duty to warn of potential mid-air collisions centres on the pilot’s and
the controller’s knowledge of the facts of the traffic situation. In 1975, the Supreme
Court of Western Australia determined the liability of air traffic controllers in Nichols
v Simmonds, Royal Aero Club of Western Australia and Commonwealth. A Piper
Comanche had collided with a Beech Musketeer when both aircraft were turning onto
final approach to the same runway at Jandakot Airport. All parties were found guilty
of negligence or contributory negligence.
This case established that controllers owe a duty of care to pilots and passengers even
in situations where the pilots are generally responsible for their own separation. In
the judgement of Justice Wallace:
In my view, where there is a duty to submit and obey there is a corresponding duty to,
inter alia, warn of danger within the limits of practicability in the performance of the
controller’s duty and having regard to circumstances prevailing in each particular case.
(cited by Bartsch, 1996:198)
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Another important issue arising from the Nichols case was that if a late warning is
given by a controller, as it was here, this would not relieve the controller of liability.
Warnings must be both timely and sufficient to alert the pilot of the extent and
magnitude of the potential danger.
What is important to this paper on miscommunications is that the controller had used
procedures specifically warned against in Airways Operations Instructions (the
forerunner of the Manual of Air Traffic Services). Bartsch (p197) writes that
“whenever damage results from persons deviating from set practices or established
procedures then the onus is on them to show that such deviation was reasonable”.
Because of this deviation from documented procedures, Justice Burt stated that “In
my opinion the negligence of [the air traffic controller] was more culpable than the
negligence of either pilot”. A controller using non-standard phraseologies and words
must, therefore, be vulnerable to legal liability should an accident result from
consequent miscommunication. A controller knowingly violating safe operating
procedures is more culpable because he or she should be aware that it increases both
the likelihood of inducing an error and the chances of bad consequences resulting
from the error.
In 1974 two aircraft collided shortly after take-off at Bankstown Airport, killing two
instructors and two trainee pilots. In Skyways Pty Ltd and Navair Pty Ltd v
　
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