Decisions

TATC File No. W-3112-33
MoT File No. SAP-5504-53845 P/B

TRANSPORTATION APPEAL TRIBUNAL OF CANADA

BETWEEN:

Thomas Finbar Murtagh, Applicant

- and -

Minister of Transport, Respondent

LEGISLATION:
Aeronautics Act, R.S.C. 1985, c. A-2, s. 7.7
Canadian Aviation Regulations, SOR/96-433, s. 602.01

Reckless or Negligent Operation of Aircraft, Endanger or be likely to Endanger Life or Property, Defence of Necessity


Review Determination
Tracy Medve


Decision: September 16, 2005

I confirm the decision of the Minister of Transport contained in the Notice of Assessment of Monetary Penalty. The monetary penalty is reduced from $1,000.00 to $750.00. This amount is to be made payable to the Receiver General for Canada and received by the Tribunal within thirty-five days following service of this determination.

A review hearing on this matter was held Friday, August 5, 2005 at 10:00 hours, at the Federal Court of Canada, in Calgary, Alberta.

INTRODUCTION

By Notice of Assessment of Monetary Penalty dated January 18, 2005, the applicant, Mr. Thomas Finbar Murtagh was assessed a fine in the amount of $1,000.00 pursuant to section 7.7 of the Aeronautics Act on the following grounds:

That you did, on or about the 2nd day of June 2004, at or near Biesecker, Alberta, operate an aircraft, to wit a Cessna 150B, Canadian registration C-FNSC, in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person, specifically, you exited the existing circuit and made a hard right turn on right base for runway 16 ahead of the aircraft you were following, thereby committing a violation of section 602.01 of the Canadian Aviation Regulations.

The applicant requested a review hearing which request was received by the Tribunal on January 27, 2005.

THE EVIDENCE

The Minister's representative called four witnesses. The first witness, Mr. Roger LeBlanc was, at the time of the alleged incident, a Civil Aviation Inspector, Transport Canada Aviation Enforcement, based in Calgary, Alberta. Mr. LeBlanc testified that the applicant, Mr. Murtagh, had made several complaints about Para Aero Services conducting illegal (i.e. left-hand) circuits at Biesecker airport. During interviews in connection with Mr. Murtagh's complaint it was alleged that Mr. Murtagh had flown his aircraft towards a jump aircraft on June 2, 2004. Mr. LeBlanc also testified that following interviews with Mr. Murtagh, Ms. Leslie Wheeler, a flight instructor for Westpoint Air Training College, who had been giving flight instruction at the Beiseker airport on the date in question, and Mr. Jesse Hofer, her student, the Minister elected to issue the Notice of Assessment of Monetary Penalty to Mr. Murtagh in connection with the incident of June 2, 2004.

Mr. LeBlanc presented as an exhibit a certified true copy of the Certificate of Registration for a Cessna 150B, registration C-FNSC, indicating Mr. Murtagh as the registered owner. He also presented the Aircraft Journey Log for aircraft registration C-FNSC evidencing a flight by Mr. Murtagh on June 2, 2004, at Biesecker airport.

The next witness presented by the Minister's representative was Mr. Brett Robison, at the relevant time employed as a pilot by the Skydive Ranch in Beiseker. Mr. Robison testified that on the date in question he was flying parachute jumpers using a Cessna 206 (registration "SGW") to the east side of the Beiseker aerodrome and using left-hand circuits for Runway 16 in contravention of procedures published in the Canada Flight Supplement requiring right-hand circuits for Runway 16. Transport Canada charged Mr. Robison for this violation and Mr. Robison paid the imposed fine.

Mr. Robison testified that around mid-day on June 2, 2004 he had been carrying jumpers to the east side jump area and had been in regular communication on Unicom frequency 123.2 with aircraft registration QTR which was performing touch and go circuits at the Beiseker aerodrome. During the circuit which is the subject matter of today's hearing, according to Mr. Robison the understanding between him and the pilot of QTR was that Mr. Robison would be number 1 for landing and QTR would be number 2 for landing.

Mr. Robison said that at about this time he heard a call from aircraft NSC which he understood to be in-bound to Beiseker from the west. Mr. Robison testified that he made two radio calls to NSC advising of his left downwind for runway 16 and stated his intention for a left-hand turn onto 16, followed by a third radio call on his base leg. None of these calls were acknowledged by NSC. Mr. Robison testified that while he was turning onto left base for 16 he spotted aircraft NSC at his 11 or 12 o'clock position turning a hard final for runway 16 from right base. At this point Mr. Robison indicated that the pilot of NSC established radio contact accusing Mr. Robison of cutting him off. Mr. Robison felt he was in a threatening situation and took evasive action by adding power, overshooting and doing a right turnout to the east. After levelling off Mr. Robison said he saw NSC break out of the circuit to the right and head west. He then saw aircraft QTR who was on his approach for landing. After two or three attempts Mr. Robison established radio contact with and advised NSC that he, Mr. Robison, would be number 2 for landing behind Mr. Hofer. NSC acknowledged the radio call. After landing Mr. Robison taxied off the runway.

Mr. Jesse Hofer was the Minister's third witness. He was the student pilot flying aircraft QTR, a Cessna 172, on the date in question. Mr. Hofer and his instructor, Leslie Wheeler, had come from Calgary for the purpose of conducting touch and go circuits at Beiseker. Mr. Hofer had been briefed regarding the jumpers to the east of the runway and was advised by Ms. Wheeler that it was a professional courtesy to let the jump aircraft do left- hand circuits onto runway 16. Mr. Hofer testified that he had been conducting right-hand touch and go circuits with SGW in the circuit doing left-hand turns for about 45 minutes when NSC radioed to advise he was joining the right-hand circuit. The two pilots agreed that Mr. Hofer would be first in the right-hand circuit followed by NSC. After communicating with NSC Mr. Hofer indicated he was then in contact with SGW who was on the downwind leg left for runway 16. The two pilots established that SGW would make his turn sooner than Mr. Hofer and agreed that Mr. Hofer would do an extended downwind leg to permit SGW to land ahead of him. This would place SGW first in the circuit, QTR second and NSC third. At this point, NSC was behind Mr. Hofer's aircraft. Mr. Hofer did not provide testimony as to whether he communicated with NSC regarding the change in landing sequence.

When Mr. Hofer was making his right-hand turn onto base he noticed that NSC was flying parallel to him on a base leg nearer to runway 16 putting NSC ahead of Mr. Hofer in the landing sequence. At that point Mr. Hofer elected to do a 360_ left turn as he thought there was going to be a conflict between NSC and SGW. While completing his turn he indicated all three aircraft were in communication and had agreed that he was first for landing, SGW was second and NSC third.

The Minister's final witness was Ms. Wheeler who testified that after conducting a pre-flight briefing and the requisite circuit checks on Mr. Hofer at Beiseker she was dropped off on the taxiway to permit Mr. Hofer to do solo touch and go circuits. She indicated that there was a NOTAM in effect for Beiseker advising of the parachute jumping on that day which NOTAM was discussed with Mr. Hofer during the pre-flight briefing.

She confirmed that after Mr. Hofer had been conducting circuits for about 40 minutes she noticed an aircraft coming from the southwest while Mr. Hofer was on his crosswind leg. She also confirmed that this aircraft (later confirmed by her as NSC) joined the circuit, with adequate separation, after Mr. Hofer had commenced his downwind leg. She observed Mr. Hofer do an extended downwind leg (estimated at ½ to ¾ of a mile) and noticed NSC do a steep right turn ahead of Mr. Hofer putting the two aircraft on parallel bases. NSC was about ¼ mile from the runway and at about 1,000 feet elevation with no apparent flap deployment. At this point she also noticed SGW coming from the right- hand side of the runway, behind aircraft NSC, starting a left-hand turn onto final. She estimated SGW was only about 100 to 200 feet behind NSC and that she saw the flaps deployed. Then NSC made a continuous right-hand turn and headed northwest of the runway instead of continuing on final. She then saw SGW heading eastbound and observed Mr. Hofer conduct a 360-degree turn and continue on a long final to complete a touch and go. This was followed by SGW landing and exiting the runway. About four or five minutes later she observed NSC land and taxi off to the private hangar area.

Mr. Murtagh testified on his own behalf. He said that he approached Beiseker airport on the date in question from the south and joined the right downwind leg for runway 16. He indicated that aircraft QTR was about ¾ of a mile ahead of him once he joined the circuit. Mr. Murtagh confirmed that he elected to make a hard right turn onto base ahead of QTR because he was seriously low on fuel. He testified that he was in the process of telling Mr. Hofer he was turning right base when he was interrupted by SGW with a call that SGW was turning left base. Mr. Murtagh did not say whether he responded to SGW's radio call or not. Mr. Murtagh said that until he saw SGW on left base he was not aware that SGW was on the field and that he had not heard any previous radio calls from Mr. Robison.

Mr. Murtagh then made a 270_ right turn to the northwest instead of following normal overshoot procedures because he was concerned about running out of fuel and having to land west of the runway which contained obstacles and terrain which would be hazardous to landing. During his turn out he experienced loss of power. He confirmed that he was still at about 1,000 feet when he saw SGW and decided to take evasive action as they were within 200 to 300 feet of one another. However, he did indicate that SGW was ahead of and below him, not above and behind as reported by Ms. Wheeler. He testified that he did not catch sight of SGW until he was starting his westbound turn – on cross- examination, he said he turned before seeing SGW because he did not know where SGW was – but he testified that he knew he was in conflict with SGW.

Mr. Murtagh confirmed that he at no time declared a fuel shortage to the other aircraft in the circuit. Mr. Murtagh's evidence was that his aircraft was not level when it was being refuelled which caused a 12-minute shortfall in the amount of onboard fuel. He testified that he did not tell Inspector LeBlanc about the fuel shortage during his investigation of this incident because he did not want to be charged for being low on fuel.

ANALYSIS AND FINDINGS

The Notice issued by the Minister alleges that Mr. Murtagh's act of exiting the existing circuit and making a hard right turn on right base for runway 16 ahead of QTR was a violation of CAR section 602.01. Section 602.01 states that "No person shall operate an aircraft in such a reckless or negligent manner as to endanger or be likely to endanger the life or property of any person." There is nothing in the charge to indicate the specific nature of the danger so it would be reasonable to presume that the danger was in connection with aircraft QTR as there was no mention of aircraft SGW. Since there was no evidence presented that Mr. Murtagh caused or was likely to cause any endangerment to aircraft QTR, whom he was following, it could be said that the Minister has not proven its case.

The evidence presented focussed on the conflict between Mr. Murtagh's aircraft and aircraft SGW. Although Mr. Murtagh did not raise this as an issue at the review hearing, if it had come up the question would be whether Mr. Murtagh had been misled or prejudiced in his defence by the faulty charge. In light of Mr. Murtagh's apparent preparation to deal with the matter of the conflict with aircraft SGW during the hearing, it is reasonable to conclude that he was not misled or prejudiced and that the charge, therefore, is valid.

It remains now to determine whether the Minister has proven the elements of the alleged offence.

For the most part, the testimony of the witnesses called by the Minister's representative was consistent and they corroborated each other with only the kind of variations one would expect given their disparate vantage points and the passage of time. The relevant portions of their testimony, which were either confirmed or not disputed by Mr. Murtagh were as follows:

a. Mr. Murtagh was the pilot flying NSC on June 2, 2004 at Beiseker airport;

b. Mr. Murtagh entered the right-hand circuit for runway 16 behind aircraft QTR;

c. Mr. Murtagh and the pilot of QTR agreed that Mr. Murtagh would land after QTR; and d. Mr. Murtagh elected to make a right-hand turn ahead of Mr. Hofer which would have put him in the landing sequence ahead of Mr. Hofer.

These elements of the offence are therefore proven and the next question is whether Mr. Murtagh's actions were reckless or negligent and, if so, did those reckless or negligent actions endanger or were they likely to endanger the life or property of any person.

I will address the reason why Mr. Murtagh chose to make a right-hand turn onto right base ahead of QTR in the circuit in more detail further in this decision. At this point, however, we need look only at what he did and determine whether his actions were negligent or reckless. To make this determination we need to consider the meaning of these two words and there are several Tribunal decisions which we can turn to for guidance in establishing a definition.

In general, recklessness can be described as conduct which shows deliberate disregard of or indifference to the consequences of one's own actions under circumstances involving risk or harm to life or property. Negligence is conduct falling below the standard required for the protection of others against reasonable harm. That conduct must be viewed in light of what a reasonable and prudent pilot would do in the circumstances.[1]

The Canadian Law Dictionary, referred to in Newburg,[2] contains the following definitions:

Negligence: Negligence is the omitting to do something that a reasonable man would do or the doing [of] something which a reasonable man would not do. ... It is really the absence of such care as it was the duty of the defendant to use. ... The care taken by a prudent man has always been the rule laid down – a regard to caution such as a man of ordinary prudence would observe.

Reckless: Marked by a lack of proper caution; careless of the consequences. In some cases the term insinuates more than carelessness, even going as far as to imply wilfulness. In this context the meaning may be indifferent to the consequences, mindless, not caring; very negligent; advertent negligence where the consequence was foreseen as possible but not desired. Reckless means grossly careless. The doing of something which in fact involves a risk, whether the doer realizes it or not.

Based on the following points of evidence, I find that Mr. Murtagh was negligent:

a. Mr. Murtagh testified that he did not know Mr. Robison's aircraft was in the area and that he did not hear Mr. Robison's radio calls on the Unicom frequency. It is presumed that if he did know of SGW's presence he would have been able to avoid putting himself in conflict with SGW. This contention is not supported by the evidence and for several reasons I do not find Mr. Murtagh to be credible on this issue. It is clear from the testimony of the Minister's witnesses that they were in regular radio contact with one another on Unicom frequency 123.3. QTR and SGW had been in constant contact during an extended period of time while QTR was doing touch and go's and SGW was carrying jumpers to the area east of the airport. NSC and QTR had been in contact prior to and upon NSC entering the circuit. Mr. Murtagh was able to make radio contact at the point of conflict with SGW. Following the incident the aircraft were all in contact with one another. Mr. Murtagh knew, and had complained about, jump aircraft doing left-hand circuits at Beiseker. A NOTAM had been filed indicating jumpers in the area that day. All would suggest that Mr. Murtagh knew or should have known that a jump aircraft was in the vicinity and should have been more diligent about establishing where it was and ensuring his own position and intentions were clearly communicated.

b. Mr. Murtagh did not broadcast that he was worried about being low on fuel even though he did testify that he had been in contact with QTR in the circuit. This seems a very imprudent omission. Had Mr. Murtagh declared his fuel issue on the Unicom frequency all the aircraft in the circuit would have been aware of his predicament and could have adjusted their circuit pattern to accommodate his requirement to land as soon as possible.

There is no evidence to suggest that Mr. Murtagh intended to create a conflict with Mr. Robison's aircraft. Therefore, I do not find his actions amounted to recklessness. However, his decision to attempt a landing in the fashion indicated clearly falls within the realm of negligence if we accept that negligence is conduct falling below the standard required for the protection of others against reasonable harm.

Having found that Mr. Murtagh was negligent it is necessary to determine whether the Minister has proven that Mr. Murtagh's actions endangered or were likely to endanger the life or property of any person.

Although there are variations in the evidence as to exactly where Mr. Murtagh was in relation to Mr. Robison when they took their respective evasive actions, the important point of consistency in the evidence is that the two aircraft were close enough to one another at one point that all the pilots felt compelled to take evasive action to avoid a possible conflict between NSC and SGW. Therefore, I find that the evidence supports the allegation that Mr. Murtagh's actions endangered or were likely to endanger both the aircraft and Mr. Robison.

THE APPLICANT'S DEFENCE

Having established that the Minister has proven, on a balance of probabilities, all the elements of the offence as alleged the burden shifts to Mr. Murtagh to establish his defence that it was necessary for him to make an early landing because he was seriously low on fuel. The issues are whether the defence of necessity (or duress of circumstances) is available to Mr. Murtagh and whether Mr. Murtagh met the tests for the applicability of this defence.

The defence of necessity can only be established if three tests are met: First, there is the requirement of imminent peril or danger; second, there must have been no reasonable legal alternative to the course of action the applicant undertook; and finally, there must be proportionality between the harm inflicted and the harm avoided (R. v. Latimer).[3] The Tribunal has previously adopted this defence as being available to applicants in Minister of Transport v. Rice,[4] as follows:

The defence of necessity arises from the common law and remains available to document holders. Typically, circumstances giving rise to the defence of necessity require that the exigencies of the circumstances in which the pilot finds himself are so urgent that steps are required to be taken to avoid the danger that would result from inaction or delay. The factors being considered would become increasingly urgent with time, delay thus giving rise to dangers which become increasingly imminent. In such circumstances, it would be imprudent for the person responsible to delay any action to avert the danger.

Firstly, the issue becomes one that involves a consideration of the circumstances which are present at the time when the decision is made. However, the defendant in such circumstances cannot be found to have been negligent in preparing himself for the intended flight, to the extent that the dangers could have been avoided with planning, which would be considered prudent by an enlightened aviation community.

Secondly, when it appears that compliance with the law was demonstrably impossible and that violation was inevitable or unavoidable, the trier of fact must determine whether or not there was any opportunity for an alternative course of action which did not involve a contravention of the regulations. Often when exigencies arise, this is exactly the position in which the pilot-in-command finds himself. For example, it could be as a result of an engine failure in powered flight, or encountering weather conditions which were not foreseeable at the time the flight planning took place. It is essential to look at the hazards arising during the course of a flight to which the pilot-in-command may have contributed.

Collateral to this finding of fact is the question of whether or not the hazards to flight safety caused by the contravention were less serious than the hazard posed by complying with the law. That is, by breaking the law (i.e. landing on a surface within a built-up area), were the potential consequences acceptable, in view of the potential for the risk to human life in the attempt to avoid the contravention (that is, not landing and proceeding into the darkness)?

It is trite to say that the document holder who creates or takes a risk which gives rise to the danger cannot avoid liability for a contravention committed in the escape from that danger.

Mr. Murtagh's evidence was that he was low on fuel and that during his steep turn in the circuit to land ahead of QTR he experienced "power loss". This would support Mr. Murtagh's contention that he was "seriously low on fuel" and was in imminent danger of having an engine failure and having to perform an emergency landing. However, he also confirmed the testimony of the three witnesses for the Minister that he implemented an evasive action and flew for several minutes to the northwest prior to actually landing. Consequently, the imminence of the danger is not supported by the undisputed evidence. Based on this finding, it is not necessary to explore whether the other elements of the defence were met by the circumstances.

CONCLUSION

Based on the foregoing, I would confirm the decision of the Minister of Transport contained in the Notice of Assessment of Monetary Penalty.

This is Mr. Murtagh's first offence. I have been troubled by the fact that, although common practice, Mr. Robison was conducting circuits in contravention of procedures contained in the Canada Flight Supplement. If Mr. Robison had been in the right-hand circuit the close call event of June 2, 2004, may not have occurred. Mr. Robison testified that he paid a fine of $250.00 for this contravention and therefore, in recognition of what could be considered contributory negligence, I hereby reduce the magnitude of Mr. Murtagh's fine to $750.00.

September 16, 2005

Tracy Medve
Member
Transportation Appeal Tribunal of Canada


[1] Decicco v. Minister of Transport, appeal determination, [1998], C-1316-02.

[2] Newburg v. Minister of Transport, review determination, [1993], O-0415-02.

[3] R. v. Latimer [2001] 1 S.C.R.

[4] Minister of Transport v. Rice, review determination, [1993], 0382-33.