Human Error in Aviation

Human error, in various forms, is a causal factor in the majority of aircraft accidents, incidents, and safety occurrences. Much of the error by professionally trained and licensed operators (Flight Crew, Air Traffic Controllers, and Aircraft/ATC Maintenance Technicians) arises from either the failure to apply standard operating procedures in the way intended or in the making of poor tactical judgements.

Legal Process and Human Error

Air transport must expect to be subject to the same legal process as any other activity. Such legal process should be expected to be entirely separate from accident investigation, and the desirability of entirely open and honest safety reporting during everyday operations. It is in the public interest that those responsible for the safety of air operations should be accountable for their actions. However, it is also in the public interest that the behaviour and actions of those whose actions may have contributed to an accident are fully understood, especially in the wider context of organisational and social culture, and that lessons are learnt and action taken to reduce the risk of future accidents. This requires an open and honest safety reporting and compliance with safety investigations which may not be achieved if those involved are fearful of prosecution.

In recent years, aviation professionals have been more and more concerned with what is considered an increased focus on legal issues in aviation safety occurrences. This has resulted in fear of prosecution and criminal sanctions for information provided in the context of safety occurrences investigations and reports, even in cases where tasks are perceived to be exercised in a responsible and professional manner. While such fears cannot defend a lack of compliance with mandatory reporting systems, they can nevertheless have an impact on the flow of important safety data, and consequently aviation safety.

This lead the way to the development of the concept of “Just Culture”. At the heart of the argument of Just Culture is the underlying principle that there is very rarely any prior intent to be negligent, whether directly or indirectly, on the part of the professionals involved in aircraft accidents and incidents. There is now an identified need to achieve a balance between the needs and responsibilities of judicial authorities and aviation safety.

International Level

Standards and Recommended Practices (SARPS) for the State Investigation of Aircraft Accidents and Serious Incidents are provided by Annex 13 to the Convention on International Civil Aviation (Chicago Convention). Annex 13 invites States to seek a rational relationship between their obligation to promote aviation safety and their administration of justice. Legal guidance regarding the protection of information from safety data collection and processing systems can be found at Attachment E of Annex 13.

European Level

Under EU law, there are regulations dealing with the issue of investigation and reporting. Historically, Council Directive 94/56/EC of 21 November 1994 established the fundamental principles governing the investigation of civil aviation accidents and incidents. This was followed, in June 2003, by Directive 2003/42/EC of the European Parliament and of the Council on occurrence reporting in civil aviation. The intent of Council Directive 94/56 was to transpose under EU law the standards of ICAO Annex 13. With the passage into law of Regulation 996/2010 on the investigation and prevention of accidents and incidents in civil aviation, Directive 94/56 was repealed and replaced by the new legislation. On 20 April 2014 Regulation (EU) No. 376/2014 on the reporting, analysis and follow-up of occurrences in civil aviation came into effect. The regulation, as well as its implementing rule, Regulation (EU) 2015/1018, became applicable on 15 November 2015 and repeals Directive 2003/42/EC of the European Parliament and of the Council, and Commission Regulations (EC) No. 1321/2007 and (EC) No. 1330/2007. It also amends the aircraft accident investigation Regulation (EU) No. 996/2010.

At the EUROCONTROL level, a EUROCONTROL Safety Regulatory Requirement dealing with Reporting and Assessment of Safety Occurrences in ATM (ESARR2) was adopted in 1999.

Those instruments can be used towards the implementation of a Just Culture. However, as those instruments must be first transposed by the States, their implementation as resulted in different national legal frameworks with respect to safety reporting and the handling of safety information.

Current EU Law and Guidance Material:

• Regulation (EU) No 376/2014 of the European Parliament and of the Council of 20 April 2014 on the reporting, analysis and follow-up of occurrences in civil aviation;
• Commission Implementing Regulation (EU) 2015/1018 laying down a list classifying occurrences in civil aviation to be mandatorily reported.
• Guidance material for Regulation (EU) 376/2014 and Regulation (EU) 2015/1018
• Regulation (EU) No 2018/1139 of the European  Parliament and of the Council of 4 July 2018 on common rules in the field of civil aviation and establishing a European Union Aviation Safety Agency, and amending Regulations (EC) No 2111/2005, (EC) No 1008/2008, (EU) No 996/2010, (EU) No 376/2014 and Directives 2014/30/EU and 2014/53/EU of the European Parliament and of the Council, and repealing Regulations (EC) No 552/2004 and (EC) No 216/2008 of the European Parliament and of the Council and Council Regulation (EEC) No 3922/91.

2023 Progress Update

Eurocontrol's Hindsight magazine provided an update on Just Culture progress with its Summer 2023 issue. Articles addressed issues such as barriers to Just Culture and the use of criminal prosecution. One article discussed a "Model for a Transport Prosecution Policy," and said the model "acknowledges that criminal charges should only be pursued in cases where there is a blatant disregard for safety standards or intentional misconduct."

Another article examined Dutch aviation prosecution cases. "The Netherlands is often held up as a beacon of good practice when it comes to Just Culture in the judiciary," the report said. Regarding commercial air transport, the article said, "Prosecution takes place only in the event of an accident, serious incident or endangerment, or persistent violations, caused by intent or gross negligence." The report also noted: "Consumption of alcohol by pilots and crew are the main factor in criminal cases in major commercial air transport."

The article showed that the vast majority of prosecutions in civil aviation during the period from 2020 through 2022 involved unruly passengers (246 cases). This contrasts with only ten cases of prosecutions involving commercial air transport employees or air traffic controllers.

U.S. Level

The U.S. Federal Aviation Administration (FAA) emphasizes the "Just Culture" approach mentioned above. FAA programs encourage voluntary information sharing, and non-punitive responses to honest mistakes. An example is the Aviation Safety Action Program (ASAP), which offers aviation professionals protection from punitive actions, even when clearances and regulations have been violated--as long as the violation was unintentional and voluntarily reported without misrepresentation.

The FAA website says the goal of the ASAP program is to "enhance aviation safety through the prevention of accidents and incidents." The ASAP web page adds that "Its focus is to encourage voluntary reporting of safety issues and events that come to the attention of employees of certain certificate holders."

FAA Advisory Circular 120-66C provides details on the ASAP program. The document lists what it calls the "Big Five" circumstances under which an ASAP report will NOT be accepted. Those involve cases of possible criminal activity, substance abuse, controlled substances, alcohol, or intentional falsification. The reporting process normally begins with a crew member or other employee submitting an online report. This report goes to the relevant Event Review Committee (ERC), typically made up of representatives from an operator's training department and management, along with FAA officials when required. 

Based on the timeliness of the report and other considerations, the ERC will consider whether to accept the report. If the report is accepted, the ERC may recommend counseling or remedial training, but the employee involved does not face loss of job or certificate.

Enforcement Action vs. Compliance Action

The FAA draws a distinction between an enforcement action, such as revoking an airman certificate, and a compliance action, such as counseling under the ASAP program. According to the January/February 2024 edition of FAA Safety Briefing, since October 2015, the FAA has taken more than 44,000 compliance actions to correct safety issues.

Under voluntary reporting programs that lead to compliance actions, pilots can learn from one another's errors. The FAA says it appears these programs contributed to an overall decrease in the accident rate over the past several decades.

Case Studies Involving Prosecution

On September 10, 1976, a McDonnell Douglas DC-9-32 collided with a Hawker Siddeley HS-121 Trident 3B over Croatia, killing 176 people. A Yugoslav air traffic controller received a seven-year prison sentence and was released after serving more than two years.

On November 21, 1989, a British Airways Boeing 747-136 on an instrument approach to London Heathrow Airport deviated to the right of the runway 27R center line. During the missed approach, the aircraft cleared a hotel by approximately 12 ft. According to a news report, the aircraft flew so low it set off car alarms. The captain was convicted of negligently endangering his passengers. He was fined 2,000 British pounds and ordered to pay legal costs of 1,500 pounds, and he had resigned from British Airways after losing his captain's qualification. The captain took his own life in 1992.

On December 10, 1998, a Delta Air Lines Boeing 767 aborted its takeoff roll at Schiphol (Amsterdam) Airport when the pilots observed a towed Boeing 747 crossing the runway in front of them. At the time of the incident, low-visibility procedures were in force. Three air traffic controllers were prosecuted. In the initial court case, a judge ruled one controller was not guilty, but that the other two were. They were sentenced a a fine of about 450 U.S. dollars or 20 days in jail. On appeal in 2002, a court found all three controllers guilty but did not impose any sentence.

On August 6, 2005, an ATR 72-202 crashed into the sea 26 km off Palermo-Punta Raisi Airport in Italy, killing 16 people. The accident took place after a loss of engine power due to fuel exhaustion. An investigation found that the incorrect replacement of a fuel quantity indicator contributed to the accident. News accounts said a court handed down prison sentences for the captain, the first officer, and five other employees of a Tunisian airline. Reportedly, the court said the crew lost time praying out loud instead of following emergency procedures.

Further Reading

• Prosecution of Your Crew Following an Incident in a Foreign Country: Are You Ready for This? Tim Brymer, Aviation & Aerospace Partner Clyde & Co LLP;
• "Criminalizing Accidents and Incidents Threatens Aviation Safety," Dr. Hassan Shahidi, Flight Safety Foundation AeroSafety World, 17 May 2019.

ICAO

• ICAO Doc 9859, Safety Management Manual (SMM), Fourth Edition - 2018 

EUROCONTROL

• Establishment of Just Culture Principles in ATM Safety Data Reporting and Assessment;
• "Just Culture . . . Revisited," Eurocontrol's Hindsight magazine, Summer 2023.

Global Aviation Information Network (GAIN) / Flight Safety Foundation

• A Roadmap to a Just Culture: Enhancing the Safety Environment;

U.S. Federal Aviation Administration

• Advisory Circular 120-66C, "Aviation Safety Action Program," 31 March 2020
• FAA Safety Briefing, January/February 2024, "A Just Culture for Safety"