CVD pilot wins legal challenge allowing use of Air Transport Pilot Licence Privileges
A full copy of the decision is available HERE.
After a three year legal battle, the Administrative Appeals Tribunal handed down a landmark decision on 20 February 2015 which allows Queensland pilot John O’Brien the ability to be able to exercise his full ATPL privileges, despite having failed all clinical colour vision testing. The result means that he can progress his career from the rank of First Officer to Captain and paves the way for further successful appeals in the future. While there are a few remaining residual restrictions, overall this is a major victory and marks a significant milestone in our campaign.
The Tribunal looked at Mr O’Brien’s 15 year, 6000+ hour flying history and found that he was:
"not likely to endanger the safety of air navigation in the role of Captain"
“his ability to operate aircraft safely with CVD is not in question”
This latest result is now CASA’s third loss in the tribunal on the aviation colour perception standard, after two earlier decisions in the late 1980’s which similarly found that CVD pilots posed no safety risk.
Queensland pilot wins right to captain airliner despite poor colour vision (ABC News 24 Feb 2015)
Further Analysis of the Decision
The Empire Strikes Back thread on PPRuNe has offered invaluable support and commentary on all the twists and turns in this long running legal saga. With over 33 pages of discussion and over 100,000 views, it has provided a focal point for the industry and CVD pilots to be able to share their thoughts and opinions. A recent post by “Creampuff” on the thread eloquently dissects this latest AAT result and analyses what it means in legal terms:
CASA’s submissions and contentions in the O’Brien matter were exactly as would be expected from zealots on a crusade, and it remains to be seen whether Dr Navathe was the chief and only CASA zealot, or merely the chief zealot of a bunch that remain. The Tribunal had little choice but to confine its substantive decision to John O’Brien’s specific circumstances. If CASA puts subsequent applicants through what John O’Brien had to go through, you’ll have your answer. According to CASA, it’s a new and much more complicated and scary world compared to the olden days of the Pape and Denison decisions. According to CASA, there’s a greater awareness of the safety risk posed by pilots with CVD based upon conclusions drawn from accident and incident investigations. Fortunately the Tribunal perceived a rather obvious flaw in these contentions – obvious, at least, to someone who’s objective:
“It is significant that in all of those years when many pilots with various forms of CVD have flown there has been little research made available to us upon which that contention was based.”
CASA’s submission was that the CAD test is “a simulation of an aspect of a task required in an operational situation”. However, CASA had little choice but to concede, in its submissions, that the expert they called had acknowledged that the CAD test “does not simulate an aviation task”. But that concession was only in a footnote in the submissions. In my opinion, downplaying inconvenient truths isn’t the behaviour of an organisation with a properly calibrated moral compass.More importantly in my opinion, CASA’s submission was also that even if the CAD test is not one that can reasonably fall within the description of a test that “simulates an operational situation” in terms of CASR 67.150(6)(c):- the AAT does not have jurisdiction to review CASA’s decision to determine the CAD test for the purposes of CASR 67.150(6)(c); and- the Applicant still hasn’t passed any of the prescribed tests.In other words, CASA said that even if the CAD test does not simulate an operational situation as required by the law: Too bad; too sad. The AAT cannot do anything about it and the Applicant’s career certainty, and other people in like circumstances, can go hang.My opinion is that these are not the submissions of an organisation with a properly calibrated moral compass. I ask myself: What would I do if I were working in CASA and I were considering the question: “What if we have this wrong and the CAD test is not a test that simulates an operational situation in terms of CASR 67.150(6)(c)?” I would have a cold chill down my spine, because I would be wondering how much stress might have been caused, and how many careers might have been put in disarray, if CASA has it wrong.I would have this nagging feeling that perhaps the operational reality of the tens of thousands of hours flown safely in fact by pilots with colour vision deficiencies may mean that they are being treated unfairly by not having the chance to demonstrate compliance with the colour vision standard through the administration of a test that does simulate an operational situation, as stated in the law.I would wonder what valid objection there could be to setting a test that simulates a real aviation situation in which the identification of the meaning of lights that happen to be coloured was a safety-critical activity, to see if the applicant could manage the situation as safely as his or her colleagues without CVD. I would be submitting that if the AAT came to the view that the CAD test does not “simulate an operational situation” in terms of CASR 67.150(6)(c), I would be acting immediately to determine a proper test and reducing the stress and uncertainty for pilots and aspiring pilots, whether or not the AAT had jurisdiction to review the decision. That would seem to me to be the fair and honourable thing to do.But that’s just me. It is fascinating to read CASA and its experts’ convolutions to avoid the inconvenient truth that John O’Brien has no problems with PAPI approaches and other tasks in reality. Some highlights from the Tribunal’s decision:
The information obtained by CASA from [CAD] testing of Mr O’Brien is little more than that to which they were already aware, having had the diagnosis of protanopia confirmed in previous tests.
In their paper 2006/04, the UK CAA identified two tasks as being the most safety critical, demanding of colour vision and without redundancies. These were the coloured red green parking lights for positioning a plane at an aerobridge and the PAPI lights. … Mr. O'Brien pointed out that he had no trouble seeing these lights and in any case, explained that most airports are now moving to a different system which involved symbols instead of colour. [My comment: Whoops, how inconvenient - first-hand evidence of facts. Perhaps the aviation colour environment is becoming simpler, not more complex...]The UK CAA also decided that the PAPI lights were the more demanding and more safety critical of the two and decided to set the performance criteria of their new CAD on successful performance by subjects in a simulated PAPI test.
The evidence of Professor John Barbur is that the PAPI is the most appropriate test of colour recognition for pilots as it is very demanding in terms of colour vision and there is little or no redundancy in that system which is, in essence, a redundant system to the primary systems in any event.Professor Barbur’s evidence was clear and it seemed to be accepted by the experts from CASA and by Associate Professor Geoffrey Stuart.
There was some disconnect in the evidence of Professor Barbur. Initially he said pilots who pass the CAD test or just missed out should be given the PAPI test but later said that pilots who fail the CAD test should be excluded in terms of pilots.
The evidence of Mr O’Brien was that he has never had difficulty identifying the PAPI light guidance throughout his years of flying; he said he had never incorrectly identified the lights. [My comment: Whoops, more inconvenient first-hand evidence of facts.] The concern raised by CASA was in the context of low visibility close to the runway, such as in the FedEx accident or at 5 km. This is in the context that the PAPI is an additional aid to the primary system within the aircraft, and presumably an aid to a pilot’s visual identification of the runway during approach and landing. [My comment: I’ll return to the FedEx accident later.][After 8 more paragraphs of analysis of the various theories and positions of various experts, we come to this rather startling turnaround:]
Professor Barbur and others urged us not to become overly focused on the PAPI test, reminding us that there are many other colour demanding tasks for the pilot.
In other words, if a candidate with CVD passes “the most appropriate test of colour” - the PAPI test – we should just forget that and look over there at all those confusing colours.It’s almost as if they’ve decided the outcome, and they just move the goal posts as necessary to achieve that outcome. There’s a word for that.This was my favourite bit on this issue:
Professor Barbur also pointed out that performance on the PAPI test could be variable amongst subjects for reasons other than their level of CVD. Some examples of these variables include:(a) Experienced pilots may perform better because they have learnt to use cues such as luminance differences between the reds and whites of the test and there is also a natural variability between subjects in their ability to do this. …
You see: There has to be explanation for the inconvenient truth of candidates passing the test, and it cannot be that the candidate performs just as well as someone without CVD. A couple of CASA FOI’s gave written evidence about how confusingly colourful modern cockpits have become and the scary situations in which complete power failures on the ground have resulted in control towers having to use light signals. At this point of the submissions I thought: At last! Someone from CASA is going to provide some factual evidence about the actual performance of actual pilots with CVD in these real-life circumstances. Perhaps, at last, someone from CASA was going to provide first-hand evidence of the substantially slower performance of pilots with CVD, compared to pilots without CVD, in these confusingly colourful modern cockpits. First-hand evidence to show that despite the design and redundancy of these modern cockpits, and despite their training and experience, pilots with CVD are substantially slower and less effective and efficient than their non-CVD colleagues in those cockpits. Things called “facts” about the performance of CVD pilots in a thing called “reality”. Perhaps, at last, someone from CASA was going to provide evidence of the actual mayhem caused when pilots with CVD were thrust into circumstances in which a control tower could not communicate through VHF and the CVD pilots were unable to arrange separation with other aircraft, use other means of communication with the tower (mobile phone/sat phone), see whether a runway is clear to land and otherwise operate safely. Things called “facts” about the performance of CVD pilots in a thing called “reality”.But, so far as I can tell, no first-hand evidence of those facts was provided by CASA.Now to the FedEx accident.A copy of the NTSB report of the investigation into the FedEx accident is here: http://asndata.aviation-safety.net/r...722_N497FE.pdf. The Executive Summary states, among other things, that (my bolding):
The National Transportation Safety Board determines that the probable cause of the accident was the captain’s and first officer’s failure to establish and maintain a proper glidepath during the night visual approach to landing. Contributing to the accident was a combination of the captain’s and first officer’s fatigue, the captain’s and first officer’s failure to adhere to company flight procedures, the captain’s and flight engineer’s failure to monitor the approach, and the first officer’s color vision deficiency.
I’d commend the entire report. I’d just note a couple of paras of the Analysis, at pages 53 and 55, bolding mine:
During postaccident interviews, all three pilots reported observing red and white lights on the PAPI display, consistent with normal PAPI operation. [My note: the Flight Engineer was a qualified pilot on type. Hence the reference to “all three pilots”.] Although the flight engineer and captain reported seeing a pink PAPI signal on one of the four PAPI lights at some time during the approach, they also reported seeing red and/or white lights (which would have provided appropriate glidepath guidance) at the same time.
In postaccident statements, the flight crew and ground observers indicated that there were no obstructions to visibility along the approach path. However, the comments made by the first officer (“gonna lose the end of the runway”) and captain (“disappear a little”) suggest that they may have encountered a temporary obstruction to visibility (for example, clouds or mist) as they approached runway 9. If such an obstruction existed, it may also have obscured the PAPI lights. Although a temporary obstruction might help explain the flight crew’s failure to recognize the PAPI guidance while that obstruction was present, it does not explain why the three pilots failed to recognize the presence of four red PAPI lights throughout the rest of the approach. Further, according to FedEx procedures (and FAA regulations), if the approach end of the runway became obscured at any time during the visual approach, the pilots should have performed a go-around.
Who reckons the FedEx accident would not have happened if the first officer had had no CVD?
CASA’s crusade on CVD is, objectively, a focus on the easy trivia at the expense of dealing with the substantial and far greater risks to aviation safety. Easy targets versus hard problems.Of course, it makes no difference to CASA, because they get paid the same either way.