The Just Culture Principles in Aviation Law by Francesca Pellegrino

Author:Francesca Pellegrino
Language: eng
Format: epub
ISBN: 9783030231781
Publisher: Springer International Publishing

In this case, reference is made expressly to ‘wilful misconduct’ or to such default that is considered to be equivalent thereto, i.e. ‘gross negligence’.

From a terminological point of view, it may primarily be interesting to draw attention to the definition contained in the Glossary of terms, attached to the document ‘Explanatory material on ESARR 2 Requirement’,27 issued by Eurocontrol, where, consistently with the common meaning, ‘gross negligence’ is defined as “any action or an omission in reckless disregard of the consequences to the safety or property of another”.

This technical-legal document, containing safety regulatory requirements, also defines ‘(ordinary) negligence’ as follows: “where there is a duty of care and a person fails to exercise such care, skill or foresight as a reasonable person in that situation would exercise”. The differences between the two concepts are based on the seriousness of unsafe conduct and are applicable to both civil and criminal proceedings.

It is interesting to recall the position of Eurocontrol on this subject. In its paper, entitled ‘Just Culture Policy’,28 this Organisation notes that there does not seem to be a commonly agreed definition of ‘gross negligence’ in Europe.

Nevertheless “It seems to be however generally agreed that gross negligence implies a degree of severity, serious disregard to an obvious risk and profound failure to take such care that is evidently required in the circumstances”.29

This statement, which contains another definition of ‘gross negligence’, similar to its previous one, is significant as it represents the first valuable effort to provide more clarity on this subject.

More recently, unsuccessful attempts to introduce a definition of ‘gross negligence’ in European legislation have been made.

It should be recalled that the proposal30 for Regulation No. 376/2014 of the original text, as drawn up by the Commission, also contained a definition of ‘gross negligence’, a concept closely linked to that of ‘just culture’.

Taking into consideration that this proposal contained—as we have seen—provisions to promote the appropriate environment for encouraging aviation professionals to report safety related information by protecting them from punishment, except in cases of ‘gross negligence’, a clear definition of this concept was necessary to overcome the current interpretative uncertainties.

Article 2(4) of this proposal stated as follows: “‘gross negligence’ means a manifest and willful violation of the duty of care directly causing foreseeable damage to a person or to a property, or which seriously lowers the level of aviation safety”.

Nevertheless, this definition was deleted from Regulation No. 376/2014 because an agreement among the Member States on the wording of this proposed provision had not been reached. This was due to differences between common law and civil law systems, in spite of the firm intention, expressed by the Commission, to maintain such as definition in the final text. Therefore, the matter has now been temporarily shelved.

The Commission’s view is completely justified31 taking into account that, in order to apply ‘just culture’ principles, a clear division line between acceptable (‘mere negligence’) and unacceptable (‘gross negligence’) behaviour must be drawn.

The above mentioned definition took a slightly different view compared to the previous,

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