06-05-2017, 10:51 PM
A case of embuggerance or professional negligence?
Don't have an opinion not my area; but there is an interesting AAAT (v CASA) case just published...
Again pardon my ignorance as rotary wing is not my area but there is a couple of points with this case that I find a little peculiar.
Q1/ How much realistically will the CoG move fwd or aft in a two seater aircraft where the fuel tanks appear to be centrally located?
Q2/ If the supposed contraventions of the regulations were so serious that there was a serious risk of 'catastrophic failure', why was Mr Wotherspoon merely slapped on the wrist with a six month suspension of his flight instructor rating?
Maybe I am missing something - so 'please explain'? Someone? Anyone?
MTF...P2
Don't have an opinion not my area; but there is an interesting AAAT (v CASA) case just published...
Quote:Wotherspoon andCivil Aviation Safety Authority
[2017] AATA 793 (30 May 2017)Last Updated: 2 June 2017
Wotherspoon and
Division: GENERAL DIVISION
File Number: 2016/2262
Re: John Wotherspoon
APPLICANT
And
RESPONDENT
DECISION
Tribunal: Egon Fice, Senior Member
Date: 30 May 2017
Place: Melbourne
The Tribunal affirms both decisions under review.
........................................................................
Egon Fice, Senior Member
[/b]– suspension of ATPL (Helicopter) and CPL (Helicopter) Licence – critically weight limited aircraft - operation of aircraft in excess of Maximum Take-off Weight and outside the centre of gravity – failure to accurately maintain fuel records – failure to weigh passengers before flights in accordance with manual - whether appointment of applicant as Head of Operations satisfies requirements specified in Civil Aviation Safety Regulations - whether applicant failed in duty as a Flight Instructor – decisions affirmed
Legislation
Civil Aviation Safety Regulations 1998; regs 11.005, 141.020, 141.050, 141.60, 141.090, 141.110, 141.130
Civil Aviation Regulations 1988; regs 138(1), 215(9), 220(2), 269(1)
Civil Aviation Act 1988 s. 9A
Secondary Materials
JamCo Aviation Operations Manual
REASONS FOR DECISION
Egon Fice, Senior Member
30 May 2017
1.Mr John Wotherspoon holds an Air Transport Pilot Licence (ATPL) issued on 14 May 2004 and has held a Commercial Pilot Licence (CPL) since 2 January 1986. Mr Wotherspoon also holds a Flight Instructor Rating with Grade 1 and Grade 2 helicopter training endorsements. He was the Chief pilot (CP) and Chief Flying Instructor (CFI) of JamCo Aviation Pty Ltd (JamCo) between 1 July 2013 and 13 March 2015.
2. On 13 April 2015 The Experiences Group Pty Ltd (The Experiences Group) applied to CASA seeking approval of its proposed appointment of Mr Wotherspoon to the position of Head of Operations (HOO) of The Experiences Group.
3.Part 141 of the Civil Aviation Safety Regulations 1998 (CASR) deals with recreational, private and commercial pilot flight training. If a person wishes to conduct flight training they are required to hold a Part 141 certificate authorising that training. Regulation 141.050 provides1) A person commits an offence if: (a) the person conducts Part 141 flight training; and
(b) the person does not meet the requirements mentioned in subregulation (2).
Penalty: 50 penalty units.
(2) For paragraph (1) (b), the requirement is that the person must hold: (a) a Part 141 certificate that authorises the person to conduct the training; or
(b) an approval under regulation 141.035 to conduct the training.
(3) An offence against this regulation is an offence of strict liability.4.Regulation 141.060 sets out the criteria which must be satisfied before the Civil Aviation Safety Authority (CASA) must issue a Part 141 certificate. Significant, as far as this matter is concerned, are the following:
(1)...
(a) ...
(b) the applicant can conduct the proposed Part 141 flight training safely and in accordance with its operations manual and civil aviation legislation;
© the applicant’s organisation is suitable to ensure that the training can be conducted safely, having regard to the nature of the training;
(d) the chain of command of the applicant’s organisation is appropriate to ensure that the training can be conducted safely;
...
(i) each of the applicant’s proposed key personnel: (i) is a fit and proper person to be appointed to the position; and
(ii) has the qualifications and experience required by Subpart 141.D for the position; and
(iii) has the qualifications and experience required by the applicant under subparagraph 141.260 (1) (b) (i) for the position (if any); and
(iv) has the additional qualifications and experience required by CASA under regulation 141.155 for the position (if any).
...
5.The expression key personnel is defined in Reg 141.020 as follows:
In this Part:
key personnel, for a Part 141 operator, means the people, however described, that hold, or carry out the responsibilities of, the following positions in the operator’s organisation:
(a) chief executive officer (CEO);
(b) head of operations (HOO).
6.Subject to Reg 11.055, CASA must approve a significant change for a Part 141 operator if it is satisfied that the requirements in Reg 141.060(1) will continue to be met (Reg 141.090).
7.In a letter dated 7 September 2015 CASA informed The Experiences Group that it was considering refusing the approval of Mr Wotherspoon to the position of HOO. It invited The Experiences Group to show cause why CASA should not refuse its appointment of Mr Wotherspoon as HOO on the basis of its concerns expressed in that letter. On 17 September 2015 Mr Guy Maine, Chief Pilot for The Experiences Group, provided a response to the show cause letter. In an email dated 23 October 2015, Mr Wotherspoon attached a request for a show cause conference.
8.In a letter dated 4 November 2015 CASA informed Mr Maine that it considered certain contraventions by Mr Wotherspoon of a number of legislative requirements to be serious and significant to the extent that CASA could not have any confidence in Mr Wotherspoon’s ability to discharge the duties of the HOO. It refused to approve the significant change under Reg 141.090 of the CASR.
9.In addition to the above, in a letter dated 21 October 2015 CASA informed Mr Wotherspoon that it was considering recommending to a delegate of CASA that his ATPL (Helicopter) Licence; Commercial Pilot (Helicopter) Licence; Flight Instructor Rating – Grade 1 helicopter or Flight Instructor Rating – Grade 2 helicopter; be varied, suspended or cancelled on the basis of the facts and circumstances set out in that letter. CASA was concerned with Mr Wotherspoon’s conduct while holding the position of Chief Pilot and Chief Flying Instructor for JamCo. CASA alleged that Mr Wotherspoon had operated a R22 helicopter in excess of its Maximum Take-off Weight (MTOW) and outside the centre of gravity (C of G) limits; and that he failed to record the fuel remaining at the end of flights. The letter invited Mr Wotherspoon to show cause why those actions should not be taken.
10.Maitland Lawyers, acting for Mr Wotherspoon, responded to the show cause notice in a letter dated 16 December 2015. Mr Wotherspoon also attended a show cause conference on 8 February 2016 and was given the opportunity to expand upon his written response. After considering Mr Wotherspoon’s response to the show cause notice and the discussions held during the show cause conference, CASA determined that his conduct did not warrant any action being taken against his ATPL or CPL, however it was serious enough to warrant suspension of his Flight Instructor Rating.
11.On 28 April 2016 Mr Wotherspoon lodged an application with the Tribunal seeking review of the decision to suspend his Flight Instructor Rating and to reject the application of The Experiences Group for a change in its key personnel by permitting Mr Wotherspoon to take up the position of HOO.
12.CASA’s decision to refuse the appointment of Mr Wotherspoon as HOO of The Experiences Group and its decision to suspend his Flight Instructor Rating are based on the same circumstances. CASA claimed that on ten occasions Mr Wotherspoon operated the Robinson R22 helicopter outside of its forward C of G limits while providing flying lessons to students in January, February and March 2015. According to CASA, those contraventions breached Civil Aviation Regulations 1988 (CAR) 138(1) and 215(9). CAR 138 deals with the requirements of a pilot to comply with the aircraft’s flight manual. It provides
Penalty: 50 penalty units.
13.CAR 215 deals with the Operations Manual. Relevantly in this case, it provides:
(9) Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
Penalty: 25 penalty units.
14.Furthermore, CASA claimed that Mr Wotherspoon committed multiple breaches of
CAR 220(2) by failing to maintain a record of the fuel remaining in the tanks of the aircraft at the end of each scheduled flight. CAR 220 relevantly provides
Penalty: 25 penalty units.
CASA also claimed that Mr Wotherspoon’s failure to record the fuel remaining in the aircraft at the end of each scheduled flight constituted a breach of CAR 215(9) as it was contrary to JamCo’s operations manual.
15.I am required to determine whether
(b) Mr Wotherspoon has failed in his duty as a Flight Instructor in that he has contravened a provision of the CAR; whether that contravention effected the safe navigation or operation of an aircraft; and whether Mr Wotherspoon is a fit and proper person to be the holder of a Flight Instructor Rating.
16.I have referred to the relevant requirements specified in CASR 141.060(1) at [4] above. The relevant provisions in CAR 269(1) are as follows
(b) ...
© that the holder of the licence, certificate or authority has failed in his or her duty with respect to any matter affecting the safe navigation or operation of an aircraft;
(d) that the holder of the licence, certificate or authority is not a fit and proper person to have the responsibilities and exercise and perform the functions and duties of a holder of such a licence or certificate or an authority; or...
OPERATIONS MANUAL REQUIREMENTS
17.I had in evidence a copy of the JamCo Aviation Operations Manual. Sub-section A3.11 deals with fuel usage and flight records. It provides
(2) All Flight Record sheets are to be forwarded to the Chief Pilot on the completion of a flight or, if necessary, on a weekly or monthly basis as requested by the Chief Pilot. Each section of the Flight Record sheet is to be completed in full and filed under the particular aircraft type. The Chief Pilot is to maintain and publish the average consumption rates calculated on a monthly basis for individual aircraft. These records are to be maintained for the preceding 12 months.
18.The Chief Pilot is responsible for ensuring compliance with loading procedures specified for each aircraft type and proper compilation of loading documents including passenger and cargo manifests (A1.4.3.1(5)).
19.Sub-section A1.4.10 provides:
A company Pilot is to ensure that they operate Company Aircraft in accordance with the provisions of all associated CAR’s, CASR’s, CAO’s, AIP, the Aircraft’s Flight Manual and this Operations Manual.
20.Before flight, the pilot in command must ensure a number of things including (A1.4.10.2)
21.The pilot in command has a number of post flight responsibilities including (A1.4.10.4)
22.Prior to the commencement of any flight or route segment, the pilot in command must ensure, amongst other things (A1.9), that
(2) ...
(3) the gross weight does not exceed the limitations;
(4) the C of G is located within limits;
...
23.Sub-section A1.22 deals with company fuel policy. It states that JamCo aviation company fuel policy is to comply with the recommendations of the latest issue of the Civil Aviation Advisory Publication (CAAP) 234-1(0). Essentially, it provides that helicopter operations under the Visual Flight Rules must carry a fixed fuel reserve of 20 minutes at normal cruise. The CAAP recommends that flights with sectors of 3 hours or more between suitable aerodromes at which a safe landing can be made should carry a variable reserve of 10% of estimated cruise fuel. Helicopters undertaking private and aerial work (which includes flying training) are not required to carry a variable reserve. Nevertheless, the Operations Manual recommends the use of 15% variable reserve on all flights unless that is not possible due to weight limitations, and then on aerial work flights, only the fixed reserve need be carried.
24.Sub-section A4.3 deals with general loading procedures. In particular, it states that the pilot in command shall ensure that the Maximum Take-off Weight (MTOW) and C of G limits are within the approved flight manual requirements for the entire proposed flight. It goes on to say:
It is the responsibility of the pilot in command to ensure that all passengers’ and cargo weights are calculated before they are loaded onto the aircraft. Scales for weighing passengers and cargo shall be used for all fuel critical flights operating at or near maximum take-off weight (MTOW) (ie. fuel critical flights are those that do not carry additional fuel over and above flight fuel and mandatory reserves). Precalculated load sheets may be used for non-fuel-critical flights, where the pilot in command can confirm that the appropriate load sheet will provide a conservative estimate of the aircraft’s actual weight and centre of gravity (CG.) location; and that the MTOW will definitely not be exceeded – in these cases it may not be necessary to weigh the passengers and/or cargo.
25.Finally, in this section, I should refer to aircraft refuelling procedures found in sub-section A6.3. Relevant paragraph provides
26.The maximum all up weight of the R22 helicopter is 623 kg. The empty weight (that is without fuel, pilots or baggage) of the R22 is 399.2 kg. Rounding that figure off at 400 kg, the maximum weight of fuel, pilots or pilot plus one passenger and baggage cannot exceed 223 kg. It should be immediately apparent that this aircraft is critically weight limited. That is before one examines where the C of G will be at any particular weight. When the aircraft is used for training purposes, the pilot in command must establish an accurate weight for the instructor and trainee and the quantity of fuel on board. Each litre of fuel weighs 0.72 kg. Again, it is glaringly obvious that, depending upon the weight of the two persons on board, the amount of fuel which can be carried may be significantly limited. The accepted cruise fuel consumption of this aircraft is 35 L per hour, which appears to take into account the extra fuel used in take-off and climb to altitude. Therefore, the fixed reserve, which must be 20 minutes of ordinary flight time, will account for 11.6 kg which must be carried before any additional flight fuel is put on. Allowing for the fixed reserve limits, the maximum weight of the two persons and fuel is limited to
211.4 kg. Obviously, if the two persons on board weigh around 100 kg each, the aircraft is not going to go very far.
27. It is these serious limitations which caused CASA considerable concern when its officers carefully examined the flight operations conducted by Mr Wotherspoon at the time he was Chief Pilot for JamCo. Unsurprisingly, CASA raised serious concerns about the recording of fuel taken on board the R22 for each flight and the weight of the instructor and trainee.
FUEL RECORDING
28.Accurate recording of fuel taken on board on any single flight on an aircraft as weight critical as the R22 is mandatory. The addition of 16 L fuel in the circumstances I have outlined above, with two occupants in the aircraft together weighing around 200 kg, will put the aircraft at its MTOW. That amounts to about 27 ½ minutes flying time. C of G considerations add to the problem.
29.Despite the very clear regulation dealing with the recording of fuel remaining in the tanks at the end of each scheduled flight, and the data required to be entered onto the Flight Record sheet prescribed by the Operations Manual, Mr Wotherspoon admitted in his oral evidence that the procedure undertaken was somewhat haphazard. The records which were in evidence for the aircraft which was used for training (VH-PUM), disclose that the length of the trips ranged from 0.1 hours up to a maximum of two hours duration. In the decimalised hourly recording system, 0.1 of an hour is equal to 6 minutes. Those trips which were clearly dual training flights were much shorter, between about 0.3 to 0.6 hours. The trip records contain a column for each of Fuel Added; Fuel Start; Fuel Stop; and Fuel Used.
30.Mr Thomas William Graham, a Flying Operations Inspector with CASA, provided two written statements of evidence which included a number of attachments. In his first witness statement dated 9 September 2016, Mr Graham said that his involvement in this matter commenced on 3 July 2015 when he was asked to take notes for a CASA investigation during an interview with Mr Wotherspoon at CASA’s Melbourne Office. The handwritten notes taken by Mr Graham were attached to his statement. Mr Graham recorded Mr Wotherspoon as saying:
I would often fill in the trip sheet from the flight authorisation sheet at the end of a busy day. Sometimes, I would record the fuel on the trip sheet from memory.
31.The Trip Records in evidence for VH-PUM were for between 20 December 2014 and 8 March 2015. There are many anomalies and omissions in those records. For example, the entry for 7 January 2015 shows that 20 L was added and the aircraft therefore had
50 L at the start of its flight. That entry does not have a fuel figure for the end of the flight on that day and is followed by three further flights on the same day which have no figures at all indicating the fuel at the start of each flight or the end fuel on each trip. The next entry (date obliterated by punch hole) also in January 2015 shows 25 L of fuel being added, nothing for fuel at the start of the flight and 10 L remaining at the end of the flight. There are then a number of entries between 15 January 2015 and 19 January 2015 which appear to have been pencilled in.
32.In a letter dated 27 May 2015 Mr Wotherspoon attempted to explain why he believed he was at all times aware of the weight of the aircraft on the trips which CASA identified as being of concern. The dates of those trips and the student with whom Mr Wotherspoon conducted the flight are as follows:
24 January 2015 with Danny Brown
4 February 2015 with Danny Brown
14 February 2015 with Danny Brown
6 January 2015 with Andrew Pitt
19 January 2015 with Andrew Pitt
24 January 2015 with Andrew Pitt
3 February 2015 with Andrew Pitt
4 February 2015 with Andrew Pitt
5 February 2015 with Andrew Pitt
2 March 2015 with Andrew Pitt
33.Mr Wotherspoon said:
I believe that the fuel load shown in the calculations were not representative of the fuel in the aircraft at take-off. Whilst I have not been provided with the flight sheets of the flights for which I am accused of, I produced 3 copies of typical flight sheet that I filled out for each flight. These sheets have the following columns,...
When conducting training flights in an R22, I would rarely not add fuel prior to the commencement of each flight. This is due to the relatively small load available when conducting dual training flights. The flight sheets attached do not always accurately reflect the fuel on board at the start of the flight. For instance, during the course of a typical day, I and my students would add just enough fuel for the next flight. This fuel would then be taken from a tank on the back of a trailer, towed by a quad bike. This fuel tank is equipped with a litre counter.
The flight sheets are not always filled out just prior to and at the completion of the flight. They are often taken from the “Flight Authorisation Sheet” which is signed by the student and instructor prior to the flight, and includes the engine and maintenance release time for the flight. The Flight Authorisation Sheet does not have details of the fuel load.
The Flight Sheets that appear to have been used in these calculations may well be inaccurate. The fuel amounts are not recorded for weight and balance purposes but to record fuel usage of the helicopter to ensure that its fuel burn is constantly monitored. As a consequence, the fuel added over the course of the day is correct, however each individual amount may not be recorded at the time of adding fuel, i.e. if I or a student added 10 or 20 L to the helicopter prior to a flight. At the end of the day I would see that, for example 100 litres may have gone into the helicopter over a 3.3 hours engine time. This would give fuel burnt of 33.3 L per hour.
34.The problem with what Mr Wotherspoon said is that without recording the fuel on board at the start of each flight, it is simply not possible to know the weight of the aircraft at the commencement of each flight. That weight is critical both for determining whether the aircraft is below MTOW and within the C of G limits. The purpose for recording fuel at the start of each flight is not simply, as Mr Wotherspoon suggests, for corroborating the Operations Manual statement about average fuel burn. That has already been decided and accepted by CASA and is used for flight planning purposes. It may also be used as a means of monitoring fuel consumption to ensure that there are no significant variations which may require later investigation.
WEIGHT AND BALANCE
35.Knowing the weight of the aircraft on take-off for a particular flight and whether the load is within the C of G tolerances can be critical because of its effect on flight controls. That requires the pilot in command to know, precisely, the weight of fuel he has on board for a particular flight as well as an accurate weight of the persons on board. While large commercial aircraft are permitted to use accepted average weights for passengers, the very limited nature of the weight carrying capacity of a R22 demands that an accurate weight of the pilot and student, if there is one, are known at the start of the flight. It is not sufficient to simply ask people what their weight is because, as is reasonably well understood, a person’s weight can vary considerably over even a relatively short period of time. Relying on the weight disclosed at the last medical examination is unacceptable in the case of the R22. I accept entirely what Mr Graham said in his first witness statement, where he explained at paragraph 30:
Centre of gravity limitations for helicopters are established primarily due to physical and mechanical limitations on the helicopters’ control system. If the centre of gravity of the helicopter is outside these limits, the helicopters flight control system may not be able to provide full mechanical and aerodynamic controllability of the helicopter throughout its certified flight envelope, in both normal and emergency situations. An example of this situation would be, with a centre of gravity forward of the applicable limit during entry to autorotation following an engine failure or related emergency. The pilot’s actions and aerodynamics during entry to autorotation cause the helicopter to adopt a nose down attitude. In order to ensure successful entry and establishment of autorotation, the pilot must apply aft cyclic in order to arrest and control the helicopters attitude. A centre of gravity which is forward of the applicable limit would result in a mean cyclic position which is further aft for a given attitude, and in this situation the pilot may ‘run out’ of aft cyclic control, meaning the control system has reached its mechanical limit, and no further control input is available to arrest the nose down attitude, resulting in an accelerating descent and ultimately an uncontrolled crash landing.
36.As far as exceeding MTOW limits is concerned, Mr Graham said, at paragraph 31:
Operating a helicopter in excess of maximum gross weight causes safety implications as it affects the take-off and landing performance of the aircraft. It can also affect the structural integrity of the aircraft landing gear, airframe and drive system, affect the rotor RPM in autorotation, and the configuration and positioning of critical flight control system components during an autorotative landing.
37.Plainly, accurate calculations of weight and the positioning of that weight in an aircraft which has significant weight limitations, is essential for its safe operation. It is inadequate to simply estimate the weight of an aircraft prior to take-off in these circumstances. That is what Mr Wotherspoon has effectively done on the flights mentioned. In fact he has described the aircraft as feeling nose heavy on some of those flights, indicating that the aircraft was outside of its C of G limits. While Mr Wotherspoon might have been lucky and not had an engine malfunction in the course of any such flight, had there been a mechanical malfunction, he would probably have been very fortunate to have survived.
38.That is undoubtedly why the Operations Manual at A4.3 stipulates that on flights where weight is critical, which would be for most flights in an R22 where there are two persons on board, scales must be used to weigh those persons intending to fly and an accurate fuel reading must be available prior to commencing the flight.
39.In his written statement dated 27 May 2015 Mr Wotherspoon suggested that the weights used by CASA were deliberately inflated to discredit him for the commercial gain of his so-called accuser. He then said that his weight was 90 kg at that time and not the 95 kg attributed to him. However, nowhere did Mr Wotherspoon suggest that he weighed himself immediately prior to taking any particular flight that has been questioned. In other words, he was simply guessing his own weight. Similarly, Mr Wotherspoon said that he rang Mr Pitt on 22 May 2015 when he was told that at no time did Mr Pitt declare his weight to anyone else and that his weight at the time and during the training flights was
97 kg. Again, without somebody putting Mr Pitt on a set of scales prior to the flight, his opinion about his weight at that time and later is of no value at all in these circumstances.
40.Likewise, Mr Wotherspoon said that he had a telephone conversation with Mr Trigg who confirmed that his weight was 80 kg and not the 90 kg used by CASA. He claimed that statements made by his former employer were slanderous and untrue. With respect to Mr Wotherspoon, Mr Trigg simply stating that he was 80 kg at the relevant time is, again, simply an opinion and also a self-serving statement. It carries very little weight in this Tribunal. That is particularly so when the Operations Manual expressly states that scales must be used where weight is likely to be close to MTOW.
41.Mr Graham did a C of G calculation on each of the ten flights which caused CASA concern. His calculations were based on both the forward doors being removed which resulted in a reduction in the all up weight of 4.72 kg. He based Mr Wotherspoon’s weight (98 kg) on his aviation medical examination conducted on 27 January 2015. As for the students on those flights, he allowed 100 kg for Mr Brown which was the weight given to CASA on its investigation by Mr Cole, a relief flight instructor, and 100 kg for Mr Pitt which was taken from his aviation medical records (actually 103 kg but 100 kg allowed given that the aviation medical was some 12 months old). Mr Graham also took into account a fixed fuel reserve of 20 minutes in accordance with CAAP 243-1(1). In order to obtain the fuel on board the start of each flight Mr Graham used the flight time recorded on each flight multiplied by 35 L per hour which was the accepted consumption rate on the R22 and added 20 minutes fixed reserve fuel.
42.Using the assumptions I have referred to above, Mr Graham conceded that all of the flights of concern were found to be below maximum take-off weight. However, Mr Graham noted that the problem was that if the fuel figures contained on the VH-PUM trip sheets were correct, and fuel was carried in accordance with the JamCo Operations Manual, then except for three flights, when no fuel figures were listed, the weight on each of the remaining flights exceeded the maximum take-off weight. Because there was considerable doubt about the accuracy of fuel figures, Mr Graham disregarded the fuel figures entered on VH-PUM’s trip sheets. Based on the minimum possible fuel being loaded on the ten trips in question, Mr Graham determined that the C of G was forward of the allowable limit for the duration of each of those flights. I had in evidence a plot on the C of G charts for the aircraft which confirmed what Mr Graham found.
43.In his second witness statement dated 14 October 2016 Mr Graham said that he contacted both Mr Brown and Mr Pitt in order to confirm their body weight at the relevant times. Mr Brown apparently said that to the best of his recollection, his body weight was between 95 and 100 kg. Mr Pitt said he believed his weight was between 87 and 90 kg during that period but Mr Graham noted that his medical examination conducted on 12 February 2014 recorded his weight at 103 kg and his medical on 10 March 2016 recorded his weight at 109 kg. Using a weight of 95 kg for Mr Brown, Mr Graeme recalculated C of G for each flight involving Mr Brown and noted that the C of G was forward of allowable limits. He also recalculated the figure for Mr Pitt’s flights using a weight of 87 kg. That brought the C of G on those flights just inside limits. He also noted that that he assumed both doors were removed for each of those flights. Mr Graham also contacted Mr Colin Clarke, the current HOO for JamCo, who said he recalled Mr Pitt’s weight being between 105 and 110 kg and no less than 100 kg of the flight on 3 July 2015. Mr Clarke conducted that flight with Mr Pitt in a Robinson R44 helicopter rather than the R22 due to weight and balance restrictions.
44.The evidence I have referred to above leads me to find that Mr Wotherspoon failed to comply with Operations Manual requirements regarding flight record sheets and in particular the fuel on board the aircraft on many occasions, not only those flights questioned by CASA. Mr Wotherspoon effectively admitted as much in his oral evidence. Furthermore, I find Mr Wotherspoon was aware of the critical weight limitations imposed by the maximum take-off weight and C of G limits of the R22 helicopter, particularly when two persons were on board. Mr Wotherspoon was aware that the Operations Manual mandated the use of scales to weigh passengers on what the Manual defines as fuel critical flights. He failed to do so. Relying simply on what was told to him by his passenger was not only inadequate, it was also potentially dangerous. It also appears that Mr Wotherspoon did not use the C of G charts in order to determine whether the aircraft was within limits. He referred to simply feeling that the aircraft was slightly nose heavy on some flights. In doing so, Mr Wotherspoon breached subsection A1.4.10.2 of the Operations Manual.
45.CAR 138(1) provides that where a flight manual has been issued for an Australian aircraft, the pilot in command must comply with a requirement, instruction, procedure or limitation concerning the operation of the aircraft set out in the manual. Given the findings I have made above regarding exceeding the MTOW of the R22 helicopter on a number of occasions and his failure to use the flight manual in calculating the C of G, Mr Wotherspoon has breached CAR 138(1). Furthermore, CAR 215(9) provides:
Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.
46.I find that Mr Wotherspoon has on a number of occasions breached CAR 215(9). I also find that Mr Wotherspoon was in breach of CAR 220 which requires the pilot in command to record fuel remaining in the tanks of an aircraft at the end of each scheduled flight.
BREACH OF DUTY AS A FLIGHT INSTRUCTOR
47.Because the flight instructor in any organisation is the first contact that a student pilot has with the regulatory requirements which must be followed to ensure the safe operation of aircraft, what a student observes in the course of instruction often sets the pattern of behaviour of that student in the future. It is particularly for that reason that the flight instructor must set a scrupulous example of conducting every training flight in accordance with all regulatory requirements.
48.Unfortunately, Mr Wotherspoon’s conduct as flight instructor and Chief Pilot and Chief Flying Instructor, particularly in a seriously weight limited aircraft such as the R22 helicopter, has fallen short of the standards demanded of him. In his closing submissions Mr Wotherspoon said that he was unable to say why he did not do C of G calculations on every flight. As to not keeping accurate fuel records, he simply said I overlooked it. With respect to Mr Wotherspoon, that is unsatisfactory. I have no doubt that Mr Wotherspoon was under some commercial pressure to get the job done but it is particularly in such circumstances where a flight instructor must not waver from compliance with all regulatory requirements. I find Mr Wotherspoon failed in his duty as a flight instructor
49.It follows I must find that Mr Wotherspoon’s conduct in relation to flight training operations on the R22 helicopter attracted the variation, suspension or cancellation provisions set out in CAR 269(1)(a) and ©. He has contravened provisions in the CARs and has failed in his duty regarding the safe navigation or operation of an aircraft. In my opinion, a six-month suspension of Mr Wotherspoon’s Flight Instructor Rating followed by a flight test was the appropriate sanction.
APPOINTMENT AS HEAD OF OPERATIONS
50.The HOO of a Part 141 operator is one of its key personnel. Without that person, the Part 141 operator commits an offence if it carries out pilot flight training (Reg 141.110). The responsibilities of the HOO are extensive and are set out in Reg 141.130 of the CASR. Amongst those numerous responsibilities are the following
(2) Without limiting the subregulation (1), the responsibilities of the head of operations include the following:
...
(b) monitoring and maintaining, and reporting to the Chief Executive Officer on, the operator’s compliance with the provisions of civil aviation legislation and the operator’s operations manual that applied to the training;
© setting and maintaining the operator’s standards for the training in accordance with the operator’s operations manual;...
51.Although not stated in the Act or Regulations, it is important that the HOO has the confidence of CASA to ensure that the training organisation complies strictly with all legislative requirements. That is because CASA simply does not have the resources to oversee all training organisations on a continuous basis. Without that confidence, CASA would likely compromise its statutory duty under s. 9A of the Civil Aviation Act 1988. It must regard the safety of air navigation as the most important consideration.
52.Mr Wotherspoon’s conduct as the CP and CFI of JamCo does not give me confidence, on the material before me on this occasion, that Mr Wotherspoon can be relied upon to comply strictly with all aviation regulations without concern for his own position within an organisation should such insistence be viewed negatively. Mr Wotherspoon suggested that in a large organisation such as the one currently seeking his services in the position of HOO, he would have other individuals who would oversee his performance. With respect, that may or may not be the case and in any event, it is beside the point. Although Mr Wotherspoon also submitted that he had no previous reports regarding incidents or accidents in his quite lengthy flying career, that is also beside the point.
53.Mr Wotherspoon’s conduct as I have described above must give rise to serious concerns as to whether he meets the requirement set out in s. 141.060 of the CASR. In particular, I find that he is not a fit and proper person to be appointed to the position of HOO.
CONCLUSION
54.I have found that when Mr Wotherspoon was the CP and CFI of JamCo, he breached a number of regulatory provisions in the CAR. Those breaches were serious as they could have resulted in a catastrophic accident. Furthermore, Mr Wotherspoon must have been aware that he had breached aviation regulations.
55.Therefore, I find that the decision made by CASA on 21 April 2016 to suspend his Flight Instructor Rating for a period of six months and that he pass a flight test for the issue of a Flight Instructor Rating was the preferable decision. Furthermore, I find that CASA’s decision set out in its letter of 4 November 2015 to refuse the appointment of Mr Wotherspoon as HOO for The Experiences Group was the correct decision. I affirm both decisions.
Again pardon my ignorance as rotary wing is not my area but there is a couple of points with this case that I find a little peculiar.
Q1/ How much realistically will the CoG move fwd or aft in a two seater aircraft where the fuel tanks appear to be centrally located?
Q2/ If the supposed contraventions of the regulations were so serious that there was a serious risk of 'catastrophic failure', why was Mr Wotherspoon merely slapped on the wrist with a six month suspension of his flight instructor rating?
Maybe I am missing something - so 'please explain'? Someone? Anyone?
MTF...P2