CAA Design Delegation CAA Design Delegation Seminar 2005Seminar 2005

Legal Powers and Legal Issues for

Design Delegates

Sid Wellik, Solicitor, CAA

Legal Powers and Legal Issue Legal Powers and Legal Issue for Design Delegatesfor Design Delegates

Outline of this presentation:

1) Legislative basis for design delegations2) Legal requirements & scope of delegation3) Application of other legislation4) Potential liability issues5) Safeguarding against potential liability

Legal Powers and Legal Issue Legal Powers and Legal Issue for Design Delegatesfor Design Delegates

Key Difference:

Creating technical data

versus

Approving technical data

Legislative basis for design delegationLegislative basis for design delegation

Part 146 Certificate Holder may employ a person to approve design changes (Rule 146.11(c)).

Senior person holds delegation to approve design changes in accordance with Rule 21.73 (Rule 146.51(a)(3)).

The grant of a delegation under section 23B of the Civil Aviation Act 1990 is subject to the qualifications and experience as

required in Appendix A to Part 146.

Legal requirements of delegationLegal requirements of delegationCA Act provides:CA Act provides:

The Civil Aviation Act 1990

• In writing (section 23B(3))• Consent of Minister (section 23B(4))• Sections 73(4), 74, 75 and 76 of Crown Entities Act 2004

apply (section 23B(5))• Delegation is revocable at will (section 23B(6))• Show evidence of delegation, when reasonably requested

(Section 23B(11))

Legal requirements of delegationLegal requirements of delegationCE Act provides:CE Act provides:

The Crown Entities Act 2004

• Delegate acts “as if” delegate were the Director (section 74(1)(a))

• Director still can exercise the same function (section 75(a))

• Does not affect the Director’s responsibility for what is done (section 75(b))

• Confirms some matters also contained in section 23B of the Civil Aviation Act 1990

Legal requirements of delegationLegal requirements of delegationRule provides:Rule provides:

Part 146, Appendix A provides that the delegation shall cease when the holder ceases to be employed by the Part 146

certificate holder.

Legal scope of delegationLegal scope of delegation

Delegation means that the Director has transferred his power to the delegate.

The delegate is not acting as the holder an aviation document.

The delegate is acting “as” the Director, not “on behalf of” the Director.

Legal scope of delegationLegal scope of delegation

In this way, it is as if the Act or the Rules actually gave that power to the delegate.

The delegate exercises the power in his or her own name.

Legal scope of delegationLegal scope of delegation

Significance of this:

A delegate is a – in general terms – a public servant, to the extent that he or she is

acting as a delegate.

Legal scope of delegationLegal scope of delegationLegal responsibilitiesLegal responsibilities

Significance of this:

The delegate must exercise his or her statutory power within the boundaries of

the delegation.

Legal scope of delegationLegal scope of delegationLegal responsibilitiesLegal responsibilities

Significance of this:

The delegate must exercise his or her statutory power in a “real, genuine and

reasonable” manner.

Legal scope of delegationLegal scope of delegationSignificance of this:

The delegation is an inherent ‘conflict of interest’: Employment interest and Public Servant interest.

The ‘employment’ interest may create an incentive to act in a way which may not be in

the best interest of the CAA.

Legal scope of delegationLegal scope of delegation

However, the Director concurrently retains that same power.

The Director still retains general control over the activities of the delegate.

The Director is still responsible for the actions taken by the delegate.

Application of other legislationApplication of other legislation

Which piece of legislation prevails?

Application of other legislationApplication of other legislationExample: Health and Safety in Employment Act Example: Health and Safety in Employment Act 19921992

What if the HSE Act appears to require something different form the CA Act or the CARs?

The HSE Act does not take precedence over other legislation: section 4 of the HSE Act.

Application of other legislationApplication of other legislationExample: Hazardous Substances and New Example: Hazardous Substances and New Organisms Act 1996Organisms Act 1996

What if the HASNO Act appears to require something different form the CA Act or the CARs?

The HASNO Act does take precedence over other legislation, unless that other legislation expressly

states otherwise: section 142(6) of the HASNO Act.

Liability issuesLiability issuesDelegate holders outside the CAADelegate holders outside the CAA(acting a statutory decision-maker)(acting a statutory decision-maker)

Who is liable?

The delegate or the company?

In general terms, both are, as an employee is liable for his or her own torts (Trevor Ivory v Anderson (CA)).

Liability issuesLiability issuesDelegate holders outside the CAADelegate holders outside the CAA(acting a statutory decision-maker)(acting a statutory decision-maker)

Negligence

Basis of negligence is “duty of care”.

Did delegate act outside power of delegation?Was there loss that was “reasonable foreseeable”?

Usual standard = what is accepted practice for a competent engineer?

Liability issuesLiability issuesDelegate holders outside the CAADelegate holders outside the CAA(acting a statutory decision-maker)(acting a statutory decision-maker)

Misfeasance in public office

Basis is acting with a “disregard” to your statutory duty, or being “recklessly indifferent” to the consequences of your actions.

In general terms, the delegate would be proceeding as if he or she really didn’t care what the consequences may be, or biased against the aggrieved party.

Liability issuesLiability issuesCAA employees: statutory indemnityCAA employees: statutory indemnity

CAA employees are not liable for acts performed in good faith and in the

performance or intended performance of the CAA’s functions: section 121(2) of the

Crown Entities Act 2004.

Liability issuesLiability issuesDelegate holders outside the CAADelegate holders outside the CAA(acting a statutory decision-maker)(acting a statutory decision-maker)

No statutory indemnity

Safeguarding against Safeguarding against potential liabilitypotential liability

1) Understand the exact scope of your delegation powers.

2) Act within those specified powers.3) Follow proper process when exercising your

powers.

Legal Powers and Legal Issue Legal Powers and Legal Issue for Design Delegatesfor Design Delegates

Question: Who is the Director of Civil Aviation?

Answer:To a limited extent, you are!

CAA Design Delegation CAA Design Delegation Seminar 2005Seminar 2005

Legal Powers and Legal Issue for

Design Delegates

ANY QUESTIONS?