1. CAA Design Delegation Seminar 2005 Legal Powers and Legal Issues for Design Delegates Sid Wellik, Solicitor, CAA

2. Legal Powers and Legal Issue for Design Delegates Outline of this presentation: 1)Legislative basis for design delegations 2)Legal requirements & scope of delegation 3)Application of other legislation 4)Potential liability issues 5)Safeguarding against potential liability

3. Legal Powers and Legal Issue for Design Delegates Key Difference: Creating technical data versus Approving technical data

4. Legislative 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.

5. Legal requirements of delegation 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))

6. Legal requirements of delegation 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

7. Legal requirements of delegation 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.

8. Legal 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.

9. Legal 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.

10. Legal 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.

11. Legal scope of delegation Legal responsibilities Significance of this: The delegate must exercise his or her statutory power within the boundaries of the delegation.

12. Legal scope of delegation Legal responsibilities Significance of this: The delegate must exercise his or her statutory power in a “real, genuine and reasonable” manner.

13. Legal scope of delegation Significance 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.

14. Legal 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.

15. Application of other legislation Which piece of legislation prevails?

16. Application of other legislation Example: Health and Safety in Employment Act 1992 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.

17. Application of other legislation Example: Hazardous Substances and New Organisms 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.

18. Liability issues Delegate holders outside the CAA (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)).

19. Liability issues Delegate holders outside the CAA (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?

20. Liability issues Delegate holders outside the CAA (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.

21. Liability issues CAA 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.

22. Liability issues Delegate holders outside the CAA (acting a statutory decision-maker) No statutory indemnity

23. Safeguarding against potential liability 1)Understand the exact scope of your delegation powers. 2)Act within those specified powers. 3)Follow proper process when exercising your powers.

24. Legal Powers and Legal Issue for Design Delegates Question: Who is the Director of Civil Aviation? Answer: To a limited extent, you are!

25. CAA Design Delegation Seminar 2005 Legal Powers and Legal Issue for Design Delegates ANY QUESTIONS?