Negligent liability: Two experiences in comparison, airline industry and health sector

“Negligent liability , warranty positions and profiles to complex activities of organizations at risk allowed. Two experiences in comparison , the airline industry and the health sector.” was the title of a study day held in Rome, at the High Defence Studies Centre. The event was the result of a keen interest in the School of Magistrates, sensitized on the issue from the University of Bologna , CESMA ( Aeronautical Military Studies Center ) and ANACNA (National Association of Assistant Controllers and Air Navigation ) and attracted a large number of judges who have closely followed the various interventions .

the full report (in italian) with presentations, relations and video can be seen here 

Focus of the day the comparison between two different professional reality , the aviation sector and the health sector , both in common , however, raise the susceptibility of common legal issues . Another common element between the two activities is to be both characterized by a high degree of risk so as to be defined risk activities allowed. This is the most important aspect of the two professional companies , therefore, have resulted in their exercise profiles of criminal liability of such negligence , triggering legal issues pertaining to joint characterized by high complexity and difficulty of judgment.
The proceedings were opened with a welcome address by Gen. BA Giuseppe Romania , representing the President of the CASD , Adm. Rinaldo Vieri , with which were laid the foundation for further work , moderate for the part relating to aviation by Col. Maurizio Colonna , Head Office of Prevention Flight Safety Inspectorate of ITAF. The Prof. Anna Masutti , University of Bologna ( and member of the Scientific Committee of the CESMA ) continued with the examination of the profiles of liability arising out of aircraft accidents , thus paving the way to explain the recent legislative occurred within the EU , compared with the different approaches of European law and national law. In this frame has been dealt with the theme of “Just Culture” the principles of which have been the subject of recent regulatory actions by the European Union , aiming at its application to the aviation industry. The theme of “Just Culture” had already been the subject of a workshop held by CESMA November 22, 2011 in Rome at the Aviator House  with the participation of Flight Safety Inspectorate of ITAF , ATC , Civil Aviation Authority , State Attorney General and the Judiciary. It was during the workshop the Director of CESMA , Gen. Nazareno Cardinali, coined the following definition << I believe that the Just Culture is the way to understand the relationship between the prevention of air accidents and repression. So, it is a way to understand the activity that is done in the analysis of incidents and actions that must be taken, a way of understanding that is based on the culture of “no- blame “, no a priori fault , then the culture which allows in case of human error , we can confess the error without fear of being punished , unless serious negligence or omission >> .

This is precisely the heart of the problem : in aviation accident is seen as an opportunity for study and analysis in order to prevent others while under the Judiciary is the enforcement of the law and looking for the culprit responsible . At European Community level has been achieved a perfect synthesis with the application of the already mentioned “Just Culture” whose principles were illustrated by two international personalities occurred : Mr. Roderick van Dam , chairman of the “Just Culture Task Force, ” Eurocontrol and former head of the Legal Office of Eurocontrol and Mr. Fred Bijlsma , senior public prosecutor as well as national coordinator for the Dutch prosecutors aeronautical problems. In this case, Mr. Van Dam has delineated the characters of the Flight Safety compared to those of Justice: two cases and equally important among them is the judge , the judge figure that has the power to strike a balance . The just culture , at this point, becomes the means to achieve this balance , flanked by an activity of mutual understanding that allows both to operators of aircraft to trust and rely on their own experiences in the voluntary reporting system as judges to sift greater awareness and competence -related aviation technicalities . Fred Bijlsma has instead cited the practical application of the principles of Just Culture by describing the general features of the legal system where the Dutch mutual understanding becomes even trust. A sorting substantially different and distant from the Italian legal but apparently more responsive to the needs of a complex and delicate as that of aviation .

This difference is evident from the report of Dr. Pietro Antonio Sirena, President of the Fourth Chamber of the Supreme Court , which has reviewed the major aviation incidents occurred in Italy since the 70s , highlighting the causes and outcomes of the proceedings.
Subsequently, in the second part of the day , moderated by Dr. Sergio Bovenga , Director of the Unit of Clinical Risk Management Structure in Grosseto and Head of Staff of the Health Department , has been analyzed causality and criminal liability in the context of medical activity carried out with particular regard to those assets and omission . The first speaker of the session was Dr. Nicholas Mazzacuva , Professor of Criminal Law at the University of Bologna, who analyzed the profiles of criminal responsibility of health personnel after the entry into force of the law n.189/2012 whose article 3 states that ” the operator of the health care profession that in the conduct of its business adheres to guidelines and best practices accredited by the scientific community is not liable for criminal negligence .” In the subsequent study showed the delicacy and complexity of the new standard , especially in the assessment phase .

Second and last speaker of the afternoon Dr. Andrea Montagni , Councillor of the Supreme Court , which dealt with the theme of causation and criminal responsibility of the physician analyzing the means active and taking the omission to examine the behavior and the event that develops between the exercise of care and the patient’s death . If the current social attitude deadly event ceases to detect the cause of disease in the individual but in the error of the treating physician . In this scenario reversed the Courts and in particular the lower courts must answer a question . The doctor says to his judge, ” but I’ve caused ? ” – ” What should I say? ” And the Supreme Court says, what is the obligation that rests on the court in answering these questions. It is an obligation of transparency and simplicity. The judge – who is the Judge of the evidence, the Judge of fact – will have to rule on the basis of the assessment of the whole picture of the event.

The work was completed with the assistance of Dr. Rocco Blaiotta , Councillor of the Supreme Court , which in its final discussion has emphasized the importance that the judge should , in the first analysis ,  understand all the details of the case and the specific aviation or health professions that can present considerable difficulties like in a burning airplane or an emergency room. In the Air Navigation context has highlighted the lack of an analytical and conspicuously industry regulations nor has it been made ​​clear yet who are the guarantors of security. Having recently determined that air traffic controllers are police aviation must impose on the other hand the need to determine the exact extent of their obligations and to trace their lines of responsibility in analogy to what the law Balduzzi (n .189/2012 ) did for the responsibilities of doctors. He concluded with an invitation to strengthen and improve the communication and active dialogue between the parties that together contribute to the performance of functions relevant to safety , health and well-being of the community.

Source: CESMA by Pietro Ferri