Over the last few years, Just (or Positive Safety) Culture has been a bit of a perennial topic of discourse for the author. A push for stronger legal recognition of the concept was included in NZALPA’s submissions on the Civil Aviation Bill. However, recent case law has provided an opportunity for reflection.

The case in question arises out of a tragic helicopter crash.1 In so far as the facts of that case give rise to questions concerning just culture, the court noted that the operator’s exposition included an expectation that reporting of hazards would occur.2 However, it also noted that prior to the crash there had been three unreported incidents of a similar nature, and that when a pilot was asked why one of those incidents was not reported he had identified that it was a known issue and that reporting would be futile because management would not respond seriously.3

Both parties agreed to a statement that included a concession that it was reasonably practicable for the operator to,4 ... ensure a just reporting culture including:

(a) promoting a culture, through conversation at both formal and informal forums, of the requirement to report inflight door-opening incidents.

The Civil Aviation Authority (CAA) argued that the quantum of the fine imposed on the operator should
be raised because it had failed to ensure “a culture of reporting such incidents, which I will refer to as the reporting failure”5 and that this was a departure from relevant industry standards. The operator argued against this, submitting that events of this kind in that type of aircraft were not uncommon and that the issues identified did not demonstrate a departure from industry standards.6 The issue that this presented for the court to determine thereby became whether having a positive safety culture (otherwise known as a just culture) is an industry standard.

The meaning of just culture arose within a commercial context in the case of Heli Holdings Ltd v The Helicopter Line Ltd.7 That was a contractual case that arose from what the court found to be a repudiation and subsequent cancellation of a contract for the maintenance of helicopters. The terms of the contract agreed between the parties had included a warranty that the maintenance provider would perform its duties “diligently and in good faith
and in accordance with best industry standards.”8 The court heard evidence that best industry standard included management commitment to just culture principles and the adoption of a just culture.9 Ultimately, the court came to the conclusion that “Heli Holdings was in breach of its contractual obligations in not meeting “just culture” obligations.”10 But it went further and also found that statements by the maintenance provider that it would not be engaging in discussions with the operator in accordance with just culture principles was so significant an alteration of the terms and conditions of the contract so as to justify the operator in cancelling the contract.11 Until now, however, these observations had been strictly limited to the specific wording of that one contract. 

In The Alpine Group case, Walker J has advanced the position substantially. Against evidence from the operator that the observance of just culture was not a common industry practice, Walker J responded,12

Industry norms and industry standards are not the same thing.I infer that there was a somewhat casual attitude from people in the industry ... It is not enough to prove that nobody else was reporting these incidents ... the standard is not to be judged by what others were doing but what they should have been doing.

So far, this judgment has provided a vast improvement in recognising that the promotion of a just culture in aviation is an industry standard that operators can be expected to be held to. However, if there is one area where the judgment perhaps misses an opportunity it is, in the author’s opinion, in the description of just culture that was offered by the CAA and accepted by the judge. That description focuses very much on the reporting aspect of just culture. One of the aspects of Heli Holdings that it will be interesting to see whether other courts are willing to impose as an industry standard is the observation that,13

a key element of “just culture” is openness, honesty and transparency.

Given the particular context, it may not surprise readers that it appears the CAA in prosecuting Alpine Group Ltd did not dwell on the openness, honesty and transparency aspects of “just culture.” It will remain to be seen what the courts will make of that aspect.

1 Civil Aviation Authority v The Alpine Group Ltd [2022] NZDC 20040 2 Above n1 at [8]
3 Above n1 at [15] – [16]
4 Above n1 at [22]
5 Above n1 at [40]
6 Above n1 at [55]
7 Heli Holdings Ltd v The Helicopter Line Ltd [2016] NZHC 976
8 Above n7 at [62]
9 Above n7 at [86]
10 Above n7 at [443]
11 Above n7 at [568 – 569]
12 Above n1 at [84]
13 Above n7 at [91]