(Please note, this matter is not currently being litigated in Australia)Following a string of 46 Jabiru engine failures and in-flight engine incidents reported in 2014, the Civil Aviation Safety Authority (CASA) took action to mitigate the risks associated with the high incidence of loss of power and engine reliability issues.
Initially, the regulator considered banning aircraft with Jabiru engines altogether but decided against that following consultation with industry, including Recreational Aviation Australia, the Sport Aircraft Association of Australia and Jabiru. It also received over 600 comments on its proposed limitations with many pilots asserting they had a right to accept the risk of engine power loss, and also argued that that right should extend to their passengers, and trainee pilots.
What does the instrument do and mean?The legislative instrument (CASA 292/14) is designed to mitigate certain risks of loss of power events by limiting the use of aircraft with Jabiru engines of, particularly [in CASA’s opinion] “those classes of people who are unable to gauge or control those risks, being passengers, trainee pilots, and persons on the ground.” (Explanatory Statement to CASA 292/14).
On 20 December 2014 CASA issued a media release which said:
“Problems with Jabiru engines include failures of through bolts, flywheel bolts and valve train assemblies, as well as cylinder cracking.
The failures affect a range of Jabiru engine models and have occurred in aircraft used in different flying activities, although many have been reported in aircraft used for flying training.
CASA is currently working with Jabiru and other stakeholders to identify the causes of the engine problems and to implement appropriate solutions.
Causes being investigated include design and mechanical issues, how aircraft are flown, and maintenance-related issues.”CASA then issued the instrument on 23 December 2014 which prescribed operating limitations for a narrow subset of recreational aviation operations:
“aircraft fitted with engines manufactured by, or under licence from or under a contract with, Jabiru Aircraft Pty Ltd to manage risks arising from a high incidence of engine loss-of-power events and other reliability issues” (CASA 292/14).The purpose of the instrument is, according to its Explanatory Statement, to mitigate the potentially heightened risks associated with Jabiru-powered aircraft, while CASA works with Jabiru to identify the causes of the engine issues, and other reliability issues and appropriate corrective measures have been implemented.
Accordingly, the limitations cease to have effect after a finite period (on 30 June 2015).
The Explanatory Statement noted the problems appear to:
“(a) be the result of several failure modes, including engine through bolt failure, cylinder cracking, flywheel bolt failure and failure of the valve train assembly; and
(b) affect a range of Jabiru engine models, although CASA has only a small sample size for some models; and
(c) occur across the range of different operational activities in which Jabiru-powered aircraft are employed, although a disproportionate number of events appear to occur in flying training activities.” (Explanatory Statement to CASA 292/14)"
What do operators of affected aircraft need to do?The instrument imposes restrictions of a broad variety and are largely expressed to control the activity of Jabiru-powered aircraft pilots, flying schools and such schools’ Chief Flying Instructors:
- Flights may only occur during day time under the visual flight rules
- Aircraft can only be flown so they can at all times glide clear of a populous area
- Passengers and trainee pilots flying solo must now sign a statement saying they are aware of and accept the risk of an engine failure; and
- Trainee pilots must have recently and successfully completed engine failure exercises before conducting solo flights.
Will it work?As a risk mitigation strategy there is no doubt that the limitations imposed, albeit reactive rather than proactive, will assist in curbing the risk of damage from engine loss of power or reliability issues on aircraft with Jabiru engines.
It remains to be seen whether the time proposed (6 months) will be sufficient to identify all the contributing factors to the safety issues and suggest and implement appropriate corrective actions.
It would be unsurprising if the instrument’s validity was extended as those tasks are neither simple nor able to be resolved quickly, especially as they may involve historical data and manufacturing record analysis, together with a review of all the recent and prior incidents with these engines.
An important set of questions must be asked in conjunction with the desired outcome of the regulation:
- How will it affect aviation businesses in the short term?
- Why weren’t the safety issues actioned or investigated earlier?
- Why weren’t airworthiness standards re-examined after the first handful of issues arose (which suggested graver systemic problems)?
Lack of evaluation of impact on flying schoolsIt defies logic that such legislation could be approved and go into effect two days before Christmas with only a brief note in the Explanatory Statement saying that the Office of Best Practice Regulation (OBPR) considered the operational limitations would likely have “a minor regulatory impact on business, community organisations and individuals”: (Explanatory Statement to CASA 292/14, emphasis added).
The OBPR is a division of the Department of the Prime Minister and Cabinet, whose role is to administer the Australian Government’s regulatory impact analysis requirements. When a Government agency with legislative making functions proposes new/amended regulation then the agency must contact the OBPR to seek advice on whether a “Regulation Impact Statement” (RIS) is required. When an agency makes regulatory decisions that “would encourage or force businesses or individuals to pursue their interests in way they would not otherwise have done” then typically the agency will be informed by the OBPR that the proposed regulation would have an impact on businesses or individuals, and be required to analyse the impact in a RIS (a substantial document).
Preparation of a RIS in appropriate circumstances is an element of best practice regulation as it demonstrates a clear assessment of the costs and benefits of the regulatory option(s) and would thus have evidenced some analysis of the impact this particular proposal (which principally is directed at flying training organisations and students) would have.
Our experience of the impact on operatorsThe Shine Lawyers Aviation Department has received enquiries from several aviation organisations which confirm that the impact on them has been anything but “minor”. When flying training organisations who rely on aircraft powered by this Australian suite of powerplants no longer are able to rely on them in the same way, it creates substantial negative impacts.
The principal difficulties are associated with the loss of student confidence in training aircraft, and thereby, consequential business losses by flying training organisations which are high and difficult to quantify, given the uncertainty of the outcome of CASA’s investigation of Jabiru. Evolving experience is showing that many students are typically unwilling to accept the import of the one page A4, 8 paragraph, ALL CAPS “Acknowledgement and Acceptance of Risk Potential Engine Malfunction during Flight Time” document now required to be signed by them.
Thus, the problems for operators will not necessarily cease on 30 June 2015 when the self-ceasing legislative instrument ceases to have the force of law.
These issues may easily be dismissed as insignificant in the context of the harm which could arise from the failure of the regulator to act at all.
But that line of thinking begs deeper questions as to why 46+ incidents of engine failure and reliability came to the attention of CASA so late, without earlier action and without full regard for the impact on operators who must now accept the burden of this regulation and its inescapable effects on their flying training businesses.
What can we do for those affected?We encourage any flying training organisations or aviation organisation faced with adverse economic and business outlooks, due to this legislative instrument, to share their story with us.
The Shine Lawyers Aviation Department is investigating the potential legal remedies which may be sought from various parties arising from the way these safety risks have been dealt with, and is looking at a range of options for operators who have suffered losses.
Contact us for more information.
Written by Shine Lawyers. Last modified: September 26, 2018.