A commercial airline pilot accused of being at risk of killing all his passengers has won a scathing court judgment against the Civil Aviation Authority.
File image. Photo: 123RF
The judge says the Crown regulator may have been "primed to over-react" when it banned Graham Lindsay, while suggesting he was a narcissist and a stalker.
Lindsay was put through medical checks and then grounded during a period of turmoil at the CAA.
Judge Tompkins' ruling said the CAA did not have grounds to do this.
The agency's director, acting through its principal medical officer, "was overzealous and incorrect in his misplaced and unsupported view that Mr Lindsay constituted a threat to aviation safety".
CAA says it accepts the judge's criticisms and that there were "clear shortcomings".
Lindsay told RNZ it had taken him five years to clear his name but "was worth it".
Unusual accusation
Now 63, he was a senior captain flying for Cathay Pacific in Hong Kong when the CAA received an accusation - that he was mentally unstable.
Initially anonymous, it said "that he posed a risk of deliberately crashing his aircraft and killing himself, his crew and all his passengers", a Wellington District Court ruling said.
It turned out his accuser was the husband of his ex-wife, who had been through an acrimonious split with Lindsay.
Several medical experts assessed Lindsay. But CAA did not tell two of them who the informant was - when they found out later, they questioned the accusation's validity.
Principal medical officer Dougal Watson was initially wary too, but within a week suspended Lindsay's medical certificates anyway.
CAA put him under medical surveillance for two years.
No safety concerns emerged, nevertheless, in May 2018 the authority doubled down and banned him from carrying passengers.
"For the first time in his lengthy career, Mr Lindsay was unable to continue commercial flying," the judge said.
The ban was lifted within months.
But Lindsay did not let it lie.
At his appeal earlier this year, he broke down in court about the impacts on him, according to media reports.
Five years on, he has "comprehensively succeeded", the judge said.
Unusual threat
Homicide-suicide flights are unusual - there have only ever been 18 cases in history with 732 deaths.
On example was in 2015, when a suicidal co-pilot killed 150 people in a crash in France.
Watson that same year made a presentation to a local medical aviation group about that crash and in April 2016 wrote about the risks in an international journal.
A month later, the accusation against Lindsay landed.
"The timing of the publication of this paper .... is at least suggestive of the possibility that Dr Watson was primed to over-react to Mr Lindsay's case," the judge said.
The psychiatrist CAA turned to, Dr Chris Kenedi, raised the issue of "personality structure" in regards to Lindsay: Later, Kenedi in a journal in 2019 wrote about personality structure as a key aviation risk factor.
CAA has always argued it was fulfilling its primary duty to passenger safety to respond how it did.
But the judge said the director used Lindsay's frustrations with what he was going through, to make "adverse non-factually based decisions" about his fitness.
The director was Graeme Harris, who went on to retire last year shortly after an investigation found CAA had a toxic culture of bullying for years.
The court ruling shows CAA hardly checked with anyone else about Lindsay's record.
Other pilots had called him "exceptional", "loyal, reliable and safe".
By contrast, shortly after aviation authorities in Hong Kong were alerted, they moved quickly to reinstate Lindsay. This should have given CAA big pause for thought, but did not, the judge said.
'Becoming a stalker'
Instead, at the end of two years of medical surveillance, assessments and meetings, Watson told a key meeting the pilot had "prominent narcissistic personality traits, possibly even a narcissistic personality disorder".
Watson had discussed this with Kenedi, who said Lindsay probably had "narcissistic personality structure".
Another strike against Lindsay was Watson's assertion his behaviour towards CAA staff showed he had impaired judgement under stress.
He later said Lindsay might be "stalking" him at industry conferences.
"I am getting a little concerned that that pilot is becoming a stalker of sorts," he emailed Kenedi in October 2017.
He also told colleagues this.
The judge called this unreasonable, biased and "somewhat self-serving".
His concerns were "inappropriately elevated to such a level that he began to have unfounded concerns for his safety".
Watson discussed personal alarms and Lindsay's picture was given to CAA's front desk so they could identify him.
Meanwhile, Lindsay was getting upset, protesting about emails he said showed CAA staff were discussing private personal details about him.
The solidness of the sanctions contrasted with the subjectiveness of the assessments.
"It appears likely that Dr Watson and Dr Kenedi were themselves subject to confirmation bias when it came to Mr Lindsay. This led to them adopting several negative and unreasonable interpretations of Mr Lindsay's actions and behaviours," the judge said.
CAA revoked the passenger ban in November 2018, though there had been no change in Lindsay's personality, according to another doctor's reports.
"The only thing that appeared to change .. was [the] (mis)interpretation of Mr Lindsay's conduct."
Other pilots and the wider industry told RNZ they are watching to see if CAA appeals the ruling under its new chief executive.
Dr Kenedi told RNZ he was unable to comment as this involved private health information, and CAA's right to appeal.
Aviation New Zealand, which represents commercial operators, said the industry badly needed an independent tribunal to consider cases like Lindsay's.
For now, the only way to challenge CAA was through the courts, said chief executive John Nicholson.
"Any action the CAA takes can impact on a pilot's career. It is therefore, critically important that what it does is open and transparent," he said.
But legal action was expensive, and left "complex aviation issues" to be considered by non-experts.
His organisation has made a submission to the new Civil Aviaton Bill that is before Parliament, for the select committee to look at legislating for a tribunal.
It was "disappointed that it is not in the current Bill," Nicholson said.
CAA response
New CAA chief executive Keith Manch said the decisions around Lindsay "clearly did not meet the standards that we are committed to and that I expect from our regulatory decision maker".
But he was confident its decision-making processes around medical certification were now "robust".
"The vast majority of our medical regulatory decisions are upheld when reviewed," Manch said in a statement to RNZ.
The case would feed into "work we have underway with industry (through the Air Line Pilots' Association) to look at ways we can improve the regulatory framework and our practices with respect to medical certification."
RNZ has approached Watson for comment.