ELOM:2023:002| Mid-air collision between two paramotors | North Holland

Decree, order or decision | 31-03-2023

PPS Decision

in the case against a pilot of a paramotor trike, referred to below as the suspect [B].

Reason for the investigation

The investigation was opened following two occurrence reports regarding a mid-air
collision between two paramotors near [place]. The Aviation Occurrence Analysis
Bureau (ABL) referred these reports to the PPS. The first report, made by suspect [A]¹,
was referred on 28 July 2022 because, according to the ABL, it gave rise to a suspicion
of gross negligence.² The second report, made by suspect [B], was referred to the PPS
a day later.

¹ See ELOM:2023:001

² This referral is based on the cooperation agreements between the PPS and the ABL under Just Culture. The PPS does not generally have access to occurrence reports made under Regulation 376/2014. The ABL only pursues such reports if it suspects that the boundaries of Just Culture have been crossed, i.e. in cases of suspected intent or gross negligence. The PPS can then investigate whether or not that is the case. See also Section 3.1 of the Instruction on the investigation and prosecution of civil aviation occurrences.

Suspected offence

Violation of Article 169 of the Dutch Penal Code, Article 5.3 of the Aviation Act and
Article 50 (1) opening words under d and 5° of the National Aviation Safety
Regulations.

Hearing at the public prosecutor's office

Following receipt of the aviation police report on 19 January 2023, [B] was invited to a
hearing with the aviation prosecutor on 1 March 2023 at the public prosecutor's office in Haarlem. [B] accepted that invitation.

Following the interview with [B], the aviation prosecutor asked the aviation police to
take an additional witness statement from [A]. This was because it was not sufficiently clear to what extent parts of [B]'s statement could be reconciled with [A]'s statement.

The additional witness statement of [A] clarified these matters to the satisfaction of the aviation prosecutor.

Facts and circumstances

The aviation prosecutor arrived at the following findings based on the police
investigation, the interview and the additional witness statement.

1. Initial accident findings
   On [date in the year] 2022, [B] crashed with his paramotor trike near the [beach] at [place] and was suspended in a tree by his parachute. He descended unharmed with the help of camping site guests present at the scene. Two camping site guests testified as witnesses that he had shouted from the tree that they should not call the police. [B] denied this during the interview. It should however be noted that he stated to the officers of the police [region], who came to the scene following a report of the accident, that he did not know how the tear in his parachute had been caused. He also allegedly stated that the paramotor trike became uncontrollable due to that tear and had come down at full speed. He answered in the negative to the question of whether he might have hit the other pilot, who had been seen by witnesses (and who turned out later to be [A]), in the air. In view of the above, a unilateral accident was assumed for the time being and it was decided not to conduct any further investigation.
2. New information from referred occurrence reports 
   On [date in the year] 2022, the ABL referred an occurrence report that was considered to give rise to a suspicion of gross negligence. This was the report of [A]. [B]'s report was also referred a day later. It is notable that [A]'s report is a comprehensive account of the occurrence, while [B] only reported that the paramotors crossed in mid-air at 350 metres. This does not necessarily imply, as he was told during the interview, that an accident had also occurred.
3. Skytraxx data
   In that context, with a warrant from the PPS and authorisation from the examining magistrate, the Skytraxx data was requisitioned from the Royal Netherlands Aeronautical Association (KNVvL), which had obtained the data for the purpose of an internal safety investigation. The KNVvL had permission from both [A] and [B] to provide this data. The data has been merged into Google Earth, such that the two flights are displayed simultaneously.
   
   Based on the data, it can be established that [A], flying his paramotor (a powered paraglider/foot-starter), took off first from a field in [place] and that [B] followed him shortly after with his paramotor trike. [B] then continued to fly behind [A], with both [A] and [B] flying in straight lines and making gradual turns. Along the waterline, [B] flew to the right of [A]'s imaginary line at one point and then to his left again. Ample distance was maintained during these course changes. This criminal case focuses in particular on the movements that follow. [B] appears to have closely approached [A] on two occasions and then overtaken [A] at his higher speed. These aircraft movements by [B] resulted in a mid-air collision.
4. Suspects' statements
   [B] stated during his police questioning that he believes that, viewed with hindsight, he did not pay sufficient attention to his position in relation to [A]. He stated that he has ELOM:2023:002 learned from this that he needs to also be aware of the other pilot’s speed. The only agreement they had made with each other was that [B] would follow [A]. He further stated that his emergency chute ended up in his parachute and that he had very poor radio contact in the air.
   
   During the interview, he emphatically reiterated the latter point. He said (in summarised form) that the main lessons for him are that the emergency chute should not have lines as long as the parachute and that there should be a good radio link. It was not his intention to exonerate himself by saying this, since he ended up flying into [A].
5. The statements of [A]
   [A] takes a different view of the event. He stated to the aviation police that [B] started flying too close, endangering not only himself but also him and bystanders. It was not made clear in his statement that the radio was not a problem that day.
   
   Following the interview with [B], the aviation prosecutor had an additional statement taken from [A]. [A] stated at that time that there was nothing wrong with the radio. Initially, [B] was willing to pay for the damage to the propeller, but according to [A], [B] then decided to add this to the insurance claim in view of higher costs caused by the cage also being damaged. The damage, €2583 for the cage and €351.50 for the propeller, had not yet been compensated.
6. Assessment of the statements
   The additional statement of [A] chimes with the witnesses' statements that [B] did not want the police to be called and with the fact that [B] did not make it clear either to the police or when reporting to the ABL that there had been a bilateral accident. In view of this, the aviation prosecutor gives credence to [A]'s account of the event in his report to the ABL and his statements to the aviation police. This also means that the aviation prosecutor does not believe that the radio link was a problem that day, although, of course, a good radio link is always important.

Decision

The aviation prosecutor made an out-of-court settlement decision on 16 March 2023
after considering all the facts and circumstances. The aviation prosecutor considers the most serious suspicion, the offence under Article 169 of the Dutch Penal Code, not proven for these reasons. For this purpose, it must be established that [B] was
responsible for damage to an aircraft while causing danger to another person's life. The evidence falls short of that. In the opinion of the aviation prosecutor, although it can be established that [B] is to blame for [A]'s paramotor being damaged, the fact that he was subsequently able to make a precautionary landing shows that there is not enough to justify the claim of a 'danger to life'.

The aviation prosecutor does however consider that [B] causing 'danger' to [A] is not in dispute. Therefore, this situation constitutes a violation of Article 5.3 of the Aviation
Act. By approaching [A] closely on two occasions and also overtaking him, [B], in the
opinion of the aviation prosecutor, participated in air traffic in a way that caused danger to [A] and his paramotor. The aviation prosecutor also considered [B's] flying behaviour to be grossly negligent.

ELOM:2023:002

The impression gained by the aviation prosecutor is that [B] finds it difficult to admit his mistake. The aviation prosecutor understands that the event also had an impact on him, but certainly with the passage of time the way was open for [B] to reflect on his actions and apologise to [A]. [B] not only caused [A] to suffer losses but also placed him in danger.
The aviation prosecutor's decision gives weight to her belief that [A]'s damages must be covered in the short term and that the right lessons must be learned from this accident. She therefore decided to dismiss the case provided that [B] pays [A]'s damages in full in the short term - regardless of the position taken by his insurer.
Based on [A]'s statement and the invoice attached to his statement, the damage to the propeller can be set at €351.51. For the damage to the cage, there is an offer in the amount of €2,583.

[B] paid the damages on 31 March 2023. This favourably altered the circumstances in
such a way that the case against [B] was dismissed.

Other learning points

Although, in the opinion of the aviation prosecutor, this does not go to the heart of this case, they pointed out that there are other, more general, lessons to be learned. For instance, it is important for pilots to make clear mutual agreements. Moreover, a good radio link - which in the opinion of the aviation prosecutor was not the problem in this case - is an important instrument of which other paramotors should be clearly aware.

The same applies to for a properly functioning emergency chute.