Book: Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster

S >> Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan >> Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission of Inquiry into the Mount Erebus Aircraft Disaster



JUDGMENTS OF THE COURT OF APPEAL OF NEW ZEALAND ON PROCEEDINGS TO REVIEW
ASPECTS OF THE REPORT OF THE ROYAL COMMISSION OF INQUIRY INTO THE MOUNT
EREBUS AIRCRAFT DISASTER

C.A. 95/81

In the Court of Appeal of New Zealand--Between Air New Zealand Limited,
First Applicant, and Morrison Ritchie Davis, Second Applicant, and Ian
Harding Gemmell, Third Applicant, and Peter Thomas Mahon, First
Respondent, and the Attorney-General, Fourth Respondent, and New Zealand
Airline Pilots Association, Fifth Respondent, and the Attorney-General,
Sixth Respondent.


_Coram_

Woodhouse P.
Cooke J.
Richardson J.
McMullin J.
Somers J.


_Hearing_

5, 6, 7, 8, 9 and 12 October 1981.


_Counsel_

L.W. Brown Q.C. and R.J. McGrane for first and second applicants.

D.A.R. Williams and L.L. Stevens for third applicant.

G.P. Barton and R.S. Chambers for first respondent.

C.J. McGuire for fourth respondent (Civil Aviation Division)--leave to
withdraw.

A.F. MacAlister and P.J. Davison for fifth respondent.

W.D. Baragwanath and G.M. Harrison for sixth respondent.


_Judgment_

22nd December 1981.




JUDGMENT OF COOKE, RICHARDSON and SOMERS JJ.


On 5 August 1981, for reasons then given, this Court ordered that these
proceedings be removed as a whole from the High Court to this Court for
hearing and determination. They are proceedings, brought by way of
application for judicial review, in which certain parts of the report of
the Royal Commission on the Mount Erebus aircraft disaster are attacked.
In summary the applicants claim that these parts are contrary to law, in
excess of jurisdiction and in breach of natural justice.

One of the reasons for ordering the removal was that it was important
that the complaints be finally adjudicated on as soon as reasonably
practicable. We had in mind that the magnitude of the disaster--257
lives were lost--made it a national and indeed international tragedy, so
the early resolution of any doubts as to the validity of the report was
a matter of great public concern. Also the report contained very severe
criticism of certain senior officers of Air New Zealand. Naturally this
criticism must have been having damaging and continuing effects, as
evidenced for instance by the resignation of the chief executive, so it
was right that the airline and the individuals should have at a
reasonably early date a definite decision, one way or the other, on
whether their complaints were justified.

In the event the hearing in this Court was completed in less than six
days. We had envisaged that some further days might be required for
cross-examination, as there were applications for leave to cross-examine
the airline personnel and the Royal Commissioner himself on affidavits
that they had made in the proceedings. But ultimately the parties
elected to have no cross-examination--and it should be made clear that
this was by agreement reached between the parties, not by decision of
the Court. With the benefit of the very full written and oral arguments
submitted by counsel, the Court is now in a position to given judgment
before the end of the year.

We must begin by removing any possible misconception about the scope of
these proceedings. They are not proceedings in which this Court can
adjudicate on the causes of the disaster. The question of causation is
obviously a difficult one, as shown by the fact that the Commissioner
and the Chief Inspector of Air Accidents in his report came to different
conclusions on it. But it is not this Court's concern now. This is not
an appeal. Parties to hearings by Commissions of Inquiry have no rights
of appeal against the reports. The reason is partly that the reports
are, in a sense, inevitably inconclusive. Findings made by Commissioners
are in the end only expressions of opinion. They would not even be
admissible in evidence in legal proceedings as to the cause of a
disaster. In themselves they do not alter the legal rights of the
persons to whom they refer. Nevertheless they may greatly influence
public and Government opinion and have a devastating effect on personal
reputations; and in our judgment these are the major reasons why in
appropriate proceedings the Courts must be ready if necessary, in
relation to Commissions of Inquiry just as to other public bodies and
officials, to ensure that they keep within the limits of their lawful
powers and comply with any applicable rules of natural justice.

Although this is not an appeal on causation or on any other aspect of
the Commission's report, the issues with which this Court is properly
concerned--the extent of the Commissioner's powers in this inquiry, and
natural justice--cannot be considered without reference to the issues
and evidence at the inquiry. We are very conscious that we have not had
the advantage of seeing and hearing the witnesses. It can be very real,
as all lawyers know. It is true that the kind of analytical argument we
heard from counsel, with concentration focused on the passages of major
importance in the report and the transcript of evidence, can bring
matters into better perspective than long immersion in the details of a
case. Necessarily this Court is more detached from the whole matter than
was the Commissioner. And several different judicial minds may combine
to produce a more balanced view than one can. But as against those
advantages, which we have had, there is the advantage of months of
direct exposure to the oral evidence, which he had. So we have to be
very cautious in forming opinions on fact where there is any room for
different interpretations of the evidence.

Having stressed those limitations on the role of this Court, we think it
best to state immediately in general terms the conclusions that we have
reached in this case. Then we will go on to explain the background, the
issues and our reasoning in more detail. Our general conclusion is that
the paragraph in the report (377) in which the Commissioner purported to
find that there had been 'a pre-determined plan of deception' and 'an
orchestrated litany of lies' was outside his jurisdiction and contained
findings made contrary of natural justice. For these reasons we hold
that there is substance in the complaints made by the airline and the
individuals. Because of those two basic defects, an injustice has been
done, and to an extent that is obviously serious. It follows that the
Court must quash the penal order for costs made by the Commissioner
against Air New Zealand reflecting the same thinking as paragraph 377.


The Disaster

In 1977 Air New Zealand began a series of non-scheduled sightseeing
flights to the Antarctic with DC10 aircraft. The flights left and
returned to New Zealand within the day and without touching down en
route. The southernmost point of the route, at which the aircraft turned
round, was to be at about the latitude of the two scientific bases,
Scott Base (New Zealand) and McMurdo Station (United States), which lie
about two miles apart, south of Ross Island. On Ross Island there are
four volcanic mountains, the highest being Mount Erebus, about 12,450
feet. To the west of Ross Island is McMurdo Sound, about 40 miles long
by 32 miles wide at the widest point and covered by ice for most of the
year.

It was originally intended that the flight route south would be over
Ross Island at a minimum of 16,000 feet. From October 1977, with the
approval of the Civil Aviation Division, descent was permitted south of
the Island to not lower than 6000 feet, subject to certain conditions
concerning weather and other matters. However, the evidence is that the
pilots were in practice left with a discretion to diverge from these
route and height limitations in visual meteorological conditions; and
they commonly did so, flying down McMurdo Sound and at times at levels
lower than even 6000 feet. This had advantages both for sightseeing and
also for radio and radar contact with McMurdo Station. Moreover from
1978 the flight plan, recording the various waypoints, stored in the Air
New Zealand ground computer at Auckland actually showed the longitude of
the southernmost waypoint as 164 deg. 48' east, a point in the Sound
approximately 25 miles to the west of McMurdo Station.

The evidence of the member of the airline's navigation section who typed
the figures into the computer was that he must have mistakenly typed
164 deg. 48' instead of 166 deg. 48' and failed to notice the error.
Shortly before the fatal flight the navigation section became aware that
there was some error, although their evidence was that they understood it
to be only a matter of 10 minutes of longitude. In the ground computer the
entry was altered to 166 deg. 58' east, and this entry was among the many
in the flight plan handed over to the crew for that flight for typing into
the computerised device (AINS) on board the aircraft. The change was not
expressly drawn to the attention of the crew. The AINS enables the pilot
to fly automatically on the computer course ('nav' track) at such times
as he wishes.

The crash occurred at 12.50 pm on 28 November 1979. The aircraft struck
the northern slopes of Mount Erebus, only about 1500 feet above sea
level. There were no survivors. The evidence indicates that the weather
was fine but overcast and that the plane had descended below the cloud
base and was flying in clear air. The pilot, Captain Collins, had not
been to the Antarctic before, and of the other four members of the
flight crew only one, a flight engineer, had done so. The plane was on
nav track.

The Chief Inspector of Air Accidents, Mr R. Chippindale, carried out an
investigation and made a report to the Minister, dated 31 May 1980,
under reg. 16 of the Civil Aviation (Accident Investigation) Regulations
1978. It was approved by the Minister for release as a public document.
The Chief Inspector concluded that 'The probable cause of the accident
was the decision of the captain to continue the flight at low level
toward an area of poor surface and horizon definition when the crew was
not certain of their position and the subsequent inability to detect the
rising terrain which intercepted the aircraft's flight path'. He adhered
to this in evidence before the subsequent Royal Commission.

The Royal Commission was appointed on 11 June 1980 to inquire into 'the
causes and circumstances of the crash', an expression which was
elaborated in terms of reference consisting of paragraphs (a) to (j).
Mr. Justice Mahon was appointed sole Commissioner. In his report,
transmitted to the Governor-General by letter dated 16 April 1981 and
subsequently presented to the House of Representatives by Command of His
Excellency and later printed for public sale, the Commissioner found
that '... the single dominant and effective cause of the disaster was
the mistake made by those airline officials who programmed the aircraft
to fly directly at Mt. Erebus and omitted to tell the aircrew'. He
exonerated the crew from any error contributing to the disaster.

The Commissioner and the Chief Inspector were at one in concluding that
the crash has occurred in a whiteout. The Commissioner gave this vivid
reconstruction in the course of para. 40 of his report:

I have already made it clear that the aircraft struck the lower
slopes of Mt. Erebus whilst flying in clear air. The DC10 was at
the time flying under a total cloud cover which extended forward
until it met the mountain-side at an altitude of somewhere between
2000 and 2500 feet. The position of the sun at the time of impact
was directly behind the aircraft, being in a position approximately
to the true north of the mountain and shining at an inclination of
34 deg. The co-existence of these factors produced without doubt the
classic 'whiteout' phenomenon which occurs from time to time in
polar regions, or in any terrain totally covered by snow. Very
extensive evidence was received by the Commission as to the
occurrence and the consequences of this weather phenomenon. So long
as the view ahead from the flight deck of an aircraft flying over
snow under a solid overcast does not exhibit any rock, or tree, or
other landmark which can offer a guide as to sloping or uneven
ground, then the snow-covered terrain ahead of the aircraft will
invariably appear to be flat. Slopes and ridges will disappear. The
line of vision from the flight deck towards the horizon (if there
is one) will actually portray a white even expanse which is
uniformly level.

What this air crew saw ahead of them as the aircraft levelled out
at 3000 feet and then later at 1500 feet was a long vista of flat
snow-covered terrain, extending ahead for miles. Similarly, the
roof of the solid overcast extended forward for miles. In the far
distance the flat white terrain would either have appeared to have
reached the horizon many miles away or, more probably, merged
imperceptibly with the overhead cloud thus producing no horizon at
all. What the crew could see, therefore, was what appeared to be
the distant stretch of flat white ground representing the flat long
corridor of McMurdo Sound. In reality the flat ground ahead
proceeded for only about 6 miles before it intercepted the low ice
cliff which marked the commencement of the icy slope leading
upwards to the mountain, and at that point the uniform white
surface of the mountain slope proceeded upwards, first at an angle
of 13 deg., and then with a gradually increasing upward angle as it
merged with the ceiling of the cloud overhead. The only feature of
the forward terrain which was not totally white consisted of two
small and shallow strips of black rock at the very bottom of the
ice cliff, and these could probably not be seen from the flight
deck seats owing to the nose-up attitude of 5 deg. at which the
aircraft was travelling, or they were mistaken for thin strips of
sea previously observed by the crew as separating blocks of pack
ice.

The aircraft had thus encountered, at a fateful coincidence in
time, the insidious and unidentifiable terrain deception of a
classic whiteout situation. They had encountered that type of
visual illusion which makes rising white plateaux appear perfectly
flat. This freak of polar weather is known and feared by every
polar flier. In some Arctic regions in the Canadian and in the
north European winter, it is responsible for numbers of light
aircraft crashes every year. Aircraft fly, in clear air, directly
into hills and mountains. But neither Captain Collins nor First
Officer Cassin had ever flown at low altitude in polar regions
before. Even Mr Mulgrew [the commentator for the passengers], with
his antarctic experience, was completely deceived. The fact that
not one of the five persons on the flight deck ever identified the
rising terrain confirms the totality of this weird and dangerous
ocular illusion as it existed on the approach to Mt. Erebus at
12.50 p.m. on 28 November 1979.

Paragraph 165 of the Commissioner's report also merits quotation. We
have underlined some of it, indicating that in this particular part of
his report the Commissioner seems to accept that when they first heard
of the crash the management of the airline must have been unaware of the
true nature and danger of a whiteout. If so, they would have had no
reason to suppose that the pilot would have elected to fly at such a low
level without real visibility. That is an aspect which could well have
been strongly relied on if, when giving evidence before the
Commissioner, they had realised that they were being accused of trying
to cover up the cause of the crash from an early stage:

The term 'whiteout' has more than one meaning as being descriptive
of weather conditions in snow-covered terrain. For aviation
purposes it is often described as the cause of the visual
difficulty which occurs when a aircraft is attempting to land
during a snowstorm. As already stated, the United States Navy
maintains a special whiteout landing area situated to the south of
its normal landing strips near McMurdo Station. This area is used
when an aircraft, which is committed to a landing, is required to
land when visibility is obscured by a snowstorm. The snow in
Antarctica is perfectly dry, and a wind of only 20 kilometres can
sweep loose snow off the surface and fill the air with these fine
white particles. A landing on the special whiteout landing field
can be accomplished only by an aircraft equipped with skis or, in
the case of an aircraft without skis, then it must make a belly-up
landing on this snow-covered emergency airfield. Flying in a
'whiteout' of that description is no different from flying in thick
cloud. The pilot cannot know where he is and must land in
accordance with strict radio and radar directions. So far as I
understand the evidence, I do not believe that either the airline
or Civil Aviation Division ever understood the term 'whiteout' to
mean anything else than a snowstorm. I do not believe that they
were ever aware, until they read the chief inspector's report of
the type of 'whiteout' which occurs in clear air, in calm
conditions, and which creates this visual illusion which I have
previously described and which is, without doubt, the most
dangerous of all polar weather phenomena.

While largely agreed about the whiteout conditions, the Commissioner and
the Chief Inspector took quite different views as to whether the crew
had been uncertain of their position and visibility. This disagreement
is associated with a major difference as to the interpretation of the
tape recovered from the cockpit voice recorder covering the conversation
on the flight deck during the 30 minutes before the crash.

Both the Commissioner and the Chief Inspector found difficulty in
arriving at an opinion about what was said and by whom. Whereas the
Chief Inspector thought that the two flight engineers had voiced
mounting alarm at proceeding at a low level towards a cloud-covered
area, the Commissioner thought that Captain Collins and First Officer
Cassin had never expressed the slightest doubt as to where the aircraft
was and that 'not one word' was ever addressed by either of the flight
engineers to the pilots indicating any doubt. This is not a question on
which the present proceedings call for any opinion from this Court, nor
are we in any position to give one.

A major point in the Commissioner's reasoning, and one that helps to
explain the difference between the two reports, is that on the basis of
evidence from the wife and two daughters of Captain Collins he accepted
that, at home the night before the flight, the Captain had plotted on an
atlas and two maps a route of the flight; and he drew the inference that
Captain Collins must then have had with him a computer print-out. Any
such print-out would have been made before the alteration and
consequently would have shown the longitude of the southernmost waypoint
as 164 deg. 48' E. The Commissioner accordingly concluded that Captain
Collins had plotted a route down the Sound. No doubt this tended to
reinforce his view that the Captain, flying on nav track, had never
doubted that he was in fact over the Sound.


The Challenged Paragraphs

The background already given is needed for an understanding of the case.
But we repeat that the case is not an appeal from the Commissioner's
findings on causation or other matters. The applicants acknowledge that
they have no rights of appeal. What they attack are certain paragraphs
in the Commission report which deal very largely, not with the causes
and circumstances of the crash, but with what the Commissioner calls
'the stance' of the airline at the inquiry before him. The applicants
say that in these paragraphs the Commissioner exceeded his powers or
acted in breach of natural justice; and further that some of his
conclusions were not supported by any evidence whatever of probative
value. Their counsel submit that a finding made wholly without evidence
capable of supporting it is contrary to natural justice.

The arguments on the other side were presented chiefly by Mr Baragwanath
and Mr Harrison, who had been counsel assisting the Commission and
appeared in this Court for the Attorney-General, not to advance any view
on behalf of the Government but to ensure that nothing that could
possibly be said in answer to the contentions of Mr Brown and Mr
Williams for the applicants was left unsaid before the Court. This was
done because it has not been usual for a person in the position of the
Commissioner to take an active part in litigation concerning his report.
Mr Barton, who appeared for the Commissioner, did not present any
argument, adopting a watching role. He indicated that he would only have
played an active role if the Commissioner had been required for
cross-examination. As already mentioned, it was agreed otherwise. At
that stage the Commissioner, by his counsel, very properly stated that
he would abide the decision of the Court.

Mr Baragwanath's submissions were to the general effect that the Court
had no jurisdiction to interfere with the opinions expressed in the
Commission's report, which were not 'findings' and bound no one; and
that in any event they were conclusions within the Commissioner's
powers, open to him on the evidence and arrived at without any breach of
natural justice.

We now set out the various paragraphs under attack, bearing in mind that
they cannot properly be considered in isolation from the context in the
report. The paragraphs vary in importance, but it is convenient to take
them in the numerical order of the report. We will indicate as regards
each paragraph or set of paragraphs the essence of the complaint. After
doing this we will state how we propose to deal with the complaints.


Destruction of Documents

Paragraphs 45 and 54, which affect particularly the chief executive at
the time of the crash, Morrison Ritchie Davis, are as follows:

45. The reaction of the chief executive was immediate. He
determined that no word of this incredible blunder was to become
publicly known. He directed that all documents relating to
antarctic flights, and to this flight in particular, were to be
collected and impounded. They were all to be put on one single file
which would remain in strict custody. Of these documents all those
which were not directly relevant were to be destroyed. They were to
be put forthwith through the company's shredder.

54. This was at the time the fourth worst disaster in aviation
history, and it follows that this direction on the part of the
chief executive for the destruction of 'irrelevant documents' was
one of the most remarkable executive decisions ever to have been
made in the corporate affairs of a large New Zealand company. There
were personnel in the Flight Operations Division and in the
Navigation Section who anxiously desired to be acquitted of any
responsibility for the disaster. And yet, in consequence of the
chief executive's instructions, it seems to have been left to these
very same officials to determine what documents they would hand
over to the Investigating Committee.

These paragraphs occur in the context of a discussion of the change in
the computer waypoint shortly before the flight and the failure to draw
it to the attention of the flight crew. The reference to the chief
executive having 'determined that no word of this incredible blunder was
to become publicly known' is, taken by itself, at least an
overstatement, because in paragraph 48 the Commissioner in effect
qualifies it. He says there that it was inevitable that the facts would
become known and 'perhaps' the chief executive had only decided to
prevent adverse publicity in the meantime. Clearly the airline disclosed
to the Chief Inspector that the change of more than two degrees of
longitude had been made in the computer early on the day of the flight
and not mentioned to the crew; these matters are referred to in
paragraphs 1.17.7 and 2.5 of the Chief Inspector's report. They were
matters which the Chief Inspector did not highlight; evidently he did
not regard them as of major importance. For his part the Commissioner
(in para. 48 of his report) states that the Chief Inspector did not make
it clear that the computer flight path had been altered before the
flight and the alteration not notified to the crew.

We are not concerned with whether or not the Commissioner's implied
criticism of the Chief Inspector's report is correct. The complaint made
by the applicants is that the criticisms of Mr Davis in the two
paragraphs that we have set out are based on mistake of fact, not on
evidence of probative value. It is also said that he was not given a
fair opportunity to put his case in relation to such findings, but what
the applicants most stress is the way in which the Commissioner dealt
with the evidence.

Copyright (c) 2007. knowncrafts.net. All rights reserved.