Judgments of the Court of Appeal of New Zealand on Proceedings to Review Aspects of the Report of the Royal Commission Part 1

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.

by Sir Owen Woodhouse, R. B. Cooke, Ivor L. M. Richardson, Duncan Wallace McMullin, and Sir Edward Somers.

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 a.n.a.lytical argument we heard from counsel, with concentration focused on the pa.s.sages 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 lat.i.tude 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 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 48' instead of 166 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 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 doc.u.ment.

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 circ.u.mstances 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 alt.i.tude 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 s.h.i.+ning at an inclination of 34. The co-existence of these factors produced without doubt the cla.s.sic '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, 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 att.i.tude of 5 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 cla.s.sic 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 Ca.s.sin had ever flown at low alt.i.tude in polar regions before. Even Mr Mulgrew [the commentator for the pa.s.sengers], 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 a.s.sociated with a major difference as to the interpretation of the tape recovered from the c.o.c.kpit 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 Ca.s.sin 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 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 circ.u.mstances 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 a.s.sisting 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 Doc.u.ments

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 doc.u.ments 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 doc.u.ments 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 doc.u.ments' 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 doc.u.ments 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.

In particular they point out that the evidence of Mr Davis, not contradicted by any other evidence and correctly summarised in paragraph 45 of the Commissioner's report, was that only copies of existing doc.u.ments were to be destroyed; that he did not want any surplus doc.u.ment to remain at large in case its contents were released to the news media by some employee of the airline; and that his instructions were that all doc.u.ments of relevance were to be retained on the single file. Their counsel submit in effect that in converting this direction for the preservation of all relevant doc.u.ments into a direction for the destruction of 'irrelevant' doc.u.ments--a word used by the Commissioner as if it were a quotation from Mr Davis--the Commissioner distorted the evidence. And it is said that the description 'one of the most remarkable executive decisions every to have been made in the corporate affairs of a large New Zealand company' is, to say the least, far-fetched.

Counsel for the applicants point also to the fact that there is no evidence that any doc.u.ment of importance to the inquiry was destroyed in consequence of the instructions given by Mr Davis. The gist of the contrary argument presented by Mr Baragwanath was that Mr Davis was fully cross-examined about his instructions; and that 'it was open to the Royal Commissioner to find that there were in existence doc.u.ments which never found their way to that file and that the procedures were tailor made for destruction of compromising doc.u.ments'.

Alteration of Flight Plan

Paragraph 255 (e) and (f), in numerical order the next pa.s.sages complained of, refer to the fact that when the co-ordinates in the Auckland computer were altered a symbol was used which had the effect of including in the information to be sent to the United States air traffic controller at McMurdo Station the word 'McMurdo' instead of the actual co-ordinates (lat.i.tude and longitude) of the southernmost waypoint. The Commissioner said:

(e) When the TACAN position [a navigational aid at McMurdo Station enabling aircraft to ascertain their distance from it] was typed into the airline's ground computer in the early morning of 28 November 1979, there was also made the additional entry to which I have referred, which would result in the new co-ordinates not being transmitted to McMurdo with the Air Traffic Control flight plan for that day. It was urged upon me, on behalf of the airline, that McMurdo Air Traffic Control would consider the word 'McMurdo' as indicating a different position from that appearing on Air Traffic Control flight plans dispatched from Auckland during 1978 and 1979.

I cannot for a moment accept that suggestion. First Officer Rhodes made a specific inquiry at McMurdo within a few days of the disaster and ascertained that the destination waypoint of the first Air Traffic Control flight plan for 1979 had been plotted by the United States Air Traffic Control personnel, and there was evidence from the United States witnesses that this would be normal practice. In my view the word 'McMurdo' would merely be regarded, and was indeed regarded, by McMurdo Air Traffic Control as referring to the same McMurdo waypoint which had always existed. In my opinion, the introduction of the word 'McMurdo' into the Air Traffic Control flight plan for the fatal flight was deliberately designed to conceal from the United States authorities that the flight path had been changed, and probably because it was known that the United States Air Traffic Control would lodge an objection to the new flight path.

(f) I have reviewed the evidence in support of the allegation that the Navigation Section believed, by reason of a mistaken verbal communication, that the altered McMurdo waypoint only involved a change of 2.1 nautical miles. I am obliged to say that I do not accept that explanation. There were certainly grave deficiencies in communication within the Navigation Section, but the high professional skills of the Navigation Section's staff entirely preclude the possibility of such an error. In my opinion this explanation that the change in the waypoint was thought to be minimal in terms of distance is a concocted story designed to explain away the fundamental mistake, made by someone, in failing to ensure that Captain Collins was notified that his aircraft was now programmed to fly on a collision course with Mt. Erebus.

These paragraphs are attacked on the grounds, in short, that the members of the navigation section said to be adversely affected by them--according to the applicants, Mr R. Brown as regards (e) and Messrs Amies, Brown, Hewitt and Lawton as regards (f)--were not given a fair opportunity of answering the findings or allegations.

To understand this complaint one needs a clear picture of what it was that the Commission found or alleged against the navigation section.

When studying the report as a whole we have encountered difficulties in this regard, difficulties not altogether removed when we explored them during the argument with Mr Baragwanath. But our understanding is that in essence the Commissioner suggests that the original change of the southernmost point to one in the Sound, 25 miles west of McMurdo Station, was probably deliberate on the part of the navigation section (although he refrained from a definite finding) and that in November 1979 they deliberately made a major change back to the vicinity of McMurdo Station but deliberately set out to conceal the change from the American personnel there. The motive for the 1979 change ascribed by the Commissioner to the navigation section appears to be that they considered that the New Zealand Civil Aviation Division had only approved a route over Mount Erebus, yet at the same time that the American 'authorities' would object to that route, regarding the route down the Sound as safer. In short the theory (if we understand it correctly) is that the navigation section were in a dilemma as there was no route approved by all concerned.