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Page 2
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� 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 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.
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