"I would, with respect, also remind Your Honour that in the very
nature of these proceedings there has not been an opportunity for a
formal opening where one might have expected just that. But I would
further suggest, Sir, that the evidence advanced by the Company,
which has been in an attempt to bring every witness who can
contribute something towards the causal factors and everything else
has been done, not selectively, and there have been witnesses who
have plainly, unequivocally, acknowledged their fault, their error.
There has not in any way been a parade of witnesses all seeking to
criticize the flight crew and thus, as it were, exonerate
themselves. There has been an endeavour, without selection, to
reveal all the evidence to reveal all the documents ...".
This statement by senior counsel for the airline as to the manner in
which he had attempted to handle his responsibilities should be enough
to answer the complaint in the Appendix that "The management of the
airline _instructed its counsel_ to deny every allegation of fault, and
to counter-attack by ascribing total culpability to the air crew". The
tribute the Commissioner paid counsel in paragraph 375 (the same counsel
appeared in this Court for the applicants) is not altogether consistent
with those last remarks. In any event the appendix continues--
"Apart from that, there were material elements of information in
the possession of the airline which were originally not disclosed,
omissions for which counsel for the airline were in no way
responsible, and which successively came to light at different
stages of the Inquiry when the hearings had been going on for
weeks, in some cases for months."
A final comment should be made about the criticisms of the airline
concerning the position it adopted concerning pilot error as a cause of
the accident.
In the course of his evidence (at p. 272) Mr. Chippindale was asked by
the Commissioner: "Was not the position Capt. Collins must have clearly
have thought he was flying toward McMurdo over McMurdo Sound?" He said,
"It is my belief that this could be the only possible reason for him to
continue". That is an important answer. It means that in this respect
Mr. Chippindale had reached the same conclusion as the Commissioner but
for general reasons of logic whereas the latter was influenced by his
finding that Captain Collins had made use of the New Zealand Atlas or a
chart in order to plot the position of the waypoint and the route to be
taken by the aircraft.
But although this general conclusion about McMurdo Sound was shared it
is at this point that the two investigations diverged in terms of pilot
responsibility for the accident. The Commissioner was of the opinion
that until the last moment the pilots believed they were flying in clear
air; that they were deceived by a whiteout situation; and that it was
understandable that they flew on at 2000 and then 1500 feet. Mr.
Chippindale was aware of and spoke in his report about the whiteout
phenomenon, but after giving evidence before the Royal Commission for
eight days he still adhered to his conclusion of pilot error for reasons
he expressed (at p. 274) in the following way:
"I believe that the cause as it stands (in the Chief Inspector's
report) is reasonable. As I attempted to clarify last time the
pilot has descended to 2000 ft and evidently is unable to see
anything ahead. I say 'evidently' because there is a snow slope
leading to a mountain rising to 12 450 feet and that was directly
in front of him. He 'popped down', to use his own words, another
500 feet and continued to progress towards an ice cliff which is
300 feet high, the lower 50 per cent of which is solid and bare
rock. And still he didn't perceive anything to persuade him to
divert from his track. To me this indicates it was an area of poor
definition and as such he would not be able to discern what he
could expect to see had he been, as various people suppose,
believing that he was proceeding down the McMurdo Sound. The sea
ice is by no means uniform in texture and during his descent he
would have seen the nature of the sea ice--in fact the photos from
the passengers indicate that it had large breaks in its surface and
was quite easily discerned so therefore I believe at the end of his
descent to 2000 ft he was confronted with a very vague area in
front of him which he may or may not have believed was cloud, and
when descending a further 500 feet the view ahead of him would have
been of equally poor definition. Despite this, he continued to the
point of 26 miles from destination as indicated presumably on the
AINS."
Mr. Chippindale's opinion has some background relevance in the present
case. It is in no way relevant because it differs from that of the
Commissioner upon the issue of causation. Already we have emphasized and
we do so once again that what was said in the Royal Commission Report
about the cause or causes of the accident must stand entirely unaffected
by these proceedings. But the opinion has some relevance because
although it was wrong, as the Royal Commission Report decided, the
Commissioner certainly did not consider it to be anything other than a
completely conscientious and honest attempt by Mr. Chippindale to
analyse and draw a rational conclusion from all the available facts. He
described Mr. Chippindale as a model witness. In the circumstances it is
difficult to understand why the same point of view Mr. Chippindale
expressed in his evidence could not be genuinely shared by other
educated observers.
We turn now to the relief sought by these various officers and the
airline itself.