March 2020
Reposing trust and confidence in his integrity, knowledge and ability, Justice Peter Thomas Mahon was nominated, appointed and constituted as a Royal Commission, to inquire into, and report on, the crash of a DC10 aircraft at Mount Erebus, Antarctica. So began the Erebus report, pursuant to Letters Patent of King George V dated 11 May 1917, and subject to the provisions of the Commissions of Inquiry Act 1908.
The Erebus disaster occurred on 28 November 1979. The aircraft crashed in broad daylight and in clear air, in polar white-out conditions, into the lower slopes of a 12,000 foot mountain on Ross Island, Antarctica.
The inquiry ran for 75 days with 284 exhibits and 3,083 pages of evidence. The report exonerated the pilots. Among various contributing causes, the dominant and effective cause was found to be a combination of act and omission on the part of Air New Zealand: changing the navigation co-ordinates to be put in the aircraft computer flight plan six hours before departure; and failing to tell the flight crew of the change. The change in the flight co-ordinates resulted in the navigation path shifting east by around 27 miles at the final way point. This changed the flight path from the middle of the flat ice sheet in McMurdo Sound, to a path into Lewis Bay and directly toward Mount Erebus.
The Royal Commission report was released in 1981. It was not tabled in Parliament until the 20-year commemoration in 1999. Now, on the occasion of the 40-year commemoration of the disaster, a full apology has been made. On 28 November 2019, Prime Minister Jacinda Adern apologised for the actions of the airline which ultimately caused the loss of the aircraft, and the loss of 257 lives.
Standing with the Prime Minister, the Air New Zealand Chair Dame Therese Walsh apologised on behalf of the airline which she said had failed its duty of care to passengers and staff. (It may be assumed that both the airline and the Government had obtained advice as to the effect of the Limitation Act, before issuing the respective apologies.)
Following release of the Royal Commission report, there was a challenge to one aspect of the report: the Commissioner had awarded $150,000 costs against Air New Zealand, on the basis that it had unreasonably delayed and prolonged the hearing. The Commissioner determined that Air New Zealand had taken an adversary stance in the inquiry, and had proceeded (infamously) on the basis of ‘a pre-determined plan of deception’ and ‘an orchestrated litany of lies’. That costs order was challenged.
In the Court of Appeal, the majority (Cooke, Richardson and Somers) thought that it was possible that some individual witnesses did give false evidence during the inquiry. The minority (Woodhouse and McMullin) thought that the conspiracy findings were unjustified. All five judges held that the Commissioner had acted contrary to the rules of natural justice: Those to be accused of deception and lies need to have a reasonable opportunity of meeting any unformulated suspicions of concealment, deception and perjury that may have been in the Commissioner’s mind. The Court quashed the costs order.
That decision was then appealed to the Privy Council. The main points on appeal related to: (a) the manner in which Air New Zealand navigation staff changed the relevant flight plan co-ordinates; (b) Air New Zealand’s continued denial that flights were ever permitted to fly below a minimum safe altitude of 6,000 feet; and (c) the instructions of the Air New Zealand Chief Executive to obtain and contain all documents, and shred certain of them.
In its introduction, the Privy Council placed on record its tribute to the brilliant and painstaking investigative work undertaken by the Royal Commissioner, with the support of counsel appointed to assist him in the course of the hearings.
The Privy Council recorded that the Commissioner had made out an overwhelming case that the aircraft was in white-out conditions when it crashed into Mount Erebus – allowing the pilots and flight crew to believe that there was unlimited visibility ahead, and that the aircraft was flying over flat terrain (white-out prevents changes in level of the terrain from being perceived, even when the change is as great as that of a precipitous mountain, such as Mount Erebus).
The Privy Council accepted unreservedly that the Commissioner was entitled to conclude that evidence given by several Air New Zealand officers was false. But it rejected any conspiracy or pre-determined plan of deception, to conceal and lie. The Privy Council recorded the admissions of a whole succession of inexcusable blunders by individual members of Air New Zealand staff. But the Privy Council agreed that the Commissioner had failed to observe the rules of natural justice. So the costs order remained quashed. But the relevant parts of the Royal Commission report, referring to a ‘pre-determined plan of deception’, and ‘an orchestrated litany of lies’ were never determined to be set aside, nor declared invalid. So those phrases remain part of the official report, and part of our national lexicon.
The legal process tends to focus on the parties and the witnesses and, in this case, the Commissioner, Justice Peter Mahon. But the Erebus disaster shows how important things can be to the wider families of those, both dead and alive, directly concerned.
At the end of the Privy Council decision, there is a very reflective passage: ‘There were what, in retrospect, can be recognised as having been faults or mistakes at the inquiry, but which, in all of the circumstances, ……….. appear to their Lordships for the most part to have been manifestations of human fallibility that are easy to understood and to excuse’. ……… The Privy Council expressed its conviction that the time had come to ‘let bygones be bygones’, so far as the aftermath of the Mount Erebus disaster was concerned. With the joint apologies by the Prime Minister and the Chair of Air New Zealand, now, 40 years after the disaster, perhaps the time really has come to do so.