Mt Erebus revisited – Chippendale’s findings, Mahon’s deductions and the overlooked Privy Council judgement

There’s nothing sadder than a nation immersed in remorse.

We have been constrained from entering into the endless debate about the Air NZ DC-10 crash into Mt Erebus 40 years ago. It is a circular and irreconcilable argument. Who was to blame? At this distance, does it matter?

Facts are elusive. The only hard ones are those disclosed in the report of the then Chief Inspector of Air Accidents, the late Ron Chippindale. It was he and his expert staff who conducted the forensic dissection of the flight, working from the only hard evidence: the cockpit voice recorder, the flight recorder data and grisly, heart-wrenching examination of the wreckage on the ice. It was he who consulted widely among veteran pilots and polar experts before submitting his report.

Even Justice Peter Mahon had to conclude that “in his opinion” the crew were not responsible. Chippindale found otherwise: the crew had deliberately deviated from the programmed flight plan which called for them to fly to the ice, descend over Mt Erebus at a height of 30,000 ft then descend into clear air beyond.

Why they did this remains conjecture. Peer pressure? Other crews had done it? The sight-seeing obligations of the passengers warranted such a procedure? All remains conjecture.

The crew elected to do otherwise.

The warning signs were there. They could not raise McMurdo Sound by VHF radio as something blocked the line-of-sight radio signals.

Mountainous terrain in the way? What were the read-outs on the very accurate area inertial navigation system showing? Only the flight engineers on board, as recorded by the cockpit voice recorder, expressed concern as to where they might be.

All Justice Mahon could deduce was evidence before him in the Royal Commission – there was no other source of factual information. Everything was conjectural on what might, or witnesses claimed or thought, might have happened. All the parties had expert legal counsel to represent them and their interests.

Chippindale rightly condemned Air NZ for serious flaws in flight briefings, for the absence of preparations in the event of a force-landing, for failing to provide all available information to pilots, for failing to insist all flight crews had to have at least one pilot who had been there before.

Mahon remains on a pedestal. With that in mind, it is useful to reflect on how two judgments from the Court of Appeal, and then – finally – the Privy Council in London found serious defects in his conclusions. These have had little attention paid to them in recent discussions.

The Law Lords on the Council were even harder. Of critical importance is the fact that Air NZ never challenged the Chippindale report.

Three distinguished jurists, Lord Diplock, Lord Keith of Kinkel and Lord Templeman handed down their findings in 1984 and offered serious criticism of several aspects of the Royal Commission, in particular on process and the failure of Mahon to provide witnesses, notably from Air New Zealand, the opportunity to rebut his findings.

Their Lordships cannot conclude this lengthy judgment without expressing their conviction that the time has come for all parties to let bygones be bygones so far as the aftermath of the Mt Erebus disaster is concerned …  (there were) manifestations of human fallibility that are easy to understand and to excuse. The time has surely come by now for them to be allowed to be forgotten.”

So, the wreckage has been long covered in ice and snow and now there is unseemly debate on the location of a national monument.

Should here be a national monument?  There is none to the December 1953 Tangiwai railway crash which claimed 151 lives and was of comparative consequence to the New Zealand community at the time.

At this sad site in National Park there are monuments erected by local service groups.  The most compelling, touching, discreet and effective is the numberplate of the locomotive which crashed into the river.

This was erected by the engine drivers’ union. It says it all.  There is no national memorial as such.

As their Lordships observed 33 years ago, shouldn’t we call this a day, dispense with tearful “apologies” by those were infants at the time, and leave the memories where they lie?

 

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