Board of Inquiry definitions

[glojo]

I have been reading with great interest a debate regarding the degree of proof required to enable a finding of negligence when carrying out an inquiry into the cause of an incident regarding 'deceased aircrew'

“Only in cases where there is absolutely no doubt whatsoever should deceased aircrew be found negligent”

I have never heard of this definition and cannot see how this finding could ever be established to such a high degree. I would appreciate comments from those that are in a position to shed light on this topic and has there been a finding that has been accepted and not appealed against?

Once upon a time........
A Fleet Air Arm pilot is on a low flying exercise in Italy, his observer videos the flight during which they invert to go over the crest of a hill, they then stay inverted flying though a valley. The aircraft then attempts to fly below a cable car, still inverted but sadly collides with a pylon killing all aboard the aircraft.

For ease of example the Board of Inquiry accept that prior to the incident there were no mechanical issues with the aircraft, nor had the aircrew reported any defects during this fictitious flight.... Visibility and weather conditions were very good.

The video was recovered which was was recorded by the observer for his own personal record as this was his last flight with that squadron.

There are numerous ground witnesses that have come forward and although there statements are quite 'graphic' none report seeing any signs of damage, smoke or 'erratic' behaviour prior to the collision.

The Board of Inquiry carried out a through investigation into this incident that I have clearly made up but they have found no known issues with the aircraft prior to its commencing this exercise.

The pilot is 28 years of age A1fit and has only recently had a full medical.

Is there a slight possibility that during the final seconds of this flight the pilot suffered a migraine?

The pilot had a stroke?

I guess I could list any number of possibilities which may or may not be likely but how on earth can they all be ruled out COMPLETELY.

Sadly the aircraft flew head-on into this pylon and it was not possible to carry out a full and complete post mortem.

[thefodfather]

I guess if there was proof, i.e. video, voice recorder etc, that your fictional individual was wilfully breaking rules he could have been expected to follow without just cause then he might be found negligent. But that should hopefully not be the focus of the investigation, which might then choose to focus on the organisational culture in which he felt it appropriate to fly like that in the first place.

[4Greens]

There are only two things one knows for certain about any accident:

1 There is always more than one cause ('contributory factor' in new speak)

2 There is always some human factor input.

This should be written large in any investigation including this one.

[glojo]

Hopefully everyone will accept I am simply trying to understand the definition which quite clearly stipulates

'absolutely no doubt............'

The fictitious recovered video will only show inverted flight out of the side and slightly frrd view of the aircraft... Not a calibrated military video.

I have only included the video into this hypothetical example to add a suspicion as to why this incident might have occurred but I TOTALLY agree with the observations:


1 There is always more than one cause ('contributory factor' in new speak)

2 There is always some human factor input.

What I am trying to discover is how anyone can attempt to say It was DEFINITELY, 100% the fault of the pilot

If someone wants to give a better example where the pilot\aircrew would be absolutely, 100% at fault then please feel free just as long as we all give hypothetical situations.

I just cannot get my head around this definition.

[VinRouge]

any decent BOI should be asking why individuals or systems were at fault, not whether individuals are to blame. Its easy to blame an individual. Its much harder to change an established (but flawed) system.

[jindabyne]

glojo

PM me and I'll enlighten you ---

[500N]

"If someone wants to give a better example where the pilot\aircrew would be absolutely, 100% at fault"

Would the B52 crash at Fairchild be an example as he was flying it?

Although VinRouge is a good point which I think was found in the BOI.


.

[Poltergeist]

I think that the right question to ask is what is the BOI trying to achieve? the answer has to be to establish a cause and the factors of that cause to enable a repeat to be avoided.

negligence itself needs to be defined. There are plenty of lawyers on the forum that can give you the legal definition but there is a real distinction between that and an error of judgement or an honest to goodness mistake.

The modern thinking on flight safety is that of a Just culture, it accepts that errors and mistakes happen and that sometimes, sadly accidents occur. It also does not look for blame rather, cause and there is a big difference. By adopting this approach to investigation then it has the effect of people being more open and honest.

In my opinion, the military, by nature of its operations, will encourage crew to operate on the edge and push the limits. It is also my opinion that this is necessary to achieve what we require of the crews. It is therefore, very difficult too prove negligence in a narrow scope investigation.

Fairchild was an interesting reference, there, for several years crew had complained about the flying style and the stunts of the commander and some are recorded on film on you tube.Who then was negligent? those who took the complaints but allowed flying to continue? those who did the line checks? or the pilot who had been allowed to do these things for years.

[Torque Tonight]

Unfortunately the Catterick Puma accident may fulfill this burden of proof. The Chinook crash never came close.

[Tandemrotor]

glojo

Allow me to assist. The term:
“Only in cases where there is absolutely no doubt whatsoever should deceased aircrew be found negligent”

Is indeed almost impossible to satisfy.

I find this to be utterly in accordance with both natural justice, and also in the highest traditions of the Royal Air Force.

When individuals have no opportunity whatsoever to defend themselves from very serious allegations, it is utterly appropriate that any evidence against them should be totally overwhelming, before any case is proven.

Exactly the reason deceased individuals can never be brought to trial!

In the case that has triggered your posting, Lord Phillip explains the thinking very clearly. Have you read the report...

In the case of the Mull of Kintyre Chinook, there was no voice or data recorder. No survivors nor eyewitnesses. No radio calls or radar traces. Nothing! Just a smouldering heap of wreckage on a remote hillside.

Even 'defence by recording' was denied to these two fine pilots!

Even using the FAR lower standard of proof of 'balance of probability', it is a matter of opinion whether the pilots could be found guilty of anything.

As we know, matters of opinion are NOT matters of fact!

The words describing the standard of proof required, were chosen very carefully indeed, and for a very specific reason. I congratulate those that framed them. How prescient they were.

People can bump their gums together all they like now. That case has now reached a just settlement. We all now know the truth. It is now closed. The focus of failure now falls elsewhere within the proceedings. Of course those NOW in the spotlight to justify THEIR actions do have the luxury of defending themselves.

Unlike those once under their charge.

[Fortissimo]

Not a hypothetical situation, but try this: http://www.pprune.org/aviation-history-nostalgia/73801-xs937-m-crash.html See #17, #26 et seq

Unauthorised display, specifically ordered not to do it, did it anyway, got it wrong and paid with his life. Absolutely no doubt....

And before this thread descends into the usual spear-chucking, I am not suggesting that MoK fell into this category!

[Agaricus bisporus]

With respect, we don't "know the truth". We know nothing more than we already did. This enquiry seems to have had nothing to do with the cause of the accident but was an exercise in semantics because of a badly worded definition. Had the phraseology of that definition been properly drafted this would never have occurred.

All it has done is remove a statement made about the crew and wag a finger at various people for following incorrect procedures and drafting a shoddy definition, unless I've completely misread it.

[Pheasant]

Aga,

That is exactly what the Inquiry was asked to do i.e. was the MoD correct in finding the pilots Grossly Negligent. It wasn't and the Judge said so, end of dit.

The report could have been just one page.

[Tandemrotor]

All it has done is remove a statement made about the crew and wag a finger at various people for following incorrect procedures and drafting a shoddy definition, unless I've completely misread it.

Indeed you have 'misread it'. In fact from what you have said, I rather doubt you have read much of it beyond the headlines.

No matter. The official verdict now tallies with what many of us always knew to be 'THE TRUTH'!

For those who are hard of thinking, the truth is that there were many potential causes of this accident. The paucity of evidence neither completely excludes, nor persuasively supports any of those potential causes. Therefor the only possible correct interpretation of the extremely limited 'FACTUAL' evidence, is that we simply will never know what happened.

Only Day and Wratten disagreed! Of course they will still have the delight of saying at cocktail parties; "I know what really happened". But they will no longer be able to say; "everybody knows", because what 'everyone' now knows is they are wrong!

Only the reasons for their frankly bizarre determination are unknown.

The standard of proof required was extremely well written, and I doubt you will find many of our courageous men and women currently putting their lives on the line in the Royal Air Force who would disagree. (Though of course subsequently I believe it may have become impossible to attribute negligence to the deceased! - Is that a bad piece of legislation too...)

Case now closed. :D :D :D

[teeteringhead]

Although the origin of this thread is topically obvious, I hope to keep my twopennorth general, although I draw on a conversation I had with Ming Campbell which was about the Mull.

This was before Ming was leader of the Lib Dems, but he was a QC and (at the time) on the HCDC. It was in the margins of an HCDC meeting that we spoke.

We were talking about "Burdens of Proof" - for obvious reasons. His views went like this.

Civil cases require "balance of probability", which we may reasonably set at 51% certainty or more.

Criminal cases require "beyond reasonable doubt": what shall we say that is? Shall we say 97 or 98%? And remember: we used to hang people on "beyond reasonable doubt".

But where do we set "absolutely no doubt whatsoever"? that must be 99.999% and can probably never be achieved.

My views (which I kept to myself at the time) were that the phrase had probably been drafted not by a lawyer but by some gash GD SO2 who had the job of re-writing the FS Manual. And equally probably meant to say "really really really sure".

But such a requirement can probably never be achieved ...... I'm with Ming on that one.

[BOAC]

But such a requirement can probably never be achieved ...... I'm with Ming on that one - which may well have been the intent of the "gash GD SO2" as you put it (I do think Paddy would have had a look at the draft, though, don't you?

[glojo]

A big thank you to those that have so far submitted posts and I am NOT getting involved in actual incidents that have occurred FULL STOP. I would also very respectfully ask everyone NOT to get involved in the recent event that has bought publicity to this definition.

My posting has NOTHING whatsoever to do with this previous case and it is SOLELY to do with the wording that in my opinion rules out a finding of negligence by any aircrew. I say rules it out simply because of the definition required to fulfil the criteria.


I also accept it would be TOTALLY wrong to have the lowest of standards, ie Balance of probability that is way, way to low a criteria and must NEVER be a level that anyone would want to use. I say this because adopting this civil definition would then have a very real risk of besmirching the good name of aircrew involved in any incident.

‘Beyond any reasonable doubt’ is possibly the level we should be aiming for and the ‘reasonable’ can only be decided by looking at, and listening to all the presented evidence.

Fortissimo has very kindly posted a link that would possibly........ Meet that level but there is NO WAY it would meet the current level which is now the standard. I say this solely because it would be impossible to completely dismiss any evidence submitted by a medical EXPERT that put forward a condition that MIGHT have materialised after the pilot took off. Note the word ‘might’ as that is all it needs, just a one per cent chance of possibility and what medical expert is going to say on oath that it would be impossible for you or I to have a medical condition arise at any time, at any place?

As counsel for the deceased I only have to put forward a circumstance that has just a one per cent chance of probability, that tiny degree of possibility would be sufficient to dismiss any charge of plain straight forward negligence.

I FULLY and totally endorse the following:

When individuals have no opportunity whatsoever to defend themselves from very serious allegations, it is utterly appropriate that any evidence against them should be totally overwhelming, before any case is proven.I have no issue with this observation and am in full agreement with it but there has to be the chance of supplying overwhelming evidence that sadly puts the blame on those that might deserve to suffer this verdict. With the current definition I would respectfully suggest that this is impossible!
My experiences on this forum is that there are any number of experts who are quite willing to put forward their point of view and sometimes the spears are kept in their pods. We can all hopefully conduct ourselves in an adult, and mature manner whereby we debate with constructive points being put forward and we all respect each other’s point of view.

In my humble opinion the definition has been set to a standard that is incapable of being met and if so why have the charge?

I am NOT SUGGESTING it goes to the other unacceptable level suggested by one poster of ‘balance of probability’, as I have already said that definition would indeed be unfair, unreasonable and to me totally WRONG, but...

We must be answerable at all times for our own actions, just because we are officers does not make us perfect human beings. We all make mistakes and we must all accept the consequences and sadly if our peers believe we are negligent in our behaviour, then so be it.

I, as an individual HATE the ‘gross negligence’ charge. That to me is an offensive wording that needs to be challenged; the prosecution needs to have the highest degree of proof needed to substantiate that charge which should only ever be used when the evidence is so blatant as to make the charge both correct and appropriate.

Because of the recent contributions I feel it only right and proper to let folks know that I am as pleased as everyone else regarding the outcome of this recent case, justice was long overdue, but please, please please can we keep, our comments to the current definition? PLEASE?.

[teeteringhead]

which may well have been the intent of the "gash GD SO2" as you put it (I do think Paddy would have had a look at the draft, though, don't you? ... exactly so - but Paddy was no more of a lawyer than the author was, and I'm sure that neither thought the phrase would be debated at the bar of the Houses of Parliament (and many other bars too!).

I'm less convinced that the intention was that it should never in practice be used. IIRC (which I probably don't, not having a 3207 (?) to hand), there were two higher/worse "verdicts" on pilot/aircrew error, something like "Irresponsibility" and "Flagrant Disobedience". As deceased aircrew were not mentioned (I work again from memory) in those definitions, perhaps "Gross negligence" was set as the highest that could be used in the case of deceased aircrew.

And given that - for many years - the full findings of Bs of I were neither made public nor released to NoKs; that must beg the question: were any other deceased aircrew in the past found to be "Grossly Negligent"?

Edited to add:

I pose that as a hypothetical question with no intent or desire to have it answered.

[glojo]

Poltergeist,
What an excellent post and totally agree with every point you have eloquently raised.

Who then was negligent? those who took the complaints but allowed flying to continue? those who did the line checks? or the pilot who had been allowed to do these things for years. May I respectfully suggest that any inquiry should ask those very relevant questions and the necessary actions taken where a neglect of duty is suspected.

I fully endorse all your points about the style of flying that is often demanded and this MUST always be a consideration when incidents happen. They are just that... They are events that should be investigated in a fair and balanced manner. We must never allow the fear of witch hunts to be a consideration prior to a mission\flight.

If any member of our armed services does their job to the best of their ability then they deserve our support when 'bad' things happen.