120.4

Firstly may I add my voice to all those supporting Spot at this most difficult time. By now it must be clear to you that all in ATC are with you.

Bennyclub makes a most relevant point. Which of us doesn't do their best for the aircrews we serve?

I am a civil ATCO of 20 years experience, currently at a major UK centre. My concern is that in these days of corporate manslaughter, management will not take responsibility for the consequences of the environment/culture which they have created but will seek instead to pass responsibility for error to the individuals who are being asked to do a most difficult task without the appropriate infrastructure. By that I mean that the ATC system is being heavily loaded but has not been given the redundant capacity to handle it that our safety culture rightly demands. Add to that the nature of ATCOs to bend over backwards to service our customers and we too then face the very real danger that is before Spot.

Spot's plight should serve as a warning to all of us. Do all you can to protect yourselves which may mean saying no to management. Those of us who take on more than is prudent in an effort to please are setting yourselves up and nobody will thank you when you are standing before a judge.

God bless you Spot.

Point 4

G&J

To Spot and Sue

We have only just found out about this web site. I am so angry and appalled and horrified and angry and mad as fire about what is happening. I am also ashamed at my naivety in thinking all this must surely be long since over by now. It's been so long since I left the RAF ('96) that I had forgotten about the 'whenever anything goes wrong you're on your own' syndrome. How could I have forgotten so easily? In my innocence I assumed that if the pilot was under a RIS terrain clearance was his responsibility. It is, after all, very clear in the books that all pilots and air traffickers have a duty to read and understand. Isn't superfluous RT such as 'at your discretion' frowned upon? The whole point of saying 'Radar Information Service' is that both parties understand the full implications of the contract between them without unnecessary words clogging up the frequency.

Any support that Guy and I can give is yours, whenever you need it. When justice is finally done, and you are released from this nightmare, please come down to West Wales and have a break from it all. Come and play with the puppies we hope Spook's niece will produce in the spring.

Much love, Jane and Guy

Wrote8

Nothing new to add, but after a couple of days reflecting on things, just a few thoughts.

First of all, I think we are all now getting the message that there are moves afoot to help Spot with the finances, once the bills are in and proceedings are done. Like everyone else, I am hugely relieved for Spot. It serves to demonstrate 3 things:

a. How much we all feel for what Spot has been put through.

b. What a brilliantly organised and well motivated team has come together to support Spot and his family - keep up the good work fellas!

c. What a huge kick up the ailse the "system" needs for allowing this to have taken place at all - there must be a coordinated effort after the dust has settled, to ensure that our misgivings and concerns are represented to both the Military and Civil authorities.


Secondly, let us remember there are no winners in this; 2 pilot's have lost their lives and Spot has been put through a living hell for nearly 2 years. Whatever the outcome, we must channel our thoughts towards helping Spot and his family find a way forward, and hoping that they and the families of the 2 pilots can reconcile themselves to the days ahead.

Finally, following on from an earlier thread, let us try not to personalise this issue into any form of witch hunt. Whatever the failings of various individuals, authorities etc., what we need is to determine a course that will protect us all from anything like this ever happening again. First Pristina, now this - that has to be the last time. We have among us some great organisers and communicators who possess the knowledge and experience to bring this issue to the fore. Let the legacy of this tragic event be a determination of what our "duty of care" actually is and how it binds all of us in this business together. No-one going about doing his job should want for the "care" to ensure he/she is put in such a dire situation ever again.

God Bless you Spot and may he bring all this to a speedy and rightful end.

EXATCO

Thanks for your posting Wrote8 - very well put and I thoroughly endorse it.

Just one thing to add. I think we should be heartened by the fact that, despite the 'jobsworths', there is still a backbone in the RAF of like minded individuals who will support their colleagues to ensure that justice will prevail. The controller from Pristina had, I believe, the support of his S/L Ops (now a brewery owner!) and a pro-active CO. Spot has the support of a formidable team of professional and sound friends.

Spot & Sue take heart, we are all willing you along and constantly thinking of you.

All the very best of wishes to you both.

Argus

As an aging antipodean solicitor dispensing justice in an unequal world, I've read the posts on this topic with some interest.

Back in the halcyon days of the mid 1960s, I was a mere unreconstructed hewer of wood and drawer of water in the vineyard of the Fleet Air Arm, at the then RNAS Lossiemouth.

In those days, RAF Canberras based in Germany flew direct to Tain Range (home of that excellent malt, Glen Morangie), descended either VMC or under limited radar control or advisory service provided by both ‘Highland Radar’ (the GCI radar at RAF Buchan) and ‘Moray Radar’ at Lossiemouth, dropped the ordinance, enjoyed lunch at Lossie and returned to base in the afternoon.

Also, USAF F111’s and F4’s based in southern England would let down under the stewardship of ‘Moray Radar’ to enter the two low flying areas in North East and North West Scotland.

In early January 1966, a 2TAF Canberra crashed into mountains west of Inverness whilst on a radar controlled descent into Tain during a ‘white out’ blizzard. Both the pilot and navigator were killed. Because of the weather, the wreckage wasn’t found for three days – and only then by a ground party. Aerial searches were impossible.

I recall that there was always a problem with visiting aircraft descending directly into Tain Range or the then Low Flying Areas 14 and 15 because of the adjoining high terrain. The RN had installed 1960s Marconi S264 state of the art radar at Lossie to provide Master Diversion Airfield ATC services for Lightnings, F104s, F105s, and other NATO aircraft flying intercepts against Russian intruders. My recollection is that the radar was as good as it got at that time.

On the day of the accident, the Canberra was descending in IMC towards high ground under 'limited radar control' from Moray Radar. The decent clearance was, I think to an altitude below the minimum safe in a perceived expectation that the pilot would report VMC below and proceed VFR to the range. But on the day in question, there were snow blizzards and low cloud. In the prevailing 'white out' conditions (that were known to ATC), VMC below eluded the crew with fatal consequences.

A Board of Inquiry was convened. The cause of the accident was determined as 'pilot error'.

Sounds familiar?

As far as I can recall, for reasons that were never made public, the RN air traffic controller concerned wasn't court martialled. Neither was any other RN officer. However, several Germany based RAF squadron executives were court martialled over alleged maintenance and general training/supervision shortcomings. Some promising careers were nipped in the bud as a consequence.

Also, after the accident the let down procedure for 2TAF aircraft into Tain was changed to a radar controlled decent for a GCA pickup to Lossie, preferably to runway 23 so that aircraft could let down over the North Sea, overshoot and then proceed VMC across the Moray Firth to the Range.

Some previous correspondents have asked about ‘duty of care’. May I offer the following in response.

Some years later, post Messrs Wilson and Healey’s decimation of the Fleet Air Arm, in another life as a law student, I became familiar with the seminal House of Lords negligence case of Donoghue v Stevenson [1932] AC 562. In brief, a Scots lady became ill after inadvertently drinking the remains of a snail from a lemonade bottle in a Glasgow teashop. She sued the soft drink manufacturer for negligence for allowing a snail to enter the bottle in the factory. The manufacturer denied liability and claimed the lady was too remote from the manufacturing process for the manufacturer to have a duty of care to her. Eventually, the House of Lords disagreed and she received damages.

The principle propounded back in 1932 in Donoghue v Stevenson by Lord Atkin was that 'you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour'. Lord Atkin went on to define neighbours as "... persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called into question".

The law of negligence has evolved since 1932, but the general principles laid down in Donoghue v Stevenson still have some relevance today. So it comes as something of a surprise to an old and bold like me that, notwithstanding both Lord Atkin’s judgement 71 years ago, the Lossie accident 37 years ago and some more recent events, it’s still not really settled as to what duty of care military air traffic controllers owe, if any, to aircrew ‘neighbours’ availing themselves of their services. Also, do factors like the lack of familiarity with the local terrain, the presence of high ground, adverse weather conditions or the existence of any properly promulgated procedures have any bearing on the nature of the duty of care of controller to aircrew?

If military air traffic controllers do owe a duty of care to aircrew, then perhaps it's time for the Ministry of Defence, as the employer of those concerned, to acknowledge the situation at Law – and to pay the insurance premiums for suitable professional indemnity policies on behalf of those concerned.

Those unfortunate enough to find themselves facing legal proceedings for negligence would then have access to fully funded defence legal teams as part of their professional indemnity cover.

Brian Young

Argus - what you have to say is very interesting. However, methinks that the references to Duty of Care are to do with the Service's lack of Duty of Care to Spot. Read the entries from the beginning and you will see what I mean.

DICK DOLEMAN

Hi Folks,

Herewith the summary for Friday 7th. Very exciting and a masterly performance by Spot’s QC, Mike Jones. Sorry this is a little late but have just driven across country to Broughty Ferry.

The day began with completing the examination in Chief of Major Scott Chamberlain USAF. The Defence led the witness through various USAF documents to demonstrate that the pilots involved should have beeen fully aware of their sole responsibilities for terrain clearance. He then led him through mission planning and established that the pilots were aware of the weather, high ground and route abort calculations required during this mission. The ‘out brief’ also included lowlevel nav requirements and the possible use of Dead Reckoning in the event of INS failure. Furthermore, weather and high ground avoidance procedures were defined. This particular sortie was to include low level nav training and low level intercepts. The mission was subject to a risk assessment by the lead pilot and it was given a low rating.

The met forecast signed-for at the ‘out brief’ indicated the possibility of cloud on the hills at 2500 feet so the weather and high ground avoidance procedures were particularly significant.

It was elicited from the witness that the descent profile prior to impact indicated the likelihood of a descent in VMC. This was supported by the Defence requesting the witness to draw a graphic representation on a flip chart of 3 oktas of Cumulous cloud at 3000 feet . The aircraft were depicted at around 8000 feet on the chart. At top of descent it was conceded that the pilots would have been able to see some 100 miles in all directions and see the ground through significant breaks in the cloud. However, to reach their low level objective, they would probably, for at least a short time, have to enter cloud, therefore, they selected “ intake anti – icing on”. The general wx in the area given by the Aviemore Wx centre (only approx 20 mins before the accident) gave the vis as up to 60kms outside snow showers. It was known from a Tornado pilot witness, who flew through the local area no more than 1 hour before the accident, that the ‘white out’ conditions on Ben McDhui in particular, were the worst he had encountered in 7 years of fast jet flying in Scotland. The witness agreed with the defence that:

1. The pilots had briefed.
2. They would have taken account of significant high ground on their intended mission.
3. They knew where they were by reference to their Inertial Navigation System (INS).
4. They were carrying maps for the area which were marked appropriately for their mission.
5. They should have been able to see the ground through significant gaps in the cloud from 8000 feet before start of descent.
6. They knew where Ben McDhui was, yet they flew into it.

The witness concurred that the pilots may have become disorientated by the previously described ‘white out’ conditions around Ben McDhui.

The witness also agreed that there may have been another explanation as suggested by the Defence and seemingly supported by eye witnesses yet to be introduced. The aircraft may have encountered localised bad wx and circled around Ben McDhui to regain their track and subsequently met the same ‘white out’ conditions previously mentioned. Defence QC was able to have the witness agree that the cockpit instruments recovered could be consistent with both a shallow descent profile and the 2 pilots also attempting a ‘join up’ at low level. The distance the aircraft were apart at impact was double the norm, indicating that they had possibly widened out in a turn and were yet to close up again. They then crashed in the same manner in ‘white out’ conditions as previously described.

The Defence established, through a prosecution witness, that there are 2 accepted alternatives compared with the the charges as laid.

After a short re-examination by the Prosecutor, the Judge Advocate released Major Chamberlain and thanked him most warmly for his voluntary support to the RAF’s invitation to contribute to the proceedings. Spot’s QC, Mike Jones, had been very robust in cross examination of Major Chamberlain. Major Chamberlain responded that his duty had been an honour to have helped but he was, tomorrow, “going to war, and after this it will be a relief !! “ This elicited much laughter and spontaneous applause from the entire court including the Judge Advocate, the Board, and both Counsels. There was genuine warmth for Major Chamberlain with most present shaking his hand and wishing him a safe return from the Gulf.

It was revealed that the USAF accident inquiry has not yet been completed some 2 years after the accident. I find this rather extraordinary. What are they missing in evidence ? Please post your conclusions - I know mine!

We have been told that, on Monday morning 10am , a submission will be made by the Defence and that the Board members will not be required til 2pm. Watch this space !!!!!!!!!!!!!!!!!!!!!!!!!!!

Sorry if this seems a bit hurried but that is how it has been today !!

Dick and Al Turner

SirToppamHat

From one Dick to another, and I'm sure I speak for many controllers out there, TVM for the update - don't mind the wait, and it speaks volumes for your dedication that you have taken the time to post after a long day and a long trip.

If you are reading this Spot, keep your pecker up and be assured there are many of us wishing you and yours a peaceful and 'optimistic' weekend!

Argus

Thank you, Brian Young for your helpful comment.

You and your colleagues believe, correctly I think, that the RAF, as an employer, has a duty of care to all of its employees, including air traffic controllers. However, you have not defined the nature and scope of that duty. You do, however, infer that the RAF "should do the right thing" by its air traffic controllers, whatever that is. But is this to be at the expense of other members of the Service, allied services, dependents, next of kin, the Law or against the public interest generally?

With respect, the nature and scope of the RAF's duty to air traffic controllers and whether it has been breached is not the subject of the charges that your colleague faces. However, it may be relevent to his defence - I note there is reference in earlier posts to his personal situation before the incident.

Generally speaking, employers are vicariously liable for acts and omissions of their employees whilst carrying out their employment, or acting incidentally to their employment, that cause damage unintentionally but carelessly. In Australia at least, it is generally no defence to a claim against a negligent employer that that the employee was not complying with instructions, if another person was injured as a result. This is helpful to persons seeking seeking damages for negligent acts.

It seems to me (looking at your posts and the BBC web site from the other side of the world) that the civil allegations against your colleague go to the following:

a. whether he owed a duty of care, that is a legal obligation, to avoid harm to the two pilots concerned;

b. was there unreasonable behaviour on his part towards the pilots in the situation where the duty of care existed (ie a breach of the duty);

c. was there damage as a result of his alleged breach; and

d. were the harmful consequences reasonably foreseeable.

The point that I was trying to make is that, notwithstanding long settled law and experiences from previous fatal accidents in similar fact/terrain/weather situations, it is apparently still not clear what is expected of the British military air traffic controller in such circumstances.

"Plus ca change, plus c'est la meme chose"!

Redeyerambo

Looks like Dolly's with you for the w/e Spot. We're all still rooting for you down here in Newark. Thanks for all the Briefs Dick, and Mike before you, also from all us non ATCers, thanks for the occasional note of what the letters mean!
Spot and Sue, looks like it's virtually over, should never have got this far.
I'll not voice my conclusion for the incomplete USAF Inquiy, but looks fairly obvious.
Spot, see you in Gifford , Sue, we'll try to keep him sober !!!
Rambo

DICK DOLEMAN

As we have a break in the proceedings, I thought it might be a good time to give you some background on the daily happenings in Helensburgh.

We start our day at the farmhouse with a chat over breakfast, reviewing the newspapers and the last ‘posts’ on Pprune which Mike Tasker faxes up to us each morning. Spot and Sue very much appreciate all the messages of support that you have been sending. These give Spot a great lift and it is just the right stuff to start the day with. Keep them coming. The strike rate on the forum is massive and yet another indicator to Spot of the interest and support out there. He has been taking this on the chin for himself and all ATCOs for 2 years now, so, he needs your encouragement. Thanks also to all those good people running Pprune, I don’t know what we would have done without you.

The CM commences at 10am each morning and is held in a very large room in a community centre. The acoustics leave a little to be desired. For those not familiar with military matters, it might be useful to give you some idea of how a CM is conducted.

Running along one side of the room is a very long table. The Judge Advocate (a civilian barrister) acts as the legal advisor to the Board and sorts out any points of order or legal matters that might arise from, or between, the defence and Prosecution. The JA sits in the middle. To his left sits the President of the Board, in this case, a Group Captain. To his right sits the senior member, in this case, a lady Wing Commander. The senior member swears in the witnesses. There are a further 5 members of the board, 2 Squadron Leaders and 3 Flight Lieutenants.

Facing the Board and well separated are the Prosecution and Defence teams. The Prosecutor, a Group Captain from the RAF legal services branch sits alongside his assistant. Behind them sit his expert witnesses. In this case, Group Captain Jim Stenson (ATC) and Major Scott Chamberlain USAF (now departed for the Gulf) an experienced F15c pilot and qualified aircraft accident investigator. The expert witnesses, unlike normal witnesses, are allowed to remain in court throughout and can be consulted at any time.

The Defence side is slightly more complicated. Mike Jones, Spot’s QC sits alongside his assistant. Behind them sit Spot with his escorts and these are friends of his chosing. Spot has Wing Commander Al Quinn and Flight Lieutenant Dave Mc Pherson. Alongside them sit the experts for the Defence. They are Wing Commander Chris Foster (ATC) and Craig Penrice (Test Pilot) currently flying Eurofighter/Typhoon and experienced on the F15c. What a team !!!

Behind the Defence and Prosecutor teams is the public gallery. CMs are open to the public. However, this gallery has been mainly used by friends, family, the press and Al Turner who, on at least 4 occasions, has forgotten to zip up his flies. A new spin on open to the public perhaps?

The witness chair is just in front of the Board and to their extreme right, closest to the Prosecutor.

There has been no marching in and out of the accused but the court is conducted in a formal but relaxed manner with plenty of saluting, bowing and rising for the court and JA.

Very occasionally, individual members of the Board may require clarification from a witness. In this event, the question is written and passed to the JA. With his sanction, the President may then ask the question. You will have already gathered that witnesses are handled by both the Prosecutor and Defence in the normal way. Everything introduced into court becomes an exhibit and some of this has to be read into court, this can be very laborious at times. So far, we have close to 60 exhibits including an airfix model of a tornado introduced by the Prosecutor.

You are not allowed to eat in Court, as I was politely told by the Court Orderly. He also assists in shuffling paper and exhibits between all concerned and operating such things as tape and video recorders. The court goes into recess for about an hour over lunch and adjourns for the day at approx 4pm. We have a couple of short breaks in the day to give the stenographer a rest.

After adjournment for the day, the support team returns to the farmhouse where a full debrief takes place in ‘Al’s Bar’. The daily summary is formulated – my thanks to Paul Beat and Daryl ‘Disco’ Hazelgreaves for their help in this – written up and then faxed down to Mike Tasker for posting on Pprune. Then it is time to tuck Al up in bed and have an early night -----not!!!!

Hope for good news on Monday. Keep it coming.

Dick

stopbar

Spot & Sue, Still here and hopeful. Thinking of you both and hoping this week will see the end with justice being done.

Mark Burch

Downwind.Maddl-Land

Spot, I don't know you, but as an ex-Mil ATCO you are - by definition - my brother. I can only say that every ATCO's thoughts and very best wishes will be with you and that must be a comfort. What is happening to you and your family is an absolute disgrace; I want to write more but suspect that discretion is the better part of valour at the moment! When this appalling situation is resolved in your favour, I suspect that some spleen will be vented.

Well done GATCO and the support team. I remember when Crown Immunity was withdrawn and the Mil membership of GATCO shot up; we all knew what would probably be in store for us if this sort of situation arose. I also remember being told that "MoD would be right behind you" (!) and not one of us didn't whisper under our breath "we would rather MoD was in front - but suspect it won't be". Seems we cynics were right again!

Good luck - not that you need it.

Warty

Just back from 2 weeks ski instructing in Garmisch. I hope that reference to this will bring a smile to Spot's face and take his mind off the nightmare he is living for just a brief moment. Take care mate - we will get together when all of this bo**ocks is over.

tazmania

Only just found out that this forum exists, but have been following CM progress as best I can from over 'ere. I remember the incident very well, spot knows why. Can't believe its' actually gone this far. Also can't believe that so far, little credence has been given to eye witness statements. I vividly remember watching a TV news report which would certainly indicate the flight conditions of the crews at, or immediately prior to, the crash!

Spot, I would never have been able to face something like this with the composure, grace and strength you have shown.

Goan yersel big man!

alan.poole

Yet another body who has found this site and wish to voice my support for Spot.
Spot, you have a really good team of strong supporters around you and a lot of cyber-friends out here. We are all rooting for you, even those who are not logged on but are reading the daily reports.
It is a very emotive subject and my thoughts are with you and Sue. My best to Mr T and Dick. Good luck for the remainder of this terrible episode in your life.
Al

Grotty

Good luck for Monday, mate. Let's hope it's the big day we all hope it will be.

You and Sue are very much in our thoughts, right now. In fact, not much else is.

To your team - thanks very much. Wonderful effort.

Not long now...

Distinctly

Like many other correspondents, I too have only just discovered this site but also like many in the job, I have been following events in this case from a distance for some time. Since reading all the posts here my incredulity that this has ever gone to CM has risen and my faith in the system has taken quite a knock. I'm sure that there are many facts that are not yet known to the general public but it seems to me that at the end of the day, under RIS, pilots are responsible for terrain separation. As an old Warrant Officer friend of mine would have said, 'It's in the book!'
Whatever the outcome of the CM (and I join with all the others here Spot in hoping for a successful result for you) it is to be hoped that the powers that be will soon grasp the nettle and sort out this RIS/RVC debacle before anyone else is put through similar procedings or worse.
Spot, we were stationed together at the home of Fat Albert a few years ago and we were even born in the same maternity home, remember? My thoughts are with you and I wish you all the best for the next few days. Keep yer chin up!

and so is my wife

Hi all, I am the other controller that some of you may have heard of/ know (Pristina accident 12 Nov 1999). Just to keep you in the picture, I was never CM because the Attorney General decided that there was not a case to answer. However the subsequent BOI’s here (just finished) and in Italy (still on going) have taken their toll.

Spot if you are reading this my thoughts are with you at this time because I know exactly what you are going through. There were times in the last three years when I have been really down and nearly out but my family and my service advisor (ATCO Brewer/Rugby nut) pointed me in the right direction. I am now coming out fighting. Watch this space!

pmouat

Spot and Sue:
We are following this site with interest and you are in our thoughts every day. Wish we could be with you at this time - but unfortunately we can't. How wonderful to read all the messages of support, you deserve them! Love Pam, Willie
Mel.