GUIDE TO THE CONSIDERATION OF HUMAN FAILINGS
  (Ref Chap 8, para 90)

INTRODUCTION

  1.  The board's consideration of human failings by individuals in the performance of their duties will require considerable thought. A board of inquiry is a fact-finding assembly primarily concerned with discovering the causes of the accident and, broadly speaking, these fall into three categories: technical faults; natural, operating or medical hazards (NOM); and human failings (human factors). If the diagnosis of the causes reveals some human factor which caused or contributed to the accident, the board must consider all the evidence and any mitigating circumstances which may have influenced human conduct. The board must determine if that factor constituted error of judgement or negligence, as defined in this Annex. These matters must be resolved conclusively and recorded in the proceedings (see Chap 8, para 103). The board is not concerned with punishment; this can result only from formal disciplinary proceedings as the result of executive action. Any conclusion that human failing is involved may reflect on the character or professional reputation of the person concerned and it is essential, therefore, that his rights under QRs are observed (see Chap 8, para 90).

APPLICABILITY OF HUMAN FAILINGS

  2.  Before making a detailed assessment of human failings the board must distinguish between those irregularities which had no direct connection with the cause of the accident and those which had. This can be resolved by the answers to two questions:

(a)  Was the person's act which is under consideration an essential link without which the final event would not have happened?

(b)  Ought the person to have foreseen that their action or their failure to take action would in all probability occasion the final event? In answering this question the board must use their general knowledge of the world and of human behaviour. Furthermore they should consider elementary matters, which may have a direct connection with the cause of an accident, such as:

(i)  The creation of circumstances which may result in an accident.

(ii)  The failure to ensure that orders which are designed to prevent accidents are obeyed.

(iii)  The failure of a superior to ensure that an order is actually carried out, where he has a specific duty to see that it is complied with.

  If the board determines that human factors had a direct connection with the cause, it will be necessary to assess such failings in accordance with the guidance in the paragraphs below (and as illustrated diagrammatically at Appendix I).

ERROR OF JUDGEMENT

  3.  It is important that the correct interpretation is given to "errors of judgement". Because the element of judgement is frequently present in matters of flying, it is important not to confuse the term "error of judgement" with negligence. The term "error of judgement" involves a finding of an honest mistake accompanied by no lack of zeal. It should accordingly be confined to those cases where a person through no fault of his own, and whilst exercising the degree of skill which can reasonably be expected (see para 6) makes an inappropriate response.

  Note: The results of a person's actions should be regarded as an accident although arising from human error. "Error of Judgement" does not arise where there is negligence, whether or not such negligence is accompanied by mitigating circumstances. For there to be a finding of "Error of Judgement" the evidence must show that the person acted with reasonable care taking into account both the level of training and degree of proficiency reached and the difficulties which arose due to the circumstances of the incident, such as an exceptional workload placed on them and, in particular, the time available in a crisis to make decisions and act upon them. No action should be taken under QR(RAF)1269(6) and, under the terms of QR(RAF)1270(2), the president is therefore to make a recommendation that the person concerned be absolved from blame.

NEGLIGENCE

  4.  It is often extremely difficult to decide whether or not a person has been negligent and the board must rely on its own knowledge of human behaviour and acceptable Service standards in reaching its decision. When considering if a person acted negligently, the board must be quite clear in its own minds as to what constitutes negligence and what amounts to "Error of Judgement" (see para 3 above). Negligence may be defined as:

(a)  The omission to do something which, in the circumstances, a reasonable person would do or,

(b)  The doing of something which, in the circumstances, a reasonable person would not do or would do differently.

  5.  When related to flying aircraft or to aircraft maintenance, neglect means a breach of duty to take care or, in other words, carelessness in a matter where care is demanded. The duty to take care varies according to the operation being performed and a duty to take a very high degree of care is rightly imposed upon a person flying an aircraft or responsible for its maintenance or its control. In such circumstances what might be trivial in other fields may, when associated with aircraft operations, amount to negligence which justifies severe criticism. Boards should beware, however, of confusing responsibility with blameworthiness. This confusion arises most frequently during investigations into taxying accidents, when the wrong interpretation is placed on the word "responsible" as used in JSP 318. Responsible means "liable to be called to account" and, provided that the captain can be shown to have taken all reasonable steps to ensure the safety of his aircraft, he can be said to have fulfilled his responsibility and to be free of blame. Equally, since a pilot must, in certain circumstances, rely on outside help to taxi his aircraft, it follows that those charged with providing this help should also be called to account for the safety of the aircraft and, in certain cases, found to blame.

  6.  Skilful pilots exercising due care can make genuine mistakes under the pressure of modern military flying and it is the board's duty to identify the causes of such pressure and make recommendations for its alleviation. If the board finds that the pressure of circumstances is such as to overwhelm a skilful and careful pilot then the pilot would not be negligent and the appropriate finding would be "Error of Judgement" because there is no suggestion of lack of care. Where such circumstances do not apply, the two factors which a board must consider when deciding upon negligence are:

(a)  Whether the person had the necessary degree of skill and/or knowledge, or should have had that skill and/or knowledge, to make the right decision and act upon it.

(b)  Whether the person failed to exercise the degree of skill and/or knowledge required.

Note: When covering these questions boards must have regard to circumstances which may amount to Errors of Judgement (see para 3).

  7.  Where a person fails, whether negligent or not, the board should consider the possible human failings of others who placed that person in the situation eg by authorising a flight or task which the person was not properly skilled or experienced to perform. Attributing blame to any person can arise only from a finding of negligence against that person, and therefore action under QR 1269(6) should be taken only when such a finding is likely to be made.

  8.  If a board finds negligence, it is also to express an opinion upon its degree. Boards are to consider and record any mitigating circumstances, and indicate whether or not such circumstances—in the board's view—reduce the degree of blame attaching to an individual. Conversely, where no such circumstances are apparent, the board should express a view as to whether any negligence was blameworthy to a minor degree, to a gross degree or whether it constituted recklessness or disobedience. Higher authority will determine what, if any, disciplinary or administrative action is to be taken.

  9.  Only in cases in which there is absolutely no doubt whatsoever should deceased aircrew be found negligent.

  Questions asked in Lord Jauncey's letter of 3 July to Secretary of State

1.  Did the finding of gross negligence affect the pilots' widows' pension entitlements?

  Full and final settlement of the claims for compensation for the dependants of the two deceased pilots was reached on the basis of 50 per cent contributory negligence and with both parties acknowledging (although not necessarily agreeing) the basis on which the settlement was reached. The families of the deceased pilots have not admitted liability.

  During the course of the settlement negotiations Mrs Tapper's legal representative advised the MOD that his client was concerned that in reaching agreement on common law compensation her attributable pension would be the subject of abatement. Such pensions are abated so that the claimant is not "compensated" twice for the loss of the support element included in the payments. Mrs Tapper was unsure whether the extent of the abatement would outweigh the value of the compensation in the long term. The Government Actuary's Department provided advice on the level of the abatement and as a result, on legal advice, Mrs Tapper decided to accept a lump sum common law settlement plus an abated attributable pension.

2.  Can MOD supply reports of any other Boards of Inquiry which produced findings of gross negligence under the same rules as applied in this case?

  This will be answered shortly.

3.  What evidence was available to the Sheriff which was not seen by the Board of Inquiry and vice versa?

  The Department made nothing available to the Fatal Accident Inquiry that was not seen by the RAF Board of Inquiry but we are aware that at the Fatal Accident Inquiry papers were lodged by those acting for the Tapper and Cook families. These papers will not have been available to the Board of Inquiry.

  Evidence given by witnesses at the Fatal Accident Inquiry was not available to the RAF Board of Inquiry which preceded it. Although many of the same witnesses were called to give evidence to both Inquiries, in some instances there were marked differences in the evidence given, for example by Mr Holbrook, the yachtsman.

  Parts of Annex Y of the report of the Board of Inquiry into the Mull of Kintyre crash, which was withheld from the next of kin of the deceased aircrew, was similarly withheld from the Fatal Accident Inquiry. This is the report by Racal of the SuperTANS Navigation system which was withheld on grounds of security and commercial sensitivity.

  Neither of the two senior reviewing officers of the RAF Board of Inquiry, nor the Station Commanders of RAF Aldergrove and RAF Odiham, were called to give evidence to the Fatal Accident Inquiry even though their remarks form an integral part of the Board of Inquiry process.

4.  Can MOD supply the procedural rules which governed this Board of Inquiry?

  This will be answered shortly.

5.  What is a cyclic flare?

  This is a rapid change in pitch angle of the aircraft to either slow down or climb quickly. In the case of the Mull of Kintyre Chinook accident, a Boeing simulation indicated that a sharp flare, if carried out at approximately 150 knots airspeed and 1,000ft per minute rate of climb, would reproduce the recorded effects of the actual ground impact.

6.  Is it the case, as alleged in a report by three Fellows of the Royal Aeronautical Society dated April 2000 (para 1.6), that "Mr Henderson of the MOD subsequently admitted that the AAIB inspector helping the investigation was not given the full FADEC story during that investigation"?

  This will be answered shortly.

7.  Is it the case, as alleged in the same report (para 8.2, 5 and 6), that Squadron Leader Burke, the unit test pilot at RAF Odiham, "was ordered not to speak to any of the investigators about Chinook systems malfunctions", and was subsequently ordered by the Officer Commanding Operations "not to talk to anyone", including Service colleagues, the Board of Inquiry, the AAIB and the Sheriff?

  The RAF Board of Inquiry and Fatal Accident Inquiry and the team from the AAIB investigating the Mull of Kintyre accident were allowed unfettered access to information.

  Squadron Leader Burke has alleged that he was "ordered not to give evidence". We do not know to what he is referring, but the Station Commander at RAF Odiham at the time remembers telling his Station Executives to discourage speculation and rumour about the cause of the accident. It is, therefore, possible that Squadron Leader Burke was asked not to put forward unsubstantiated opinions.

  Squadron Leader Burke's duty at RAF Odiham was to check aircraft after maintenance, a routine activity. He had no operational experience on the Chinook MkII. Squadron Leader Burke's opinions were subsequently forwarded to MOD by Robert Key MP and were found to offer no new insights into the accident.

8.  If Squadron Leader Burke prepared notes for the Board of Inquiry, may we see them?

  We are not aware that Squadron Leader Burke prepared notes for the Board of Inquiry.

16 July 2001