Gillie Belsham Global Head of Aviation, Joint Head of Energy & Infrastructure, Partner
Safety in the Balance
Recent Court ruling on the admissibility of AAIB reports as evidence.
If an aircraft is involved in an accident or incident it is unsurprising that all concerned, and others, want to know what went wrong.
Where aviation accidents or serious incidents1 occur in the UK (or its overseas territories), they will be investigated by the Air Accidents Investigation Branch (AAIB), a part of the UK Department for Transport. The AAIB’s invaluable work is carried out by one or more of its inspectors, who are all highly qualified and experienced in a range of relevant fields such as operations, engineering, avionics and/or flight data analysis. They have a number of wide-ranging powers, including free access to the accident site, aircraft and wreckage and all relevant evidence such as medical examinations, flight recorders and aircraft/pilot records, together with the right to examine witnesses.
“THE AAIB RELIES ON CONSIDERABLE AND PROMPT CO-OPERATION FROM THOSE INVOLVED IN AVIATION ACCIDENTS AND/OR THEIR POTENTIAL CAUSES.”
Having investigated the accident, the AAIB will produce a report of its findings, which is freely available to the public. The report does not concern itself with blame. It is produced in line with the AAIB’s stated purpose and the relevant air investigation regulations, both EU and national, which implement the Chicago Convention. As the AAIB’s website states, its purpose is:
“To improve aviation safety by determining the causes of air accidents and serious incidents and making safety recommendations intended to prevent recurrence... It is not to apportion blame or liability”.2
Under the regulations governing accident investigation the records of AAIB investigations (other than those contained in its report), such as statements taken from witnesses, cockpit voice recorders and their transcripts or communications between people involved in the operation of the aircraft, for example, may not be disclosed for any purpose other than accident investigation, without a Court order. The regulations recognise the risk that such disclosure may pose to future accident investigation (relying as it does on co-operation from parties who may be concerned about possible liability or reputational implications) and make it clear that a Court may only order disclosure if it is satisfied that the potential future adverse impact on investigation is outweighed by the interests of justice.
“THE REPORT DOES NOT CONCERN ITSELF WITH BLAME.”
Aviation accidents often give rise to litigation. It is perhaps understandable that parties involved in the litigation may wish to refer to the AAIB’s report. The report after all sets out, as accurately as possible, the inspectors’ views as to the cause of the accident and the events surrounding it as part of any safety recommendations that may follow. Indeed, many people might expect a Court to study the contents of the AAIB report if referred to it.
But is there a danger of admitting AAIB reports as evidence in Court? In order to do its job properly, the AAIB relies on considerable and prompt co-operation from those involved in aviation accidents and/or their potential causes. This might include any number of parties such as pilots, operators, MROs, airframe and component manufacturers, OEMs etc.
Litigation has a way of making people understandably anxious. If AAIB reports featured more often in proceedings, would those consulted be less likely to be full and frank with the AAIB? Might they want or be required to check their position with their employers or their lawyers more extensively than currently before being interviewed? In summary, would the AAIB’s job become more difficult and, by extension, would that jeopardize aviation safety in the UK?
This was one of the issues examined in the recent case of Rogers & Another v Hoyle in which the Court of Appeal considered an application to exclude an AAIB report as evidence, the point having been heard first in the High Court.
Mr Hoyle was part-owner and pilot of a Tiger Moth aircraft which crashed near Witchampton in Dorset on 15 May 2011. His passenger was Mr Rogers, an acquaintance of Mr Hoyle’s at the time. Mr Hoyle had agreed to take Mr Rogers and another acquaintance, Mr Diamond, on short pleasure flights that day.
Mr Diamond went first. During his flight the aircraft performed two loops at altitudes of 1,200ft and 1,600ft.
During the second flight, the aircraft entered a spin from which it did not recover. In the subsequent flight into terrain, both Mr Rogers and Mr Hoyle were seriously injured. Tragically, Mr Rogers later died from his injuries.
The executors of Mr Rogers’ Estate brought a claim against Mr Hoyle in negligence. They alleged that Mr Hoyle was attempting to perform a loop at approximately 1,400ft when the aircraft entered into its spin. Mr Hoyle argued he was not attempting to perform a loop, and that the aircraft entered into its spin as a result of its rudder pedals jamming. The AAIB investigated and issued a report (the Report) in the usual way.
The claimants made several references to the contents of the Report in their pleadings and indeed annexed a copy of the Report to the Reply. The pilot defendant subsequently issued an application to contest the admissibility of the Report as evidence in proceedings.
The AAIB Report
The Report contained a number of matters which were said to be relevant to the claim, including: track logs from a GPS tracker recovered at the crash site, which showed that the accident manoeuvre was performed “...in the same location that the pilot had completed a loop on the previous flight...”3 ; the same evidence which showed that Mr Hoyle had performed a number of aerobatic manoeuvres below the recommended minimum altitude; evidence from witnesses on the ground (including a retired professional pilot) which stated that the aircraft had commenced a loop before entering its spin; and evidence from Mr Hoyle himself in which he failed to identify all the crucial inputs required for spin recovery of a Tiger Moth aircraft.
The potential threat to aviation safety was just one of the arguments put forward by the pilot in support of his application to have the Report excluded. This article concentrates chiefly on the safety argument, but for completeness the other lines of attack are considered briefly.
The pilot’s principal argument was that the Report was inadmissible as the findings of a previous inquiry, as per the rule in the case of Hollington v Hewthorn4. The rationale behind this rule is that a Court cannot assess the weight to be given to a previous inquiry’s finding without undertaking a re-examination of the evidence put before that previous inquiry.
It was argued that this problem is compounded in the case of an AAIB report because (as set out above) only the evidence disclosed in the AAIB’s report is available for consideration. Evidence not contained in the report may only be disclosed with a Court order. Furthermore, even evidence expressly referred to in the report is synopsised by the report’s authors, who remain anonymous.
Neither Court agreed, finding the contents of the Report admissible as matters highly relevant to the proceedings and noting there was no statutory restriction on the admission of AAIB reports, unlike for example those produced by the AAIB’s sister organisation, the Marine Accidents Investigation Branch (MAIB). Moreover, the Court pointed out, AAIB reports were public documents and they had been admitted in evidence before, albeit such admission not been contested.
Whilst it was conceded that certain parts of an AAIB report might be inadmissible, that did not warrant its exclusion or the time consuming exercise of excising parts of it. A trial judge could use the report as he or she saw fit, ignoring any part of the report which contained inadmissible material. Neither the High Court nor the Court of Appeal gave any guidance on how in practice a trial judge would be able to test the weight of the AAIB’s evidence, nor how counsel representing a party wishing to challenge the contents of an AAIB report would be able to make representations in this regard, bearing in mind that – absent a Court order for their disclosure – neither counsel nor judge are able to review the underlying records and supporting documents of the AAIB’s investigation not contained in the report.
As a fall-back position, the pilot argued that, even if the Report were admissible, the Court should use its discretion to exclude it on two grounds: firstly, due to its content; or secondly, due to the risk it presented to aviation safety.
On the first ground, his assertions included the fact the Report was an anonymised document, much of its contents were not attributed to named individuals, opinion evidence was not supported by credentials and that its findings were reached on the basis of a process of evaluation and elimination of evidence which was not disclosed, neither was any evidence discarded in that process disclosed. For all these reasons (and more were advanced) the Report should not be allowed in evidence.
The view of the High Court was that these arguments came “... nowhere near to providing a sufficient reason for excluding the report from evidence...”5, particularly as the Court considered the Report would be of significant evidential value to the case. The points raised went to the issue of what evidential weight (our emphasis) should be given to the Report. They did not warrant its exclusion. Again, no guidance was given on how such weight would be applied. The finding that the Report would be of ‘significant evidential value’ does on its face appear rather to pre-judge the issue, as was the pilot defendant’s fear.
On appeal the pilot argued the Report did not comply with certain statutory provisions, including those of the Civil Procedure Rules (CPR), which govern expert evidence. As such, insofar as the Report contained expert opinion, it should be excluded. Again, this argument failed to find its mark. The Court of Appeal considered, among other points, that the expert evidence contained in the Report did not fall under the relevant provisions of the CPR as they only applied to experts instructed by the parties (our emphasis) to give or prepare evidence in proceedings. That was not the case with the AAIB.
Finally came the argument concerning safety; given the importance of the point the Secretary of State for Transport and the International Air Transport Association (IATA) were allowed to intervene and make representations, the former submitting a statement from Mr Keith Conradi, the Chief Inspector of the AAIB. The pilot’s union, BALPA, although too late to intervene, wrote to the Court to make it aware that its members shared the concerns of the AAIB and IATA.
Mr Conradi voiced a number of fears, some of which are set out here: if AAIB reports were frequently used in Court proceedings, people who may assist the AAIB might be deterred from doing so; people may fear being called as witnesses or made defendants; they might be encouraged to speak with their employer before speaking to the AAIB, who would in turn refer to their lawyers, slowing down the investigation; the quality of volunteered information may decline, or dry up completely; AAIB investigators may face additional pressures if they fear having to justify their conclusions in a Court of law.
Both Counsel for the Secretary of State and IATA claimed the High Court had erred in failing to balance the interests of justice against the potential prejudice the admission of the Report might cause future AAIB investigations. Counsel for IATA went further, arguing there should be a presumption that admission of AAIB reports in evidence would have an adverse domestic and international impact on safety investigation.
None of the arguments were successful. Summarised below are some of the reasons given for the Court of Appeal’s decision, in which it held that:
- the Report was admissible as highly relevant evidence of particular potential value. Denying the judge sight of such “authoritative, independent, prompt and detailed”6 evidence was difficult to justify;
- excluding the Report would run contrary to the Court’s overriding objective to deal with cases justly and at proportionate cost, as much of its content would be impossible or extremely costly to obtain elsewhere;
- AAIB reports were freely available to the public, Parliament had not restricted their use as it has done with for example MAIB reports, and AAIB reports had been admitted previously in civil proceedings, albeit without challenge by another party;
- AAIB inspectors need not concern themselves with establishing or refuting civil liability, or whether any of their conclusions have been proved to the civil standard – that is for a judge to decide;
- even if reports were not admitted, they will undoubtedly be used by would-be claimants when forming their claim;
- AAIB investigators often give evidence at Coroners’ Inquests, where such evidence is often transcribed. There is nothing to suggest that doing so has hindered the AAIB in its role; and
- people are aware of the vital role of the AAIB, its purpose and its independence. They are unlikely to be significantly deterred from co-operating with the AAIB if reports are allowed to be submitted in civil proceedings.
The Report would therefore be allowed as evidence in the claim.
“IT IS A KEY STRENGTH OF THE AVIATION INDUSTRY THAT SAFETY IS GRANTED SOVEREIGN STATUS.”
The significance, or not, of this decision is something which will become apparent over time. On the one hand, AAIB reports are freely available public documents which have been referred to in evidence on limited occasions before, without apparent effect on the work of the AAIB. How any such effect would be judged is unclear. It should be borne in mind, however, that on previous occasions where AAIB reports were admitted it was in cases where their findings were not, on their face, controversial. The position is likely to be very different in a case where the AAIB report comes under sustained attack from one or other party.
It is a key strength of the aviation industry that safety is granted sovereign status. It may be correct that people will continue to help the AAIB as best they can, given the crucial work they perform, irrespective of whether AAIB reports will be more actively used in proceedings.
However, we consider it likely that the inclusion of AAIB reports in evidence will become more commonplace, and parties will seek to rely on their findings, following this case. It is also arguable that we may see an increase in applications for disclosure of the records of the AAIB’s investigation not contained in its report. Although we would expect such applications to be only rarely, if ever successful, any order for disclosure of these records is potentially toxic to the effectiveness of accident investigation, which (as is recognised by the very regulations governing accident investigation) relies on a deliberate lack of transparency to promote safety and not drive it underground.
There is no getting away from the fact that parties with extensive experience in accident investigation and no axe to grind have grave concerns about this case. Certainly any inference that assisting the AAIB with their work might land someone a place in Court has the potential to diminish that person’s desire to help, with the consequent effect on the AAIB’s ability to do its job. Ultimately, whether the potential risks highlighted in this case will materialise or not, will only emerge with time. If the former, perhaps the point will be re-visited, either by the Court or by Parliament.
Parties and their advisers inevitably consider liability implications when assisting the AAIB notwithstanding that the AAIB’s focus is cause not blame. However, we fear that this decision will only significantly increase their concerns regarding liability implications, which will likely lead to additional delay and/or may result in an unhelpful degree of circumspection. This fear was shared by Mr Conradi, who also expressed concerns that the decision may cause AAIB inspectors to be more circumspect in their reporting, knowing that they may in the future be subject to intensive cross-examination in Court. In short, we fear that this decision does nothing to advance aviation safety and, indeed, has the potential to erode it.
If you would like to discuss the issues raised in this article please contact William Turner.
1 For brevity this note refers only to ‘accidents’.
2 http://www.aaib.gov.uk/home/index.cfm per Keith Conradi, Chief Inspector, AAIB.
3 AAIB Bulletin 6/2012, at page 36.
4  1 KB 587.
5 Rogers & Another v Hoyle  EWHC 1409 (QB), at paragraph 123.
6 Rogers & Another v Hoyle  EWCA Civ 257, at paragraph 80.
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