The recent Court of Appeal case of Hoyle v Rogers upholds the first instance decision that Air Accident Investigation Branch (AAIB) reports are admissible as evidence in English court proceedings. The judgment will assist parties to litigation resulting from air accidents or incidents both with forming and proving their respective cases where previously it might have been considerably more difficult to obtain the information underlying AAIB reports.
Background
On 15 May 2011, Orlando Rogers was a passenger on a craft piloted by Scott Hoyle. The aircraft crashed causing Mr Rogers to be killed and Mr Hoyle to be seriously injured. The family of Mr Rogers attributed the accident to Mr Hoyle’s negligence and claimed for damages for his death.
The AAIB investigated the accident and produced a report dated 14 June 2012 on which Mr Rogers’ family wished to rely. The first instance judge held that the report was admissible in evidence and Mr Hoyle appealed contending that:
1. the admission of the report would offend the rule in Hollington v Hewthorn [1943] KB 857;
2. insofar as the report contained expressions of expert opinion, it did not comply with the mandatory provisions of CPR Part 35; and
3. if the report was potentially admissible, it should be excluded, as a matter of discretion, under CPR 32 and that the judge had been wrong to decline to do so.
The AAIB
The AAIB’s powers are contained within the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 which were made under s.75 and s.102 of the Civil Aviation Act 1982. The Regulations implement the EU obligations under Council Directive 94/56/EC and effect the requirements of Annex 13 to the Convention on International Civil Aviation (the Chicago Convention).
The Regulations grant the AAIB’s inspectors a series of powers to enable them to conduct their investigations. The sole purpose of their investigation is to prevent accidents and it is not their role to apportion blame or liability.
AAIB reports are public documents, which usually follow the format prescribed in Appendix 1 to Annex 13 of the Chicago Convention, but the records of the investigation are not. Regulation 18(1) provides that no “relevant record” shall be made available to any person for purposes other than accident or incident investigation. However, they can be referred to in or appended to the AAIB’s report. “Relevant records” include: (a) all statements taken; (b) all communications between persons involved in the operation of the aircraft; (c) medical or private information regarding those involved in the accident or incident; (d) cockpit voice recordings and transcripts from such recordings; and (e) recordings and transcriptions of recordings from air traffic control units. The above said, the English High Court can order that a “relevant record” be disclosed where it is “satisfied that the interests of justice in the judicial proceedings or circumstances in question outweigh any adverse domestic or international impact which disclosure may have on the investigation into the accident or incident to which the record relates or any future accident or incident investigation undertaken in the United Kingdom”.
The judgment
The court considered that the potential value of the report to anyone seeking to establish the cause of the accident was obvious: (a) the AAIB inspectors were experienced and expert individuals fulfilling a public duty; (b) as no part of their function was to attribute blame or responsibility, there was no realistic possibility of their report being slanted so as to support or refute a claim that any individual or corporation was, or was not, at fault; (c) the investigation was carried out as soon as possible after the incident; (d) the investigators had the power and ability to obtain the necessary information from a wide range of sources to establish, on the basis of information gathered soon after the relevant event(s), a composite picture of what happened and why.
Clarke LJ commented that the report was a mixture of statements of fact and statements of opinion.
Statements of Fact
It was held that statements of fact contained in an AAIB report were prima facie admissible. It was immaterial that they constituted hearsay; instead, this went to the weight of the evidence rather than its character.
Statements of Opinion
The court distinguished the rule in Hollingthorn v Hewthorn, which held that the conviction of the defendant in a magistrates’ court for careless driving was inadmissible in a subsequent action, and stated that different considerations applied to scientific or expert witnesses (as was recognised in Hollingthorn). Clarke LJ had little difficulty in inferring that the AAIB inspectors might be treated as being experts in their respective fields. He went on to say that it was open to an expert to opine on the facts as he understood, or assumed them to be, provided he had used his expertise to form that opinion. While he recognised that it was not the function of an expert witness to opine on disputed issues of fact that did not require expert evidence to evaluate, it was common to find such statements in experts’ reports and it was for the court to disregard them.
It was held that not only was it no longer requisite that the expert be called to give evidence orally (under the Civil Evidence Act 1995) but that AAIB reports would not fall within the ambit of CPR 35 and would therefore not require the court’s permission to be adduced.
Finally, the court did not accept that it should exercise its discretion under CPR 32 (1) and (2) to exclude evidence that would otherwise be admissible. The reasoning was four-fold:
1. AAIB reports were admissible evidence that were of particular potential value;
2. The exercise of discretion should be carried out in accordance with the overriding objective of dealing with cases justly and at proportionate cost. This would tend to favour the admissibility of the report;
3. Parliament had distinguished the report itself from “relevant records”. There were similar bodies the admissibility of whose reports was not restricted (e.g. the Rail Accident Investigations Branch); and
4. The test contended for would impose an onus on the party seeking to use the admissible evidence that it should be admitted when the onus should be on the party seeking to exclude it to persuade the court that it should not be used.
When coming to this conclusion Clarke LJ considered whether it would impede or inhibit future AAIB investigations but concluded that it would not.
Comment
The decision will make it considerably easier for the parties to form and prove their respective cases. Historically, it has proved challenging to obtain the information used by the AAIB to form their opinion. While it may seem obvious to the general public that the reports should be admissible, it is a departure from the industry’s historic understanding of the AAIB’s role and broadens the purpose of the reports. It remains to be seen how the AAIB will react to the role that its reports could now play in legal proceedings and the effect that it may have on potential witnesses and their willingness to come forward to the AAIB.
It also remains to be seen what impact this decision will have on other statements that are arguably hearsay but where it is difficult or impossible to obtain the underlying information.
Further reading: Hoyle v Rogers [2014] EWCA Civ 257
