Accident Investigations Rogers v Hoyle: Legal Victory for Claimants in UK Aviation Claims EUROPEAN AIR LAW ASSOCIATION (EALA) 26 th ANNUAL CONFERENCE 07 November 2014, OSLO, NORWAY Sarah Stewart Partner, Aviation & Travel Law Stewarts Law LLP

Case Studies 1

This is a civil claim for damages in negligence arising from the crash of a DH82A Tiger Moth aircraft on 15 May Mr Hoyle was the pilot and co-owner. The Claimants are the family of Orlando Rogers who was a passenger in the aircraft and who died of the injuries he sustained in the crash. Liability denied. An AAIB report was published and relied upon by the Claimants. The Defendant sought a declaration from the court that the report is inadmissible in the proceedings. The Judge at First Instance declined to exclude it and the Defendant appealed to the Court of Appeal. The Court of Appeal was asked by the Defendants to consider whether the First Instance Judge was right to hold that the accident investigation report was admissible as evidence in civil proceedings, and to decline to exclude it as a matter of discretion. Background to the case 2

The AAIB ( part of the Department of Transport, is tasked with investigating accidents and serious incidents involving aircrafts which occur in or over the UK. Its powers are contained in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 (SI1996/2798), which were made under sections 75 and 102 of the Civil Aviation Act These, implement the EU obligations under Council Directive 94/56/EC of 21 November 1994; and further the obligations of the UK pursuant to Annex 13 to the Convention on International Civil Aviation (Chicago Convention) Article 26 of the Chicago Convention provides that a State in which the accident to an aircraft occurs shall institute an inquiry, in accordance with the procedure recommended by ICAO. Regulation (EU) 996/2010 on the Investigation and Prevention of Accidents and Incidents in Civil Aviation (“the EU Regulation”) supersedes the 1996 UK Regulations and establishes a parallel air investigation regime with direct effect in Member States. The 1996 UK Regulations and Regulation 1996/2010 protect classes of documents but neither seeks to prevent a person from relying on the content of the final report in court proceedings, nor do they refer to admissibility as evidence in civil proceedings. This is a matter which is governed exclusively by the ordinary rules of evidence in the individual Member States. The Air Safety Investigation 3

There are 2 critical features of an AAIB investigation:- 1.The sole objective of the investigation is the prevention of accidents and incidents. 2.It is not the purpose of the investigation to apportion blame or liability (see Art 3.1 of Annex 13; Reg 4 of the Regulation and Art 4 (3) of the Directive). The accident investigation inspectors’ powers include: rights of access to the accident site, the aircraft, flight recordings and any other recordings, results of examinations of bodies of victims, and records held by owners, operators, manufacturers. right to examine witnesses. The final report is a public document but the relevant records are not (see EU Regulation 18), thereby protecting the anonymity of those involved in contributing to the investigation. The Claimants’ were not seeking to rely upon, nor were they requesting disclosure of, any records in the possession of the AAIB as defined by the Chicago Convention or the 1996 UK Regulations or Regulation 1996/2010. The Air Safety Investigation 4

Defendant’s Position The Defendant’s arguments were twofold: 1.That the nature of the Report made it an unacceptable and unsafe piece of evidence in that it contained unqualified, anonymous, opinion evidence; and 2.If information in the Report was allowed to be used as evidence this would deter people from assisting, co-operating or speaking freely with the AAIB; the volunteering of information would dry up; investigators may write their reports with a view to having to defend them rather than to maximise safety. This would slow down the investigation and have a negative impact on the quality of the evidence; and would delay the formulation of safety recommendations. In other words it would impede the AAIB’s effectiveness and jeopardise air safety. Note 1 to Art of Annex 13: “Information...being given voluntarily by persons interviewed during the investigation… could be utilised inappropriately for subsequent disciplinary, civil, administrative and criminal proceedings. If such information is distributed it may in the future no longer be openly disclosed to investigators….”. 5

The Claimants’ argued that the AAIB report would not form the only evidence on liability in the case. The court will hear both factual and expert evidence and it will be for the court to consider the weight it attaches to all the evidence taken together, whether that be in the form of a statement, an expert opinion, a document or the AAIB report. There have been a number of previous cases in the English Courts where the AAIB report has been referred to and admitted as evidence with the ultimate decision as to weight and interpretation being left to the trial judge. Furthermore the use of AAIB reports in English litigation would assist: 1.The efficient and speedy resolution of claims (the majority of potential civil claims settle on the basis of the AAIB reports). 2.The litigants, who find it impossible or very difficult to access the relevant information such as cockpit voice recordings, flight data recordings and to finance the gathering of the necessary factual evidence for their claim. 3.The court, who will be guided by the independent and thorough work by the investigators at the AAIB. Some of the best aviation minds in the UK work for the AAIB. Once published, the AAIB report is a public document. Both parties will know of its existence, the instructed experts will be aware of its existence, the witnesses of fact will know of it’s existence; and anyone searching the internet via Google can find it. Claimants’ Position 6

The Court of Appeal concluded that the whole of the AAIB report was admissible, with it being a matter for the trial judge to make such use of the report as he or she thinks fit, and noted:- 1.There was no good reason why it should impede or hinder the AAIB’s function. Inspectors are professionals and are not concerned with establishing or refuting liability. Insofar as they have a position to defend it arises from the fact that they have written a report which is, as they are aware, a public document; 2.Even if the report was not admissible, reports are available to would be Claimants/Defendants and what is said in the report can therefore be used as the foundation of a claim; 3.The AAIB has already entered into a Memoranda of Understanding with the CPS, the Association of Chief Police Officers and with the Coroners Society for their co-operation and evidence sharing. Senior AAIB inspectors regularly give evidence at inquests which is transcribed and can then be used in subsequent proceedings. It is not apparent that the work of the AAIB has in any way been adversely affected by any of this or that the authors of the AAIB reports have become more guarded in their opinions on that account. The Court of Appeal’s decision 7

“It would be foolish and blinkered to ignore such a valuable resource” (Mr Justice Leggatt 2013 EWHC 1409 (QB)) “I agree with the judge when he said that a non-lawyer would be astonished that the report of the AAIB was not something to which a court could even have regard”. And also - “Nothing in this judgment should be taken to mean that anything in the Report is to be treated as conclusive or prima facie conclusive of anything; or as shifting the incidence of the burden of proof; or as precluding any party from challenging anything in it, or as restricting or limiting any other admissible evidence that any party may choose to call” (Lord Justice Christopher Clarke 2014 EWCA Civ 257) Sarah Stewart Partner, Aviation & Travel Law Stewarts Law LLP Conclusion 8