An influential decision arising out of the English Court of
Appeal has affirmed an earlier ruling in Rogers v. Hoyle (click here),which held that reports produced by the
Air Accidents Investigation Branch ("AAIB"), of the
UK's Department for Transport, are admissible as evidence in
The case involved a wrongful death claim arising out of an
aircraft accident. The claimants alleged negligence on the part of
the defendant pilot and sought to rely on the AAIB report for both
the factual and expert evidence it contained. In response, the
defendant sought a declaration that the report was
The main question for consideration in the case was whether the
AAIB report had to be excluded as a result of the substantial body
of legal authority demonstrating that the findings of Tribunals and
Inquiries are not generally admissible in subsequent legal
proceedings. It was raised that none of the statements of fact or
opinion contained in the report were attributed to any named
individual, and that the report was based on an exercise in
evaluating and discarding evidence that was not disclosed in the
report. It was also argued that if these reports were to be
admissible, witnesses would not be as cooperative or forthcoming,
resulting in the possible loss of useful information.
In its judgment, the English Court of Appeal confirmed the High
Court's decision holding that the content of an AAIB report is
admissible in evidence, both as to the facts it contains and as
expert opinion evidence. The court agreed that the report contained
a wealth of potentially important evidence which bore directly on
the issues in the action, and that insofar as the reports contained
statements of fact, these were admissible. The opinion evidence was
also said to be admissible, in principle, on the basis that the
opinions stated were those of qualified experts on subjects
requiring special expertise.
This case now stands as a leading authority on the admissibility
of AAIB reports in civil proceedings in the UK. It is anticipated
that AAIB reports will more readily be admitted and that the
reliance placed on such reports by both claimants and defendants
will increase, depending upon the findings of the Branch and
whether it is favourable to them or not. It remains to be
seen whether this will have a negative impact or deterrent upon
investigations, as argued by counsel that it would.
This decision may also have some relevance in the Canadian
context. In Canada, the Transportation Safety Board
("TSB") has exclusive jurisdiction over the investigation
of civil aviation occurrences. The TSB conducts investigations and
issues reports which are similar in scope and purpose to the AAIB
reports. Thus, the Rogers decision may intuitively have some basis
for application to proceedings here.
However, the law concerning the admissibility of these reports
is stricter in Canada. As opposed to relying on common law
principles, as is the case in the UK, Canada has specific statutory
rules in this regard. Under the Canadian Transportation Accident
Investigation and Safety Board Act, an investigator is not
ordinarily considered competent or compellable to appear as a
witness in any legal proceedings. Further, their opinion is
not admissible in evidence.This Act also provides that the findings
of the Board are not binding on the parties in any legal or
disciplinary proceedings and it is not their function to assign
fault or determine civil or criminal liability. No such statutory
restrictions exist in English legislation.
Given this key difference, it is unlikely that the Rogers
decision will directly affect legal proceedings on this side of the
pond. Although the Canadian approach is more restrictive regarding
the admissibility of TSB reports, Rogers may be used to support
efforts to reform the legislation and allow increased roles and
wider use of these reports as evidence in legal proceedings in
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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