Dr Nicholas Bevan

Dr Nicholas Bevan

Friday, 28 March 2014


Rogers and another v Hoyle [2014] EWCA Civ 257

Common sense from the common law

Rogers v Hoyle
The Witchampton biplane crash scene from 15 May 2011

The family of a former captain in the Royal Marines who was killed in a tragic air accident have successfully resisted the defendant insurer’s attempts to exclude a damming Air Accident Investigation Report from being admitted in evidence in their claim against the pilot, who survived the crash.  

The claimants’ case is that the accident was caused by the pilot negligently attempting a dangerous loop the loop manoeuvre, too close to the ground and without adequate training.  The pilot blames a mechanical fault.

As is well known, the Air Accident Investigation Branch responsible for investigating such incidents is part of the Department for Transport.  Its reports are not commissioned the parties involved in a civil claim.  Its powers are set out in Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996.  It is an independent agency and so the form and content of its reports are not governed by the Civil Procedure Rules, Part 35 or otherwise. 

The admissibility of an AAIB report as evidence in a civil claim is long been established.  These reports do not constitute a judicial determination that would be caught by the rule in Hollington v Hewthorn [1943] KB 857.  It is also well established that it is the role of the court to decide the relevance of the various statements of fact and opinion set out within the report and to judge the weight to be given to them.

In this particular case, the AAIB report’s synopsis included the following observation about the biplane in the moments before the crash: ‘.[it]..was seen by observers on the ground to pull up into a loop and during the manoeuvre it entered a spin from which it did not recover. The manoeuvre started at 1,500 feet agl and there was insufficient height for the pilot to recover from the subsequent spin.’ 

The report also included various statements of fact and opinion that the claimants sought to rely on to support its case. It expressed the view that there had been insufficient height for the pilot to recover from the loop. It also claimed that the pilot ‘was not formally trained in aerobatics and had limited experience of spin recovery’.

The insurers raised a number of technical objections, all of which failed both at first instance and on appeal.

The decision affirms what was obvious, that AAIB reports are prima facie admissible in evidence in a civil action.  The fact that parts of the report may contain unattributed statements and expressions of opinion on matters that the author has no expertise does not make the entire report inadmissible.  It is for the trial judge to make use of the report as he or she thinks fit and to excise from it anything that is inadmissible. 

At paragraph 80 of Lord Justice Clarke’s judgment he said:
For the judge to be denied sight of a report of this character - authoritative, independent, prompt and detailed - and for any experts called to be unable to refer to it in court, when it is freely available to the public, is difficult to justify…..their use considerably assists the efficient and speedy resolution of claims; and the majority of potential civil claims arising from civil aviation accidents settle on the basis of AAIB reports.’

The colossal sums that  Lloyds of London and other liability insurers seem prepared to fling at speculative challenges of this kind, apparently with a thought for the way this prolongs the suffering of the victim's family,  never ceases to astonish.  Of course insurers can do so with immunity, secure in the knowledge that their folly is effectively bankrolled by the long suffering premium paying public.

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