Dr Nicholas Bevan's legal training and awareness blog is primarily intended for motor insurers and legal professionals handling motor accident claims. It was launched in April 2013 to increase awareness of the UK’s systemically defective national law provision in this area.
Nicholas provides legal consultancy services to his professional clients as well as free advice to motor accident victims. Contact him on: 01823 325365 or 07968 427134 or at firstname.lastname@example.org
Dr Nicholas Bevan
Friday, 28 March 2014
CRASH INVESTIGATION REPORT ADMISSIBLE IN CIVIL ACTION
Rogers and another v Hoyle 
EWCA Civ 257
Common sense from the
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
 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
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’.
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
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.