Julia Mary Rogers and Another v Mr Scott Hoyle
| Jurisdiction | England & Wales |
| Judge | Mr Justice Leggatt |
| Judgment Date | 23 May 2013 |
| Neutral Citation | [2013] EWHC 1409 (QB) |
| Docket Number | Case No: HQ12X01837,HQ12X01837 |
| Court | Queen's Bench Division |
| Date | 23 May 2013 |
[2013] EWHC 1409 (QB)
Mr Justice Leggatt
Case No: HQ12X01837
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
John Kimbell (instructed by Stewarts Law LLP) for the Claimants/Respondents
Timothy Marland (instructed by Clyde & Co.) for the Defendant/Applicant
Hearing date: 21/02/2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The issue raised by this application is whether a report produced by the Air Accident Investigation Branch of the Department for Transport ("the AAIB") is admissible as evidence in civil proceedings.
I am told that (save for one case in 2008 known to counsel but of which there is no report or transcript) this issue has not come before the High Court before. I have been referred to a number of reported cases in which reports of the AAIB were admitted in evidence. In none of these cases, however, was the admissibility of the AAIB's report contested. In the present case the objection is taken that the report constitutes inadmissible opinion evidence. To determine whether this objection is well founded, it is necessary to consider the nature and relevance of the report together with the basis and scope of the rule of law which excludes opinion evidence.
The Claim
The claimants bring this action as executors on behalf of the estate and as dependants of Mr Orlando Rogers, claiming compensation for his death. Mr Rogers died on 15 May 2011 when a Tiger Moth aircraft in which he was a passenger crashed near Witchampton in Dorset. The claimants allege that the accident was caused by the negligence of the defendant, Mr Hoyle, who was the pilot of the aircraft.
The claimants' case, in brief, is that Mr Hoyle agreed to take Mr Rogers and another acquaintance, Mr Diamond, on a short pleasure flight in a vintage Tiger Moth propeller bi-plane manufactured in 1940. The aircraft had room for only one passenger. Mr Diamond went first. During the first flight, two loops were performed — one at an altitude of 1200 ft and one at 1600 ft.
For the second flight, Mr Rogers replaced Mr Diamond as the passenger in the aircraft. The claimants say that Mr Hoyle intended to give Mr Rogers the same experience as Mr Diamond by performing aerobatic loops. They allege that in the course of the flight Mr Hoyle pulled up into a loop at an altitude of about 1400 ft but lost control of the aircraft, which entered into a spin from which Mr Hoyle was not able to recover. The aircraft crashed into a field and Mr Rogers suffered fatal injuries. Mr Hoyle survived the crash.
It is the claimants' case that Mr Hoyle was negligent in that he attempted to perform a loop (a) when he had no or no sufficient training and expertise in aerobatic flying or spin recovery and (b) at a dangerously low altitude such that there was insufficient airspace to recover from a spin.
The defendant's case is that he was not attempting to perform a loop when the accident occurred. He says that the rudder pedals jammed and that he was not able to prevent the aircraft from stalling and flipping over into a spin from which, because the pedals were jammed, he could not recover.
The AAIB
The AAIB is part of the Department for Transport. It is the official body charged with the investigation of accidents and serious incidents involving aircraft which occur in or over the United Kingdom.
The powers of the AAIB are contained in the Civil Aviation (Investigation of Air Accidents and Incidents) Regulations 1996 ("the Regulations") made under sections 75 and 102 of the Civil Aviation Act 1982. The Regulations were made to implement the EU obligations of the United Kingdom under Council Directive 94/56/EC of 21 November 1994 ("the Directive") and to carry out Annex 13 to the Convention on International Civil Aviation, signed in Chicago on 7 December 1944 ("the Chicago Convention").
Alongside the Regulations there is now a parallel regime established by Regulation (EU) 1996/2010 ("the EU Regulation"). The EU Regulation, which has direct effect in Member States, came into force on 2 December 20There is a substantial overlap between the EU Regulation and the Regulations. However, the Regulations have not been repealed. For present purposes it is sufficient to outline the statutory scheme for the investigation of air accidents established by the Regulations without also referring to the corresponding provisions of the EU Regulation.
The Regulations Governing Air Accident Investigations
The Regulations provide for the appointment of Inspectors of Air Accidents who, as a body, are known as the AAIB: reg 8. When an accident occurs in or over the United Kingdom, the Chief Inspector must appoint one or more inspectors to carry out an investigation: reg 8(3). The Regulations give these inspectors a series of powers to enable them to carry out their investigations. In particular, for the purpose of enabling him to carry out an investigation into an accident or incident in the most efficient way and within the shortest time, an investigating inspector is authorised by regulation 9(1) to:
"(a) have free access to the site of the accident or incident as well as to the aircraft, its contents or its wreckage;
(b) ensure an immediate listing of evidence and controlled removal of debris, or components for examination or analysis purposes;
(c) have immediate access to and use of the contents of the flight recorders and any other recordings;
(d) have access to the results of examination of the bodies of victims or of tests made on samples taken from the bodies of victims;
(e) have immediate access to the results of examinations of the people involved in the operation of the aircraft or of tests made on samples taken from such people;
(f) examine witnesses; and
(g) have free access to any relevant information or records held by the owner, the operator or the manufacturer of the aircraft and by the authorities responsible for civil aviation or airport operation."
For these purposes, investigating inspectors also have powers to summon and examine witnesses, to require anyone to answer questions or produce documents, to take witness statements signed with a declaration of truth, to inspect any place or aircraft and to take measures for the preservation of evidence: reg 9(2).
The sole objective of the investigation of an accident or incident under the Regulations is the prevention of accidents. It is not the purpose of such an investigation to apportion blame or liability: see reg 4, which reflects para 3.1 of Annex 13 to the Chicago Convention and art 4(3) of the Directive.
On completion of an investigation, the inspector must prepare a report and submit it to the Secretary of State: reg 11(1)+(4). The report must state the sole objective of the investigation and, where appropriate, contain relevant safety recommendations: reg 11(3). A safety recommendation "shall in no case create a presumption of blame or liability for an accident": reg 11(5).
If in the opinion of the investigating inspector the report is likely to affect adversely the reputation of any person, then that person (or, if the person is dead, whoever appears to represent best the interest of the deceased person) must be given the chance to comment on the relevant parts of the report in draft before it is published: reg 12.
The AAIB's report of an investigation must be made public. This must be done within the shortest time possible and, if possible, within 12 months of the date of the accident: reg 13.
The records of an investigation (other than those included in the report) may not be disclosed for any purpose other than accident investigation without a court order: reg 18. A court may order such disclosure only if satisfied that the interests of justice in the proceedings or circumstances for which the relevant record is required outweigh any adverse impact which disclosure may have on that or any future accident investigation: reg 18(4)(b).
The AAIB Report
The report of the AAIB's investigation into the accident with which these proceedings are concerned (the "AAIB Report") was published on 14 June 2012. The AAIB Report follows what I understand to be the standard format of such reports. Its contents include: a narrative history of the flight; information about the weather conditions, the aircraft and the pilot; a description of the wreckage found at the accident site and conclusions drawn from a detailed examination of the wreckage; information derived from a post-mortem examination of the deceased passenger, from radio transmissions between the pilot and air traffic control, from recordings of radar and GPS data and from interviews with witnesses (including the pilot); and analysis of the information obtained in the investigation leading to conclusions about the cause of the accident.
The Claimants' Reliance on the AAIB Report
When the particulars of claim in these proceedings were settled on 11 May 2012, the AAIB Report had not yet been published. The claimants' statement of case was therefore pleaded without reference to it. However, by the time the claimants came to serve their reply on 3 July 2012 the AAIB Report was available, and in pleading the reply extensive reference has been made to the report.
At paragraph 3 of the reply, the claimants have given notice pursuant to section 2 of the Civil Evidence Act 1995 of their intention to rely on the contents of the AAIB Report as hearsay evidence at trial. Paragraph 4 of the reply summarises findings contained in the AAIB Report and...
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