Rogers & Anor v Hoyle

An official accident investigation report is admissible in civil proceedings where it contains relevant factual, hearsay and expert opinion evidence and no statute restricts its use. The rule excluding findings made in earlier judicial proceedings does not extend to an expert investigator who may use first-hand observations, technical knowledge and accumulated experience.

The trial judge must determine the report’s weight. Findings informed by expertise may carry weight, while inferences which the court is equally qualified to draw carry no additional weight. The court may receive the whole report and disregard unhelpful or inadmissible passages instead of requiring their excision. Its case-management power to exclude otherwise admissible evidence remains available.

The claimants sought compensation following the death of a passenger in the crash of a Tiger Moth aircraft piloted by the defendant. They alleged that the defendant negligently attempted an aerobatic loop at low altitude. The defendant maintained that jammed rudder pedals caused the aircraft to stall and enter a spin.

The Air Accidents Investigation Branch investigated the crash and published a report containing factual material, technical opinions and conclusions about the probable causes. The claimants intended to rely on that report. The defendant applied for a declaration that it was inadmissible opinion evidence and for related passages in the claimants’ statements of case to be struck out. The central issue was whether the report was admissible in civil proceedings and, if so, whether it should nevertheless be excluded as a matter of discretion.

1. The defendant’s application was refused and the report was declared admissible. The report contained extensive relevant material, including investigators’ observations, witness accounts, technical analysis and conclusions about the probable causes of the accident. Hearsay was not a ground for exclusion under section 1 of the Civil Evidence Act 1995. Questions arising from anonymity, multiple hearsay and undisclosed underlying material concerned weight rather than admissibility.

2. The general rule against opinion evidence protects the court’s responsibility to evaluate the evidence independently. It does not exclude an opinion where its maker is significantly better placed than the court to evaluate the underlying facts and draw conclusions. Expert opinions within the report were therefore admissible because they concerned matters such as aeronautical engineering, aircraft operation, meteorology, pathology and flight-data analysis.

3. The rule in Hollington v Hewthorn [1943] 1 KB 587 excludes factual findings made in earlier judicial proceedings. Such findings are reached by a court or tribunal whose responsibility is to decide solely upon the evidence placed before it. The rule did not extend to AAIB investigators, who could use their first-hand observations, technical knowledge and experience of other accident investigations. Their conclusions possessed an expert value which could not properly be attributed to another judge’s findings.

4. The weight attributable to each conclusion depended on the extent to which it reflected specialised knowledge. An inference requiring no expertise carried no weight beyond the evidence supporting it. Because expertise and ordinary factual inference could not be divided by a clear line, the proportionate course was to admit the whole report and leave the trial judge to use or disregard particular material as appropriate.

5. The report was not expert evidence governed by Part 35 of the Civil Procedure Rules 1998, because it had not been prepared for the purpose of the proceedings. Permission under rule 35.4 was unnecessary. The court nevertheless retained power under rule 32.1 to exclude otherwise admissible evidence. Neither the alleged evidential shortcomings nor the suggested risk to future accident investigations justified exercising that power.

6. The claimants could plead their intention to rely on the report, but should not plead the evidence contained in it. Their reply also improperly introduced particulars belonging to the claim itself. Suitable amendments were required, after which no strike-out order would be necessary.

This was a first-instance application. Master Fontaine had directed on 11 December 2012 that the admissibility application should be heard by a High Court judge.