UK Accident Investigation Reports Admissible in Legal Proceedings — What about Canada?

Gavel - trans

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 civil proceedings.

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 inadmissible.

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 Canada.