Criminalization of Accident Investigation Dr Captain Andreas Mateou - GCAA Flight Operations Inspector
Rogers & Rogers v Hoyle [2013] EWHC 1409 (QB) • March 2014 • English Court of Appeal • Rogers & Rogers v Hoyle [2013] EWHC 1409 (QB) • Has allowed a UK AIIB report as admissible evidence during Civil Proceedings following a fatal aviation accident • Land mark decision • Chilly, turbulent and gusty winds on the flight path ahead of Air Accident Investigations
Facts of the case: First Flight • May 15 th 2011, a pilot arranged to separately take two of his friends for flights from Compton Abbas Airfield. The aircraft took off at 1302 GMT. • Climb 2,000 ft. descended to 900 ft. to look a house the passenger was considering to buy. • On the returning to the airfield and after they over flight the house of a common friend the pilot carried out a clearing turn and a loop at 1,200 ft. The aircraft then flew back towards Compton Abbas. A further loop was carried out en-route at 1,600 feet and the aircraft landed back at Compton Abbas at 1330 GMT.
Facts of the case: Second Flight • At 13.56 GMT the aircraft took off with second passenger on board. • At the same location where the pilot performed the loop during the previous flight, observers on the ground described seeing the aircraft climb up and reach the top of a loop, before they saw it enter a spin. The spin continued through a number of turns until the aircraft struck the ground. • The pilot and the passenger were seriously injured and trapped in the wreckage. The passenger died later that evening as a result of his injuries.
UK AAIB Report • AAIB Bulletin: 6/2012 • AAIB Report Findings • “ The pilot had not undertaken aerobatic training and had limited experience of spinning and spin recovery. ” • “ When asked what the recovery actions from a spin should be, the pilot reported that opposite rudder would be required to stop the spin and then when rotation had stopped back stick would be required to recover from the dive. He omitted the crucial inputs of closing the throttle, neutralising the ailerons, and applying forward stick to unstall the wings. Thus, as he did not have sufficient knowledge or training on the Tiger Moth ’ s correct spin recovery technique, it is probable that he would not have been able to recover from an unintentional spin, especially given the limited height available. ”
UK AAIB REPORT • “ When an aircraft enters an unintentional spin it can sometimes be difficult for a pilot to determine the spin direction correctly. In this case the pilot believed he had entered a spin to the left, whereas the evidence shows the aircraft was spinning to the right. • The pilot had carried out loops earlier in the day at significantly less than the recommended height from which recovery could be effected should something happen during the manoeuvre. The standard HASELL check, published in CAA Publication ‘ Safety Sense Leaflet 19 General Aviation Aerobatics ’ , recommends that all manoeuvres should be completed by 3,000 ft agl. The pilot did not provide a reason why he chose to commence the loops at a height lower than that recommended. • The reason for the loss of control during the loop could not be determined but regardless of the reason, the manoeuvre was carried out at too low a height for the pilot to be able to recover from the subsequent spin spinning to the right.
The Plaintiffs Case Rogers & Rogers v Hoyle • The claimant - executors of the estate of the passenger killed in the accident alleged. • The claimants argued that the pilot was negligent. • As he attempted to perform a loop (a) when he had no or no sufficient training and expertise in aerobatic flying or spin recovery • (b) at a dangerously low altitude such that there was insufficient airspace to recover from a spin. • The defendant pilot defence: • Was not attempting to perform a loop when the accident occurred. • Rudder pedals jammed and that he was not able to prevent the aircraft from stalling and recover from the spin.
Rule of Law and administration of Justice • The claimants sought to rely on the UK AAIB report as hearsay evidence. The admission of such evidence in civil cases is subject to the UK Civil Evidence Act of 1995 which allows hearsay evidence to be admitted, but with a number of safeguards. • The defendant pilot contested admissibility and the claimants counter argued against the admissibility of the report.
Land Mark Decision • Judgment: Leggatt J, stated: • 'If any non-lawyer was told that the law does not permit a court to have regard to the AAIB Report when deciding how the accident was caused, I am sure that he or she would express astonishment at the suggestion. Unless the court is prevented from doing so, it would be foolish and blinkered to ignore such a valuable resource,' (pg 45).
Land Mark Decision • In a powerful conclusion J Leggart stated: '... the whole of the AAIB Report is admissible as evidence in these proceedings, with it being a matter for the trial judge to make such use of the report as he or she thinks fit. Even if I had concluded that the AAIB Report contains some inadmissible material, I would not have thought it sensible to engage in an exercise of editing out parts of the report. Even on that view, the whole report should be before the court, with the judge at trial taking into account what is admissible and ignoring the remainder. '
Critical Analysis of the Decision • The decision of J Leggart is not a surprising development in the UK courts. • Other court decisions in other jurisdictions already allowed the accident investigation report to be admissible in civil and criminal proceedings initiated against aviation professionals following a number of high profile accidents or other aviation litigation proceedings.
Accidents Investigation Reports admissible in Court • Falcon 900 B accident – Greece • Helios Accident – Cyprus & Greece • Japan Airlines MD 11 • Concord Criminal and Civil Case • Air France 447 Accident
• Accident Investigation objectives well defined. • Not to apportion blame or liability. • However: • Evidence or Protected information shall be provided following a court decision if required for the proper administration of Justice. • Air France A340 accident. • Air France and its insurers sue NAV Canada, the Greater Toronto Airports Authority and the Attorney General of Canada, representing the federal environment and transportation departments, for loss of the plane and indemnity for all losses of $180 million. • NAV Canada alleges the pilots were negligent and needs the transcript to make its case.
Ontario Court of Appeal on September 27 2010 • Court Decision: • " Having examined the CVR recording and found it highly relevant, probative and reliable on the issues central to the litigation, [the judge] went on to an examination of the circumstances of the particular case before him, and concluded that the public interest in the administration of justice served by production outweighs the importance attached to the statutory privilege served by non-production. "
Safety Data Protection The Comair Saga • IN RE: AIR CRASH AT LEXINGTON, KENTUCKY, AUGUST 27, 2006 OPINION AND ORDER • This matter is before the Court on Comair ’ s Objection [DE #1376] to the January 17, 2008 Opinion and Order ( “ Order ” ) of Magistrate Judge James B. Todd regarding discovery of certain of Comair ’ s Aviation Safety Action Program ( “ ASAP ” ) reports. The Court has considered Comair ’ s. • CONCLUSION • The Court, being otherwise fully and sufficiently advised, HEREBY ORDERS that the Magistrate Judge ’ s Opinion and Order dated January 17, 2008 [DE #1326] is ADOPTED and INCORPORATED by reference. This February 19, 2008.
ICAO Initiative • The protection of safety information sources, which by definition includes the Air Accident Investigation reports, was discussed during the 38 th ICAO Session in Montreal in 2013. • During the 38 th session, it was decided to provide tangible guidance material for States to use when amending existing legislation and/or regulations to protect safety information and data. It is crucial that the sole objective of the accident investigation be strictly adhered too and that the investigation is used as a tool to further enhance aviation safety and not to apportion blameworthiness and liability. • ICAO letter was send to all 191 member states.
Conclusion • The decision by J Leggart in the case of Rogers & Rogers v Hoyle, may have set a judicial precedent which will be very difficult to rebut. • More and more jurisdictions world wide allow the accident investigation report in a court of law in criminal and civil cases following an aviation accident. • Aviation Accident Investigations will be treated more and more as legal investigation rather than Safety Investigation. • The author suggests that the Aviation Industry is moving towards a Legally defensive Safety Management System.
• Thank you
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