Upon reflection, it occurred to me that some more detail of the evidence given to the Court of Appeal by the Chief Inspector AAIB might be of interest to those concerned about the aviation safety implications:
The sole objective of an AAIB investigation is to determine the circumstances and causes of an accident (or incident) and make safety recommendations, if necessary with a view to the preservation of life and the avoidance of accidents and incidents in the future.
Anything that undermines the AAIB’s ability to obtain truthful information promptly would be detrimental to public safety and so contrary to the public interest.
If AAIB reports were frequently admitted into evidence in litigation there is the possibility that this would deter some people who were able to assist from doing so in the future. Witnesses may perceive a risk of their being called to give evidence or even made defendants to subsequent legal proceedings.
Witness cooperation may be less forthcoming. If witnesses have to be summoned to give evidence (only rarely necessary now) the quality of their evidence may be of less value.
Witnesses are likely to be more guarded in what they say. They may refer or be advised to refer to their employer organisation before dealing with the AAIB. Those organisations would likely refer the matter to their legal advisers to consider how evidence given might affect future litigation. This would slow down the progress of an investigation with a potential impact on the quality of any evidence, and could delay the development and formulation of any safety recommendation.
The regular admission of reports in evidence is likely to lead to requests for the underlying material since parties may argue that they need access to the underlying records to test the report’s findings and conclusions.
Organisations may not be prepared to provide information anonymously and in confidence if there is a risk it can be used against them or for commercial gain.
The volunteering of information may dry up. Whistleblowers may remain silent.
In addition, investigators may have to mention to those concerned that any report is admissible in civil proceedings, which would likely restrict the free flow of information; they may be driven to the use of compulsory powers; and they may write reports with a view to having to defend them in court rather than maximising safety benefits.
They may feel that any conclusions would have to be provable to the civil standard and that they would need to corroborate and track evidential chains to a much greater extent than is current practice. Reports may be drafted in such a way as to minimise the possibility of blame being inferred.
In addition appearances in court would increase the workload of inspectors and reduce time available for actual investigation.
There could, also, be an adverse effect on the public’s perception of the independence and remit of the AAIB since investigations would be perceived as prepared with a view to the possibility of future litigation and not therefore objective.
The AAIB is likely to be drawn into litigation and asked its opinion on liability.
International airline bodies, pilots’ unions and aviation manufacturers would advise their members to be cautious about what they say to the AAIB.