After an aircraft or helicopter accident, it is natural to expect the official investigation to supply the answer: what went wrong, who was responsible and what happens next. The ATSB may explain important safety factors, but its investigation does not do the same job as your injury claim.
The difference is more than terminology. A published report is not simply a document that can be tendered to prove a compensation case. Understanding that limit early helps you follow the safety investigation while building the evidence your own claim may require.
What does the ATSB decide?
Section 12AA of the Transport Safety Investigation Act 2003 sets out the ATSB’s safety functions. They include investigating transport safety matters, identifying contributing factors and communicating findings, recommendations and safety information.
The same section excludes apportioning blame, determining liability and generally assisting litigation between parties from those functions. The ATSB’s report guidance also explains that identifying an organisation does not imply an adverse conclusion about it.
A compensation claim asks different questions. The applicable law may require a particular kind of accident during carriage, or proof of negligence and causation, depending on the claimant and circumstances. A safety factor may point towards an issue worth investigating, but is not itself a legal finding that a particular person owes you damages.
Can an ATSB report prove your case in court?
Section 27 says a report under section 25 is not admissible in evidence in civil or criminal proceedings. It provides an exception for a coronial inquiry. It also separately excludes a draft report under section 26 from civil or criminal proceedings.
That is stronger than saying the report is “only one piece of evidence”. For an ordinary civil injury case, the statutory exclusion must be addressed. A public report cannot simply be attached to a statement of claim or expert report and treated as proof of the facts or opinions it contains.
A lawyer may use the public material to understand the investigation and identify matters requiring independent enquiry. But evidence intended to prove the civil claim needs its own lawful basis and must satisfy the applicable evidence rules. An expert’s involvement does not provide a shortcut for repackaging an excluded report as admissible proof.
Preliminary, interim and final reports answer different questions
The ATSB explains that preliminary reports contain facts established during the early evidence-collection phase and identify areas still being investigated. Interim reports provide more extensive factual information while the investigation continues. Final reports set out the analysis, findings and relevant safety issues and actions.
A preliminary account may be accurate about the known sequence without resolving why it occurred. An issue absent from that early account may still be under examination. Equally, later safety action should not be read as a confession that a business caused the injury.
| Material | What it can help a reader understand | What not to assume |
|---|---|---|
| Preliminary report or factual update | The known event sequence and current investigation scope | That every cause has been determined or every relevant fact is included |
| Final report | The ATSB’s safety analysis, contributing factors and findings | That its findings decide civil liability or are admissible proof in your case |
| Safety recommendation or action | A risk identified and a proposed or implemented safety response | That a recommendation establishes a compensation entitlement |
| Investigation records or recordings | Potential underlying material requiring separate legal assessment | That publication of a report makes the entire file available for a civil claim |
Check the document’s date, status and scope before drawing conclusions. Reading only a headline or investigation summary can miss both qualifications and the questions the investigators left open.
Does every investigation cover every possible claim issue?
No. The ATSB’s investigation-level guidance describes different scopes, from short investigations to broader systemic and major investigations. Their work is directed towards the safety questions selected for investigation.
Your claim may involve an issue beyond that scope: the identity of the contracting carrier, the legal nature of the flight, a passenger’s injury during boarding, or the longer-term effect of an injury on work. A report that does not discuss one of those matters is not necessarily a finding against it.
The converse also applies. A detailed investigation can identify important safety issues without determining all elements of your legal claim. The appropriate approach is to identify what the investigation actually addresses and then establish what additional, lawful evidence the civil process requires.
The investigation file is different from the published report
The Act gives special treatment to on-board recording information and to defined restricted information. The latter can include investigation statements, investigators’ records, operational information, medical or private information and analysis material. The precise statutory definition matters.
Do not assume that an interview transcript, cockpit recording or technical material can be obtained simply because you were injured, supplied information or read a reference to it in a report. Nor should you assume that every photograph, passenger recording or document relating to the aircraft falls into the same category.
A lawyer needs to identify the particular material, its source, the holder and the relevant statutory protection. Whether a copy exists elsewhere does not, by itself, answer whether it can lawfully be disclosed or used. Ordinary access requests and litigation procedures are not a way to disregard a specific statutory restriction.
Can a court allow access to protected material?
The answer depends on the category and the statutory route. Part 6 distinguishes disclosure from admissibility. They are separate questions: receiving material does not necessarily mean it can be used to prove a civil case.
For on-board recording information, sections 53 and 56 address particular disclosure and civil admissibility routes involving an ATSB certificate and court orders. Section 56 includes requirements concerning a material factual question, the other available evidence and the public-interest balance. It is not an automatic right to a recording.
Section 60 deals separately with restricted information and a certificate-and-court-order route for specified civil disclosure. These provisions contain important conditions and restrictions. Any application requires specialist advice about the actual information and proceedings. This guide does not predict that a certificate will be issued or an order made.
What can you do while the investigation continues?
Start with material you already lawfully hold: booking confirmations, correspondence, receipts, your own contemporaneous account and relevant original photographs or recordings. Record the flight details and any investigation or police reference supplied.
Keep facts separate from later explanations. “I felt a sudden movement before the landing” describes an observation. “The pilot mishandled the controls” is a technical conclusion that may not be supported by what you could see. Witnesses should preserve their own accounts, including uncertainty, rather than agree on a shared version.
Ask about preservation of relevant records through appropriate channels. A preservation request does not establish a right of access or guarantee that a record exists. Do not enter a restricted accident site, handle wreckage, retrieve equipment or conduct your own testing. Section 24 addresses interference with investigations, with specified exceptions; emergency and site-authority instructions should guide immediate safety decisions.
Independent evidence needs its own foundation
Where a technical issue matters to the civil claim, a suitably qualified expert may need to examine lawfully available material and form an independent opinion. The expert’s qualifications, source material, assumptions and reasoning all matter. The task is not to adopt an ATSB conclusion and present it under another name.
A lawyer should distinguish the source records from the investigation’s treatment of them, and establish what can lawfully be obtained and used. There may be limitations on both access and use, even where a record appears important.
Medical and financial evidence have their own role. The safety investigation does not assess every treatment need, loss of earning capacity or assistance requirement. Keep treatment and expense records, and give practitioners an accurate history of the event and symptoms. A technical finding cannot replace proof of the injury and legally recoverable loss.
A helicopter landing injury: a hypothetical example
Illustration only: A helicopter passenger is injured during a landing. A preliminary report describes the approach and notes that a technical matter remains under investigation. The operator is named, but the passenger’s later diagnosis is not discussed.
The name does not establish the operator’s legal responsibility. The preliminary report does not resolve the technical cause, and its silence about a later diagnosis is not a medical finding against the passenger. The civil claim needs the correct carriage or other legal framework, admissible evidence and proof of injury.
The passenger can retain booking records, give an accurate personal account and seek advice about claim dates while the investigation continues. If a later final report identifies a safety factor, that does not remove section 27 or make protected investigation material automatically available. The example does not predict a finding or claim outcome.
Keep the claim clock separate from the investigation timetable
Do not assume that an unfinished ATSB investigation pauses an injury claim. A passenger, crew member and person injured on the ground may have different legal routes. Domestic or international carriage, private flying and other circumstances can change the analysis.
Our scenic and charter passenger guide and aircraft ground-injury guide explain distinct starting points. Neither supplies one deadline for every aviation injury.
A lawyer should identify the applicable law, responsible legal entities, notice requirements and action needed to protect the particular claim. Waiting for technical certainty, receiving an insurer’s acknowledgment or reporting the event to an agency is not the same as taking the required claim step.
Six steps while an aviation injury is investigated
- Step 1 Obtain medical assistance and follow emergency and site-authority instructions. Do not approach wreckage or restricted areas to collect evidence.
- Step 2 Keep flight, booking and operator details, your original correspondence and any official reference numbers supplied.
- Step 3 Preserve your own original records and write an accurate account. Distinguish what you observed from what others later told you.
- Step 4 Identify the status and scope of any public report. Keep its source and date without treating it as a civil liability decision.
- Step 5 Obtain advice about lawful preservation, access, disclosure and use of relevant evidence. Do not circulate material whose protected status is uncertain.
- Step 6 Have the claim route, parties and dates checked now, alongside ongoing medical and loss documentation.
Frequently Asked Questions
Does the ATSB decide whether I receive compensation?
No. Its statutory function is transport safety, rather than deciding liability or awarding damages. Your legal route may involve requirements that differ from the safety investigation’s questions. An important safety finding can identify an issue for legal enquiry, but the applicable claim elements and evidence still need to be established separately.
Can my lawyer tender the final ATSB report at trial?
Section 27 excludes a report under section 25 from civil or criminal evidence, with an exception for a coronial inquiry. It also addresses draft reports separately. For an ordinary civil compensation case, the report should not be treated as admissible proof. Your lawyer must consider the statutory exclusion and the independent evidence available for the claim.
If the report names the operator, does that establish fault?
No. The ATSB explains that naming an organisation does not imply an adverse inference. An operator can be identified because of its involvement in the occurrence. Civil responsibility depends on the applicable legal framework and facts, rather than whether a business appears in the report or its title.
Can I obtain the cockpit recording or investigator’s interview notes?
Do not assume so. The Act distinguishes on-board recording information from restricted information and imposes controls on disclosure and use. Particular statutory routes may involve an ATSB certificate and a court order, with additional conditions. Being an injured passenger or a party to proceedings does not automatically entitle you to the investigation file.
Does a preliminary report rule out matters it does not mention?
Not necessarily. Preliminary reports describe early established facts and areas of continuing investigation; their scope is limited. An omitted issue may not yet have been examined or may fall outside the investigation’s purpose. That does not prove the omitted allegation either. Compare the actual scope and status with the evidence your civil claim requires.
Should I wait for the final report before seeking advice?
No. Claim dates, preservation and medical evidence require attention while the safety investigation proceeds. The relevant law depends on the claimant, flight and incident, and may require action before a final report is available. Advice can begin with the facts and records you have, while technical questions remain unresolved.
Sources and further reading
- Transport Safety Investigation Act 2003 — sections 3, 12AA, 24–27, 53, 56, 60 and 62.
- ATSB: About investigation reports — report stages, structure and naming organisations.
- ATSB: Occurrence investigation levels — the different scopes of safety investigations.
Help with an aircraft or helicopter injury claim
You can follow the safety investigation without waiting for it to resolve every issue in your own claim. The useful starting point is the nature of the flight, your role in the event, the injury and the records already available to you.
Contact Carter Capner Law to discuss your circumstances. Our aviation injury page provides broader information about the possible claim pathways.