Swift & Ors v Fred Olsen Cruise Lines [2016] EWCA Civ 785 – Food Poisoning, Athens Convention, Causation

This case comment is by Alex Carington of 12 King’s Bench Walk.

The case is a rare example of the Court of Appeal considering proper approaches to assessment of evidence, breach of duty and causation in the context of an outbreak of illness on a cruise ship.

Facts

The Claimants were 16 passengers who brought claims against the Defendant, a well-known cruise operator, for norovirus acquired onboard during a number of cruises on “MS BOUDICCA” in March and April 2011.

At first instance, the Claimants successfully argued the Defendant was at fault, within the meaning of the Convention Relating to the Carriage of Passengers and Their Luggage by Sea, contained in Schedule 6 to the Merchant Shipping Act 1995 (the “Athens Convention”), for failing to take reasonable steps to manage the risk of norovirus on the vessel.

The Judge accepted that the Defendant had a norovirus outbreak and control plan (the “plan”) which was consistent with industry standards. He found no inherent defect in the plan nor did he find it so detailed as to be unwieldy. However, he went on to find that the plan had not been correctly implemented on the cruises in question, the Claimants had acquired their infections onboard and that this caused or materially contributed to the Claimants’ suffering norovirus.

The Defendant appealed on 4 legal grounds but did not seek to challenge any of the factual findings at first instance.

Issues

The issues to be decided on appeal were:

1) Was the Judge’s conclusion contrary to the weight of the evidence as a whole?

2) Did the Judge set the standard for breach of duty too high?

3) Did the Judge fail to give sufficient weight to the biological nature of norovirus?

4) Did the Judge err in finding that the failure to implement the Plan adequately had caused the Claimants to suffer illness?

Decision

The appeal was roundly dismissed on all four grounds.

Weight of the evidence as a whole

The Defendant argued the Judge at first instance ignored ‘vast tranches’ of evidence. In particular, the Defendant pointed to 25 files of checklist records which demonstrated that the cleaning regime had been implemented in accordance with the plan. Had the Judge considered this evidence, he would have concluded that failures to implement the plan were isolated incidents as opposed to being failures in all material aspects.

The Court of Appeal was critical of the way this evidence was adduced. Gross LJ observed that the notion these files ‘should simply be left available for the Judge to “dip into” (untutored) is fanciful’. If the Defendant wanted to rely records it should have prepared a summary schedule ‘focusing on the representative highlights of the checklists’. It any event, the evidence adduced went more to the plan than its implementation and no evidence had been called from those who carried out the cleaning. In the circumstances, the Judge was entitled to dismiss this argument and find that, on the totality of the evidence, there were multiple failures in implementing the plan and not merely isolated instances.

Breach of duty

The Court of Appeal echoed the judgment in Nolan v TUI UK Ltd [2016] 1 Lloyd’s Rep 211 that cruise operators cannot guarantee that no passenger(s) would contract norovirus on a cruise nor could cruise operators guarantee that every surface on the vessel would be clean at all times. However, it concluded that there was nothing in the judgment to suggest that the Judge set the standard above the standard set out in that case – specifically, taking reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel.

Biological nature of norovirus

The third ground rested on the argument that, although the Judge at first instance understood the prevalence of norovirus among the general population and how it spreads, he had failed to take into account that these cruises occurred at the time of a ‘spike’ in the prevalence of illness. The Court of Appeal found that there was evidence before the Judge to enable him to conclude that each Claimant had proved the norovirus was acquired onboard the ship.

Causation

Finally, the Defendant argued that the Judge at first instance should have applied the ‘but for’ test i.e. but for the breach of duty, would the claimants nonetheless have suffered illness? This would have prompted consideration of the possibility that the claimants might have caught it from other passengers. The Court of Appeal first considered that the Judge’s conclusion had to be seen against the background of his finding that there were multiple failures in the implementation of the plan. Had there only been isolated failures, the causation argument would have never arisen.

Secondly, ‘however the norovirus was brought on board the vessel, the judge was entitled to conclude that the breakdown of the plan caused or materially contributed to the spread of norovirus on board the vessel and to the claimants’ illnesses’.

Finally, the Court of Appeal rejected the suggestion that the Judge’s findings fell short of a proper finding on causation. The Judge’s comments on exposure, increased risk and development of the illness simply explained the mechanism by which the failure to implement the plan caused the Claimants to acquired their illnesses.

Comment

This decision revisits some of the ground covered in Nolan v TUI UK Ltd last year which acknowledged that cruise operators are not liable for norovirus outbreaks if they implement industry-standard plans and take the necessary measures to manage the illness and bring it under control. The Defendant had accepted that there was a duty to take reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel and so there was no attempt to challenge the decision in Nolan in this regard.

Whilst the Defendant had an adequate plan in place in this case, the judge at first instance found that it had not been adequately implemented. The Court of Appeal affirmed that there was sufficient evidence available to the judge to make that finding.

There are useful lessons to learn from this judgment.

The Court of Appeal was very critical about the way in which the Defendant’s evidence was presented in support of the contention that the plan had been implemented. It serves as a useful reminder that lengthy and unwieldy documentary evidence must be presented in a more easily digestible format to the Court. A summary schedule focusing on the representative highlights was recommended, as was the need to refer both lay witnesses and the experts to the material. The Judge could not be expected simply to have regard for it when it was not adequately presented. The Court of Appeal also underlined the need and importance of lay witness evidence to support that any plan in place was actually being implemented, as no witnesses who undertook the cleaning had been called.

The judgment also acts as a reminder that it is difficult to raise legal causation arguments when there is evidence available to the Judge to reach a factual conclusion as to what the direct cause of the illness was, as was the case here.

Interestingly, both the Judge at first instance and the Court of Appeal made reference to the breakdown of the plan causing or materially contributing to the spread of norovirus on board the vessel and to the Claimants’ illnesses. It is difficult to see what relevance the reference to material contribution has here as there do not appear to be different cumulative causes (particularly in light of the findings that the illnesses were acquired on board).

It would appear the Judge’s comments about the increased risk of exposure confused matters and led the Defendant to advance the argument that the Judge had only really found there to be an increased risk of acquiring norovirus such that the action had to fail on causation. However, looking at the totality of the judgment, the Judge did conclude that the illnesses were acquired by reason of a failure by the Defendant properly to implement its plan or procedures. As the Judge found that the failures to implement the plan did cause the Claimants to acquire norovirus, it would seem that the references to material contribution are likely to be throw away comments which add little to the judgment.

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