England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM COUNTY COURT
His Honour Judge Robert Owen QC
2BM04292

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/07/2016

Lord Justice Gross :

INTRODUCTION

1. The Defendant, now Appellant, the well-known cruise operator ("FOCL") appeals from the judgment of HHJ Robert Owen QC, dated 22^nd January, 2015 ("the judgment"). The Judge held that 16 Respondents ("the Claimants"), succeeded in their claims for damages against FOCL, in respect of norovirus on a number of cruises in 2011.
2. The cruises in question were these:

i) Cruise BD 1103: 06.03 – 20.03; return trip, Southampton to the Canary Islands;

ii) Cruise BD 1104: 20.03 - 07.04; return trip, Southampton to Cape Verde;

iii) Cruise BD 1106: 10.04 – 23.04; return trip, Liverpool to the Canary Islands;

iv) Cruise BD 1107: 23.04 – 01.05; return trip, Liverpool to Iberia.

3. The Claimants' case was that FOCL 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"), in failing to take reasonable steps to manage the risk of norovirus on the vessel and that this failure caused or materially contributed to their illnesses.
4. The relevant provision is Art. 3.1 of the Athens Convention, which provides as follows:

" The carrier shall be liable for the damage suffered as a result of the…..personal injury to a passenger….if the incident which caused the damage so suffered occurred in the course of the carriage and was due to the fault or neglect of the carrier or of his servants or agents acting within the scope of their employment. "

No argument was developed that the complaint involved a "defect in the ship", within the terms of Art. 3.3, which would have resulted in a rebuttable presumption, in the Claimants' favour, as to fault or neglect. The upshot is that the burden of proving fault or neglect rested with the Claimants, as the Judge held (at [151] and elsewhere in the judgment).

5. It is common ground that the Judge correctly identified the issues in the action, in particular, as he put it (at [26] of the judgment), "…the real question is whether or not steps had been taken so as to ensure that the plan was correctly and effectively implemented." The plan in question was the FOCL "Norovirus Outbreak and Control Plan" ("the Plan"). The Judge accepted that the Plan was an appropriate plan, consistent with industry standards. He concluded, however, that the plan had not been adequately implemented.
6. The Judge's key conclusions appear from [152] – [155] of the judgment:

" 152. ….for the reasons I have given I am satisfied that each claimant has discharged that burden. The claimants have established the fact that illness from Norovirus was acquired on board ship and not otherwise. It was acquired by reason of a failure by the defendants properly to implement their plan or procedures which I have summarised. I reiterate whereas the defendants are required to ensure that all reasonable steps are taken to secure that outcome, in this context the defendants themselves set, as a reasonable step, the scrupulous implementation of the defined procedures. It is not unreasonable in the circumstances in the exercise of reasonable care to require the defendants to maintain the high standard of hygiene as defined within their plan. The procedures themselves are not complex. They are set out, step by step and follow commonly accepted practices.

153. So far as the deficiencies complained of are concerned, I am not satisfied that there is a generic defect in the plan ….… in the sense that it is so detailed as to be unwieldy and incapable of proper use in practice. No doubt, if the plan had not been so detailed, the claimants would be criticising, as a general criticism, the absence of detail…..

154. Similarly, I am not satisfied ….that there is an inherent defect in the plan in that it does not require the defendants to quarantine the ship following a cruise in which there had been an outbreak. The realistic and reasonable position is as I have already summarised. What is required is the setting aside of sufficient time to allow a full programme of cleaning and sanitisation or decontamination using specialist contractors and equipment if necessary.

155. The real issue in the case ….is whether there is evidence of inadequate implementation of the plan due to inadequate training, execution of procedure or supervision or a combination or contribution from one or more of those factors. For the reasons I have given, I am satisfied that there was a failure in implementation which was not immaterial or isolated and which caused or materially contributed to the exposure ..[of]..the claimants and passengers, and thus increased the risk of contagion, to the virus and the development of the illnesses complained of……I am satisfied that …..each claimant has discharged the burden of proof in relation to each necessary ingredient. "

7. FOCL does not seek to appeal any findings of fact made by the Judge. The appeal is based on the FOCL contentions that the Judge was wrong to find in favour of the Claimants as a matter of law and on a proper interpretation of the facts.
8. The Judge dealt at length with the facts. Given that his findings of fact are not in dispute, I adopt them and it is unnecessary to repeat them here. Certainly, the parties to this litigation are more than familiar with them. Instead, I turn directly to the Grounds of Appeal and will make reference to such passages of the judgment as are necessary to deal with each of the Grounds.
9. The Grounds of Appeal are these:

i) The Judge's conclusion was contrary to the weight of the evidence as a whole. ("Ground I")

ii) The Judge set the standard for breach of duty too high. ("Ground II")

iii) The Judge failed to give sufficient weight to the biological nature of norovirus. ("Ground III")

iv) The Judge erred in finding that the failure to implement the Plan adequately had caused the Claimants to suffer illness. ("Ground IV")

GROUND I: THE JUDGE'S CONCLUSION WAS CONTRARY TO THE WEIGHT OF THE EVIDENCE AS A WHOLE

10. (1) The rival cases: For FOCL, Ms Foster's submissions proceeded as follows. The Judge's conclusion that FOCL was at fault in failing properly to implement the Plan was contrary to the weight of the evidence. The Judge had ignored "vast tranches" of FOCL evidence, in particular 25 lever arch files of checklist records ("the 25 files") which demonstrated that the cleaning regime had been implemented in accordance with the Plan. Ms Foster, who appeared below, told us that these had been available to the Judge. However, the witness statements of the FOCL witnesses had stood as their evidence in chief and the Claimants had not cross-examined those witnesses on the 25 files. Even the Claimants' Environmental Health and Hygiene Expert, Dr Stuart-Moonlight had at no stage read the 25 files. The upshot was that the Judge based his decision on the limited evidence of complaints from the individual Claimants who gave evidence, together with references in the minutes of the various "outbreak meetings" ("the minutes") to crew members failing to comply with cleaning or sanitising measures. The individual complaints and the references in the minutes reflected, however, isolated instances rather than a substantial failure to implement the Plan. The Judge had needed to face up to the records contained in the 25 files; had he done so, it would have cast the FOCL evidence in a different (and properly balanced) light and his conclusion would or should have been different. Moreover, the Judge had ignored the fact that the vessel had satisfied two Port Health Authority inspections over the relevant period, as commented upon by Dr Curnow, the FOCL Environmental Health and Hygiene Expert.
11. For the Claimants, Mr Stevens QC (who did not appear below) submitted that the Judge had assessed the evidence with conspicuous care. The submission that his decision was against the weight of the evidence was simply not borne out and this Court should not readily intervene. So far as concerns the 25 files, these had not been put to the witnesses; nor were they referred to in closing submissions. In any event, they would not have advanced the FOCL case. Whatever those records showed on their face, the Judge was concerned with the reality – and FOCL's failure to implement the Plan properly went well beyond mere isolated instances. It was noteworthy that the evidence called by FOCL went more to the Plan than to its implementation; no evidence was called from those who in fact carried out the cleaning.
12. The Judge had dealt in a thorough and careful fashion with the FOCL case that the failures to implement the Plan were isolated instances; thus he had cautioned against jumping to conclusions from the mere fact of the outbreak of norovirus and he had emphasised the care needed in considering the matters recorded in the minutes – so as to determine whether the incidents recorded constituted evidence of the Plan working (hence the detection of the incidents) or were evidence of a breakdown in the system. It was important to keep in mind that the Claimants' case was not that there was no compliance with the Plan but rather that such compliance as there was showed that implementation of the Plan had failed in material respects.
13. At the end of this careful and extended study of the facts, the Judge had accepted the Claimants' evidence and case in its key aspects and had rejected the central elements of the FOCL evidence and case. Although the Judge had dealt specifically with the FOCL witnesses of fact in a relatively short passage in the judgment, it was clear from the judgment as a whole that he had had regard to their evidence, in particular that of Mr Penny, throughout; he had, however, formed the view that the reality revealed serious shortcomings in the implementation of the Plan and that Mr Penny had looked at the "…examples of clear breaches…through rose-tinted glasses" (judgment, at [114]). Contrary to Ms Foster's submission, the Judge had not simply focused on cleaning failures; the judgment revealed a proper understanding of the Plan and the system FOCL had put in place; nonetheless, the Judge had reached the conclusions expressed in the judgment.
14. (2) Discussion: For my part, I would dismiss Ground I of the appeal. My reasons follow.
15. First, as to the 25 files, it was for FOCL to decide how best to adduce those materials in evidence. The notion that the 25 files should simply be left available for the Judge to "dip into" (untutored) is fanciful. An obvious approach would have been to prepare a summary schedule, even of some length, focusing on representative highlights of the checklists. Admissions could then have been sought, submissions advanced, or questions put, on the basis of the schedule. Nothing like that appears to have been done. If it was to be done, it was for FOCL to do it. I would not, however, leave matters there. In my judgment, even had copious reference been made to the 25 files, I am wholly unpersuaded it would have made a difference. The 25 files may well have revealed meticulous paperwork – but the issue went not to paperwork but the practical reality. On the totality of the evidence, that reality revealed multiple failures in implementing the Plan – not isolated instances.
16. Secondly, as to the evidence and materials overall, the Judge was entitled to reason from the complaints of the individual Claimants and the matters recorded in the Minutes to the conclusion that these were indicative or representative of material failures in implementation. The Judge's process of reasoning was legitimate and was carefully recorded as he proceeded through the judgment.
17. Thirdly, the Judge dealt with the FOCL case and its witnesses in a balanced fashion. He rejected the more extravagant claims advanced by the Claimants – by way of examples, those recorded at [153] and [154] of the judgment (set out above) – and kept well in mind that the burden of proof resting on the Claimants (see [28] of the judgment) meant that "…something more than the mere fact (or extent) of an outbreak would be required to raise an inference of fault or neglect, or breach of contract". As to the FOCL witnesses of fact, the Judge was entitled to conclude (at [112] – [121]):

i) that Mr Penny, notwithstanding his competence and commitment, had dismissed the serious shortcomings in the implementation of the Plan without proper consideration;

ii) that Dr Berry took the matter no further;

iii) that Mr Kvamme, despite being an impressive witness as to the Plan, was unable to assist the Court on the question of implementation;

iv) finally, that Mr Padilla was unable to explain the instances which the Judge found to be representative of wider failings in the implementation of the Plan.

18. Fourthly, it follows that the conclusion to which the Judge came was one he was entitled to reach. There was, as is to be expected, evidence favourable to FOCL, one example being the Port Inspections. Even so, I am not at all persuaded that the Judge's decision was against the weight of the evidence. He saw and heard the witnesses. Ultimately, the Judge was best-placed to choose between the rival cases; in the event, his decision was adverse to FOCL. Dissatisfaction with the result, however, does not begin to make good Ground I of the appeal. No proper basis has been shown for this Court to intervene.

GROUND II: THE JUDGE SET THE STANDARD FOR BREACH OF DUTY TOO HIGH

19. This Ground can be taken shortly. Ms Foster accepted, rightly in my view, that Grounds I and II are inter-related. Under Ground I, FOCL contended that the Judge's conclusion was against the weight of the evidence; under Ground II, FOCL contended that the Judge could only have reached the conclusion he did if he set the standard for breach of duty too high.
20. On the facts of the present case, I would reject Ground II. It is common ground (as already recorded) that the Judge correctly identified the issues in the action. As is apparent from considering the judgment under Ground I (above), the Judge approached the matter with care and caution, well cognisant of what did and what did not evidence breaches of duty. There is nothing in the judgment to suggest that the Judge set the standard above the duty accepted by FOCL, namely to take reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel. The single reference in Ms Foster's skeleton argument to a paragraph in the judgment said to go beyond that standard ([138]) turns out, on a proper reading, to do nothing of the sort; it was merely summarising a part of the expert evidence on an issue upon which the Judge ultimately found in FOCL's favour – namely, that there was no requirement to quarantine the vessel (at [154]). As to the authorities to which Ms Foster drew the Court's attention and which are unnecessary to cite here, the Judge did not fall into the trap of advocating a counsel of perfection. Ms Foster accepted that this Ground could only succeed if the Judge's conclusion was clearly wrong; for the reasons already given, that is not this case.
21. I add only this with regard to Grounds I and II. Self-evidently, the taking of reasonable precautions to safeguard the health of passengers is a matter of the first importance for cruise operators. To my mind, it is equally plain that unrealistically or unreasonably high standards cannot and should not be set. That is well understood and nothing in this judgment suggests otherwise. FOCL could not have guaranteed that no passenger/s would contract norovirus; nor could it guarantee that every surface on the vessel would be clean at all times. That is not, however, what this case is about. On the facts, the Judge held that FOCL was at fault because of material – not isolated - failures to implement its own Plan. That was a conclusion to which the Judge was entitled to come and, in a fact sensitive case such as this, it is not one where, in my judgment, this Court can or should intervene.

GROUND III: THE JUDGE FAILED TO GIVE SUFFICIENT WEIGHT TO THE BIOLOGICAL NATURE OF NOROVIRUS

22. Ground III can be taken even more shortly. This Ground focused on the nature of norovirus, the manner in which it spreads and on the management of an outbreak depending on a number of factors, not simply keeping contact surfaces clean. Ms Foster accepted that the appeal could not succeed on the basis of Ground III alone; nonetheless, she relied on Ground III as part of the overall picture. As will be apparent, some of these matters have already been dealt with under Grounds I and II above.
23. Mr Stevens did not rest content with Ms Foster's acceptance that this Ground could not stand alone; he went further. He underlined a number of passages in the judgment, showing clearly that the Judge understood the prevalence of norovirus among the general population, the nature of the illness and the manner in which it spreads: see, for example, the judgment at [5], [27] and [137]. Further and contrary to the FOCL submissions, it was not correct to say that these cruises occurred at the time of a "spike" in the illness; the Claimants' microbiology expert (Prof. Pennington, whose evidence the Judge preferred) had produced figures showing that the "spike" took place in the previous year.
24. It suffices to say that I accept Mr Stevens' submissions. No proper criticism can be made of the Judge's findings under Ground III. On the evidence before him, he was entitled to conclude as he did and, not least, to conclude (at [152]) that each Claimant had proved that he/she contracted norovirus on board the vessel and not otherwise.

GROUND IV: THE JUDGE ERRED IN FINDING THAT THE FAILURE TO IMPLEMENT THE PLAN ADEQUATELY HAD CAUSED THE CLAIMANTS TO SUFFER ILLNESS

25. (1) The rival cases: Ms Foster advanced a causation argument in these terms: it did not follow from the Judge's conclusions (1) that FOCL had been at fault in the implementation of the Plan; and (2) that the Claimants had contracted the norovirus illness on board the vessel, that the FOCL fault had caused the Claimants' illness. The Judge should have applied the "but for" test; he should have asked and answered the question: but for the FOCL breach of duty would the Claimants nonetheless have suffered illness? That inquiry would itself have prompted consideration of the spread of norovirus and the possibility that the Claimants might have caught it from other passengers. Moreover, the Judge's conclusion (at [155] of the judgment, set out above) was expressed in terms of exposure and an increased risk of contagion; of itself, that did not suffice to establish that the FOCL fault had caused the individual Claimants' illnesses.
26. Mr Stevens' response was to this effect. Let it be accepted that the illness was brought on board by someone; the question then became whether the FOCL fault resulted in inadequate controls; if that was right, then the breakdown of the FOCL Plan (or system) was itself the direct cause of the Claimants' illnesses. Although the Judge had not, in terms, discounted the spread of norovirus through some cause other than the breakdown of the FOCL system, it was implicit in his rejection of the FOCL case that he had done so. Further, the FOCL skeleton argument revealed a false premise, namely, that there were "isolated lapses" in an otherwise "reasonable and substantially effective system". The difficulty for FOCL was that for this stage of the argument to be reached, the Judge must already have concluded that there was a system breakdown, not isolated lapses – the Judge's conclusions as to causation had to be seen in that light. The Judge's conclusions at [152] and [155] of the judgment were conclusions he was entitled to reach and, properly considered, they were not confined to an increase of risk.
27. (2) Discussion: As it seems to me, the Judge was amply entitled to conclude – and did conclude – that the Claimants' illnesses were caused by the fault of FOCL.
28. First, the starting point is the Judge's prior finding that FOCL was at fault on account of multiple failures in the implementation of the Plan; the Judge rejected the FOCL case on there being only "isolated instances" of non-compliance with the Plan. Thus the FOCL premise for the causation argument is flawed. Had there been only isolated instances of failure, the causation stage of the argument would never have been reached. It is against the background of multiple failures in the implementation of the Plan that the causation argument needs to be considered.
29. Secondly and viewed in the light of the correct starting point, 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. The Plan was designed to provide reasonable measures to manage the risk of norovirus on board the vessel. The breakdown in the implementation of the Plan effectively removed the safeguards it was intended to furnish. The Judge found that each of the Claimants had contracted norovirus on board the vessel – a finding from which there is no appeal. The Judge's line of reasoning was legitimate and entitled him to reach his conclusion.
30. Thirdly, it remains to deal with Ms Foster's submission that the Judge's finding went only to risk of exposure to norovirus and fell short of a proper finding of causation. With respect, I do not agree. As already observed, the Judge had the burden of proof well in mind. At [152] of the judgment, he expressed himself satisfied that each of the Claimants had discharged that burden. The sentences which follow comprise a complete finding of causation:

" The claimants have established the fact that illness from Norovirus was acquired on board ship and not otherwise. It was acquired by reason of a failure by the defendants properly to implement their plan or procedures…."

Nothing said by the Judge as to exposure or risk at [155] detracts from that finding. To the contrary, the Judge's observations at [155], as to exposure, increased risk and development of the illnesses, serve to explain the mechanism by which failure of the Plan led to the Claimants contracting their illnesses. Even if it could be said that it might have been preferable for the passage at [155] to precede the passage at [152], that is of course neither here nor there.

31. It follows that I would dismiss Ground IV and, all the Grounds of Appeal having failed, that I would dismiss the appeal.

Lord Justice Christopher Clarke :

32. I agree.

Master of the Rolls :

33. I also agree.