England and Wales High Court (Queen's Bench Division) Decisions

"...and in Mr Hewison’s case, the prospective employee completes an application form for employment on one of the vessels. The application form requires the applicant to provide copies of all his relevant certificates and has questions regarding his medical record, his criminal record and his agreement to undergo a drugs test. Once the application form has been processed and the applicant passes the first stage he will be called for a structured interview with both personnel and the operations department; the interview to be held either at the Clyde Bank offices of Northern Marine or by the Northern Marine Superintendent in Aberdeen. At this interview the nature of the applicant’s employment would be explained to him together with information as to the client’s vessels, the requisite training, medical and health and safety requirements. Should the applicant be successful at interview, he is sent a letter offering him the position conditional on a full medical which is conducted by the company appointed doctors and includes a full drug and alcohol screening. He is also required to undergo a new ENG1 and UKOOA Certificate medical.

The above is a description of the employment process for the present day. Thus I am not sure what the exact employment process was which Mr Hewison underwent. On looking at his appointment letter it states that “...the examination fee to be paid by the company” which suggests that Mr Hewison did have a medical as part of the interview process. However, it may well have been the case that the company accepted a potential applicant’s medical certificates, the ENG1 and the UKOOA, as sufficient and relied upon them to guarantee that the applicant was fit for seafaring duties. I have in my files a copy of Mr Hewison’s medical certificate of 5th March 1993 and as he was employed in 1994 they may have considered that his medical requirements were up to date.

During Mr Hewison’s entire seagoing career and of course when employed with Northern Marine he was required to undergo a medical every two years by virtue of either renewing the ENG1 or the UKOOA medical certificate. Each time that he had a medical, he would have been asked the direct question as to whether he suffered from fits, seizures or epilepsy. This means that he must have concealed his condition on a regular basis, not just passive concealment but actually denying his condition.....whenever a seafarer goes on ship he is asked to declare all medication to declare all medication to the Master.

Each time Mr Hewison went on board the helicopter to travel to a vessel he never once declared his medication to the Master. As far as we are concerned at Northern Marine there are no grey areas with regards to medical fitness and drug use on board ship. All employees are well aware of all the rules and Mr Hewison knew he was breaching them each time he stepped on board a vessel. Seafaring is a very hazardous occupation. To conceal both his condition and his use of medication is a very serious and dangerous both to himself and his colleagues. For example, if he had suffered a seizure whilst operating the crane during a sea-bed walk there could have been dreadful consequences, even loss of life.

Hewison had had a seizure in a helicopter in June 1997.

Mr Hewison has admitted that he had suffered epilepsy since 1978

When I asked Mr Hewison he freely admitted that he had concealed his epilepsy since 1978 to keep his job in the offshore industry. He was asked if he was aware that epilepsy was an illness that prohibited him from seafaring and he said yes. he was well aware.”

"I declare that all the answers given above were written by me or on my behalf and to the best of my knowledge and belief, having checked them, they are true and complete in every respect"

"I continue to be of the opinion that Mr Hewison had to discontinue his occupation as a merchant seaman as a result of his epilepsy rather than the problems with his neck or left arm. As far as those injuries were concerned, I do not think that they would, in their own right, prevent him having continued his vocation as a merchant seaman"

"16.-(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a term not exceeding five years

The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where-

He is given the opportunity to earn remuneration or greater remuneration in an office or employment or to win money by betting."

"Issue 3. Can loss of eligibility for supplementary benefit and/or the proceeds of ‘moonlighting’ be included as a further head of damage for loss of dependency?”

and page 403E

“First it assumes that someone who had committed fraud in the past would continue to do so in future; ignoring the possibilities of repentance of detection. Secondly it treats the proceeds of illegally concealed earnings as providing a valid head of recovery by way of damages for loss of injury. When due account is taken of the need for judges to avoid subjective moral judgments and to accept the realities of life in the modern welfare state, there remain certain fundamental principles essential to any just and civilised society which provide the rails within which the unruliest horse may safely run”.

Hobhouse L.J. said at page 405B

“If a plaintiff comes to court and asserts as part of her case that she would have committed criminal acts and bases her claim upon such an assertion, she cannot recover in a court of law on that basis. Here she has claimed a loss of dependency on the basis that the deceased would have paid sums to her which he had to her knowledge obtained fraudulently from the benefits office. This is a stronger case than Burns v. Edman [1970] 2 QB 541 where Crichton J. held that the innocent wife of a robber could not claim by reference to the loss of his ‘earnings’. Nor does it raise any of the points discussed in Kemp & Kemp pp 25006-7 when either no criminal act has been involved or the plaintiff has not been concerned in any way with the illegality: see Le Bagge v. Buses [1958] NZLR 630, 647. Whether and, if at all, to what extent the opinions expressed in Kemp & Kemp can be supported will have to be considered in a case which raises such points "

"1. That the Transport Licensing Regulations 1950 could not be construed as impliedly prohibiting contracts of cartage which were valid in their formation but were so performed as to contravene some provision of the Regulations.

St. John Shipping Corporation v. Joseph Rank Ltd. [1957] 1 Q.B. 267; [1956] 3 All E.R. 683, applied.

2. That the deceased could have recovered the cartage charges under the contract with the dairy company, notwithstanding his breach of Reg.30(1) of the Regulations.

3. That, as the plaintiff did not in any way seek to enforce the contract in her action under the Deaths by Accidents Compensation Act 1952 and she did not have to make the illegal earnings part of the cause of action therein, but as she merely referred to such earnings in aid for their evidentiary value as to the earnings of the deceased, her cause of action, being distinct from any right possessed by the deceased, was free and unaffected by any illegality arising from the fact that the deceased in the performance of the contract infringed the Regulation."

"The appellant did not in any way seek to enforce the contract in her action, but merely called it in aid for its evidentiary value as to the earnings of the deceased. Moreover, the action being for the benefit of the dependants, there is not the same justification for invoking the principle of public policy referred to in Beresford v. Royal Insurance Company Ltd [1938] A.C.586; [1938] 2 All E.R. 602 as if the action had been for the benefit of the deceased’s estate, even if that principle were otherwise applicable; Pigney v. Pointer’s Transport Services Ltd [1957] 1 W.L.R. 1121; [1957] 2 All E.R. 807.

We, therefore think that the appellant’s cause of action was free from, and unaffected by, any illegality arising from the fact that the deceased in the performance of the contract infringed the Regulation. But it was argued for the respondent that the ruling of the trial Judge left it open to the jury to assess damages on the basis that the deceased, if he had lived, might have continued to perform the contract in breach of the Regulation and to derive income accordingly, and that on the grounds of public policy a Court should not give any sanction to the hypothesis that a contract might be performed in any unlawful way. We bear in mind that, in Fender v. St. John-Mildmay [1938] A.C. 1; [1937] 3 All E.R. 402 Lord Thankerton said: “In the first place, there can be little question as to the proper function of the Courts in questions of public policy. Their duty is to expound and not to expand, such policy. That does not mean that they are precluded from applying an existing principle of public policy to a new set of circumstances, where such circumstances are clearly within the scope of the policy”

The argument for the respondent is that the jury should have been directed to deduct from the earnings of the deceased £1. 10s. per week to allow for the employment of labour on the seventh day, and to make a corresponding deduction in assessing the pecuniary loss of the dependants. The fact, however, was that up to the time of the death of the deceased his contribution to the maintenance of his family had not been diminished in this way. Moreover, the evidence was that in the twelve months between the date of death and the trial of the action all other owner-drivers had continued to perform their contracts in the same manner as the deceased had during his lifetime, so that the probability was that had the deceased lived his contribution for the support of his family would not have been diminished by the £1. 10s. per week. The sole function of the jury was to assess the damages at an amount commensurate with the pecuniary benefit the dependants of the deceased might reasonably have expected to derive from him had he lived. In these circumstances, we do not think that any ground of public policy called for a positive direction to the jury that as a matter of law they must deduct an amount which the family, in point of fact, had received during the deceased’s lifetime and would probably have continued to receive had he lived. We think that such infirmity as existed in the appellant’s case on this point was sufficiently dealt with by the learned Judge when he told the jury that it was proper for them to take into consideration, in the assessment of damages, the possibility that the Regulation would be enforced and the deceased’s income thereby diminished”

"in a case like the present where the respondent has suffered a proved loss in connexion with an occupation which, although followed in a place forbidden by law, is in itself quite lawful, it would be artificial in the extreme and reminiscent of mid-Victorian hypocrisy to deny him the aid of the law to recover such loss from the apparently wrongdoer on the hypothesis that the general welfare of the State would be thereby advanced."

"The public interest is not concerned to relieve the defendant wrongdoer. It directs its concern to the question of the deprivation of the plaintiff wrongdoer. Where the plaintiff’s wrong-doing has had no causal connexion with the defendant’s wrong-doing which has caused the damage, it is less probable that the purpose of the law will be to treat the plaintiff’s wrong-doing as affecting he plaintiff’s relief, than where there has been a causal connexion. Whatever may be the implications where the background wrong-doing on the part of the plaintiff is an offence at common law, where it is a statute which creates the offence, the statute should be regarded as providing an exhaustive statement of the purpose the law. If all that the statute does is to take an activity which is ordinarily permitted and to prohibit it only in respect of a particular time or a particular place and to prescribe a penalty for a contravention, it should not be inferred, in the absence of any other expression of intention, that it was the purpose of the law that it should carry any other privative consequences.

There was in this case nothing but unlawful acts on the part of the respondent producing a prior state of affairs upon which the appellant’s negligence operated, with no causal connexion between those unlawful acts and the negligence, and the provision in the Town and Country Planning Act 1961 is directed only at the place where the work was carried out, and gives no indication of an intention to disentitle an offender against the provisions of the Act from recovering compensation in full for personal injuries caused by that negligence. In these circumstances, it should not be accepted that it is part of he law that public policy requires that the respondent be denied the aid of the law to recover for loss of earning capacity which is otherwise established"