Personal Injury Brief: latest decisions October 2016

A round up of recent court decisions raising issues relating to bereavement damages for cohabitees, employers’ liability for accidents abroad, personal liability of directors for employers’ liability claims, fraudulent claimants and norovirus on cruise ships.

Bereavement damages: cohabitees

Smith v Lancashire Teaching Hospitals NHS Trust and others [08.09.16]

Under the Fatal Accidents Act 1976 (FAA), the claimant was entitled to dependency damages as she had been cohabiting with the deceased for over two years at the date of death as his wife. However, as they were not married, she was not entitled to bereavement damages. She sought declarations that:

  • The provisions of the FAA should be read as entitling ‘two year plus cohabitees’ to bereavement damages.
  • The FAA was incompatible with the European Convention on Human Rights (ECHR).

Following a careful analysis, including the legislative history, previous case law and the impact of the ECHR, Mr Justice Edis rejected her claim. In particular, he held that Articles 8 and 14 of the ECHR were not engaged in these circumstances. However, he commented that it was to be hoped that the outcome of the litigation might provoke discussion in parliament for further legislation.

Contact: Cariad Wells

Employers’ liability: accidents abroad

Dusek and others v Stormharbour Securities LLP [24.06.16]; Cassley and others v GMP Securities Europe Ltd [08.07.16]

The Court of Appeal has refused permission to appeal in these employers’ liability (EL) claims, both involving fatalities:

  • In Dusek, a helicopter crashed into a mountain in Peru. Mr Justice Hamblen held that this was a high risk flight and the employer was in breach of duty.
  • In Cassley, an aircraft crashed into a hillside in a remote area of the Congo, due to pilot errors. Mr Justice Coulson held that there was no breach of duty by the employer, as there were no particular risks associated with the proposed flight plan.

Giving judgment in the Court of Appeal, Mr Justice Baker held that, despite the similarities between the cases, a close analysis revealed very significant differences, most obviously the conclusions reached by the judges as to the risk inherent in the respective flights.

View our full case review of Dusek: Employers liability: helicopter accident abroad 

Contact: Rachel Moore

Employers’ liability insurance: director not personally liable

Campbell v Gordon [06.07.16]

In this Scottish case, Mr Campbell was employed as an apprentice joiner. Mr Gordon was the sole director of the company and responsible for its day-to-day operation. In June 2006 Mr Campbell suffered an injury whilst working with an electric saw. The claim was excluded from the company’s EL policy. The company’s failure to have in place appropriate insurance was in breach of its obligations under the Employers’ Liability (Compulsory Insurance) Act 1969. The Supreme Court held that the 1969 Act did not impose a duty to insure on a director or officer. Lord Carnwath stated:

“There is no basis in the case law for looking through the corporate veil to the directors or other individuals through whom the company acts. That can only be done if expressly or impliedly justified by the statute.”

View our full case review: Directors and officers: piercing the corporate veil

Contacts: Jennifer Boldon; Tilly Milnes, Lesley Johnston

Fraudulent claimants: no hiding place in a compromise

Hayward v Zurich Insurance Company Ltd [27.07.16]

The claimant brought a claim arising from an injury at work in 1998. Proceedings were commenced in 2001. In 2003, just before trial, the insurers settled the claim for £134,973.11. Two years later the claimant’s neighbours gave statements confirming their belief that he had recovered from his injuries a year before the settlement. The Supreme Court unanimously allowed the insurer to set aside the settlement, on the basis that the claimant’s fraudulent misrepresentations had induced the insurer to settle at a level far higher than it would have done, had it known that the misrepresentations were false.

View our full case review: Fraudulent claimants: no hiding place in a compromise

Contacts: Martin Stockdale, Katherine Totty

Travel: norovirus on cruise ships

Swift and others v Fred Olsen Cruise Lines [29.07.16]

At first instance, His Honour Judge Robert Owen held that 16 claimants succeeded in their claims against the defendant (FOCL) for damages in respect of norovirus on a number of cruises in 2011. He held that FOCL’s “Norovirus Outbreak and Control Plan” was an appropriate plan, but had not been adequately implemented. The Court of Appeal rejected FOCL’s appeal. The evidence demonstrated not isolated lapses in implementation, as suggested by FOCL, but breakdown of the system itself. This materially contributed to the spread of norovirus, irrespective of how it had been brought on board.

View our full case review: Travel: norovirus on cruise ships.

Contact: Claire Mulligan

Read other items in the Personal Injury Brief - October 2016