Travel: norovirus on cruise ships
Swift and others v Fred Olsen Cruise Lines [29.07.16]
This case provides a helpful reminder that to prove good systems are in place, it is necessary not only to present documentary evidence but also to call evidence from those who implemented the systems.
On appeal, the defendant (FOCL) argued that His Honour Judge Owen’s conclusion was contrary to the weight of its evidence as a whole, which included 25 lever arch files of checklist records. However, it is important to note that:
- The lever arch files were simply left for the judge to ‘dip into’ and were not presented.
- None of the employees who implemented the cleaning were called to give evidence to back up the defence of a good system being in place.
Lord Justice Gross suggested an alternative approach should have been adopted by FOCL when submitting the evidence, namely to have provided a summary schedule, focusing on representative highlights of the checklists. Admissions could have been sought, submissions advanced, or questions put on the basis of the schedule. However, in reality, the existence of the files did not demonstrate compliance with a system.
At first instance, HHJ Robert Owen held that 16 claimants succeeded in their claims against 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, and complied with industry standards. However, FOCL had not demonstrated to the court that it had been adequately implemented.
The Court of Appeal rejected FOCL’s appeal, stating that it would not intervene in a fact sensitive case such as this.
Gross LJ commented:
“unrealistically or unreasonably high standards cannot and should not be set… 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.”
However, 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.