In the recent case of Swift & others v Fred Olsen Cruise Lines the cruise ship operator appealed the court’s decision which had found in favour of 16 claimants.

The claimants had contracted norovirus while on board four cruises from between March and May 2011 and brought claims for damages as a result.  They claimed that the cruise operator had failed to take reasonable steps to manage the risk of norovirus and that this failure caused or materially contributed to their illnesses. They relied on the allegation that the cruise operator had breached their duty of care to their passengers under the Athens Convention 1974.  The judge had found that the cruise operator was at fault because of material failures to implement its own norovirus outbreak and control plan.

The cruise operator appealed on grounds that: 1) the judge’s conclusion went against the weight of the evidence as a whole; 2) the judge had set the required standard of care too high; 3) the judge had failed to fully consider the biological nature and effects of norovirus; and 4) the judge had made a mistake when applying the “but for test” to establish that the negligence caused the illness. They argued that the judge had paid a disproportionate amount of attention to the claimants’ complaints as well as to meeting minutes which detailed crew members’ failures to comply with cleaning and sanitising measures.  It was argued that this focus meant that he had, in effect, ignored evidence relating to the 25 files of checklist records which the cruise operators had created. They argued that the checklist records demonstrated that a cleaning regime had been put in place, implementing the norovirus outbreak and control plan.

The cruise operator also argued that the judge should have applied the “but for test” by asking whether, but for the cruise operator’s negligence, the claimants have still suffered from norovirus. Instead he asked whether the failure to implement the outbreak and control plan had caused the claimants to suffer illness.

The Court of Appeal decided that the totality of the evidence showed that the cruise operator was guilty of multiple failures in implementing their norovirus outbreak and control plan.  The judge was entitled to come to this conclusion based on the complaints of the claimants as well as to focus on the meeting minutes detailing failure to comply with cleaning or sanitising measures. In conclusion, the judge had dealt with the case and the cruise operator’s witnesses in an unbiased way.

The appeal court held that there was nothing in the original judgment to indicate that the judge had set the standard above the duty accepted by the cruise operator, namely to take reasonable steps to implement a reasonable system for the management of the risk of norovirus on board the vessel. As the judge had fully considered the biological effects of norovirus and demonstrated a clear understanding of the nature of norovirus and its occurrence amongst the general population and the way in which it spreads, his decision could not be criticised.

Finally, the Court of Appeal held that the way in which the “but for test” was applied was justified as attention needed to be paid to the implementation of the plan.  The plan was necessary as it had been designed to provide reasonable measures to manage the risk of norovirus.  The judge had not found isolated instances of failure to comply with the plan, rather material instances were found where there had been a clear breakdown in the implementation of the plan.  This breakdown of implementation had effectively removed the safeguards the plan had intended to put in place. Therefore the judge had been able to find causation and that the burden of proof applied by him was correct in the circumstances and had been successfully discharged by the claimants.

The cruise operator’s appeal was therefore dismissed.

This case demonstrates that, whilst it is difficult to prevent the spread of a viral infection on cruise ships or in any other public place, having a sufficient norovirus outbreak and control plan is not enough.  There must be clear evidence to show that it is sufficiently implemented to avoid any liability for negligence or breach of duty.

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