The implications for the travel industry

Last year’s landmark case of Nolan –v– TUI UK Ltd [2015] marked the court’s recognition that cruise operators (and by extension other tour operators and hospitality providers) are not liable for norovirus outbreaks if they implement industry standard plans and take the necessary measures to manage the illness and bring it under control. The claimants in Nolan chose not to appeal, but the principles underpinning this important judgment have now been revisited and upheld in the recent Court of Appeal case of Swift & Others -v- Fred Olsen Cruise Lines [2016] where Fred Olsen Cruise Lines (FOCL) appealed a first instance decision in favour of 16 claimants seeking damages in respect of norovirus on a number of cruises on “MS BOUDICCA” in March and April 2011.

The judge at first instance accepted that the FOCL norovirus outbreak and control plan (the plan) ‘was consistent with industry standards, but that it had not been adequately implemented’ on the cruises in question. FOCL based their appeal on four separate, but related grounds. However, the three appeal judges, Master of the Rolls Lord Dyson, Lord Justice Gross and Lord Justice Christopher Clarke unanimously dismissed the appeal on all four grounds.

FOCL argued that the judge at first instance ignored ‘vast tranches’ of FOCL evidence, in particular 25 files of checklist records, which demonstrated that the cleaning regime had been implemented in accordance with the plan. FOCL claimed that, if the judge had considered these files, it would have cast FOCL evidence in a different and properly balanced light, and his conclusion would or should have been different i.e. that any failures to implement the plan had been isolated incidents and not a failure in all material aspects (as he had decided).

The Court of Appeal dismissed this argument, first as to the issue of procedure relating to how the evidence had (or had not) been adduced, but went on, more importantly, to find that, on the totality of the evidence, there were nevertheless multiple failures in implementing the plan and not merely isolated instances.

FOCL then argued that the judge at first instance had set the standard for breach of duty too high. The Court of Appeal also dismissed this second ground on the basis that there was ‘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 Court also noted helpfully in this limb of the judgment (reflecting Nolan) that cruise operators cannot guarantee that no passenger(s) would contract norovirus on a cruise nor could cruise operators guarantee that every surface on the vessel would be clean at all times.

The third ground underpinning the claimants’ appeal rested on the argument that, while the judge at first instance understood the prevalence of norovirus among the general population and how it spreads, he had failed to take into account that these cruises occurred at the time of a ‘spike’ in the prevalence of illness. In fact, the claimants' microbiology expert had produced figures showing that the ‘spike’ took place in the previous year. The Court of Appeal held therefore that, on the evidence before the judge at first instance, he was entitled to conclude ‘that each claimant had proved that he/she contracted norovirus on board the vessel and not otherwise’ (in fact, FOCL accepted that their appeal could not succeed on this ground alone).

Finally FOCL argued that the judge at first instance should have applied the ‘but for’ test i.e. that, but for the FOCL breach of duty, would the claimants nonetheless have suffered illness? They proposed that this ‘would have prompted consideration of… the possibility that the claimants might have caught it from other passengers’.

The Court also dismissed this final ground of appeal holding that: ‘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’.

What then, are the implications of the Olsen case for the wider travel industry?

The first and most important consideration is that this appeal judgment does nothing to undermine any of the findings in Nolan. If anything it merely amplifies the practicalities for cruise, travel and other hospitality operators already set out in that first instance judgment.

It remains, therefore, important for such operators to ensure not only that there is an adequate and appropriate outbreak plan in place, but further that any such plan is, and can be demonstrated to have been, implemented consistently and effectively.

In drawing up an outbreak plan it is vital to consider how to preserve contemporaneous documentation and, in the eventuality of legal proceedings, present this evidence in the most effective way.

In preparing the defence in Nolan the team at Hill Dickinson was meticulous in ensuring that the defendant’s documentary evidence on implementation and self-inspection, which ran into several files, was presented to the court in a clear and succinct manner. This allowed the court to accept that the systems on board had been fully and proactively implemented by the officers and the crew to bring the virus under control.

Cruise and tour operators should not therefore be dismayed by this recent appeal finding in Swift & Others -v- Fred Olsen Cruise Lines. Norovirus cases can still be successfully defended at trial. The general premise for defending such claims remains the need to effectively prove to the court that industry procedures have not only been fully adopted but, more importantly, implemented consistently. The lessons of Nolan remain as valid today as they were in achieving a successful judgment for the defendant in 2015.