ZURICH INSURANCE PLC V MACCAFERRI LTD (2016) – CA

Background

M had a policy with Z which covered accidental death or personal injury. It contained a condition requiring M to give notice in writing to Z "as soon as possible after the occurrence of any event likely to give rise to a claim". M was also required to give "immediate notice" to Z on receiving verbal or written notice of any claim.

M had supplied Spenax guns used for construction works to a builders' merchant (Jewson Ltd.) which in turn had hired the equipment to a building company (Drayton).

In September 2011 an employee of Drayton was seriously injured when a Spenax gun went off accidentally, hitting him in the face. The employee was rendered nearly blind. M was informed by Drayton in September 2011 that an incident had occurred and Drayton requested that the gun should be taken off hire and kept for investigation. By January 2012 it was clear that M knew that someone had been injured, but no allegations had been made that the gun was faulty.

Proceedings

The employee issued proceedings against Drayton in July 2012. Drayton in turn in March 2013 brought Jewson into proceedings. On 12 July 2013, Jewson then joined M as a part 20 defendant to the claim and M received notice of the proceedings on the 22 July 2013. M notified Zurich of the claim on the same day.

Settlement

The employees claim settled and an agreement was reached with all parties contributing to the settlement.

However, Z refused to indemnify M on the ground that it had failed to comply with the condition concerning notification of possible claims. At first instance the court rejected Z’s defence and refusal to indemnify the claim.

Z appealed and submitted that the condition meant that M had to give notice of the event to Z when they became aware of it and that it was likely to give rise to a claim, or when he ought to have become so aware.

Judgment

The CA again dismissed Z’s arguments and found that they should indemfnify M.

The CA did not accept Z’s construction of the condition. They said that it was a condition introduced by Z into its policy which had the potential effect of completely excluding liability in respect of an otherwise valid claim for indemnity. If Z wished to exclude liability it was for it to ensure that clear wording was used to secure that result and it had not done so. "An event likely to give rise to a claim" meant an event with at least a 50% chance that a claim against M would be brought.

Z’s interpretation of the phrase “as soon as possible” as meaning that even if, when the event occurred, it was not likely to give rise to a claim, the obligation to notify would still arise whenever M knew or should have known that an event which had occurred in the past was likely to give rise to a claim was wrong.

Given the nature of the clause, the ambiguity had to be resolved in favour of M. Z’s construction would impose an obligation to carry out a rolling assessment as to whether a past event was likely to give rise to a claim which was not the case with this policy.

The question to be considered was therefore whether when the event occurred it was likely to give rise to a claim. The CA in this case found that that depended on whether in the light of the actual knowledge M then possessed at the time, whether a reasonable person in its position would have thought it at least 50% likely that a claim would be made.

When the incident occurred, on the facts then known to M, it was not at least 50% likely that there would be a claim. The circumstances of the incident were unclear. That the gun was at fault was no more than a possibility and there were many others.

Therefore Z was not entitled to rely upon the condition as a ground for denying liability and should indemnify M.

BLANDFORD V THE FORESTRY COMMISSION & Others (2016) Bristol CC

Background

The claimant had fallen from a horse when riding on land owned and occupied by the Forestry Commission, (“FC”) the first defendant represented by Eversheds Sutherland.

The third defendant, Woodgate Sawmills Ltd. (“W”) had engaged the second defendant, Steven Edmunds (“E”), a haulage contractor, to transport timber bought from FC.

The claimant claimed that, when riding with two friends on a trail they had used regularly, her horse had been frightened by a lorry on an adjoining forest road, causing it to bolt and throw her to the ground. She suffered rib fractures. She claimed that the driver failed to stop despite noticing the horses, and that there were no warning signs alerting riders to the fact that trees were being felled.

The claimant brought claims in negligence and/or breach of common law duty of care against the defendants and asserted that the defendants had failed to take adequate steps to prevent her riding in the area and that the E's driver had failed to stop to allow the horses to get clear.

The driver stated that he had driven very slowly down the forest road and had slowed further when he saw the horses, as evidenced by his tachograph readings. He said that he would have stopped if he had seen a horse rearing.

The defendants denied any lack of care and argued that, in any event, any such breach of duty had not caused the claimant's injuries.

Judgment

The issue was whether the defendants had caused or contributed to the claimant's fall by failing to take reasonable care for her safety.

In terms of the issues to be decided the court found the following:

(1) Manner of driving - the driver's evidence was preferred to that of the claimant and a fellow rider, which was inconsistent. The driver's account was more probable as he was describing an everyday event unaffected by shock or injury. His evidence in relation to the speed he was travelling at was also confirmed by the incontrovertible evidence of his tachograph recording.

(2) Warning signs - the absence of warning signs did not cause or contribute to the accident. The defendants were not liable merely because there were no warning signs or any other attempt at road closure. The claimant needed to establish on the balance of probabilities that the presence of a moving log transporter on the forest road should reasonably have led to a warning sign being placed at the point at which the trail met the forest road. It was not FC’s duty to be sole guardian of the claimant's safety. Its duty, whether at common law or under the Occupiers' Liability Act 1957, was to take such care as was reasonable in all the circumstances.

(3) Breach of duty - the FC had taken such care as was reasonable in all the circumstances to discharge its duty. It had discharged its duty to visitors. It required contractors to place warning signs if harvesting operations were taking place, and/or to warn visitors in the close vicinity of such a working site. Those requirements were shown in the site specific conditions document, the pre-commencement site meeting document and W’s for the work, which all focused on the safety measures relevant to the site while logging was taking place. W placed the requisite signs in the vicinity of the site. Adequate warning signs were therefore in place. The accident scene was approximately half a mile from where logs were loaded onto the lorry. The road on which the claimant first saw the lorry was not a designated trail for horse riding, though it was reasonable to suppose that a rider might use the trail. It was not, however, necessary to guarantee the safety of such user, merely to ensure that it was clear from obvious hazards. The forest road had a single dominant purpose of providing access for mechanically propelled vehicles within the woodland. It should have been obvious to any reasonable, prudent horse rider that a lorry or similarly-sized vehicle might use the road. The lorry did not constitute an intrinsic hazard to others. Although not conclusive, the fact that the British Horse Society had raised no concerns was powerful evidence against such reasonable foreseeability. The lack of a history of such accidents was also not determinative of the matter, but was again a powerful consideration.

(4) Causation - there were two main strands to the necessary finding: the likely effect of warning signs if they should have been in place and the reason for the horse rearing. The claimant would probably have ignored any warnings signs unless she was where tree-felling work was taking place. Her protest that if she had seen a sign she would have avoided the area was adopted in hindsight. She was ignorant of where she should ride, which was indicative of her general attitude to the use of other people's land. She would have proceeded along the road regardless of warning signs. Nobody knew why the horse behaved as it did, but it was more likely because of the departure of the other horses at speed and the claimant's attempts to stop it following them than the approaching lorry. If, contrary to the findings, there had been want of care, it was not causative of the claimant's fall.

WOOD & Another V TUI TRAVEL PLC (TRADING AS FIRST CHOICE)

Background

The claimants (“W”) had contracted with the defendant holiday company (T”) to provide them with an all-inclusive holiday in a hotel in the Dominican Republic.

W had suffered from acute gastroenteritis as a resulft of eating contaminated food provided by the hotel. The judge found at first instance that the food had been contaminated without any fault on the part of the hotel.

However, the Judge found that the food and drink provided by the hotel was not of "satisfactory quality" for the purposes of Supply of Goods and Services Act 1982 s.4(2) (the “Act”) and entered judgment against T accordingly.

T appealed and submitted that it could not be liable under s.4(2) of the Act because the contract did not contain any terms or conditions concerning the question of property in the food and drink, meaning that the consumption of food and drink at the hotel involved no transfer of property in the food and drink. It argued that the contract was for the supply of services, meaning that it was governed by the implied term in s.13 of the Act, namely that the services should be provided with reasonable care and skill.

In view of the judge's finding of a lack of fault on the part of the hotel, it therefore maintained that the claim should have been dismissed.

Judgment

The CA decided that when customers ordered a meal or drink, the property in the meal or drink passed to them when it was served. It made no difference if the food and drink were laid out in a buffet to which customers helped themselves.

When the customer helped himself to the meal or poured himself a drink, the property in the fare became that of the customer. The judge had therefore been correct.

The contract between the holiday company and the respondents was a contract both for the supply of services and the supply of goods. The goods supplied were not of satisfactory quality because the food in question was contaminated.

Having said that, the status quo in these cases still remained : it did not mean that package tour operators would potentially be liable for every upset stomach which occurred during one of their holidays. Claimants in such cases had to prove that food or drink provided was the cause of their troubles and that the food was not "satisfactory".

In the case of W, the judge had been satisfied on the evidence that W had suffered illness as a result of the contamination of the food or drink which they had consumed.

He had therefore been right to conclude that the provision of contaminated food amounted to a breach of the implied condition in s.4(2).