Failure to manage the risk of norovirus - documentary evidence without witness evidence may be insufficient to prove a safe system was implemented.
At first instance it was held that 16 Claimants succeeded in their claims against the Defendant for damages in respect of norovirus on a number of cruises during 2011.
It was held that although the Defendants “Norovirus Outbreak and Control Plan” was appropriate and complied with industry standards, the Defendant had not demonstrated to the court that it had been adequately implemented.
The Defendant appealed, arguing that HHJ Owen’s conclusion was contrary to the weight of its evidence as a whole, which included 25 lever arch files of checklist records.
This was rejected by the Court of Appeal who stated 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, in this case the evidence had demonstrated not isolated lapses in implementation as the Defendant had suggested, but a breakdown of the system relied upon, which materially contributed to the spread of norovirus, irrespective of how it had been brought on board.
A helpful Court of Appeal decision confirming that the Defendant in question had failed adequately to implement its plan to manage the risk of norovirus.
It is important to note that reliance on documents alone does not demonstrate that a system, that may have been entirely reasonable in the circumstances, was properly complied with.
In this case documents were left for the judge to ‘dip into’. None of the employees who implemented the system relied upon were called to give evidence to back up the documentary evidence.
Whilst it is of course for a Claimant to prove their case, this case is a useful reminder that to prove good systems are in place, it may be necessary not only to present documentary evidence but also to present evidence from those who implemented the systems in place.