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An outbreak of a communicable disease on board a cruise ship is mercifully rare, but when it does occur the effects can be dramatic. Even hospitals can struggle to control the spread of infectious diseases and other environments such as cruise ships and hotels bring equal challenges.
The Association of British Travel Agents are meeting this week with the Government to lobby for greater regulation of claims after people have fallen ill while on holiday. This comes in the same month as a decision by the Court of Appeal in the case of Swift and Others v Fred Olsen Cruise Lines .
The 'Swift' claims were brought as a result of illnesses suffered during the Spring of 2011 where a number of passengers suffered a Norovirus infection.
They brought a claim against the cruise ship operator for failing to manage the risk of the infection. The Athens Convention 1974 states that the carrier will be liable for damages suffered as a result of an injury to a passenger, if the incident which caused the damage was due to the fault or neglect of the carrier.
The Court agreed that whilst the operator had an adequate system in place for cleaning and sanitising the ship, it had failed to properly implement the regime and this failure had caused or contributed to the passengers exposure to Norovirus and increased the risk of contagion.
The Claimants had been successful, and they had been awarded damages, but the operator appealed, arguing that the original Judge had not paid enough attention to the documented evidence of the cleaning regime.
They also argued that the nature of the Norovirus meant that the judge could not conclude (on the balance of probabilities) that each passenger had adequately proven that he or she had contracted Norovirus on board the ship (as opposed to elsewhere) or as a direct result of the failure of the cleaning.
It is important to bear in mind that in these cases, it is the Claimant/passenger who has the burden of proving their case. They need to do more than just showing that there was an outbreak of a disease. But in this case the solicitors acting for the Claimants had been able to show that there were complaints by individual passengers, there were also 'minuted' meetings about the outbreak. All this evidence showed that, on the balance of probability, the operator had failed to take reasonable steps to follow the system for managing the risk of Norovirus on board the ship.
This case shows that whilst these cases are often difficult to prove, with good, carefully presented evidence, it is possible to satisfy a Court, on the balance of probabilities that the management of the outbreak was not adequate and this caused and or contributed to the spread of the virus on board.