Hewison v Meridian Shipping Services Pte Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Clarke,Lord Justice Tuckey,Lord Justice Ward |
| Judgment Date | 11 December 2002 |
| Neutral Citation | [2002] EWCA Civ 1821 |
| Docket Number | Case No: B3/2001/2774 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 December 2002 |
[2002] EWCA Civ 1821
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM GREAT GRIMSBY DISTRICT REGISTRY
The Hon Mr Justice Morland
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Ward
Lord Justice Tuckey and
Lord Justice Clarke
Case No: B3/2001/2774
Mr Jeffrey Burke QC and Stephen Killalea (instructed by Bridge McFarland) for the Claimant/Appellant
Mr Richard Davies QC and Mr Colin McCaul (instructed by Norton Rose) for the Defendants/Respondents
Introduction
On 21 December 1995 the appellant suffered serious personal injuries while employed by the first respondents as an AB/crane operator on the cable-laying vessel FLEX INSTALLER which was owned by the third respondents and chartered to the second respondents. At the time of the accident the vessel was berthed at Letrei in France. The appellant was assisting in the hauling in of a gangway and was guiding a wire on to a winch when the gangway suddenly "kicked" up striking the appellant on the side of the head. He claimed damages for negligence and breach of statutory duty under the Employers Liability (Defective Equipment) Act 1969 against all three respondents. Liability was admitted and judgment was subsequently entered against all three respondents with damages to be assessed.
One of the heads of damages claimed by the appellant was loss of earnings calculated on the basis that but for the accident he would have continued to work as a seaman/crane operator until his normal retirement age of about 62. He was 35 years of age when the accident occurred. The respondents' case was that it would be contrary to public policy to award damages on that basis because an essential part of the appellant's case that but for the accident he would have continued to earn money as a crane operator is that he would have continued to deceive his employers by fraudulently misrepresenting that he was not suffering from epilepsy, as he had in the past.
The question whether he was debarred by public policy from recovering for such loss of earnings was tried by Morland J, who held that he was and made an order to that effect on 5 December 2001. The appellant now appeals to this court from that order with the permission of Hale LJ.
The facts
The facts are not in dispute and may be summarised as follows. The appellant was born on 1 November 1959. For a long time before the accident he suffered from idiopathic epilepsy, which is epilepsy where there is no defined underlying cause. He suffered his first grand mal seizure when he was 17 and had a total of three seizures between the ages of 17 and 19. He was treated for his epilepsy with phenytoin, which, as I understand it, is an anti-convulsant and which he took assiduously from the third of the seizures until the accident. As a result of taking the anti-convulsants he had had no epileptic seizure since the age of 19. The doctors agreed that if the accident had not taken place it was 80% likely that he would remain fit free for the remainder of his life and 20% likely that he would not.
With the exception of a break between 1978 and 1979, when he worked on building sites (which was the period in which he suffered the three seizures), he always worked at sea in the merchant navy and it is right to say that throughout that period there was no complaint about his work. He was first employed by the first respondent some time between 1989 and 1991. For present purposes it does not matter when.
It is not clear what, if any, representation he made to his previous employers, but before the accident he filled in three medical questionnaires issued to him by the first respondent in 1991, 1993 and 1995 respectively. Although we have not seen those forms, it is common ground that he filled them in substantially in the same form as the questionnaire which he completed in 1997. One of the questions on the form was in these terms: "Are you currently taking medication, prescribed or not, injections or on any special diet?" In the 1997 form he answered "cocodamol for headaches, anti-biotics for chest infection …", but he did not disclose that he was taking anti-convulsants. In answer to the question whether he had ever suffered from "fits, fainting, giddiness or any mental disorder", he answered 'No'. It is common ground that he answered each of the questionnaires of 1991, 1993 and 1995 in the same way.
The appellant realised that epilepsy is a condition which prohibits working as a seafarer. At an interview on 22 January 1998 the appellant freely admitted that he knew that that was the case and that he had concealed his epilepsy from his employers since 1978 so as to keep his job in the offshore industry. He knew that he should have disclosed it, although it is fair to say that, as Dr Clarke (who was instructed on behalf of the respondents) observed, in doing so he acted like many other patients with epilepsy.
Further, it was a term of his contract of employment with the first respondent that he declare all prescribed drugs every time that he went on board a vessel. Yet on no occasion that he went on board did he declare that he was taking anti-convulsants. That is so, even though he was taking the drugs three times a day and had been doing so for over 15 years before the accident.
The accident occurred on 21 December 1995. As a result of the accident, the appellant sustained a serious maxillo-facial injury and also a head injury, but without loss of consciousness. He was taken to hospital and while there suffered an epileptic seizure when he was asleep. That seizure was caused by the accident. He thereafter remained off work for some 15 months but returned to work with the first respondent in the spring of 1997. It was about that time that he filled in the medical questionnaire to which I have referred. He again misrepresented his medical condition. He resumed working in the same capacity as before but again he did not tell his employers about his epilepsy in general or the fit sustained after the accident in particular.
One afternoon in June 1997, while he was aboard a helicopter being taken to work in Norway, the appellant suffered a grand mal seizure. There was no immediate reason for the attack since the appellant had not forgotten to take his anti-convulsant tablets. He was transferred to hospital in Stavanger, where he stayed for a few days before being flown home. When he saw Dr Clarke on 7 January 1999 he told him that he suffered three further attacks after June 1997; one a short time thereafter, the second several months before and the third a week before the consultation.
All the seizures which he suffered after the accident were caused by it. Mr Todd, who was instructed on behalf of the claimant, said that the accident was responsible for the development of further seizures in a man who was vulnerable because of the pre-existing epilepsy, albeit that he had had no seizures while on treatment with anti-convulsants for more than 15 years before the injury.
When the first respondents learned of the appellant's history of epilepsy, which they did in January 1998 when he fully admitted his condition in the course of an interview, they terminated his employment as they were entitled to do. As I understand it, until his employment was terminated, he received either sick pay or his ordinary earnings. He was not, however, able thereafter to return to sea because his epilepsy was now known. He subsequently obtained employment as a debt collector for which he uses his car. I should note in this regard that the appellant had not disclosed to the DVLA that he was an epileptic, although it is clear from Dr Clarke's evidence that that too is not uncommon among those suffering from epilepsy. One of the oddities of the case is that, but for these further epileptic fits, the accident would not in fact have physically prevented him from continuing to work as an AB/crane operator.
The judgment
The judge expressed the view that the appellant was in flagrant and deliberate breach of his obligations to his employers in failing to disclose his epilepsy. He further said this in paragraph 9:
"While I have every sympathy for the claimant, a hard working man, he was continuously deceitful in order to obtain and keep his job offshore. It is greatly to his credit that he has now obtained regular employment as a debt collector albeit at a lower level of income than when a merchant seaman crane operator."
In paragraph 11 the judge held that when the appellant declared that he had never had a fit in order to obtain or keep his job at sea, he was guilty of the criminal offence of obtaining a pecuniary advantage by deception, within the meaning of section 16 of the Theft Act 1968,which provides:
"(1) A person who by any deception dishonestly obtains for himself or another any pecuniary advantage shall on conviction on indictment be liable to imprisonment for a period not exceeding 5 years.
(2) The cases in which a pecuniary advantage within the meaning of this section is to be regarded as obtained for a person are cases where …
(c) he is given the opportunity to earn remuneration or greater remuneration in an office or employment, or to win money by betting."
The judge held that the decision of this court in Hunter v Butler [1996] RTR 396 was directly in point and distinguished both the New Zealand case of Le Bagge v Buses Ltd [1958] NZLR 630 and the Australian case of Mills v Baitis [1969] VR 583. I shall return...
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