In South West Strategic Health Authority v Bay Island Voyages [2015] EWCA Civ 708 the Court of Appeal reconfirmed that contribution between a defendant and a third party is not a personal injury claim.
An employee of SWSHA was injured at sea, in the Bristol Channel, during a team-building activity in August 2008. BIV operated the craft involved. She issued proceedings against SWSHA in August 2011, within the usual three year limitation period. SWSHA defended that and in June 2012 issued a part 20 claim against BIV seeking contribution under the Civil Liability (Contribution) Act 1978.
The 1974 Athens Convention applies, by secondary legislation, to incidents in domestic waters. It stipulates that “no action for damages for the death of or personal injury to a passenger ... shall be brought against a carrier ... other than under the Convention”. It also provides that injury claims “shall be time barred after a period of two years [and] in no case shall an action ... be brought after the expiration of a period of three years” (from disembarkation).
BIV argued that SWSHA’s part 20 claim was outside the Convention and was barred as being brought more than three years later, never mind two. In any event, BIV denied both negligence and causation. The lower courts broadly agreed.
The Court of Appeal reached a different view. It found that the Convention did not govern all liabilities of sea carriers in respect of the carriage of passengers. It dealt only with claims by “a passenger … against a carrier” and the part 20 claim here could not be so classified. Rather, it was a claim for contribution under the 1978 Act.
What, then, of the time bars in the Convention? The language used was very similar to s14B of the Limitation Act which provides that claims “… shall not be brought after the expiration of fifteen years”. That had been held to be merely a procedural bar, rather than completely extinguishing rights. The words used in the Convention were to be interpreted in the same way and thus the right was only procedurally barred. SWSHA’s contribution claim against BIV claim could therefore proceed (had the right been extinguished, SWSHA’s claim would have been expressly prevented by s1(3) of the 1978 Act).
The decision turns on preliminary points of limitation and contribution. As far is known, liability in the claimant’s claim - at the core of which is a serious spinal injury alleged to have been sustained nearly seven years ago - has yet to be determined.
The classification of the contribution claim as not being for damages for personal injury echoes the decision in Wagenaar v Weekend Travel & Serradj [2014] EWCA Civ 1105. There, the Court examined whether the post-Jackson regime of Qualified One-way Costs Shifting (QOCS) would apply to a contribution claim. The CPR limits QOCS to “proceedings in which there is a claim for damages in respect of personal injuries to the claimant.” The 1978 Act claim between the tour operator and the ski guide did not come within that, so the judge had been “wrong to hold that the QOCS regime applied to the proceedings between the defendant and the third party”.
Alistair Kinley, director of policy and government affairs, BLM
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