The claimant’s husband had been lost from the defendant’s ship at sea. The defendant had contracted to pay compensation unless the loss was by suicide. They so determined. The court was now asked whether that was a permissible conclusion in the circumstances: ‘This case raises two inter-linked questions of principle, one general and one particular. The particular issue is the proper approach of a contractual fact-finder who is considering whether a person may have committed suicide. Does the fact-finder have to bear in mind the need for cogent evidence before forming the opinion that a person has committed suicide? The general issue is what it means to say that the decision of a contractual fact-finder must be a reasonable one.’
Held: (Neuberger and Wilson LL dissenting) The claimant’s appeal was allowed. The report of the investigation team did not give Mr Sullivan the evidential basis for forming the positive opinion that Mr Braganza had committed suicide.
The defendant had used a report prepared with one question in mind (how to improve systems) to answer a different one: ‘ the investigation team’s report and conclusion could not be regarded as sufficiently cogent evidence to justify Mr Sullivan, and hence BP, in forming the positive opinion that he had committed suicide. No-one suggests that his decision was ‘arbitrary, capricious or perverse’, but in my view it was unreasonable in the Wednesbury sense, having been formed without taking relevant matters into account.’
Lord Hodge said: ‘The personal relationship which employment involves may justify a more intense scrutiny of the employer’s decision-making process than would be appropriate in some commercial contracts.’
Lord Neuberger said: ‘in this case it is illogical to suggest that, because Mr Sullivan’s opinion, unlike the decision of the team, would result in Mrs Braganza not receiving the death-in-service benefit, he should have been more reluctant than the team to conclude that Mr Braganza had committed suicide. The only relevance that the non-receipt of the benefit could have had to Mr Sullivan’s opinion would be that, because the benefit would be lost if Mr Braganza committed suicide, it could be said to render it less likely that he would have done so. However, that applies equally to the team’s decision.’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Hodge
[2015] UKSC 17, UKSC 2013/0099, [2015] WLR(D) 158, [2015] Pens LR 431, [2015] 2 Lloyd’s Rep 240, [2015] ICR 449, [2015] 1 WLR 1661, [2015] 4 All ER 639, [2015] IRLR 487
Bailii, Bailii Summary, SC Summary, SC, WLRD
Fatal Accidents Act 1976, Law Reform (Miscellaneous Provisions) Act 1934
England and Wales
Citing:
Cited – CVG Siderurgicia del Orinoco SA v London Steamship Owners’ Mutual Insurance Association Limited ‘The Vainqueur Jose’ 1979
The plaintiff sought to claim under the rules of the P and I club of which it was a member. After defining the risks in respect of which members were to be indemnified, the rules made the following proviso in Rule 8(k): ‘A member shall at the . .
Appeal from – Braganza v BP Shipping Ltd and Others CA 22-Mar-2013
The claimant widow sued in negligence after the disappearance overboard of her husband from the respondent’s ship. The court had found insufficient evidence to establish the cause of death, either as to negligence as suggested by the claimant, or as . .
At Commercial Court – Braganza v BP Shipping Ltd and Another ComC 30-May-2012
The claimant said that her husband, serving as an officer on the defendant’s ship was lost overboard as a result of the defendant’s negligence.
Held: The claim under the 1976 Act failed, but the court awarded the contractual sum claimed.
Cited – Abu Dhabi National Tanker Co v Product Star Shipping Ltd (No 2) CA 1993
Where parties enter into a contract which confers a discretion on one of them, the discretion must be exercised honestly and in good faith, and not ‘arbitrarily, capriciously or unreasonably’. The owner had acted unreasonably in that there was no . .
Cited – Ludgate Insurance Company Limited v Citibank NA CA 26-Jan-1998
Brooke LJ said that the circumstances in which the court will interfere with the exercise by a party to a contract of a contractual discretion given to it by another party are extremely limited. The courts will not intervene where the discretion is . .
Cited – Gan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
Cited – Paragon Finance plc v Nash etc CA 15-Oct-2001
The court was asked to consider whether there was any implied term limiting the power of a mortgagee to set interest rates under a variable rate mortgage.
Held: A loan arrangement which allowed a lender to vary the implied rate of interest, . .
Cited – Socimer International Bank Ltd v Standard Bank London Ltd CA 22-Feb-2008
Rix LJ considered the restraints operating a party to a contract in exercising any discretion gien under it, preferring the use of the term ‘irrationality’ to ‘unreasonableness’: ‘It is plain from these authorities that a decision-maker’s discretion . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Hayes v Willoughby SC 20-Mar-2013
The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .
Cited – British Telecommunications Plc v Telefonica O2 UK Ltd SC 9-Jul-2014
The parties disputed the termination charges which BT was entitled to charge to mobile network operators for putting calls from the latter’s networks through to BT fixed lines with associated 08 numbers. BT had introduced new tariff charges.
Cited – Regina v West London Coroner ex parte Gray CA 1988
Before a coroner’s jury could reach a verdict of unlawful killing, it had to be satisfied ‘that the act or omission of a single person must amount to unlawful conduct which was a substantial cause of death’, although Rule 42 of the Coroners Rules . .
Cited – In re H and R (Minors) (Child Sexual Abuse: Standard of Proof) HL 14-Dec-1995
Evidence allowed – Care Application after Abuse
Children had made allegations of serious sexual abuse against their step-father. He was acquitted at trial, but the local authority went ahead with care proceedings. The parents appealed against a finding that a likely risk to the children had still . .
Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL 11-Jun-2008
Balance of probabilities remains standard of proof
There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Commerzbank Ag v Keen CA 17-Nov-2006
The bank had sought summary dismissal of a claim for non-payment of bonuses to the claimant a former employee, and now appealed refusal of its request for summary dismissal, saying that the claim had no prospect of success. The claimant said that . .
Cited – Clark v Nomura International plc 2000
clark_nomura2000
Mr Clark was dismissed on three months’ notice and, although he was paid his basic salary for that period and was still in employment at the date for payment of the annual bonus, he was not paid a bonus. He had earned substantial profits for the . .
Cited – Cantor Fitzgerald International v Horkulak CA 14-Oct-2004
The employee claimed under a bonus clause which ‘contained in a contract of employment in a high earning and competitive activity in which the payment of discretionary bonuses is part of the remuneration structure of employers.’
Held: The . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited by:
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Contract
Leading Case
Updated: 10 November 2021; Ref: scu.544349