Labour & European Law Review Weekly Issue 417 29 April 2015
The Supreme Court has held in Braganza v BP Shipping Ltd and anor that the more improbable an allegation, the less likely it is that the incident has occurred. There must therefore be convincing evidence before deciding, on the balance of probabilities, that the allegation has been proven.
Mr Braganza disappeared in May 2009 while working as the Chief Engineer on a BP oil tanker in the mid-Atlantic. BP set up an inquiry team to consider the circumstances leading up to his death and whether it needed to make any changes to its safety systems. It concluded that the most likely explanation for his disappearance was that he had committed suicide by throwing himself overboard.
Mr Sullivan, the General Manager, decided on the basis of the report alone (without making any further inquiries of his own) that his widow was not therefore entitled to death benefits under the contract of employment as compensation was not payable if “in the opinion of the Company or its insurers, the death…resulted from…the Officer’s wilful act, default or misconduct”.
Mrs Braganza brought a claim in contract against BP for death benefits, among other things.
Decisions of High Court and Court of Appeal
As he could not decide the cause of Mr Braganza’s death because of a lack of evidence, the High Court judge upheld the contractual claim because there was not sufficiently convincing evidence, on the balance of probabilities, for BP to conclude he had committed suicide. In addition, Mr Sullivan had failed to consider the very real possibility that he could have had an accident.
The Court of Appeal allowed BP’s appeal, holding that it was unable to agree with the High Court judge’s reasons for saying BP’s conclusion was unreasonable.
Supreme Court decision
The majority of the Supreme Court (three to two) held that it was not its role to decide what actually happened to Mr Braganza, but rather whether BP was reasonable to reach the view it had.
Allowing Mrs Branganza’s appeal, the majority said that Mr Sullivan should not have simply accepted the view of the inquiry team, not least because it was investigating his disappearance to decide whether BP's safety systems could be improved, not whether he had committed suicide.
Instead Mr Sullivan should have asked himself whether the evidence was sufficiently convincing to justify a conclusion of suicide. In this case, there were no positive indications. Mr Braganza had no history of depression or mental disorder and there was no evidence that he had spoken to anyone about suicide. He had undergone a medical examination before his last voyage and been pronounced physically and psychologically fit. His colleagues who saw him in the 36 hours before his disappearance had no concerns about him. Nor did the ship's master, who was the last person to see him alive. He left no suicide note or message that indicated any intention to kill himself. In addition, he and his wife were devout Roman Catholics, for whom suicide is a mortal sin.
The minority view was that there was a combination of reasons which could be sufficiently convincing to justify a finding of suicide.
The view of the Court was that the more improbable the allegation the more convincing the evidence needs to be before deciding, on the balance of probabilities, that the allegation has been proven.