What does an employer or insurer have to do, in cases of suspected suicide, to determine if death in service benefits are payable? Establishing the cause of death can give rise to complex issues such as those explored in a recent case involving a marine crew fatality. The matter of Braganza v BP Shipping Ltd (2015) revolved around the disappearance of Mr Braganza while working as chief engineer on an oil tanker managed by BP Shipping Ltd (BP).
This article first appeared in Clyde & Co Shipping Newsletter – July 2015.
BP's investigation
BP, the employer, was contractually liable to pay compensation for the death of its employees unless, in its opinion, the loss was by "wilful default" (i.e. suicide). BP concluded that the most likely explanation for the disappearance was that the deceased had committed suicide by throwing himself overboard. BP reached its conclusion after conducting a safety investigation into how its systems could be improved to prevent such a situation re-occurring. The resulting report, identifying six factors supportive of suicide, was sent to the General Manager responsible for employing individuals aboard the tanker who determined that no further enquiries were necessary, and that there had been a "wilful default" by Mr Braganza; therefore, no death in service benefits were payable to his widow.
Was BP's conclusion reasonable?
The deceased's widow challenged BP's findings. On the evidence, the High Court was unable to make a finding as to cause of death; however, the widow's claim for death in service benefits was upheld on the basis that BP's conclusion sustaining suicide was not reasonable. This decision was then overturned by the Court of Appeal which held BP's findings of suicide reasonable.
The importance of cogent evidence
An appeal to the Supreme Court followed, where it was held that the inherent improbability of suicide demanded that there be cogent evidence to support the finding. Here, the General Manager had simply accepted the enquiry's conclusion that suicide was the most likely explanation; however, this enquiry was set up, not to determine the cause of disappearance, but to establish whether BP systems could be improved. To make a positive finding of suicide, strong evidence was required to overcome the inherent improbability that Mr Braganza had indeed committed suicide. The six indicating factors of suicide stated in the report were deemed by the Supreme Court not to be positive indications but merely "straws in the wind" and should have been set against the evidence of his normal behaviour immediately before his death, which increased the inherent improbability of suicide in his case. Interestingly this was not a unanimous judgement, Lord Neuberger reasoning that there was a combination of reasons sufficiently cogent to justify the finding of suicide.
Some practical pointers for employers and insurers
The fact that various senior judges could not agree demonstrates the difficulties which employers and insurance companies can face in these situations. The case illustrates the importance of conducting a full investigation into the cause of death of an employee, set up specifically for that purpose. It will be important to consider all the facts, and to gather sufficient cogent evidence to support any decision which is eventually reached.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
