Illegality claim overturned

Zoe Major v Ministry of Defence (Court of Appeal - 7 October 2003) Miss Major, aged 13 years, visit...

Zoe Major v Ministry of Defence (Court of Appeal - 7 October 2003)

Miss Major, aged 13 years, visited a Royal Marine base where she was allowed to drive a snowmobile. She crashed the vehicle into a tank. Although physically unscathed, she suffered serious psychological symptoms due to feelings of guilt and depression as others on the vehicle with her suffered serious injuries. Her symptoms led to alcohol dependency and instances of self-harming. Despite this, she obtained a job with the RAF by lying about not having self-harming episodes.

She brought proceedings against the MOD for the accident and liability was admitted. Claims were brought for loss of earnings in the RAF before and after trial. She claimed loss of future earnings on the assumption that she would have served for a significant period. The MOD pleaded illegality and succeeded in that defence at first instance.

Comparison was successfully made with the case of Hewison v Meridian Shipping (2002). That case involved a claim for future loss of earnings, which failed due to the claimant, a seaman, having concealed his existing epilepsy from his employers.

The Court of Appeal reversed the decision at first instance, distinguishing Hewison on the basis that the claimant could not serve in the forces because the MOD prevented her from doing so - she had been put in that position by the tortfeasor. Also, she was not claiming for actual wages, but was relying on the wages she had been paid as an indication of her value on the labour market. Her obtaining employment by lying was not relevant to quantification of her claim.

COMMENT: Illegality can be a difficult defence for insurers. Here, the Court of Appeal side-stepped the public policy argument on the grounds that the tortfeasor put the claimant in this position and the wages received were merely an indication of her employment value. David Hill, BLM Liverpool.

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