QUEEN’S BENCH DIVISION
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ALAN SAGGERSON
8 DECEMBER 2005
By kind permission of DAVIES ARNOLD COOPER
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A serbonian bog is a mess from which there is no way of extricating oneself. The Serbonian bog was between Egypt and Palestine. Hume said that “whole armies have been lost therein. . ."
DIVING (NOT)
Healy v Cosmosair Plc & Others
28 July 2005 QBD Eady J. (EWHC 1657)
Introduction
In June 2002 Mr. Healy (a family man in his mid-thirties) went on holiday to the Colina Da Lapa apartments in Carvoeiro in Portugal. At about 8pm on 11 June after a day out in the town with his children (part of which was spent watching Ireland play World Cup football) he returned to the apartments where he was persuaded to join his son Jack in the pool. As he went to jump in (he alleged) he lost his footing and fell, twisting in the air as he did so, and landing at about 90 degrees with his head hitting the bottom of the pool. He broke his neck as a result.
Issues
The basis of the Claimant’s claim against the tour operator was pursuant to the express terms of the package holiday contract and regulation 15 of the Package Travel (Etc.) Regulations 1992. It was alleged that:
a) The pool terrace tiles caused Mr. Healy to slip;
b) The tiles were deficient and not of a reasonable (non-slip) standard;
c) The tiles did not comply with Portuguese regulations that required a 2 metre non-slip ring around the edge of the pool (there being only 410mm of non-slip material);
d) These failing constituted a breach of contract and an improper performance of the obligations under the holiday contract that had caused the accident entitling Mr. Healy to damages.
The Defendant raised a number of issues:
i) On the facts it was alleged with the help of a number of eye witnesses that the Claimant had deliberately dived into the (shallow) pool;
ii) The Claimant’s judgment was impaired by alcohol;
iii) In any event the terrace tiles on which the slip was alleged did comply with Portuguese non-slip regulations for 3 reasons. First because they were sold and supplied under the description of non-slip. Secondly, because they were indeed non-slip when dry and thirdly the Portuguese architect and local authority regulator had certified the complex as compliant with local regulations at the time the recently built resort had been completed.
iv) The Claimant could not prove he had slipped on a deficient tile.
Just in case, however, the Defendant joined in the management of apartments as Part 20 Defendants on the basis of a written indemnity clause which provided so far as is material as follows:
“The Hotelier shall indemnify and keep indemnified Cosmos against all losses, liabilities, claims or expenses for or in respect of injury … which may arise form any cause whatsoever arising out of or in connection with the supply of services to Cosmos (excluding the negligence or default of Cosmos … but including the failure of the Hotelier to comply with [local] laws. Degrees and regulations …”.
The Facts
Save that he was sure that he would not have dived into the pool, Mr. Healy did not know what caused him to lose his footing. Endless evidence was forthcoming from various eye witnesses. Those in the pool (all relatives of Mr. Healy) describing an accidental loss of control, and those standing by (all independent) describing a dive – but importantly all describing a sort of shallow or racing dive of the sort one might expect to form an entry into shallow water.
There was also evidence from the Defendant’s local representative to the effect that one member of the family had more or less admitted to seeing the whole thing in the immediate aftermath of the incident and that it was a dive. The judge thought this evidence unconvincing.
The clincher for the Claimant on this vital issue of fact was probably the medical evidence which described the nature of his neck fracture and concluded that the type of injury sustained was only consistent with a (more or less) 90 degree impact with the floor of the pool – head first in other words. This flatly contradicted the independent eye witnesses various descriptions of a shallow or racing dive.
Accordingly, the judge was able to conclude on the balance of probabilities that the entry into the pool came about other than by means of a voluntary dive and that the probabilities pointed to an “uncontrolled fall”.
Slippery Tiles?
So far so good from the Claimant’s point of view, but was this uncontrolled fall triggered by a slip on tiles that were wet, slippery and failed to comply with Portuguese non-slip requirements?
There was a volume of anecdotal evidence from various family and independent sources (including the Defendant’s own local representative) to the effect that the terrace tiles surrounding the pool were slippery when wet and a number of previous slipping incidents were revealed. The expert health and safety evidence was agreed that when wet the tiles were as slippery as smooth glazed tiles even though they were to some extent “textured”. Again, one senses from the judgment that the expert evidence was more compelling than the anecdotal evidence which was repeatedly described as being “impressionistic”. When dry, the non-slip effect was as good as the 410mm dedicated non-slip surface that was there (which the Claimant alleged should have been 2 metres wide to accord with Portuguese standards).
Breach of Portuguese Regulations
For the second time in recent history (see also Singh v Libra Holidays 2003 EWHC 276 QB; 2003 ITLJ 123) a Defendant attempted to excuse what was plain failure to comply with specific local regulations on the local regulators or enforcers. The judge said, no doubt risking a statement of the obvious:
“I came to the decision, as a matter of construction, that the local stipulation for a two-metre (non-slip) strip is not met by the provision of a strip of 410mm.”
“…I should have been inclined to hold that the Defendant was to that extent liable for improper performance.”
The Defendant’s contention that the court could not go behind the certificates provided by the architect and the local authorities (each by implication accepting that the textured terrace tiles constituted non-slip tiles for the purpose of measuring the 2 metre strip) was rejected – not least of all because the stipulation that there should be a non-slip “strip” (as indeed there was if only of 410mm) was inapt to describe the whole of the pool terrace covered by the terrace tiles.
Causation
For the second time in the space of 12 months (see Clough v First Choice Holidays and Flights Limited 28 January 2005), despite the judge’s findings of fact indicating that the Claimant and his witnesses were “bathed in the waters of truth” (although the actual expression has been appropriated from another judgment) the Claimant’s case fell apart on causation.
The Claimant had two hurdles to surmount on causation. First, that his uncontrolled fall was caused by a slip, and secondly, that he slipped on a wet terrace tile. The judge reminded himself by quoting from Clough that people do slip from time to time whether or not the surface is non-slip or wet. He was also concerned about expert biomechanical evidence suggesting that a fall (from the general area where the Claimant recalled being) straight into the pool without touching the ground was not a physical possibility, whilst accepting that the Claimant’s understandably “patchy” recollection of events meant it was possible he had touched the ground on his way into the pool but simply did not recollect so doing.
Of even more concern was the fact that originally (and for some time as the proceedings progressed) the Claimant’s contention had been that the terrace tiles were wet because they were in an area shaded by the pool bar and would not have dried in the period since most guests had finished using the pool at the end of the afternoon. At trial, the Claimant’s attention had re-focused on the suggestion that the tiles were wet because his son had hopped out of the pool to get a soft drink from the bar dripping water on the tiles in the process.
The “shaded area” theory was not supported by the health and safety experts who concluded in broad terms that the area would not have been shaded for long enough for this to be an issue. The problem with the evidence about the son was that it was a very late addition to the factual matrix (the evidence was served only a few months before the trial) with the almost inevitable consequences that the judge was hesitant about its reliability.
In the event, the trial judge did not decide even on the balance of probabilities what had triggered the Claimant’s “uncontrolled fall” and he concluded that the Claimant had failed to prove (the burden being on him) that he had been on a wet terrace tile at the time the uncontrolled fall was triggered.
Not Proven
“It is of course possible that the Claimant slipped on a wet tile less than 2 metres from the edge of the pool; it is also possible that the area had become wet by reason of Jack getting out of the pool. Nevertheless in these circumstances it is difficult conscientiously to draw the conclusion that the Claimant has proved on the balance of probabilities that he actually slipped on a wet area of tiling within the relevant margin.”
The outcome on the main action was a resounding “not proven” and in this the result shares some startling similarities with that of Clough. The latter case visits the Court of Appeal in December 2005. It remains to be seen whether Healy will join it.
Part 20 Indemnity
The Defendant succeeded in its (in the event unnecessary) Part 20 Claim against the hotelier. The hoteliers had argued that notwithstanding the findings on breach of Portuguese standards in respect of the non-slip “strip” and despite the indemnity clause quoted above, they were not liable to indemnify Cosmos for any damages in the present claim.
Why? Because, it was argued:
i) The clause excluded liabilities arising as a result of Cosmos’ “default”.
ii) A failure on the part of the apartments to deliver on Cosmos’ contractual promise to consumers that the apartments would offer pool facilities that were not “deficient” (i.e. had a proper non-slip strip) reflected a holiday contract “default” as between Cosmos and the consumers as indeed might Cosmos’ failure to identify the problem for itself.
iii) “Default” in this sense would not necessarily mean that Cosmos had been “negligent”.
iv) However, because both the words “default” and “negligence” were used in the clause they clearly indicated different things – different categories of situation in which indemnity was precluded.
v) Cosmos were in contractual “default” as regards their own customers for providing a facility that did not comply with Portuguese standards and could not, therefore, rely on the indemnity.
vi) This “default” was a real default because it had to be seen in the context of Cosmos’ right to inspect the premises and cancel its contract with the apartments if circumstances so inclined them.
The judge concluded (some might think rather pointedly): “… for reasons of policy, special considerations apply to the construction of indemnity clauses, but it still seems to me to be necessary to construe the language sensibly.”
Post-Script
Hidden in the detail of the evidence called on each side of this action was material from British tourists revealing what appear to be two important matters that are relevant to different types of serious holiday “accident” claims – diving incidents and gastric infections.
There was evidence from tourists who, having spent a day “in town” in the heat, jumped, dived or in Mr. Healy’s own case fell into the hotel pool, un-showered and grubby from their day’s outings more often than not simply stripping down to the shorts they had been wearing all day.
Small wonder then that hotel pools are such germ factories and small wonder that hoteliers targeted by claims for infections caught as a result of using hotel pools feel victimized by their unhygienic guests. Hygiene was not at the top of the agenda in Healy but did anyone bat an eyelid at this sort of behaviour? Experts on pool hygiene frequently blame cryptosporidium as the source of gastric illness from swimming pools and these little creatures we are told get into the pools by means of what are politely known as “faecal accidents”. Now, it is to be hoped that nobody is reading this over lunch, but faecal accidents are not as dramatic as may at first seem likely. Indeed they are sometimes not really evident at all. Traces of faecal matter is all that is necessary to get those little cryptosporidium beasties working. Enough said. The personal hygiene of pool users is plainly, therefore, at the very heart of what causes cryptosporidium outbreaks before the pool filters get a chance to remove the problem. No amount of chlorine will help.
The point is that whenever one is dealing with pool hygiene there are many potential causes of illness out there – and some of those causes are the tourists themselves. Pool water is often not clean because pool users are not clean. Think about it the next time you swallow a mouthful of pool water.
That brings us to a further incidental evidential by-product of a case like Healy. One of the many side issues in the action was whether in any event the pool was deep enough to accommodate diving at all. One mature, adult witness gave evidence to the effect that he had dived into the pool on countless occasions (between 1 and 1.5 metres deep) and regarded this as perfectly safe provided one executed a shallow dive. He had got away with it (and entirely discounted the possibility that he might make a mistake) and saw no need to moderate his behaviour. So much you might think for the repeated judicial outbursts to the effect that “everybody knows” that you shouldn’t dive into shallow water and if you do you have nobody to blame but yourself if things turn out badly for you.
EXCURSIONS; AGENTS & EVIDENCE
QUEEN’S BENCH DIVISION
B E T W E E N:
CYNTHIA ANN MORAN Claimant
-and-
FIRST CHOICE HOLIDAYS AND
FLIGHTS LTD. Defendant
First Part 20 Claimant
-and-
JOHN MORAN Part 20 Defendant
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JUDGMENT
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1. This claim is brought by Cynthia Moran, the claimant, for damages for injuries and loss resulting from an accident which occurred on 3rd July 2001 when she was a pillion passenger on a quad bike driven by her husband on a holiday excursion in the Dominican Republic. It is alleged that the excursion was provided and operated by First Choice Holidays and Flights Ltd (First Choice), the defendant, and further alleged that it is in breach of contract and/or negligent in providing a defective quad bike which was the cause of the accident. The hearing dealt only with the issue of liability.
2. The claimant originally joined her husband, John Moran, as second defendant alleging negligence in his driving of the bike. That claim has been discontinued. The defendant, First Choice, has instituted Part 20 proceedings against Mr. Moran based upon his negligence.
3. The contractual claim is brought upon the basis that First Choice, the defendant, was either the principal to the excursion contract or liable as an agent for an undisclosed principal, in this case the provider of the excursion Dominican Quad Bikes Adventure. The defendant denies that it was a principal to the excursion contract. Its case is that it sold the excursion as an agent for a disclosed principal. Further, in respect of the accident itself it is contended that there was no causative defect in the bike nor is there evidence of lack of reasonable care on the part of the providers of the bike.
1. Issues
In his opening Mr Pusey, counsel for the claimant, identified the issues agreed between the parties:
i) What was the cause of the quad bike accident?
ii) Was the defendant acting as principal to excursion contract or as undisclosed agent for a principal to the contract?
iii) Was the defendant acting as disclosed agent for the providers of the excursion?
iv) A subsidiary issue: did Mr. Moran’s driving contribute to the accident?
Facts
5. The claimant and her husband were on a holiday provided by the defendant in the Dominican Republic from 24 June to 8 July 2001. On arrival at their hotel a welcome pack was provided giving information regarding excursions available through the defendant. At a welcome meeting the following day Rachel, a tour representative employed by the defendant, gave more information about excursions. The claimant and her husband booked and paid for the jeep safari excursion. The excursion took place. Later in the holiday they booked an excursion called ‘Crazy Quads’ through Rachel. It was paid for by travellers cheques. The claimant states that they received a white piece of paper, presumably a booking confirmation or receipt. She recalls that the paper was torn out of a book and there was a carbon copy which Rachel retained.
6. On 3rd July the claimant and her husband were collected from their hotel and taken to the compound where the quad bikes were stored. Some instructions were given, crash helmets were provided and bikes were allocated. A convoy of bikes set off. Ahead of the claimant at the front of the convoy was a bike driven by an employee of the quad bike company. He led the way and dictated the speed of travel. The claimant’s bike was about twenty yards behind the leader, behind her were bikes driven by tourists or members of the quad bike company.
7. Mr Moran as the driver of the bike gave his account of the journey. He had ridden motor bikes some twenty to thirty years ago but had no recent experience. The bikes left the compound and in so doing Mr Moran negotiated a left turn without any difficulty. Thereafter Mr Moran had to turn right onto the main road. As he did so the bike did not appear to react, the result being that Mr Moran had to take a ‘long wide sweep’ to get back onto the road. The road gave way to a dirt track and at one point Mr Moran stopped the bike in order to obtain goggles because of the dust. About thirty minutes into the journey the bike was approaching a clump of grass in the middle of the track. Mr Moran turned the handlebars to the left to go round the grass, he then turned the handlebars to the right but the wheels did not turn. He grabbed hold of the clutch and pulled it in, he took his thumb off the throttle but it remained in position and the machine kept revving. Mr Moran tried the brake using the foot brake and hand brake but the brakes would not work. The bike went off the edge of the track, down a ledge and dropped some thirteen to fourteen feet. Mr and Mrs Moran were thrown from the bike and sustained injury.
8. Mr Moran said that the first difficulty with the right turn he attributed to his not being used to the bike. During the remainder of the journey he had driven over a terrain which was dusty, containing stones and indentures but he did not have to negotiate any other significant manoeuvres. In stopping for goggles he had encountered no problems. The convoy was at all times travelling at a moderate speed. In short an unremarkable journey over relatively straightforward terrain save for one incident involving a right turn.
9. The claimant’s account of the journey was similar to that of her husband. Mrs Moran had been aware of the problem when the bike first attempted to turn right and had commented upon it but at the time it did not cause her much concern. No other witnesses were called on behalf of the claimant or the defendant to give first-hand oral evidence of the accident.
10. During the course of the defence case counsel on behalf of the defendant made application pursuant to CPR r 32.1 to admit into evidence two hearsay statements. In each case no notice of hearsay had been served pursuant to CPR r 33.2. The first statement dated 3rd July 2001 was made by Osins Polanco General Manager of the Dominican Quad Bike Adventure. The application was allowed. The statement began with the words ‘Tour Report’ and the following two paragraphs read:
‘Testimony of the two guides leading the tour
Departure
We left the hotel at 1.30pm, after having given to the clients all the necessary instructions to drive the motors. There were in total 4 people in two four wheels motors, beside the two guides in two motors, one in front to direct the clients and the other one at the back with the second couple.
The tour was normal as always, but after 30 minutes when we have been at the sugar cane fields (driving very slow), the accident happened. The client lost the control over the motor and then he fell together with his motor into a hole. We went immediately to help him and he said, “I lost the control over the motor”. We called an ambulance and took them to the clinic.’
11. The statement identifies neither guide. No information was provided as to the taking of this statement nor as to any other detail regarding the testimony of the guides. When challenged by counsel on behalf of the defendant as to his alleged statement immediately after the accident Mr Moran said he had spoken to no one. He had injured his wrist but his primary concern was for his wife who was crying and lying on her back. He said he would not have referred to the bike as a motor. Having seen and heard Mr Moran I accept what he says.
12. In giving evidence to the Court the claimant and her husband did so with moderation and impressed as witnesses of truth. I accept their evidence that at the start of the journey there was a problem with a right turn, thereafter no significant manoeuvre was attempted until the clump of grass had to be negotiated. For a second time a right turn was attempted and problems immediately ensued involving the wheels, throttle and brakes. I am satisfied that the cause of this problem was a defect in the bike.
Maintenance of the Quad Bike
13. Alison Ventura was the defendant’s senior quality co-ordinator in the Dominican Republic at the time of the claimant’s accident. It was her evidence that the excursion was operated by Dominican Quad Bike Adventure not by First Choice. The defendant’s local agent in the Dominican Republic, Barcelo Viajes, had an agreement with the bike company for the provision of the excursion. Ms Ventura said that in order to carry out safety checks she went on this particular excursion twice and visited the company’s base ten to fifteen times to ensure the bikes were kept in good condition and to spot check guides and their knowledge. No oral evidence was called on behalf of the quad bike company nor were any records of maintenance or inspection disclosed. In addition to the hearsay statement of Mr Polanco a statement from Alfredo Vasquez, company mechanic of the bike company was, admitted into evidence pursuant to CPR r 32. The statement dated 27 October 2001 deals with the general system of maintenance of quad bikes. Daily checks of brakes, weekly general checks and monthly changes of oil are performed. No information was provided as to any history of specific checks upon the bike driven by Mr. Moran. The absence of any documentation to support the frequency and nature of the checks in general and upon the particular bike in question considerably limits the evidential value of this statement..
14. Of some significance is the fact that following the accident an inspection of the bike is alleged to have been carried out. Alison Ventura was ‘ninety nine per cent sure’ that an inspection was carried out by the agents but it was not done immediately. She did not arrange for an inspection to take place even though she visited Mrs Moran in hospital two days after the accident and was by then aware that the claimant had ‘broken her back’. As far as Ms Ventura is aware documents do exist relating to the inspection and are held by the booking agents Barcelo Viajes. No such documents have been disclosed, no explanation was proffered to the court for the absence of such documents.
15. One single piece of information was before the court as to the post accident state of the bike. It was in the hearsay statement of Mr Polanco and read ‘The motor is in perfect conditions after the accident. It proves the good conditions and its care.’ Given the fact that the bike had fallen off the track, down a ledge and landed on the ground it is a statement which has to be viewed with a degree of caution.
16. These proceedings were instituted in 2003. The hearsay statements provided by the bike company are dated 2001. The defendant has had ample opportunity to provide evidence, oral and documented, as to the pre-accident maintenance and post-accident inspection of the bike. It has failed to provide such evidence and to proffer any adequate explanation for its absence. There is no cogent evidence before the court as to the age or condition of the bike before the accident and an absence of any reliable evidence as to its post accident state.
17. This lack of evidence must reflect upon the adequacy of any system which it is contended was operated by the bike company. It fails to provide any sound evidential basis upon which this court could make a finding that the bike in question was regularly and competently inspected and maintained. The absence of any post-accident inspection report simply serves to emphasise the dearth of any satisfactory evidence relating to the condition of the bike. In short there is no satisfactory evidence to rebut the claimant’s assertion that a defect was present.
First Choice - Principal, Undisclosed Agent or Disclosed Agent
18. It is agreed that the claim does not arise out of the original package holiday contract. The contract for the provision of the quad bike was a separate and later transaction. The factual position pleaded by the defendant was that Dominican Quad Bikes Adventure was the operator of the excursion and the principal to the contract with the claimant (paragraph 3 of the Defence of the First Defendant).
19. The evidence of the claimant and her husband was that they at all times believed the contract was made with First Choice. In support of their belief they rely upon three matters:
documentation provided by the defendant;
the manner in which the earlier safari excursion was dealt with and performed;
the fact that they could have bought a cheaper quad bike excursion but did not do so because of the defendant’s guarantee of insurance and, for Mr Moran, the safety checks.
20. The relevant documentation comprises:
a) Welcome Pack
b) Booking Form (used for the safari expedition).
c) A document which the defendant alleges is a copy of the receipt/booking confirmation provided to the claimant and her husband for the quad bike trip.
a) Welcome Pack
The two logos at the head of this document are ‘First Choice’ and ‘Unijet’. It begins with the words: ‘On behalf of First Choice and Unijet, it is a pleasure to welcome you to the Dominican Republic’. A further paragraph states:
‘Tours and Trips - First Choice and Unijet offer an exciting selection of trips to suit everybody from relaxing aboard a catamaran to discovering the wild countryside on a jeep safari. All our excursions are fully insured and regularly checked to ensure that they meet our safety standards. First Choice cannot be held responsible for any excursion not supplied by First Choice as they probably will not meet our stringent insurance and safety requirements, at First Choice your safety and enjoyment are our first priority.’
There is no reference within this document to the fact that excursions which are ‘supplied’ by First Choice are operated or provided by another company.
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b) Booking Form
The logos on the front of this form are: First Choice, Barcelo Viajes and Outback Jungle Safari. Also on the front of the form are the following statements:
‘All tours operated by First Choice are working with the Cristal Hygiene program this ensures that they comply with stringent health and hygiene checks, they are also monitored very closely to ensure that they pass a rigorous safety tes (sic) on a regular basis. This allows you to relax and enjoy the holiday that you booked knowing tha (sic) every possible precaution has been taken.
There are several ‘Pirate’ companies operating excursions in the Dominican Republic, these companies are not used by British tour operators because they do not reach the quality, safety and hygiene standards that we as your tour operator demand.
We cannot accept any responsibility for illness, injury or death caused as a result of participating in a pirate excursion.’
There is no mention in this document of Dominican Quad Bike Adventure although there is the logo of the booking agent, Barcelo Viajes. The document is written in precisely the same spirit as the welcome pack - book for tours operated by First Choice and it will provide safe tours for which they will accept responsibility in the event of a tour not meeting its rigorous standards and injury resulting.
It is unsurprising that provided with this documentation the claimant and her husband believed that First Choice was supplying the excursion and with it the relevant safety checks and insurance.
a) Receipt/Booking Confirmation. This document was disclosed by the defendant. It purports to be a copy of the voucher given to the claimant and her husband by Rachel upon their booking the quad bike tour. The original of the document has not been produced. Rachel was not called as a witness. At the top of the document is the logo of Barcelo Viajes and Turaria which is part of Barcelo Viajes. The information entered upon the document is correct save for the hotel room number of the claimant. In the box headed ‘Clients signature’ no signature appears but a smiley face has been drawn. On the line headed ‘date’ appear a series of numbers which make little or no sense. There is no reference to Dominican Quad Bike Adventure.
21. The claimant and her husband agree that a booking confirmation or receipt was provided. They say it was on white paper, there were no logos and it was about half the size of the document produced to the court. Taking the defendant’s case at its highest, namely the presence of the Barcelo Viajes logo at the top of the document, I do not regard this as sufficient to displace the impression created by the defendant in its welcome pack and the front of its booking form that the excursion was supplied by First Choice. I have deliberately taken this high point but am bound to state that the provenance of this document is unsatisfactory.
22. The documentation supplied by defendant left Mr and Mrs Moran with the justifiable impression that the excursion contract was being made with their tour operator, First Choice. Nowhere in the documents is there any reference to Dominican Quad Bike Adventure and the presence of an unexplained Barcelo Viajes logo on the booking form takes the issue little further. I am satisfied that in respect of the quad bike excursion First Choice did not disclose that it was acting for its pleaded agent namely Dominican Quad Bike Adventure.
23. Even if I had doubts as to the evidence provided by the documentation the unchallenged evidence of the claimant and her husband was that booking and performance of the safari excursion pointed to the defendant providing the excursion. The Moran’s belief that the defendant was the supplier of the excursion was the basis of their refusal to book a cheaper quad bike tour no doubt from one of those operators described by the defendant as “pirate”.
24. Counsel for the defendant referred me to the case of Derbyshire and First Choice Holidays and Flights, a decision of His Honour Judge Karsten QC at the Central London County Court. This type of case has to turn upon its own facts. In the reported case the facts were clearly different both as to the documentation provided by the tour company with its identification of the providers of ski equipment and the actual knowledge possessed by the claimant of the existence of the suppliers of ski boots which were causative of his injuries. The particular facts of the reported case do not assist in the determination of this claim but I am grateful to counsel for providing the authority.
The negligence of Mr Moran
25. Counsel on behalf of the defendant approached this issue with caution and realism. There is no suggestion that Mr Moran was driving at an excessive speed or in any way that could be described as reckless. At best the suggestion appeared to be that Mr. Moran’s lack of familiarity with the quad bike caused him to confuse one or more levers or modes of control. Mr. Moran denied the suggestion.
26. Having found that the precipitating cause of the accident was a defect in the bike, the first manifestation of which was an inability to turn the bike right Mr. Moran was presented with a situation in which he could do little to avert the accident which followed. I dismiss the Part 20 Claim.
Issues - Conclusions
27. I am satisfied that the cause of the accident was a defect in the quad bike which Mr. Moran was driving as part of a tour excursion.
28. As to the excursion contract the defendant was at all times the undisclosed agent for the local principal Dominican Tour Bike Adventure who provide the quad bike and as such is liable for its undisclosed principal.
29. The defendant has produced no satisfactory evidence to demonstrate that the defective bike had been regularly and competently maintained prior to the accident and was thus free from defect. It has also failed to provide any post accident inspection evidence to negative the allegation of a defect.
30. The claimant succeeds in her claim based upon the failure of the defendant to exercise reasonable skill and care in the provision and performance of the excursion. The claim is made out both in terms of breach of the contract and breach of the duty of care.
31. The defendant has not made out its claim in negligence against Mr. Moran.
32. Accordingly there is judgment for the claimant upon her claim against the defendant. The defendant’s Part 20 claim against Mr. Moran is dismissed.
Mason v Titan Travel
Grimsby County Court
June 2005
HHJ Moore
Introduction
1. The Defendant (“Titan”) is a tour operator and supplied to the Claimant a package holiday to Canada in May 2001. Whilst on the package tour the Claimant purchased an excursion (for an extra $45 Canadian) called the Canoe Float Trip at Jasper. Whilst on the excursion on the river the canoe collided with an overhanging branch and capsized. The Claimant sustained injuries.
2. The Claimant sued Titan for damages pursuant to the Package Travel (Etc.) Regulations 1992 regulation 15 – having expressly abandoned other causes of action as against Titan. The facts for the purposes of this hearing were not controversial and for the purposes of the preliminary issue it was assumed that the Claimant can make out a case in “negligence” against the canoe operators and excursion providers.
The Preliminary Issue
3. A preliminary issue was ordered to be heard (by Consent) to this effect as between the Claimant and Titan only: whether or not the canoe float trip was a component of the package holiday.
4. If the excursion was a component of the package holiday then Titan was liable for any improper performance in the provision of the excursion. If the excursion was not part of the package holiday the trip falls outside the scope of the regulations which accordingly do not apply to this accident – and the Claimant must look elsewhere (either another party or another cause of action) for his remedies.
The Package Travel Regulations 1992
5. The regulations provide as follows so far as is relevant – and emphasis is added where appropriate.
15 Liability of other party to the contract for proper performance of obligations under contract
(1) The other party to the contract[1] is liable to the consumer[2] for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.
(2) The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because— (and certain exceptions are then set out).
1 Citation and commencement
These Regulations may be cited as the Package Travel, Package Holidays and Package Tours Regulations 1992 and shall come into force on the day after the day on which they are made.
2 Interpretation
(1) In these Regulations—
“brochure” means any brochure in which packages are offered for sale;
“contract” means the agreement linking the consumer to the organiser or to the retailer, or to both, as the case may be;
“the Directive” means Council Directive 90/314/EEC on package travel, package holidays and package tours;
[“member State” means a member State of the European Community or another State in the European Economic Area;]
“offer” includes an invitation to treat whether by means of advertising or otherwise, and cognate expressions shall be construed accordingly;
“organiser” means the person who, otherwise than occasionally, organises packages and sells or offers them for sale, whether directly or through a retailer;
“the other party to the contract” means the party, other than the consumer, to the contract, that is, the organiser or the retailer, or both, as the case may be;
“package” means the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:—
(a) transport;
(b) accommodation;
(c) other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package,
and
(i) the submission of separate accounts for different components shall not cause the arrangements to be other than a package;
(ii) the fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions (whether modified or not) shall not of itself cause it to be treated as other than pre-arranged;
and
“retailer” means the person who sells or offers for sale the package put together by the organiser.
(2) …….
3 Application of Regulations
(1) These Regulations apply to packages sold or offered for sale in the territory of the United Kingdom.
(2) Regulations 4 to 15 apply to packages so sold or offered for sale on or after 31st December 1992.
6. The liabilities imposed on Titan only apply only to those arising from the improper performance of the components of a regulated package holiday. In order to fall within the scope of the regulated package the component must be part of (see regulations 2 & 3 above):
• A pre-arranged combination (of qualifying components)
• Sold or offered for sale in the territory of the UK
• At an inclusive price
• The contract (for the package holiday) that links the consumer and Titan.
Titan’s Case on the Preliminary Issue
7. The facts that are of importance were as follows:
• The excursion was selected as an optional extra by the Claimant after his arrival in Canada. [$45.00]
• The optional extra was paid for in Canada.
• In paragraph 5(c) of Titan’s booking conditions it is made clear that their view is that excursions do not fall within the Package Travel regulations protection.
• What is included in the package holiday is listed at page 73 of the brochure (and the optional excursion is not on the list).
• The excursion is not an item on the Claimant’s confirmation invoice [page 2.2(10)] detailing the package holiday (compare with the “Killer Whales” add-on).
• The list containing the canoe trip is clearly headed “Optional Excursions” [page 2.2(19) see also 2.4(2)].
8. From these facts it is plain that:
1. The canoe trip simply was not part of a “pre-arranged”[3] combination of qualifying components.
2. The excursion was optional so people on the package holiday could take it or leave it as they wished.
3. The price of the excursion cannot have been part of an “inclusive price” when the holiday contract was made (irrespective of whether it was invoiced separately) because the excursion was an add-on bought later in Canada.
4. The excursion falls outside the scope of the regulated package holiday.
5. The Claimant’s reliance on the third of the 3 qualifying components other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package … is misconceived. Such other tourist services still must be pre-arranged at the time the package holiday contract is made and sold at an inclusive price.
6. One cannot buy something separately as an optional add-on, and pretend it was pre-arranged all along.
9. This issue of “locally purchased”, post-departure products has been before the courts several times before. The answer is clearly that they fall outside the liability scope of the Regulations. The decisions of various county courts have not been appealed.[4] See also:
Rochhead v Airtours Plc. (Central London County Court) – June 2001. (Judgment paragraphs 15ff)
Gallagher v Airtours Holidays Limited [2001] CLY 4280
Sheppard v Crystal Holidays Ltd. [1997] CLY 3858.
Derbyshire v First Choice Holidays & Flights (Central London CC) 2004. (Judgment paragraph 32)
Costelloe v Thomson Tour Operations Ltd. [2000] CLY 4046.
10. Of course there are different types of post departure or locally purchased products – excursions being only one example – but the principles are the same whatever the nature of the product. Many of the authorities relate to skiing accidents probably only because people have more accidents whilst skiing.
11. The limits of the tour operator’s liabilities for locally purchased products is very important because it has an impact on what tour operators like Titan decide they will suggest as local options; what their insurance cover should be (and the premiums); and this in turn affects the price at which holidays are provided (including the price to people who may elect not to take up local options).
12. Whilst it may be irksome for a Claimant to take remedies in the courts of the place where the excursion provider is based, there is no reason why (particularly in an advanced country like Canada) this cannot be done – it is done all the time. In addition, the fact that an excursion falls outside the scope of the Regulations does not necessarily deprive a Claimant of rights of action against a tour operator ( not based on the Regulations). As it happens this Claimant has abandoned a number of other options – no doubt for good reason – but he is not in principle without remedy.
Judgment in the Defendant’s favour was given accordingly. It remains a complete mystery why the Claimant elected to proceed on the Package Travel issue and abandon other causes of action – such as that based on the excursion contract.
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It is obvious from a comparison between Moran and Mason that getting the documents right makes all the difference in respect of Defendant’s carrying the can for locally booked excursions. When will the industry learn this lesson?
SUPPLIERS – REGULATION 15
James v Travelshere Limited
2 February 2005
The Claimant took a package holiday to Sri Lanka in the course of the holiday on 14 February 2001 she visited the Pinnawela Elephant Sanctuary to watch the elephants bathe. She was escorted with the rest of her group to the water’s edge where along with many others she stood on an apron of rocks to take photographs. She turned her back to return to the pathway just as the elephants left their bathing in the river to make their way back to the sanctuary; a person shouted “the elephants are coming”; the Claimant was taken by surprise and fell, breaking her ankle. The Claimant blamed the Defendant tour operator and claimed compensation.
Essentially the Claimant’s allegations boiled down to this and that accordingly there had been “negligence” on the part of the guide responsible for the visit.
• She was allowed to stand where it was unsafe; and
• She was not warned that the elephants were leaving the river.
It also emerged that usually a handheld klaxon was sounded when the elephants were on the march to alert people to the need to get of the way – but that such a klaxon had not been used on the day in question – in breach of the sanctuary’s usual system. In the original claim the Claimant had maintained that the sanctuary was a “supplier” of services within the meaning of regulation 15(1) of the PTR 1992, but somewhat surprisingly this basis for the claim was abandoned at trial and the Claimant accepted that the Defendant was no liable for any shortcomings on the part of the those who operated the sanctuary.
The judge concluded that indeed the sanctuary and its personnel had fallen short of their usual standards on the day of the accident and that had the klaxon been sounded the Claimant would have been alerted to the approaching elephants and the accident would have been avoided. However, as it was not alleged that the tour operator was liable for the negligence of this provider of a public facility the Defendant was not liable to the Claimant on this basis. Neither was the tour operator in breach of any duty through its own guide. The rocky apron was reasonably safe; many people used it for photographs; there had been no history of accidents and any warning to the effect that “elephants can move quickly” would not have made any difference to the outcome anyway because she had her back turned at the point when the elephants started to move.
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Langton -and- TUI UK Limited
27 January 2005
The Claimant took a package holiday in Corfu supplied by the Defendant. Unfortunately, during the course of his holiday, and on an occasion when he was in the shower at his hotel, there was a power cut. He reached out of the shower cubicle stretching for the door and had an accident. The Claimant blamed the Defendant tour operator and claimed compensation. The basis of the claim was either that the Hotel was responsible for the power cut because it had embarked on a deliberate campaign of cutting of the electricity in order to save overloading its system due to “overuse” of air-conditioning in guests’ rooms. Alternatively, at trial the Claimant sought permission to amend the claim to assert that the Greek Electricity Board was a supplier of package holiday services pursuant to regulation 15(1) of the PTR for whose failure (the failure to warn of the impending power cut) the tour operator was responsible. On the claim based in “negligence” against the Hotel the judge concluded that the hearsay evidence available from Corfu demonstrated that:
• The Hotel was concerned about misuse of air-conditioning units although more from an economic stand-point than anything else but their concern was not shown to be related to the power cut.
• Electrical failures were not so commonplace as to suggest the Hotel should have warned its guests about them.
• The electricity supply was checked regularly by maintenance staff and records were available to show this.
• What evidence there was suggested that the power failure was the result of an emergency arising in the village for which neither the Hotel nor the tour operator could be responsible.
This had been an unlucky accident for which liability could not be attached to the Defendant.
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POTHOLES
IN THE STOKE-ON-TRENT COUNTY COURT
JEAN THOMSON
-and-
THOMSON HOLIDAYS LIMITED
17 January 2005
The Claimant fell into a sunken footbath adjacent to a garden path at her package holiday Hotel in Cyprus on 19 May 2002 and claimed damages for her injuries (fractured foot). This was a classic PTR 1992 Regulation 15 case. The footbath, she claimed, was at the side of a narrow pathway and was a hazardous obstruction. There should have been a warning about it in the form of a clearly delineated boundary, fencing. Better still the footbath should have been moved to a safe place out of the way of pedestrians walking round the hotel gardens. The Claimant relied on the fact that the footbath was subsequently moved and also on the fact that at the time of the incident it was very sunny to the extent that the footbath and adjacent pavement appeared to be the same colour and one was not distinguishable from another.
The Claimant’s case was supported by expert evidence from a Cypriot lawyer to the effect that the standard of care for hoteliers in Cyprus was the same as under the Occupier’s Liability Act 1957 in England.
The Defendant contended that the sunken footbath had been in situ for many years without incident and the fact that the footbath had been moved as a result of the Claimant’s accident such 20-20 hindsight did not render the hotel or the tour operator in breach of any duty to the Claimant. The Defendant will relied on the dicta of the CA in Staples v West Dorset District Council (1995) PIQR at P445 and Lord Pearce in M’Glone v BRB [quoted in Ratcliffe v McConnell (1999) 1 WLR at page 681] – to the effect that a responsible occupier is not to be criticised for taking action after an accident to avoid a recurrence.
The Defendant also relied on expert evidence from an engineer. The Engineer concluded that by Cypriot regulation the Hotel was obliged to have a footbath and that the one in question is consistent with others he had observed in Cyprus and that Cypriot Regulations in respect of such facilities did not impose any requirements on occupiers as to size, depth, configuration, colour or design of such a footbath or its positioning.
The judge concluded that the accident occurred because the Claimant was not looking where she was going - this had been an isolated incident. Furthermore, although it was correct to look at the general Occupiers’ Liability standard of care that standard had to be approached in the context of what was both required and conventional in Cyprus by the regulations. As the regulations demanded that there be a footbath and the evidence was that this footbath was in keeping with local customs, neither its positioning nor construction constituted any breach of duty on the part of the Defendant or the Hotel. Finally, there was no obligation on the Hotel or the Defendant to issue warnings about such incidental property features that form part and parcel of many holiday resort hotels. Judgment for the Defendant.
QUALITY
Gingell v Playasol Property Management
Birmingham County Court – 13th September 2005
District Judge Mithani
1. Mr Gingell and his wife used the Defendant’s website to rent an apartment for two weeks in Northern Spain. The Package Travel Regulations 1992 did not apply since flights were booked separately. The apartment was described as having a ‘sea view’. Mr Gingell, by his own admission a connoisseur of holidays in the sun, was not satisfied with the brevity of this description and accordingly emailed the Defendant to enquire about the quality of the view, and whether or not it was obstructed in any way. The brief response, again via email, was that the apartment had ‘two balconies facing the sea’.
2. In evidence, Mr Gingell stated that a representative of the Defendant company, a Mr Walker, had also reassured him over the telephone that the apartment was ‘front line’, a term of art used in the travel industry to describe properties which are directly in front of the beach, with nothing in between. Mr Walker vehemently denied making this representation, pointing out that if a property was indeed ‘front line’ it was a significant selling point and the company would not fail to advertise it on their website. He did admit, however, that a telephone conversation probably took place ‘at some point’.
3. When Mr Gingell arrived at his apartment, he had a reasonably good view of the bay and coastline. In the foreground, and to the left, however, he could also see what he described as a ‘graffiti covered school’. Whilst the sea was clearly visible over the top of the school, the view was partially obstructed by a small glass tower which sat on top of the school roof. Mr Gingell produced a map of the area which, he said, demonstrated that the front of the apartment, far from being parallel with the coastline, was at a 45 degree angle to it. It followed, he argued, that the apartment and its balconies were not ‘facing the sea’.
4. The Defendant argued that whether or not an apartment had balconies ‘facing the sea’ had to be viewed in the context of the contract as a whole. It was submitted that ‘facing the sea’ was a means to obtaining a reasonably good sea view, and not an end in itself. Since Mr Gingell could see the sea, which is all that was ever promised, his claim should be dismissed. The judge was also referred to the Oxford English Dictionary definition of ‘facing’, namely ‘pointing in the direction of’, It followed, according to the Defendant, that the presence of objects between two points was not relevant to their relative orientation. It was also pointed out that it would be impossible to be parallel with a coastline which, in the resort, was curved.
5. The Defendant further suggested that if the Claimant had been dissatisfied with the apartment, he should, and could have contacted the local agent immediately to mitigate his loss. The Claimant admitted to having had the local agent’s contact details and said that he simply chose to wait until the end of the holiday. He also admitted to having told the apartment owners at the end of the two weeks that he had had a ‘good holiday’.
Held
6. The Judge found for the Claimant.
7. Whilst he did not make a finding on whether or not the Claimant had been promised a ‘front-line’ apartment, he concluded that the Claimant had been entitled to expect a property which was ‘substantially facing the sea’. ‘Facing the sea’, he said, was not a term of art. The claim was cluttered with definitions which it was difficult to get to grips with, but ‘facing the sea’ was a term in common parlance. Whether one took the worse or best possible interpretation of the photographic evidence, the apartment could not be said to have been ‘facing the sea’.
8. The judge also found that even if the Claimant had complained to the local agent, nothing could have been done about the apartment. He could not have been moved because there was a shortage of other properties, and it was reasonable for the Claimant to wish to avoid the disruption and inconvenience of having to pack-up his belongings.
9. The Claimant was awarded £350 to compensate him for the difference between the sea view that he expected and that which he received.
Quinn v TUI UK Limited
Bromley County Court, 5th September 2005
District Judge Thomas
1. Mrs Quinn booked a holiday to the Dominican Republic for herself and her three children in January 2005. It was not in dispute, ex post facto, that the hotel that she stayed in was provided from TUI’s ‘Just’ range, a selection of ‘no frills’ basic holidays to exotic locations.
2. Mrs Quinn, however, was adamant that she had selected the hotel from another ‘Thomsons’ brochure that she had subsequently disposed of. To assist the court, she stated that it probably had a picture of a beach on the front, although she couldn’t be sure! She booked the holiday over the telephone, having read the details of the hotel from the brochure to a friend who was also a travel agent.
3. Mrs Quinn gave evidence that ‘her’ brochure described the hotel as a ‘family’ hotel, providing children’s entertainment and offering a ‘heavenly break’. By contrast, the ‘Just’ brochure explicitly stated that children’s entertainment was not included in the price, nor could a maid service be guaranteed.
4. Mrs Quinn’s holiday did not prove to be heavenly. She claimed damages for loss of enjoyment based, inter alia, upon the ‘abusive’ behaviour of a maid, who only appeared intermittently and very rarely cleaned the room or left towels and toilet rolls; the fact that her room flooded twice in the middle of the night; a headboard which collapsed on top of her son whilst he was trying to retrieve a cuddly toy from behind the bed; a lack of pillows and blankets on her return long haul flight, and the fact that a packet of batteries had been stolen from her luggage at the airport.
Held
Brochure Terms and Conditions
5. The judge was satisfied that Mrs Quinn had booked her holiday from a mysterious and still unidentified Thomsons Brochure. This was despite the fact that the Defendant provided full copies of all of their brochures which offered holidays to the Dominican Republic at the time, none of which, with the exception of the ‘Just’ range, featured the relevant hotel!
6. The judge also found that although the holiday that was actually booked was a ‘Just’ holiday, the terms and conditions in the Just brochure had not been incorporated at the time of formation of the contract. However, because the Claimant had had the unidentified brochure in front of her at the time that she had booked the holiday and because, so the judge found, she had intimated to her friend that she expected the holiday to include organised entertainment and a ‘kids clubs’, these ‘terms’ were incorporated and she was entitled to expect that they would be provided.
Maid Service
7. The Defendants were in breach of contract in not providing a maid service to a reasonable standard.
8. The judge concluded that it was not reasonable to expect the Claimant to request towels and toilet rolls from reception. Even though the hotel’s response to all the Claimant’s complaints had been prompt and efficient, the evidence, it was held, clearly indicated that the hotel held itself out as providing a daily housekeeping service.
9. The judge also decided that although the maid had been speaking Spanish at the material time, and although neither the Claimant nor any of her children could understand what the maid was saying, her behaviour and in particular her ‘body language’ (which involved laughing, pointing and shouting ‘at herself’) had nonetheless constituted ‘abuse’.
Flooding
10. The judge found that the flood had been caused, as the Claimant suggested, by the failure of a plumber, who had been carrying out maintenance to the room next door, to turn off a tap on top of a boiler. This was conduct which was not ‘unusual’ and ‘unforeseeable’ under Regulation 15(2)(c) of the Package Travel Regulations 1992 and the Defendant could be held responsible. The judge concluded that the Claimant had acted reasonably in throwing her bed sheets onto the floor in response to the flood, even though she made no attempt to contact the hotel to ask for help.
Headboard
11. The judge was satisfied that the headboard, which was a free-standing piece of wood propped between the bed and the wall, constituted a hazard if the bed was moved. He accepted that the local standards applied in accordance with Wilson v Best Travel, but decided that a ‘heavy wooded object’ was a ‘heavy wooden object’ wherever it was in the world.
Batteries
12. The judge found for the Defendant on this point. He accepted that even if the batteries had been stolen, this was not something than the Defendant could be expected to guard against. Had the tour representative known that the ground staff at the airport were, as the Claimant alleged, carrying out a ‘scam’, she would not have encouraged passengers to place valuable items with their baggage.
Pillows and Blankets.
13. The judge concluded that pillows and blankets are normally provided on all long haul flights and had been unreasonably withheld from Mrs Quinn.
14. Mrs Quinn was awarded £800, representing £200 for herself and each of her children.
Powell v Thomson Holidays
April 28th 2005, DJ Wainwright
(Exeter County Court)
The Facts
Mrs Powell booked herself and her husband a half board Thomsons “Late Deal” in Majorca over the telephone from Tracy. Under the deal, the guests would take pot luck and be allocated accommodation of a minimum standard on arrival in Palma. Mrs Powell was adamant that she had been expressly told by the sales rep. “Sharon” the accommodation would be in “a hotel”, a fact the Defendant denied.
On arrival in Majorca the Powells were sent to the “Ivory Playa Apartments”, a complex with a bar, restaurant, room service, chamber maids and other facilities one might expect of a hotel. The Powells’ room had a bed, table and chairs, and a small kitchenette. The Powells were furious with their accommodation. They were convinced they had booked “a hotel” and that they were in an apartment. Mrs Powell telephoned Thomsons’ 24 hour holiday line to complain. She was told that, if she wanted to move to a bona fide hotel she would have to pay the difference between her (very cheap) Late Deal and the brochure price for the hotel, and this was £700. The next morning the Powells booked themselves on the next flight home. In the afternoon they met the local tour representative and told him they were leaving.
The Claim
On their return to the UK the Powells claimed the full cost of their holidays, plus the cost of the flight home.
The Defendant contended that no guarantees had been made about the accommodation, save that it would be of a minimum standard. The Defendant argued that, even had a hotel been guaranteed, the “Palm Beach Apartments” provided all the services of a hotel and to all intents and purposes was a hotel. The Defendant noted that there could have been no claim at all had the block called itself a “hotel” and had the Powells not had a kitchenette in their room.
The Defendant argued that, had there been a breach of contract, damages should be calculated on a loss of amenity basis, and that any loss of amenity was very small indeed. Further, the Powells had behaved wholly unreasonably in booking a flight home before they had either given their accommodation a chance or even spoken to the tour representative.
However, in the absence of any evidence from Sharon to the contrary, the District Judge found that Sharon had indeed guaranteed the Powells would be accommodated in a hotel.
The District Judge then held that the “Palm Beach Apartments” was not a hotel. In DJ Wainwright’s words, “hotels are different from a block of apartments – they have communal areas, a formal dining area, and a general air of hustle and bustle not evident in a block”.
Finally, the District Judge held that it was entirely reasonable for the Powells to curtail their holiday as they did, and that their only other option was to pay £700 to upgrade to a hotel.
Damages were awarded equivalent to the total cost of the holiday plus the flight home.
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Jewsbury v Thomson Tour Operations Ltd & Britannia Airways.
May 13th 2005, DJ Mort
(Sheffield County Court).
The Facts
On 14th February 2002 the Claimant and her husband booked return flights from Birmingham International airport to Las Palmas airport. The First Defendant was the tour operator and the Second Defendant was the carrier in respect of the flights. The outbound flight was to take place on 18th April 2002, and the return flight on 2nd May 2002. The couple requested wheelchair assistance so that Mrs Jewsbury, who suffers from arthritis, could be transported from the arrivals gate to the baggage reclaim hall at the airport. On arrival at Las Palmas, a wheelchair was provided, but no escort, and it was therefore necessary for Mr Jewsbury to push his wife through the airport from the arrivals gate, through passport control, and towards the baggage reclaim hall and customs. In order to access the hall they had to descend one floor. It was common ground that there were lifts and escalators obviously available, but the Jewsburys did not think that the lifts would be operational, because on previous trips an escort had unlocked them with a key. Mrs Jewsbury chose to use the escalator, therefore. It was stationary as she approached it, but as she stepped onto it, she triggered a motion detector, and it began to move. As a result, she fell, sustaining injuries.
The Claim
Mrs J brought an action against T and B for damages for personal injury and consequential losses. She claimed that T had owed her a contractual and tortious duty to provide ‘wheelchair assistance’, which included the provision of a wheelchair and an escort. She claimed that B was liable for the accident pursuant to the provisions of the Warsaw Convention.
T contended that there was no reason to believe that ‘wheelchair assistance’ should include the provision of an escort, particularly in the case of a disabled passenger who was accompanied by an able-bodied companion capable of pushing a wheelchair. Further, Mrs J’s action in ignoring the lifts and choosing to use the escalator was so unreasonable and extraordinary as to amount to a break in the chain of causation; and it was unforeseeable. B, relying on Adatia v Air Canada and de la Cruz, contended that Mrs J was not performing one of the operations of disembarking at the time of the accident and that therefore the Convention was not engaged.
The District Judge found that, as a matter of common sense, ‘wheelchair assistance’ comprised a wheelchair, and some assistance, namely the provision of an escort. T were therefore in breach of their contractual and tortious duty to Mrs J in failing to provide an escort. However, her failure even to attempt to use the lift was so unreasonable that it negated any breach on the part of T, who could not have foreseen that any failure to provide an escort would lead to an accident of this nature. As for the Warsaw Convention, it was not engaged. Mrs J had passed through passport control and into an area of the airport in which she was able to roam freely, mixing with other passengers on international flights. She was not under the control of the carrier at the time of the accident and was able to do as she pleased. The claims against both Defendants were dismissed.
It is interesting to note that throughout the hearing the District Judge complained bitterly that the case was not suitable for allocation to the fast track and ought to have been listed on the multi track, notwithstanding its modest value. It is inferred that he did not relish his task of examining the provisions of the Convention and the international case law to which he was referred.
Jones v TUI (UK) Ltd.
Swansea County Court
3 June 2005
THE EVIDENTIAL OWN GOAL!!
Mr & Mrs Jones, their 17 year old son (described somewhat unflatteringly as a “lump”) by the trial judge, their daughter and her betrothed all went on a week’s package holiday to Spain commencing 14 October 2000 based at the Hotel Negresco on the Costa Dorada. Mr & Mrs Jones and the “lump” were all to share one room in which an additional folding bed was to be provided whilst the other couple (unmarried please note) shared another room.
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The folding bed proved too small for the “lump” (although it was only a few centimeters shorter than the traditional divans and more or less the same height) so Mr Jones decided he best sleep in it himself. The room was configured in a way that left the folding bed squashed in between his wife’s divan and a side wall of the accommodation. The only way in or out was to clamber over the wife’s divan or out of the foot of the folding bed.
All was well until Mr Jones needed to use the facilities in the middle of the first night of the holiday and shuffled to the foot of the folding bed – when (you’ve guessed already) it collapsed underneath him or rather the slats holding the mattress gave way and he found himself stranded like an up-ended tortoise. He sustained conventional injuries to the lumbar spine and sued the tour operator.
His complaint was that the bed was only a “camp” bed. This was plainly untrue as the hotel could prove it was a proprietary auxiliary bed used throughout the Hotel without previous incident. He complained that the bed should have been properly inspected – but as the slats had just come loose from their mounting it remained opaque what such inspection would have revealed that could have prevented the accident.
Unfortunately, the Hotel manager called on behalf of the Defendant company agreed with alacrity that the beds should never have been configured in the way that they were and that had they been set out in the way the Claimant alleged this would have been “quite wrong”. There was ample space in the room for the beds to have been laid out without the need for the Claimant to shuffle in and out.
This particular evidential own goal was catastrophic from the Defendant’s point of view. The judge was entirely satisfied that the beds were set out as the Claimant alleged and that the Claimant and his family had not moved them to the position that gave rise to the accident. Had the room been properly laid out as the manager suggested the Claimant would never have had to shuffle to the foot of the bed but could have got in and out from the side in the conventional way. Had he been able to do this, the accident would never have happened and as a result of falling short of their own standard the Hotel was in breach of duty for which the Defendant company had to accept responsibility under the terms of the holiday contract.
Judgment for the Claimant.
SLIPPERS AND TRIPPERS
COMMON SENSE
Grimshaw v Airtours Holidays
Mayor’s Court
24 October 2005
HHJ Cottran
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Introduction
1. The Claimant claimed damages from the Defendant (a tour operator) as a result of suffering injuries when she tripped over an entrance board at a Hindu Temple on 6 October 2002 whilst on a City Tour of Singapore – part of her package holiday.
2. This apparently was the Defendant’s fault.
The Claimant’s Pleaded Case
3. The fault that was alleged against the Defendant (or for which the Defendant is responsible) is summarized thus:
The entrance board should have been removed.
It should have had hazard markings or been painted a different colour.
There should have been a warning (written or verbal).
Alternatively the Temple should have been removed from the itinerary.
The Defendant’s Case
4. It is absurd to suggest that a major sight-seeing attraction should be removed from an itinerary due to an isolated accident of this nature. Thousands of people must enter this Temple in any given week.
5. It is only a little less absurd to suggest that the tour operator could be expected to require the painting of hazard marks on the threshold or its redesign in some way. Such have not proved necessary before – and in any event the temple is not within the control of the Defendant.
6. What about warnings? The Defendant does not owe passengers a duty to warn about the ordinary vicissitudes of life and every-day “hazards” like steps and barriers that are there to be seen by everyone (bright sunlight makes no difference). Such a duty might arise if passengers were embarking on some dangerous activity or were likely to encounter a dangerous and unusual hazard known to be a potential cause of serious injury.
Judgment
7. The entrance threshold was obvious for all to see as they approached the Temple gateway. It was painted in glossy red paint. The Claimant approached in broad daylight with an unobstructed view of the entrance. The accident was nobody’s fault but her own. Judgment for the Defendant.
WELL FANCY THAT!
| | |
|Matthew Chapman writes: |Sarah Prager writes: |
| | |
|Ethel Olbison v TUI UK Limited, trading as Thomson Holidays |Olbison v TUI UK |
|(Multi track trial, Manchester County Court, 27 October 2005, HHJ| |
|Holman) |ANOTHER TRIUMPH FOR COMMON SENSE |
| | |
|This matter concerned a slipping accident which took place on 20 |October 27th 2005, HHJ Holman |
|September 2002 at a time when the Claimant was on a package |(Manchester County Court). |
|holiday to Gran Canaria, Spain. The Defendant was the tour | |
|operator for the holiday. Accommodation was provided at the Gran |The Facts |
|Canaria Princess Hotel, Playa del Ingles, Gran Canaria. The |In September 2002 Mr and Mrs O, an elderly couple, took a package|
|Claimant was 80 years of age at the time of the accident. She |holiday in Gran Canaria. On arrival at their hotel, they were |
|arrived at the Hotel with her husband on 19 September 2002 and |pleased with their accommodation and found the hotel staff |
|they were allocated room no 247. This was their first time at |generally helpful and the hotel well run. Their room was |
|this Hotel and they were generally pleased with the standard of |furnished with two single beds and, placed on the tiled floor |
|accommodation which comprized a bathroom, 2 single beds and a |between them, a bedside rug. An ominous note was struck when Mr O|
|balcony. The accident happened during the evening of 20 |slipped on the rug and fell back onto one of the beds, but he |
|September; the precise time was not clear. Prior to the accident |‘thought nothing of it’, and did not tell his wife of the |
|the Claimant was lying on her bed for a rest and her husband had |incident. |
|left their room to do some shopping at a local supermarket. There| |
|was a bedside cabinet adjacent to the bed (close to the pillow). |In the evening of 20th September Mr O went to the supermarket to |
|The cabinet was topped with a sheet of glass and a lamp and |get some drinks so that the couple could sit out on their balcony|
|telephone were placed on the cabinet. The beds were quite low to |and watch the hotel entertainment. Meanwhile, Mrs O lay down on |
|the ground. The floor of the Claimant’s room was constructed of |one of the beds for a nap. When Mr O returned about 20 minutes |
|smooth ceramic tiles. In the space between the 2 beds a rug or |later, his wife was not on the bed where he had left her, and the|
|mat was placed loosely on the tiled floor. There was no rubber or|bedside rug was lying crumpled at the foot of the beds. Further |
|non-slip grip on the underside of the mat and it was of a normal |investigation revealed Mrs O, also lying crumpled between the |
|carpet weave. The Claimant could not recall the circumstances of |beds, unconscious. She was taken to hospital and was found to |
|her accident; she recovered consciousness in an hospital bed. The|have sustained remarkably few injuries in the circumstances; but |
|Claimant was found by her husband after the accident and he |she couldn’t remember what had happened after she lay down for |
|described seeing the bedside mat which had moved to the end of |her nap. Nevertheless, Mr O came to the conclusion that she must |
|the bed near the dressing table. He found the Claimant lying |have slipped on the bedside rug, and fallen, causing the rug to |
|unconscious in a pool of blood between the 2 beds. The accident |crumple as she did so. |
|was reported and the Claimant was taken to hospital. When the | |
|Claimant’s husband later returned to the room he found that the |It appears that whenever Mrs O subsequently put in an appearance |
|mat had been removed (a replacement mat was later provided). The |in the public areas of the hotel, more English holidaymakers told|
|glass from the top of the bedside cabinet had broken; he assumed |her that they, too, had slipped on their bedside rugs, although |
|that this was where his wife had hit her head. The radio in the |none of them had actually fallen. Nor had they complained to the |
|front of the bedside cabinet had been dislodged. The damage to |hotel manager, who gave evidence that there had never been a |
|the bedside cabinet was replaced. |similar accident at the hotel. He also said that rugs such as |
|The Claimant’s case was that she slipped on the mat placed |those in his hotel were extremely commonplace in Gran Canaria |
|between the single beds, fell to the floor and suffered injury as|(and, indeed, it was established that hotels in the region are |
|a result. She invited the Court to reach this conclusion as a |required to provide a bedside rug in uncarpeted bedrooms). |
|fair inference on the balance of probabilities. | |
|There was expert evidence from a Spanish lawyer which established|The parties instructed chartered engineers to provide their |
|that, while there was a duty (expressed in statute), to furnish |expertise in relation to the friction co-efficiency of the rugs |
|an Hotel room with one or two bedside rugs, there was no |on the flooring in question, but since neither expert inspected |
|directive to govern the slipperiness or otherwise of the rug. |the relevant flooring, and both were inadvertently provided with |
|There was no Spanish equivalent of the British standard guidance |a rug of totally different character to that on which Mrs O |
|on acceptable and unacceptable coefficiencies of friction. The |slipped, their evidence was not terribly helpful. |
|appropriate Spanish safety framework was based on | |
|negligence/delict: a general duty on the part of an occupier to |The Claim |
|take reasonable care and skill. Both parties obtained expert |Mrs O brought an action against TUI for damages for personal |
|engineering evidence with respect to the slipperiness or |injury and consequential losses. She claimed that, on the balance|
|otherwise of the relevant rug (the Defendant obtained permission |of probabilities, she had fallen as a result of the fact that the|
|to rely on an expert report which it had already commissioned and|rug, when placed on polished tiles, was inherently dangerous and |
|the Claimant obtained permission to rely on expert evidence in |constituted a slipping hazard. The Defendant contended that it |
|response to this). Neither expert visited the Hotel and they were|could not be shown how the accident had taken place, but even if |
|not provided with a sample tile from the room occupied by the |it had occurred because of the presence of the rug, the hotel had|
|Claimant. They carried out slip resistance tests using a sample |complied with local standards and the Defendant was therefore not|
|rug supplied by the Hotel on tiled surfaces which approximated |liable for the accident. |
|the tiles used in the Hotel rooms. It transpired at trial that | |
|the sample rug supplied by the Hotel was not at all similar to |The Designated Civil Judge held that Mrs O had failed to satisfy |
|that which was in the Claimant’s room. In the circumstances the |him that the accident had occurred as a result of her slipping on|
|expert evidence was, effectively, irrelevant. The Judge was |the rug, and that even if she had slipped, she was unable to |
|critical of the failure by both experts to indicate to those |prove that the rug was unreasonably slippery by reference to |
|instructing them that they could not provide useful expert |local standards. |
|assistance given that they were unable to test the relevant rug | |
|on the relevant tiling (this criticism found expression in an |The full reasoned judgment is not yet available; but it seems |
|order that there be no order as to the costs of and incidental to|that the judge accepted the Defendant’s contention that there |
|the expert engineering evidence). |were any number of ways in which the accident could have taken |
|The issues at trial were (1) how the accident happened; and (2) |place, and it was simply not possible to say that it was more |
|if the rug was causative, whether the rug, when placed on the |likely that Mrs O had slipped on the rug than that, say, she had |
|floor, created a slipping hazard. The Claimant’s husband’s |had a funny turn and fallen, dislodging the rug as she fell. The |
|evidence was that he had slipped on the index rug and fallen to |judge also seemed impressed by the evidence of the hotelier that |
|the floor before his wife’s accident (although he had suffered no|hotels all over Gran Canaria have this sort of rug/floor setup in|
|injury and made no report or complaint). The Defendant’s evidence|all their bedrooms. |
|was that there had been no other accidents or complaints | |
|involving any of the rugs at the Hotel (although there was no | |
|disclosure to support this assertion). | |
|The Judge held (1) he was not satisfied, on the balance of |[pic] |
|probabilities, that the cause of the Claimant’s accident was her | |
|slipping on the rug; (2) even if it had been established that | |
|slipping on the rug was the probable cause of the accident, he | |
|was not satisfied on the evidence that the rug was unreasonably | |
|slippery when judged by Spanish/Canarian safety standards. A | |
|short form judgment was provided (a written judgment has been | |
|reserved and will be sent to the parties in due course). | |
|Comment: This case illustrates the limitations of expert | |
|engineering evidence in cases of this kind. This was a relatively| |
|low value case (agreed quantum was £5,500). It was allocated to | |
|the multi track only because it was listed to occupy two days of | |
|Court time. Given the value of the claim the cost of sending two | |
|engineers to Spain was clearly disproportionate. However, without| |
|a site visit the engineers’ calculations and opinions were almost| |
|wholly unhelpful. It cannot be assumed in these circumstances | |
|that, just because the Court has granted permission for expert | |
|evidence to be relied upon, the cost of this will necessarily be | |
|recoverable from the losing party. | |
LAURENSON V MYTRAVEL UK LIMITED
Central London CC
10 November 2005
1. The Claimant went on holiday.
2. He was on a package holiday based at the 3* Hotel Fourati in Hammamet, Tunisia with his family (28 April – 6 May 2001). The holiday was supplied by the Defendant. It is alleged that on day 4 he slipped on a “large amount” of water on the tiled bathroom floor of his accommodation.
3. The issues in this action were factual. It was not just a slipping case on an damp floor – the Claimant’s case was that a significant amount of water was just abandoned by a cleaner.
1. Can the Claimant be relied on?
2. Why did the Claimant slip and fall?
3. Was it due to a “bucket” of water on the floor?
4. If it was, how come the water was there?
5. Did he sustain any injury?
4. The fault alleged against the Defendant (or for which the Defendant is responsible) is summarized thus (Amended P/C page 23).
a) The water on the bathroom floor was the Hotel’s fault.
b) Water “sploshed” or “splashed” there was so much of it as if someone had spilt a bucket of water and abandoned the mess.
c) The floor had just been washed & cleaned.
d) Warning signs should have been put up.
e) There was so much water you could hear it splashing underfoot.
f) It damped the wife’s trousers legs when she went to the rescue.
The Defendant’s Case
5. The facts were in dispute:
1. The cleaners would not have started their cleaning regime by the time the Claimant returned to his room after breakfast.
2. The cleaners do not do so because people can be expected to return to their rooms after breakfast and cleaning too early is pointless. The one thing parties do agree on is that there was no sign of a cleaners trolley on the corridor – which would have been there is the cleaners had started their routine.
3. Even if the cleaners had undertaken their cleaning by this time in the morning and even if they had not followed their customary system and dried off the floor (and there is no conceivable reason why they should not have done so), the floor would not have had a large amount of water on it – at worst it would have been damp and we are all used to damp bathroom floors.
4. Had the floor had a large amount of water the Claimant cannot but have noticed it before going in.
5. Unfortunately people do slip on tiled floors – happily few sustain any injury as a result.
6. Unfortunately this was not a case where the Defendant accepted the factual history given by the Claimant. He was (putting it mildly) not a reliable historian.
1. This accident was not reported at the time.
2. He gave a positively misleading history to the reporting doctor. (He never mentioned considerable problems with gout since at least late 2003) and he made no mention of the continuing significant problems with his left foot.
3. There was little objective verification that he ever had any injury to his right foot – merely his own complaints.
4. The sort of care he takes when giving a history was illustrated because he originally said he went to take a shower but changed that to say he needed to use the toilet.
5. He was prone to exaggeration – he said that the water “sploshed” when you walked on it (his son said water was splashing there was so much of it) as if someone had spilt a bucket of water on it. He also said he thought he was dying as a result of his injuries!
6. The doctor’s evidence was e.g. pain in both great toes for 8 years but lumbar spine moved quite freely as recently as August 2004 – which did not square with his allegation that between 2002 and 2004 he was unable to perform his “marital functions” due to a bad back caused by the accident.
7. He made no mention to the doctor of any one of a number of previous assaults that he had suffered any one of which might have damaged his back.
8. Although the claim appeared to have been reduced in value in a yet further amended Schedule of Loss, the P/C had been amended to increase the value of the action to £50K.
7. It is entirely possible that he slipped on the tiled bathroom floor – he would not be the first person to slip in such circumstances. So what?
Judgment
The trial judge formed the view that the Claimant had slipped in the bathroom and that it was probable as a result he had suffered some injury to his right foot and coccyx. She was not satisfied that the Claimant had proved that it was the Defendant’s or the Hotel’s fault.
The Claimant had not proved that the floor was awash with water it was more likely that it was wet simply due to the family’s early morning ablutions (although no one had by that stage taken a shower). Mrs. Laurenson wore long trousers that wiped the floor as she walked and that would explain why they were wet after she went to the rescue. Even if the cleaners had started their work that early in the morning it is very unlikely that they would have finished and the fact that no one saw a cleaning trolley on the corridor was indicative of the fact that they had not actually started cleaning at all. Any water on the floor was not likely to have been the fault of the cleaners or the Hotel. As a result there was no liability attaching to the Defendant.
Judgment for the Defendant.
Comment
The most interesting thing about this judgment is that in common with many of a similar ilk the judge stopped well short of any finding that the Claimant and his 2 witnesses were lying. It is difficult tot convey in writing the extent to which it was clear that this man was unreliable and unprepossessing as a witness he had signed 4 different statements of truth on different and inconsistent documents in the space of a few weeks and was prone to telling doctors one thing and solicitors another) – the inconsistencies in his evidence were myriad. Even so, the judge was content to conclude that he had “not proved his case” and that of course is good enough for any Defendant.
There is another lesson too which is more delicate. The family was Scottish and lived a considerable distance from their solicitors. The Claimant’s evidence had been taken on the telephone and signed by means of traveling drafts with various handwritten addenda thrown in by the witnesses themselves. This evidence gathering process may well be inevitable and unavoidable in modern litigation, but it is terribly dangerous. It often leads (on both sides) to witnesses just saying what they want without cross-referencing other documents in the case that illustrate that their stories are at least “not straight”. In a court room this begins to look like exaggeration or worse, lies and often does the Claimant down. Remember Nightingale? Wreford Smith?
PHILLIPA SPARKS v FIRST CHOICE HOLIDAYS AND FLIGHTS LIMITED
Ian Miller Writes:
This is yet another case which involved an unfortunate claimant slipping whilst on holiday abroad. The accident occurred on 1st April 2003 when she slipped and fell on a wet floor at the Victoria Resort Hotel, Playa Dorada in the Dominican Republic. She had entered into a contract with the defendant for a package holiday which was booked from 26th March 2003 until 9th April 2003.
The claimant’s version of the accident was that she went for a walk with her partner prior to lunch on 1st April 2003. For the first time on the holiday it rained from about 11.30 for a couple of hours. The claimant and her partner walked back to the hotel and arrived back at about 2.00pm. She passed the swimming pool area and entered the restaurant area. The side of the restaurant was open to the elements and so, she said, the floor had become wet. She slipped and fell on ceramic tile flooring. Her case was that at the time of the accident she had not seen a mat or any signs warning of the wet floor area and her evidence was supported by that of her partner.
The defendant’s version of events was that as a result of the rain caution signs had been placed in several places in the area between the swimming pool and the restaurant. In fact one of the caution signs was less than one metre from where Ms. Sparks slipped. There was also a permanent mat at the entrance to the restaurant.
The main thrust of the defendant’s argument at trial was that the claimant had adduced no evidence of the appropriate standard of care in the Dominican Republic and therefore the claim was bound to fail. Authority for this could be found in Wilson v Best [1993] 1 All ER 354, Codd v Thomson Court of Appeal (unreported) and Gibbs v First Choice Holidays & Flights Central London County Court (Unreported). The defendant also argued that in any event, even if the judge were to decide that the appropriate standard was the standard which would be applied in England and Wales this case would not succeed.
The judge found that the defendant had provided a permanent mat at one end of the open side to the restaurant. She also found that, contrary to the defendant’s evidence, tables and chairs were moved around by the hotel’s clientele and on this particular day this had opened up another avenue into the restaurant between the tables and chairs. The claimant and her partner entered the restaurant having seen friends and there was nothing to stop them from doing so. There was no mat where they entered and either no signs at all or signs which were so unobtrusive they could not be seen.
The judge held that the claimant should have expected the floor to be wet as it was open to the elements and had been raining. A warning sign would have made little difference and to have avoided the accident the hotel would have had to have erected a barricade across the open side of the restaurant. She found the case of Gibbs of most assistance and held that there was no evidence of local safety standards: she did not know what would be expected in the Dominican Republic in terms of warning signs. In any event she did not think it would have made much difference if the accident had happened in England and Wales: she would still have found against the claimant.
The danger for defendants in these cases is that the judge will respond to the argument that no evidence has been adduced as to foreign standards by saying that it has not been flagged up by the defendant as an issue before and that the trial can be adjourned for the claimant to obtain the evidence. The best approach for defendants is therefore to raise the issue in correspondence beforehand so that they cannot be accused of ambushing the claimant at trial. The other danger is that the claimant’s counsel will cross examine the hotelier from the Dominican Republic and try and persuade him or her to say that one would expect all hotels to put out such warning signs or mats and that this is therefore the local standard. In the case of Sparks this danger did not arise as the hotelier did not give oral evidence. The only way of dealing with this is to argue that the hotelier’s own opinion is no indication as to whether or not the absence of this or that measure would establish a case in a court in the Dominican Republic.
From the claimant’s point of view it is crucial not to fall into the elephant trap of thinking that because the contract was entered into in England or Wales the appropriate standard of care is that of these countries.
The other point which both parties often miss in these cases is what the appropriate implied term is in the contract for the package holiday. Defendants should be careful to admit no more than the term implied by section 13 of the Supply of Goods and Services Act 1982 and claimants should notice when a defendant does not do this and arguably admits a warranty as to the condition of the hotel.
The judge did not mention it in her judgment but she may have been subconsciously influenced by the fact that the alleged accident took place on 1st April.
NOT SO COMMON SENSE?
BARBARA HILTON
-and-
MYTRAVEL UK LIMITED
Trading as “AIRTOURS HOLIDAYS”
Manchester CC – 1 November 2005
Recorder Hodge QC
The Claimant claimed damages from the Defendant (a tour operator) as a result of suffering injuries when (on 13 June 2003 at about 7.20pm) she slipped on the restaurant floor of her package holiday hotel - the Palma Bay Club in Majorca.
The Claimant’s Case
The fault that was alleged is summarized thus :
• There was liquid on the restaurant floor.
• It should have been mopped up.
• The restaurant was allegedly under-staffed.
• The floor surface was not adequate.
• The Claimant was not warned.
The Defendant’s Case
The Defendant’s case can be summarised as follows:
• “It is for the plaintiff to show that there has occurred an event which is unusual and which, in the absence of an explanation, is more consistent with fault on the part of the (defendants) than the absence of fault.” [Megaw LJ in Ward v Tesco Stores Limited.
• In self-service restaurants people are not moving about with packaged or sealed goods – quite the contrary. Spillages will occur. Such an event is not unusual and when it happens or it is not more consistent with operational negligence.
• This was a self-service restaurant in operation at the time. We cannot know when the spillage occurred[5].
• The liquid was not obvious on the floor otherwise the Claimant would have seen it and avoided it. It is not likely to have been obvious staff either.
• The Claimant only noticed her clothes were wet afterwards as did her husband.
• The floor had a “Ston-Ker” non-slip coating. There is no evidence that suggests that such a coating is inadequate for normal usage in these circumstances – indeed there no evidence at all to support any contention that the floor was not up to scratch.
• There were 11 members of staff on duty in the restaurant at evening sittings. They react to spillages that they see or that are identified to them in a routine manner. The absence of any accident profile suggests that the systems actually works in practice.
• Spillages are bound to occur from time to time and short of having a dedicated “mopper-upper” on hand all the time (which one does not see in English self-service restaurants, and potentially causes as many problems as it solves in a confined space)) the staff can reasonably do no more. There is no reason to suppose that the provision of 12 or 13 (or however many) staff would have made any difference to the outcome here.
• Other guests at such a hotel are not helpless – and one can legitimately expect them to report to a member of staff when something is spilt on the floor if it is not witnessed by staff. Even if Mr. Hilton later saw spillages on subsequent visits (he had not noticed any before his wife’s accident) he does not appear to have reported such hazards to staff.
Judgment
The Judge was impressed by the evidence from Mr. and Mrs. Hilton to the effect that they had noticed spillages on the floor of this restaurant all the time and nobody came to clean them up. Whilst there was nothing wrong with the construction of the floor , the presence of a clear liquid on the floor was an unusual and unexpected state of affairs which placed an evidential burden on the Defendant to show that the Hotel’s system of dealing with the inevitable spillages was reasonable. On this occasion the evidence of the Claimant as above was clearly to the effect that the system was not good enough despite the fact that there had never been a previous incident of a similar type, and despite the fact that there was no record of any previous complaints by other tourists about the condition of the restaurant.
The Defendant’s failure to discharge the evidential burden (Ward v Tesco Stores) meant that there had to be judgment for the Claimant.
Comment
Two things about this case are worth noting apart from the result. The first is that the restaurant manager whose evidence was received under the Civil Evidence Act in writing stated in terms that he was the manager of a different restaurant at the same hotel! More importantly, the judge disallowed all the Claimant’s costs of obtaining Spanish legal expert evidence about the Spanish civil code and consumer law (rightly) on the grounds that such evidence was irrelevant and immaterial to the issues on the case – there being no Spanish technical standard breach of which had been alleged. Furthermore, the judge concluded that the Claimant’s attempted reliance on Spanish Consumer Law in which the burden of proof was reversed and the standard of care one of “all due diligence” was misplaced. First, in this type of case an evidential burden was cast on the Defendant in English law in any event. Secondly, Spanish procedural law and the Spanish substantive law as to the standard of care (due diligence) was irrelevant to a package holiday claim brought under the PTR 1992 as a matter of English law. Thirdly, the Defendant had made it plain in its Defence that if all that was intended in the P/C by reference to Spanish law was that the Hotelier had to exercise reasonable skill and care (the test under article 1.902 of the Spanish Civil Code), that made no difference to the application of the relevant standard in the present case. Finally, the fact that the District Judge had given permission to use a Spanish legal expert did not absolve the Claimant from exercising proper discipline in limiting its expert evidence to matters that were of relevance to the claim.
Maria Jones v MyTravel Plc
26 October 2005
Mr. Justice Bennett (Liverpool DR)
Talking of the “wrong restaurant” (see above) Maria Jones succeeded in her claim for damages for having tripped over a lumpy cobbled pavement at her Portuguese Hotel in hours of darkness despite the head receptionist’s giving “live” evidence to the effect that he had witnessed her fall; she was drunk and could hardly stand up. The judge believed all the witnesses including the head receptionist. The problem was that he was talking about a different accident altogether to someone else.
[pic]
ALICE BARLOW
-and-
THOMSON HOLIDAYS LIMITED
Recorder Hodge QC
3 & 4 October 2005
The Claimant claimed damages from the Defendant (a tour operator) as a result of suffering injuries caused by an apparently malfunctioning automatic sliding door at her package holiday hotel (Hotel Venus in Benidorm) on 9 November 2002. As she walked through the door which had opened for her, it closed on her knocking her to the ground. She fractured her right wrist and suffered various other associated injuries.
The Claimant’s Case
The fault that is alleged against the Defendant (or for which the Defendant is responsible) is set out at page 4 [Particulars of Claim].
a) D knew or ought to have known that the door was liable to close suddenly.
b) Failure to inspect or repair the automatic sensors controlling the door.
c) Failed to have sufficient number of sensors.
d) Failed to warn the Claimant of a risk of the doors closing suddenly.
The facts as described by the Claimant were not significantly in dispute. It also appears that some days later the doors did the same thing again - this was on 16 November and affected a Mrs. Russell holidaying with “JMC” at the Hotel.
The Defendant’s Case
An intermittent fault had developed that could not reasonably have been identified prior to the Claimant’s accident. There had been no pre-existing problem with these doors. Clearly they went wrong, but automatic equipment does from time to time without there being any fault on the part of a hotelier or tour operator. The problem was not known about and there was no reason to think that there might be a problem.
• The Claimant and her husband had been in residence for 4 days – and presumably used the doors before without incident, as had all other residents during that period.
• The doors were installed in about 1995 – about 7 years before the accident – and there are no known reported incidents of a similar nature (whether causing injury or otherwise) – even if there had been minor non-injury incidents that went unreported, these doors are part of a main thoroughfare in the Hotel and such incidents would not have gone unnoticed by staff.
• The Defendant’s staff conducted “unscientific” testing after the Claimant’s accident. They could not identify any problems[6] with the doors in the immediate aftermath of the accident.
• The above strongly points to an intermittent fault having developed. The expert engineer’s report considered an installation problem unlikely.
• The likelihood of an intermittent fault was further supported by the Claimant’s evidence as she sat and waited for the ambulance and watched the doors operating normally.
“Faults in these types of systems tend to occur without prior warning or manifestation of the condition. Where there is an intermittent fault, these are difficult to detect due to the lack of regular repeatability …” .
Judgment
There was no evidence to support the contention that either the Hotel or D could or should have been aware that a sudden intermittent fault was going to occur. The event had been unpredictable and therefore there was no failure on the part of the Hotel to exercise reasonable care, so there was no improper performance of the holiday contract. This was a regrettable accident. Judgment for the Defendant.
Comment
This Claimant too had gone to the trouble and expense of obtaining foreign legal advice about Spanish law – under the Civil Code and the Spanish Consumer Law. The judge (the same judge) ruled this was irrelevant to a case based on the PTR 1992 with reference to Swinton Thomas’ Judgment in Codd v Thomson (paras: 22-24) in which the CA held that these English cases were governed by English principles of “negligence” informed by foreign standards of care – not foreign “law”.
Lara Tanner & Others v TUI UK Limited, trading as Thomson Holidays (10 - 12 October 2005; judgment (on liability only) 18 October 2005. HHJ Karsten QC, Central London County Court).
On 9 November 2001, SS The Topaz, a cruise liner, sailed out of Palma Majorca. The charterers were Thomson Holidays and 1,000 passengers were on board. The vessel was scheduled to visit 5 ports in the course of a cruise that would end at Palma, Majorca on 16 November 2001. The contracted amenities and services, scheduled to be available on board, were set out in the Defendant’s brochure and included, among other things, open meal sittings, entertainment, 24 hour dining, table wines/draught lager/cocktails/brand name spirits, gala nights and the like. A variety of facilities were also scheduled to be available on board (eg. 3 restaurants, 4 bars, 2 lounges, discotheque, whirlpool, swimming pool, hairdresser and massage and so forth).
The Claimants’ enjoyment of their holidays was severely curtailed; the reason was some extremely rough weather conditions. A number of changes had to be made to the itinerary and 3 out of 5 scheduled ports of call were missed. The Topaz sailed through winds of force 8/9 and upwards (including some Beaufort force 12 weather off Barcelona). The Claimants were on board the Topaz uninterruptedly for a period of 56 hours after missing ports of call through rough weather. The rough weather also affected the amenities/services on board. A large number of passengers were violently seasick and unable to leave their berths and, during the especially rough weather, announcements were made to passengers that they should not leave their cabins unless they had a good reason for doing so.
The Lara Tanner passengers sued the tour operator for their spoilt holidays (or, at least, around 240 of them did so). It was common ground that the Claimants’ holidays were “packages” within the meaning of regulation 2(1) of the Package Travel etc. Regulations 1992. The Claimants relied on two causes of action (both framed in contract): (a) the mandatory implied contractual term contained in regulation 14 of the Package Travel etc. Regulations 1992; and, alternatively, (b) breach of the implied term to exercise reasonable care and skill (derived from section 13 of the Supply of Goods and Services Act 1982) giving rise to liability on the part of the Defendant tour operator for the negligence of its suppliers, their sub-contractors, servants or agents (regulation 15(1) and (2) of the 1992 Regulations): the “negligence” cause of action.
Both parties relied on expert evidence with respect to the negligence cause of action. The Claimants’ case on this issue was that the severe weather conditions were clearly forecast and that the Master of the Topaz was negligent in sailing into a forecast force 10/11 storm on route to Barcelona. There was an additional, subsidiary, allegation that the Master had failed to make sufficient use of the vessel’s stabilizers while on route to Italy at the start of the cruise. These issues were resolved in the Defendant’s favour at trial (on the basis that the trial Judge was reluctant to second guess the decisions made by the Master and on the basis that he preferred the Defendant’s expert evidence in any event). A reserved judgment was given on 18 October 2005. The Judge commenced by construing the Defendant’s booking conditions and the conditions of carriage. The Judge concluded that the Defendant had successfully drafted its booking conditions so as to reserve the right to alter the scheduled itinerary of the cruise holiday in the event of adverse weather, but had not succeeded in achieving the same result with respect to alterations made to the services/amenities on board. The Judge went on to consider the parties’ arguments with respect to regulation 14. He concluded that it made no difference to the application of regulation 14 that the Defendant sought, in its booking conditions, to qualify its performance/provision of these services. Defining the circumstances in which services were to be provided did not, on a fair construction of regulation 14(1), prevent these from being “services contracted for”. It was accepted that regulation 14 does not require there to have been any breach of contract before its provisions take effect (it was conceded by the Defendant that regulation 15(2) had no application in the context of a case brought under regulation 14). Having reached this conclusion, the Judge decided that the cumulative effect of failing to visit 3 out 5 scheduled ports and the loss of amenities/services on board constituted a failure to provide a significant proportion of services. The Judge went on to find that, in the circumstances, the Defendant had made suitable alternative arrangements, at no extra cost to the consumer, for the continuation of the package. This left a final issue: namely, whether it was “appropriate”, within the meaning of regulation 14(2), to “compensate the consumer for the difference between the services to be supplied under the contract and those supplied.” The Judge’s conclusions on this issue were that it was necessary to consider the circumstances leading to the need to make suitable alternative arrangements. Here, it was adverse weather that caused the shortfall in what was promised and it was weather which occurred through no fault of the organiser of the holiday. It would be quite wrong to expect the tour operator to provide compensation in those circumstances. A person taking a cruise holiday, the Judge concluded, takes the risk of the weather conditions. The Claimants’ claims were, accordingly, dismissed and permission to appeal was refused.
An article in which this case is considered at greater length, and from both a Claimant and Defendant perspective, is forthcoming in the International Travel Law Journal.
FOOD POISONING DAMAGES
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Awards for general damages in food poisoning cases – an overview (SARAH PRAGER writes)
In recent times, it has seemed to some of us that awards for pain, suffering and loss of amenity in food poisoning cases have been increasing exponentially. In the last year or so, awards of £15,000 or £20,000 have been becoming relatively common. It was not always so; in fact, the Designated Civil Judge for Birmingham commented (in the 2004 case of Ryan v Thomas Cook) that the older cases on food poisoning are now so out of date that they are not to be relied upon (and we have to bear in mind that it is only since 2002 that food poisoning has only been considered by the Judicial Studies Board to be important enough to warrant a guideline bracket of its own). Since that time, Kemp & Kemp has been extensively updated and the older cases have been expunged from the record. The oldest case now in the food poisoning chapter of Kemp & Kemp is that of Holly v Mario’s Restaurant (Southport), which was decided in 1998. However, there is no shortage of more recent authorities favourable to the Claimant (although there does seem to be a lack of comparators advantageous to the Defendant).
I have undertaken a review of cases reported in Kemp & Kemp, Current Law and our own TATLA newsletter in the past few years, and can report that the grumblings of Defendants’ Counsel appear to be justified; the average award for damages for pain, suffering and loss of amenity in food poisoning cases seems to have increased greatly in the last 5 years, even allowing for fluctuations. The results of my review are set out in the graph below, which shows the average awards in each year reviewed (awards have been updated to today’s values using the retail price index). For reasons which I cannot begin to guess at, no cases involving food poisoning were reported in 2003 in any of the publications I looked at. On the other hand, 2000 and 2001 were bumper years, and 2005 seems set to be equally awash with diarrhoea and vomiting.
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A sample of reported cases will illustrate the trend. In the 2000 case of D v Sainsbury, the 5 year old Claimant was awarded £1,410 for a nasty episode of gastroenteritis, which exacerbated her pre-existing diabetes. Her condition was not stabilised for some 4 weeks. In the 2001 cases of Munden v Rising Star Travel Limited the Claimant was awarded £4,130 for symptoms of salmonella poisoning which led to her hospitalisation for 6 days, and which remained acute for 3 months, after which symptoms became intermittent. Even 2 years and 4 months after her holiday she was still suffering from symptoms.
The increase in awards started with Potter v Airtours, in which the Claimant was awarded a whopping £28,450 after suffering some admittedly unpleasant symptoms, including haemorrhoids and intermittent incontinence. As a result, she had undergone surgery 4 times, but symptoms persisted and the prognosis was guarded.
A brief respite from the onslaught of large awards came in 2004 in the case of Ryan v Thomas Cook, in which, unusually in this field, the judge found that the Claimant had exaggerated his symptoms (how did the judge know? The mind boggles). Notwithstanding the fact that the judge found that Mr Ryan had initially suffered from severe symptoms, and continued to suffer from permanent ‘minimal’ discomfort, he was awarded the relatively ungenerous sum of £6,020.
It didn’t last. More recently, regular readers will recall the substantial award made in Doree v First Choice, and in Jones v First Choice the trend continued. In a case in which I was recently involved, a lady who had gone on a holiday in order to get married, but who had contracted cryptosporidium the day before the wedding, was awarded £20,500. It has to be said that she had been diagnosed as suffering from irritible bowel syndrome, which would be permanent. On the other hand, she was able to hold down a demanding job as a prison officer in a category B prison, and her symptoms were variable in the extreme. The judge placed much emphasis on the fact that she had suffered from symptoms on her wedding day, and rejected the submission that since she had divorced her husband for unrelated reasons, she could always marry someone else and have another, unpoisoned, wedding day. To add insult to injury, he awarded the Claimant £4,000 for loss of enjoyment, although the ‘holiday of a lifetime’ had only cost £866 per person.
These cases suggest that something rather strange is happening. It is true that awards in this area are increasing generally (the Claimants in D and Munden could expect much higher awards if their cases were being heard now), but, more mysteriously, people seem to be suffering from more, and worse, food poisoning than prior to 2000. One possible explanation for this is that in the age of intrusive reality TV, people are much less embarrassed about discussing their bodily functions with lawyers and doctors. Or it may be that holidaymakers are travelling further and to countries whose hotels place less emphasis on issues of food safety and hygiene. One thing seems clear, however; whatever the explanation for it, the trend for higher awards for general damages in food poisoning cases shows no signs of abating.
APPENDIX 1
|EXCURSION VOUCHER |This Excursion is sold to you by Cosmick Holidays Plc as agents |
| |for the excursion provider who is: |
| | |
| |…………………………………………………… |
|NAME OF EXCURSION/DATE | |
| | |
|NAME OF PERSON BOOKING | |
| | |
|NUMER OF PERSONS | |
| | |
|PRICE | |
|Signed……………………….(Tourist) |Please read carefully. Because you are buying this excursion from|
| |us as agents in resort this excursion is not part your package |
|Signed……………………….(as agent for excursion provider) |holiday and Cosmick Holidays are not responsible for its |
| |provision or anything that happens during the course of its |
| |provision by the provider with whom you are making this contract.|
-----------------------
[1] The Defendant, Titan.
[2] The Claimant.
[3] That is to say pre-arranged at the time the holiday contract was made in the UK
[4] So reference to the County Court authorities is within the ambit of clause 6 of the Citation of Authorities Practice Direction.
[5] Ward v Tesco Stores Ltd. [1976] 1 All ER 219 and its “antedote” Moore v Thomson Holidays (transcript) 2002.
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