ALAN SAGGERSON
8 DECEMBER 2005
By kind permission of DAVIES ARNOLD COOPER
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. . ."
1
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;
The Claimant’s judgment was impaired by alcohol;
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.
The Claimant could not prove he had slipped on a deficient tile.
(ii)
(iii)
(iv)
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
2
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
3
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)
(ii)
(iii)
The clause excluded liabilities arising as a result of Cosmos’ “default”.
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.
“Default” in this sense would not necessarily mean that Cosmos had been
“negligent”.
4
(iv)
(v)
(vi)
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.
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.
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.
5
EXCURSIONS; AGENTS & EVIDENCE
QUEEN’S BENCH DIVISION
B E T W E E N:
CYNTHIA ANN MORAN
Claimant
-andFIRST CHOICE HOLIDAYS AND
FLIGHTS LTD.
-andJOHN MORAN
___________________________________
Defendant
First Part 20 Claimant
Part 20 Defendant
JUDGMENT
___________________________________
1.
This claim is brought by Cynthia Moran, the claimant, for damages for injuries and loss
resulting from an accident which occurred on 3 rd 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.
4.
Issues
In his opening Mr Pusey, counsel for the claimant, identified the issues agreed between the
parties:
What was the cause of the quad bike accident?
Was the defendant acting as principal to excursion contract or as undisclosed agent for a
principal to the contract?
Was the defendant acting as disclosed agent for the providers of the excursion?
A subsidiary issue: did Mr. Moran’s driving contribute to the accident?
i)
ii)
iii)
iv)
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
6
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 3 rd 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.’
7
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
8
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:
1)
documentation provided by the defendant;
2)
the manner in which the earlier safari excursion was dealt with and performed;
3)
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.
9
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.
c)
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
10
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.
11
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 contract1 is liable to the consumer2 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;
1
2
The Defendant, Titan.
The Claimant.
12
“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.
13
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:
8.1
8.2
8.3
8.4
8.5
8.6
The canoe trip simply was not part of a “pre-arranged”3 combination
of qualifying components.
The excursion was optional so people on the package holiday could
take it or leave it as they wished.
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.
The excursion falls outside the scope of the regulated package holiday.
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.
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
3
That is to say pre-arranged at the time the holiday contract was made in the UK
14
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.
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?
4
So reference to the County Court authorities is within the ambit of clause 6 of the Citation of Authorities
Practice Direction.
15
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.
16
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.
POTHOLES
IN THE STOKE-ON-TRENT COUNTY COURT
JEAN THOMSON
-andTHOMSON 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
17
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,
18
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 ‘frontline’ 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
19
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
5.
Brochure Terms and Conditions
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’.
20
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
21
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.
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
22
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.
23
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
24
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.
25
WELL FANCY THAT!
Matthew Chapman writes:
Sarah Prager writes:
Ethel Olbison v TUI UK Limited, trading
as Thomson Holidays (Multi track trial,
Manchester County Court, 27 October
2005, HHJ Holman)
Olbison v TUI UK
This matter concerned a slipping accident
which took place on 20 September 2002 at a
time when the Claimant was on a package
holiday to Gran Canaria, Spain. The Defendant
was the tour operator for the holiday.
Accommodation was provided at the Gran
Canaria Princess Hotel, Playa del Ingles, Gran
Canaria. The Claimant was 80 years of age at
the time of the accident. She arrived at the
Hotel with her husband on 19 September 2002
and they were allocated room no 247. This was
their first time at this Hotel and they were
generally pleased with the standard of
accommodation which comprized a bathroom,
2 single beds and a balcony. The accident
happened during the evening of 20 September;
the precise time was not clear. Prior to the
accident the Claimant was lying on her bed for
a rest and her husband had left their room to
do some shopping at a local supermarket.
There was a bedside cabinet adjacent to the bed
(close to the pillow). The cabinet was topped
with a sheet of glass and a lamp and telephone
were placed on the cabinet. The beds were
quite low to the ground. The floor of the
Claimant’s room was constructed of smooth
ceramic tiles. In the space between the 2 beds a
rug or mat was placed loosely on the tiled floor.
There was no rubber or non-slip grip on the
underside of the mat and it was of a normal
carpet weave. The Claimant could not recall the
circumstances of her accident; she recovered
consciousness in an hospital bed. The Claimant
was found by her husband after the accident
and he described seeing the bedside mat which
had moved to the end of the bed near the
dressing table. He found the Claimant lying
unconscious in a pool of blood between the 2
beds. The accident was reported and the
Claimant was taken to hospital. When the
Claimant’s husband later returned to the room
he found that the mat had been removed (a
replacement mat was later provided). The glass
from the top of the bedside cabinet had broken;
he assumed that this was where his wife had hit
October 27th 2005, HHJ Holman
(Manchester County Court).
ANOTHER TRIUMPH FOR COMMON
SENSE
The Facts
In September 2002 Mr and Mrs O, an elderly
couple, took a package holiday in Gran Canaria.
On arrival at their hotel, they were pleased with
their accommodation and found the hotel staff
generally helpful and the hotel well run. Their
room was furnished with two single beds and,
placed on the tiled floor between them, a
bedside rug. An ominous note was struck when
Mr O slipped on the rug and fell back onto one
of the beds, but he ‘thought nothing of it’, and
did not tell his wife of the incident.
In the evening of 20th September Mr O went to
the supermarket to get some drinks so that the
couple could sit out on their balcony and watch
the hotel entertainment. Meanwhile, Mrs O lay
down on one of the beds for a nap. When Mr O
returned about 20 minutes later, his wife was
not on the bed where he had left her, and the
bedside rug was lying crumpled at the foot of
the beds. Further investigation revealed Mrs O,
also lying crumpled between the beds,
unconscious. She was taken to hospital and was
found to have sustained remarkably few
injuries in the circumstances; but she couldn’t
remember what had happened after she lay
down for her nap. Nevertheless, Mr O came to
the conclusion that she must have slipped on
the bedside rug, and fallen, causing the rug to
crumple as she did so.
It appears that whenever Mrs O subsequently
put in an appearance in the public areas of the
hotel, more English holidaymakers told her
that they, too, had slipped on their bedside
rugs, although none of them had actually fallen.
Nor had they complained to the hotel manager,
who gave evidence that there had never been a
similar accident at the hotel. He also said that
rugs such as those in his hotel were extremely
commonplace in Gran Canaria (and, indeed, it
26
her head. The radio in the front of the bedside
cabinet had been dislodged. The damage to the
bedside cabinet was replaced.
The Claimant’s case was that she slipped on the
mat placed between the single beds, fell to the
floor and suffered injury as a result. She invited
the Court to reach this conclusion as a fair
inference on the balance of probabilities.
There was expert evidence from a Spanish
lawyer which established that, while there was
a duty (expressed in statute), to furnish an
Hotel room with one or two bedside rugs, there
was no directive to govern the slipperiness or
otherwise of the rug. There was no Spanish
equivalent of the British standard guidance on
acceptable and unacceptable coefficiencies of
friction. The appropriate Spanish safety
framework was based on negligence/delict: a
general duty on the part of an occupier to take
reasonable care and skill. Both parties obtained
expert engineering evidence with respect to the
slipperiness or otherwise of the relevant rug
(the Defendant obtained permission to rely on
an expert report which it had already
commissioned and the Claimant obtained
permission to rely on expert evidence in
response to this). Neither expert visited the
Hotel and they were not provided with a
sample tile from the room occupied by the
Claimant. They carried out slip resistance tests
using a sample rug supplied by the Hotel on
tiled surfaces which approximated 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 that which was in the
Claimant’s room. In the circumstances the
expert evidence was, effectively, irrelevant. The
Judge was critical of the failure by both experts
to indicate to those instructing them that they
could not provide useful expert assistance given
that they were unable to test the relevant rug
on the relevant tiling (this criticism found
expression in an order that there be no order as
to the costs of and incidental to the expert
engineering evidence).
The issues at trial were (1) how the accident
happened; and (2) if the rug was causative,
whether the rug, when placed on the floor,
created a slipping hazard. The Claimant’s
husband’s evidence was that he had slipped on
the index rug and fallen to the floor before his
wife’s accident (although he had suffered no
injury and made no report or complaint). The
Defendant’s evidence was that there had been
no other accidents or complaints involving any
of the rugs at the Hotel (although there was no
was established that hotels in the region are
required to provide a bedside rug in uncarpeted
bedrooms).
The parties instructed chartered engineers to
provide their expertise in relation to the friction
co-efficiency of the rugs on the flooring in
question, but since neither expert inspected the
relevant flooring, and both were inadvertently
provided with a rug of totally different
character to that on which Mrs O slipped, their
evidence was not terribly helpful.
The Claim
Mrs O brought an action against TUI for
damages for personal injury and consequential
losses. She claimed that, on the balance of
probabilities, she had fallen as a result of the
fact that the rug, when placed on polished tiles,
was inherently dangerous and constituted a
slipping hazard. The Defendant contended that
it could not be shown how the accident had
taken place, but even if it had occurred because
of the presence of the rug, the hotel had
complied with local standards and the
Defendant was therefore not liable for the
accident.
The Designated Civil Judge held that Mrs O
had failed to satisfy him that the accident had
occurred as a result of her slipping on the rug,
and that even if she had slipped, she was
unable to prove that the rug was unreasonably
slippery by reference to local standards.
The full reasoned judgment is not yet available;
but it seems that the judge accepted the
Defendant’s contention that there were any
number of ways in which the accident could
have taken place, and it was simply not possible
to say that it was more likely that Mrs O had
slipped on the rug than that, say, she had had a
funny turn and fallen, dislodging the rug as she
fell. The judge also seemed impressed by the
evidence of the hotelier that hotels all over
Gran Canaria have this sort of rug/floor setup
in all their bedrooms.
27
disclosure to support this assertion).
The Judge held (1) he was not satisfied, on the
balance of 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.
3.1
3.2
3.3
3.4
3.5
Can the Claimant be relied on?
Why did the Claimant slip and fall?
Was it due to a “bucket” of water on the floor?
If it was, how come the water was there?
Did he sustain any injury?
28
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:
5.1 The cleaners would not have started their cleaning regime by the time the
Claimant returned to his room after breakfast.
5.2 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.
5.3 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.
5.4 Had the floor had a large amount of water the Claimant cannot but have
noticed it before going in.
5.5 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.
6.1 This accident was not reported at the time.
6.2 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.
6.3 There was little objective verification that he ever had any injury to his
right foot – merely his own complaints.
6.4 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.
6.5 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!
6.6 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.
29
6.7 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.
6.8 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.
30
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
31
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 1 st April.
NOT SO COMMON SENSE?
BARBARA HILTON
-andMYTRAVEL 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 occurred5.
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.
Ward v Tesco Stores Ltd. [1976] 1 All ER 219 and its “antedote” Moore v Thomson Holidays (transcript)
2002.
5
32



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 selfservice 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)
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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.
ALICE BARLOW
-andTHOMSON 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.
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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
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(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
36
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.
30000
25000
20000
15000
10000
5000
0
2000
2001
2002
2003
2004
2005 (to
date)
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
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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
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PRICE
Signed……………………….(Tourist)
Signed……………………….(as
excursion provider)
agent
for
Please read carefully. Because you are buying
this excursion from us as agents in resort this
excursion is not part your package 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.
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