Lougheed v on The Beach Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Floyd,Mr Justice Ouseley |
| Judgment Date | 27 November 2014 |
| Neutral Citation | [2014] EWCA Civ 1538 |
| Docket Number | Case No: B3/2014/0556 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 November 2014 |
[2014] EWCA Civ 1538
Lord Justice Tomlinson
Lord Justice Floyd
and
Mr Justice Ouseley
Case No: B3/2014/0556
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
Mr Recorder Giles Harrap
2YJ72738
Royal Courts of Justice
Strand, London, WC2A 2LL
Sarah Prager (instructed by Travlaw LLP) for the Appellant
Theo Huckle QC and Andrew Arentsen (instructed by Leo Abse & Cohen Solicitors) for the Respondent
Hearing date: 23 October 2014
The Appellant, On The Beach Limited, ("On The Beach") describes itself as a travel agent but Mr Recorder Giles Harrap sitting in the Winchester County Court decided by his judgment delivered on 31 January 2014 that it was the "organiser" of a holiday package as defined by The Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992 No. 3288 ("the Regulations") sold by it in August 2009 to Mrs Cheryl Barton. The package consisted of flights and accommodation for a party of five. The flights were provided by Ryanair. The accommodation was at the H Top Royal Star Hotel in Lloret de Mar, Spain. The party included Mrs Barton's nine year old daughter Connie and her seventy-two year old mother Mrs Valerie Lougheed, the Respondent. Mrs Barton was therefore, in the language of the Regulations "the principal contractor" and Mrs Lougheed was a "consumer", a person on whose behalf the principal contractor agrees to purchase the package.
The party flew to Spain on 14 August 2009. On the morning of 16 August Mrs Lougheed slipped and fell while going down a flight of polished granite steps which had non-slip grooves cut into them. At the time Mrs Lougheed was holding on to the handrail on her side of the steps with her left hand. The judge found, resolving disputed evidence, that she had slipped on a patch of water on the steps.
Mrs Lougheed suffered a fracture dislocation of her right ankle, a fracture of the left shoulder and bruising to her lower back and bottom. It was agreed that if On The Beach was liable to her in respect of her loss, her damages in respect of her injuries and consequential financial loss should be quantified at £30,000. Mrs Lougheed contended that On The Beach was liable to her pursuant to paragraph 15(1) of the Regulations which provides:-
"15. – Liability of other party to the contract for proper performance of obligations under contract
1. The other party to the contract is liable to the consumer 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."
Mrs Lougheed contended that the circumstance that water was deposited on the steps and/or allowed to remain there until she slipped upon it was indicative that the hotel had not exercised reasonable skill and care in the discharge of its obligations owed to her. That, she said, cast upon On The Beach an evidential burden to adduce evidence of the exercise of reasonable skill and care directed towards the avoidance of the steps becoming and/or remaining wet.
The Recorder found that Mrs Lougheed had "sufficiently proved her case" [51]. In consequence he awarded her £30,000 damages. Contributory negligence was apparently not pressed, notwithstanding Mrs Lougheed's evidence that she "didn't look at the staircase to see if it was wet or dry". The Recorder himself gave On The Beach permission to appeal.
It was common ground at trial that the Appellant is liable if the contract was not performed with reasonable skill and care in accordance with local standards, a proposition derived from the decision of Phillips J, as he then was, in Wilson v Best Travel Limited [1993] 1 All ER 353, a decision followed and applied on numerous occasions including in this court.
The Grounds of Appeal are that the trial judge was wrong as a matter of law to find that the hotel was in breach of local standards, because the Claimant had failed to adduce evidence of local standards and:
a) the judge wrongly relied upon the evidence of the hotelier as evidence of local standards;
b) the judge was wrong as a matter of law to find that the Defendant bears any evidential burden of proof in cases of this nature.
Somewhat unexpectedly Mr Theo Huckle QC, who appeared for Mrs Lougheed on the appeal, contended, insofar as I understood his submissions, that the issue of local standards was here a distraction, because local standards are not determinative of the issue, and that the court may conclude that compliance with local standards amounts nonetheless to a failure to exercise reasonable skill and care. This approach was triply unexpected bearing in mind the common ground at trial, the lack of any Respondent's Notice and the circumstance that it did not feature in the skeleton argument prepared by Mr Arentsen for use on the appeal. Miss Sarah Prager, for On The Beach, who has very considerable experience in this area of law, assured us that this was an argument never heretofore advanced in this field.
Wilson v Best Travel was a case concerning the contractual liability of a tour operator under s.13 of the Supply of Goods and Services Act 1982. The Greek hotel at which the plaintiff stayed had glass patio doors fitted with ordinary glass, not safety glass, of 5mm thickness, which complied with Greek but not with British safety standards, which would have required the use of safety glass. In an oft-cited passage Phillips J said, at page 358:-
"What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, in so far as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question. On the facts of this case I do not consider that the degree of danger posed by the absence of safety glass in the doors of the Vanninarchis Beach Hotel called for any action on the part of the defendants pursuant to their duty to exercise reasonable care to ensure the safety of their clients."
That case was concerned with safety regulations, as opposed to the standards adopted in routine maintenance and cleaning in order to ensure the safety of hotel guests. In principle however one would expect a common approach to both. Standards of maintenance and cleanliness vary as between countries and continents and indeed what is reasonably to be expected in a five star hotel in a Western European capital differs from what is reasonably to be expected in a safari lodge, however well-appointed. There may perhaps be certain irreducible standards in relation to life-threatening risks, but to expect uniformity of approach on a matter such as the frequency of inspection and cleaning of floor surfaces is unrealistic. An Englishman does not travel abroad in a cocoon.
Holden v First Choice Holidays and Flights Ltd 22 May 2006, unreported , was a case decided by Goldring J, as he then was, under the Regulations. Mrs Holden fell down some stairs in a hotel in Tunisia. It was found that she had slipped on some spilt liquid, probably a spilt drink. The question arose as to the standards to be required of the hotelier and whether a member of staff was required to be stationed to monitor spillages on the staircase. The judge held that the duty of care was that set out by Phillips J in Wilson v Best Travel. He held that it was for the claimant to prove that the defendant fell short of the standards applicable in Tunisia. The claimant had adduced no evidence of such standards and there was no material before the court on the basis of which inferences could be drawn as to the content of those standards. The Recorder in the court below had drawn inferences as to the standards applicable from evidence concerning the care received by the claimant in hospital in Tunisia, and from evidence as to the standards applied by another company in another hotel. Goldring J rejected that approach. At page 11D he said this:-
"It does not seem to me that one can infer a local standard from what may well be a higher standard in a particular hotel or by a particular company in particular circumstances. It is no substitute for evidence of what is local custom and what may be the local regulations."
In Evans v KosmarVilla Holidays [2008] 1 WLR 297, a case decided under the Regulations, Richards LJ, with whom the other members of this court agreed, cited the passage above from the judgment of Phillips J in Wilson v Best and observed:-
"23. A claim such as that in Wilson v Best Travel Ltd would no doubt be put differently under the 1992 Regulations: since the tour operator is...
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