Mr Philip James Clay v TUI UK Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hamblen,Lord Justice Moylan,Lord Justice Kitchin |
| Judgment Date | 23 May 2018 |
| Neutral Citation | [2018] EWCA Civ 1177 |
| Docket Number | Case No: B3/2016/1856 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 May 2018 |
[2018] EWCA Civ 1177
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CARDIFF COUNTY COURT
HIS HONOUR JUDGE SEYS LLEWELLYN QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Kitchin
Lord Justice Hamblen
and
Lord Justice Moylan
Case No: B3/2016/1856
Robert Weir QC and Bryan Thomas (instructed by Slater & Gordon) for the Appellant
Mr Ronald Walker QC (instructed by Miles Fanning Legal) for the Respondent
Hearing date: 17 April 2018
Introduction
The appellant, Mr Philip Clay, brought a claim for damages for personal injury against the respondent, TUI UK Limited. The appellant's injury was suffered when he fell from a balcony at the hotel Guayarmina Princess, Tenerife (“the hotel”), where he and his family had gone on a package holiday booked with the respondent.
The appellant's claim was dismissed following a trial on liability before HHJ Seys Llewellyn QC in Cardiff County Court. In his reserved judgment dated 7 April 2016 the judge found that the appellant's claim failed as a matter of causation. It is against that finding that the appellant appeals. There is also an issue between the parties as to whether the judge made a finding of breach of duty and, if he did, the respondent challenges that finding by Respondent's Notice.
Factual and Procedural Background
In July 2011 the appellant, together with his family including his wife, their two sons (then aged 11 and 14), and his parents, went on a package holiday to the hotel provided by the respondent.
The appellant together with his wife and children occupied Room 358 which adjoined his parents' Room 357. Each room had its own balcony, accessible from the rooms via a sliding door which could be locked. These balconies were offset from each other. Underneath each balcony was a ledge. Between Room 358 and 357 there was a gap of 78 cm between the ledges, a gap of more than 123 cm between the exterior of the balconies, and a considerably larger gap between the inside to the handrails of the balconies. Rooms 357 and 358 were two storeys up with a drop of around 20 feet to the terrace below.
At around midnight on 20 July 2011, the appellant returned from dinner with his family and settled his children in bed for the night. At about 1am, he and his wife joined his parents on their balcony for a drink. Before leaving, they told their elder child where they were going and left the door to the balcony of Room 358 closed, but not locked, in case the children needed them.
After joining his parents on their balcony, the appellant went back into their room to use the bathroom. Upon returning to the balcony, he closed the door in order to prevent insects entering the room. The family described hearing a ‘clicking’ sound as the door closed and realised that it had inadvertently locked, trapping them on the balcony.
After trying without success to attract attention for about 30 minutes, the appellant endeavoured to step across from the balcony of Room 357 to that of Room 358. In doing so, he stood on the ledge underneath the balcony. The ledge gave way and he fell to the terrace below and was seriously injured, fracturing his skull. Fortunately, he has made a good recovery since.
The appellant brought a claim for personal injury against the respondent, relying on the the Package Travel, Package Holidays and Package Tours Regulations 1992. Under these regulations the respondent was liable to the appellant for the proper performance of the obligations under the contract, irrespective of whether those obligations were to be performed by the package travel holiday company, or by the hotel in Tenerife.
There was a 3 day trial before the judge in February 2016, at which both parties were represented by leading counsel.
At the trial the judge received factual evidence by witness statement and orally from the appellant, his wife Valerie Clay, and his parents Kenneth and Patricia Clay; and on behalf of the respondent factual witness evidence by witness statement and orally from Jose Luis Lima Dorta (Assistant Reception Manager at the hotel), Juan Carlos Garcia Martin (an architect/building surveyor/engineer for Princess Hotels in the Canary Islands), and Jesus Daniel Fuentes (Head of Maintenance at the hotel). Witness statement evidence was also received from the following witnesses whom the appellant did not require to be called: Maria De La Paloma Juliana Campomanes (hotel receptionist at the hotel that night); Juan Jesus Valencia Barrios and Jose Angel Gonzales Flores (security guards working at the hotel that night), and Enrique Aleman (a valet at the hotel in 2011).
The judge also received expert evidence on technical matters in written reports, a joint written statement and orally from Mr D Guillermo Mesas, instructed by the appellant, and from Mr Alvaro Montoya instructed by the respondent.
It was agreed that the respondent's liability fell to be judged by reference to standards local to the hotel in Tenerife – see, for example, Lougheed v On the Beach Limited [2014] EWCA Civ 1538.
The claim was brought on the basis that the respondent was liable for breaches of local standards by the hotel, namely: “(i) by failure to maintain the facilities, and in particular to maintain the lock to the sliding door, in its original and proper condition; (ii) in that the ledge on which the Claimant stepped was part of the overhanging balcony but was insufficient to hold his weight; and/or (iii) in that the hotel did not inform the Claimant of a potential risk within the premises, and about the safety measures adopted” [8].
The respondent denied breach of duty and contended that the appellant's act in climbing over the balustrade of the balcony of Room 357 so as to step across the gap to the balcony of Room 358 was “so unexpected and/or foolhardy as to be a novus actus interveniens” [19].
The judgment
The judge found that there was no breach of local standards in relation to the ledge on to which the appellant stepped. It was not required by applicable regulations or local construction practice to be weight bearing. The judge found at [76] that:
“….The standard here in question does not recognise expressly or impliedly that compliance with it may be insufficient. There is no other evidence that the construction or weight bearing capacity of this cornice failed to meet local standards. Just as there was no evidence of prior incident similar to that which befell the Claimant, whether at this hotel or at another in the Princess group or in the Canary Islands or Spain more widely, so also there was no evidence of a prevailing practice to construct a cornice with reinforced concrete such as would bear the weight of a person, or even illustration of it at other hotels or buildings…”
This finding is not challenged on appeal.
The judge also found that there was no breach of local standards in failing to give a warning that the ledge was not weight bearing or that guests should not attempt to jump or step across from one balcony to another. He found as follows at [121]–[122]:
“121. The case for the hotel is that there was no evidence of this being attempted in this large hotel of over 500 rooms, over 22 years of operation, or in any other hotel in the group, and that it was such a foolhardy act in the eyes of any reasonable hotelier that it was beyond sensible contemplation, or beyond contemplation as a risk which required warning: ‘the hotel could not reasonably have foreseen that anyone would attempt to walk on those ledges’.
122. In my judgment the “sooner or later” argument would be easier to present in like circumstances in the case of a claim in negligence at common law in England and Wales. First, I accept above that it was not unusual in the Canary Islands to find decorative features to balconies such as the present. Second, I have no evidence other than statement of his opinion by Mr Mesas (without supporting evidence) that failure to give such warning in relation to the ledge or cornice was inconsistent with local practice or local recognition of that which was required. Third, in the present case, the expert evidence of Mr Montoya runs against recognition of an obligation to warn in respect of the cornice, and he was easily the more impressive of the two expert witnesses whom I heard. Fourth, and contrary to my extreme sympathy for the Claimant, I find it difficult to accept that those responsible at a hotel in the Canary Islands should have foreseen that a guest would climb onto the outer ledge. For these reasons above, I find myself unable to conclude that under local standards that warning in respect of the fragility of the cornice was reasonably demanded under Article 18 of the Ordinance.”
This finding is also not challenged on appeal.
On the appellant's case the judge did, however, find that the locking mechanism of the sliding door in Room 357 was defective in breach of local standards and that the respondent was accordingly in breach of duty. This is disputed by the respondent.
On any view, the judge found that the claim failed as a matter of causation and this is the central issue on the appeal.
The judge described the novus actus interveniens defence in the following terms at [19]:
“The Defence pleads the exception to liability under the Regulations by Regulation 15(2)(c), that the travel company shall not be liable if any failure to perform the contract is due to unusual and unforeseeable circumstances beyond the control of the travel company, or an event which the travel company or the hotel even with all due care could not foresee or forestall. At trial, in skeleton argument and in submissions, this is put in more general terms that even if breach of contract or negligence were...
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