Tui UK Ltd v Lynn Morgan
| Jurisdiction | England & Wales |
| Judge | Mr Justice Marcus Smith |
| Judgment Date | 09 November 2020 |
| Neutral Citation | [2020] EWHC 2944 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No E62YX151 |
| Date | 09 November 2020 |
[2020] EWHC 2944 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS IN WALES
CHANCERY APPEALS
On appeal from the order of His Honour Judge Jarman, QC, sitting in the County Court at Cardiff, dated 23 June 2020
The Cardiff Civil Justice Centre
2 Park Street
Cardiff CF10 1ET
THE HONOURABLE Mr Justice Marcus Smith
Case No E62YX151
Appeal No CF036/2020CA
Mr Navjot Atwal (instructed by MB-Law ( MB Solicitors Limited) for the Appellant
Mr Ian Skeate and Mr Andrew McKie (instructed by Wilkin Chapman LLP) for the Respondent
Hearing date: 19 October 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
A. Introduction
. This case relates to an accident suffered by the Respondent, Mrs Lynn Morgan. In July 2015, Mrs Morgan was on the second night of a package holiday with her husband, which package she had purchased from the Appellant, Tui UK Limited (“TUI”). The Morgans were staying at the Morne Hotel in Mauritius (the “Hotel”). At around 9:00pm, Mrs Morgan was returning (on her own) to their room from dinner along an outside, unlit sun terrace adjacent to the swimming pool. Sadly, en route to the room, Mrs Morgan collided with a heavy wooden sunbed and fell, suffering injuries to her knees, face and head.
. Mrs Morgan brought a claim against TUI in contract for damages. The claim alleged breach of an implied term that the services to be provided by TUI under the contract with TUI would be provided with reasonable care and skill, especially with regard the provision of lighting at the place where the accident occurred. As part of her claim, Mrs Morgan relied upon Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992 No. 3288) (the “Regulations”), 1 which provides (so far as material):
“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.”
. The claim was heard in the County Court at Cardiff on 9 and 10 June 2020 before His Honour Judge Jarman QC, who handed down a reserved judgment two days later on 12 June 2020 (respectively, the “Judge” and the “Judgment”). In the Judgment, the Judge found TUI liable to Mrs Morgan, subject to a finding of contributory negligence in the order of 20%. The Judge's order, giving judgment for Mrs Morgan, was made on 23 June 2020.
. On 14 September 2020, I gave TUI permission to appeal the Judge's decision on liability. TUI contends that Judge erred in a number of respects, which are set out in TUI's grounds of appeal, to which I refer in greater detail below. The thrust of TUI's appeal was that the Judge was wrong to rely on the evidence he did in determining the applicable standard of skill and care regarding the provision of lighting at the accident spot.
. I heard the appeal remotely via Skype for Business on 19 October 2020. Thereafter, I reserved my judgment. This is that judgment, which is structured as follows:
(1) In Section B, I consider the relevant legal principles.
(2) In Section C, I set out the relevant parts of the Judgment, so far as they are material to this appeal.
(3) In Section D, I describe and consider TUI's various grounds of appeal against the order of the Judge.
B. The law
. The starting point is that a term will generally be implied into a contract for services by operation of law to the effect that those services are to be performed with reasonable skill and care: see section 13 of the Supply of Goods and Services Act 1982 (the “1982 Act”).
. This case concerns the scope of that implied term when it comes to a travel agent or tour operator (for ease, I will refer to such an individual or entity as the “organiser”). The organiser may agree to provide services under the contract that are not to be performed by it. Indeed, that will often be the case. Where that is the case, the question arises as to whether the scope of the implied term is such that it includes that delegated performance by the organiser's agents or whether the term merely extends to exercising reasonable care and skill in selecting an appropriate agent.
. The distinction was described by Lord Slynn in Wong Mee Wan v. Kwan Kin Travel Ltd, which concerned a case like this, namely a package holiday contract: 2
“…the issue is thus whether…[the package tour operator] undertook no more than that they would arrange for services to be provided by others as their agents (where the law would imply a term into the contract that they would use reasonable care and skill in selecting those other persons) or whether they themselves undertook to supply the services when, subject to any exemption clause, there would be implied into the contract a term that they would as suppliers carry out the services with reasonable care and skill…”
. This issue was resolved in favour of the consumer by the introduction of the Regulations, which implemented Council Directive (90/314/EEC) (the “Directive”). The Directive sought to harmonise the disparities between Member States regarding the provision of packaged services. 3 An integral part of so doing was the standardisation of a liability regime that favoured the consumer and imposed liability on the organiser for the proper performance of obligations under the contract regardless of who those obligations were to be performed by. 4
. Thus, contracts for the provision of package holidays are typically contracts of “vicarious performance”: 5
“A contracting party can in the case of many contracts enter into an arrangement by which some other person may perform for him, so far as he is concerned, the obligations of the contract, and the other contracting party will be obliged to accept that performance if it is performance in accordance with the terms of the contract. The contracting party will, however, be liable for any
breach that may happen, and the other contracting party is not bound or, indeed, entitled to sue the substituted person for breach of contract, although there may of course be a remedy in tort, e.g. where the substituted person negligently damages or causes the loss of goods entrusted to him. This is technically known as vicarious performance and it is “quite a mistake to regard that as an assignment of the contract: it is not.”
. The position that results under English law is that the scope of the reasonable care and skill implied term is now such that the organiser has an obligation to provide the services under the contract with reasonable care and skill regardless of the party to whom the organiser delegates performance of those obligations. 6
. In practical terms, the effect of the Regulations is to shift the focus in terms of the organiser's liability from an examination of reasonable skill and care in the selection or offer of accommodation to the exercise of reasonable skill and care in the provision of the particular service (e.g. the operation of a hotel). 7
. Contracts for the provision of package holidays will, typically, involve a foreign element in their performance. The holiday-maker purchasing the package will, in many cases, be buying a holiday abroad. In such cases, the question arises as to what informs the content or standard of the obligation on the organiser to exercise reasonable skill and care in the provision of that service.
. The starting point, in this regard, is the judgment of Phillips J in Wilson v. Best Travel Ltd. 8 That was a case in which the plaintiff fell through a glass patio door while on holiday on Kos. The glass complied with Greek safety standards, but not with those prevailing in England. The judge found, on the basis of section 13 of the 1982 Act, that the organiser had “a duty to exercise reasonable care to exclude from the accommodation offered any hotel whose characteristics were such that guests could not spend a holiday there in reasonable safety”. 9 When dealing with the standard of care, he said: 10
“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...
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