Wong Mee Wan v Kwan Kin Travel Services Ltd
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1995 |
| Date | 1995 |
| Year | 1995 |
| Court | Privy Council |
Contract - Implied term - Package tour - Tour operator's brochure describing itinerary including trip across lake - Member of tour group drowning during lake crossing - Whether tour operator under implied duty to use reasonable skill in rendering services - Whether breach of contract by tour operator
The first defendant tour operator contracted with the plaintiff's daughter to provide a package tour to a lake in the People's Republic of China. The first defendant's brochure contained the terms of the contract and described the itinerary for the tour, which included transportation across the lake by ferry. The tour group was accompanied while in China by a tour guide employed by the second defendant. When the group reached the lake the ferry had already departed, and the tour guide informed the group that they would have to cross the lake by speedboat. While being driven across the lake by an employee of the third defendant the speedboat hit another vessel and the plaintiff's daughter was drowned. The plaintiff, as her administratrix, commenced proceedings against the defendants in the High Court of Hong Kong claiming damages for breach of contract and negligence. The judge held that the second and third defendants were liable in negligence and that the first defendant was liable for breach of a contractual duty to the plaintiff's daughter to take reasonable care for her safety. The Court of Appeal of Hong Kong allowed an appeal by the first defendant.
On the plaintiff's appeal to the Judicial Committee:—
Held, allowing the appeal, that having regard to the contract as a whole the first defendant had undertaken thereby to provide the plaintiff's daughter with all the services included in the tour itinerary and not merely to arrange for their provision, even though it had intended that some of the activities would be carried out by others; that although the first defendant was not under a contractual duty to ensure that the plaintiff's daughter would be reasonably safe whilst on the tour, a term was to be implied into the contract that reasonable skill and care would be used in rendering the services which the first defendant had contracted to provide whether they were carried out by the first defendant or by others; and that, since no measures had been taken to ensure that the driver of the speedboat was reasonably competent and experienced, the crossing of the lake had not been carried out with the requisite skill and care and the first defendant was liable for breach of contract (post, p. 46D–H).
The following cases are referred to in the judgment of their Lordships:
Aiken v. Stewart Wrightson Members Agency Ltd. [
British Wagon Co. v. Lea & Co. (
Craven v. Strand Holidays (Canada) Ltd. (
Curtis v. Chemical Cleaning and Dyeing Co. [
Jarvis v. Swans Tours Ltd. [
Rogers v. Night Riders [
Stewart v. Reavell's Garage [
Wall v. Silver Wing Surface Arrangements Ltd. (trading as Enterprise Holidays) (unreported), 18 November 1981, Hodgson J.
Wilson v. Best Travel Ltd. [
No additional cases were cited in argument.
Appeal (No. 62 of 1994) with leave of the Court of Appeal of Hong Kong by the plaintiff, Wong Mee Wan, the administratrix of the estate of Ho Shui Yee deceased, from the judgment of the Court of Appeal of Hong Kong (Penlington and Godfrey JJ.A. and Barnett J.) given on 31 May 1994 allowing an appeal by the first defendant, Kwan Kin Travel Services Ltd., from the decision of Mayo J., delivered on 25 October 1993 in the High Court of Hong Kong, whereby judgment had been entered for the plaintiff against the first defendant, the second defendant, China Travel Services Co. (Zhong Shan), and the third defendant, Pak Tang Lake Travel Services Co. (Doumen County), and the defendants had been ordered to pay the plaintiff H.K.$575,050, although as between the defendants the third defendant had been required to contribute 100 per cent. towards the damages which had been awarded under the Civil Liability (Contribution) Ordinance. The second and third defendants did not appeal to the Court of Appeal against the judgment of Mayo J.
The facts are stated in the judgment of their Lordships.
James Goudie Q.C. and Paul Nicholls for the plaintiff.
Robert Webb Q.C. and Paul Hampton, solicitor, for the first defendant.
6 November. The judgment of their Lordships was delivered by Lord Slynn of Hadley.
On 4 August 1988 Miss Ho Shui Yee, a resident of Hong Kong, was drowned whilst on holiday in the People's Republic of China. Her mother, the present appellant, brought proceedings in the High Court of Hong Kong against Kwan Kin Travel Services Ltd., whose registered office is in Hong Kong, China Travel Services Co. and Pak Tang Lake Travel Services Co., both of which carry on business in China. As administratrix of her daughter and on behalf of herself and other dependants the plaintiff claimed damages for breach of contract and for negligence. The second and third defendants entered defences contending that the proceedings ought to have been brought in China and not in Hong Kong. On 15 March 1991 interlocutory judgment was given against them for damages to be assessed, but it seems that no further steps had been taken in respect of those two defendants under those judgments.
On 25 October 1993 after trial Mayo J. gave judgment against the first defendant and assessed the damages at H.K.$575,050. He ordered that such sum should be payable by the first, second and third defendants and he made a further order that the third defendant should contribute 100 per cent. towards the damages awarded under the Civil Liability (Contribution) Ordinance (c. 377) on the basis that as between the three defendants the third defendant was the most culpable. The Court of Appeal on 31 May 1994 set aside the judgment holding that on the facts found the first defendant was not in breach of duty to the deceased but the court gave the plaintiff leave to appeal to Her Majesty in Council.
In outline the facts found by the trial judge were these. Miss Ho and two school friends contracted to take a package tour to Pak Tang Lake offered by the first defendant. They left Hong Kong as part of a group of 24 persons first by ferry and then by coach. They were accompanied by a tour leader employed by the first defendants (a Miss Chan). At the border they were delayed for various reasons but on leaving the border they were accompanied by a Mr. Ho, an employee of the second defendant, who said that he was their tour guide. The coach took them to the Shanghai Guest House where they were to spend the first night. Because of the delays which had occurred Mr. Ho told them that they should leave their luggage at the guesthouse quickly so that they could go to visit the Ethnic Village at the lake. When they got to the pier at the lake they were told by Mr. Ho that the coach and ferry had already gone and that there was no alternative for the group but to cross the lake in a speedboat. Since the speedboat took only eight persons, three trips were involved, the return trip across the lake taking about 15 minutes. Mayo J. had no hesitation in accepting that the group had no practical alternative but to take the speedboat across the lake and he rejected the written evidence of Mr. Ho that the whole idea of going by speedboat had been suggested by members of the group and that it was outside the arrangements for the package tour. The judge said: “there can be no...
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