[2010] T RAVEL L AW Q UARTERLY 83 BED TIME FOR HOLDEN? THE LOCAL STANDARDS ARGUMENTS IN A POST EVANS v KOSMAR LANDSCAPE. Case analysis: Trevor Griffin v My Travel UK Limited, [2009] NIQB 98 Roger Dowd This was a plaintiff s appeal in the High Court, Northern Ireland, concerning the liability of a tour operator for the improper performance suppliers of a package holiday contract. The plaintiff was on holiday with his partner in Rhodes in September 2005. He alleged that on the third night he pulled back the top sheet which dislodged the bed frame from the head board and it fell, injuring his foot. His claim was in negligence, occupier s liability, breach of contract and breach of Reg.15 of the Package Travel Regulations 1992. The room had two single beds with his bed positioned up against a wall. The plaintiff s partner saw the maid each morning move the bed out from the wall to make it. After the incident he reattached the bed frame and was able to use it for the rest of his holiday without incident. The plaintiff did not make a report to the maid but it was agreed that he reported it to the defendant s representative. He completed a guest incident form in which he stated that the bed unhinged itself. At first instance the claim was dismissed. The court viewed photographs of the bed taken by the plaintiff s partner after the collapse. The defendant simply relied upon monthly property checklists and the guest comment forms. There was no evidence of the local standards applicable to either room cleaning in Rhodes or as to the construction or design of the bed. The court in an He pulled back the top sheet which dislodged the bed frame from the head board and it fell, injuring his foot ex tempore judgment could not say, on balance, how the injury had occurred and was unsure as to the value of the checklists without hearing from the compilers. The court relied upon First Choice Holidays v Holden [2006] EWHC 3775 and held the burden of proving a breach of local standards was upon the plaintiff who had failed to discharge that burden. On appeal to the High Court, which in Northern Ireland is a hearing de novo where new evidence can be admitted, the plaintiff introduced engineering evidence based simply on his account and the photographs of the bed. The engineer stated that the fastening of the frame to the head board was inadequate, prone to significant wear and liable to have been loosened due to regular movement by maids. He said the absence of a locking mechanism in the fastening combined with the movement of the bed made it vulnerable to collapse. The plaintiff also relied upon a report from a Greek lawyer on the standard of care Greek courts would impose. No case, however, was on all fours with the facts of the Mr. Griffin s claim. There was no evidence of a local standard applicable to the design of beds or maid service. In response to this new evidence, the defendant introduced an affidavit from the manager of the property confirming that there was no report of the incident, the beds had been made by his father some years previously and were still in use
84 [2010] T RAVEL L AW Q UARTERLY without any other complaint. The brochure described the premises as a simple apartment complex of eight rooms. An affidavit was also submitted from a Consumers Affairs Executive who had visited the premises in June 2009. She had inspected the subject beds and found them to have strong brackets. She asserted that the defendant s Monthly Property Checklists accords with travel industry reasonable practice. It required a visual inspection of the premises, its fixtures and fittings and recording of any hazards or required action. She reviewed the company documentation and found nothing to indicate there was a problem with the beds before or after the plaintiff s stay. She stated that there was nothing about the property to give a tour operator cause for concern. She said a reasonable system of inspection would not include a detailed inspection of every bracket of every bed. To require that, she said, would place an intolerable burden on the tour operator and would be far in excess of a reasonable system. The court did not hear any evidence from the defendant s representative who co-signed the guest comment form during the holiday or from the maid. Counsel for both parties submitted detailed written submissions. In essence, the plaintiff argued that there was a breach of duty of care by the defendant s suppliers for which the defendant was liable under Reg. 15 of the 1992 Regulations. The breach was the supply of the defective bed and the acts or omissions of the maid. The contract was contained in the brochure which stated at clause 6: We will pay compensation if those suppliers fail to provide the services they agreed to supply as part of the package originally sold to you. We will accept liability for claims of personal injury as a result of our staff and suppliers being negligent while in the course of their employment or contract. There was nothing about the property to give a tour operator cause for concern The defendant argued that the Court could not be satisfied the incident happened as the plaintiff alleged. It was suggested the plaintiff s or his partner had moved the bed from the wall. It was denied that the bed was defective as evidenced by the plaintiff s continued use of the bed without incident. The defendant further relied on: the absence of any prior notification of a problem to the manager; the implementation by the defendant of a reasonable system of periodic inspection and the absence of any evidence produced by the plaintiff of local regulations or standards relating either to the design or maintenance of such beds. (Compare with a collapsing sun-bed case in McCrae v Thomsons Holidays [2001] CLY 4291) The Court accepted the plaintiff s account that the maid had left the bed in a vulnerable state and allowed the appeal. The Court s Analysis The Court found no conflict of laws issue; the Greek legal provisions would not determine the question of whether the defendant is liable. McCloskey J acknowledged that Reg. 15(1) makes clear that where contractual obligations are discharged by a tour operator s suppliers, the tour operator remains liable for the due performance of those duties which was reflected in the holiday contract. His Honour Judge McCloskey accepted the view of Longmore LJ in Hone v Going Places [2001] EWCA Civ 947 that the contract is the starting point. He relied on the preamble of Council Directive 90/314/EEC (which gives the basis for the 1992 Regulations) and a passage in Holiday Law: The Law Relating to Travel and Tourism (Grant & Mason, 4th ed. pages 25 26), and he held that onus was on the plaintiff to prove the contractual terms and to prove the fault alleged unless the defendant was strictly liable under the contract.
[2010] T RAVEL L AW Q UARTERLY 85 The Court identified two questions: First, given the design and condition of the bed and the conduct of the maid, what was the content and scope of the contractual duty of reasonable care owed by the defendant to the plaintiff?; Secondly, in the circumstances of this case, was there any breach of that duty? The defendant traced the judicial analysis of the scope of the duty from Wilson v Best Travel [1993] 1 All ER 353 to First Choice Holidays v Holden. McCloskey J noted that the contractual obligation in the instant case was comparable to that arising in Holden. In Holden it was agreed that the claimant must establish a failure by the defendant to carry out its obligations with reasonable skill and care. In Holden Goldring J. had put the position thus [at pp 14-15]: Assuming the plaintiff slipped on the liquid as the Recorder found, has she proved on the balance of probability that in failing to have a system such as that adumbrated by the Recorder the hotel fell below the standards of safety of a Tunisian Hotel? In other words, the local standards argument. Post Holden it has been accepted by the Courts that the burden of proving local standards rests with the claimant. It has been a powerful case relied on by tour operators. It has resulted in the dismissal of many claims. McCloskey J referred to the scope of the tour operator s duty of care as set out in Wilson v Best Travel noting it was a first instance decision and a pre-1992 Regulations case. In Wilson Phillips J held that, save for where uniform international regulations apply, it was the local not the UK standards by which the safety standards of a foreign hotel must be judged. At the time of Wilson Reg. 15 was not yet in force. Was there any duty to warn against obvious risks such as diving into the shallow end of a swimming pool at night in a holiday complex? McCloskey J then turned his attention to Evans v Kosmar Villa Holdiays [2007] EWCA Civ 1003. Whilst acknowledging that the facts were very different to Griffin (the issue was whether there was any duty to warn against obvious risks such as diving into the shallow end of a swimming pool at night in a holiday complex) he placed significance on the Court of Appeal s approach to how the local dimension as opposed to the contractual dimension impinges on a holiday provider s duty to take reasonable care for the safety of its contracting customers. The Court relied on the judgment of Richards LJ (at paras 22 24). He was of the view that a Wilson type claim would be put differently today under Reg. 15 but he agreed that the standard to be applied to a hotel abroad is the local standard. Richards LJ acknowledged that in Evans there was no evidence to support the claim of noncompliance with local safety regulations but he went to say at para 24: In my view however, it was still open to the claimant to pursue the claim on the other bases pleaded in the amended particulars of claim. What was said in Wilson v Best Travel Ltd did not purport to be an exhaustive statement of the duty of care, and it does not seem to me that compliance with local safety regulations is necessarily sufficient to fulfil that duty. That was evidently also the view taken in Codd [2000] EWCA Civ 5566 where the court found there to be compliance with local safety regulations but nevertheless went on to consider other possible breaches of the duty of care. [Emphasis added] Therefore McCloskey J held that failure by the tour operator to exercise reasonable care in the provision of services to the consumer could be established even where there is no evidence of
86 [2010] T RAVEL L AW Q UARTERLY non-compliance with the local safety standards and regulations. He held that compliance with such regulations would not necessarily be determinative of the question of liability (para 23). The defendant urged caution before relying upon that portion of Richards LJ s analysis. It was not central to the question before the Court of Appeal and Holden did not appear to have been referred to at all in Evans. McCloskey J was not persuaded by that argument. Primarily, he relied upon the principle of stare decisis which made the English Court of Appeal decision of Evans persuasive, if not binding, authority in Northern Ireland. There is at present no Northern Irish Court of Appeal decision on any aspect of tour operator liability to a consumer under the 1992 Regulations (but see Nobel v Budget Travel [2002] NI QB Cam 3629) and Dinsmore (a minor) v Balkan Tours [2005] NIQB 12 for other Northern Ireland High Court package holiday judgments). He went on to find that the formulation of the tour operator s duty, as set out in Wilson, was unjustifiably narrow and, properly analysed, was probably not intended to constitute an all encompassing exposition. He considered that the judgment of Swinton Thomas LJ in Codd, at the very least by implication, was endorsing his approach. The judge was further supported in his view by the decision in Evans and by reflection on what he called the contractual dimension which in the present case centred on clause 6 set out above. McCloskey J acknowledged that the contractual dimension will invariably be fact sensitive. McCloskey J took the opportunity to express his view on the reasoning of the judge in Holden: Finally, and in any event I do not treat the formulation of the tour operator s duty by Goldring J as either a purported The defendant urged caution before relying upon that portion of Richards LJ s analysis comprehensive statement of the law in this sphere or as necessarily excluding liability in the fact sensitive context under consideration in the present appeal. (para. 23) The above passage is likely to be relied upon by claimants to refute tour operators arguments that in the absence of proof of breach of local standards a court is not entitled to find breach of the relevant duty. The tour operator argument is not, it seems to me, a sufficiently accurate or nuanced analysis of the line authority. Tour operators may fear that the decision in Griffin opens the door to more claims which can be brought without the claimant being exposed to the costs of obtaining a foreign expert on local standards or engineering evidence. At the core of the judgment, however, is an endorsement of existing principles. Whilst Holden may have been viewed by over-eager defendants as a knock out blow it was never an impediment to a claim in every case. As has been made clear holiday claims are fact and contract specific. Circumstances can arise where the question of compliance with local standards and regulations does not assist in determining the duty owed and whether the duty was breached. McCloskey J, accepted the plaintiff s evidence and was satisfied that frequent movement of the bed would loosen the integrity of the fastening mechanism. He took the view that the local standards and their compliance was not a necessary consideration on these particular facts. The supplier of services had provided maid services under the holiday contract. The contract prescribed the extent of the liability to which the facts must be applied. There was sufficient evidence to find a likelihood of the bed frame loosening. Moreover, if the maid was carrying out her duties with reasonable skill and care she would have taken steps to ensure the bed was
[2010] T RAVEL L AW Q UARTERLY 87 secure before leaving it. On the defendant s evidence an inspection of the bed was not part of the maid s duties and there was no evidence she had checked the bed before leaving. The Court accepted the plaintiff s evidence. As the court stated at para 28: (The) hypothetical reasonably prudent and conscientious holiday provider and its suppliers and agents would have taken the simple and inexpensive precaution of checking the fastening mechanism of the offending bed from time to time. Simply put, the local standards did not assist and in any event there were no local standards in the Hone sense to consider. The instant case is further support for the argument that it is an exceptionally risky strategy for a defendant to sit back and seek to rely upon the failure of the plaintiff to prove breach of local standards or regulations without consideration of whether evidence of such a breach is necessary for the claimant to succeed. See for example the discussion of the impact of Holden in Grant & Mason 4th ed. at page 137 et seq. What might arguably have been viewed as an obiter analysis of the local standards question in Evans has now been unambiguously adopted in the ratio of this High Court authority. Further, the judicial reasoning in Holden was not accepted as an exhaustive statement of the law. Local standards are but one of several matters which should be considered by a Court in assessing whether there has been a breach of contractual duty. It is still open to defendants, if the circumstances permit, to argue that failure to prove breach of local standards is determinative of a claim but this will depend upon the particular contract and the particular facts alleged by the claimant in any given case. Certainly, the knock out blow of Holden is looks decidedly less powerful in the wake of Griffin. It will be interesting to see whether the English Courts take the opportunity to reassert or re-evaluate Holden in light of the comments in Evans and now Griffin. Post Script Certainly, the knock out blow of Holden is looks decidedly less powerful in the wake of Griffin In a subsequent costs hearing the defendant argued that the costs of the report by the Greek lawyer should not be allowed. It contended that the court must determine the issues on Northern Ireland law and not Greek law. Reliance was placed on Hone and the unreported decisions of Barlow v TUI and Hilton v Mytravel both 2005 English County Court decisions. The Court rejected these arguments in the circumstances and allowed the costs of obtaining the report of the Greek lawyer. In an ex tempore ruling on the matter McCloskey J felt it was appropriate in the circumstances and given the argument that Holden may be determinative of the onus on the plaintiff for him to obtain evidence of how the Greek courts viewed the scope of the duty under their national law. Roger Dowd, Bar Library, Belfast