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28 NOVEMBER 2006

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R (on the application of ASSOCIATION OF BRITISH TRAVEL AGENTS LTD (ABTA)) (Claimant) v CIVIL AVIATION AUTHORITY (Defendant) & SECRETARY OF STATE FOR TRADE & INDUSTRY (Interested party) (2006)

[2006] EWHC 13 (Admin)

The claimant association (B) applied for judicial review and sought to quash a guidance note issued by the defendant authority (C) on the interpretation of the Civil Aviation (Air Travel Organisers' Licensing) Regulations 1995 as amended in 2003. B was a trade association for travel agents and tour operators. C was the authority that licensed the provision of accommodation in aircraft under the Civil Aviation Act 1982. The 1995 Regulations were made under the 1982 Act. The Regulations were amended in 2003 to prevent the practice of "contract splitting", which referred to the practice by some firms not holding an air travel organisers' licence of advertising flights and hotel accommodation as a package and then deliberately selling the component parts under separate contracts in order to avoid the requirement of holding a licence. The guidance note set out the basis on which C would monitor compliance with the Regulations and prosecute travel agents if necessary for failure to comply. B submitted that the guidance was plainly wrong and did not accurately reflect the 1995 Regulations as amended. C submitted that judicial review was not an appropriate remedy.

HELD: (1) C was a statutory body that was the regulatory and prosecution authority for the travel industry. It would not be appropriate for a public body to regulate and possibly prosecute on the basis of guidance that was manifestly wrong in law. If that was the case it would be in the public interest for the erroneous guidance to be withdrawn. If the guidance had the effect of forcing travel agents to obtain licences when they were not required to do so on a proper view of the law, the costs of doing so would be unnecessarily incurred. The court would not have to consider hypothetical factual situations to decide whether the guidance properly reflected the Regulations. It was possible to identify a pure point of law. The public interest was in quashing the guidance if it was wrong, Gillick v West Norfolk and Wisbech Area Health Authority (1986) AC 112 applied. (2) The definition of "package" in the 1995 Regulations contemplated that a travel agent could sell or offer to sell component parts outside a package, and that to amount to a package the component parts had to be sold at an "inclusive" price. The ordinary and natural meaning of the word "inclusive" connoted more than a mere arithmetical total of the component parts of the price. The sale of a package at an inclusive price required the components to be bought and paid for as a whole. The word "pre-arranged" in the definition of package meant that the combination could be put together at any time up to the sale, that the consumer could wholly dictate the component parts of the package and that advice or information from the travel agent was not necessary for something to be pre-arranged. In the light of that interpretation of the 1995 Regulations the guidance note was wrong to a degree that required it to be quashed.

Application granted.

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The short point underlined by Goldring J. was simply this. The prohibition on making flight accommodation available in ATOL Regulation 3(1A) bites only where the travel agent is selling flights that constitute a component of a “package” as defined therein and in the PTR. The travel agent is not selling flights as components of packages unless the sale or offer for sale of the flights with other components is at an inclusive price, and an inclusive price is different from the sum total of several separate prices. Thus, where there is no inclusive price, there is no package and the travel agent may continue with the practice of split-contracting. It was, he implied, not good enough to stretch the ordinary meaning of the word “inclusive” merely on the strength of a perceived regulatory need to protect consumers from the evils of split contracting or based on the mere fact that the source of the expression was the European Package Travel Directive.

What one should not conclude from the decision of Goldring J. is that the classic tour-operator-supplied-package can easily be deconstructed to produce a constellation of components sold at separate prices shown on a single invoice where the reality is that the holiday is a single contract at an inclusive price. One suspects that judges will continue to look just as closely at ATOL and PTR avoidance mechanisms as Goldring J. looked at the CAA’s attempt to stretch the meaning of “inclusive price” in order to bring travel agents generally within the class of persons requiring ATOL licenses. Nonetheless, as so often happens in English law we are much clearer now on what an inclusive price is not than we are in fixing on a definition of what an inclusive price is. It’s the old routine of trying to define an elephant. We all know one when we are trampled by one1 but its damned difficult to come up with a workable, all-encompassing definition.

ASSOCIATION OF BRITISH TRAVEL AGENTS LTD (ABTA) v CIVIL AVIATION AUTHORITY (2006)

[2006] EWCA Civ 1299

CA (Civ Div) (Sir Mark Potter (President Fam), Chadwick LJ, Arden LJ) 17/10/2006

PACKAGE HOLIDAYS : TOUR OPERATORS : TRAVEL AGENTS : LAWFULNESS OF GUIDANCE NOTE ISSUED BY CIVIL AVIATION AUTHORITY : reg.3 CIVIL AVIATION (AIR TRAVEL ORGANISERS' LICENSING) REGULATIONS 1995 : PACKAGE TRAVEL, PACKAGE HOLIDAYS AND PACKAGE TOURS REGULATIONS 1992

The guidance note entitled "Sale of Air Package Arrangements: Advice on the need to provide consumer protection" issued by the Civil Aviation Authority was misleading in a number of respects and it was appropriate to direct its withdrawal.

The appellant aviation authority (C) appealed against a decision ((2006) EWHC 13, (2006) ACD 49) declaring as unlawful its guidance note entitled "Sale of Air Package Arrangements: Advice on the need to provide consumer protection". The guidance note had been issued in 2005 to help travel organisers and agents to understand the definition of an air package set out in Council Directive 90/314 on package travel, package holidays and package tours and in domestic Regulations, and to help them to decide what parts of their business needed protection under an air travel organiser's licence. The respondent (B), a trade association for travel agents and tour operators, sought judicial review of the guidance note. The judge had held that 1 James v Travelsphere Cardiff County Court January 2005.

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it contained passages that mis-stated the law or were otherwise misleading and quashed it. C argued that the court should not dispose of the appeal without first seeking a preliminary ruling from the European Court of Justice on the following relevant question: if in response to an approach from a customer seeking to purchase a trip or holiday, a travel agent organised and offered to sell to that customer a combination of at least two of the components referred to in the definition of "package" in Art.2 of the Directive, whether that sale would be for an "inclusive price" within the meaning of that term in the said definition by reason only that the sum payable to the agent was comprehensive in the sense of covering all that was offered for sale.

HELD: It was not appropriate to seek a ruling from the ECJ. The dispute between C and B did not turn on any point of principle and there was little, if anything, between the parties on the question that had to be asked in those cases where two or more of the travel services described in Art.2 of the Directive were sold or offered for sale at the same time. The question was whether the services were being sold or offered for sale as components of a "pre-arranged combination" or separately. Where the former applied, the price for the combination was an "inclusive price", notwithstanding that the price for the combination was the aggregate of the prices for which each component would have been sold or offered for sale if it had been sold or offered for sale as a separate service outside the combination; in the case of the latter situation, there would be no "pre-arranged combination" to which the concept of an "inclusive price" could have any application. The issue on the instant appeal was whether the judge had been wrong to take the view that the guidance note should be quashed. The guidance note was misleading, or potentially misleading, to the uninformed reader in a number of respects. The uninformed reader would be given a misleading impression as to the circumstances in which the Civil Aviation (Air Travel Organisers' Licensing) Regulations 1995 reg.3(1A) required that the agent be a licence-holder. It was clear from the circumstances that had given rise to the issue of the guidance note that C had appreciated that the definition of "package" in the Directive and in the Package Travel, Package Holidays and Package Tours Regulations 1992 gave rise to difficulties of interpretation, and that the introduction of that concept into the 1995 Regulations by amendments made in 2003 had been, at best, a compromise, which had not really met the need for consumer protection in the changed market conditions that C had identified. It was not satisfactory that the uninformed reader of the guidance note might be led to think that reg.3(1A) had a wider reach than, on a proper interpretation, it could be given. However, there was no need for the guidance note to be quashed. Instead, it was appropriate to direct that it should be withdrawn.

Appeal dismissed.

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Clough - and - First Choice Holidays and Flights Ltd

[2006] EWCA Civ 1525 January 2006

PRESIDENT OF THE QUEEN'S BENCH DIVISIONLADY JUSTICE HALLETTandLORD JUSTICE RICHARDS

President of the Queen's Bench Division: 1. This is an appeal by Michael James Clough against the decision of Mr David Foskett QC sitting as a deputy High Court judge in London dated 27th January 2005 dismissing his claim for damages against First Choice Holidays and Flights Ltd. 2. The claim followed a catastrophic accident on 13th November 1999 when the appellant, a young man then 26 years old, slipped from a wall and broke his neck in a swimming pool accident at a holiday complex in Lanzarote. 3. The general background to the accident is summarised in Mr Foskett's careful judgment. Much of the analysis of the background, the description of the layout of the complex, and the circumstances of the accident is taken directly from it. 4. The appellant, his then girlfriend, Zoe Laws, and their friends Ricky Lloyd and Viv Mallett, booked a holiday with the defendants for 14 days at the Las Lomas Apartments in Lanzarote. The booking was made through Eclipse, a division of the defendants, a company in business as tour operators supplying package holidays. The essential information provided by Eclipse to the claimant asserted that the safety and wellbeing of customers was a matter of high priority. It was a contractual term that responsibility was accepted for "any death, bodily injury or illness caused to you as a result of the proven negligent acts and/or omissions of our employees and agents and our suppliers and subcontractors and their servants and/or agents while acting within the scope of or in the course of their employment". 5. The Las Lomas complex was comprised essentially of apartments of varying sizes, built around various swimming pools provided for the use of clients. The complex attracted families and couples from different European countries, including the United Kingdom. It was a typical "package holiday" destination for relatively young couples or couples with young families. 6. The holiday began on 4 November 1999. After their arrival the appellant and his friends stayed in apartments that did not overlook either the reception pool (otherwise described as pool 1) or the fountain pool (otherwise as pool 2), the pool where the claimant's accident occurred. The apartment in which the appellant was

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accommodated meant that he had walked past the fountain pool on many occasions before the accident happened, and indeed had used it as well. He also knew that at the easternmost pool of the fountain pool there was a shallow circular paddling pool. It was in this part of the fountain pool that the appellant's accident occurred. 7. In general the pools were closed after 7pm. Nevertheless from time to time residents at the complex would use the pools after they were formally closed for "after hours" swimming. The fountain pool8. This pool derived its name from the fountain arrangement at its centre. It was laid out so that there was an adult pool, shaped as two adjoining circles in a "figure of eight" fashion with trees planted at the point where the two circles narrowed to form a neck. The pool was 1.1 metres deep at the shallowest end increasing in depth to 2 metres at the point where the pool was nearest to the fountain. The fountain was raised above the level of the water in the middle of a circular area surrounded by a wall. There were two half-moon shaped paddling pools to the north and south, and to the east of the fountain there was a shallow paddling pool. The judge appended an illustrative photograph (photograph A) to his judgment, ensuring that the identity of those shown in the photograph are blurred. I shall do the same. 9. The overall diameter of the circular area in which the fountain was located was 17 feet. The horizontal surface of the surrounding wall was 32" wide. The distance from the top of the wall to the bottom of the paddling pool was 64". No physical barrier, adequate to prevent a fall, was provided. The depth of the water in the paddling pool was 18", too shallow to produce any possible "cushioning effect". 10. The horizontal surface of the surrounding wall was painted white with standard paint to which marble dust was added as the paint was applied. The paint itself was not "non-slip". The marble dust was susceptible to acid, and in time would dissolve through the effect of water from the swimming pool. It was conceded by the respondents at a late stage in the litigation that, notwithstanding repeated earlier claims to the contrary, the paint used on the surface was not "designed to be non-slip", and eventually accepted that the use of such paint constituted a breach of Spanish regulations which governed the structure and surrounds of swimming pools. In particular the walls around such pools, and the pavements around the edges, should have been made of or covered with "anti-slippery and waterproof material". 11. In his submissions, Mr Frank Burton QC on behalf of the appellant drew attention to some of the written and oral evidence from the appellant and his friends, and an expert called on the appellant's behalf, which he was anxious that we should consider. It is however unnecessary to repeat it. The judge made specific findings of fact. He concluded: (a) the horizontal surface of the fountain pool wall was not coated in a proprietary brand of non-slip paint.(b) The paint with which it was coated was less effective in minimising the risk of slipping than a proprietary brand of non-slip paint: effective brands for use around swimming pools were available in Spain. (c) The horizontal surface of the wall was such that someone walking upon it with wet feet would be exposed to an increased risk of slipping compared with a surface coated with a proprietary brand of non-slip paint. (d) The wall was an attractive feature of the complex, regularly used by holiday makers, and indeed "a dive allurement". (e) The failure to use non-slip paint constituted a negligent breach of duty by the respondents for the purposes of the contractual arrangements between them and the appellant, and a breach of contract. It was "incumbent" on the owners of Las Lomas to have used good quality non-slip paint. Their failure to do so constituted a breach of the local regulations, and a failure to exercise reasonable skill and care in

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the provision of facilities at the complex, and the respondents were responsible in law for this negligence. (f) A physical barrier should have been provided around the wall, for the protection, not of adults, but children.12. These findings speak for themselves, and are not to be criticised merely because the judge did not identify the precise nature of the increased risk of slipping consequent on the failure to use non-slip paint. The accident13. In the course of his evidence, the appellant accepted that he was familiar with the fountain pool, and the nature of the surface underfoot, and that he had not previously slipped. During the afternoon of 13 November, the appellant and Mr Lloyd spent some hours drinking together while they watched a football match between England and Scotland on television. On his own account the appellant drank up to six pints of lager. His friend drank a little more. By about 6pm they were in high spirits. In evidence, Mr Lloyd accepted that he would have been a bit intoxicated, and that his judgment would not have been 100%. He and the appellant were in a state of high spirits, and they decided to take a dip in each of the pools of the complex. With hindsight, he thought it was probably not the best of ideas. 14. After a swim in the first pool, the two of them moved to the fountain pool. The appellant got on to the horizontal wall adjoining the pool and, while walking along in an anti-clockwise direction in his bare wet feet, fell into the paddling pool. The judge rejected the respondents' case that he had deliberately dived into it. He also concluded that the appellant was indeed in high spirits and under the influence of alcohol, approximately two-and-a-half times over the legal limit for lawful driving. Nevertheless, he was not incapable of realising the general nature of what he was doing. 15. The judge explained the appellant's fall in the following words. "If he did not dive, the natural inference is that he lost his balance in some way and fell into the pool. This could have been because he simply stood too near the edge of the wall, and, given his intoxicated state, merely toppled over, or it could be because he slipped from some point on the horizontal surface of the wall and fell following a slip." The judge then examined the various possibilities in the light of the evidence. On balance, he drew the inference that the appellant slipped and fell in a "toppling movement" into the pool, where, unsurprisingly, he struck his head on the surface at the bottom. Having reached that conclusion, he noted that just before his fall the appellant's feet would have been wet, and that he would have been less steady on his feet than he would have been if completely sober. 16. Paragraph 66 of the judgment reads: "… what probably happened was that the claimant got out of the other pool on the side of the fountain pool furthest away from where Mr Plazier was sitting, spoke briefly to Mr Hannigan and let him and his daughter pass. Not long after this he climbed up onto the fountain pool wall, either with a view to looking into the area where the (then non-operational) fountain was, or perhaps more likely, simply taking a short cut to where he had left his clothes, when he slipped and in the process toppled over and fell essentially head first into the children's pool. It is possible that he stopped or slowed down to look at the view out to sea back in the direction of the reception area, as Mr Lloyd thought that he did, but it was in this general process (possibly with various ideas in his mind of what he was there for, but undoubtedly under the influence of drink) that the claimant lost his footing and fell in the manner I have described."At the conclusion of his judgment, the judge summarised his findings in paragraph 91. This reads:"At the end of the day, the claimant decided to go to the fountain pool wall, for whatever reason, quite significantly affected by drink, and he has to take the risks of doing so on his own shoulders."

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17. On the judge's findings, the appellant slipped on a surface which should have been but was not painted with non-slip paint. His feet were wet, and he had consumed a great deal of alcohol, but by walking where he did and being where he was when he slipped, he was not doing anything abnormal or prohibited by the rules of the complex. He did not dive into the shallow pool, nor miss his footing because he was walking too close to the edge, nor topple from it in a drunken stupor. Causation18. The claim failed on causation: hence this appeal. In summary, the judge concluded that the negligence and breach of duty established against the respondents lacked "causative potency". 19. The judge highlighted a number, but not all, of the features of the evidence relevant to this conclusion. Other users of the fountain pool, and in particular the wall from which the appellant slipped, had used it safely on previous occasions: so had the appellant himself on the day of his fall for part of his journey on foot. Mr Burton suggested that this did not directly address the evidence of "slipperiness" advanced by honest, but partial, witnesses called on behalf of the appellant, and perhaps overemphasised the very short distance covered by the appellant on the wall itself immediately before he slipped. The judge commented that Mr Morgan, an expert called on behalf of the appellant, was able to walk safely on the wall when examining it some eighteen months after the accident, when the surface would have become even more slippery than it had been at the time of the accident. Mr Burton suggested that that did not perhaps fully convey Mr Morgan's concern about the degree of stiction, the effect of which was that even when he was walking on the surface feeling relatively secure, if once his foot overcame the static friction beneath it, it would slip. Mr Morgan believed that the risk of slipping was appreciable, and that the wall surface was not safe. No engineering or other expert evidence was advanced on behalf of the respondents directly to contradict Mr Morgan. 20. The judge thought that it was virtually "inevitable" that, given the mixture of water and suntan oil, even the best quality of non-slip paint would not have been sufficient to make the surface of the wall completely non-slip. He was not prepared to conclude that there was any individual "particularly slippery area" from which the appellant fell. The judge reflected further on the issue of the alcohol consumed by the appellant. Notwithstanding his conclusion that the appellant was "not behaving in a reckless fashion" when he was on the surface of the wall, the judge found it difficult to resist the inference that if the appellant had not taken alcohol, he would probably not have gone on to the wall, but even if he had done so, and slipped, he would probably have been able to avoid the consequent fall. Reading the judgment as a whole, he was plainly troubled by the consumption of alcohol and the final comments in his judgment need no repetition. 21. At the conclusion of his judgment the judge considered a distinct possible basis of liability arising from the absence of a physical barrier to protect against a fall. This was not in issue before us. He noted that if a child had fallen in the way that the appellant fell, liability would have been established, and he "might well" have found liability if the appellant had gone on to the wall to protect a child from the risk of falling and, unburdened by alcohol, had slipped while doing so. 22. Mr Edward Faulks QC suggested that the judge found that the appellant was outside the class to whom the duty to provide non-slip paint was owed. It was limited to children. I doubt whether the judge reached that conclusion, but if he had, I should have disagreed with him. The risk of slipping on the wall surface and swimming pool surround was shared by all the holiday makers at the complex, adults as well as children. If the judge had concluded that the duty was owed to children, but not adults, he would have said so in terms. Rather, he approached the case as if the obligation to provide non-slip paint was intended to benefit "holiday makers", including children, unless the adult holiday makers had somehow put themselves outside the protective duty of care. The judge's hesitation about whether

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the duty extended to the appellant personally on the day of the accident was based on his concern about his consumption of alcohol, and it was this that led the judge to reflect that the appellant was not taking appropriate care for his own safety. 23. Mr Burton suggested a contrary criticism: an over-concentration in the judgment on alcohol consumption which is not without some justification. As it seems to me, this was indeed a holiday complex, used by holidaymakers. People on holiday relax, drink, and play about, sometimes with their children, sometimes with other adults. They are relaxed and less inhibited than they are in the normal daily grind. As they indulge themselves, an appropriate and reasonable degree of protection should be provided for them. In my view, their safety, even when inebriated, is one of the purposes of the regulations which required the provision of "anti-slip" material on the walls and edges of swimming pools. This claim may fail on causation, but not through the absence of a duty owed to the appellant. 24. In written and oral submissions both sides subjected the reasoning which led the judge to his conclusion, and the conclusion itself, to a close analysis. For the respondents, Mr Faulks contended that the judge applied the correct test in law, and having done so, without expressly referring to all the evidence which supported his conclusion, decided as a matter of fact that the appellant had failed to establish causation. This court was not entitled to interfere. Mr Burton, for the appellant, suggested that the judge had overlooked, and certainly had not referred to all, the material relevant to this issue, but he had in any event misdirected himself in law. 25. To do justice to Mr Burton's sustained argument I must refer to the judge's analysis of the legal issue. At paragraphs 74-76 of his judgment he said: "74. On the issue of causation … the claimant has to prove, on the balance of probabilities, that but for the absence of proper non-slip paint he would not have slipped as I have found that he did. The other way of putting it … is that he must prove, on the balance of probabilities that the absence of proper non-slip paint caused or materially contributed to his slip and his subsequent fall. However, in my judgment, if a slip is as likely to have occurred irrespective of the absence of a proprietary brand of non-slip paint as it would have had such paint been provided, or the evidence does not permit of a conclusion on the balance of probabilities, then the necessary evidential hurdle has not been surmounted and the "but for" test has not been passed.75. If, … the law applicable to a case such as this was that a breach of duty that increased the risk of a claimant sustaining injury in a particular way is to be taken to have caused or materially contributed to an injury sustained by the claimant within the area of that increased risk, then, subject to the duty being owed to him, the claimant would certainly have the makings of a case on that issue. He slipped where the surface carried an increased risk of doing so compared with the risk on the surface that ought to have been provided. However, that approach to causation is, as the law now stands, limited to certain specific situations and notwithstanding … very well argued written submissions, I do not consider that it applies to this one: see generally Fairchild v Glenhaven Funeral Services Ltd & ors [20003] 1 AC 32. But there does seem to me to be a more fundamental difficulty in applying such an approach to this case in any event.76. I can illustrate the difficulty of applying the "material contribution" approach to a case such as this in the following way. I have held that the risk of slipping on the surface of the wall was greater than it should have been. Since an increased risk is "material" if the increase is "more than minimal", it would follow that the increased risk here was "material". However I have no way of concluding what the true magnitude of that increased risk was in this case. If the evidence had established that people were habitually slipping on its surface, I might have been able to conclude that the increased risk was so significant that it must have contributed materially to the claimant's slip and that, but for that material contribution, he would not have slipped at all. However the evidence does not establish that: people

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did walk on it safely as I have observed … indeed so did the claimant for some part of his journey. While the role that percentages can play in this context is debatable, even, say, a 10-15% increased risk would be "material" within the definition of that word mentioned above. But even if I were satisfied that an increased risk of that order existed here, I would find it impossible to conclude that but for it the claimant's slip would not have occurred. I am, however, unable on the evidence to say what magnitude of increased risk arose here. Some objective assessment of the "slipperiness" of one surface as against the other might have helped, but since the inevitable conclusion would have been that no surface around the swimming pool is likely to have been risk free so far as slipping is concerned, it may be that such evidence would not have led me much further in the enquiry. However, I can only express my conclusion, as I have, in a very general way by making the comparison between what was provided (which was not the best quality non-slip paint, but which must have had some effect otherwise people would have been slipping all the time) and what was not (the best quality non-slip paint, which could not of itself guarantee that no-one would ever slip)."26. Mr Burton submitted that these passages from the judgment demonstrate the flaws in the judge's approach to the issue of causation. He misapplied the "but for" principle, and failed to appreciate the true ambit of the concept of material contribution to damage, indeed, according to Mr Burton, he confused it with what Mr Burton suggested was the distinct concept, material contribution to the risk of damage. It was, according to the argument, not necessary for the appellant to demonstrate that the safety feature provided by the non-slip paint would have prevented or avoided his accident. If the use of non-slip paint was likely to have made a difference, its omission should be treated as having made a material contribution to the accident. That was sufficient to establish liability. The appellant was not required to establish that the slip was caused by the absence of non-slip paint rather than his own careless movements, or lack of balance, or the degree of his inebriation. 27. Mr Burton developed his submission by identifying two categories of case in which what he described as the "doctrine" of material contribution might apply to establish causation in negligence or for breach of statutory duty. The first was material contribution to damage, which applied where more than one cause of the harm complained of was present, and the tortious cause, on the balance of probabilities, either made or was capable of making a material contribution to that harm. He relied on Bonnington Castings v Wardlaw [1956] AC 613 and Wilsher v Essex Health Authority [1998] AC 1074 as examples of and providing support for this principle. Material contribution to risk arose, exceptionally, where as a matter of policy, the court allowed causation to be proved (perhaps more accurately, found that causation was proved) even though due to the limits of current knowledge the evidence did not permit a factual inference that the increase in risk materially contributed to the damage. He identified McGhee v National Coal Board [1973] 1 WLR 1, Fitzgerald v Lane [1987] 3 WLR 249 and Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 as examples of and sustaining this doctrine in an exceptional case. 28. Mr Burton accepted that the precise ambit of the two categories had yet to be fully analysed, but he suggested that there was no reason in principle why cases in the first category should not apply to all accidents in which there were competing causes, some of which were tortious, and some of which were not. This therefore could apply where there were multiple or single parties, multiple or single agents, provided the court could be satisfied that the negligence complained of made a material contribution to the damage, or where it was legitimate to draw an inference to that effect. Whenever cases in either category arose, the claimant was not required to show that "but for" the negligence he would not have sustained the

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harm. All that was required of him was to show that the negligence made a contribution which was more than minimal. 29. These were very wide-ranging submissions. Perhaps it would be as well at the outset to notice that Mr Burton was not inclined to identify any distinction between the claim for negligence or breach of duty or breach by the respondent of the contract with the appellant. In effect, any claim for breach of contract is subsumed in the claim that the claimant's catastrophic injuries resulted from negligence for which the respondents were responsible. The only significant issue in this appeal was causation. 30. As a matter of first principle, the appellant is entitled to recover damages for personal injuries caused by the respondents' negligence: no more, no less. Lord Bingham of Cornhill encapsulated this principle in his dissenting speech in Chester v Afshar [2005] 1 AC 134. At 142, where he observed: "It is trite law that damage is the gist of the action in the tort of negligence. … A claimant is entitled to be compensated for the damage which the negligence of another has caused to him or her. A defendant is bound to compensate the claimant for the damage which his or her negligence has caused the claimant. But the corollaries are also true: a claimant is not entitled to be compensated, and a defendant is not bound to compensate the claimant, for damage not caused by the negligence complained of."Trite law needs no reinforcement by an anxious parade of supporting authority. Nevertheless, given the judge's express reference to the "but for" test, perhaps reference to the broad approach to this issue identified by Lord Nicholls of Birkenhead in Fairchild will be forgiven. He said:"In the normal way, in order to recover damages for negligence, a plaintiff must prove that but for the defendant's wrongful conduct he would not have sustained the harm or loss in question. He must establish at least this degree of causal connection between his damage and the defendant's conduct before the defendant will be held responsible for the damage. Exceptionally this is not so. …"In effect, Mr Burton submitted that this is such an exceptional case to which, again in Lord Nicholl's words later in his speech, "a lesser degree of causal connection" sufficed.31. I should record at the outset that, after considering Mr Burton's submissions, I have concluded that what I have described as the first principle of causation remains the applicable starting and the finishing point in this case. Nevertheless in deference to his argument, I must consider his analysis of the authorities. 32. This began with Bonnington Castings Ltd v Wardlaw. An employee claimed that he had contracted pneumoconiosis as a result of inhaling silica dust in the course of his employment. The dust came from two sources, and there was a breach of duty in relation to only one of them. The critical question was whether the dust inhaled from that source materially contributed to the disease. In a passage echoed in the judgment presently under consideration, Lord Reid observed: "What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle yet too small to be material."Mr Burton drew particular attention to the observation of Lord Rodger of Earlsferry in Fairchild, commenting on Bonnington, that it was "enough that the defendant's wrongful act materially contributed to the claimant's injury" and that accordingly "the law is not applying the causa sine qua non or "but for" test of causation". 33. In McGhee v National Coal Board the House of Lords was concerned with another problem of fault exposure to unacceptable conditions at work over a lengthy period. In consequence Mr McGhee developed dermatitis. His case was that the

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provision of a shower would have reduced but not eliminated the risk of dermatitis, which might have developed in any event. Lord Reid commented: "From a broad and practical viewpoint I can see no substantial difference between saying that what the defendant did materially increased the risk of injury to the pursuer and in saying that what the defendant did made a material contribution to his injury."34. Lord Simon regarded it as unreal to draw a sharp distinction between the breach of duty and causation. Lord Salmon, too, suggested that the distinction between materially increasing the risk of contracting the disease and having materially contributed to causing the disease was "far too unreal to be recognised by the common law". In short, not altogether helpfully to Mr Burton's present submissions, together with Lord Simon and Lord Reid, in the context then receiving attention, he examined and rejected the purported distinction. 35. Mr Burton drew attention to the text in Munkman on Employer's Liability (13th edition, 2001) summarising the test in the context of the liability of employers for accidents at work. The proposition he relies on is summarised in this passage: "The courts are prepared to infer that increased exposure to risk has contributed to, and hence caused, the accident. Examples provided to sustain this proposition include Lee v Nursery [1945] 1 All ER 387; Cork v Kirby [1952] 2 All ER 402; McClymont v Glascow [1971] SLT 45."36. Mr Burton referred specifically to the first two decisions. In my view, however, both decisions must now be approached with considerable caution. Bonnington made plain that the normal burden of proof was not to be shifted. Referring to this line of authority, Lord Reid agreed that a court should not be "astute to find against any party", but should apply the ordinary standards. Lord Tucker emphasised that the question whether the plaintiff had proved that the injury complained of had been caused by breach of duty depended on the particular facts and the proper inferences to be drawn from them. The same principle was described by Lord Keith of Avonholme as "elementary". To the extent that in McGhee, Lord Wilberforce suggested a different approach to the burden of proof, his views did not find favour when they were considered later in the House of Lords in Wilsher and Fairchild. 37. If further emphasis were needed, it is perhaps to be found in the rejection by the House of Lords, again in Wilsher and Fairchild, of the principle, as Mustill LJ endeavoured to identify it in the Court of Appeal in Wilsher v Essex Area Health Authority [1987] QB 730. He suggested: "If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that one party owes a duty not to conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained."38. Sir Nicholas Browne-Wilkinson VC disagreed. Wilsher was "wholly different" from McGhee. The context was clinical negligence. There were a number of possible causes for the development of retrolental fibroplasias, which resulted in the blindness of a premature baby. The defendant failed to take reasonable precautions to reduce excess oxygen. That was one possible cause of the plaintiff's condition, constituting a breach of duty by the defendant which could have caused it. However, although the breach increased the risk that this plaintiff's unhappy condition might develop, liability was not established. As the Vice Chancellor explained, in McGhee brick dust was the only explanation for the onset of dermatitis, and the failure "to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust … I can see the common sense, if not the logic, of holding that in the absence of any other evidence, the failure to take the precaution caused or

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contributed to the dermatitis." On the other hand, "a failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury". In the House of the Lords, the reasoning of the Vice Chancellor was adopted, and that of Mustill LJ rejected. In Fairchild, that rejection was endorsed. Lord Bingham supported the reasoning of the Vice Chancellor. Lord Hoffman rejected the broad principle identified by Mustill LJ. Lord Rodger of Earlsferry stated in terms that this approach would result "in obvious injustice to the defendants." 39. In the House of Lords in Wilsher v Essex Area Health Authority the only opinion was given by Lord Bridge of Harwich, with whom the other members of the House agreed. Lord Bridge commented that the decision in McGhee did not support any attempt "to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation" after a breach of duty had been established. This particular observation is no longer treated as authoritative (see per Lord Bingham of Cornhill in Fairchild at paragraph 22; per Lord Nicholls at paragraph 45; per Lord Hoffmann at paragraph 70; per Lord Rodger of Earlsferry at paragraph 150), but its rejection does not advance Mr Burton's argument. The correctness of the decision in McGhee – that the claim for damages failed, notwithstanding that the defendant health authority's breach of duty increased the risk of injury to the plaintiff – was not doubted. 40. Fitzgerald v Lane was an action for personal injuries by a plaintiff who was struck by two vehicles. The first threw him onto its bonnet, from whence he was propelled into the road, where another car struck him. Four possible causes of his tetraplegia were established. For present purposes it is sufficient only to notice that this Court was plainly influenced by the decision of the majority of the Court of Appeal in the then recently decided Wilsher, and in particular the principle identified by Mustill LJ, now deprived of authority. As Nourse LJ put it: "… The majority have now shown us that the decision in the McGhee case established a principle whose application is wide enough to bridge the evidential gap in this case as comprehensively as it did in the other two. The decision of the majority now binds this Court … a benevolent principle smiles on these factual uncertainties and melts them all away."It is unnecessary to comment on the correctness, or otherwise, of the eventual decision in Fitzgerald, but sufficient for present purposes to highlight that the apparent benevolence of the principle has not enabled its further extension beyond the limitations laid down by the House of Lords in Wilsher, and in Fairchild. 41. The litigation in Fairchild arose from the development of industrial disease, mesothelioma, following fault exposure to asbestos fibres at work. The disease may be caused by a single fibre, a few fibres, or many fibres, and once malignancy has developed, the condition is not exacerbated by further exposure. The problem for the plaintiffs was that they had worked for a number of different employers at different sites where they had been negligently exposed to asbestos fibres. The Court of Appeal concluded that causation was not established. Although fault exposure to a fibre or fibres occurred at their places of employment, the plaintiffs could not establish that the fibres which caused the onset of mesothelioma resulted from any particular breach of duty by any particular employee. The court was therefore unable to close the "evidential gap". The House of Lords addressed the problem whether, in the special circumstances, the conventional approach to causation was appropriate, and concluded that the interests of justice required that the normal rules of causation should be relaxed and modified. It was not necessary for the claimant to establish that the disease from which he suffered would not have occurred "but for" an individual defendant's breach of duty. "The ordinary approach to proof of causation" was varied (per Lord Bingham). It was one of those cases where "a lesser degree of causal connection" sufficed (per Lord Nicholls). When medical science could not yet establish which particular moment of fault exposure

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caused the claimant's condition, it was open to the House of Lords "to formulate a different causal requirement in this class of case" (per Lord Hoffmann). The circumstances in which it may be appropriate to modify or extend the conventional approach to causation were identified by Lord Bingham, Lord Hoffmann and Lord Rodger, but in ways which were not identical. Although Fairchild undoubtedly represents a development in the conventional principles relating to causation, the reasoning does not undermine but rather reinforces what Lord Bingham himself was later to identify in Chester, in the passage quoted in paragraph 30, as "trite law", at any rate in cases of personal injury consequent on an individual, specific occasion of negligence for which (discounting situations like vicarious liability) a single party was responsible. 42. I must return to Chester, to observe that the conclusion of the majority, favouring a narrow development of causation principles to enable the court to uphold the right of a patient to be properly informed by her doctor of the possible risks of agreeing to a surgical procedure, did not dilute the essential principle. (See per Lord Steyn at paragraph 23; per Lord Hope at paragraph 85; per Lord Walker at paragraph 101, applying Fairchild.) What happened, in essence, is that the approach to causation was modified to emphasise a wider principle. This was a policy decision with no application to cases like this. 43. The authorities to which Mr Burton drew attention establish that the "but for" test, applied in its full rigour, should no longer be treated as a single, invariable test applicable to causation issues, in whatever circumstances they may arise. The question in the present appeal is whether Fairchild, and the series of decisions developing the law of which it represented the culmination (subject of course to subsequent developments) have any application here. In my judgment, in agreement with the judge, they do not. On any view, it would be absurd to describe this unfortunate accident as exceptional. Accidents like this happen all too frequently, and even though negligence by an identified tortfeasor is established, the question still remains whether the negligence caused the claimant's injuries. A successful claim for damages for personal injuries consequent on negligence or breach of duty requires the court to be satisfied that the injuries were indeed consequent on the defendant's negligence. Even if it may have some application in different situations, the distinction sought to be drawn by Mr Burton between material contribution to damage and material contribution to the risk of damage has no application to cases where the claimant's injuries arose from a single incident. In this Court any modification of the principles relating to causation in the context of claims for damages for personal injury must be approached with the greatest caution. Certainly, however the law of causation may develop, save in the House of Lords, it cannot develop in a way which revives or is dependent on the approach adopted by Mustill LJ in Wilsher, and subsequently twice rejected in the House of Lords. That route is closed. In reality, for the purposes of cases like this, trite law is unchanged. 44. The breadth of Mr Burton's submission may have distracted attention from a single but potent consideration. In the context of causation, the two words "but for" are shorthand. They encapsulate a principle understood by lawyers, but applied literally, or as if the two words embody the entire principle, the words can mislead. They may convey the impression that the claimant's claim for damages for personal injuries must fail unless he can prove that the defendant's negligence was the only, or the single, or even, chronologically the last cause of his injuries. The authorities demonstrate that such an impression would be incorrect. The claimant is required to establish a causal link between the negligence of the defendant and his injuries, or, in short, that his injuries were indeed consequent on the negligence. Although, on its own it is not enough for him to show that the defendant created an increased risk of injury, the necessary causal link would be established if, as a matter of inference from the evidence, the defendant's negligence made a material contribution to the claimant's injuries. As Lord Rodger explained and demonstrated in Fairchild, there

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was "nothing new" in Lord Reid's comment in Bonnington that what was required was for the plaintiff to make it appear at least "that, on a balance of probabilities, a breach of duty caused, or materially contributed to, his injury". Lord Rodger observed that there was ample authority for the proposition in English and Scots law, both before and after Lord Reid had, in effect, treated it as so elementary that it required no support from authority. 45. This, as it seems to me, was precisely reflected in the approach taken by the judge. In paragraph 74, he referred to the "but for" principle, but accepted, alternatively, that it would be sufficient for the claimant to prove "on the balance of probabilities, that the absence of proper non-slip paint caused or materially contributed to his slip and subsequent fall". In short, the judge correctly identified the appropriate principle, and rightly rejected the suggestion made to him that Fairchild had any application to the present case. Thereafter he examined what he described as a fundamental difficulty arising from the argument that the appellant's claim should succeed because he had established that the surface of the wall carried an increased risk of a slip when compared with the risk of slipping if the wall had been painted with non-slip paint. However as he had already correctly directed himself in law, for the reasons I have endeavoured to explain, it was not strictly necessary for him to have decided this issue. 46. The single question, therefore, is whether any proper basis for interfering with the judge's factual findings on causation has been shown. This has not been an easy decision, and I shall not disguise that as I have reflected on it, my view of the case has varied. This hesitation has been reinforced by my concern about the possible impact of the judge's erroneous failure to recognise that the application of non-slip paint was intended to protect the inebriated as well as the sober. 47. Mr Faulks's submissions on the facts had the attraction of simplicity. The judge remained unpersuaded that the claimant's slip was caused, or materially contributed to, by the absence of non-slip paint on the surface of the wall. Non-slip paint would have made the surface less slippery, but not non-slippery, nor removed altogether the risk of a slip by someone walking on the top of the wall with wet feet. So the risk of a slip was inevitable, and the fact that the claimant slipped did not of itself demonstrate that the slip resulted from the absence of non-slip paint. There was therefore no sufficient evidence to establish a causal link between the negligent absence of non-slip paint and the appellant's subsequent fall. He reminded us of the need to respect the factual conclusion reached by the judge, a consideration of particular force here, where the judgment under consideration has examined the issues with great care. 48. This is persuasive reasoning. The practical reality of the case is that the judge was not satisfied on the balance of probabilities that the appellant's accident would have been avoided if non-slip paint had been used on the surface of the wall. In short, the risk represented by the absence of non-slip paint was just that, an increased risk which in his judgment, as a matter of fact, did not cause or materially contribute to the appellant's accident. These are findings with which this Court should not interfere. 49. For these reasons, this appeal must be dismissed.

CHRISTIAN POTTER V TUI UK limited23 March 2006HHJ Marr-JohnsonMayor’s Court

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The Claimant rented a villa with an attached tennis court from TUI in April 2004. On his first evening he and his friends went for a “knock-up”. They played for about 20 minutes, after which when running for a wide forehand, the Claimant slipped (he alleged) on wet moss on the surface of the court. The “moss” was not of the green slimy variety, but he described it as a dark brown discolouration of the court. He fractured his wrist. He sued.

The basis of his claim was that any tennis court should be fit to be used for tennis and that meant it should be free from substances likely to cause someone to slip. Alternatively, he and his friends should have been warned that the surface was not free of hazards such as slippery moss.

Judgment for the Defendant. The Judge was unable to conclude that the court was unfit for its purpose. He adopted reasoning in the Defendant’s skeleton argument thus:

This was a holiday villa tennis court, not Wimbledon or Roland Garros or even a David Lloyd centre – and what is reasonable should be judged in context.

Photos taken by the Claimant were taken no doubt to demonstrate the condition of the court where the Claimant slipped – but it was far from obvious from those pictures why this court was said to be unreasonable.

It may well be inevitable that an outdoor court will have modest imperfections – including the odd growth here and there, but that does not render its condition unreasonable.

The Court was pressured washed annually in March (according to Civil Evidence Act evidence from the proprietor)

It had been in situ for many years (22) without any other untoward incidents.

There is a risk of slipping on any tennis court (particularly one of grass, or shale - & on shale players sometime deliberately slide around). This concrete surface was in reasonable condition even if affected by a dusting of moss here and there.

It would be unreasonable to expect a court such as this to have a perfect or ideal surface, not least of all because such a standard would inevitably lead to the withdrawal of such facilities from holiday villas and hotel complexes in the face of potential legal action for rare accidents.

Players (of the Claimant’s experience) did not need to be warned.

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LOCAL STANDARDS IN THE GUILDFORD COUNTY COURT

SEAN PRYNN-and-FRANK WOOLLEY trading as“ROMANO TRAVEL”March 2006

HHJ Reid QC

The Claimant sued for personal injury damages as a result of falling down the stairs at his holiday apartment at the Jardines Clubhouse (apartment 332) in Malaga on 14 August 2000. He and his family had arrived for their package holiday the evening before. On arrival the Claimant and his wife considered the (only) staircase at the apartment to be dangerous. Just after 7.00am on 14 August (first full day) the Claimant fell from about the fifth step down – fell all the way down and suffered a pneumothorax. [He was then 41]. The Claimant alleged an “improper performance” (i.e. breach of the implied term) of the holiday contract in two linked respects:

(a) The staircase was dangerous – and not of a reasonable standard.

(b) The Defendant had done nothing (and so much is common ground) to check-out (by means of local agents of course) the standard of the property he was selling as part of the package holiday.

There was no handrail at the material point of the stairs (the most dangerous being the sharp curve where the Claimant fell); the treads were of uneven size and there was no non-slip finish on the treads. All of these probably contributed to the Claimant’s fall.

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The Defendant (despite averring that local safety regulations applied) did not produced evidence to the effect that the Spanish safety regulations relied on by the Spanish safety expert did not apply although there were obvious and apparent doubts as to whether the regulations relied on were in force at the time the apartment was built.

However, it was alleged that apparent non-compliance with the Spanish regulations was good evidence that the premises were not of a reasonable standard. The pictures were enough to illustrate that the staircase was a menace – even for someone like the Claimant who had noted its problems when he first arrived the day before.

The Judge agreed that there was no meaningful handrail, and that the stairs were steep and narrow, and likely to be slippery. He felt that as regards children the safety measures were not good enough – and in that regard the staircase was not a reasonable standard. However, an adult aware of the limitations of the stairs, should have been able to cope with them and whilst they were far from ideal the stairs were not unlike many encountered in Spanish apartments and for that reason could not be described as “unreasonable”. Accordingly, though less than ideal, the stairs did not represent any failure to perform the holiday contract to a reasonable standard and the claim was dismissed.

Simmonds v TUIGuildford County Court1 November 2006HHJ Reid QC

Mrs Simmonds stepped off the last stair on an outside staircase in her holiday hotel in Greece. She was on her way to breakfast at about 9.00am. As she did so she stepped in some water on the corridor floor below and fell breaking her ankle. She sued TUI on the conventional basis. She alleged:

The steps should have had a handrail The last step was higher than the rest which took her by surprise The floor surface was not covered with anti-slip material The cleaners had just been on the scene and had failed to dry mop the floor

The action was contested on the basis that any water on the floor must have been the result of dripping swimmers from the pool 30 yards away and there was no duty on the hotel to ensure that such occasional drippers were followed around and the floor dried after them. The Claimant’s contention that the floor was flooded was disputed. There was no evidence of any leaking taps, sprinklers or bucket swilling cleaners – and Mr. Simmonds who went to look for help found not staff of any sort anywhere near the place where the accident occurred, so it was unlikely that cleaners had been there at all, let alone swilling the floor.

Operational Negligence

The judge found for the Claimant on the grounds that there must have been one, uncharacteristic operational failure (negligence) on the part of the cleaners that day. He accepted that the hotel’s system was a good one – early morning cleaning with 2 cleaners one dry-mopper following a wet mopper; but that on the day in question they simply must have been late and neglected to dry mop.

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The judge rejected the Claimant’s evidence that the floor was swimming in water but found the wetness was significant in the circumstances outlined above. He was unimpressed with the theory that the only cause could have been wet swimmers.

Local Standards

The claim based on lack of handrail, high step and absence of anti-slip floor surface was not made out. The judge accepted that photographs of a number of local hotels showed that the floor and steps in issue were commonplace in this part of Greece irrespective of local regulations that appeared to require a handrail and evenly spaced steps. The judge concluded that the custom and practice “on the ground” was more realistically representative of local standards than the Single Joint Expert evidence. [The case of Singh v Libra Holidays 2002 (which concludes the contrary] was not cited.

BRISTOL COUNTY COURTDate: 19th October 2006

MISS RECORDER JACKLIN QCMRS JANE MARIE GODFREY Claimant- and -THOMSON HOLIDAYS Defendant

JUDGMENT

1. This is the hearing of a claim by Mrs Jane Godfrey arising out of a holiday which she and her husband Mr Godfrey took in July 2002, along with their two sons then aged ten and thirteen. I am very grateful to both counsel for the assistance they have given me in terms of skeleton arguments, authorities and their submissions.2. I have considered the documents in the bundle, in particular the pleadings and the statements of the three witnesses from whom I heard oral evidence, being Mrs Jane Godfrey and her husband and also the director of the hotel in question, the San Miguel hotel in Ibiza, Mr Carbonell, who gave evidence before me. I have not taken into account any of the evidence in documentary form at pages 42 to 44 and page 68 save in so far as any part of it was accepted by the claimant or her witness, her husband.3. The defendants are Thompson’s Holidays. At one stage it is apparent from the pleadings that there was some confusion about the identity of the defendants, but that has now been laid to rest and I propose to refer to the defendants as Thompsons.4. This hearing is simply on the issue of liability. Of particular significance in terms of documents in the case, are the sketch plans and photographs produced by and on behalf of the claimant on the one hand, attached to her own statement, and by and on behalf of the defendants, attached to the statement of Mr Carbanell and I will return to those in due course. 5. On the 5th of July 2002 the family flew to Ibiza for a two week holiday. It had been booked by Mr Godfrey and they had booked a room at the hotel San Miguel, it was known as a “double four” room which means it was a standard double

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room but containing a double bed as well as two single beds so that what was otherwise a standard double room could be occupied by four people, and by four people I mean four adults, if necessary, not just two adults and two children as in this case.6. The plan produced by Mrs Godfrey, attached to her statement, she says was produced some time last year, well after she had instructed solicitors in this claim. Of course that means that it must have been prepared some three years after the events in question. The photographs that she attaches to her statement, it transpires were taken by her husband and he said that he took those photographs part way through the holiday before the incident on the 14th of July with which I am concerned, and that they were taken simply to get photos of the children.7. I have to say I do not find that a very credible explanation as to the nature and purpose of these photographs; the focus of them is clearly on the position of the beds in the room in relation to the air conditioning unit which is so crucial to the determination of this case, and in relation to the window and the double bed that was in the centre of the room.8. There are just (inaudible) of these children which seems to be very much an incidental part of the photographs, not at all central to them as one would expect if the purpose of the photographs was to have photographs of the children themselves, and the explanation by Mr Godfrey, which I do not find at all convincing, has really cast a shadow over his credibility generally. 9. Equally, Mrs Godfrey’s evidence was unsatisfactory in several respects and I found her really not particularly reliable. She for example was shown a document by Mr Chapman in cross examination which seemed to suggest that contrary to what she had said in her statement and in her oral evidence, she had herself turned on the air conditioning on several occasions. She then reverted, on further cross examination, to the previous position of saying that she had only turned on the air conditioning on two occasions and in fact there was only one occasion before the incident of the 14th of July.10. I mark these things up because as is so common in these cases, we have a central factual dispute that is at the heart of the case and I have to assess the reliability of the witnesses. As far as Mr Carbanell is concerned, who gave evidence through an interpreter, I found him to be consistent and reliable. 11. It is common ground that the lay out of the room occupied by Mr and Mrs Godfrey and the boys consisted of a double bed in the centre of the room and two smaller beds placed side by side at the far end of the room by the window - and to the right of the window, two metres above the ground, was the air conditioning unit. 12. It is the claimant’s case that the beds were right up against the wall, whereby the only means of accessing the air conditioning unit and inserting the key to operate it, was to stand on the bed below. The claimant’s case is that on the 14th of July, nine days into the holiday, she went into the room, on her own, in the afternoon intending to have a rest. It was hot, as one would expect at this time of year in Ibiza and the use of the air conditioning unit was absolutely essential. She stepped on to the first of the two single beds and then on to the second and as she was reaching up to put the key into the lock at the bottom right hand corner of the air conditioning unit, some of the slats in the bed, upon which the mattress rests, popped out of the retainers in the bed frame and the mattress dropped to the floor with her standing on it, causing her to jerk herself and cause an injury to her neck. 13. It is the claimant’s case that the staff at the hotel San Miguel, as servants or agents of the defendants, Thompsons, failed to perform their obligations under the contract properly and by reason of regulation 15.2 of the Package Holidays and Package Tours Regulations (1992) the defendants, Thompsons, are liable as their principals for the failures of the staff at the hotel.

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14. Indeed, there is no dispute that if I were to find that the staff at the hotel failed to carry out their obligation under their contract, then Thompsons would be liable.15. The relevant obligations under the contract are set out in paragraphs 3.3 and 3.4 of the Particulars of Claim and there is no dispute about those terms and the alleged breaches are set out in paragraph 6 on page 6 of the bundle. Firstly it is asserted that the beds provided were not suitable, nor reasonably free from risk of injury to users and reliance is placed on the fact that the bed gave way when the claimant stood on it. At paragraph 2 of clause 6 it says the bed that gave way was not kept or maintained in a way that it was free from risk of injury to users. Had it been properly kept and maintained it would not have collapsed in the manner in which it did. Well I reject any assertion on behalf of the claimant that the beds in question were not fit for the purpose. Their purpose was for sleeping or sitting on or lying on and not for standing on and clearly they were fit for that purpose because they were slept on for two weeks, and sat upon and the only incidents that are complained of involved standing upon them.16. So the heart of this case is whether or not there really was a necessity to stand on the bed to reach the air conditioning unit. In my judgment it really comes down to items a, b and c under 6.3. Firstly it is asserted that the air conditioning unit was positioned at a height which meant that it could not be operated by the claimant from floor level. Well as it turns out, Mrs Godfrey never tried to operate the air conditioning unit from floor level. In her evidence she said:“I suppose I could have put my hand up to it if there had been enough of a gap, but not put anything in. Yes, I mean by that the key”.

But she reiterated that she had never in fact tried to do so.17. Mrs Godfrey is five feet six inches tall and I worked that out to be 1.67 metres using 2.54 centimetres to the inch. In the bundle we have a photograph of a representative of Thompsons called Geraldine, who is seen reaching up to the air conditioning unit in a room which is either the one that the Godfreys stayed in, or very similar to it. I accept Mr Carbanell’s evidence that the rooms were all the same and he said that Geraldine is 1.65 metres and she can clearly be seen with her hand placed at the bottom of the air conditioning unit, over the area where the key hole is, into which the key is placed, in order to operate the air conditioning unit. In the light of that evidence and Mrs Godfrey’s confession that she never even tried it I reject that part of the case that asserts that the air conditioning unit was at such a height that Mrs Godfrey could not reach it from floor level.18. It is then asserted that the room was laid out in such a way that the only means of accessing the air conditioning unit was over the beds. Now this brings us to a major factual issue in this case and that is the position of the beds. Mr Carbanell’s evidence is that the position of the beds as arranged by the hotel, was as set out on page 120 in the plan that was drawn up in about October 2002, when Thompsons were first aware of a potential claim and as also seen in the photographs at page 125 where there is a gap between the bed closest to the window and the wall whereby there would be sufficient room for someone to do, as Geraldine is seen doing, go along the gap and turn the air conditioning on.19. It was Mr Carbanell’s evidence that before guests are admitted, the room is checked to ensure that it is made out as it should be and he said that the maids check that themselves each day when they make the beds. 20. Mr and Mrs Godfrey say that the single beds were in the position that Mrs Godfrey has set out on the sketch plan attached to her statement at page 104, namely that the beds were not only against each other but the further one, if I may put it that way, was right up against the wall with no gap. That was certainly the picture that was presented by reference to that plan that Mrs Godfrey drew and also in her statement that she provided for the court.

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21. I have to ask myself why would that be that they would be placed up against the wall when the standard lay out in the hotel’s procedure is that there is a gap along which the user of the room can move to turn on the air conditioning unit and it seems to me that the only persons who would benefit from the beds being pushed up right against the wall, if they were so pushed up, would be Mr and Mrs Godfrey and their sons because they clearly found that the room was rather cramped for their purposes and indeed had asked for a larger room to be provided but they were told that that was not possible.22. It may well be that the beds remained in that position throughout the holiday but I am not satisfied on the evidence that it was the hotel staff who put them in that position in the first place and that they were at fault in any way in that respect.23. Again, this arises because of my dissatisfaction with the oral evidence compared to the written evidence. It transpired in the oral evidence of Mr Godfrey that there was a gap of about six inches between the bed and the wall. He had not mentioned this before and he said he had tried to activate the air conditioning unit by moving along that gap but it was not possible for him to activate the unit because it stood proud of the wall by two inches and he was not able to move himself to insert the key and so he stepped on to the bed. Well, for the reasons I have already referred to in terms of the photograph of Geraldine who was a lot shorter than Mr Godfrey, I am afraid I do not accept that at all. It seems to me that it was perfectly possible to move along in that gap and to insert the key into the air conditioning unit.24. I also do not accept that the only means of accessing the air conditioning unit was over the folding beds. Even if for one reason or another Mrs Godfrey found that the beds were, when she went into the room, up against the wall all that had to be done was to move the beds over to a very small extent. It is common ground that the beds were light and could be moved over, indeed, it is obvious that the maids must have moved them everyday when making up the beds. Mrs Godfrey’s answer to the question about moving beds, was that she was on holiday and it was not for her to move furniture. I find that answer thoroughly unacceptable when it was a perfectly feasible option and indeed earlier on in her oral evidence when asked about there being a gap between the bed and the wall, she said:“the bedroom was not laid out like that, if it had been I could have moved the chair over for the purpose of standing on it”.

Well she clearly was prepared to move a chair if necessary, why she would not be prepared to push a bed over for the purpose of getting access to the air conditioning unit, just does not make any sense.25. It follows that I reject paragraph c in the assertions contained in paragraph 6.c of the Particulars of Claim, namely that it was assumed that persons using the room were likely to use the bed to stand on to reach the air conditioning unit and therefore the beds should have been reasonably safe for that purpose. I do not accept that Mrs Godfrey, or indeed Mr Godfrey, was put in a position where they had to stand on the bed in order to access the air conditioning unit. I should add this, in any event, Mr Godfrey had said, he stepped on to the bed on the first day of their holiday and the slats gave way. On that occasion he placed his foot in the middle of the mattress and because of that the slats had given way and therefore after that time he moved alongside the bed and then stepped on to the edge of the frame as a precautionary measure to avoid going through the slats. It is clear from Mrs Godfrey’s evidence that she had seen him do that, she described it in her evidence and despite having seen how he took care even when he decided to use the bed, she in her evidence said that she had stepped on to the mattress having firstly stepped on to the first bed and then on to the second. In my judgment it was entirely her own risk in stepping on to the bed and it was entirely her own fault that her injury occurred. In conclusion I can find no breach of the contractual obligations by

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the hotel staff and therefore I find no breaches by Thompsons and I dismiss this claim.

First Choice Holidays v Hotetur Club Birmingham CC January 2006HHJ HamptonFirst Choice compromised a large number of illness claims related to summer holidays at the Lagomonte Hotel in Majorca over the course of the summer of 2000. The illnesses were all triggered by cryptosporidium (a water-borne pathogen that thrives in swimming pools following faecal “accidents”). Having settled the Claimants’ claims, First Choice pursued the Spanish hotel owner (Hotetur Club) in Part 20 proceedings. The basis of the tour operator’s Part 20 claim was its contractual indemnity with Hotetur Club whereby the owners had warranted in effect that visitors to the Lagomonte Hotel would be safe, and the facilities would comply with locally applicable standards.

The problem facing the hotel proprietor in this instance was that the local (Majorcan) swimming pool regulations came with a water purity specification. That specification was that the pool water should be “pathogen free”.

Despite expert evidence claiming that cryptosporidium was not known as a pathogen in Spanish swimming pools in 2000, and worse, once in the pool it was virtually impossible to get rid of it (it is not killed by chlorine other than in “nuclear” doses that would also harm human users) – the Hotel was unable to overcome the problem that the Majorcan water specification was a severe one.

The outcome was that the Hotel had to indemnify First Choice in respect of all the Claimants’ claims and costs, and were ordered to pay costs to First Choice on the indemnity basis (as the indemnity contract provided). The trial judge was satisfied that the “pathogen free” specification prevailed and the effect of this was to throw all the risk of illness occurring onto the Hotel in order to protect public visitors and the local tourist industry. There was no reason for giving the water specification anything but its apparently clear, literal meaning.

Such “absolute” technical specifications or standards are likely to be few and far between – and must be proved in each case they are relied on but this case illustrates the value of a solid indemnity contract with the overseas hotelier.

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Harbord v Thomas Cook Airlines

DENIED BOARDING COMPENSATION30th January 2006, District Judge Jenkins. (Oxford County Court)Sarah Prager writes:

The FactsThe Claimant booked a flight from Stansted to Vancouver which was due to depart at 1.15pm on 5th August 2005 (flight number TCX 24K). Due to a serious and very unusual fault with one of the Defendant’s two aircraft capable of undertaking the flight, the flight could not depart on time. In due course all Stansted passengers were told that they could board the aircraft at Manchester (its place of departure prior to Stansted) and fly direct to Vancouver. They would be bussed to Manchester, provided with food and accommodation, and taken to the airport for boarding. In the fullness of time the passengers boarded the flight at 1.15pm on 6th August 2005 and flew to Vancouver. The original flight number was retained.

The ClaimMr H refused to go to Manchester. He was given a full refund of the ticket price, and claimed in addition the sum of €1,200 on behalf of himself and his son. He said that he was entitled to this sum pursuant to Article 5(c) of the Denied Boarding Regulations, because, he said, the flight had been cancelled. The Defendant disputed that the flight had been cancelled and contended that it had merely been delayed; and said that even if it had been cancelled, there was a defence to the claim pursuant to Article 5(3), which provides that the carrier shall not be obliged to pay such compensation if it can prove that the cancellation was caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken.

The JudgmentThe District Judge held that the flight had been cancelled and not delayed, and that the Defendant had failed to make out its defence under Article 5(3). He based his

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first finding on the fact that the flight never left Stansted for Vancouver, but left from Manchester. The fact that the flight number remained unaltered was, he thought, irrelevant. He also thought (for reasons which remain unclear) that the time differential of 24 hours was more indicative of cancellation than of delay. It is instructive that he relied, in part, on the Defendant’s own description of the problem as a ‘cancellation’ rather than a ‘delay’ in its initial customer care letters. The argument that those who work in customer services do not necessarily have the finer points of recent European legislation at their fingertips did not wash with him.

Paragraph 14 of the Preamble to the Regulations states that, “…obligations on operating air carriers should be limited or excluded in cases where an event has been caused by extraordinary circumstances which could not have been avoided even if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political instability, meteorological conditions incompatible with the operation of the flight concerned, security risks, unexpected flight safety shortcomings and strikes that affect the operation of an operating air carrier…”The Defendant relied on the Preamble and on Article 5(3) as providing a defence where the cancellation was due to a highly unusual and unforeseeable technical defect which compromised the safety of an aircraft. It is unclear from the judgment whether or not the judge actually accepted that the defect in this case fell within this category, but it is submitted that he must have done – similar faults had occurred only 3 times worldwide, and the evidence was that if the Defendant had allowed the aircraft to fly the consequences might well have been catastrophic.

Nevertheless, the judge was not impressed with the Defendant’s defence. He found that an airline could only rely on the Article 5(3) defence if it could show that the aircraft affected by the fault had actually been allocated to the relevant flight prior to discovery of the fault. Because the Defendant does not allocate aircraft 3 days in advance of flight, at the time the fault was discovered the relevant craft had not been allocated to the relevant flight. The fact that the Defendant only had 2 aircraft capable of undertaking the flight, and one of them was out of action, was irrelevant. The Defendant had failed to show that the fault caused the cancellation.

It is submitted that this must be wrong. The judge’s ruling flies in the face of the language of the Preamble and of the clear wording of the Article, neither of which provides for any such restriction. In fact, the Preamble specifically allows for the defence to be made out where the airline shows that its ‘operation’ has been affected, as opposed to one particular flight.

A postscript: the Defendant did not appeal the decision on the basis that there was a risk that it might be upheld by a higher court, the ruling of which would then attract publicity. Within a few days of the judgment, however, the airline and its representatives were contacted by journalists from The Times and The Guardian, and a couple of days later the case was reported in the national press. It is understood that this publicity has filtered into the consciousness of the travelling public.

Wiseman v Virgin Airways [2006] EWHC 1566 (QB)

Dr Raphael Wiseman purchased a return flight to Port Harcourt, Nigeria, with Virgin Atlantic Airways. The outbound flight was uneventful. When, however, he presented himself at the check-in desk to return to London, the Virgin Atlantic staff refused to allow him to board the plane. Mr Justice Eady, who heard his claim,

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stating that Dr Wiseman’s evidence indicated that he had been treated ‘appallingly’. By all accounts, he had certainly suffered an extraordinarily unfortunate series of events. To begin with, he was asked by the Virgin Atlantic Staff for a bribe. When he refused to comply, he was accused of carrying a fake passport, publicly ridiculed and accused of being a criminal. His humiliation was exacerbated by the fact that he was travelling with his “entourage” (a group of friends from his church), some of whom heard the accusations, causing him to “lose face”. To add insult to injury (or perhaps vice-versa) during the time that he was forced to stay in Nigeria, he was assaulted by a gang of robbers. The final blow came when, after finally being allowed to return to London, his former fiancée ended their engagement and asked him to reimburse the expenses that she had incurred whilst he had been abroad.

None of these facts was disputed by Virgin, who, perhaps unsurprisingly, admitted that they were in breach of contract. The only issue before the court was the quantum of the claim. Dr Wiseman was seeking to recover £19,999, most of which comprised a claim for general damages for the mental distress, anguish and humiliation that he had suffered.

The judge awarded Dr Wiseman £2147.42 special damage in respect of the expenses that he had incurred as a result of his forced stay in Nigeria. This included the cost of reasonable hotel accommodation, restaurant bills, taxi fares, and postage and telephone calls. His claim for the expenses incurred by his ex-fiancée was, however, dismissed. Returning to first principles, the judge concluded that the loss was suffered not by Dr Wiseman, but by his ex-fiancée herself, with whom Virgin had no contractual relationship. In respect of those expenses that Dr Wiseman had actually paid to her, these were simply to too remote in all the circumstances of the case.

The Claim for upset and distress caused by the failure of his relationship was also unsuccessful. Not only had Dr Wiseman failed to establish causation, but the judge, citing the well-known Court of Appeal decision in Watts v Morrow 2 , held that damages for “loss of society” were not recoverable as a matter of law.

The ‘entourage’ was equally unlucky. They had incurred expenses overnight because it was not safe for them to return home until the following day. These too were held to be too remote.

The judge then turned his attention to Dr Wiseman’s wider claim for ‘mental distress and trauma’. He held that it was well established that, save for a number of exceptional circumstances, damages for injury to reputation or hurt feelings were not recoverable in a claim for breach of contact. This was not a situation in which Dr Wiseman had contracted for a ‘holiday’ (which would fall into the exceptional group of contracts which are entered into for the purposes of providing “peace and enjoyment’), but was a straightforward contract of carriage. Furthermore, given that Dr Wiseman had stayed in comfortable hotel accommodation, albeit at his own expense, his distress could not be said to have resulted from ‘physical’ inconvenience, another of the limited exceptions to the general rule.

The Court concluded that there was no convincing evidence that Dr Wiseman had actually suffered a ‘personal injury’ in the form of psychological damage. If this had been established, then damages could have been recovered, as a matter of principle, but only if Dr Wiseman had been able to prove that they were in the reasonable contemplation of the parties, when the contract was formed, as a ‘not unlikely consequence’ of a breach of the contract. In a passage that will come as a great relief to many in the airline industry, Mr Justice Eady stated as follows:2 [1991] 1 WLR 1421

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“In this context, I must conclude that it would not have been in the contemplation of the parties that the mere fact of not permitting a passenger to board the aircraft for his return flight would lead to a breakdown in health (although obviously it would cause inconvenience and, quite possibly, also frustration, temporary anxiety and distress”

Finally, the Court concluded that Virgin Atlantic could not be held liable for the fact that Dr Wiseman was assaulted by robbers during his stay in Nigeria. The robbery was a supervening event that could simply not be said to have been caused by the breach of contract. It was, according to Mr Justice Eady, the ‘causa sine qua non’ but not the ‘causa causans’.

Wiseman v Virgin Atlantic is an interesting case in the field of travel law, since it is one of only a very few reported decisions of the High Court dealing with a straightforward contract of carriage, rather than contracts governed by the Package [Travel etc] Regulations 1992. Dr Wiseman evidently had a terrible experience at the hands of the Virgin Airways staff, but his claim was, by reference to basic and well-establish principles of English Contract Law, incredibly ambitious.

Since Virgin is an EU air carrier, Dr Wiseman would have had a reasonable prospect of successfully obtaining fixed compensation under the Denied Boarding Regulation (EC 261/2004). According to the recent judgment of the European Court of Justice3, and the earlier Opinion of Advocate General Geelhoed, the Regulation is intended to compensate passengers for the immediate inconvenience that they have suffered as a result of cancellation or denied boarding. Effectively, therefore, it goes some way to compensating passengers, including the unlucky Dr Wiseman, for an element of the distress and inconvenience which would otherwise be irrecoverable in damages at common law.

CASE NOTEHolden v First Choice Holidays & Flights Limited

22nd May 2006, Mr Justice Goldring.(High Court).

The FactsOn 13th July 2002 the Claimant was involved in an accident whilst on a package holiday booked with the Defendant. She fell from the third step of a flight of stairs

3 Case C-344/04

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leading from the hotel ground floor down to the lower ground floor restaurant in the El Ksar hotel, Sousse, Tunisia, sustaining fractures to her left thumb and right wrist. On 20th April 2004 the Claimant issued proceedings. In the Particulars of Claim she asserted that the accident was caused by breach of contract, negligence, and breach of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004) and the Occupiers’ Liability Act 1957 on the part of the Defendant. Essentially, she alleged that the steps were wet and slippery, and that she ought to have been informed that the hotel lifts provided access to the lower ground floor of the hotel, in which the restaurant was situated. The Defendant denied that English standards applied to the provision of the services under the holiday contract, and that either the Workplace Regulations or the Occupiers’ Liability Act apply to Tunisia. However, it accepted that the Package Travel, Package Holiday and Package Tours Regulations 1992 applied to the contract. At trial First Choice adduced evidence to the effect that the hotel had an appropriate cleaning system in place at the time of the accident, and that spillages were swiftly dealt with. In addition, the restaurant manager stood at the doorway of the restaurant preventing people from taking drinks into and out of the restaurant, although this was not for health and safety reasons but because drinks were more expensive in the restaurant than elsewhere in the hotel.

The Decision at First InstanceOn 21st February 2005 Mr Recorder Gibbons QC tried the case and found that the Defendant was in breach of its tortious duty to the Claimant. He found that Mrs H had slipped as a result of the presence on the stairs of a colourless, odourless liquid, that the hotel was alert to the perils of people moving about with drinks, and that it ought to have instructed some-one in the restaurant to check the stairs whenever a person came into the restaurant with a drink in an open container (it was common ground that the hotel did not do so).

The AppealFirst Choice appealed on the following grounds: the judge found that notwithstanding the fact that the Claimant had contracted for a 3 star hotel, she was entitled to a 4 star standard hotel; he relied on the fact that when the Claimant was taken to hospital she was given a CT scan as proof that Tunisian standards of health and safety are higher than English standards of health and safety (!); contrary to the decision in Wilson v Best Travel Limited [1993] 1 All ER 353, he did not measure standards of health and safety at the El Ksar hotel by reference to local standards of health and safety; he found that there was a distinction between cases involving allegations of failures in equipment and cases involving allegations of failure in systems, when there was no authority to justify such a distinction; he relied on the case of Cook v First Choice Holidays & Flights Limited, 22nd

October 2003, unreported as authority for the proposition that if a foreign supplier fails to prove its case on the facts it must therefore fail on the law; he failed to distinguish the case of Cook v First Choice Holidays & Flights Limited, 22nd October 2003 on the grounds that in this case the foreign supplier did not fail to prove its case on the facts; he applied a standard of care that was unrealistic, in that he found that the El Ksar hotel ought to have instructed some-one to check the stairway leading to the lower basement for spillages every time a guest came into the restaurant with an uncovered drink; in refusing permission to appeal he stated that he had accepted the Defendant’s arguments as to the applicable law. Clearly he had not;

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he found that the Claimant slipped on a colourless, odourless liquid. There was no evidence on which he could come to this conclusion; he found that the El Ksar hotel was alert to the peril of people moving around with drinks. Although there was evidence that the hotel knew that people were moving around with drinks, there was no evidence on which he could come to the conclusion that the hotel considered this to be a peril.It was agreed that in order to succeed at first instance it had been necessary for the Claimant to prove on the balance of probabilities that the Defendant had failed to carry out its obligations under the contract with reasonable skill and care.

The Decision on AppealMr Justice Goldring allowed the appeal and ordered Mrs H (or rather her insurers) to pay First Choice’s costs. He found that: it was open to the judge to find that the Claimant had slipped on a colourless,

odourless liquid. HOWEVER; it was for the Claimant to prove that in failing to operate the system proposed

by the judge (of instructing some-one in the restaurant to check the stairs whenever a person came into the restaurant with a drink in an open container), the hotel was in breach of local safety standards;

even if he had been applying English standards of reasonableness, it would not have been reasonable to require the hotel to operate the system proposed by the judge;

it was unlikely to make any difference to Tunisian safety standards whether the hotel was of a 3 star or a 4 star standard;

the distinction between cases involving allegations of failures in equipment and cases involving allegations of failure in systems was irrelevant to the issues the judge had to decide;

it was difficult to see how the fact that the Claimant had received a CT scan in the Tunisian hospital could possibly be relevant to the applicable local safety standards;

the applicable local safety standards cannot be inferred from the standards in force in any particular hotel. To quote Saggerson on Travel Law, ‘there is no substitute for evidence’ of what the local standards or customs are;

the judge was wrong to find that the hotel was alert to a ‘peril’ posed by people moving around with drinks. The evidence was that the hotel sought to prevent people from going into and out of the restaurant for economic reasons, and not for reasons of health and safety;

the Claimant had not adduced any evidence of the applicable local standards, and the matters relied on by the judge (the fact that the hotel was of a 4 star standard, the CT scan, the fact that the hotel was enthusiastic about health and safety) did not plug the evidential gap. It was not for the Defendant to prove anything.

Comment This case is important because Mr Justice Goldring reaffirmed the necessity for the Claimant to prove her case by reference to evidence. It is simply not enough to rely on notions of English ‘reasonableness’, nor can the Claimant rely on a Defendant tour operator’s evidence of a hotel’s systems as evidence of the applicable local standard. Is the concept of the ‘evidential own goal’ dead and buried?

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Pemberton v First Choice Holidays & Flights Ltd.Manchester County CourtHHJ Armitage QCOctober 2006

Mrs. Pemberton and her family went to the Las Palmas Hotel on the Pacific coast of Mexico. On the morning of 25 October 2002 Mrs. Pemberton was enjoying breakfast in the outside restaurant when the same was inundated by a huge wave that swept in from the sea and crashed through the thatched roof of the restaurant. She suffered injuries and sued her tour operator.

The following is an extract of the basis of the Claimant’s claim:

1. Hurricane “Kenna” struck the coast of Mexico in the vicinity of the Hotel. Vallatara (the location of the Hotel) did not receive a “direct hit” in meteorological terms, but the Hotel was devastated in the path of the hurricane. The First Claimant (Christine Pemberton) was trapped in the beach-side breakfast restaurant at about 9.00am as a result of inundation by an enormous wave (which came crashing through the restaurant roof) as a result of which she sustained an undisplaced fracture of her left fibula and other injuries. The other Claimants in the breakfast restaurant fled from the inundation.

2. As a result of the wave and accompanying storm the rest of the day was one of chaos, uncertainty and anxiety for all the Claimants causing the loss of personal belongings and terrorising all concerned as they were pushed from pillar–to-post in an effort to keep them away so far as was then practicable from the sea and the worst effects of the storm.

3. The Claimants do not allege that the Defendant or the Hotel was responsible for the hurricane!

Claimants’ Claim4. There are two central points.

(a) The beach side breakfast restaurant should have been evacuated (long) before the inundation.

(b) The Claimants should have been alerted to the potential seriousness of the weather conditions in advance – thus they would have been better prepared and saved much

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unnecessary discomfort and anxiety as well as damage to their property.

Evidential Basis5. The evidential basis of the Claimant’s claim cannot be put better

than it has been by the manager of the Hotel. He says that internet reports that he monitors gave an indication of “rough weather” the night before the 25 October and goes on:

“…From 8am I called the Hotel several times from my home to check that everything was OK. I could see the sea from my house and later the waves became bigger and hitting my home. This must be before the wave hit the Hotel as I called again … In any event I told the catering manager to ask all the clients who were in the restaurant … to go upstairs …”

If this had been done as the manager directed the First Claimant would not have sustained her fractured leg.

6. In fact something ought to have been done much earlier. Severe weather was on the cards and this was likely to affect the safety and comfort of people in beachside resort hotels. The representative at the Decamaron Hotel (it is thought about 9 miles way on the same bay) says this:

“… nothing particular was done4 … on the day of 24 November (she means October) ... apart from tying down loose furniture and so forth as all the restaurants at the Hotel are very open and exposed. Guests were also asked to place things on bed (sic) as I think the manager expected some degree of flooding. At around 5.00am … the Manager got in touch …as he wanted guests to move to the rear block of the Hotel.

7. We know that the Hotel was on hurricane watch from 24 October & that the Hotel is situated in a part of the bay where big waves are likely due to the sudden deep-shallow changes in depth (see evidence of Stuart Thompson – who also tells us that even the Hotel Las Palmas took furniture inside and tied down loose items).

8. Whilst all this was going on the Claimants’ case is that they were simply allowed to use the beachside restaurant as normal.

Liability9. The failure to evacuate the restaurant that morning was a failure

to exercise reasonable skill and care on the part of the Defendant and the operators of the Hotel for whom they are liable.

10. The failure to take the precautions taken at the Hotel Decamaron the day before was also a breach that caused unnecessary anxiety and distress and damage to personal property.

4 This must be one of the greatest understatements imaginable in the light of the balance of her evidence.

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The Defendant demurred. The wave was of such exceptional ferocity and size that it could not have been foreseen. There had been a large crowd of guests watching the storm from the terrace at the edge of the restaurant who had not seen it coming and whilst hurricanes were known in the area and known to affect buildings on the coast the destruction of some of the hotel buildings by one or two gigantic waves was beyond what was the reasonably foreseeable.

The Judge agreed. In addition he concluded that the consequences of the event could not have been foreseen or forestalled within the meaning of regulation 15(2)(c)(ii). The claim was dismissed.

AN EVIDENTIAL OWN GOAL!

Josie Smith v TUI UK Ltd.Birmingham County Court18 October 2006HHJ McKenna

Mrs. Smith fell down one step in a Hotel foyer in Malta and broke her wrist. It was 10.am but she said the weather was very dull and overcast and that the floor and the step were in shadow. She also claimed that the foyer design was inappropriate but dropped these allegations at trial.

The Defendant’s evidence was that although there were ankle lights on the step, these were only used in the evening, or when it was VERY cloudy in the daytime.

The Judge concluded that on the Claimant’s evidence and that of her husband (“slightly overcast weather” he had said!) the foyer was very dark and that on the Defendant’s own evidence, therefore, the lights should have been turned on. He was not persuaded that the judgment whether to use the lights or not was one of operational detail, not to be criticized in actionable negligence. He thought the absence of any previous accidents was probably explained because the lights usually were turned on when the weather was overcast.

Judgment for the Claimant.

Stockman v First Choice Flights and Holidays Limited

FACTS

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1. Ms Stockman, a seasoned holidaymaker at 73 years of age, booked a package travel holiday to Tenerife in June 2004. When she arrived at Tenerfie Airport she was met by the Defendant’s local representative, who in turn introduced her to a ‘taxi driver’, who would be transferring her to the hotel. Ms Stockman claims that she was ‘marched’ across the airport all the way to the Coach Station, whereupon a 25-seater ‘coach’ was waiting for her. In spite of her protestations that she was too old and too frail to climb up onto the step at the back of this vehicle, Ms Stockman attempted to do so and lacerated her leg.

2. Upon her arrival at the Hotel, Ms Stockman was attended by a foreign doctor who she says ‘advised’ her not to drink any alcohol. Contrary to this advice, and primarily because she had done so in the past in UK whilst taking similar medication, Ms Stockman continued to drink wine (and possibly vodka) with her evening meals, on a daily basis (the evidence from the Defendant’s representative was that Ms Stockman was heavy drinker who had been known to drink up to a litre of sangria with her lunch on a regular basis!). The laceration to her leg became ulcerated and she had to fly home two days earlier than planned, at her own cost.

3. Ms Stockman, who was acting in person, had not properly particularised her claim. However, at the hearing the judge approved the Defendant’s suggestion that were three discrete allegations begin made:

a. The transfer should have been by taxi or minibus rather than by ‘coach’.

b. The ‘coach’ and/or the step on the back of the vehicle failed to comply with local or English safety standards because she had cut her leg on it.

c. The bus/taxi driver had been negligent in encouraging Ms Stockman to take her time as she stepped on to the vehicle, when he should have known that she could not manage it at all.

4. With regard to the first allegation, the Defendant relied upon its Standard Terms and Condition of booking (which it was agreed did apply to this contract) which stated that “the basic holiday cost as shown in the price panels includes: transfer to and from the resort airport, which will usually be by private taxi or shared mini-bus”. The Defendant argued that:

a. The word ‘usually’ expressly allowed for the possibility that an alternative form of transportation might be provided.

b. In any event the vehicle provided to Ms Stockman was a ‘micro-bus’ which was, for all intents and purposes, a form of mini-bus.

c. Since the access-step at the back of the 12-seater mini-bus was higher (46cm) than the step at the back of the 25-seater microbus (38.5cm) Ms Stockman was in a better position than she would have been if she had been provided with the mini-bus.

5. The Second allegation was met with the familiar argument that Ms Stockman had failed to provide any evidence of how the bus or step failed to comply with local standards (in accordance with Wilson v Best Travel [1993] 1 All ER 353) and that the argument that the step ‘must have been dangerous’ because she cut her leg on it was at best circular, and at worst untenable.

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6. Finally, the Defendant argued that that the bus driver had acted appropriately by encouraging Ms Stockman to take her time, had offered her assistance, and was not in any event contractually obliged to provide her with any other form of transportation.

HELD

7. Ms Stockman’s claim was dismissed:

a. The judge concluded that the transportation provided to Ms Stockman was not a mini-bus, since the Defendant itself did not label it as such. This was, according to the judge, a breach of contract (he did not address the Defendant’s other arguments on this point). However, the fact that the step on the micro-bus was lower than the mini-bus meant that Ms Stockman had failed to establish that the provision of alternative transportation would have made any causative difference to her accident.

b. In the course of evidence Ms Stockman appeared to claim that she should not have been ‘marched’ over to the Coach station and that a mini-bus or taxi should have been driven to the airport exit to pick her up. It was her ‘fatigue’ at the end of this trek which, according to her, had prevented her from stepping up onto the bus. The judge found that Ms Stockman’s fatigue was ‘singularly unfortunate’, but that this was not something for which the Defendant should be held liable.

c. There was no evidence whatsoever that the step was hazardous or dangerous. An elderly person who stumbled against a metal step was more likely to suffer injury than a younger person, but that was as much as Ms Stockman had been able to establish.

d. The bus/taxi driver had not been negligent. He had encouraged Ms Stockman to take her time, and although there was a factual dispute about whether, and when, he had offered her assistance, she accepted under cross-examination that he was standing next to her throughout and she could have asked for his help at any time.

e. The judge commented that if Ms Stockman had been regularly drinking against medical advice, this was a serious matter that would have had a significant impact upon her ability to recover substantial damages. However, since the Defendant was not liable he did not (happily) have to go on to consider that aspect of the claim.

8. A final aspect of this case that may be of some interest is that Ms Stockman had initially issued the Claim on the fast track, claiming damages for Pain, Suffering and Loss of Amenity in excess of £1,000. At a Case Management Conference a short time before the hearing, the judge had persuaded her (in the face of obvious objections from the Defendant) to reallocate the claim to small claims track, no doubt with one eye to the costs penalties that she was likely to otherwise incur. However, at the outcome of the final hearing the same judge agreed that whilst he had ‘saved’ Ms Stockman from costs after re-allocation, she was nonetheless liable to pay all of the Defendant’s costs up to that date in accordance with CPR 44.11(2). She had entered into litigation fully aware of the risks involved and the fact that she was an elderly lady claiming a modest pension, he said, was irrelevant.

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TOSH- NOSHElizabeth Bellinger v TUI UK Ltd21st August 2006Central London County Court,District Judge Price

C booked a package holiday over the telephone with D, a tour operator. At C’s request D levied a half board supplement to the booking. D’s brochure was silent as to the number of courses that would be provided under the supplement, stating only that breakfast along with lunch or dinner would be provided. On arrival C was informed by the hotel that she would be given just a main course for lunch or dinner. After D’s representative intervened, the hotel offered to provide a starter in addition. C refused the offer, electing to eat only breakfast at the hotel. On the 3 rd

night of the holiday C sustained food poisoning from a local restaurant. C sued for breach of contract, claiming amongst other things damages for personal injury and the cost of her meals outside of the hotel.

Held: (i) as a matter of contractual construction, unless the contrary was stated in D’s brochure, C was entitled under the half board supplement to a starter, a main course and a dessert for either lunch or dinner; (ii) in refusing the offer of a starter and a main course for either lunch or dinner C had failed to mitigate her loss; (iii) the measure of damages was what C would have been constrained to pay had she accepted the offer, i.e. the cost of 1 dessert per day in the hotel for the duration of the holiday; (iv) as a matter of law, D’s breach of contract was not the cause of C sustaining food poising since the restaurant in question was entirely independent from D and the hotel.

MORGAN AND OTHERS v UNIJET TRAVEL LIMITEDBirmingham County CourtHHJ McKenna

If you are a Daily Mail reader then you may have seen a story on 25 th June 2006 entitled “Stomach Bug, no flowers, bogus ceremony…. the wedding from hell.” This followed the trial of the case Morgan and others v Unijet Travel Ltd which was heard in the Birmingham County Court between 12th and 14th June 2006. The judge made no findings on the provision of flowers at Mr. and Mrs. Hallgarth’s wedding (although the evidence was that some were provided) nor did he make any findings as to whether or not the marriage was legally binding in the U.K. (the claimants withdrew this allegation prior to trial). The photograph in the paper appears not to have been disclosed and less favourable photos appeared in the trial bundle. But of interest to readers of this august publication (whose contributors and reporters

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strive for accuracy) may well be the judge’s judgment on quantum in this food poisoning claim.

The brief facts are that a wedding party of 15 went on a package holiday to the Dominican Republic. Mr. and Mrs. Hallgarth instigated the whole trip because they wanted to get married on a sandy beach in the Caribbean. Unfortunately on the first, second and third days of the holiday 14 of the wedding party developed acute gastroenteritis symptoms (history does not relate how the 15th member of the party escaped). Liability was admitted by Unijet and the judge was left to decide on the quantum of 11 of the claims.

Practitioners will be aware that there have been very few reported quantum judgments in food poisoning claims until recently. Further, the JSB Guidelines make a leap from bracket 5(G)(b)(ii) which states:

(ii) Serious but short-lived food poisoning, diarrhoea and vomiting diminishing over two to four weeks with some remaining discomfort and disturbance of bowel function and impact on sex life and enjoyment of food over a few years. £5,250 to £10,500

to bracket 5(G)(b)(i) which states:

(i) Severe toxicosis causing serious acute pain, vomiting, diarrhoea and fever, requiring hospital admission for some days or weeks and some continuing incontinence, haemorrhoids and irritable bowel syndrome, having a significant impact on ability to work and enjoyment of life. £21,000 to £32,000

Many claimants appear to suffer the sort of symptoms described in paragraph (ii) but the prognosis is that they will be permanent or, as the expert gastroenterologist Andrew Miller insists on describing them, “indefinite but gradually improving” (if he means “permanent” then why does he not say so?). The £10,500 to £21,000 range of awards has become a bracket with no guidelines.

The case of Morgan should assist practitioners in a number of ways: it provides quantum judgments for pain, suffering and loss of amenity (“PSLA”) in 11 claims ranging from £5,500 to £13,000; it includes awards for PSLA which are below £10,500 where the symptoms have been found by the judge to be permanent; it provides a further quantum judgment in a holiday/wedding claim for loss of enjoyment. A full report has been submitted to Kemp & Kemp but I have summarised the cases in the table below.

Claimant Chronology Symptoms PSLA LOE DIVDawn Morgan(36 at date of holiday)

Acute 14 days of Colicky abdominal pain, diarrhoea, nausea and vomiting

Thereafter diarrhoea every 1 to 2 weeks, abdominal distension and flatulence. 4 yrs after holiday

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symptoms every 4-6 weeksPrognosis Symptoms indefinite but

gradual improvement over time

£10,500 £1000 £600

Kimberley Morgan (6 at date of holiday)

Acute 2 weeks of severe diarrhoea, faecal incontinence and weight loss

Thereafter pain, diarrhoea, incontinence and constipation every 1 to 2 weeks. After 3 years improvement but faecal incontinence every 1-2 weeks causing embarrassment

Prognosis Symptom free 5 to 6 years post holiday

£7,500 £1,000 £287

Christopher Morgan (9 at date of holiday)

Acute Symptoms

14 days of diarrhoea

Thereafter 32 months later still suffering episodes of intermittent diarrhoea, abdominal pain and urgency

Prognosis Symptoms resolved 2 yrs 11 months post holiday

£5,500 £1,000 £287

Kate Vance (78 at date of holiday)

Acute Symptoms

Severe diarrhoea, abdominal pain and vomiting. Diarrhoea constant for 2 weeks. Urgency and incontinence

Thereafter Bowels opening 2 to 3 times per day with mild gripes in the abdomen which improved on bowel evacuation. More significant diarrhoea twice a week. Once a month severe enough to prevent her from leaving her home.

Prognosis Symptoms continue for rest of life. She had unrelated terminal illness

£13,000 £1,000 £677

Joyce Yeates (52 at date of holiday)

Acute symptoms

Severe diarrhoea and abdominal pain. Vomiting for 24 hours. Acute phase lasted for almost 5 weeks

Thereafter 16 months post holiday urgent attacks of pain and diarrhoea every 6 or 7 weeks. Spicy foods also led to a

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recurrence of symptoms. 41 months post holiday her symptoms had improved to attacks once every 2 months with abdominal pains

Prognosis symptoms to continue indefinitely although they would improve with time

£10,000 £1,000 £677

Adrian Hallgarth (28 at date of holiday) Groom

Acute intially sweats and shivers. Diarrhoea lasting 5 to 6 weeks

Thereafter intermittent bowel symptoms every 6 or 8 weeks with urgency and some sense of incomplete evacuation. 41 months post holiday he was suffering diarrhoea and urgency once per month with abdominal pain which went with the opening of bowels. At trial symptoms 6 – 10 weeks

Prognosis Indefinite but might be expected to improve with time

£9,000 £4,000 £677

Sheena Hallgarth (aged 33 at the date of holiday). Bride.

Acute Severe diarrhoea, pains and weight loss lasting 5 weeks.

Thereafter Symptoms became intermittent with bouts of diarrhoea every 2 weeks. She was reluctant to eat out. 3 ½ years post holiday symptoms intermittent with bouts lasting 1 to 2 days every 4-6 weeks. By trial symptoms every 6 to 10 weeks.

Prognosis Symptoms to continue indefinitely but becoming gradually less with time.

£9,000 £4,000 £677

Tori Hallgarth (aged 3 at the date of holiday)

Acute Developed severe diarrhoea and abdominal pain and vomited during first 34 hours. Acute phase settled within 21 days.

Thereafter By 1 year 4 months post holiday suffering diarrhoea

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about once a month lasting for less than 1 day. Almost 3 ½ years after holiday bouts of diarrhoea once every 2 to 3 months although some relapse prior to trial.

Prognosis Complete resolution of symptoms within 2 to 3 years

£5,500 £1,000 £287

Keavy Hallgarth (2 years old at date of holiday)

Acute Severe diarrhoea and abdominal pain. Had to go back to wearing nappies. Acute phase lasted 18 days

Thereafter 1 year 4 months post holiday she continued to have diarrhoea and abdominal pain lasting 2 to 3 days every 1 to 2 weeks. Improvement by 3 years 4 months post holiday but semi-formed stools every 2 to 3 weeks, urgency of defaecation and some abdominal pain relieved on defaecation.

Prognosis Complete resolution of symptoms within 2 to 3 years.

£6,500 £1,000 £287

David Banks (aged 55 at the date of holiday)

Acute Severe diarrhoea and abdominal pain, nausea and lethargy. Acute phase lasted 4 weeks.

Thereafter 1 year 9 months post holiday he was experiencing recurrent attacks of acute abdominal pain and diarrhoea every 1 to 2 weeks. Exacerbated by spicy foods. Some improvement 3 years 5 months post holiday: attacks of diarrhoea, marked urgency and colicky pain every 2 to 3 weeks lasting for 1 to 2 days. At trial attacks every 5 to 6 weeks.

Prognosis Ongoing improvement with resolution 4 ½ to 5 ½ years post holiday

£6,500 £1,000 £677

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Kathleen Banks (aged 55 at the date of holiday)

Acute Severe diarrhoea and abdominal pain lasting 22 days.

Thereafter At 1 year 9 months post accident: attacks of diarrhoea and abdominal pain 3 to 4 times per week exacerbated by certain types of food. She had some colicky abdominal pain, soft motions, bloating and distension.

Prognosis Recovery within 4 ½ to 5 ½ years of holiday

£6,500 £1,000 £677

Ian Miller(Counsel for the Defendant)

Desmond Gow v TUI UK Ltd t/a Crystal Holidays

FORGETFUL TRAVEL AGENTS: TOUR OPERATORS OVER A BARREL?27th April 2006, Deputy District Judge Perusko.(Watford County Court)

Benjamin Gold writes:

The FactsMr Gow received a mail-shot from Bookable Holidays.co.uk, an independent travel agent, advertising Crystal’s package holidays to the Austrian countryside. Intrigued, he telephoned the number displayed to enquire about availability. A number of hotels were canvassed, including one he had stayed in some years before. It was three-star with some of the rooms in a lower star annexe. He was quoted a price for the hotel for three people – to be himself, his wife and his elderly mother – which he liked, and the agent made the booking through Crystal’s live computer system. Payment from Mr Gow’s credit card was then taken by the agent.

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A simple enough transaction one might think, but three important things were left unsaid by Bookable: (i) that the hotel had an annexe; (ii) that the price quoted and paid meant Crystal would allocate to Mr Gow rooms in the annexe (Bookable needed to levy a small supplement if rooms in the main hotel were to be provided); and, (iii), that the holiday would be subject to Crystal’s standard terms and conditions, and which, amongst other things, made this clear.

At no time did Mr Gow have a copy of Crystal’s brochure in which their standard terms and conditions were contained, and nor did he look on its website, where they also could have been seen.

Prior to travelling, Mr Gow received an invoice from Bookable. In capital letters at its foot appeared the words: “we are agents for our suppliers and the above details are subject to their terms and conditions and confirmation invoice”. One such detail was that the rooms he had booked were to be annexe rooms: under the heading ‘Accommodation’ the word Annexe prefixed the details that followed.

The confirmation invoice, which the Defendant had sent, was never received by Mr Gow.

On arrival Mr Gow found to his horror and surprise that he was to suffer annexe accommodation for the duration of his stay. As it turned out only his mother was to endure this fate: Mr Gow and his wife were within hours moved by the hotel manager to the last available room in the main hotel.

It goes without saying that the stress of those first few hours and the indignity brought about by having his mother located in a (ground floor) annexe room some metres away from the main building deprived Mr Gow of any enjoyment from the holiday, and he sued Crystal for breach of contract.

The ClaimMr Gow argued that the contract between himself and Crystal was concluded at the end of the telephone conversation with Bookable, and so: (a) Crystal’s standard terms and conditions were not incorporated as no mention had been made of them at the time of the contract: Bookable’s invoice was irrelevant as it was a post contractual document; and, (b) in the circumstances it was an implied term of the contract that his accommodation would be in the main part of the hotel.

The DecisionThe judge dismissed the claim. He was not willing to accept that the contract was formed when Mr Gow contended: having heard evidence from Crystal’s head of Customer Service, he found it was standard practise for such contracts not to be formed when the travel agent provisionally accepts the holiday maker’s offer on the tour operator’s behalf. The practise is for travel agents to state the booking as being subject to the tour operator’s standard terms and conditions and their written confirmation. Accordingly Bookable’s invoice was a contractual document. It was therefore an express term that Mr Gow was to have had annexe rooms. In any event, since Mr Gow had admitted under cross-examination that had he wanted to consult Crystal’s standard terms and conditions he would have known were to look, the words at the foot of the invoice were sufficient to incorporate them into the contract. It did not matter that Mr Gow had never received a confirmation invoice from Crystal: the contract was formed when Mr Gow went on the holiday.

Discussion

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The effect of the decision (if it is right) is that even where a travel agent fails to inform the holiday maker that what they have booked over the telephone is subject to the terms and conditions of the supplier, the contract is not sealed with these left on the side.

The legal basis for this conclusion is on the face of it unclear and so unsound: at the time of communicating Crystal’s thus unconditional acceptance of Mr Gow’s offer Bookable were almost certainly acting as Crystal’s agents, and so why was the contract not formed at that point?

In argument Mr Gold for Crystal submitted that since the Claimant had admitted under cross-examination that he was aware at the time of booking that Crystal had terms and conditions and would have wanted these to have been incorporated, it was at the very least an implied term of the contract that provided reasonable notice was given to Mr Gow by Crystal of its standard terms and conditions within a reasonable time following the telephone call, these would form part of the contract.

It is submitted that this is the correct analysis. The result is that whatever the travel agent does or does not say on when initially making the booking, it is still open for the tour operator to take reasonable steps to inform the holiday maker of its standard terms and conditions; in other words, to avoid being held over a barrel by a forgetful travel agent.

DENIED BOARDING COMPENSATIONHelen Parker v TUI UK Limited (T/A AusTravel)

District Judge AventCentral London County Court30th October 2006

In July 2005 the Claimant booked a return flight from London Heathrow to Sydney, through AusTravel. The flight itself was provided by the Defendant, trading as ThomsonFly. The Claimant alleged that she had been informed, when she spoke to an AusTravel representative on the telephone, that she had booked a scheduled flight with Quantas. When she discovered that the flight was a charter flight with ThomsonFly she asked to be upgraded to a premium economy sear and duly paid an additional £325. The outbound flight departed from London on 26th December 2005.

On 18th January 2006, the date of the return flight, the Claimant arrived at Sydney Airport to be told that her flight had been delayed by at least 24 hours. The cause of the delay was a mechanical fault, as a result of which a ‘part’ had to be flown from London to Australia. In accordance with its obligations under Article 9 of EC Regulation 261/2004 (the ‘Denied Boarding Regulations’), the Defendant, through its local operating agents, offered all passengers overnight accommodation (including free transport to and from the airport), free meals and free telephone calls. The Claimant refused the offer and stated that she would prefer to stay at a friend’s house in Sydney. The flight was in fact delayed by 49 hours. After approximately 24 hours, and having tried to contact AusTravel without success, the Claimant decided to pay for an alternative flight home to Gatwick, with Quantas.

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On 25th January 2006, the Defendant reimbursed the Claimant the cost of the delayed flight from Sydney to London flight, pursuant to Article 8(a) of the Denied Boarding Regulations.

The claim was for the cost of £325 upgrade, the cost of taxis to and from the friend’s house in Sydney, the cost of a taxi from Gatwick to Heathrow, the cost of a mobile phone voucher, and £500 damages for ‘loss of enjoyment’. The Particulars of Claim pleaded reliance upon the Denied Boarding Regulations and s.13 of the Supply of Goods and Services Act 1984.

Held: The judge accepted that the level of service provided to the Claimant had been abysmal, and that the whole experience had been very upsetting and disappointing for her. However, he had to decide the case on the law. The Denied Boarding Regulations did not create a free-standing, private law cause of action. Instead, they provided for a public-law remedy to enforce the obligations set out therein. If passengers had complaints about breaches of the Regulations, these could be referred to the Civil Aviation Authority who could take up matters if they wished. The Claimant’s rights were exclusively encompassed within the Regulations.

Article 8 of the Denied Boarding Regulations provided passengers with a choice between rerouting, or reimbursement of the part or parts of their flights not made together with a return flight to the first point of departure, where relevant. On the facts of this case, the Claimant had received a reimbursement of the part of her journey not made, including half of the cost of the £325 upgrade. She was not entitled to a ‘flight to the first point of departure’ because it was not relevant.

The Defendant had also been provided with care and assistance under Article 9 of the Regulations. The Court was precluded from ordering the Defendant to pay the cost of Claimant’s taxis to and from her friend’s house because Article 9 only referred to transport between the hotel and airport, which was provided. Similarly, the claim for the mobile phone voucher, and the taxi from Gatwick to Heathrow, were not costs to which the Claimant was entitled under the Regulations.

As to the claim for loss of enjoyment, the Defendant had no reason to know that the Claimant had come to Australia on holiday. She could have come on business or for a number of other reasons. This was a contract for carriage only, not a contract for a holiday. Lucas v Acro (1994) CLY 1444 was authority for the proposition that general damages for loss of enjoyment are not recoverable for breach of a contract for carriage only.

Contracts for carriage by air were governed by the Montreal Convention 1999. In the well known case of Sidhu v British Airways (1997) 1 AC 430, the House of Lords held that where the Convention applies, no alternative remedy was available at common law or otherwise. Therefore even if the Claimant was claiming for some other breach of contract (other than her claim for loss of enjoyment) she could not succeed.

Furthermore, the Defendant referred to other cases – Patel v India Air (1999) CLY 4904, Nanuwa v Lufthansa (1999) CLY 4885 and Brunton v Cosmosair (2002) CLY 232 - which lay down guidance for the proposition that even if the Claim had been made under the Montreal Convention 1999, damages for loss of enjoyment would not be recoverable.

The Claim was dismissed.

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INDEMNITY CONTRACTS

LUMBERMENS MUTUAL CASUALTY CO v BOVIS LEND LEASE LTD (2004)[2004] EWHC 2197 (Comm)QBD (Comm) (Colman J) 5/10/2004

It was an implied term of a contract of indemnity liability insurance that it was an essential element of the insured's cause of action that his loss had been specifically ascertained by means of a judgment, arbitration award or settlement agreement. A global settlement agreement in respect of the parties' claims and counterclaims did not satisfy the requirement of ascertainment of loss under liability insurance policies since it did not impose on the insured any identifiable loss in respect of any identifiable insured eventuality.The claimant insurers (L) claimed declarations of non-liability against the defendant insured (B) and preliminary issues were ordered to be tried. B had been employed as contractor by a developer (Braehead) to construct a retail and leisure centre. Disputes had arisen under the building contract and B claimed some £37 million allegedly due from Braehead. Braehead counterclaimed for damages totalling £75 million or £103 million for alleged mismanagement of the project by B, for defective work and liquidated damages. The litigation was settled by a 2002 agreement under which Braehead paid B £15 million. The method of calculation of that global sum was not identified. B had been insured by L under a construction, engineering and design professional liability policy and a commercial excess liability policy. B claimed £19 million from L on the basis that that had been the amount of Braehead's valid counterclaim and that the £15 million payment was the result of setting off £19 million due to Braehead against B's entitlement to £32 million and costs from Braehead. L issued a claim form for negative declaratory relief. B counterclaimed for the £19 million on the basis that it had suffered insured losses in that amount caused by its liability to Braehead for breaches of duty under the building contract. The preliminary issues were (i) whether B's liability to Braehead had been sufficiently ascertained by the settlement agreement; (ii) whether B's alleged loss was properly to be measured on a subjective basis; (iii) whether the words "as a result of any neglect, error or omission" in clause 1 of the insuring clause required B to establish liability in negligence in order to trigger coverage under the policies and whether clause 1 had any application to liability for breaches of contract not proximately caused by negligence; and (iv) whether there was any coverage under insuring clause 2 for breach of the warranty in clause 2.5.2.5 of the building contract that the works would comprise only goods and materials which were new and of sound and satisfactory quality, in light of the fact that B had failed to declare the contract to L as required by the terms of the insurance. L submitted that B had failed to establish that its liability to Braehead had been ascertained for the purposes of the insuring clause because the global settlement agreement did not identify any loss caused to B by any legal liability in respect of Braehead's counterclaim nor did it quantify any such loss. B submitted that (1) there was no rule of law that it had to be possible to discern the extent of an insured's liability for insured matters from the terms of the settlement itself in order to trigger

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entitlement to an indemnity; and (2) the insured's loss should be measured subjectively.

HELD: (1) It was an implied term of a contract of indemnity in the form of a liability policy that it was an essential element of the insured's cause of action that his loss had been specifically ascertained by means of a judgment, arbitration award or settlement agreement. Post Office v Norwich Union Fire Insurance Society Ltd [1967] 2 QB 363, Bradley v Eagle Star Insurance Co Ltd (1989) 138 NLJ 330, Commercial Union Assurance Co plc & ors v NRG Victory Reinsurance Ltd (1998) 2 All ER 434 applied. (2) As a matter of law an insured who relied on a settlement as a means of ascertainment had to prove by extrinsic evidence that he was in truth under a liability insured by the policy and that what he paid by way of settlement of that liability was reasonable, McDonnell Information Systems Ltd v Swinback [1999] 1 Lloyd's Rep IR 98 applied. Therefore a settlement agreement deficient in the identification of the loss suffered specifically by reference to the insured liability could not amount to a valid ascertainment. The court could not open up a global settlement and evaluate for reasonableness the insured's own assessments of the amounts allocated to each claim against the insured, P & O Developments Ltd v Guy's and St Thomas' National Health Service Trust (1998) CILL 1436 distinguished. If the agreement did not specifically identify the cost to the insured of discharge of the claim or claims said to be within the scope of the cover, the ascertainment of the relevant loss to the assured could not be supplied by extrinsic evidence whether objectively or subjectively evaluated. Accordingly the global settlement agreement in the instant case did not satisfy the requirement of ascertainment of loss under the liability insurance policies since it did not impose on the insured any identifiable loss in respect of any identifiable insured eventuality. That conclusion was not contrary to the public policy of encouraging settlement of claims. (3) The words "error or omission" in insuring clause 1 were intended to refer to non-negligent conduct giving rise to liability. There would be cover under clause 1 in respect of liability caused by facts amounting to a breach of contract, but not giving rise to an independent claim for negligence, where those facts gave rise to liability for non-negligent and non-deliberate error or omission which would arise even if there was no parallel contractual liability. (4) If there was failure by B to comply with the contractual requirement under the insurance to declare the building contract to L, there was no cover in respect of loss exclusively attributable to breach of clause 2.5.2.5 of the building contract. But if such liability could arise independently of the contract, for example in the tort of negligence, insuring clause 1 would in principle provide cover.

ENTERPRISE OIL LTD v STRAND INSURANCE CO LTD (2006)

[2006] EWHC 58 (Comm)

QBD (Comm) (Aikens J) 26/1/2006

INSURANCE - CONTRACTS

INSURANCE CLAIMS : INSURANCE CONTRACTS : INSURANCE POLICIES : RIGHT OF INDEMNITY : SETTLEMENTS : ENTITLEMENT TO INDEMNITY UNDER LIABILITY POLICY : SERVICE AGREEMENTS : OIL DRILLING EQUIPMENT : SETTLEMENT AGREEMENTS : LIABILITY POLICIES : TORTIOUS INTERFERENCE : ACTUAL LIABILITY : ARGUABLE LIABILITY : OIL COMPANIES : TEXAS

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An insured party was not entitled to an indemnity under a liability policy in respect of sums that it had paid under a settlement agreement in proceedings brought against it by a third party as, upon a proper construction of the policy, the insured was covered for loss resulting from actual liability to third parties and not arguable liability.

The claimant oil company (E) claimed for an indemnity under a liability policy placed with the defendant captive insurance company (S) for sums paid in respect of a settlement agreement with certain plaintiffs in proceedings brought in Texas. Under an operating agreement between an exploration company (X) and another company, E had agreed to explore and develop certain North Sea oil fields. X had agreed with an English company (B), a subsidiary of a company (R) based in the United States, to hire a jack-up drilling unit, which was being constructed at that time. When the unit was completed it was owned by R. Under a service agreement between R and B, R agreed to perform a number of duties and obligations in respect of the unit. When the unit was delivered, X purported to terminate the hire agreement on the basis that the delivery was delayed and the unit was defective. E supported the termination of that agreement. Proceedings were commenced in Texas by R and associated companies against E, X and others. R alleged that E had committed a variety of torts under Texan law, including that E had interfered with the service agreement and had tortiously interfered with prospective contractual and business relationships. Further, R claimed that but for the tortious interference it would have engaged in a programme to buy back stock of the company and then sell that stock at a profit. Following a mock trial, a settlement agreement was reached and E paid an agreed amount of the settlement sum. In the instant proceedings, E alleged that it would have been or might have been liable to R in the Texan action for the tort of wrongful interference of the service agreement. It claimed that, by being a party to the settlement agreement, it had incurred liability as defined in the liability policy with S, which entitled it to be indemnified for its share of the sums paid to R. The main issues were (i) the legal basis for E's claim under the policy; (ii) the proper basis on which the English court should consider the question of whether E would have been, or would have been arguably, liable to R in the Texas proceedings; (iii) whether, on the principles of Texas law and the facts, there was any actionable tortious interference with the service agreement by E; (iv) whether E would have been liable for the "stock buy-back" losses alleged to have been suffered by R in the Texas proceedings; (v) whether the settlement agreement was a reasonable settlement for the purposes of the policy; (vi) whether, as a matter of English law, E was entitled to recover any, or a proportion of, the settlement sum; (vii) whether E was entitled to recover its costs of defending the claim by R in the Texas proceedings under the policy.

HELD: (1) On the correct construction of the policy, E was covered for loss resulting from actual liability to third parties, but not arguable liability. Thus, E had to establish that it would have been under an actual liability to R in respect of tortious interference with the service agreement to at least the actual amount of the settlement agreement. (2) The proper basis on which the English court should consider the question of whether E was or would have been liable to R in the Texan proceedings was by deciding what, according to Texan law and the facts, the judge and jury should have concluded on liability and quantum in relation to the claim for tortious interference of the service agreement. (3) On principles of Texan law and the facts there was no actionable tortious interference by E of the service agreement. (4) On principles of Texan law, E would not have been liable for the stock buy back losses alleged to have been suffered by R since they were too remote and not caused by the assumed tortious interference. (5) Assuming that, on the

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correct construction of the policy, it had provided cover for the settlement of arguable claims, in the instant case the amount of the settlement was not reasonable in respect of the claim for tortious interference with the service agreement. (6) If E had otherwise proved its loss, the fact that the settlement agreement had not specifically identified an amount as being for tortious interference with the service agreement would not have prevented E from recovering under the policy, Lumbermans Mutual Casualty Ltd v Bovis Lend Lease Ltd (2004) EWHC 2197 (Comm) , (2005) 1 Lloyd's Rep 494 considered. (7) On the facts E was not entitled to recover its defence costs under the policy.

Judgment for defendant.

From the BenchWell whatever next!

Times Online

Holidays – a complainer's guideBY DISTRICT JUDGE STEPHEN GERLIS

Tips on making, or not making, a complaint about your holiday

As the summer holiday season comes to an end a new season begins – the holiday complaints season. These disputes have been a fruitful source of work for the small claims court for many years. Holiday claims fall into a fairly unique position as one of the very few claims in contract law where damages for distress and inconvenience are recoverable (another claim in such a unique position is that relating to weddings - so if you had a spoiled wedding and a rotten honeymoon you have a double-whammy of sorts). Having dealt with such disputes for over 20 years I proffer my top ten tips about bringing such claims, which I hope will be helpful:

1. Don’t litigate – mediate

This is the first and, by far, most important tip. Since the new procedures for civil proceedings were introduced in 1999, the emphasis has been on discouraging litigation generally and seeking to settle claims instead. Most responsible travel companies are ready to consider settlement if they feel that the claim is genuine and justified (see tip 5 below). It is surprising how many travellers actually recover less or even nothing when they reject a reasonable offer from the travel company and decide to go to court instead. Going to court is filled with uncertainties. Even if small claims costs are limited, you also have

Stephen Gerlis is a district judge at Barnet County Court

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to take into account court fees and the time you have to put aside to deal with the dispute.

2. There are strict regulations which limit damages arising out of air travel

As air travel gets cheaper so it seems to get more fraught. Because flying forms the start and end of many holidays, it can both set the tone for the holiday and be a source of post-vacation depression. There is nothing like a 24-hour delay on the way home to dissolve all inner peace achieved during two weeks on a sun-kissed beach. The bad news is that regulations apply to most aspects of air travel and severely limit the damages that may be recovered. A glance at EU Regulation 261/2004/EC is as salutary as a cold bucket of water thrown in the face and is worth studying before bringing any claim – try www.lal.lt/en/main/info/eu_261. Further, while a personal injury incurred on a plane flight as a result of negligence on the part of the carrier may be actionable, a screaming child on a long-haul flight or urine pouring underneath the toilet door are not, nor are most other uncomfortable experiences which may, unfortunately, occur. What about trying to enjoy yourself in Ibiza with one set of clothes while your luggage has the holiday of a lifetime in Hawaii? Limited by regulation I’m afraid. Separate comprehensive travel insurance may help to bridge the gap.

3. Foreign countries are different

No matter how much the British try to recreate foreign resorts in their own image, the fact is that it is a mistake to judge ‘abroad’ by our own standards. Thus, for example, food may be served lukewarm at some restaurants on Greek Islands; there may be a lot of dogs on French camp-sites – the French love their dogs; some places do still have holes in the ground for toilets and no washing facilities. Compromises have to be made depending on where you are going and what you are promised or not promised by the glossy brochure.

4. You get what you pay for

You will not get five-star treatment for a two-star price. By all means congratulate yourself on getting a great deal on a holiday for £89 but don’t be surprised if what you get actually reflects what you paid. The star system is not particularly reliable anyway. What is classed as four star in one country, or even in one area, may be two star or less in others. Many travel companies do not rely on stated star ratings but rely instead on their own assessments, which may radically conflict with the local assessment. There also seems to be a particular problem with those who book last minute deals through Teletext and do not have an immediate opportunity of seeing what their accommodation or its surroundings actually look like in advance. It can be rewarding but it can also be risky. Where you can, rely on trusted recommendation or look at the travellers’ comments on particular places, hotels and restaurants which can often be found on the internet.

5. Suing for the whole cost of the holiday may be counter-productive

It is a common practice by complaining holiday-makers to claim back the whole of the cost of a holiday. I can understand this – it can take very little to

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spoil a holiday – a bad meal, surly service, a partially-obscured sea-view. However, tactically this is often a mistake. First, you run the risk of being seen as an unreasonable opportunist; secondly, travel companies may not be as willing to attempt to settle a claim with a traveller who is making a mountain out of molehill, rather than one who limits the amount of the claim to the actual area of complaint (see tip 1 above). Proportionality is an important feature of civil litigation and will be applied by the court. Very few holidays are actually a total disaster – it is more likely that one or two aspects have been unsatisfactory. Try to tailor the claim just to them – this may enhance your credibility.

6. Beware the dangers of do-it-yourself

With the increase in use of the internet, many more travellers are booking their own holidays – flight, car hire and accommodation and so on. This is all very fine and money may even be saved on occasion but there is an in-built danger. There are regulations which give quite creditable protection for those who prefer to go the good old package holiday route where the travel company arranges everything for you. If anything goes wrong with any one component of the package, your claim will be against the travel company which is usually based in the UK and is probably bonded. Arrange your holiday yourself and you have no such protection. If your hire car doesn’t materialise when you turn up at Limpopo airport, your claim is against the car rental company and, worse still, you may find that your contract with them was in fact made in the away country and not in dear old Blighty. The net result is that you may not have jurisdiction to sue in this country but must place yourself in the hands of a foreign jurisdiction and foreign places are different (see tip 3 above).

7. Have good evidence

Photos and/or videos are worth a thousand words. Independent witnesses (i.e. not the brother and his wife who came with you on your fateful trip) may also be a source of useful and believable information.

8. The damage claimed must flow directly from the breach

The best way to illustrate this is from a recently reported case. Dr Wiseman was inexplicably prevented from boarding a return flight from Nigeria to London by Virgin Airlines staff and was only allowed to do so several days later. He was able to recover reasonable accommodation, food and taxi expenses. He was not able to recover anything for the expenses of his fiancée whose connecting flight to London he failed to meet, the expenses of his friends who accompanied him to the airport, injury to reputation, nor mental trauma, including the effects of being robbed in Nigeria while waiting to return to London. A claim of almost £20,000 was reduced to one under £3,000.

9. To succeed in a claim there must be someone to blame

For example, a bad case of gippy tummy can be uncomfortable and inconvenient but the traveller has to prove who caused it. Was it the hotel swimming pool? Was it a crew member on a cruise line? Are the travel companies to blame? These are not easy questions to answer. Some degree of expert evidence is likely to be necessary and, even then, may prove

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inconclusive. It has to be proved that the defendants were somehow responsible for what happened.

10. Don’t litigate – mediate!

See tip 1. Bon voyage!

The fifth EU Motor Insurance Directive(Or much ado about nothing?)Substantive changes on the “QT”What is the Directive?Unlike the 4th Directive, the draft 5th EU Directive on Motor Insurance does not have a singleaim; it covers a range of topics, some of which might have an impact within the UK, but mostof which will not.This note does not list all the individual provisions – this is simply a quick guide to theelements which may be relevant to the work of the MIIC.Timing of the DirectiveThe Directive was adopted on 11 May 2005 and came into force on 11 June 2005. MemberStates have 24 months (i.e. until 11 June 2007) in which to implement its provisions.

Compensation for victims where vehicles have false or no registration plates.

In the event of an accident where a vehicle cannot be identified by its registration plate, MIIC may not be able to identify a liable insurer. In such case the guarantee fund in the country of the accident will meet the claim – if the accident is in the UK, this will be the MIB.

Compensation for victims where the vehicle was not required to be conventionally insured.

Some vehicles are exempt from the normal third party insurance requirement. Where the liability on these vehicles is accepted by a particular body, the UK Regulations require those vehicles to be traceable through MIIC. Where this is not possible the compensation body (MIB) must meet any claim. This is already the case in the UK. Increased minimum legal cover for third party personal injury and property damage insurance. No impact on MIIC. The UK already has unlimited liability for PI but will need to introduce a higher limit for TPPD.

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Claims to be allowed for property damage in cases of unidentified vehicles causing significant personal injury.

No impact on MIIC. This applies to cases where no registration number has been supplied, so no MID search would be carried out. Removal of the “excess” for property damage caused by uninsured vehicles This provision – which was opposed by the UK insurance industry – would allow claimants suffering minor property damage to seek full compensation. Whilst significant for MIB, this is unlikely to have an impact on MIIC, since all such claims are probably checked against MID at present anyway.

Liability towards pedestrians and cyclists

This provision is intended to ensure that pedestrians and cyclists always have a right to seek compensation in the event of an accident, but does not guarantee it, if, for example they are wholly liable themselves.

Insurance for stays abroad.

This provision clarifies the fact that insurance for extended stays abroad is available under a normal domestic policy, as long as the vehicle is not “normally based” abroad. This is the current situation in the UK and therefore will have no impact.

Insurance cover for imported vehicles.

This provision will allow UK motorists to buy short-term cover for new vehicles being imported from other Member States from their own insurer, pending re-registration.The period of cover can be up to 30 days.The MID is already capable of handling non-UK vehicles in anticipation of such a provision.However, the DfT is seeking clarification from the Commission on whether such vehicles would need to be notified to the country from which the vehicle is being exported, or to the importing country.

Right to ask for a statement of claims experience

This provision will allow policyholders to ask insurers for a statement of claims when moving to another insurer – including in another country. There will be no impact on MIIC, since this is a matter for insurers. Direct right of action against insurers for domestic victims This extends the provision in the 4th Directive, which applied to “visiting victims”. However, this has already been implemented in the UK, so the situation will be unchanged.

Role of information centres.

Information centres set up under the 4th Directive will be obliged to provide insurer information to domestic as well as foreign claimants. This is already the case inthe UK, so the position of MIIC remains unaffected.

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