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In Philip Clay v TUI UK Ltd [2018] EWCA Civ on 23rd May 2018 the Court of Appeal gave judgment in favour of the Respondent in an interesting case considering the liability of a tour operator under the Package Travel, Package Holidays, and Package Tours Regulations 1992 (the “Package Travel Regulations”) for injury to the Appellant after a balcony fall.

The Respondent was represented in the Court of Appeal by Ronald Walker QC of 12 King’s Bench Walk who was instructed by Mark Fanning of Miles Fanning Legal.

Background

The Appellant had booked a package holiday for himself, his family, and his parents to the Guayarmina Princess Hotel, Tenerife.

The Appellant and his family were staying in one room and his parents in an adjoining room each with its own balcony accessed via sliding doors that could be locked. The balconies were offset from each other with a gap of around 78 cm between the decorative ledges underneath each balcony. The rooms were two storeys up with a drop of roughly 20 feet to ground level.

In the early hours of one morning, after the children had gone to bed, the claimant, his wife and parents met for a nightcap on his parents’ balcony. After joining his family on the balcony, the Appellant went inside to use the bathroom but on returning he shut the sliding door behind him and it locked thus trapping himself and the others on the balcony. After trying to open the door and gain the attention of passers by in the street below the Appellant decided to he would step from one balcony to the other using the ledge outside of the balustrade to gain access. Unknown to him the ledge was merely a decorative feature and not load bearing and it gave way immediately under his weight and he fell two storeys suffering serious injury.

The claim was brought for breach of the terms of the holiday contract and under Regulation 15 of the Package Travel Regulations.

At trial in the County Court at Cardiff HHJ Seys Llewellyn QC heard factual and expert evidence from both parties. It was agreed that liability would be judged by reference to the local standards of a hotel in Tenerife (as per Lougheed v On the Beach Ltd [2014] EWCA Civ 1538). At trial the Claimant argued three breaches of local standards: (i) failure to maintain facilities, namely the lock to its original and proper condition; (ii) the ledge was part of the balcony and should have been weight bearing; and (iii) the hotel failed to warn the Appellant of risk.

The Defendant argued that there was no breach of local standards in respect of (i) to (iii) above and that the act of climbing over the balustrade of the balcony was “so unexpected and/or foolhardy as to be a novus actus interveniens”.

HHJ Seys Llewellyn QC found no breach of local standards in respect of the need for warnings and the construction of the balcony ledge and also found the Claimant’s actions to be a novus actus interveniens. The claim was dismissed and the Claimant then appealed.

Grounds of Appeal

The Appellant appealed on two grounds. Firstly, the judge had misdirected himself as to the appropriate test of remoteness. Secondly, the judge had failed to consider relevant evidence and/or the judge’s conclusion that the defect in the locking mechanism was not causative of the accident was wrong.

There was an issue between the parties on the appeal as to whether or not the judge had found a breach of local standards in respect of the lock (and the Respondent, by a Respondent’s Notice, argued that, if he had, he had been wrong to do so). In the event the Court of Appeal did not find it necessary to decide this issue, because the claim failed even on the assumption that there was a finding of breach of duty.

The Appeal

In support of these grounds the Appellant contended (i) that the starting point is that a defendant is liable for a consequence of a kind which is reasonably foreseeable (Simmons v British Steel Plc [2004] UKHL 20); (ii) the judge should then have started his assessment as to reasonable foreseeability by considering whether it would be reasonable for the Appellant to try to escape the balcony, rather than the exact type of escape undertaken (Hicks v Young [2015] EWHC 1144(QB)); (iii) relying on comments of Morris LJ in Sayers v Harlow UDC [1958] 1 WLR 623 at p630 that it is “the most natural and reasonable action” for someone who finds themselves “undesignedly confined” to seek means of escape, the judge should have considered it reasonable that the Appellant would seek to escape; (iv) when seeking to escape from being locked out by the Respondent’s breach of duty, the injury will not be too remote if the Appellant faced only inconvenience, rather than danger (Sayers v Harlow) and that the correct approach is to weigh the degree of inconvenience with the risk involved in trying to escape; (v) when considering this risk, it was insufficient to simply consider it “obvious” and “life threatening” and that this should be a subjective test based on what the Appellant himself thought the risk was; (vi) as the risk was carefully considered by the Appellant and his family (who were described as “careful” people by the judge), the risk was clearly not “obvious to him”; and (vii) the Appellant’s mistaken belief that the ledge would support his weight was not so unreasonable as to break the chain of causation, particularly when balanced against the above, and should have been addressed as an issue of contributory negligence.

In short, the Respondent contended that the judge had not made a finding of any breach of local standards, that the judge was right to find that the Appellant’s actions amounted to a novus actus inteveniens and that in reaching that conclusion he had applied the correct test and weighed up the degree of risk associated with the means of escape vs. the level of inconvenience as per Sayers v Harlow.

The Court of Appeal decided by majority (Moylan LJ dissenting) that both grounds of appeal should fail and upheld the decision of the trial judge. In the leading judgment, Hamblen LJ found that the judge had not misdirected himself as to correct legal test for remoteness. He also found that the judge had not erred in finding the Appellant’s actions to be a novus actus. He considered the judge had paid “full regard to the evidence of the Appellant, his parents and his wife”. The judge’s conclusion that the Appellant “did not know and could not know that the ledge was safe” was “firmly founded on the evidence”. Further, Hamblen LJ considered the Appellant’s submission that the judge failed to take account for the degree of inconvenience suffered faced by the Appellant and his family to have “no force”. As such the finding of novus actus was “clearly justifiable” and that as the matter was for the trial judge to evaluate the Court of Appeal should not intervene.

Moylan LJ in his dissent considered that the judge had failed to come to a judgment on whether personal injury of some degree was a reasonably foreseeable consequence of the defect in the lock. He found that if the judge had “expressly answered this issue, he would have concluded that it was foreseeable that the appellant might sustain personal injury from being trapped in the balcony because it was foreseeable that he might try to escape and might sustain some injury as a result”. Moylan LJ also considered that the judge “either applied the wrong test or reached a flawed evaluation” on the issue of novus actus.

Comment

The judgment provides a useful analysis of the issues of remoteness and novus actus.

As to remoteness, Hamblen LJ found that the submission that the relevant consequence to be foreseen was incurring some personal injury seeking to escape from the balcony, not the precise type of injury, and that some personal injury was foreseeable was never presented to the judge at trial.

Further, the Appellant could not point to any finding made by the judge as to reasonable foreseeability under this wider interpretation and that the issue of reasonable foreseeability was considered by the judge when considering whether there had been a breach of duty in failing to give adequate warning to the Appellant. This was the context in which the issue of foreseeability was considered in the judgment at first instance. It was not for the Court of Appeal to effectively substitute the Appellant’s pleaded case.

Of perhaps more interest, is Hamblen LJ’s consideration of novus actus and the specific approach adopted in cases where an individual has become trapped as a result of a defendant’s alleged breach. He followed the reasoning in Sayers v Harlow and considered that the judge was correct to essentially weigh up the degree of inconvenience faced by the Appellant and the degree of risk taken in attempting to escape. In the present case the Appellant and his family had “some inconvenience and the danger of climbing over the balcony balustrade in the dark was obvious and life threatening; hence the finding of novus actus interveniens”.

It was important that the Appellant’s actions were voluntary and his conduct was “considered and deliberate. There was no necessity for the Appellant to take any risk, but he nevertheless chose to expose himself to real danger and to an obvious risk of death or serious personal injury”. This reinforces the common sense approach that weighs up factors of risk and inconvenience (or even danger) when deciding the issue.

The risks to which Mrs Sayers was exposed whilst standing on a toilet roll holder some two feet off a solid floor of a bus station toilet in order to climb over a locked door were very different to those faced by Mr Clay when stepping into the unknown two storeys up on the side of a hotel in the dark. The Court of Appeal’s decision is clearly the right one.

Miles Fanning Legal is a law firm specialising in the defence of travel, marine and international personal injury claims on behalf of insurers and tour operators.

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In JENNINGS V TUI UK LIMITED (T/A THOMSON CRUISES) [2018] EWHC 82 (Admlty), on 22nd January 2018, the Admiralty Registrar Jervis Kay QC handed down judgment in favour of the Defendant in a very useful decision considering the point at which “carriage” concludes for the purposes of the Athens Convention for the Carriage of Passengers and their Luggage by Sea 1974 as amended by the 2002 Protocol (the “Athens Convention”) in the context of passengers disembarking from a cruise ship at a modern cruise terminal facility.

The decision also considers the liability of a tour operator under the Package Travel, Package Holidays and Package Tours Regulations 1992 (the “Package Travel Regulations”) for those passengers who have completed disembarkation and are within the confines of the cruise terminal facilities.

The Defendant was represented in the Admiralty Court by Alex Carington of 12 King’s Bench Walk who was instructed by Mark Fanning of Miles Fanning Legal.

BACKGROUND

The Claimant and his wife had booked a cruise with the Defendant for 7 days on board the M.V THOMSON DREAM, which started and finished at the Port of Malaga, Spain. The holiday contract with the Defendant included flights, the transfer between the airport and the Port of Malaga, as well as the cruise.

At the end of the cruise, the Claimant was leaving the ship via a covered walkway. It was raining heavily. He made his way along an “airfinger”, which was a covered walkway supported at each end by steel legs and running on rails set in the quay. He then crossed over a fixed concrete walkway to access a further section of walkway supported on steel legs which sloped down into the terminal building. As the Claimant was walking through this last walkway he slipped on water and fell, suffering an injury.

The claim was bought under Art. 3(1) of the Athens Convention; alternatively, regulation 15 of the Package Travel Regulations. The Claimant argued that the water was present due to the Defendant’s crew members walking it into the area as they transferred cabin luggage from the ship to the terminal building. He also argued the Defendant’s crew members had a duty to warn him of the danger of slipping.

The Court heard evidence from the Claimant, his wife and the Defendant’s hotel manager. No evidence on local standards was adduced.

The claim was dismissed.

FACTUAL FINDINGS

The Court accepted that the Claimant fell on the walkway and there was water present where he fell. However, the Court did not accept the Claimant’s contention that the water was present due to the Defendant’s crew members. The Claimant’s evidence was based on an assumption and the Court preferred the evidence of the Defendant’s hotel manager who confirmed that only a few crewmembers used the passenger walkway into the terminal to assist with identifying luggage and would have no reason to go outside into the rain.

FINDING IN LAW

ATHENS CONVENTION

The Court found that the Athens Convention did not apply as the fall did not occur during the course of carriage. Art. 1(8) of the Athens Convention, which defines “carriage”, expressly provides that carriage of a passenger does not include the period during which a passenger is in a marine terminal or station or on a quay or in or on any other port installation.

The Claimant contended that disembarkation was not complete until the passenger was safely established ashore and sought to rely upon the decision in Collins v Lawrence [2017] 1 Lloyds Rep 13, where a passenger fell from a platform at the top of freestanding steps from a grounded fishing vessel which had been provided by the vessels owners and which led onto the beach.

The judge in that case held that disembarkation was not completed until the passenger was safely on the shingle beach.

The Defendant contended that the fixed walkways (which were attached to the port and were not on or part of the cruise ship) were port installations using the ordinary meaning of that phrase and the period of carriage had already ended when the fall occurred.

The Court accepted the Defendant’s argument and found that whilst the scope of the Athens Convention is generally intended to include disembarkation, this does not apply once a passenger has left the ship and has reached spaces or equipment which are clearly not under the control of the ship. Once the Claimant had passed through the port/door in the ship’s side and stepped onto the walkway leading to the terminal the period of carriage was over and the Athens Convention no longer applied.

In light of the factual findings, the Court noted that the Claimant had not proved the water was present due to any fault or neglect of the Defendant. It also rejected the Claimant’s submission that the Defendant was under a duty to warn the Claimant the presence of water. As the period of carriage was over, any responsibility for the passenger under the Athens Convention had ended.

PACKAGE TRAVEL REGULATIONS

Although the Claimant had only pleaded that the cruise was the package holiday, the Court accepted that the holiday contract was actually for the cruise, transfers and flights such that accident occurred during the period of the package holiday.

The Claimant contended that the Defendant was under a duty to warn the Claimant of the risk of slipping, as well as being responsible for any failures by the Port Authority as a supplier for whom the Defendant should be responsible, and that no evidence of local standards was required to establish breaches of these duties. He also sought to rely on res ipsa loquitur to reverse any evidential burden on him.

In respect of a duty to warn, the Court doubted that the walkway fell within the scope of facilities provided under the holiday contract. Further, it was an area that the Defendant could not be expected to survey or patrol and it was absurd to consider that the Defendant, as a tour operator, should need to warn its customers to take care in weather conditions which were obvious to everyone. Whilst such a duty could arise in respect of an obvious and serious hazard, this was not such a case. The Court adopted a section of Saggerson on Travel Law and Litigation which stated:

“The need for such warnings as part of the proper performance of the holiday contract is likely to be limited to circumstances where the hazard is serious and the risk of significant injury is manifest to the hotelier or tour operator but may not be so obvious to the visitor. Based on the facts of Jones v Sunworld and Martens v Thomson, it is very doubtful that the courts would regard as realistic any contention that a hotelier should warn consumers about routine pavement trip hazards on the public road outside the hotel.”

In respect of the claim for any failure by the Port Authority as a supplier for whom the Defendant should be responsible, the Court found that the lack of evidence as to local standards was fatal to that claim. The Court followed the Court of Appeal decision in Lougheed v On The Beach Limited [2014] EWCA Civ 1538 and rejected the Claimant’s contention that res ipsa loquitur applied to reverse the evidence burden. There was no evidence that the Defendant allowed the hazard to develop and so there could be no prima facie case against the Defendant to give rise to a reversal of the evidential burden.

This is a helpful decision as it confines liability under the Athens Convention to the period of carriage and once again reinforces the need for clear evidence of a breach of local standards in Package Travel Regulation claims. In respect of applying res ipsa loquitur, there would need to be at least evidence that the party responsible for ensuring safety knew of the hazard before a reversal of the evidential burden of proof should be contemplated.

The decision does leave two important issues outstanding. Firstly, whilst the Court doubted that the walkway fell within the scope of the holiday contract, this point was left largely undecided as the claim failed for other reasons. Secondly, before res ipsa loquitur can apply to reverse the evidential burden, is it necessary for the Claimant to also demonstrate that a failure to respond to knowledge of a hazard was contrary to the local standards of care applicable? The Court only determined that this was arguably the case.

The clarification around the definition of the phrase “port installation” is extremely helpful in the context of increasing use of modern port terminal facilities with air fingers and walkways, such as those seen at the Port at Malaga, as opposed to the more traditional use of a gangway from the ship to the quayside.

Miles Fanning Legal is a law firm specialising in the defence of marine claims and those involving injuries sustained whilst on holiday.