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Insights / News
The Claimant went on a package holiday to Mauritius, organised by the Defendant Tour Operator. One evening whilst there, she was returning to her hotel room from dinner along an outside, unlit sun terrace adjacent to the swimming pool, when she collided with a heavy wooden sunbed and fell, suffering injuries to her knees, face and head.
She brought a claim against the Defendant under the 1992 Regulations, and the implied term of reasonable care and skill under the Supply of Goods and Services Act 1982. The key question for the court was what was the standard of reasonable care in the circumstances, given that it was to be judged in accordance with local, rather than UK, standards, as per a line of authorities dating back to Wilson v Best Travel Ltd  All ER 353.
In this case, there was limited evidence of particular local standards, and the Defendant argued that the Claimant had not proved her case because she had not pointed to a particular local regulation or standard that had been breached.
The Court referred to the dicta in Evans v Kosmar Villa Holidays Ltd  EWCA Civ 2003 to the effect that these claims are brought under English law, and it is possible as a matter of law for the obligation to take reasonable care to be breached without the local law being infringed.
Marcus Smith J derived the following principles from the case law:
In a case such as the present where the local safety regulations were unclear (but the duty to take reasonable care would have been breached had the accident taken place in the UK), the Claimant had to rely on other evidence to show a failure to take reasonable care.
She did not, as a matter of law, have to demonstrate what the locally applicable standards in order to succeed in her claim.
The “other material” relied on by the Claimant in this case in order to prove that the obligation to exercise reasonable skill and care had been breached included the International Standards Organisations standard ISO on emergency lighting, which prescribed a minimum luminosity for emergency lighting of 0.5 lux (the lights in question were 0.24 lux).
Other examples of the kind of evidence that might be adduced included evidence as to the general practice or standard in other local establishments (for example as was led in Lougheed v On The Beach Ltd  EWCA Civ 1538).
The Defendant argued that the ISO standards relied on by the Claimant were not applicable to the circumstances (because, inter alia, they applied standards to installed lighting, they did not prescribe where lighting should be installed). Marcus Smith J accepted that it was correct to say that the standards did not apply directly to the factual circumstances of the case, but concluded that the judge had been entitled to treat them as being an appropriate standard to use to determine the factual question of whether the Defendant had breached its duty to perform the services it was providing to the Claimant with reasonable care and skill: “in the absence of definitively applicable rules, the Judge was looking for material he could use to inform TUI’s obligation to exercise reasonable skill and care.” Not only was he entitled to do so, but on the facts of this case he was right to do so.
This judgment, though not purporting to establish any new principles of law, is a helpful elucidation of the principles surrounding the often-vexed question of local standards. It seems on its face to be helpful to Claimants, in that it rejects the stance sometimes taken by Defendants in cases involving accidents or illness where there are no clearly defined local standards (or where they are very difficult to ascertain, for example in Cuba), i.e. that if the Claimant cannot plead and prove local standards, then the claim must inevitably fail. The “asymmetry” referred to by the court may give Claimants two potential routes to establishing a breach of the obligation to take reasonable care.
The note of caution for Claimants is that they still need to adduce some evidence from which a judge can find or infer a failure to take reasonable care. Hence whilst the failure to prove a specifically applicable local standard or regulation need not be fatal to the claim, a failure to adduce sufficient evidence from which some kind of local standard of reasonable care can be deduced or inferred will be.
It is still a curious feature of package travel litigation that the default rule that a party asserting that local law – or local standards – is different from English law bears the burden of pleading and proving it, continues not to apply, but that is not considered in Morgan, and perhaps remains a question for another case (to the extent that it has not been settled irrevocably by Lougheed).
Read the full judgment here.
Will Young has a particular interest in claims involving cross-border personal injury and travel law.
He acts for both Claimants and Defendants in claims with an international or cross-border element to them in a number of areas, including: package travel claims, cross-border RTAs, Athens Convention, and aviation (e.g. “Denied Boarding” Regulations) claims.
He has been instructed in a number of cases involving catastrophic injury following RTAs abroad, or with a cross-border element to them.
If you would like to discuss any of the issues covered in this article please contact Will Young directly or via his practice management team; Paul Barton or Mark Gardner on +44 (0)20 7353 6381 who would be happy to have a discussion in the strictest of confidence.