James Candlin of 12 King’s Bench Walk acted for the Defendant in this action arising out of personal injuries that Mrs Chelton sustained on 26 September 2013 in the course of a river cruise package holiday provided by Saga. Recorder Browne-Wilkinson QC gave judgment dismissing the Claimant’s claim. The case provides a useful illustration of the risk of relying solely upon legal experts at the expense of local specialists in the relevant field when seeking to establish local standards.
Mrs Chelton, who was aged 79, was travelling on a vessel named The Douro Princess on the Douro River in Portugal, when she was injured by a sliding door or doors closing on her whilst she was in the course of passing through them. As a result, Mrs Chelton suffered a laceration to her forehead and a fracture of her left kneecap. The value of general damages had been agreed at the door of court as being £24,000 and special damages as being £15,000.
A few days before 26 September, Mrs Chelton and her husband, Captain Chelton, had been involved in another incident when Captain Chelton was passing through the same set of sliding doors and the left hand door suddenly closed, knocking him off balance. Unfortunately, neither Mrs Chelton nor her husband had taken the step of reporting this incident either to their tour representative or to any other person involved in the running of the ship.
The court accepted that both incidents had happened not because of anything unusual done by the Cheltons, but on account of an intermittent fault which caused the door to malfunction. In fact, the tour representative had noticed that, compared to some such doors in the country, she needed to wave a hand at the door sensor in order for the doors to open; however, she perceived this to be because of her height rather than due to any fault.
The parties had relied on experts in Portuguese law who agreed that there were no safety or other regulations directly applicable to the maintenance of sliding doors, and their reports contained no evidence of any relevant local custom or practice of maintenance of such doors. In fact the picture was further complicated because it transpired that Portugal had technically not brought into force a relevant EC Shipping Directive because it had failed to define its domestic inland waterways.
The experts did however give evidence concerning the substantive law of Portugal, which created a duty of vigilance protecting consumers in particular. Laws were so framed as to provide consumers with a very high degree of protection from injury and provided for reversal of the burden of proof in certain situations. There was in fact a reported decision of the Portuguese Supreme Court in favour of a Claimant concerning an accident involving being struck by a supermarket sliding door – although the precise facts of that case were slightly opaque.
The Claimant’s counsel had invited the court to draw inferences from the circumstances of the two incidents that there had been a want of care on the part of the operators in respect of maintenance by reference to the local duty of ‘vigilance’ under the Portuguese Civil code. This argument was advanced on the basis that such vigilance was a local standard for the purposes of Lougheed v On the Beach Ltd [2014] EWCA Civ 1538 at [5].
The Court heard evidence from the Defendants as to the lack of any prior complaints and also had access to some limited written evidence from the ship’s engineer of a weekly check of his own plus a system of quarterly maintenance by a specialist contractor, supported by invoices recording no defects on the recent inspections.
The Court rejected the Claimant’s submission, which it adjudged to be misconceived, on the basis that Portuguese substantive law was irrelevant to the test of the exercise of reasonable skill and care under the holiday contract. The court had criticised the absence of any evidence of typical maintenance systems for sliding doors at premises or on ships in Portugal during closing submissions. The Court further rejected the alternative contention that failure by the tour representative to report difficulty operating the doors amounted to negligence. The claim was dismissed.
This case illustrates a risk of deploying only legal experts to identify a local standard where it becomes apparent that there is no specific regulation. It also underlines the need to call evidence of local specialists in the relevant field even where the local statute law of civil code countries apparently creates a culture which ostensibly provides consumers with a very high degree of protection. Such a culture may imply a high local standard of practice, but it does not prove it.