The Bolam test in package travel cases

This blog post is by Nick Parkinson, a solicitor at Travlaw LLP.

Nick considers the case of Morris v TUI UK Limited (Unreported) Wrexham County Court, 31 May 2019. This is the first known instance of the courts applying the ‘Bolam test’ (Bolam v Friern Hospital Management Committee [1957] 1 WLR 582) in relation to accidents abroad under the Package Travel Regulations. Although it was not decisive in this case, the potential implications are significant. Will Claimant local standards experts have to confirm that a supplier’s practices do not fall within a reasonable body of opinion if the point is taken? This may not be easy, particularly in cases with more “fluid” standards than building regulations or statutory codes of practice.

Background

Anyone dealing with accidents abroad brought under the Package Travel Regulations will be familiar with the importance of the Claimant providing evidence that local standards have not been adhered to. However, a less familiar tale is when a package tour operator manages to avoid liability in relation to a slipping accident on the wet floor of a hotel room in Spain (Menorca), despite the court finding that the hotel were in breach of the local standards. Specifically, in Morris, it was held by DJ Owen that a Spanish hotel ought to have installed ‘Type 2’ tiles (suitable for ‘wet zones’) instead of ‘Type 1’ tiles (suitable for ‘dry areas’). ‘Dry zone’ tiles were not considered suitable due to the close proximity to the shower cubicle. Despite the Spanish hotel being held to be in breach of local standards for failing to install a category of tiles with a stronger ‘slip resistance’, they were still not held liable.

Surely That Isn’t Right? Let’s Appeal!

On the face of it, perhaps, and that may explain why the Claimant applied for permission to appeal. However, the Claimant’s application was rejected ‘on the papers’ by HHJ Howells. Still not content with the outcome, the Claimant requested an oral hearing which was heard before HHJ Milwyn Jarman at Wrexham County Court on 31 May 2019. It was at this point that the Claimant’s appeal came ‘to the end of the road’, upon HHJ Milwyn Jarman upholding the original decision of DJ Owen.

Back to Basics: Causation!

It may feel very much like a lesson in ‘back to basics’ for many practitioners but, quite simply, the Claimant failed to prove that the accident would have been avoided if the correct ‘type’ of tiles had been used. To put it another way, yes the hotel used the wrong tiles but so what? To quote Morrissey, “What difference did it make?” In the opinion of DJ Owen it was not clear what, if any, difference it would have made had the correct tiles been used. The Claimant does of course carry the ‘burden of proof’ and if the Claimant cannot prove that the ‘Type 2’ tiles would, or were likely to, have prevented the accident, the Claimant will fail to succeed on causation. Fail to prove causation and, inevitably, the claim will fail.

The Technical Bits – Causation

Perhaps the key failing here is that the Claimant’s expert failed to measure the actual slip resistance of the tiles in question. It was established at trial that:

  • ‘Type 2’ tiles ought to have been used instead of ‘Type 1’ tiles (where the Claimant slipped)
  • Type 1’ tiles allowed a range of tiles with a ‘friction rating’ of 15-35
  • ‘Type 2’ tiles required tiles to have a higher ‘friction rating’ of 35-45

It was therefore entirely possible that the ‘offending tiles’ had a resistance rating at the ‘higher end of the scale’ towards the 35 mark. Equally, the ‘offending tiles’ could have had a ‘resistance rating’ as low as 15. The problem for DJ Owen was that there was no evidence before the court to determine, or even estimate, the actual slip resistance with any more accuracy than the stated range of 15-35. The Claimant’s expert did not do her any favours in that:

  1. He admitted that a nominal increase in the slip resistance rating was unlikely to have made any notable difference
  2. He admitted that he could have taken a measurement of the actual slip resistance of the ‘offending tiles’, but that there would have been ‘difficulties’ carrying the equipment on the aircraft to Menorca (not that a ‘better reason’ would have made any difference)

Fundamentally, to prove her case, the Claimant needed to obtain a measurement of the actual slip resistance of the ‘offending tiles’ and for her expert to comment as to what, if any, difference it would have made had the hotel used the appropriate ‘Type 2’ tiles. Without this missing ‘piece of the jigsaw’, the claim was doomed to fail.

In support of this decision, DJ Owen relied on the Court of Appeal decision in Clough v First Choice [2006] PIQR P22. In Clough, the Court of Appeal held that it was not sufficient to demonstrate that the breach of duty increased the risk of slipping. The Claimant had to prove that the breach caused or materially contributed to the accident itself.

The Bolam Test – Where Experts Do Not Agree

This point was not a deciding factor in Morris. However, it may well be that Morris has paved the way for future cases where the court are faced with two experts with ‘contrasting opinions’. Clinical negligence lawyers will be all too familiar with the ‘Bolam’ test which essentially provides a defence to medical practitioners where their actions fall within a ‘reasonable body of opinion’. The key point being that it is not simply for a judge to ‘pick a side’ by selecting which ‘body of opinion’ he or she prefers, rather the judge would have to conclude that one ‘body of opinion’ does not withstand logical scrutiny and is not therefore a reasonable body of opinion.

In Morris, the court accepted (probably for the first time ever) the Defendant’s proposition that the Bolam test ought to apply in relation to accidents abroad under the Package Travel Regulations. In support, the Defendant relied on a similar application of the Bolam test outside of clinical negligence in relation to a claim against a local authority in Adams v Rhymney DC (2001) 33 HLR 41. The application of the Bolam test had the potential to be a decisive point in Morris in order to determine whether there had been a ‘breach of local standards’. That particular battle came about because the Defendant’s expert had contended that, under her interpretation of the Spanish building standards, ‘Type 1’ tiles were in fact perfectly suitable. Ultimately, however, the application of the Bolam test did not help the Defendant in Morris because DJ Owen came to the conclusion that the Defendant’s expert had applied ‘simply slapdash practice and a failure to pay sufficient attention to the Spanish building standards’. The Defendant’s expert was not therefore found to be a ‘reasonable body of opinion’.

Although, not decisive in Morris, the application of the Bolam principle in relation to accidents abroad under the Package Holiday Regulations was an important principle to establish and may well be decisive in future cases.

Conclusions

It is easy for practitioners to fall into the trap of getting bogged down trying to prove, or resist, a breach of duty due to the complex issues that often arise in relation to local standards’ evidence, especially where there is a dispute between the parties’ respective experts. In doing so, there is a danger of losing sight of the bigger picture. It is therefore important for Claimant and Defendant practitioners alike to never forget to apply the absolute basics of personal injury litigation, i.e:

  • Duty of Care ✓
  • Breach of Duty – in accordance with ‘local standards’ ✓
  • Causation ?

Finally, the application of the Bolam principle may well add another weapon to the arsenal of travel companies looking for novel ways to defend claims under the Package Travel Regulations. It is perhaps more likely a case of when, not if, we see the first claim under the Package Travel Regulations dismissed based on the Bolam principle and due to conflicting opinions found in expert evidence.

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