High Court on package travel litigation: “local standards” evidence not always necessary

In this blog post, Spencer Turner considers the case of TUI UK Limited v Lynn Morgan [2020] EWHC 9244 (Ch). The decision has significant implications for claims relating to package holidays.

In summary, Marcus Smith J considered that a Claimant was entitled to rely on a standard not applied in the locality as “a proxy for the local standards that were lacking in this case”. In particular:

where the local standards are unclear, the court is not going to require the claimant to incur and waste time and expense in seeking to prove that which is vague, nebulous or non-existent. In such a case, the claimant is perfectly entitled to have resort to other material in order to establish that the obligation to exercise reasonable skill and care has been breached.

Background

On the second day of her holiday in Mauritius, Mrs Morgan was returning to her hotel room after dinner. She was walking outside along an unlit sun terrace adjacent to the swimming pool when she collided with a heavy wooden sunbed and fell, suffering injury as a result. She brought a claim against TUI for breach of contract under reg. 15 of the Package Travel, etc. Regulations 1992.

The Judgment at First Instance

HHJ Jarman gave judgment at first instance which is available to read here.

In summary, the matter turned on the parties’ expert evidence relating to external lighting applicable to hotels in Mauritius. The judge found that, at the time of the accident, it was likely that it was dark enough to make it very difficult to see the wooden sunbed. The judge said that the level of lighting would have been ‘a little less than 0.24 lux’.

The main issue for HHJ Jarman was the fact that there was no ‘prevailing standard’ as to the Hotel’s obligations regarding external lighting. The Defendant’s local standard’s expert had checked the Mauritius Standards Bureau website and found no indication of applicable regulations as to lighting. The Claimant’s expert, Mr Magner, referred to the ISO standard on emergency lighting which prescribes a minimum luminosity for emergency lighting of 0.5 lux. Mauritius was a member of the organisation which adopted this standard, but there was no evidence before the court as to how Mauritius cast its vote. The Claimant did not put forward expert evidence as to the practices of other establishments which were similar to the hotel where the accident happened.

The Claimant argued that Mr Magner’s evidence was sufficient to establish that minimum luminosity at the accident spot should have been 0.5 lux. In summarising the expert evidence, HHJ Jarman said that:

Mr Magner accepted in cross-examination that this standard relates to minimum luminosity at surface level for hazard perception in worst conditions such where there is smoke. He accepted that the standard did not apply strictly to what lighting would be required at the accident spot, but it refers to whether the public or workers have access. He said that the standard is frequently used in construction to give a minimum for such hazard perception. The minimum is 0.5 lux, and this is one of the few universal principles. Where, as in Mauritius, there is no specific local standard, he said that this is what is used. He said that he was not surprised that there is no such local standard in Mauritius, as it is ‘behind’ the UK. He could not name a specific hotel where it has been specifically adopted but said he had been involved in a number of cases in Mauritius where it was used. In his report, he says that his local enquiries and analysis are based upon a combination of case-specific enquiries and his collective experience of Mauritian standard in practice in that county since 2002.

In finding in favour of the Claimant, HHJ commented that:

In my judgment, given that the ISO standard relates to emergency lighting and therefore to potential life threatening situations, the evidence of Mr Magner that in lighting terms this was one of few universally acceptable principles is not surprising and I accept it. It is unlikely in my judgment that hotels in Mauritius are free to provide no emergency lighting at all.

The Defendant appealed on a number of grounds, which can be boiled down to a challenge to the judge’s use of the ISO Standard as setting a standard by which the tour operator’s obligation to exercise reasonable skill and care was to be judged.

The Appeal

Marcus Smith J’s judgment provides us with a helpful and familiar summary of the relevant legal principles in claims brought under the Package Travel, etc. Regulations:

  • The starting point is that, unless the booking conditions are more generous to the consumer, the normal implication will be that obligations under a holiday contract are performed with reasonable care and skill (see: Section 13 of the Supply of Goods and Services Act 1982).
  • Regulation 15 provides that the organiser of the holiday is liable to the traveller for the performance of the services in the holiday contract, irrespective of whether those services are performed by the organiser or by other travel service providers.
  • Of critical importance in package travel cases is the standard by which an express or implied term to exercise ‘reasonable care and skill’ is to be judged. Usually, the standards of services and facilities provided by a local supplier are to be judged by the standards applicable in the country in which the accident happened.

However, in a revival of much discussed dicta by Richards LJ in Evans v Kosmar Villa Holidays plc [2008] 1 WLR 297, Martin Smith J considered at [16] that the obligation on the part of the organiser may be breached without a local standard being infringed:

However, it must be stressed that the obligation on the organiser to exercise reasonable skill and care is an obligation arising under English law and it is English law that applies to establishing whether the obligation has been breached. It is perfectly possible, as a matter of law, for the obligation to be breached without the local law being infringed.

Marcus Smith J summarised his understanding of the authorities at [17]. This passage bears setting out in full:

It seems to me that the following propositions emerge from the case-law:

(1) The question before the court involves consideration of the alleged breach of an obligation governed by English law, but performed abroad. No questions of private international law arise.

(2) However, the court will not automatically apply the standards that would pertain if the performance were in England. To the contrary, the court will regard the standards prevailing in the place of performance as “a very important signpost” in determining the content of the obligation.

(3) If it can be shown that the standards prevailing in the place of performance have been infringed, then it seems to me that the organiser’s English law obligation to exercise reasonable skill and care will almost inevitably also be breached.

(4) However, the converse does not, as it seems to me, necessarily follow. It may well be that even if the standards prevailing in the place of performance have been complied with, it does not necessarily follow that the organiser will escape liability. The standards prevailing in the place of performance may, for no justifiable reason, fall so far below either internationally accepted or English standards that the organiser assumes an obligation to exercise reasonable skill and care that is informed not by the local standards, but by other standards. I stress that the obligation on the organiser is to exercise reasonable skill and care, and that whilst standards (be they local, English or international) will be important in articulating what is reasonable, they are not the last word.

(5) In short, I consider that there is an asymmetry in the obligation assumed by an organiser:

(a) If the standards prevailing in the place of performance are breached, the term implied by section 13 of the 1982 Act will likely also have been breached;
(b) On the other hand, even if the standard prevailing in the place of performance have been complied with, that is no more than a very important signpost that the term implied by section 13 of the 1982 Act has not been infringed.

(6) That leaves cases like the present case, where it is unclear what the standards prevailing in the place of performance actually are. As can be seen from the Judgment, this was the question that most troubled the Judge. He found that:

(a) Had the accident happened in England or Wales, then TUI’s duty to exercise reasonable skill and care would likely have been breached.
(b) The safety regulations in Mauritius as to external lighting applicable in hotels was unclear.

(7) Whilst the burden of proving a breach of the implied term of reasonable skill and care falls on the claimant – here, Mrs Morgan – that burden does not necessarily oblige the claimant to demonstrate what were the locally applicable standards in order to succeed in the claim, although of course such standards are an important signpost. In particular, where the local standards are unclear, the court is not going to require the claimant to incur and waste time and expense in seeking to prove that which is vague, nebulous or non-existent. In such a case, the claimant is perfectly entitled to have resort to other material in order to establish that the obligation to exercise reasonable skill and care has been breached.

(8) In the course argument, I put to Mr Atwal (counsel for TUI) what would happen if there was no identifiable prevailing standard that could be ascertained by reference to, say, safety regulations at the place where the accident occurred. His contention was that, in those circumstances, the claimant’s case must – absent the exceptional case – fail. In short, the absence or unascertainability of local standards would be fatal to the claimant unless (to quote from Phillips J’s judgment in Wilson) the absence of such a safety standard might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question.

(9) I do not accept that contention. Although “local standards” will doubtless be a “very important signpost” where they are readily ascertainable by reference to – say – a local law or regulation, in cases where there is no readily ascertainable standard it will be for the claimant, as in Lougheed, to establish the content of the duty by leading other evidence.

The Defendant’s case on appeal was directed at the inapplicability of the ISO Standard in Mauritius. Specifically, the ISO Standard applied minimum luminosity requirements for installed emergency lighting, and it did not prescribe which areas were to be lit.

Despite agreeing with the Defendant’s counsel as to his understanding of the ISO Standard, Martin Smith J said that the question for the judge below was not whether the standard was applicable but rather whether it was an appropriate standard to use to determine the factual question of whether the Defendant had breached its duty to the Claimant.

To that extent, HHJ Jarman was entitled to accept that the ISO Standard was appropriate in the absence of any local regulation. It was quite clear that the ISO Standard was not actually the standard applicable, but rather the judge was looking for material that he could use to inform the Defendant’s obligation to exercise reasonable skill and care. The judge had also been entitled to infer that the Claimant would have been able to see where she was going had the ISO Standard been met.

Comment

Marcus Smith J gives a helpful summary of the law relating to local standards in this appeal. In particular, it is right to point out that there can be exceptions to the need for expert local standards evidence in package travel cases.

Such scenarios are limited, but this author considers the following to be examples:

  • Where the absence of a certain safety feature is so significant that it might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question. Tomlinson LJ in Lougheed said that ‘[t]here may perhaps be certain irreducible standards in relation to life-threatening risks.’ Saggerson on Travel Law and Litigation gives the example of a hotel’s ponds being inhabited by alligators.
  • Where the holiday organiser is aware of a specific hazardous feature of the premises (for example, as a result of previous accidents).
  • Where there are uniform international regulations. Palaiokrassus & Tsakou v Black and Green Trading Ltd [2020] 4 WLUK 476 (discussed here) was arguably such a case. Mrs Morgan’s case is unlikely to have fallen into this category because the ISO Standard did not apply to the area in question. Gouldbourn v Balkan Holidays & Flights Ltd [2010] EWCA Civ 372 supports the contention that even if the ISO Standard applied, there was still a need for evidence as to its application in the particular locality.

The final example is based on Richards LJ’s comment in Evans that, despite the lack of local standards evidence ‘it was still open to the claimant to pursue the claim on the other bases pleaded in the amended particulars of claim’. One of those bases in Evans being that the assertion that there was generally a lack of reasonable skill and care in the provision of the facilities.

It is on this basis that Marcus Smith J seems to have come to the decision that, despite the ISO Standard not being applicable at the accident site, it could be used to inform the Defendant’s contractual obligation to exercise reasonable care and skill to the Claimant.

It is, with respect, difficult to reconcile Marcus Smith J’s judgment with the judgment in Lougheed. Marcus Smith J accepted at [32]-[33] that the ISO Standard was not actually the standard applicable and that it was not of direct application to the issue of luminosity at the accident site. In Lougheed, Tomlinson LJ specifically rejected the idea that local standards are not determinative of the issue of whether reasonable skill and care have been exercised at [16].

Tomlinson LJ at [12]-[13] said that Evans was support for the proposition that compliance with local regulations may not be sufficient to discharge the duty of care, for example, where regulations are recognised locally as inadequate, but not that the need for local standards could be obviated in a package travel case. He did not say that it constituted a general alternative to the need for local standards evidence.

Marcus Smith J is right in his judgment at [17(9)] that, where a local regulation cannot be identified, Lougheed allows a given claimant to establish a breach of duty by reference to other evidence. However, Lougheed also makes clear that in such an ‘unregulated’ case, the standards by which a hotel is to be judged are ‘local standards of care as applied by establishments of similar size and type’ at [13].

That is to say, a Claimant should obtain a report in which the expert sets out the nature of any general duty of care and how it is, in practice, applied in similar establishments to the one where the accident happened. It is difficult to see how the Claimant has complied with that requirement in this case; Mr Magner said in his evidence that he could not name a specific hotel where the ISO Standard was used. That, in this author’s view, falls wide of the mark of the type of expert evidence that Lougheed requires.

In fairness, Marcus Smith J appears to have been led to this conclusion by the argument advanced on behalf of the Defendant that the claim must automatically fail “if there was no identifiable prevailing standard that could be ascertained by reference to, say, safety regulations at the place where the accident occurred.” But that argument, with respect, is inconsistent with Tomlinson LJ’s practice-based approach to “unregulated” cases as described above. You can also understand why a judge would balk at the idea that the absence of a formal local regulatory standard would constitute an iron-cast defence for tour operators in package travel claims generally.

This judgment will, no doubt, be useful for Claimants in package travel cases but, in this author’s view, should be approached with caution. Securing appropriate expert evidence on local standards can be an arduous task, particularly in lower value or ‘unregulated’ cases. However, in such a case, the court is likely to expect evidence of local customs or practices as [13] of Lougheed says is necessary. It is important to remember Tomlinson LJ’s comment that: ‘a Claimant who chooses not to adduce such evidence in a case of this sort does so at his peril.’

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