My thanks to Tom Collins of 1 Chancery Lane for letting me feature this article about a recent package travel case in which he successfully appeared on instructions from Michael Gwilliam of Plexus Legal LLP.
The article first appeared in 1 Chancery Lane’s Weekly Roundup, which can be accessed here.
In Doyle v Rayburn Tours Limited (Unreported) Birmingham County Court, 5 October 2021 (HHJ Truman), Tom acted for the tour operator in a claim brought by a teacher who had suffered a serious knee injury during a school ski trip to Italy.
It is of particular interest to this blog because it appears to be one of the first decisions grappling with the more permissive approach to local standards evidence seen in the decision of Marcus Smith J in Morgan v TUI UK Ltd  EWHC 2944 (Ch) (see our previous blog on that case here).
Shona Doyle was on the final day of the trip and was descending a ‘blue run’ when a pupil of the school, whom she described as a ‘novice skier’, fell and landed on her left leg, causing it to twist and rupturing her ACL.
The trip had been organised by Rayburn Tours Limited, a tour operator specialising in overseas educational and school trips, and was a package within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“PTR”). The package consisted of transport and accommodation together with ski equipment hire and provision of skiing lessons by a local ski school, Gallo Cedrone.
The factual evidence concerning the events leading up to the accident and the accident itself were of some complexity, but in essence, the Claimant alleged that the accident was caused by the failures of the ski instructor assigned to her class, for whom the tour operator was liable pursuant to Regulation 15 PTR. She alleged that the pupil who fell on her was appreciably weaker than the rest of the class and should have been assigned to a ‘beginner’ class; or alternatively that she should not have been taken on such a challenging run and that she should have been more closely supervised. She alleged that had such steps been taken, the accident would not have occurred.
Issues at trial
The Claimant alleged that the above failures constituted improper performance of the holiday contract. The Claimant further alleged breach of:
(i) the implied term, pursuant to section 13 of the Supply of Goods and Services Act 1982, that all services provided under the contract would be carried out with reasonable skill and care; and,
(ii) a common law duty of care in negligence.
Finally, the Claimant alleged breaches of the duties imposed on ski schools and instructors by the Federation Internationale de Ski (‘FIS’) Rules for Safety in Winter Sports Centre, in particular the following rules:
(1) instructors must teach pupils how to ski safely, which means teaching the technique of skiing and rules of conduct for skiers;
(2) ski schools are responsible for placing pupils into different classes according to their standard of skiing; and,
(3) instructors must never allow their pupils to take any risks beyond their capability.
In its Defence, the Defendant admitted that it was an implied term of the package holiday contract that the Defendant and its suppliers would exercise reasonable skill and care in performing all services which formed part of the contract, including the provision of skiing lessons by Gallo Cedrone, but that following Wilson v Best Travel  1 ALL ER 353 and Lougheed v On the Beach  EWCA Civ 1538 the standard of reasonableness was to be determined by local safety standards, customs and practices applicable in the place where the injury was sustained (namely, Italy) and that the burden of establishing the existence, applicability and breach of any such local standards rested on the Claimant.
At trial, both parties led expert evidence from British and US qualified ski instructors on appropriate standards of ski instruction, however neither professed to have any particular knowledge of standards applicable in Italy or whether they differed from the US or Britain.
Whilst the claim ultimately was dismissed on the basis that the Defendant/its suppliers had exercised reasonable care and skill pursuant to English standards in any event, the primary basis for dismissing the claim was that the Claimant had failed to adduce evidence of the local standard. The Court accepted the arguments of the Defendant that neither Morgan nor Evans v Kosmar Villa Holidays Ltd  1 WLR 297 (on which Marcus Smith J drew heavily in Morgan) allowed claimants to side-step the requirement of proving a breach of the local standard – even in a case such as this where there were clear international rules applicable to standards of ski instruction which had been adopted by the relevant national body.
The Court summarised the Defendant’s argument at Trial as follows:
[Counsel for the Defendant] further submitted that the case of Morgan did not permit local standards to be disregarded. He submitted that the contrary was actually true. Marcus Smith J had emphasised that local standards were “an important signpost” in determining the standard of care. A claim might succeed without establishing both the content of the applicable local standard and breach of the same where the local standard was “vague, nebulous or non-existent” or where the “standards prevailing in the place of performance… fall so far below either internationally accepted or English standards…. the organiser assumes an obligation to exercise reasonable skill and care that is informed not by the local standards but by other standards.” Counsel submitted that in both cases, the Claimant bore the burden of establishing the local standard (or the lack of one) and it was only when the local standard was vague, non-existent or plainly inadequate that resort should be made to English common law standards.
Counsel submitted that this was not a case where the local standard could not be established because it was vague or did not exist, nor was it a case where the local standard was demonstrably so low that the Defendant assumed an English common law duty. There had just been a failure to put forward any local standards evidence at all. Neither of the experts in the case were purporting to address anything other than the international standards set out in the FIS Handbook. They were not purporting to have expertise in Italian skiing standards. Whilst it was clear from the evidence that Italy had adopted the relevant FIS rules, there were undoubtedly some differences, not explicable by translation alone, because (from [the ski instructor’s] oral evidence when he was asked about it) rule 9 in the FIS rules was rule 11 in the Italian version. Similarly, Mr Exall’s evidence was that ski governance was quite localised in Italy and could vary between resorts (and thus, there were local standards but he could not say precisely what they were for Bormio)
The court concluded as follows:
Having considered the case law, I prefer Counsel for the Defendant’s submissions. I consider that there should be some evidence as to the appropriate local standards in order to properly determine whether there has been some lack of reasonable care and skill as set against those standards. If there are no standards, or they are too vague or too far below the relevant English standard, then it may be appropriate for the Court to consider English standards.
The decision suggests that the ‘escape clause’ provided by Marcus Smith J in Morgan will apply in only a narrow range of cases and that courts will be slow to overlook the requirement of proving local standards and resort instead to English common law principles of reasonableness. The importance of making early investigations with an appropriately qualified local expert cannot be overstated.
Tom Collins appeared for the successful tour operator, instructed by Michael Gwilliam of Plexus Legal LLP. A copy of the judgment can be provided on request.
About the Author
Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.