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When in Rome

When in Rome

Thumbs up for injuries jurisdiction decision



In Kellett v RCL Cruises, the Court of Appeal considered the standard of care to be applied in personal injuries proceedings taken under the Package Holidays and Travel Trade Act 1995.

The Package Holidays and Travel Trade Act 1995, as amended, provides that a plaintiff who is injured while on holiday abroad has:

  • The right to bring proceedings directly against the travel agent, rather than against the foreign service provider, and
  • The right to take proceedings in the member state where the travel agent/organiser is established or where the plaintiff is resident.
When in Rome

When in Rome

A question that frequently arises in such cases is the standard of care to be applied. Is it the standard of care that applies in the holiday location or the standard that applies in Ireland? Kellett v RCL Cruises Ltd and Others answers this question.

Summertime blues

The plaintiff was on a cruise holiday and injured her arm while participating in a speedboat excursion – the ‘White Knuckle Jet Boat Thrill Ride’ – while the cruise ship was docked at St Maarten in the Caribbean.

The plaintiff contended that the speedboat was unsafe and dangerous, and issued proceedings in Ireland pursuant to section 20 of the 1995 act.

This states: “The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services, but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.”

In the High Court, her engineer testified that the obligation rested on the excursion operator to ensure that the boat was safe for the vigorous manoeuvres that had led to the injury. He also gave evidence in relation to the lack of safety measures.

Rock the boat

In particular, he was critical of the actions of the skipper in moving the plaintiff after she had been thrown from her seat during the first manoeuvre, which had not caused the injuries.

However, under cross-examination, he stated that he was unaware of the Irish regulations, or the local regulation or standards applicable in St Maarten for such boat trips.

He also stated that he was unable to offer any evidence of the safety measures that should have been in place on any similar boat anywhere in the world, with the exception that he had once been on a boat on the Thames that had a side rail.

The defendants did not provide any evidence in relation to liability, and relied upon the failure of the plaintiff to adduce evidence in relation to local regulations or standards in St Maarten.

In the High Court, Barr J stated that the leading case was the decision of the Supreme Court in Scaife v Falcon Leisure Group (2007).

In Scaife, the plaintiff slipped and fell in a Spanish hotel restaurant while on holiday. The key issue was whether negligence had to be determined by reference to local standards or Irish standards.

Macken J had reviewed the relevant case law and stated: “The conclusions to be drawn from all of the above cited cases are that, both before and after the coming info force of the directive and its transposition in national law, the established principle is that the organiser is not an insurer to the customer.

“The learned High Court judge correctly found that the hotel proprietor was not such an insurer under the legislation. The above cases also establish the principle that the test is not one of strict liability and, in that regard, I am satisfied that the High Court’s finding, when correctly read, was not that strict liability applied.

“The final principle clearly established by those cases is that the standard by which the acts in question are to be judged is that of reasonable skill and care, which standard, if not expressed in a contract, will be readily implied into it.”

Holidays in the sun

Barr J then reviewed a number of British and Northern Irish cases, namely Wilson v Best Travel Limited (1993), Gouldbourn v Balkan Holidays Limited (2010), and Kerr v Thomas Cook Tour Operations (2015).

He stated: “If it is established that the service provider complied with all relevant local regulations and standards, they and the organiser will not be liable in negligence or breach of contract to the consumer, unless it can be shown that such local standards were patently deficient, or were not in conformity with uniformly applicable regulation.”

Barr J criticised the failure of the plaintiff’s engineer to point to any standards or regulations in St Maarten or Ireland, or indeed elsewhere, that would have mandated the use of the safety features he proposed.

He held that the onus of proof rested on the plaintiff to establish that the service provider did not provide the service in accordance with local regulations or standards, or in accordance with internationally recognised standards.

Thriller

He held that the plaintiff had not established what the local standards were, and whether there was a failure to comply with such standards.

Having identified this evidential deficit, Barr J proceeded to consider the case as if Irish standards applied: “In the circumstances, it is not necessary for me to determine whether the plaintiff could establish liability in the absence of any evidence as to the applicable standards in St Maarten.

“I am satisfied that, even if one were to apply standards which may be thought applicable in this jurisdiction, one could still not find that the White Knuckle Jet Boat Thrill Ride was provided without reasonable skill and care as required by the Scaife judgment.”

Barr J concluded that the plaintiff had not established any negligence on the part of the defendants, or any liability under the 1995 act, and thereby dismissed the claim.

The passenger

The plaintiff appealed the decision. The Court of Appeal (Noonan, Haughton, and Collins JJ) dismissed the appeal. The leading judgment was delivered by Noonan J.

Noonan J held that Barr J had applied the correct test and set out a number of principles that – given their significance for future cases – are worth setting out in full:

a)  In claims pursuant to section 20 of the 1995 act, the appropriate test is whether reasonable skill and care have been employed in the provision of the service complained of.
b)  The standard by which the test of reasonable skill and care is to be judged is the standard, as distinct from the law, applying in the place where the event complained of occurs. The issue of liability is to be determined by reference to Irish law.
c)  If there are internationally recognised norms applicable to the facts of the case, the court is entitled to have regard to these in its assessment of whether reasonable skill and care have been used.
d)  Per Scaife, there may be cases where the court can have regard to the standards prescribed in Irish legislation, such as the Hotel Proprietors Act 1963 and the Occupiers Liability Act 1995, in determining whether there has been compliance with the directive and the 1995 act.
e)  It will not necessarily be a defence to a claim to show that local regulations were complied with, if such are recognised locally as inadequate, or are so patently deficient that any reasonable person would view them as obviously inadequate; conversely, there may be a requirement to comply with local standards that are higher than those obtaining in this jurisdiction.
f)  The tour operator is not to be regarded as an insurer.
g)  The onus of proving that the relevant service has been provided without reasonable skill and care rests upon the plaintiff and, accordingly, it is for the plaintiff to establish that any relevant standard has not been complied with.
h)  It will normally be difficult for the court to make an assessment of whether reasonable skill and care has been used in the provision of the service, absent evidence of relevant local standards, as distinct from Irish standards, subject to (d) above.
i)  The court should not be overly prescriptive as to how compliance with local standards is to be proved. It is not necessarily the case that such proof can only be provided by a locally qualified expert, subject always to the rules of evidence and the relative weight to be attached to non-expert evidence, and
j)  The parties may, of course, expressly contract for the provision of a service to a particular standard, as the trial judge pointed out.”

Collins and Haughton JJ expressed some hesitancy in respect of Noonan J’s principle (b). In separate judgments, they stated that, in other factual circumstances, they would have sought a preliminary ruling from the CJEU on whether, to the extent that local regulations/standards are relevant, the onus of proving such regulations/standards should fall on the holidaymaker or on the organiser/retailer.

On the road again

Given the enormous number of Irish holidaymakers who travel abroad each year, this case is hugely significant.

The decision makes clear that a practitioner should be very slow to bring proceedings under the 1995 act without enquiring into or researching the standards or regulations that apply in the place where the accident occurred.

At the conclusion of his judgment, Haughton J provides useful advice on the best approach that should be adopted by a prospective plaintiff’s legal team: “As matters stand, before pursuing a claim, plaintiffs and their lawyers and experts would be well advised to research holiday destination standards/regulations, in order to be prepared to establish breach of such local standards, or at least to contest compliance with local standards asserted by a tour organiser as a defence, or alternatively, in order to criticise such standards or the manner in which they are applied or policed locally as being inadequate: they would, as has been observed, fail to do so at their peril.”