In this article, Nick Parkinson, Associate at Travlaw, discusses a recent County Court decision in Andrew Coates -v- Red Sea Holidays UK Ltd (unreported, HHJ Gregory, Nuneaton County Court 02/03/20).
This case involved a slipping accident in Egypt. Claims against tour operators in relation to accidents abroad often involve complex issues of law and evidence as to the local standards at the holiday destination. That complexity exposes tour operators to significant legal costs if they fail to defend the claim. On this occasion, however, with the help of Travlaw , the tour operator successfully defended the claim. But how?
The Claimant, Mr. Coates, slipped and fell on a ramp in the grounds of his hotel in Egypt. Mr Coates was exploring the grounds of the hotel on arrival. He proceeded through a corridor in what he described as ‘pitch black’ conditions, at the end of which there was an archway, followed by a short set of four steps leading down to a court yard below. In the centre of those steps was a ramp. Mr Coates stepped out of the archway, on to the ramp, slipped and was injured.
As a result of the accident, Mr. Coates fractured his right wrist and consequently brought a claim for personal injury against the tour operator, Red Sea Holidays.
Local Standards Evidence
The Claimant’s lawyers inevitably obtained expert evidence to consider whether there had been a breach of local standards. Their choice of expert was an Egyptian lawyer who gave evidence that the hotel was or may have been in breach of local standards because:
- Design. The ramp should have been at the side of the steps rather than in the middle
- Surface. The surface of the ramp should not have been slippery
- Handrails. The steps ought to have had handrails
- Warning signs. Any hazards ought to have been flagged up with warning signs
- Lighting. There ought to have been sufficient lighting in the area concerned
This posed the Defendant a difficult question as to if or how the claim could be defended.
Should Tour Operators get their own expert evidence?
In these scenarios the tour operator typically has to consider either:
- Getting their own expert evidence, or
- Putting the Claimant to proof
Obtaining your own expert evidence is not straight forward, and can be expensive. For example, should a report be obtained from a structural engineer? Another Egyptian lawyer? A lighting expert? All three?
Putting the Claimant to proof instead, i.e. without obtaining your own expert evidence, is a viable option. This is especially so due to the tendency of Claimants to obtain expert reports from lawyers. The key to this approach is that:
- The Claimant has the burden of proof to demonstrate that the local standards have been breached by the hotel
- Egyptian law can only go so far to assist the court as to the ‘standards’ expected of a hotel in Egypt. For example, could the average English lawyer competently provide an Egyptian court as to the local standards expected of steps in hotels in England?
On this occasion the tour operator did not obtain their own expert evidence, and put the Claimant to proof. But why?
How The War Was Won – Causation!
Anyone who has read my previous blog here in relation to another local standards dispute in Morris v Tui will realise that this is now the second opportunity I have seized to quote Steven Patrick Morrissey by saying, “What Difference Does It Make?”
Claimants must do more than prove that the local standards in Egypt have been breached. The Claimant also has to show that any breach actually caused the accident.
So what difference would it have made if:
- the ramp was at the side?
- the ramp was made from the world’s finest non-slip material?
- the steps had handrails?
- there were warning signs?
The answer? None, because on the Claimant’s own evidence it was ‘pitch black’. The above factors did not therefore make a material contribution to the cause of the accident. The claim was therefore destined to ‘live or die’ on the facts relating to the lighting conditions.
The Facts Determined At Trial
The Claimant alleged that the area was ‘pitch black’, rather than ‘dimly lit’. Had the court accepted that as fact, HHJ Gregory may well have found a way to find for the Claimant on the basis that evidence of local standards is not necessary when fault is so obvious (e.g. if the hotel staff had forgotten to turn on the lights, or failed to react promptly to a technical failure).
On cross-examination, however, HHJ Gregory did not accept that the area was ‘pitch black’ as alleged. Furthermore, a finding that the area was merely ‘poorly lit’ would not be sufficient for the Claimant to succeed because:
- there was no evidence from a lighting expert to say whether the level of lighting in place was sufficient in accordance with the local standards
- the evidence of an Egyptian lawyer was unable to assist on such technical issues
The Claimant was unable to show that any local standards had been breached that actually caused the accident. Even if the court were to accept that there had been breaches of local standards (e.g. absence of handrails), these issues did not actually cause the accident.
It is easy for practitioners to fall in to 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 ?
If you are interested to know more about the recent decision in Coates, or if you are a travel company looking to defend claims under the Package Travel Regulations, feel free to contact firstname.lastname@example.org or any other member of our specialist litigation department by calling 0113 258 0033.
Nick Parkinson, Associate, Travlaw
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