Ever since the case of Wilson v Best Travel 1993, came to a conclusion, Claimant solicitors have been lobbying to erode the decision, which was that the requirement for evidence of a breach of local standards is absolute and that a Claimant who does not obtain such evidence is taking a serious risk.
At first instance the case of Lougheed v On The Beach Ltd [2014] EWCA Civ 1538 looked to be striking a blow again the travel industry.
To recap the circumstances in Lougheed, the Claimant sustained a fractured ankle and shoulder when she slipped on a patch of water on polished granite stairs. She subsequently brought proceedings against the Defendant travel company. The Trial Judge found that water got on to the steps from a previous customer walking down them after using the swimming pool. The Trial Judge accepted the evidence of the Spanish hotelier, that no accident of this nature had previously occurred. However, the Claimant successfully argued that there was liability under the Package Travel Regulations 1992 specifically Regulation 15(1). This decision was made by the Judge despite the Claiming failing to adduce expert evidence about local standards for cleaning and monitoring spillages. The Claimant had had opportunities to present such evidence throughout the proceedings, but did not.
How did the Trial Judge in the County Court feel able to reach this conclusion? He decided to lean upon the old case of Ward v Tesco Stores (1976). This case, which has long been a thorn in the side of Defendants, is the exception to the rule that the Claimant has to prove their case. In this instance a Tesco customer slipped on yogurt on the floor of the Tesco store and sustained personal injury as a result. The Court of Appeal (by a 2 to 1 majority) found that where an accident occurs in a location under the control of the Defendant, and circumstances are suggestive of possible negligence, the burden is reversed and it is for the Defendant to provide evidence that they were not negligent. The Trial Judge in Lougheed decided to apply such an approach to the case in question stating, “In my judgment the Tesco principle would be engaged were this a hotel in England. The staircase was under the control of the hotel or its servants and the accident is such as in the ordinary course of things does not happen if those who have the management of the hotel use proper care….”
Travlaw Solicitors, acting on behalf of On The Beach Limited, appealed the decision on the basis that the Trial Judge was wrong as a matter of law to find that the hotel was in breach of local standards.
The Judgment in the Court of Appeal confirmed the position that the key evidence in such cases remained that of showing that there had been a breach of local standards. The test remains undiluted and the requirement for evidencing such a breach is absolute. It does not always have to be expert evidence, but it was confirmed that a Claimant who does not obtain such evidence does so ‘at his peril’.
One major loophole was also addressed in the Judgment and has also been slammed shut. In Evans v Kosmar Holidays (2008), an obiter comment by Richards LJ in the Court of Appeal gave Claimants the chance to argue that perhaps compliance with local standards was not enough. This comment has been routinely used by Claimant solicitors in order to argue that their case is the exception to the rule. The Judgment in Lougheed gave clarification that the exception only applies in very limited cases, where it is universally agreed that the local standard is inadequate. This approach is documented by Tomlinson LJ, giving the Court’s judgment, “ the standards by which the hotel is judged in its performance of such tasks (cleaning/inspection) as are regulated, or where regulations are supplemented by local practice or are recognised to be inadequate must necessarily, and on authority, be informed by local standards of care as applied by establishments of similar size and type”.
The Court of Appeal distanced itself from Ward v Tesco in this way; it will only apply if there is a dangerous situation which makes an accident likely; this is a lot stronger test than mere forseeability of an accident. This staircase, with its accident-free history, was far short of the new criteria.
In conclusion, whilst the Court of Appeal took the opportunity to combat many areas of case law ambiguity in the case of Lougheed. The main take away is that a breach of local standards remains the key test for liability.
Tomlinson LJ left little to chance when delivering the Judgment and sums up the mood beautifully when giving one very quotable sound bite:
“An Englishman does not travel abroad in a cocoon”.
As if that wasn’t enough, he concluded that it should be for consumers to arrange insurance for themselves for accidents, rather than push the cost on to the travel organisers, which can only increase the cost of holidays. Whilst the practical effect of these comments is uncertain, it definitely changes the mood music for cases coming through the County Courts in the future.
This article was originally published on: 12 January 2015
