LOCAL STANDARDS – In It For The Long Fall

In this article, Nick Parkinson, discusses a ‘recent’ County Court decision involving Local Standards Susan Auckland -v- Expedia (unreported, DJ Batchelor, Sheffield County Court 11/08/23).

Previously on “Local Standards”

You may remember me from such articles as ‘When Breaching Local Standards Is Not Enough To Win Your Case’ and ‘Local Standards – Stepping In To The Dark’. In both cases, injury claims were dismissed because there was no evidence that the accident was caused by a breach of local standards. These were difficult cases where the package organisers stumbled over the finish line and, here, Expedia were up against similar challenges in the case of Auckland.

DISCLAIMER: Yes, I know I should have reported this case a long time ago. Better late than never!

Background

Ms Auckland slipped in the changing rooms of the spa at the Crowne Plaza Vilamoura hotel in the Algarve, Portugal. Ms Auckland suffered a fractured hip and brought a claim for personal injury. To succeed, the Claimant was required to prove:

The local standards
That the hotel breached those standards; and
Such breach caused the accident

It was alleged that the hotel had breached the local standards by either:

Allowing the floor to become wet,
Failing to install suitable flooring in a ‘wet area’, or
Failing to put up warning signs or install slip mats by the shower cubicles.

Ms Auckland and her husband alleged that the floor was made of marble (or another shiny, polished and slippery material). She relied on the expert evidence of a Portuguese lawyer, Cristina Dein, who gave evidence that:

The floor surface required ‘good adhesion’, and
There was a need for ‘the hotel to maintain its floors dry’ or ‘duly signed when slippery’

Having a marble floor in the changing room for a Spa sounds like a recipe for disaster right? How could we possibly defend such a claim?

The Defence

Expedia did not obtain expert evidence, nor did they put P35 Questions to the Claimant’s expert. However, they did have evidence from Head of Engineering for the hotel group to say that:

The floor was actually made of a material called ‘travertine’
Travertine is suitable for wet areas
A non-slip coating was applied to the floor every year
A friction test had been carried out on the floor which showed it was above what he believed to be the UK standard

In addition, the hotel Spa manager gave documents to show that:

The Spa had a protocol to inspect and clean the floor every hour
Housekeeping had actually followed that protocol on the day of the accident

Armed with the above, we went into this trial quietly confident of getting the claim dismissed…

A Bumpy Start

It is fair to say we received an early curveball when the Judge immediately explained that she was ‘amazed’ that the claim was being defended. The Judge felt it was obvious that the floor was unsuitable for a Spa changing room and that ‘local standards’ should not prevail over ‘common sense’. Meanwhile, counsel for the Claimant launched a flurry of preliminary arguments!

First, that the hotel’s witnesses should not be able to give evidence because their statements were not ‘in their own language’. The Judge gave this short shrift on the basis that the witnesses were fluent in English (as well as Portuguese) and their statements had been taken without an interpreter.

Second, that the statement from the hotel’s engineer should be dismissed because it was ‘expert evidence’ disguised as a witness statement. The Judge agreed that two paragraphs in the statement were straying into ‘expert evidence’ – i.e. where the engineer talked about the ‘friction test’ complying with UK standards in his statement. However, she decided to consider this later and ‘probably’ ignore those paragraphs.

Phew, having survived the first two ‘sniper shots’ from the Claimant, it was time for a counter attack…

Sloppy Expert Evidence

The Claimant’s case relied heavily on an expert report on local standards from a (Portuguese) lawyer. However, the report did not come with a ‘statement of truth’. It did not, therefore, comply with the court rules (CPR 35). The Defendant therefore invited the Judge to dismiss the report entirely. A technical point, but one that would have been fatal to the Claimant’s case.

The Judge was not impressed. The point had not been raised previously and there was no reason to doubt the honesty of the expert. Finally, it was time to start hearing evidence from the witnesses. Or was it…

A Judge Perplexed

The concept of ‘local standards’ can be a novel experience to Judges and lawyers handling a claim under the Package Travel Regulations for the first time. The Judge, so convinced that the claim was undefendable, had the Defendant take the Judge through the relevant case law (Lougheed –v- On The Beach). Still not convinced, but not seeing a white flag from the Defendant’s camp, the Judge eventually waved ‘play on’.

The Trial

Eventually, the witnesses gave evidence. The Claimant’s evidence was largely expected. She left the shower in the Spa area. She slipped. The floor must have been wet. The floor felt like marble and ‘looked shiny’ so it cannot have been ‘non-slip’.

The hotel staff stood firm. The Spa manager maintained that the area was regularly inspected and cleaned. She also dismissed the need ‘to have floor mats’ near shower areas, being unhygienic and problematic for cleaning. The head of engineering, meanwhile, maintained that the floor was made of a non-slip material (travertine) and routinely treated with a non-slip coating.

It had been a long day by this point but, finally, it was time for the submissions…

Defendant’s Submissions

It was now the Defendant’s opportunity to explain the relevant case law (Lougheed etc) to the Judge in the context of the evidence that had been presented. Unfortunately, the Judge was far from convinced that the claim was defendable, interrupting counsel for the Defendant on several occasions. Finally, however, the Judge appeared to have a ‘light bulb’ moment. The penny had dropped. The Judge promised to stop interrupting!

Given the kerfuffle that had ensued throughout the day, however, time had run out. The Judge did not fancy playing overtime and ordered a second leg. The parties would have to come back in 7 months.

Judgment Day

And now the moment you have all been waiting for. Judgment was delivered. Key parts being:

I cannot be sure there was a breach of any local standards for the cause
There was a proper system of maintenance in the spa area in place, and there is evidence it was being adhered to
I find Mr Da Silva’s evidence (the Head of Engineering at the hotel) helpful. He cannot give expert evidence, but he can assist the court with materials in use at this hotel from an informed perspective.
The friction test is, however, discounted as expert evidence and I make no further reference to it
I do not think the absence of a (warning) sign is causative. The C knew that she would step out and be wet. This is not a Wilson case where it was so dangerous and there is no evidence of previous slips in this hotels
It is a most unfortunate accident but one that occurred without the intervention of negligence. I find no negligence on the part of the Defendant, or a breach, as to give rise to liability.

Victory! And it is fair to say one that was ‘snatched from the jaws of defeat’ given the resistance presented by the Claimant’s barrister, and the Judge, throughout the trial.

Key Takeaways

Key Takeaways

There are a number of key takeaways for the travel industry here. All of which are ‘recurring themes’ in these type of cases:

Judges are often not familiar with the relevant case law on ‘local standards’. Instructing experienced counsel is, therefore, critical.
Expert evidence from a lawyer can be limited in how far it can demonstrate the ‘local standards’. A more ‘practical’ expert, such as an engineer or architect, is usually superior.
In fact, claims can be defended without expert evidence. The Claimant has the legal burden of proof and it is often difficult to prove that an accident was caused due to a breach of local standards.
Hotel employees can be just as important as ‘experts’ – they have technical knowledge about the hotel’s procedures, maintenance and construction that can assist the court. However, caution is needed when they ‘stray into expert territory’.
The co-operation of the hotel to provide documents, and employees to give evidence, will considerably improve the prospects of defending the claim

The Auckland case concludes our trilogy box set on Local Standards for now. But, don’t worry, we have just sold the franchise to Disney so there will be more prequels and spin-offs to follow over the next few months!