Local knowledge

The travel industry has responded to the Court of Appeal ruling in Japp v Virgin Holidays Ltd (2013) EWCA Civ 1371 with warning against the dangers of "exporting English standards" across the globe and '¨"great difficulties for the English tourist '¨industry in general".

But a close examination of the case demonstrates that little has actually changed since the issue of whether British health and safety standards should apply to foreign package holiday claims was first truly raised twenty years ago.

Moira Japp suffered a nasty scarring accident when on a Virgin holiday at the Crystal Cove hotel Barbados in September 2008. She had gone onto the balcony of her hotel room, closing behind her the sliding glass doors to the balcony. When the telephone in her room rang a short time later she got up from a chair to make her way back to the room but she walked into the closed doors. The glass shattered causing lacerations to her body. She was successful at first instance in the Brighton County Court subject to a 20 per cent deduction for contributory negligence and was awarded damages of £19,200. Virgin appealed the finding of liability.

LOCAL STANDARDS

The focus of the case was on whether the glass '¨in the balcony doors complied with local safety standards.

The glass used was ¼ inch annealed float glass. The claimant's case was that safety glass should have been used. The critical legal issue in such cases is whether British standards should apply to a British tourist injured on a British package holiday, albeit one abroad, or should the local standards in the country where the accident occurred apply? The relevant line of judicial reasoning stems from the case of Wilson v Best Travel Ltd (1993) 1 ALL ER 353. This was also a case involving glass patio doors in a hotel. Phillips J held that the duty of care owed by a tour operator had to be judged by the relevant local standards. The duty of the tour operator was discharged if they had checked that the local safety regulations were complied with, unless the absence of a particular safety feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question. Most of the ordinary imperfections that give rise to a claim (eg a defective floor tile causing a trip) would not be deemed sufficient to cause the reasonable holiday maker to decline the holiday.

Subsequently the courts been consistent in following the approach in Wilson v Best Travel Ltd.

In Codd v Thompson Tour Operations Ltd (2000) CA B2/1999/1321, the child claimant injured his hand on the lift door in a Spanish hotel, which had stuck, then shut suddenly. The lift would not have complied with British standards but had been designed and maintained in accordance with those in Spain. It was argued by the claimant that British standards should be applied but Swinton Thomas LJ emphasized that, "(t)hat is not the correct approach '¦
The law of this country (the UK) is applied to '¨the case as to the establishing of negligence, '¨but there is no requirement that a hotel, for example, In Majorca is obliged to comply with British safety standards."

An important attempt to develop the concept was Evans v Kosmar Holidays plc [2007] EWCA Civ 1003. Towards the end of his holiday, in the early hours of the morning, the claimant dived into the shallow end of an apartment complex pool sustaining serious injuries which resulted in incomplete tetraplegia.

The pool signage failed to comply with the guidance of the Federation of Tour Operators (FTO). The claimant succeeded at first instance (albeit with a 50 per cent finding of contributory negligence). However, the Court of Appeal considered that the guidance was merely advisory in character and had no legal force. Richards LJ, giving the judgment of the court said that the FTO guidance "does not lay down standards with which (the defendant) is required to comply."

GUIDANCE ONLY

This was illustrated a few years later in Gouldbourn v Balkan Holidays Ltd (2010) EWCA Civ 372. The claimant's ski classes for beginners were part of her Bulgarian holiday package. Halfway through the holiday she fell and injured her knee. She blamed the ski instructor for taking her to a slope that was unsuitable for novices. She contended that guidelines from the International Ski Federation (FIS) emphasized the need to avoid pupils taking risks beyond their competence.

The Court of Appeal found against Mrs Gouldbourn. The FIS guidelines did not have the force of law. As Leveson J stated that "The FIS rules are general principles '¦ they establish the general duty of care, that is to say in this case the duty never to allow a pupil to take risks beyond their capabilities, but the implementation of the '¨duty, namely how a particular country goes '¨about ensuring it, is a question of local '¨standards and arrangement's and, given the absence of any evidence on this topic '¦ the claim is rightly dismissed".

What is the nature of 'local standards'? It is generally accepted that local standards can be set not just by binding regulations and also by a voluntary code. In Ward v the Ritz Hotel (London) Ltd (1992) PIQR 315, British standards were held to set the relevant standards in the United Kingdom because, although non-binding, they represent the consensus of professional opinion and practical experience as to sensible safety precautions.

APPLICABLE AT THE TIME

In Japp the court considered the Barbados national building code of 1993. The code suggested that safety glass should be installed. Clearly the doors of the hotel did not comply with the code but did the code indeed represent local standards? The parties produced respective expert comment on this. The claimant relied on a chartered builder/surveyor based in Barbados. It was his evidence that it was custom and practice for professionals in the building industry in Barbados to follow the code. The defendants relied on a Barbados-based lawyer who specialised in expert reports on local standards in the hotel industry throughout the Caribbean arising out of personal injuries. It was her view that the code was a voluntary document and was not legally binding.

The other issue was, if a code does apply, when does it apply? The hotel where the accident occurred was built in 1994. The Barbados '¨national building code predated it. The judge at first instance, finding for the claimant, considered that the hotel should have known of the code at the time of construction but that in any event '¨they should have been updating the hotel to comply with it.

In the Court of Appeal the defendants '¨succeeded in arguing that the hotel did not owe a continuing duty to update its fabric as custom '¨and practice developed. The starting point must be the standards applicable at the date of design '¨and construction. There is no duty to engage in a constant process of updating of existing '¨buildings by rebuilding or refurbishment. However, the Barbados code applied at the time the hotel was constructed. The court at first instance preferred by some distance the evidence of the claimant's expert who was found to be 'highly experienced'. In contrast, the defendant's expert's evidence was described as not being particularly helpful. She had "no real experience of the building industry, she made very limited enquiries of those who were involved and such enquiries really only revealed what we already know, namely the code is not mandatory."

BUILDING EXPERTS

Therefore, the ruling in Japp legally changes nothing. It simply followed the Wilson v Best Travel line of legal reasoning. It is the local standards not British standards that apply to a package tour claim for injury abroad.

However, what we do learn from this case is that: if there is a local code of practice or guidance in place in the country where the accident occurred, the court will be minded to infer that it should be followed. Both Evans and Gouldbourn illustrate that it is dangerous for the claimant to rely on international guidance only. One must look at the local code or standards at the time the hotel in question was built.

Finally, the choice of experts can be crucial. Probably the safest course of action would be to have both a local building expert and a local legal expert. The former can comment authoritatively on any local building codes and regulations. The latter may be able to assist as to their applicability. It can be helpful to have a legal expert provide illustrative caselaw as to how the duty and standard of care may work in practice in the country where the accident happened. To have only a legal expert clearly counted against the defendants in Japp.

This of course raises a practical issue for solicitors: are the substantial costs of instructing such experts likely to be recoverable in what can be a hard fought but modest value personal injury claims? In the post-Jackson world proportionality is a real issue for the courts. Quite clearly without such evidence the claimant who meets a local standards defence will struggle to succeed, but will the courts readily allow the claimant the costs of assembling the key expert evidence?

It might be argued that tour operators should insist on high safety standard being applied, even if beyond local custom and practice. Surely British holiday makers, on holiday abroad with a British package tour company, surrounded by other British tourists, possibly drinking British beer and eating British food, would expect British standards to apply?

But therein lies a tension in the tour operator ensuring holiday prices are low enough for the tourist to be there in the first place. While a degree of cooperation from local service providers can be expected, such is the competitive nature of the holiday industry that hotels may seek to find less demanding suppliers. In any event, many Britons create their own 'do it yourself' holidays, dealing direct with foreign hotels. The local standards concept appears here to stay. SJ