First Choice Holidays and Flights Ltd. v Holden

On 21st February 2005 at Southampton County Court Mr Recorder Gibbons QC held the appellant holiday company liable. He awarded Mrs Holden £5, 721. 01 damages plus no less than £13, 355. 63 costs. The Appellant submits he was wrong to do so.

It was agreed that the Appellant was liable to the Respondent for the proper performance of its obligations under the holiday contract by reason of Regulation 15 of The Package Travel, Package Holidays and Package Tours Regulations 1992. By that Regulation, in the context of a package holiday:

"The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services. "

It is unnecessary to read further from the Regulation given the issues in the present

In reflection of the Defendants' obligation the contract had a term to this effect:

"We accept responsibility for any death, bodily injury or illness or illness caused to you as a result of proven negligent acts and/or omissions of our employees, agents, suppliers and sub-contractors. We accept responsibility for any damage caused to you as a result of any failure to perform, or improper performance of the services we have agreed to provide you".

It was agreed too that to succeed in her action the Respondent had to prove on the balance of probabilities that the Appellant failed to carry out its obligations with reasonable skill and care; See Hone v Going Places Leisure Travel Ltd. [2001] EWCA Civ 947.

It was suggested in the skeleton argument submitted to the Recorder on behalf of the claimant that the doctrine of res ipsa loquitur applied. It plainly did not. It has not been suggested to me that it did.

The duty of care owed by the Respondent is that set out by Phillips J as he then was in Wilson and Best Travel [1993] 1AER, 353. The applicable position was summarized at page 358B in the following terms:

"What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics insofar as safety is concerned fail to satisfy the standards, which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply there are bound to be differences in the safety standards applied and in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to that local safety regulations are complied with. Provided they are I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which should be found in an English hotel, unless the absence of such a feature might lend a reasonable holidaymaker to decline to take a holiday at the hotel in question. "

Why Mrs Holden fell down the stairs.

It was agreed and plain from the photographs that the stairs were of a marble matt finish. There was a rail running down the side. The Recorder first had to decide why Mrs Holden fell down them. She alleged that she had slipped on a fluid left on the step as a result of someone having spilt some drink when going up or down the stairs. In her witness statement she spoke of children going up and down the stairs to a games room.

The Recorder put it in this way, in paragraphs 3 and 5 of his judgment:

"The first issue I have to decide is whether Mrs Holden simply missed her footing or whether she slipped on something. It seems to me, looking at the photographs in the bundle of documents, that the stairs are safe. They are of some sort of matt finish, either natural or applied, and it seems to me to be highly unlikely that she either tripped or missed her footing, so clearly there was a spillage of some colourless and odourless liquid".

In paragraph 5 he said this:

"The most probable sequence of events in my judgment is as follows, that someone went down the stairs into the restaurant carrying a drink in some sort of open container, spilt some of it and the individual was followed very shortly afterwards by the Claimant, husband and grandchild. "

In the skeleton argument submitted on behalf of the Appellant Miss Prager, who represented the Appellant before me today, submitted that the Recorder was not entitled so to find. In that skeleton argument it is submitted that Mrs Holden said that she did not know why she slipped and inferred it was the result of spillage. There was no reason to believe the liquid was colourless or odourless. It seems to me that the Recorder was entitled to make the finding he did on this topic for the broad reasons he expressed.

Was the appellant liable for the fall?

The Claimant next had to prove that the appellant was liable for the fall. The Recorder in paragraph 9 of his judgment said this:

"The second point is whether there was a tortious failure to clean. It is self-evident there was. In my judgment if there was not a system there should have been, if there was a system it should have included the person at the door of the restaurant having as part of their job description instructions to check the stairs periodically and if anybody arrived in the restaurant carrying a drink in an open container. "

If I follow his reasoning it was as follows.

He found the hotel was alert to the perils of people carrying drinks down the stairs. In paragraph 4 he said this:

"The hotel was clearly alert of the perils of people moving about the building carrying drinks. This is important when one considers the issue of local standards of safety dealt with later in this judgment. As one goes into the restaurant I was told there was somebody present just inside the door although no doubt to meet and greet the customers but also under instructions to discourage people from taking drinks out of the restaurant into other parts of the hotel, although safety does not seem to be the paramount consideration. There was a price differential meaning that drinks were more expensive in the restaurant than the other eight or nine bars in the hotel but this was clearly a safety issue as well".

In short, he appeared to find the fact that someone was present inside the restaurant door was some evidence of the hotel's knowledge of a safety issue of the danger; in other words of drinks being spilled. Miss Prager submits, it seems to me with justification, that that paragraph reflects some confusion. The evidence was that guests were permitted to carry drinks around. They were not permitted to take them into or from the restaurant. That had nothing to do with safety. It was because there was a price difference. The hotel was not by that policy recognising any peril to a guest from spilt drinks. Any system should not therefore have been assessed by reference to such a recognised peril in the terms referred to by the Recorder.

In his submissions Mr Collins on behalf of the Respondent submitted that when the Recorder used the word 'peril' he was doing no more than simply dealing with the issue of foreseeability; he was saying no more than that this was a foreseeable accident.

It seems to me the real issue is whether by permitting guests to carry drinks up or down these steps to the limited extent it did, the hotel was negligent having regard to any system it might have for dealing with possible spillage on the stairs.

The Recorder next found that there was no, or no adequate, system for dealing with possible spillage on the stairs. He said this in paragraph 6:

"Clearly the hotel, however well staffed it is or however many staff it has, cannot be expected to be monitoring the stairs the whole time. On the other hand the individual just inside the door to the restaurant ought in my judgment to have been under instruction that if anybody arrived in the dining room carrying a drink other than in a closed container they should do what would take only a moment or two, which is to check the stairway, which is only two flights, for any spillages, and that clearly was not done. "

In paragraph 9 he said this:

"In my judgment if there was not a system there should have been. If there was a system it should have included the person at the door of the restaurant having as part of their job description instructions to check the stairs periodically and if anybody arrived in the restaurant carrying a drink in an open container. "

What the Recorder appeared to be saying in those two paragraphs was this. The person at the bottom of the stairs cannot reasonably be expected to monitor them all the time. Periodic monitoring was all that was required. However he should check for possible spillage each time a customer came into the restaurant carrying a drink in an open container. I assume also he must have had in mind that that person should check each time a customer left the restaurant carrying such an open container.

In paragraph 10 the Recorder then said this:

"Faced with those findings it should be absolutely inevitable that if the Claimant can satisfy the legal requirements in this case that she must succeed. "

In paragraph 11 he said:

"This judgment should be considered incorporating Regulation 15 of The Package Travel, Package Holidays and Package Tours Regulations 1992... I have also been pointed to several cases on behalf of the Defendants. "

In Paragraph 12 he said:

"Because this hotel was abroad a number of assumptions which normally we would make in this sort of case cannot be made. The first is that the Occupier's Liability Act clearly does not run in Tunisia and secondly because of the broad spread of accommodation and methods of classification it is not for the defendant to prove compliance with local standards and, as the text book puts it, common sense is not enough. There is no substitute for evidence. "

What the Recorder in those paragraphs appears to be saying is this. A self-evidently tortious failure to clean is not enough. The fact the accident happened in Tunisia must be taken into account.

As to the self-evident tortious failure to clean, he is saying that had the accident happened in the United Kingdom there would have been negligence. There was no liability in such circumstances in Tunisia unless there was by local standards.

Miss Prager submits that even applying English standards the duty set by the Recorder was unrealistically high. She submits it is an absurdly high burden. It is too onerous to expect at meal times somebody to be employed to check each time a person comes down the stairs; with a drink (or for that matter goes up the stairs). At meal times many people must come down and up the stairs.

The Recorder then turned to whether the Claimant had proved there was a breach by the standards of Tunisia, as he was required to do. There had been no specific evidence adduced on behalf of the Claimant regarding that. There was no evidence of local custom or local regulations.

In paragraph 13 the Recorder said this:

"So a number of issues arise here. The first is that the Hotel El Ksar as opposed to [The] Soviva is a four star rather than a three star hotel. "

"The Defendants say that what the Complainant contracted for was the three star Soviva Hotel. In my view that will not do. The duty may have been to provide a three star standard, and if that meant moving the party to a four star hotel then the party are entitled to expect the hotel to meet four-star standards. Furthermore in the Defendants' standard terms and conditions as well the broad disclaimer about varying standards abroad they set out their star system ranged from two to five stars. "

It seems to me, and neither Mr Collins nor Miss Prager have substantially submitted to the contrary, that whether it was a three or four star hotel is unlikely to be material. It is likely, and I say this without the help of any evidence, that Tunisian standards of safety do not significantly vary between a three star and a four star hotel.

In paragraph 14 the Recorder said this:

"One must be careful of drawing on one's own experience, but in my view an oblique

or interesting glimpse of local standards is that the first thing that happened to the

glasses or whatever to check the stairs for not only liquid but broken glass or anything like that. That is the standard by which I will judge the hotel, the Defendants' own standards of a four star hotel when clearly all employees are under instructions to take a keen interest in safety. "

Miss Pager submits that it was not open to the Recorder to consider the degree of systems of safety so far as the Appellant was concerned in the way that he did. Mr Collins submits that his observations regarding Miss Walter and Miss Yarwood are evidence from which he was entitled to infer that the Tunisian standard of safety was such as referred to by them; in other words that they were there reflecting in the high care which they took, the Tunisian safety standards.

I am afraid I do not agree. It does not seem to me that one can infer a local standard from what may well be a higher standard in a particular hotel or by a particular company in particular circumstances. It is no substitute for evidence of what is local custom and what maybe the local regulations.

In paragraph 18 the Recorder said this:

"One other point. Where the change of hotels comes into play was the Claimant's evidence there were a lot of children in the hotel going up and down stairs with drinks, there was a games room on the lower ground floor and there was building work going on. The point was made by Miss Prager that maybe she - that is to say the Claimant - was confusing the two hotels. I think she probably was because it was pointed out this was not a child orientated hotel. It does not seem to me that it makes any difference to the fact that in order to keep their part of the bargain the Defendants put the party into a four star hotel for the second week of their holiday, and as I have already indicated they were keen on health and safety issues and in my view what happened to the unfortunate Claimant was eminently foreseeable in the absence of a system or at least a system that included periodic checking of the stairs".

In paragraph 19 he said this:

"So far as the case law is concerned, Mr Collins who represents Mrs Holden points out that all the decided cases that were cited by the Defendant are all dealing with what one might call equipment failures, that is lifts, emergency shoots, patio doors and so forth. This case is either about a system, a lack of it, or the failure to make sure that it operated properly. "

Finally, in paragraph 20, the Recorder said this:

"Interestingly enough the case ofCook deals with a hotel in Fuerteventura, the Claimant slipping on the dance floor and fracturing her wrist, and despite the Defendants' protestations that they did their best to inspect the dance floor, the disc jockeys gave warnings and so forth. In fact it was the judge's finding there was no system and no warning, whatever local standards prevail. The Claimant it is said by the Defendant failed to prove the prevailing local standards. So far as the judgment is concerned what in effect it said was that the Defendant completely failed to meet the standards which he pleaded he had maintained in its defence. This is exactly the same situation in this case. "

The Recorder did not in terms deal with some of the defence evidence. In her witness statement Lisa Walters, who was the representative of the Appellant company in the resort, said this in paragraph 13:

"In the event there was a spillage in the hotel it would be cleaned straight away. The hotel has a lot of cleaning staff cleaning and monitoring the public areas and they work well into the evening. There is always staff in the vicinity so if there was a spillage it would be reported and dealt with very quickly. The cleaning standards at the hotel are very good".

In her witness statement Claire Yarwood, the quality co-ordinator of the Appellant company, said this in paragraph 11:

"Drinks can be purchased in the restaurant but the hotel does not allow guests to take the drinks in or out of the restaurant as you are only allowed to purchase drinks in the restaurant. A member of staff stands at the entrance to the door to welcome the guest into the restaurant and they stop drinks being taken out. I understand that Mr Holden has alleged that guests were carrying drinks down stairs to the games room. This is incorrect. "

"The hotel has housekeeping staff available throughout the day cleaning the public areas and they work well into the evening".

And finally in paragraph 16 she said this:

stairs in the hotel. "

Mr Collins emphasises the limits of the evidence of those witnesses so far as the practise at the hotel was concerned. Neither was in the hotel on the day of the accident. Neither could say that she had seen the stairs cleaned on that day. Neither could therefore say, submits Mr Collins, that there was on the day in question an adequate system in operation.

He submitted (and accepted it was a point of pleading) that the Defendant had never raised in its defence that there was a safe system. In short he submitted that provided he succeeded on the complainant's behalf in proving that the accident had happened in the way she alleged then he was bound to succeed.

It seems to me that the issues in the case, however precisely pleaded, were absolutely clear to both the claimant and to the Recorder. The way the Recorder dealt with them was not in the limited manner relied on by Mr Collins. It is not the approach that I shall adopt.

In response to Miss Prager's submissions that an absurdly high standard was being set by the Recorder, Mr Collins submitted, first, that it was not, and, second, if it was, that it was unnecessary for him to go so far as setting such a standard. It was on the evidence clear, and he was entitled to find, that on the day in question there was no system and that therefore the Claimant should succeed.

The Recorder appears to have found that there was a falling below the standards of safety, first because in England a failure to have such a system would self-evidently amount to a breach of duty, and, second, it did so in Tunisia for the following reasons. This was a four star hotel. Medical care in Tunisia was to a high standard. The Defendant itself was keenly interested in matters of safety. It could therefore be inferred that safety standards in Tunisia were to a high standard. On the basis of the report of the decision inCook the Defendant had failed to prove that it had a reasonable system in operation.

It seems to me that there are problems in the Recorder's analysis. I agree with Miss Prager when she submits that the standard set by him was unrealistically high, even assuming the accident had happened in England. There is no dispute but that the steps were safe. They were non-slip. There was a handrail. There was, (although the Claimant said she was unaware of it) available a lift. Although on the evidence people might on occasion carry drinks up or down the steps, there was no proper basis to find that there was a recognised spilling hazard to the extent the Recorder found. There was no question, of children spilling drinks when going down to a games room as originally alleged. The only reason a person was at the bottom of the stairs was to stop people bringing drinks into the restaurant for reasons of profit and not safety. There was nothing to suggest that drink frequently was spilt. There had never on the evidence been an accident before. Although the witnesses could not speak as to the precise system that day the evidence was that the hotel was regularly cleaned. It seems to me that to require the person at the bottom of the stairs to check in the way the Recorder indicated was to set too high a standard.

Be that as it may, it is for the Claimant to prove that the Defendant fell short of the standards applicable in Tunisia. As I have said, no evidence in that regard was adduced by the Claimant. The matters relied upon by the Recorder to which I have just referred do not in my view substantively help in that regard.

In short it seems to me that this appeal should succeed.