“To many people holidays are not voyages of discovery, but a ritual of reassurance” (Phillip andrew)
So it was with the Russell family, who took their 4 year old daughter – the Claimant – on her (and the family’s) first ever holiday together to a Hotel in Spain. At the time that the Holiday was booked the Claimant’s parents made it clear that they were not seasoned travellers and specifically requested accommodation whcih was suitable for young children. They were duly reassured and, with their minds at ease, off they went.
The family were allocated to a room with a glass balcony door. Shortly after arrival, as her parents were unpacking, the claimant ran towards the door. She failed to realise that it was still shut and collided with it. The glass was only 5mm thin and was not reinforced with any kind of safety film or wiring. It shattered into large jagged pieces and caused serious injury.
The Claimant pursued a claim against her tour operator pursuant to the Package (Travel etc) Regulations 1992. There were two primary arguments. The first was that the thickness and nature of the glass did not comply withi applicable local safety regulations or standards in Spain. The second was that, irrespective of local safety standards, there had been a breach of what is commonly known as “the Second Limb of Wilson v Best Travel”.
The claim came before the Birmingham County Court in Russell v Thomas Cook Tour Operations (2012). The claimant was successful in establishing liability under both heads of her argumenrt. The first issue involved the resolution of competing expert architectural/engineering evidence and is of limited application beyond the specific facts of the case. The second issue is worthy of further consideration, however.
The second limb of Wilson v Best Travel (1993) 1 ALL ER 353 is encapsulated in the following passage from Phillip J’s (as he then was) judgment: “The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided that 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 would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question”
There have been very few, if any, reported cases in which the Courts have applied this part of the judgment in Wilson, perhaps because it is not easy to envisage a situation where the relevant feature of the foreign hotel is so dangerous or worrisome that a holidaymaker would choose not to go there at all. In Wilson itself, the adult claimant also collided with a glass door which did not have any safety features, but the judge was not persuaded that this would have dissuaded him from travelling to Greece.
In Russell the key difference was the claimant’s very young age and the particular circumstances of the family. The Court found that a reasonable holidaymaker in their position, having been specifically reassured that the room was suitable for a young family, should have been told that the glass was not safety glass and was very thin. It was foreseeable that young children would run around and bump into objects and it was not surprising that the family had sought reassurance in what was there first trip abroad. The judge accepted that had they been given an appropriate warning, they would not have chosen to stay in this particular hotel at all.
The decision is a salutary one for both Claimants and Defendants. It serves as a reminder that, whilst compliance or non-compliance with local safety standards often provides the touchstone of liability, there remain a small number of cases which may nonetheless be decided by reference to broader considerations of universal or irreducible safety standards in the specific factual circumstances.