11
Oct
21
Articles, Travel & Cross Border Claims
The Weekly Roundup: the Smugger Edition

Last week we brought you news of our triumphant rankings in the latest edition of the Legal 500; this week we were told that chambers has been shortlisted for Barristers’ Chambers of the Year in the Personal Injury Awards 2021. As you know, we’re the current holders of the trophy, thanks to you, our loyal readers. In other news, the Court of Appeal handed down its judgment in Griffiths v TUI [2021] 10 WLUK 64, and it’s not good news for Claimants. However, notwithstanding that the Court refused permission to appeal, there’s as strong a dissenting opinion from Bean LJ as the team can remember seeing (‘Mr Griffiths did not have a fair trial of his claim’), and it may be that permission will be granted by the Supreme Court: something tells us this saga isn’t over yet. Dominique Smith discusses the case here. In other bad news for consumers the Competition and Markets Authority has closed its investigation into British Airways and Ryanair over their failure to offer refunds for flights customers could not legally take during periods of lockdown, citing ‘a lack of clarity in the law’ making it ‘insufficiently certain that it would be able to secure refunds for customers’. If the CMA won’t take steps to clarify the law, then who will, you may be asking. To which we reply: watch this space.

 

Beware of Ski Binding (Authorities): Local Standards in Skiing Claims

Doyle v Rayburn Tours Limited (Birmingham County Court, 5th October 2021)

A teacher who suffered a serious knee injury during a school ski trip to Italy has lost her claim against the tour operator after failing to adduce evidence of the applicable local standard.

In what may represent a shifting tide against the more permissive approach seen in the decision of Marcus Smith J in Morgan v TUI UK Ltd [2020] EWHC 2944 (Ch) (for which see Dominique Smith’s article here), this recent decision by Her Honour Judge Truman, following a three-day trial, underlines the perils of failing to identify the local standard.

Factual background

Shona Doyle was on the final day of the trip and was descending a ‘blue run’ when a pupil of the school, whom she described as a ‘novice skier’, fell and landed on her left leg, causing it to twist and rupturing her ACL.

The trip had been organised by Rayburn Tours Limited, a tour operator specialising in overseas educational and school trips, and was a package within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“PTR”). The package consisted of transport and accommodation together with ski equipment hire and provision of skiing lessons by a local ski school, Gallo Cedrone.

The factual evidence concerning the events leading up to the accident and the accident itself were of some complexity, but in essence, the Claimant alleged that the accident was caused by the failures of the ski instructor assigned to her class, for whom the tour operator was liable pursuant to Regulation 15 PTR. She alleged that the pupil who fell on her was appreciably weaker than the rest of the class and should have been assigned to a ‘beginner’ class; or alternatively that she should not have been taken on such a challenging run and that she should have been more closely supervised. She alleged that had such steps been taken, the accident would not have occurred.

Issues at Trial

The Claimant alleged that the above failures constituted improper performance of the holiday contract. The Claimant further alleged breach of:

(i) the implied term, pursuant to section 13 of the Supply of Goods and Services Act 1982, that all services provided under the contract would be carried out with reasonable skill and care; and,

(ii) a common law duty of care in negligence.

Finally, the Claimant alleged breaches of the duties imposed on ski schools and instructors by the Federation Internationale de Ski (‘FIS’) Rules for Safety in Winter Sports Centre, in particular the following rules:

(1) instructors must teach pupils how to ski safely, which means teaching the technique of skiing and rules of conduct for skiers;

(2) ski schools are responsible for placing pupils into different classes according to their standard of skiing; and,

(3) instructors must never allow their pupils to take any risks beyond their capability.

In its Defence, the Defendant admitted that it was an implied term of the package holiday contract that the Defendant and its suppliers would exercise reasonable skill and care in performing all services which formed part of the contract, including the provision of skiing lessons by Gallo Cedrone, but that following Wilson v Best Travel (1993) 1 ALL ER 353 and Lougheed v On the Beach (2014) EWCA Civ 1538 the standard of reasonableness was to be determined by local safety standards, customs and practices applicable in the place where the injury was sustained (namely, Italy) and that the burden of establishing the existence, applicability and breach of any such local standards rested on the Claimant.

At Trial, both parties led expert evidence from British and US qualified ski instructors on appropriate standards of ski instruction, however neither professed to have any particular knowledge of standards applicable in Italy or whether they differed from the US or Britain.

Decision

Whilst the claim ultimately was dismissed on the basis that the Defendant/its suppliers had exercised reasonable care and skill pursuant to English standards in any event, the primary basis for dismissing the claim was that the Claimant had failed to adduce evidence of the local standard. The Court accepted the arguments of the Defendant that neither Morgan nor Evans v Kosmar Villa Holidays Ltd [2008] 1 WLR 297 (on which Marcus Smith J drew heavily in Morgan) allowed claimants to side-step the requirement of proving a breach of the local standard – even in a case such as this where there were clear international rules applicable to standards of ski instruction which had been adopted by the relevant national body.

The Court summarised the Defendant’s argument at Trial as follows:

[Counsel for the Defendant] further submitted that the case of Morgan did not permit local standards to be disregarded. He submitted that the contrary was actually true. Marcus Smith J had emphasised that local standards were “an important signpost” in determining the standard of care. A claim might succeed without establishing both the content of the applicable local standard and breach of the same where the local standard was “vague, nebulous or non-existent” or where the “standards prevailing in the place of performance… fall so far below either internationally accepted or English standards…. the organiser assumes an obligation to exercise reasonable skill and care that is informed not by the local standards but by other standards.” Counsel submitted that in both cases, the Claimant bore the burden of establishing the local standard (or the lack of one) and it was only when the local standard was vague, non-existent or plainly inadequate that resort should be made to English common law standards.

Counsel submitted that this was not a case where the local standard could not be established because it was vague or did not exist, nor was it a case where the local standard was demonstrably so low that the Defendant assumed an English common law duty. There had just been a failure to put forward any local standards evidence at all. Neither of the experts in the case were purporting to address anything other than the international standards set out in the FIS Handbook. They were not purporting to have expertise in Italian skiing standards. Whilst it was clear from the evidence that Italy had adopted the relevant FIS rules, there were undoubtedly some differences, not explicable by translation alone, because (from [the ski instructor’s] oral evidence when he was asked about it) rule 9 in the FIS rules was rule 11 in the Italian version. Similarly, Mr Exall’s evidence was that ski governance was quite localised in Italy and could vary between resorts (and thus, there were local standards but he could not say precisely what they were for Bormio)

The Court concluded as follows:

Having considered the case law, I prefer Counsel for the Defendant’s submissions. I consider that there should be some evidence as to the appropriate local standards in order to properly determine whether there has been some lack of reasonable care and skill as set against those standards. If there are no standards, or they are too vague or too far below the relevant English standard, then it may be appropriate for the Court to consider English standards.

Comment

The decision suggests that the ‘escape clause’ provided by Marcus Smith J in Morgan will apply in only a narrow range of cases and that courts will be slow to overlook the requirement of proving local standards and resort instead to English common law principles of reasonableness. The importance of making early investigations with an appropriately qualified local expert cannot be overstated.

Tom Collins appeared for the successful tour operator, instructed by Michael Gwilliam of Plexus Legal LLP. A copy of the judgment can be provided on request.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.

 

Remember Ryanair: Flight Cancellations in the event of Volcanic Eruptions

TUI has announced that it will be cancelling its flights from the UK to La Palma for at least three weeks as the Cumbre Vieja volcano on Tenerife continues to blow open fissures, sending gas and ash up to 6,000 metres into the air and causing significant damage to the island’s infrastructure, both from molten lava and from ongoing earthquakes. The situation will remind all travel practitioners of a certain age of the fallout from the eruption of the Icelandic volcano Eyjafjallajokull in March and April 2010 (can it really be that long ago?!), which covered much of northern and western Europe in an ash cloud, and caused the cancellation and disruption of flights all over the continent. Inevitably claims were made by stranded passengers under the Denied Boarding Regulations, and equally inevitably Ryanair rejected them. Eventually one of them, McDonagh v Ryanair Case C12-11, was taken to the CJEU.

Ms McDonagh’s flight from Faro to Dublin was scheduled for 17th April 2010, by which point the airspace over part of Europe, including Ireland, had been closed to air traffic; she was unable to fly to Ireland until 24th April. During her week’s enforced stay in Faro, Ryanair refused to provide her with the care stipulated in Regulations 5 and 9 of the Denied Boarding Regulations. On her return she brought a claim against the airline for reimbursement of the costs of accommodation, meals and transport she had incurred herself but which, she said, Ryanair ought to have provided her with in accordance with its obligations under the Regulations.

Ryanair defended the claim on the basis that not only were the eruption and its consequences ‘extraordinary circumstances’ so as to relieve it of the obligation to compensate its passengers under Regulation 7, they were super extraordinary circumstances which justified it in not providing them with care or reimbursement under Regulations 8 and 9.

The CJEU found that:

“…Regulation No 261/2004 contains nothing that would allow the conclusion to be drawn that it recognises a separate category of ‘particularly extraordinary’ events, beyond ‘extraordinary circumstances’ referred to in Article 5(3) of that regulation, which would lead to the air carrier being exempted from all its obligations, including those under Article 9 of the regulation…”

The court was not sympathetic to Ryanair’s plea that it would incur very significant costs if it were to owe a duty to provide open-ended care for all passengers whose flights had been cancelled by the eruption for as long as the disruption lasted:

“…The importance of the objective of consumer protection, which includes the protection of air passengers, may justify even substantial negative economic consequences for certain economic operators…”

In the end the Eyjafjallajökull eruption resulted in payouts of £62 million, a record at that time; it is not anticipated that the Cumbre Vieja eruption will be anything like as costly, given that the area affected is nowhere near as widespread, and that travel had already been disrupted due to the Covid-19 pandemic; every (volcanic ash) cloud has a silver lining…

About the Author

Called to the Bar in 1997, Sarah Prager has been listed in the legal directories as a Band 1 practitioner in travel law for many years. Together with her colleagues at 1 Chancery Lane, Matthew Chapman QC and Jack Harding, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. Last year she was named Best Lawyers’ Travel Lawyer of the Year 2020/2021 and the Lawyer Monthly Women in Law Awards 2020: Personal Injury, and she has recently been invited to join the Consultative Group of Experts to the UNWTO Committee for the Development of an International Code for the Protection of Tourists and the Admiralty Court Users’ Committee.

 

…And Finally…

If you haven’t already signed up for the 1CL webinar on Wednesday 13th, you’ve still got time. Regular readers will know that we have been hosting webinars since way back in the first lockdown, and this week sees us reach our 50th edition. To celebrate this milestone, Ella Davis and Dominique Smith will be discussing claims arising out of beauty treatments. You can register here.

Written by or involving: Sarah Prager, Tom Collins

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