England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.
Appeal by defendants from judgment
of His Honour Judge Fay
sitting as an additional Judge of the Queen's Bench Division
on 15th June 1973.

		Royal Courts of Justice.
		5th February 1974.

Revised

Monday, 4th February 1974.

Judgment on application to adduce further evidence.

THE MASTER OF THE ROLLS: Mr. Jackson arranged with Horizon Holidays Ltd. for a holiday in Ceylon for himself and his family in January and February of 1971. Afterwards he claimed that the accommodation did not come up to what was promised or represented and he sued for damages. Liability was admitted and the issue was simply one of damages. Judge Fay awarded the sum of £1100 as damages. There is an appeal on quantum. But there is a preliminary application. Horizon Holidays Ltd. seek to adduce fresh evidence. Alternatively they ask that there should be a new trial. They say that they have discovered fresh evidence from two witnesses which they wish to call. They have, of course, to satisfy the three conditions laid down in Ladd v. Marshall (1954) 1 W L R 1489. The first is that "the evidence could not have been obtained with reasonable diligence for use at the trial".

The first of the proposed witnesses is the courier, Miss Redgrave, who represented Horizon Holidays in Ceylon. She made a report to them within a few weeks after the holiday. It was quite a long report telling all that happened to Mr. Jackson and his family. She was clearly a witness whom they ought to have called. They tried to get her to come. As soon as the case was listed they wrote to her. She was away in the Middle East somewhere. Her father wrote back saying that it would be expensive for her to come back. Be suggested that the company might reimburse her costs up to £250. He added

"I imagine we would be able to get in touch with her by the beginning of June."

The defendants and their advisers thought that was an improper suggestion by the father. They did not try any more to get her as a witness. It seems to me that the defendants, if they used reasonable diligence, would have followed up that letter. They would have inquired when Miss Redgrave would be back. On getting that information, they would have applied for an adjournment of the ease until such time as she was available to give evidence. But they did nothing of that kind. The case came into the list. No application was made for an adjournment. Nothing was said about Miss Redgrave's absence. I think she must have been available if reasonable diligence had been taken.

Then the other witness they want is a Mrs. Rogerson. She is a lady who saw Judge Fay's decision in this case reported in the newspapers. She wrote to Horizon Holidays Ltd. She was with the same party on holiday at the same time in Ceylon. She said that they had a wonderful holiday and that a lot of this was due to the comfort of the hotel and the attention of the staff. Now, she was a lady about whom the defendants ought to have known. They had the names of the people in the party. They could have written to them. If they had written to Mrs. Rogerson, she would no doubt have been willing to give evidence for them. But they did not. The manager was asked about it at the trial:

"Have not you bothered to find out, in view of this ease?"

His answer was:

"I am sorry, Sir, I did not think it was relevant."

In the ease of this witness also, I think she would have been available if reasonable diligence had been shown.

In the case of both witnesses, the defendants have not satisfied the requirements laid down in Ladd v. Marshall for the reception of fresh evidence. I think the motion for new evidence fails and must be dismissed.

Application by the plaintiff respondent to adduce additional ground for supporting the Judge's decision was not objected to by appellant defendants and was granted.

Tuesday, 5th February, 1974.

Judgment on appeal on quantum of damages.

THE MASTER OF THE ROLLS: Mr. Jackson is a young man, in his mid twenties. He has been very successful in his business. He is married with three small children. In November 1970 there were twin boys of 3 years of age; and his wife had just had her third child. He had been working very hard. They determined to have a holiday in the sun. He decided upon Ceylon. He enquired of Horizon Holidays Ltd. He made arrangements with their agent, a Mrs. Bremner, for a holiday at a hotel, the Pegasus Beef Hotel, Hendala Point, Ceylon. He wrote them a letter which shows that he wanted everything of the highest standard: -

"With reference to our telephone conversation would you please confirm that you can arrange for my wife myself and my two twin boys aged 3 years to stay for 28 days from 23rd January to stay at the Hotel Pegasus Beef, Hendala Point, Ceylon. Would you also arrange that the children's room has an adjoining door to our room this is essential and is a condition of me booking this holiday. Would you please make sure that the balcony is facing the sea and would you also confirm the distance the hotel is from the sea. Would you confirm that the meals are four course with a choice of 3 or 4 dishes to each course. Could you confirm that there has been arrangements made that an English speaking Doctor would call on the Hotel if needed. Would you please make a clear answer to all these questions appreciating that you might have difficulties in answering some of these questions and not to send and evasive answers to any of these questions."

He spoke on the telephone to Mrs. Bremner. She led him to believe that the hotel would come up to his expectation. She wrote on the booking form: -

"Remarks Twins Room with connecting door essential. Total charge £1432. "

He sent it in and booked the holiday.

In the middle of January it was discovered that the Pegasus Reef Hotel would not be ready in time. So Horizon Holidays recommended a substitute. This was Brown's Beach Hotel. It was described in the advertisement as being

.... "superbly situated right on the beach with all facilities for an enjoyable holiday, including mini-golf, excellent restaurant, cocktail lounge, swimming pool, beauty saloon, hairdressers and gift shop.... The bedrooms are well furnished and equipped in modern style. All rooms have private bath, shower, W. C., sea view and air-conditioning. "

Mr. Jackson had some hesitation about this other hotel. But Horizon Holidays assured him that it would be up to his expectation. So Mr. Jackson accepted it. But Horizon Holidays reduced the charge. Instead of the price being the total sum of £1434, now, because of the change of hotel, it would be £1200. That included air travel to Ceylon and back and a holiday for four weeks. So they went there. The courier, Miss Redgrave, met them and took them to Brown's Beach Hotel. But they were greatly disappointed. Their room had not got a connecting door with the room for the children at all. The room for the children was mildewed - black with mildew, at the bottom. There was fungus growing on the walls The toilet was stained. The shower was dirty. There was no bath. They could not let the children sleep in it. So for the first three days they had all the family in one room. The two children were put into one of the single beds and the two adults in the other single bed. After the first three days they were moved into what was said to be one of the best suites in the hotel. Even then, they had to put the children in to sleep in the sitting room and the parents in the bedroom. There was dirty linen upon the bed. There was no private bath but only a shower; no mini-golf course; no swimming pool, no beauty saloon, no hairdressers' saloon. Worst of all was the cooking. There was no choice of dishes. On some occasions, however, curry was served as an alternative to the main dish. They found the food very distasteful. It appeared to be booked in coconut oil. There was a pervasive taste because of its manner of cooking. They were so uncomfortable at Brown's Hotel, that after a fortnight they moved to the Pegasus Reef Hotel. It appears that by that time it was nearing completion. But a lot of building work was still going on. At any rate, for the fortnight they were in the Pegasus Beef Hotel, where things were somewhat better than at Brown's Beach. They stayed out the four weeks and came home.

Soon after their return. Mr. Jackson wrote a letter setting out all his complaints from the beginning to the end. Then Mr. Jackson brought an action for damages in respect of the loss of his holiday for himself, his wife and the two small children. Horizon Holidays admitted liability. The contest was only on the amount of damages.

In Jarvis v. Swans Tours Ltd. (1972) 3 W. L. R. 934, it was held by this Court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained, but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday. The Judge directed himself in accordance with the judgments in that ease. He eventually awarded a sum of £1100. Horizon Holidays Ltd. appeal. They say it was far too much.

The Judge did not divide up the £1100. Counsel has made suggestions about it. Mr. Cheyney for Horizon Holidays suggests that the Judge gave £100 for diminution in value and £1000 for the mental distress. But Mr. Davies for Mr. Jackson suggested that the Judge gave £600 for the diminution la value and £500 for the mental distress. If I were inclined myself to speculate, I think Mr. Davis's suggestion may well be right. The Judge took the cost of the holidays at £1200. The family only had about half the value of it. Divide it by 2 and you get £600. Then add £500 for the mental distress.

On this question a point of law arises, The Judge said that he could only consider the mental distress to Mr. Jackson himself, and that he could not consider the distress to his wife and children. He said: "The damages are the plaintiff's. I can consider the effect upon his mind of his wife's discomfort, vexation, and. the like, although I cannot award a sum which represents her vexation.

Mr. Davies, for Mr. Jackson, disputes that proposition. He submits that damages can be given not only for the leader of the party, in this case, Mr. Jackson's own distress, discomfort and vexation, but also for that of the rest of the party.

We have had an interesting discussion as to the legal position when one person makes a contract for the benefit of a party. In this case it was a husband making a contract for the benefit of himself, his wife and children. Other cases readily come to mind. A boat makes a contract with a restaurant for a dinner for himself and his friends. The vicar makes a contract for a coach trip for the choir. In all these eases there is only one person who makes the contract. It is the husband, the host or the vicar, as the case may be. Sometimes he pays the whole price himself. Occasionally he may get- a contribution from the others. But in any case it is he who makes the contract. It would be a fiction to say that the contract was made by all the family, or all the guests, or all the choir, and that he was only so agent for them. Take this vary case. It would be absurd to say that the twins of 3 years old were parties to the contract of that the father was making the contract on their behalf as if they were principals. it would equally be a mistake to say that to any of these instances there was a trust. The transaction bears no resemblance to a trust. There was no trust fund and no trust property. No, the real truth is that in each instance, the father, the host or the vicar, was making a contract himself for the benefit of the whole party. In short, a contract by one for the benefit of third persons.

What is the position when such a contract is broken? At present the law says that the only one who can sue is the one who made the contract. None of the rest of the party can sue, even thought the contract was made for their benefit. But when that one does sue, what damages can he recover? Is he limited to his own loss? or can he recover for the others? Suppose the holiday firm puts the family into a hotel which is only half built and the visitors have to sleep on the floor? or suppose the restaurant is fully booked and the guests have to go away, hungry and angry, having spent so mach on fares to get there? Or suppose the coach leaves the choir stranded halfway and they have to hire cars to gat home? None of them individually can sue. Only the father, the host or the vicar can sue. He can, of course recover his own damages. But can he not recover for the others? I think he can. The case comes within the principle stated by Lard Justice Lush in Lloyd's v. Harper (1880) 16 Ch. D. at page 321:

"I consider it to be an established rule of law that where a contact is made with A. for the benefit of B., A. can sue on the contract for the benefit of B., and can recover all that B. could have recovered if the contract had been made with B. himself. "

It has been suggested that Lord Justice Lush was thinking of a contract in which A. was trustee for B. But I do not think so. He was a common lawyer speaking of the common law. His words were quoted with considerable approval by Lord Pearce in Beswick v. Beswick (1968) A. C. at page 88. I have myself often quoted them. I think they should be accepted as correct, at any rate so long as the law forbids the third persons themselves to sue for damages. It is the only way in which a just result can be achieved. Take the instance I have put. The guests ought to recover from the restaurant their wasted fares. The choir ought to recover the cost of hiring the taxis home. There is no one to recover for them except the one who made the contract for their benefit. He should be able to recover the expense to which they have been put, and pay it over to them. Once recovered, it will be money had and received to their use. (They sight even, if desired, be joined as plaintiffs. ) If he can recover for the expense, he should also be able to recover for the disco fort, vexation and upset which the whole party have suffered by reason of the breach of contract, recompensing them accordingly out of what he recovers.

Applying the principles to this case, I think that the figure of £1100 was about right, It would, I think, have been excessive if it had been awarded only for the damage suffered by Mr. Jackson himself. But when extended to his wife and children, I do not think it is excessive. People look forward to a holiday. They expect the promises to be fulfilled. When it fails, they are greatly disappointed and upset. It is difficult to assess in terms of money; but it is the task of the Judges to do the best they can. I see no reason to interfere with the total award of £1100.

I would therefore dismiss this appeal.

LORD JUSTICE ORR: I agree.

LORD JUSTICE JAMES: In this ease Mr. Jackson, as found by the Judge on the evidence, was in need of a holiday at the end of 1970. He was able to afford a holiday for himself and his family. According to the form which he completed, which was the form of Horizon Holidays Ltd., he booked what was a family holiday. The wording of that form might in certain circumstances give rise to a contract in which the person signing the form is acting as his own principal and as agent for others. In the circumstances of this case as indicated by the Master of the Rolls, it would be wholly unrealistic to regard this contract as other than one made by Mr. Jackson for a family holiday. The Judge found that he did not get a family holiday. The costs were some £1200. When he came back he felt no benefit. His evidence was to the effect that, without any exaggeration, he felt terrible. He said: "The only thing, I was pleased to be back, very pleased, but I had nothing at all from that holiday." For my part, on the issue of damages in this matter, I am quite content to say that £1100 awarded was the right and proper figure in those circumstances. I would dismiss the appeal.

Appeal dismissed with costs. Leave to appeal to the House of Lords refused.