England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(Mr Justice Douglas Brown)

		Royal Courts of Justice Strand London WC2
		Wednesday, 13th June 2001

1. LORD JUSTICE HENRY: I will ask Lord Justice Longmore to give the first judgment.
2. LORD JUSTICE LONGMORE: The defendant travel agent, the respondent to this appeal, under the name "Late Escapes", invites business through advertisements on the ITV Teletext service. On 22nd September 1996 the claimant, Mr Gerard Hone, saw on Teletext an advertisement for a holiday for 14 nights at Gumbet in Turkey at a date and price which he found acceptable. The next day Mr Hone's brother, Richard Hone, booked the holiday for himself and his wife, the claimant and the claimant's fiancée, Sharon. The operative sent out a confirmation of the booking in the post and arranged for the party to collect their tickets at the airport. At trial there was some debate whether the contract was with the defendants or with the actual tour operator, Suntours; the judge held that the defendants never disclosed, before the time of contracting, that they were acting on behalf of any tour operator and that the entity with whom Mr Hone had made the contract for the holiday was the respondent travel agent ("Going Places"). Suntours are now in liquidation, in any event, and no further mention of them need be made.
3. The party of four travelled to Turkey and, one assumes, enjoyed their holiday. They returned by air on 19th October 1996 in an aircraft operated by a Turkish airline operating in partnership with a Swedish charter airline company. A short time after departing from Adnan Menderes Airport, there was a bomb scare on board and the pilot decided to divert to Istanbul. The passengers were instructed to prepare for an emergency landing and then for a crash landing, after which the passengers would have to descend from the aeroplane by emergency chute. Mr Gerard Hone, the claimant, preceded his fiancée to the port side door. When he was at the top of the chute he noticed a large lady, who had also been on holiday, at the bottom of the chute. In the course of his descent, Mr Hone realised that she was stuck at the bottom of the chute and unable to move away. He opened his legs wide enough to avoid striking her back, but he collided with her.
4. Sharon followed Mr Hone down the chute; she was not wearing high heels but shoes with a hard heel. She struck Mr Hone's back with her shoes and caused him an acute pain in the spine. He was nevertheless able to climb over the sides of the chute and assist the large lady to her feet. In so doing, he hurt his back again. He has brought a claim against Going Places in respect of this injury and relies for that purpose on regulation 15 of The Package Travel, Package Holidays and Package Tours Regulations 1992 ("the 1992 Regulations"). Regulation 15 provides as follows:

"(1)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.

(2) The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance [my emphasis] of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because -

(a)the failures which occur in the performance of the contract are attributable to the consumers;

(b)such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or

(c)such failures are due to -

(i)unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised; or

(ii)an event which the other party to the contract or the supplier of services, even with all due care, could not foresee or forestall."

5. There is no dispute that Going Places is the other party to the contract for the purposes of the Regulations. It is, moreover, common ground that regulation 15(1) ensures that Going Places was responsible for the proper performance of the contract by those supplying the relevant service - in this case the air carriage -whoever it was that actually performed that service.
6. Mr Hone alleged in his claim form that there was a failure to perform, or improper performance of, the contract in that there were no trained personnel at the top or the bottom of the emergency chute and no instructions to passengers to remove their footwear or to use the chute only when it was clear of other passengers. The claim also alleged that there was a failure to prevent the accident; in the course of oral submissions it was put that the defendants (or those for whom they were responsible) failed to execute a safe evacuation. Mr Hone also alleged that the Regulations imposed an "absolute liability", subject to defences which the defendants could not show were available. The judge held that it was for the claimant to show that there was improper performance and that in the context of the present case that meant that he had to show that his injuries were attributable to the fault of someone supplying services in relation to the package tour. Liability was thus not absolute or strict, subject to exceptions. The judge held, further, that Mr Hone had wholly failed to establish that the accident was anyone's fault. There was no evidence about the number of cabin staff on board the aircraft, nor as to what the appropriate number of staff should be. Nor was there expert evidence on the duties of cabin staff in the kind of emergency that arose. He therefore dismissed the claim.
7. The judge refused to give Mr Hone permission to appeal on the question whether, if he had the burden of proving fault, he had discharged the burden of proving that fault. That application was renewed before us, but without enthusiasm, and we refused permission to argue that ground since the judge was plainly right for the reasons which he gave.
8. The judge did, however, give Mr Hone permission to appeal his decision that the Regulations did not impose strict liability and also his decision not to have regard to ministerial statements in Hansard to the effect that the Regulations were intended to impose a strict liability. In the course of the hearing we gave Mr Hone further permission (despite refusal by the judge) to appeal the judge's decision that the onus of proving fault was on the claimant rather than on the defendants to disprove any fault. We also gave him permission to appeal the sentence in the judgement which reads:

"Even if, contrary to my view, there was fault on the part of the airline staff, this was not an event which the Defendant, as the other party to the contract, could, with all due care, forestall."

9. This sentence of the judgment is a little difficult to interpret. If the judge is saying that fault on the part of the airline staff was due to an event which the defendants themselves could not forestall, that would be true but irrelevant if the onus were on the defendants to prove absence of negligence on the part of themselves and the airline staff. If, on the other hand, the words "the Defendant" are to be read as including the airline staff (as on this approach they should be read) it does not make much sense to hold that fault on the part of the airline staff was due to an event which the airline staff could not forestall. This only becomes relevant, however, if the appellant is correct on his main grounds of appeal.
10. In fact, the main three grounds of appeal are all linked to one another. Mr Paul Dean, on Mr Hone's behalf, submitted:

(1)that, on their true construction, the Regulations of 1992 imposed an absolute or strict liability on the other party to the contract subject to defences, the onus of proving which was on that other party to the contract;

(2)that the requirement of regulation 15(1) of "improper performance of the contract" was met because the expectation of the parties was that there would be safe carriage to and from the holiday and, if injury was sustained during that carriage, there was improper performance;

(3)that the intention of the Regulations was to achieve a result comparable to that achieved by the unamended Warsaw Convention which, it was agreed, imposed liability for death and personal injury if the accident causing such death or personal injury took place on board (or in the course of embarking or disembarking from) an aircraft. That liability was a limited liability and was subject to the defence that the carrier was not to be liable if he were able to prove either that his servants and agents had taken all necessary measures to avoid the damage or that it was impossible to take such measures (Article 20), or that the damage was caused by the negligence of the injured person (Article 21);

(4)that if the burden was on the claimant to prove improper performance in the sense of fault, the existence of the fault-based exceptions was otiose and made no sense;

(5)that his submissions were supported by the statements of the relevant Ministers in the House of Commons and the House of Lords that liability was strict.

11. Mr Simon King, on behalf of the respondent, submitted:

(1)that a claimant had to prove either a failure of performance or improper performance of the contract;

(2)that the present case was not a case of failure to perform but, if anything, one of improper performance of the contract;

(3)that improper performance of the contract had to be a breach of the contract;

(4)that there was no breach of contract unless there was a failure to perform the contract with reasonable care and skill, and in that sense there had to be shown to be fault on the part of the other party to the contract or the supplier of the relevant service for whose fault he was responsible;

(5)that the Regulations were drafted differently from the Warsaw Convention and that such differences were significant;

(6)that the Ministers of the Crown in the course of parliamentary debates, by using the phrase "strict liability", did not intend to deny the effect of the requirement that there had to be improper performance of the contract.

12. The starting point must, in my view, be the contract which Mr Hone made with the defendants. Contracts for holidays are often made informally and it will often be necessary to imply a term as to the standard of performance since the requirements will not be set out in any detail. In the absence of any contrary intention, the normal implication will be that the service contracted for will be rendered with reasonable skill and care. Of course, absolute obligations may be assumed. If the brochure or advertisement, on which the consumer relies, promises a swimming-pool, it will be a term of the contract that a swimming-pool will be provided. But, in the absence of express wording, there would not be an absolute obligation, for example, to ensure that the holiday-maker catches no infection while swimming in the swimming-pool. The obligation assumed will be that reasonable skill and care will be taken to ensure that the pool is free from infection. A similar term will be implied in relation to transportation in the absence of any express wording, viz that reasonable skill and care will be exercised. A travel agent or tour operator does not usually, for example, promise that the pilot of the aeroplane will not have a heart attack.
13. In the case of a travel agent it may, as a matter of common law, be controversial whether the travel agent himself assumes the relevant contractual responsibility or only agrees to put the customer into contractual relations with the actual provider of the service, whether tour operator, airline or other provider. This problem is now resolved by regulation 15(1) of the 1992 Regulations, which in terms provides for the party other than the consumer to be liable for the proper performance of the obligations, whether such obligations are to be actually performed by that party or by the supplier of the service. But regulation 15(1) gives no guidance as to the extent of the obligation. The decision of the Privy Council in Wong Wee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 is a good example of the approach of the common law on both questions. It was there held, on the facts of that case, that the defendant travel agent had undertaken to provide all the tour services and not merely to arrange for their provision, even though many of the services were intended to be provided by other persons. It was also held that a term was to be implied into the contract that reasonable skill and care would be used in the rendering of the services which the travel agent had contracted to provide, whether they were carried out by the travel agent or by someone else.
14. In a case to which the 1992 Regulations apply, there will be no controversy on the first question and there is no such controversy in the present case. Going Places is the party liable on the contract and, for the purpose of regulation 15(1), it is liable for "the proper performance of the obligations under the contract". But regulation 15(1) says nothing about the content of that performance.
15. Regulation 15(2) provides for the other party to the contract to be liable for any damage caused to the consumer by failure to perform the contract or by the improper performance of the contract. The present case is not a case of failure to perform. It can only be a case of improper performance. It is only possible to determine whether it is a case of improper performance by reference to the terms of the contract which is being performed. To my mind, regulation 15(2) does not give the answer to the question, "What is improper performance?" Rather it is a requirement of the application of regulation 15(2) that there should be improper performance. That can only be determined by reference to the terms of the contract. There may be absolute obligations, eg as to the existence of a swimming-pool or any other matter, but, in the absence of the assumption of an absolute obligation, the implication will be that reasonable skill and care will be used in the rendering of the relevant service. There will thus be no improper performance of the air carriage unless there is an absence of reasonable skill and care in the provision of that service. If, as here, it is the claimant who seeks to rely on regulation 15(2), then he has to show that there has been improper performance.
16. Mr Dean submits that there was improper performance because the parties expected that the air carriage would be safely executed. That would only be the position if there were a term of the contract that the air carriage would be safely executed. For my part, I do not consider that there was any such absolute term. In the absence of an express agreement, the implication was that the air carriage would be performed with skill and care.
17. There is a clear contrast with the terms of the Warsaw Convention. In that Convention, Article 17 imposes a liability for death or personal injury without any requirement of improper performance. Article 18 does the same for loss or damage to baggage and cargo, and Article 19 the same for delay to passengers, baggage and cargo. There are then specific provisions for exclusion or diminution of liability and for limitation. The 1992 Regulations could have adopted a similar scheme but, by the use of the term "improper performance", it is patent that they have not done so. The fact that it is open to the travel agent (or other party to the contract) to incorporate the limitation provisions of any applicable international convention, if they wish to do so, cannot make any difference to this conclusion.
18. I would not, for my part, accept that the existence of the fault-based exceptions in regulation 15(2) makes it otiose or nonsensical for the claimant to have to prove fault in an appropriate case. The exceptions will, in any event, come into play if the other party to the contract assumes obligations which are themselves not fault-based.
19. Nor do I obtain any assistance from the ministerial statements, recorded in Hansard, to the effect that regulation 15 makes the organiser or retailer strictly liable for the performance of the contract. The relevant Minister was not purporting to construe, let alone alter, the terms of the Directive requiring the Regulations to be enacted. It is significant that the terms of both the preamble and the body of the Directive itself refer to improper performance and must, therefore, envisage that the standard of performance is to be derived from the contract and not from the terms of the Directive itself. The contract will sometimes have terms which impose strict liability in any event and any breach of such terms will be a matter of strict liability, subject to any relevant qualifications. It is, moreover, not an abuse of the term "strict liability" for a non-lawyer to use it in the sense that the retailer or the tour organiser will be responsible for the acts of others who provide the relevant services.
20. Mr Dean's argument on this point illustrates how important it is, in those rare cases where resort to Hansard is permissible, to have regard to the context. In this case, the judge was shown only a short quotation from the Minister's speech, taken from page 50 of the second edition of Grant & Mason's textbook on Holiday Law, published in 1998. We have seen the full text of the speech, which made quite clear at the outset that the purpose of the Regulations was simply to implement the EU Directive. What followed was no more than a brief outline of the provisions. In Pepper v Hart [1993] AC 593, by contrast, the issue arose from primary legislation promoted by a Government Department. It was therefore considered relevant to look at statements to Parliament by the responsible Minister of the policy underlying the statute.
21. For these reasons I would reject Mr Dean's arguments, accept those of Mr King and dismiss Mr Hone's appeal.
22. MR JUSTICE CARNWATH:I agree.
23. LORD JUSTICE HENRY: I also agree. The appeal, therefore, will be dismissed.
Order: appeal dismissed with costs.