England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CENTRAL LONDON CIVIL JUSTICE CENTRE
HIS HONOUR JUDGE FREELAND QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		29th May 2012

Lord Justice Pitchford:

1. Following a trial at Central London County Court between 7 and 10 March 2011 on the issues of liability and causation, HHJ Freeland QC gave judgment for the claimant, Natalie Harrison, against the defendant, Jagged Glob (Alpine) Limited, in respect of one of two accidents which the claimant suffered during a mountaineering expedition to Ecuador. The judge assessed the claimant's contributory negligence at 40 per cent. The defendant now appeals against the finding of liability.
2. I shall, for convenience, continue to refer to the parties to this appeal as the claimant and defendant, respectively.
3. At trial the claimant was represented as now by Ms Prager. The defendant was represented by its managing director in person, Mr Simon Lowe. It is now represented in the appeal by Mr Patrick Limb QC. The defendant is an experienced provider of mountaineering expeditions in different parts of the world. It provides two different services to its clients; either the client will join a standard brochure trip provided by the defendant, including the services of an expedition leader and local guides, or an independent or private expedition, led either by the defendant's appointed leader or led by the client himself.
4. In March 2004 Sir Ranulph Fiennes, an explorer and mountaineer of international renown, contacted the defendant with a view to organising an acclimatisation and training expedition preparatory to a later expedition to Everest. The defendant agreed to provide a self-led expedition to Ecuador in October 2004 during which Sir Ranulph would hone his mountaineering skills on the Cayambe Glacier and, afterwards, scale the Cotopaxi and Chimborazo Mountains. Sir Ranulph invited the claimant to accompany him and she accepted that invitation. The defendant arranged the couple's travel and accommodation requirements; it also, through its local agent in Ecuador, engaged mountaineering guides who were to work according to the itinerary settled by Sir Ranulph and the claimant after their arrival in Ecuador on 14 October.
5. Shortly before departure, Sir Ranulph informed the defendant that he was being provided by the American television production company, HBO, with a video camera with which to record the expedition. The defendant agreed to provide him with a cameraman. At first it was contemplated that one of the guides could act as cameraman, but once he was in Ecuador Sir Ranulph formed the view that a professional was required. The defendant's local agent, Javier Herrera, made the arrangement.
6. On 21 October 2004 Sir Ranulph and the claimant were due to negotiate the Cayambe Glacier. At dinner the night before, as the judge found, Sir Ranulph suggested that while they were on the glacier they should undertake a staged fall, which would be recorded on camera. The "victim" would pretend to fall into a crevasse. The claimant volunteered to be the victim. The claimant was asked to leap from one side of the crevasse to the other, but to fall slightly short and slip into the crevasse, where she would be suspended on the climbing rope held on each side of the crevasse by one of the guides.
7. The claimant leaped as she was instructed. When she reached the other side her head, wearing a mountaineering safety helmet, was propelled forward into collision with the wall of the crevasse, striking her head quite a sharp blow. The claimant then slid as intended into the crevasse where she was safely suspended, as if in a cradle, by the climbing rope. Shortly afterwards the claimant agreed to engage in a second staged fall, in which she pretended to fall while climbing. Again, she was suspended from a climbing rope. It was the claimant's case that the blow to her head during the first stunt caused her long-term headaches, while the second caused soft tissue injury to her neck.
8. As to the facts, the judge described the contractual terms between the claimant and the defendant as opaque. He found that the leader of the expedition was Sir Ranulph Fiennes. The defendant agreed, as part of the contract, to provide, and did provide, local guides, engaged by their agent in Ecuador. The judge found that those guides were able and experienced, conscientious and diligent. However, the judge concluded that the provision, safe management and execution of what he called the first and second "stunts" formed no part of the package provided for the claimant by the defendant; they were neither contemplated nor foreseen by the parties to the contract. The judge rejected the claimant's evidence that the impetus for the stunts came from the guides on the morning of 21 October.
9. At paragraphs 75 and 76 of his judgment he said this:

"75. I conclude that I found the evidence of the claimant on this very important issue entirely unconvincing. I much preferred the evidence of the guides. I found their evidence compelling, carefully given, accurate and ultimately very cogent indeed. I am fully satisfied that there was a discussion the previous evening about the first stunt. I am fully satisfied, on the clearest of balance of probabilities, that the first stunt was instigated as an exciting piece of footage by Sir Ranulph Fiennes. It was his idea, not the guides. I am fully satisfied on the clearest balance of probabilities that the claimant was present at supper the night before when this was planned. I reject her evidence that she only knew about this half an hour before and that it was only first discussed half an hour before. Moreover, I reject her evidence that she did not volunteer. I am fully satisfied, on the clearest of balance of probabilities, that she did volunteer. Sir Ranulph Fiennes preferred not to do the stunt himself -- that is why she volunteered and it was discussed. In other words, it was discussed at supper the night before. In this respect the claimant has been neither candid nor forthcoming with the court. It is a mark of Jose Landazuri's honesty, and I found him and all of the guides to be entirely honest and straightforward witnesses, that he agreed he told the claimant that it would be safe. I have no doubt that he did tell the claimant that.

76. There was a further discussion half an hour before about the detail of the first stunt and I am equally satisfied on the clearest of balance of probabilities that there was such a discussion and I accept Jose Landazuri's evidence, or Pepe's evidence, on this issue."

10. The judge was referring in the last two sentences in this passage to the evidence of Mr Landazuri ("Pepe") that the night before the claimant had asked him whether the staged fall was safe, and he replied that it was. The judge found that the first stunt was instigated by Sir Ranulph Fiennes; the claimant volunteered freely and without compulsion. The claimant, he found, did hit her head, and in consequence suffered "at least a few weeks' headaches".
11. In her Particulars of Claim the claimant relied upon regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 ("the Regulations"). Regulation 15(1) and (2) provide:

"Liability of other party to the contract for proper performance of obligations under contract

15.—(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 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 consumer;

(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."

12. It was not in dispute at trial that the defendant provided a package of services and that the claimant was a consumer for the purpose of the regulations. However, the judge found at paragraphs 61 and 73 of his judgment that it was no part of the "obligations under the contract" to provide, or safely to manage, or to execute the stunts undertaken by the claimant. For this reason the judge held that the regulations did not apply.
13. Nevertheless, the judge went on to hold that at common law there was to be implied into the contract between the claimant and the defendant a term that the defendant would exercise reasonable skill and diligence in the performance of the contract. Further, the defendant owed to the claimant the tortious duty of care. The judge found that although the responsibility for the stunts lay with Sir Ranulph Fiennes, the defendant was not absolved of responsibility to the claimant. The guides were giving instruction on the mountains and in that capacity they had responsibility for her safety "whether in contract or tort". In the judge's view it was open to the guides to refuse to permit the stunts to take place. The experts called by the parties, Mr Peter Cliff for the claimant and Mr R D Barton for the defendant, agreed that the guides should have declined to support the stunts and should so have advised the claimant. The judge agreed with them; he treated that failure as attributable to the defendant.
14. The defendant originally relied upon three grounds of appeal. The appeal, however, has been advanced on the second and, in my view, the primary ground, namely that the judge made an error of law in concluding that the defendant owed to the claimant a duty of care in respect of carrying out the stunts on the glacier in Ecuador.
15. It was, as I have said, the claimant's case that the defendant agreed to provide as part of its service local guides. It was asserted that "proper performance" of the contract required that the service should be provided to a reasonable standard. It was alleged in paragraph 8 of the Particulars of Claim that, after one hour's instruction with crampons and ice axe and roping techniques, the claimant was instructed by one of the guides to stage a roped crevasse fall to provide more action shots for the cameraman ("the stunt"). The particulars of "improper performance" of the package, also relied on as particulars of negligence, included allegations that the claimant had wrongly been instructed to perform the stunt, the guides had failed to lower her into the crevasse, and the claimant had been exposed to the risk of injury. The basis for the finding of liability was, however, that the claimant volunteered for the stunt, had been told that it was safe and that the guides should have prevented it because it was not in fact safe. As the judge put it at paragraph 67 of his judgment, the guides had assumed a responsibility for the safety of the claimant.
16. Having rejected the claimant's case that the stunts had anything to do with the services provided for her by the defendant, the judge did not go on to analyse by what route, if any, the defendant could be liable for the negligence of the guides. The judge had found that the duty of care arose not from the performance of a contractual duty owed by the defendant to the claimant, but from the guides' assumption of responsibility for the claimant's safety in the context of performing stunts. It seems to me that it was not open to the judge to impose an implied term upon contractual performance for which the defendant was not responsible. The judge seems to have assumed, without deciding, that the defendant was vicariously responsible for the guides' breach of duty to keep the claimant safe by failing to say no to the stunt.
17. In the appeal Ms Prager has advanced an argument that, given all the circumstances, the judge was entitled to "impose" a duty upon the defendant towards the claimant in the circumstances contended. There is, however, no analysis of those circumstances in the judge's judgment for the purpose of deciding whether or not such a duty ought to be imposed. The judge said at paragraph 67 that he preferred to analyse the duty in tort:

"as did the Court of Appeal in Evans v Kosmar Villa Holidays Limited [2008] 1 WLR 29."

18. In Evans, Richards LJ, giving the leading judgment with which Arden LJ and Hooper LJ agreed, was applying regulation 15 of the Regulations. The claimant had dived at night into a shallow swimming pool at an apartment resort in Corfu, suffering in consequence very severe injuries. His claim relied on a lack of signage warning guests that the pool was shallow and that diving was dangerous. He pleaded an implied term of his contract with the defendant that reasonable skill and care would be exercised in the provision of the facilities and services at the apartments. At paragraph 21 of his judgment Richards LJ pointed out that the question of whether there was "improper performance" of the package was:

"to be determined by reference to the terms of the contract, which in this case takes one back to the implied terms as pleaded: Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 at [15]."

19. The court concluded that the duty to take reasonable care did not extend to a duty to warn the claimant against the dangers of diving into the pool, let alone to have better placed or more prominent signs; the claimant was well aware of the risk he was taking when he entered the pool. It is to be noted that the Court of Appeal in Evans, while applying a tortious duty owed by the defendant towards the claimant, was relying upon the implied terms of the contract in order to identify the scope of the duty which was owed. The court found that the facilities and services were reasonably safe in compliance with that duty.
20. The learned judge appears to have overlooked the central focus which the implied term in the contract played in the identification of the duty owed. In the present case no implied term was pleaded or identified which specified the scope of the duty or the standard of care, which, in respect of any particular activity, the claimant was entitled to expect. No doubt the judge did not identify the terms of such an implied term because the judge found that the 1992 Regulations had no application; they had no application because the activity in which the claimant agreed to become involved had been no part of the itinerary agreed between the parties to the contract. On what basis, therefore, could the defendant be held liable in tort for the negligence of the guides who were, it is common ground, independent contractors? Having resolved that the defendant owed no contractual duty to the claimant to prevent her from undertaking the stunts, it is not possible to discern by what route the judge concluded that the defendant could have owed a like duty directly to the claimant in tort.
21. In a seminal passage of his judgment, in Cassidy v the Ministry of Health [1951] 2 KB 343 at [364], Denning LJ explained the significance of the employment of independent contractors where no duty was owed directly by the "employer" to the claimant:

"The truth is that, in cases of negligence, the distinction between a contract of service and a contract for services only becomes of importance when it is sought to make the employer liable, not for a breach of his own duty of care, but for some collateral act of negligence of those whom he employs. He cannot escape the consequences of a breach of his own duty but he can escape responsibility for collateral or casual acts of negligence if he can show that the negligent person was employed not under a contract of service but only under a contract for services."

22. There are several instances of a duty directly owed which cannot be delegated to an independent contractor because failure by the contractor will constitute failure by the "employer" himself. Examples are health and safety duties owed to an employee; dangers on the highway; dangerous activities in general; and the withdrawal of a right of support from a neighbouring property. In Wong Mee Wan v Kwan Kin Travel [1996] 1 WLR 38 the Privy Council recognised the further common law example arising from a contract by holding a travel agent liable for the negligent driving of a speedboat carrying one of its clients during a holiday in China. Lord Slynn of Hadley, delivering the judgment of the judicial committee, said at page 46E:

"Taking the contract as a whole their Lordships consider that the first defendant here undertook to provide and not merely to arrange all the services included in the programme, even if some activities were to be carried out by others. The first defendant's obligation under the contract that the services would be provided with reasonable skill and care remains even if some of the services were to be rendered by others, and even if tortious liability may exist on the part of those others. It has not been suggested that Miss Ho Shui Yee was in contractual relations with the others.

In their Lordships' view it was an implied term of the contract that those services would be carried out with reasonable skill and care. That term does not mean, to use the words of Hodgson J in Wall v Silver Wing Surface Arrangements Ltd, that the first defendant undertook an obligation to ensure 'the safety of all the components of the package'. The plaintiff's claim does not amount to an implied term that her daughter would be reasonably safe. It is a term simply that reasonable skill and care would be used in rendering the services to be provided under the contract. The trip across the lake was clearly not carried out with reasonable skill and care in that no steps were taken to see that the driver of the speedboat was of reasonable competence and experience and the first defendant is liable for such breach of contract as found by the trial judge."

23. It seems to me that the decision in Won represents the high water mark for the claimant in the present case. However, the facts of this claimant's case are quite different from those in Wong Mee Wan. Here, the stunts in which she agreed to participate were no part of the itinerary of her package; the local guides had assumed personal responsibility for an activity which was no part of the function of the itinerary. The judge found that for the task for which they had been engaged the guides were competent and conscientious.
24. Upon the findings made by the learned judge I do not consider that the claimant established the existence of a duty by the defendant to protect her from the risks of the unforeseen activities. In the absence of such a duty there was no route by which the defendant could be held liable for the negligence of the guides who were engaged as independent contractors. It would, of course, have been a different matter had the guides failed to exercise due care during the ordinary incidence of training and climbing at altitude.
25. In the course of her submissions Ms Prager drew our attention to the decision of this court in Parker v TUI UK Ltd [2009] EWCA Civ 1261. She sought to rely upon this decision for the purpose of supporting an argument that the circumstances required the imposition of a duty of care by the defendant directly towards the claimant; however, an examination of the facts reveals that the court reached its decision based upon an "assumption of responsibility" by the employees of the travel agent for the safety of its holidaymakers in the supervision of a toboggan run in consequence of which the claimant in that case suffered injury. Ms Prager has not persuaded me that there is in this case any ground for imposing a duty upon the defendant which does not arise out of established principles of law such as those identified by Denning LJ in Cassidy v the Ministry of Health and the Privy Council in Wong Mee Wan v Kwan Kin Travel.
26. I conclude that the judge was in error in finding that there was a duty of care owed by the defendant to the claimant in the particular circumstances in which her accident occurred, and for that reason I would allow the appeal.

Lord Justice Laws:

27. I agree.

Mr Justice Lloyd Jones:

28. So do I.

Order: Appeal allowed