England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PORTSMOUTH COUNTY COURT
Mr Recorder Giles Harrap
2YJ72738

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/11/2014

Lord Justice Tomlinson :

1. The Appellant, On The Beach Limited, ("On The Beach") describes itself as a travel agent but Mr Recorder Giles Harrap sitting in the Winchester County Court decided by his judgment delivered on 31 January 2014 that it was the "organiser" of a holiday package as defined by The Package Travel, Package Holidays and Package Tours Regulations 1992, SI 1992 No. 3288 ("the Regulations") sold by it in August 2009 to Mrs Cheryl Barton. The package consisted of flights and accommodation for a party of five. The flights were provided by Ryanair. The accommodation was at the H Top Royal Star Hotel in Lloret de Mar, Spain. The party included Mrs Barton's nine year old daughter Connie and her seventy-two year old mother Mrs Valerie Lougheed, the Respondent. Mrs Barton was therefore, in the language of the Regulations "the principal contractor" and Mrs Lougheed was a "consumer", a person on whose behalf the principal contractor agrees to purchase the package.
2. The party flew to Spain on 14 August 2009. On the morning of 16 August Mrs Lougheed slipped and fell while going down a flight of polished granite steps which had non-slip grooves cut into them. At the time Mrs Lougheed was holding on to the handrail on her side of the steps with her left hand. The judge found, resolving disputed evidence, that she had slipped on a patch of water on the steps.
3. Mrs Lougheed suffered a fracture dislocation of her right ankle, a fracture of the left shoulder and bruising to her lower back and bottom. It was agreed that if On The Beach was liable to her in respect of her loss, her damages in respect of her injuries and consequential financial loss should be quantified at £30,000. Mrs Lougheed contended that On The Beach was liable to her pursuant to paragraph 15(1) of the Regulations which provides:-

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

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."

Mrs Lougheed contended that the circumstance that water was deposited on the steps and/or allowed to remain there until she slipped upon it was indicative that the hotel had not exercised reasonable skill and care in the discharge of its obligations owed to her. That, she said, cast upon On The Beach an evidential burden to adduce evidence of the exercise of reasonable skill and care directed towards the avoidance of the steps becoming and/or remaining wet.

4. The Recorder found that Mrs Lougheed had "sufficiently proved her case" [51]. In consequence he awarded her £30,000 damages. Contributory negligence was apparently not pressed, notwithstanding Mrs Lougheed's evidence that she "didn't look at the staircase to see if it was wet or dry". The Recorder himself gave On The Beach permission to appeal.
5. It was common ground at trial that the Appellant is liable if the contract was not performed with reasonable skill and care in accordance with local standards, a proposition derived from the decision of Phillips J, as he then was, in Wilson v Best Travel Limited [1993] 1 All ER 353, a decision followed and applied on numerous occasions including in this court.
6. The Grounds of Appeal are that the trial judge was wrong as a matter of law to find that the hotel was in breach of local standards, because the Claimant had failed to adduce evidence of local standards and:

a) the judge wrongly relied upon the evidence of the hotelier as evidence of local standards;

b) the judge was wrong as a matter of law to find that the Defendant bears any evidential burden of proof in cases of this nature.

7. Somewhat unexpectedly Mr Theo Huckle QC, who appeared for Mrs Lougheed on the appeal, contended, insofar as I understood his submissions, that the issue of local standards was here a distraction, because local standards are not determinative of the issue, and that the court may conclude that compliance with local standards amounts nonetheless to a failure to exercise reasonable skill and care. This approach was triply unexpected bearing in mind the common ground at trial, the lack of any Respondent's Notice and the circumstance that it did not feature in the skeleton argument prepared by Mr Arentsen for use on the appeal. Miss Sarah Prager, for On The Beach, who has very considerable experience in this area of law, assured us that this was an argument never heretofore advanced in this field.
8. Wilson v Best Travel was a case concerning the contractual liability of a tour operator under s.13 of the Supply of Goods and Services Act 1982. The Greek hotel at which the plaintiff stayed had glass patio doors fitted with ordinary glass, not safety glass, of 5mm thickness, which complied with Greek but not with British safety standards, which would have required the use of safety glass. In an oft-cited passage Phillips J said, at page 358:-

"What is the duty of a tour operator in a situation such as this? Must he refrain from sending holidaymakers to any hotel whose characteristics, in so far as safety is concerned, fail to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. 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. On the facts of this case I do not consider that the degree of danger posed by the absence of safety glass in the doors of the Vanninarchis Beach Hotel called for any action on the part of the defendants pursuant to their duty to exercise reasonable care to ensure the safety of their clients."

9. That case was concerned with safety regulations, as opposed to the standards adopted in routine maintenance and cleaning in order to ensure the safety of hotel guests. In principle however one would expect a common approach to both. Standards of maintenance and cleanliness vary as between countries and continents and indeed what is reasonably to be expected in a five star hotel in a Western European capital differs from what is reasonably to be expected in a safari lodge, however well-appointed. There may perhaps be certain irreducible standards in relation to life-threatening risks, but to expect uniformity of approach on a matter such as the frequency of inspection and cleaning of floor surfaces is unrealistic. An Englishman does not travel abroad in a cocoon.
10. Holden v First Choice Holidays and Flights Ltd 22 May 2006, unreported, was a case decided by Goldring J, as he then was, under the Regulations. Mrs Holden fell down some stairs in a hotel in Tunisia. It was found that she had slipped on some spilt liquid, probably a spilt drink. The question arose as to the standards to be required of the hotelier and whether a member of staff was required to be stationed to monitor spillages on the staircase. The judge held that the duty of care was that set out by Phillips J in Wilson v Best Travel. He held that it was for the claimant to prove that the defendant fell short of the standards applicable in Tunisia. The claimant had adduced no evidence of such standards and there was no material before the court on the basis of which inferences could be drawn as to the content of those standards. The Recorder in the court below had drawn inferences as to the standards applicable from evidence concerning the care received by the claimant in hospital in Tunisia, and from evidence as to the standards applied by another company in another hotel. Goldring J rejected that approach. At page 11D he said this:-

"It does not seem to me that one can infer a local standard from what may well be a higher standard in a particular hotel or by a particular company in particular circumstances. It is no substitute for evidence of what is local custom and what may be the local regulations."

11. In Evans v Kosmar Villa Holidays [2008] 1 WLR 297, a case decided under the Regulations, Richards LJ, with whom the other members of this court agreed, cited the passage above from the judgment of Phillips J in Wilson v Best and observed:-

"23. A claim such as that in Wilson v Best Travel Ltd would no doubt be put differently under the 1992 Regulations: since the tour operator is directly liable under those regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself rather than in the selection of the hotel and the offer of accommodation at it. But I do not think that this affects the principle laid down as to the standard to be applied to a hotel abroad, namely that the hotel is required to comply with local safety regulations rather than with British safety standards. That was the approach in Codd v Thomson Tour Operators Limited (Court of Appeal judgment of 7 July 2000), in which the claimant had been injured while travelling in a lift at a hotel in which he was staying in Majorca. The tour operator accepted that it would be liable (presumably under the 1992 Regulations) if negligence was established against those who were responsible for running and managing the hotel, but the judge found that liability was not established. The Court of Appeal dismissed the claimant's appeal, citing Wilson v Best Travel Ltd for the proposition that there was no requirement for the hotel to comply with British safety standards, and holding that there was no breach of local safety regulations and that there was no negligence by the hotel management either in relation to the maintenance of the lift or in relation to safety procedures."

12. In Evans the Court of Appeal decided that the hotel had no duty to guard the claimant, who was of full capacity, against the obvious risk of diving into the shallow end of a swimming pool. There had in that case been no evidence to support the pleaded claim of non-compliance with local safety regulations, and that way of putting the case was not pursued at trial. As Richards LJ observed:-

"24. In the present case, there was no evidence to support the pleaded claim of non-compliance with local safety regulations, and that way of putting the case was not pursued at trial. In my view, however, it was still open to the claimant to pursue the claim on the other bases pleaded in the amended particulars of claim. What was said in Wilson v Best Travel Ltd did not purport to be an exhaustive statement of the duty of care, and it does not seem to me that compliance with local safety regulations is necessarily sufficient to fulfil that duty. That was evidently also the view taken in Codd, where the court found there to be compliance with local safety regulations but nevertheless went on to consider other possible breaches of the duty of care."

13. Plainly compliance with locally promulgated safety regulations may not be the end of the enquiry. The regulations may be recognised locally as inadequate. There may be steps routinely taken to draw attention to risks tolerated by the local regulations, as for example the placing of a warning sticker on untoughened glass. One would not expect to find locally promulgated regulations governing the frequency with which a hotel floor should be either cleaned or inspected for the presence of spillages on which guests might slip. The standards by which the hotel is to be judged in its performance of such tasks as are unregulated, or where regulations are supplemented by local practice or are recognised to be inadequate must necessarily, and on authority, be informed by local standards of care as applied by establishments of similar size and type.
14. Gouldbourn v Balkan Holidays & Flights Limited [2010] EWCA Civ 372 concerned a claim under the Regulations by a novice skier who fell on a ski slope whilst on a skiing package holiday in Bulgaria which included six days instruction specifically designed for beginners at a local ski school. The main issue at trial was whether the ski instructor had exercised reasonable care and skill in his assessment, instruction and supervision of Mrs Gouldbourn. The trial judge concluded that the instructor's conduct had to be judged against the relevant local standards. There was no evidence as to the content of such local standards and the claim was accordingly dismissed. Referring to Holden, Leveson LJ, with whom Jacob LJ and Briggs J agreed, said:-

"18. This case has been taken to entrench the need for evidence of local standards and indeed in this case paragraph 1(d) of the Defence asserts that the relevant standard of care had to be judged by Bulgarian standards, and this contention was not challenged either in reply or the skeleton submissions filed on behalf of Mrs Gouldbourn at the trial. Neither is a breach of the FIS [Federation Internationale de Ski] rules pleaded. In any event, argues Mr Poole, the FIS rules are general principles rather than regulations adopted by all skiing nations as best practice. They establish the general duty of care, that is to say in this case the duty never to allow a pupil to take risks beyond their capabilities, but the implementation of that duty, namely how a particular country goes about ensuring it, is a question of local standards and arrangements and, given that (sic) the absence of any evidence on this topic notwithstanding the clear identification of the issue in the Defence, the claim is rightly dismissed.

19. It is a mistake to seek to construe the judgment of Phillips J as if it was a statute: see the observations of Richards LJ in Evans v Kosmar Villa Holidays PLC[2008] 1 WLR 297 at para 224 page 3068 to the effect that the case did not purport to be an exhaustive statement of the duty of care. Nevertheless it does identify a very important signpost to the correct approach to cases of this nature, which will inevitably impact on the way in which organisations from different countries provide services to UK tourists. To require such organisations to adopt a different standard of care for different tourists is quite impracticable. What might be required for American tourists may well be different to that required by a French or Western European tourist, itself different to that required by a Japanese tourist. Neither do I consider that the Regulations impose a duty on English tour operators to require a standard of care to be judged by UK criteria or necessarily western European criteria."

15. Finally Japp v Virgin Holidays Ltd [2013] EWCA Civ 1371 was concerned with local building regulations. Richards LJ, with whom Lewison LJ and I agreed, observed at paragraph 5 that:-

"The courts have been consistent in following the approach in Wilson v Best Travel Ltd as to the applicability of local standards, though the legal framework has been altered to some extent by the Package Travel, Package Holidays and Package Tours Regulations 1992, regulation 15 of which provides that "[t]he 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". As was observed in Evans v Kosmar Villa Holidays Ltd [2008] 1 WLR 297, para 23, since the tour operator is directly liable under the regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself rather than in the selection of the hotel and the offer of accommodation at it. Thus, the particulars of claim in the present case pleaded an implied term, among others, that "the hotel, including the glass doors, would be of a reasonable standard and reasonably safe and would comply with all applicable local safety standards and regulations"; and the defence effectively admitted that implied term, subject to the addition of the words "that were in force" at the end."

16. It follows that I cannot accept Mr Huckle's broad submission that local standards are a distraction and not determinative of the issue whether reasonable skill and care has been exercised. I would accept, as is obvious, that mere compliance with locally applicable regulations will not exhaust the enquiry, for the very reason that the locally applicable standards may recognise that such compliance is of itself insufficient. But I reject the suggestion that the English court can, if it finds local standards to be unacceptable, judge performance in that locality by reference to the standards reasonably to be expected of a similar establishment operating in England or Wales. Such an approach is neither sensible nor realistic. It is also precluded by authority.
17. In order to consider the grounds of appeal I must say a little more about the facts and the course of the action.
18. Immediately prior to the accident Mrs Lougheed was with her granddaughter Connie in the area of the hotel swimming pool. Mrs Lougheed had been reading a newspaper whilst drinking a cup of coffee. Connie said that she wanted an ice cream and Mrs Lougheed intended to accompany her to the reception area where evidently there was a shop at which ice creams were available. They passed from the swimming pool through an area sometimes used as a bar, although it was not in use as such at the time. The judge described it as a "secondary bar". On the side of the secondary bar farthest from the swimming pool is a landing. It was on the steps which lead down from the landing to the reception area that Mrs Lougheed slipped. There was a handrail on either side of the steps and, as I have already noted, non-slip grooves cut into the treads.
19. The judge accepted that hundreds of guests, both adults and children, used these steps on a daily basis and that the hotel had never had a similar accident. That evidence came from the general manager of the hotel, Mr Lazaro, who had worked there since 2001. He had been a hotel manager for thirty-three years by the time he gave evidence in 2013. It was also his evidence, although the judge did not refer to it, that whilst these stairs connected the reception area and this particular bar area, it was not the staircase normally used by either staff or guests proceeding from the swimming pool to the reception area. The Recorder summarised Mr Lazaro's evidence in that regard, whilst he was giving it, as "adults and children may in principle go from the pool down those stairs" to which Mr Lazaro responded "yes, they can. It is not an excluded area, it's not closed. On some occasions the staff had had to tell some guests not to come into the premises with wet feet and there are some signs saying so. On some occasions I have had to warn people not to."
20. According to Mr Lazaro the area in question, including the stairs, was cleaned daily at around 8 am at which time access was closed to guests. During the rest of the day the cleaning personnel and bar staff would be responsible for clearing up any water that might have accumulated on the floors and stairs, if needed, and they always used wet floor signs. [40]
21. The judge summarised Mr Lazaro's evidence, which he accepted, in this way:-

"41. Neither party called separate expert evidence as to local standards but Mr Lazaro had been working as a manager at various hotels for some 33 years and has been working at the hotel for at least 11 years. In cross examination he said that during the day (that is the 8 am cleaning apart) he would expect the bar staff to use "wet floor" signs where needed and to clear up if they see the floor is wet. He also agreed that there were no specific standards in Spain but accepted that hotel staff do have a responsibility to clean spillages once they are identified. If floors were left wet he would be critical not just of the staff involved but also, he added, the head of department."

22. The evidence as to specific standards was very limited. It consisted of the following question and answer, the question being posed by Mr Arentsen in cross-examination:-

"Q. There are no specific standards in Spain as to how regularly floors have to be cleaned?

A. Not as far as I know."

The cross-examination continued:-

"Q. But you do have a responsibility to clean spillages when they are identified?

A. Yes, once they have been identified, then you have to clean for the safety of the guests.

Q. And if your staff simply left the floor in a wet state, you would be critical of them?

A. Of course. Not just with themselves but with their head of department.

Q. Yes, it is an important thing that needs to be done, to keep the hotel safe?

A. Yes, indeed."

23. The judge rejected the possibility that Connie, who preceded her grandmother down the stairs, was the source of the water. He regarded it as more probable than not that Mrs Lougheed slipped on water which had come from some other user of the pool.
24. The judge accepted a submission of Mr Arentsen to the effect that on the facts of this case, where there is no divergence as to the standards between England and Spain because Mr Lazaro agreed that it was not acceptable to leave floors wet and that there were no specific standards in Spain, the court is driven, or at least entitled, to infer that the water on the floor was deposited there, or allowed to remain there, through negligence on the part of the hotel unless the hotel adduces evidence that it took reasonable care. Authority for that proposition was said to derive from the decision of this court in Dawkins v Carnival [2012] 2 Lloyd's Rep 1 which had in turn applied the principle which this court thought applicable to a supermarket floor in Ward v Tesco Stores Ltd [1976] 1 WLR 810. The judge's essential conclusion is to be found in his paragraph 49:-

"My task is not to compare the facts of other cases with the facts of this case but to apply established principles to the facts of the case. I have set out the legal framework in earlier paragraphs. The problem in this case, and it is not an easy one to resolve, is whether the circumstances are such that the claimant has adduced sufficient evidence to satisfy the court on the balance of probabilities that the hotel was negligent. In my judgment the Tesco principle would be engaged were this a hotel in England. The staircase was under the control of the hotel or its servants and the accident is such as in the ordinary course of things does not happen if those who have the management of the hotel use proper care. Further there was a foreseeable danger arising from the use of the stairs by children or even adults who had come fresh from the pool. No evidence was adduced as to any steps taken to address this danger or to implement the agreed requirement not to leave floors wet once identified. But this hotel was in Spain. That does not mean that the court is unable to assess the evidence in accordance with principles applied by English judges but it does mean that the court must approach the application of such principles with caution. Standards of care may be different in Spain; so on the same facts there will be some cases where the Tesco principle will not be engaged because the court is unable to draw an inference of want of care without sufficient evidence of Spanish standards. In this case I have clear evidence from the General Manager of the hotel, having 33 years of experience in the hotel business, that there were no specific standards in Spain relevant to the case and agreement with the proposition that it is not acceptable to leave floors wet. In the absence of binding authority to the contrary my assessment is that Mrs Lougheed has made out a prima facie case that the water that caused her to slip remained on the stair as a result of a failure to take reasonable care for her safety on the part of the hotel and that in the absence of a satisfactory explanation from the hotel as to how the accident happened without negligence, the court should infer that a breach of duty on the part of the hotel caused her injuries."

Ground 1. Did the judge wrongly rely on the evidence of the hotel manager as evidence of local standards?

25. This ground of appeal has to be seen in the light of the history of the action. In its Allocation Questionnaire the Defendant, On The Beach, indicated its wish to rely upon the evidence of an engineer. This was thought to be necessary in order to bring evidence of local standards before the court. At a case management conference on 8 February 2013 the Defendant sought permission to adduce evidence as to local standards, but the application was refused on the basis that it was for the Claimant to adduce such evidence as she needed to prove her case. It was not until 6 August 2013 that the Claimant applied for permission to rely upon evidence as to local standards. The application was for "permission to rely upon a written report from a Spanish lawyer to advise upon any relevant local Spanish regulations governing hotels and their duty of care towards guests, their systems of cleaning and inspection". Faced with that application the Defendant two days later on 8 August 2013 issued a counter application. That application was to the effect that if, and only if, the court was minded to grant the Claimant's application, then the Defendant sought permission to rely upon its own expert evidence on Spanish local standards and regulations. On 29 August 2013 the Claimant's application was refused by District Judge Veysey sitting at Portsmouth County Court on the ground that the trial was listed for 10 and 11 October 2013 and to have granted the application would have rendered it necessary to vacate the trial date. The trial therefore proceeded in the absence of any expert evidence as to local standards.
26. In these circumstances it is understandable that the Appellant feels aggrieved that the evidence of its own witness, not proffered as an expert, should have been used to fill a hole in the Claimant's case at trial. In fact I consider that the judge overstated the case when he said at [49] that Mr Lazaro's evidence was that that there were no specific standards in Spain relevant to the case. The leading question to which Mr Lazaro gave his assent related simply to standards as to the frequency with which floors should be cleaned. Agreement with the proposition that spillages, once identified, should be dealt with takes the matter no further at all. It begs the question as to the steps needed to be taken to identify spillages. What was missing at trial was any enquiry as to the general practice in establishments of this sort in Spain so far as concerns the monitoring of the public areas with a view to identifying and removing any spillages or areas of liquid which may pose a hazard to guests, and indeed to staff.
27. The judge recognised that standards may not be the same in Spain as in the UK and that there will be cases where the court is unable to draw an inference of want of care without sufficient evidence of Spanish standards. In my judgment this is just such a case, both because of the lack of relevant evidence on a point on which the Claimant bore the evidential burden, and because it was not a proper case in which to draw an inference, without more, of a lack of proper care. I deal separately with the second point under Ground 2 below. I would not however wish it to be thought that evidence of relevant local practice or standards can only be given by an expert witness called as such, or at any rate in the form of a report of an expert for the introduction of which evidence the permission of the court has been given. I agree with Miss Prager that it is ordinarily preferable that evidence of these matters should be given in that way, not least because both the opponent party and the court has the protection and the reassurance of the standard form of declaration given by any person who seeks to give expert evidence. A Claimant who chooses not to adduce such evidence in a case of this sort does so at his peril. That is not however to say that the evidence could not in an appropriate case be given by an appropriately experienced and qualified individual who nonetheless did not put himself forward as professing expertise in the field. Because cases are infinitely various, and the exigencies of litigation unpredictable, I would not wish to be over-prescriptive. However for the reasons I have given the point does not here arise because the evidence of Mr Lazaro did not in my view bear the weight which the judge put upon it.

Ground 2. Was the judge wrong as a matter of law to find that the Defendant bears any evidential burden of proof in cases of this nature?

28. In Ward v Tesco the court held that the circumstances were such as to cast on to the defendant an obligation to show, on the balance of probabilities, that the plaintiff would have slipped despite a proper system designed to give proper protection to customers against spillage. In that case the plaintiff slipped on yoghurt, spilled from a carton found in the vicinity which was two-thirds empty. As is obvious, such spillages happen in supermarkets as a result, inter alia, of customers inadvertently dropping items. The evidence in that case was that such spillages occurred about ten times each week, usually from broken squash bottles. That was in 1975. The accident happened in premises which formerly had been a cinema described by the court as a "large" supermarket. On duty in the store there were about 30-35 staff, although in the middle of the day that number was reduced because staff had to be relieved in order to enable them to get their mid-day meals. Lawton LJ said, at page 814:-

"Now, in this case the floor of this supermarket was under the management of the defendants and their servants. The accident was such as in the ordinary course of things does not happen if floors are kept clean and spillages are dealt with as soon as they occur. If an accident does happen because the floors are covered with spillage, then in my judgment some explanation should be forthcoming from the defendants to show that the accident did not arise from any want of care on their part; and in the absence of any explanation the judge may give judgment for the plaintiff. Such burden of proof as there is on defendants in such circumstances is evidential, not probative. The judge thought that prima facie this accident would not have happened had the defendants taken reasonable care. In my judgment he was justified in taking that view because the probabilities were that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff."

I confess to having some difficulty with this passage. Of course the accident would not have happened if the spillage had been dealt with as soon as it occurred. That however begs the question whether the staff ought to have seen the spillage as soon as it occurred. Perhaps in that case the inference that the spillage had been on the floor long enough for it to have been cleaned up by a member of the staff was justified because of the frequency of spillages of sticky substances and the number of staff on the premises. As Ormrod LJ pointed out in his dissenting judgment at pages 814/815:-

"The crucial question is how long before the accident the yoghurt had been on the floor. Had some customer knocked it off the shelf a few moments before, then no reasonable system which the defendants could be expected to operate would have prevented this accident. So I think that the plaintiff fails at the outset."

In Richards v WF White & Co [1957] 1 Lloyd's Rep 367 a dock labourer who was working on a ship in dock which was being loaded slipped on a patch of oil and injured himself. At the material time between 300 and 400 men in various trades were working on the ship. In the course of his judgment Devlin J said, at page 369:-

"If there had been evidence which showed that there was some danger, not perhaps of oil but some other danger, which was being left on the ship for two or three days, or anything of that sort, which the shipowners were doing nothing about, a prima facie case of negligence would be made out; but to make out a prima facie case of negligence in a case of this sort, there must, I think, be some evidence to show how long the oil had been there, some evidence from which it can be inferred that a prudent shipowner, who had a reasonable system of inspection for the purpose of seeing that dangers of this sort were not created, ought to have noticed it."

Ormrod LJ found that case indistinguishable from the facts in Tesco v Ward. Lawton LJ in Ward said that he doubted whether Devlin J intended to make any general statement of principle but that if he did he, Lawton LJ, did not agree with it. Megaw LJ agreed with Lawton LJ.

29. We are bound by the decision of the majority in Ward v Tesco Stores. It seems to me however that the premise of that decision is that it was proved that the defendant "knew that during the course of a working week there was a likelihood of spillages occurring from time to time." Lawton LJ so said at page 813B as did Megaw LJ at page 816A. The defendant also knew that the likelihood of spillage posed a danger to customers if the spillage was not dealt with quickly – see per Lawton LJ at page 813B and per Magaw LJ at 816B.
30. Dawkings v Carnival plc [2012] 1 Lloyd's Rep 1 was a similar case. It is not in my judgment of much assistance here because it concerned the Athens Convention on Carriage of Passengers and their Luggage by Sea (1974), incorporated into domestic law by s.183 of the Merchant Shipping Act 1995. That Convention imports a completely different regime of liability from that with which we are here concerned. However the relevant finding which in that case was said to bring Ward v Tesco into play was that the Claimant, a passenger on a cruise ship, slipped on liquid on the floor in the area of a drinks dispensing station. It was a place where there were likely to be spillages, as Pill LJ noted at paragraph 23(a) of his judgment. At paragraph 18 Pill LJ said this:-

"A high standard of care, by way of observation and prompt action, would be expected in this part of the ship in relation to the condition of the floor. The respondents accepted that high standards were required. Many members of staff were present in the Conservatory to assist passengers. The expectation was that spillages would be picked up almost instantaneously. There was, in my view, an evidential burden upon the respondents to show how long the water had been on the floor. On balance of probability, it can be inferred that it was a passenger rather than a member of staff who was responsible for the spillage. If, through another passenger's lack of care, it had been there only for a very short time, the respondents may escape liability. If, on the other hand, it had been there for a significant period of time, they were negligent in failing to have taken remedial action."

31. In my judgment the judge in our present case was not on the basis of the facts found justified in concluding that this was an accident such as in the ordinary course of things does not happen if those who have the management of the hotel use proper care. It was an accident which could have occurred despite the use of proper care, as would have been the case, for example, if the stairs had become wet only very shortly before Mrs Lougheed negotiated them and before the wetness had or ought reasonably have come to the attention of the hotel staff.
32. I do not consider that this was an appropriate case for the invocation of the Tesco v Ward principle, if such it is. There was no finding that spillage or the presence of water was likely in this area. The judge did say that "there was a foreseeable danger arising from the use of the stairs by children or even adults who have come fresh from the pool". That however falls far short of a finding that the hotel knew of the likelihood of a dangerous situation arising. Not everything which is foreseeable is likely. There was here no evidence that slipping at this place was a known likely risk, with sufficient frequency of occurrence that it required a system to remove it, so that an accident could be inferred to be the result of the absence of a system which ought to have been in place or a failure in the operation of the system.
33. Miss Prager pointed out that both Ward and Dawkins were cases in which an evidential burden was cast upon the party in control of the relevant area, the operators of the supermarket and the operators of the cruise ship. She contended that it is inappropriate to cast a similar evidential burden upon a party such as a travel agent or even a tour operator who has no control over the management of the hotel at which customers are staying. I agree with Miss Prager that to impose an evidential burden of this sort may create difficulties for those potentially liable under the Regulations. Given however that paragraph 15(1) of the Regulations expressly makes a party liable irrespective of whether the relevant obligations are to be performed by that party, this consideration cannot be an absolute bar to the court, in a proper case, inferring that an accident would not have occurred but for the absence of proper care on the part of those for whose performance "the other party to the contract" is made liable. However that "quasi-vicarious" liability was described by Mr Arentsen in his skeleton argument as an "artificial liability". That is in my view a very good reason for not imposing upon a party such as On The Beach an evidential burden, such as the judge did here, unless it is at the least shown that the party for whose performance it is liable knew of the likelihood of the presence of a hazard such as spillage and of the danger to consumers which that hazard posed if not dealt with promptly. Here the judge was justified in finding established the second of those prerequisites, but he did not find established the first.
34. For these reasons I would allow the appeal and set aside the Order of 31 January 2014 giving judgment to Mrs Lougheed in the sum of £30,000. I would dismiss her claim.
35. By way of postscript, it is not in my view inappropriate to remind oneself that it is possible to insure against the risk of sustaining personal injury, particularly whilst on holiday. Indeed there was reference here in the evidence to the circumstance that Mrs Lougheed enjoyed the benefit of insurance so far as concerned her medical expenses, although we know not whether her insurance extended further benefits or whether this is in whole or in part a subrogated claim. Insurers are no doubt accustomed to rating the risk of personal injury run by holidaymakers and others. They may be much less accustomed to rating the potential risk of liability of the organisers of package holidays, and to impose upon such organisers liability for accidents which are not proved to be the consequence of a failure properly to perform contractual obligations simply compounds the problem and no doubt results in an increase in the cost of such holidays.

Lord Justice Floyd :

36. I agree.

Mr Justice Ouseley :

37. I also agree.