English and Welsh Courts - Miscellaneous

IN THE BIRMINGHAM COUNTY COURT

		27th May 2010

Introduction

1. This is a judgment in a fast track trial where the evidence was heard on 7^th April 2010 followed by detailed written and oral closing submissions on 27^th May 2010.
2. The Claimant is an active 84 year old lady. On Saturday 8^th May 2004 (6 years ago), she travelled with her friend Iris George to Bulgaria on a package holiday booked with the Defendant tour operator in order to relax and play bridge. The package included 14 nights' accommodation at the Hotel Lunar in Golden Sands, Bulgaria, ["the Hotel"]. The Package Travel (Etc) Regulations 1992 applied as between the parties. The holiday contract was governed by English law and the Defendant's standard booking conditions.
3. The Hotel is a 4 star property constructed in 1998 and comprehensively refurbished in 2003. It has 265 en suite rooms over six floors and accommodates around 65,000 guest nights per year. The facilities include an indoor swimming pool with a flight of five wide curved steps leading down to the pool area. The steps were constructed in their current form in 1998.
4. There is no dispute that shortly before dinner on the day following their arrival (6.20pm Sunday 9^th May 2004), the Claimant and Mrs George walked down a long corridor, which took them to the indoor pool area. This was the first time either the Claimant or Mrs George had been to that area of the hotel. As the Claimant made her way towards a handrail to the right of the steps, she did not realise that the steps began when they did. As she put her foot down to walk forwards, she missed the first step and fell down the steps painfully breaking her left arm in two places (ulna & radius).
5. The Claimant and Mrs George both gave evidence that there was little indication where the steps began and that two days after the accident (Tuesday 11^th May 2004) they witnessed workmen applying green tape to the edge of each step in order to make them easier to see.
6. The Defendant alleges that (a) the steps were clearly marked with green tape at the time of the accident but (b) there was, in any event, no obligation upon the Hotel to have done so and (c) the steps complied with all applicable Bulgarian regulations: the National Building Control Office issued the Hotel with a licence for use in December 2003.

Law

7. There is no dispute that the legal matrix for this "Package Holiday claim" is to be found within Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 ("the Regulations") . Regulation 15 provides:

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.

8. It is accepted by both sides that the Claimant's holiday contract came within the Regulations. It is accepted that the Defendant is liable, pursuant to Regulation 15 of the Regulations, for the proper performance of the holiday contract, whether the obligations under the contract were performed by it or by the hotel management and staff. This is confirmed by the Defendant's booking conditions, which effectively reflect Regulation 15. As stated by Richards LJ in Evans v. Kosmar Villa Holidays [2008] 1 WLR 306 in paragraph 23:

"A claim such as that in Wilson v. Best Travel Ltd [1993] 1 AER 353 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 offer of accommodation of it. But I do not think it 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 British safety standards".

9. The Regulations do not impose strict liability and do not avoid the need for the Court to ascertain what obligations were in fact owed by the Defendant under the holiday contract. As stated by Longmore LJ in Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 at paragraph 15:

"…it is a requirement 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 e.g. 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 care and skill will be used in the rendering of the relevant service".

10. Lord Justice Richards in Evans [supra] went on to explain in paragraph 24 that a Claimant (and the Court) was not constrained where "there was no evidence to support the pleaded claim of non-compliance with local safety regulations …. it was still open for the claimant to pursue the claim on other bases…. What was said in Wilson v. Best Travel Ltd did not purport to be an exhaustive list 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 the view taken in Codd, where the court found there to be compliance with local safety regulations but nonetheless went on to consider other possible breaches of care".
11. Recently, the Court of Appeal has endorsed this approach and that of the trial judge in Gouldbourn v. Balkan Holidays Ltd [2010] EWCA Civ 372 where HH J Worster had said "This is not a case of simple breach of local and international regulations but whether an instructor exercised reasonable care and skill. That is to be judged against the prevailing local standards."
12. It is also common ground that Section 13 of the Supply of Goods and Services Act 1982 is necessarily implied into the package holiday contract i.e. the supplier will carry out the service with reasonable skill and care. This standard is assessed, insofar as the relevant service is rendered by the hotel, by reference to local standards.
13. As submitted by Mr Poole for the Defendants, the Hotel was the subject of inspections by the National Building Control Office ("NBCO"), which is the body responsible for inspecting hotels in Bulgaria to ensure that they comply with all applicable regulations. NBCO inspected the hotel in June 1998 and issued a licence for use on 6 July 1998. NBCO inspected the Hotel again following the refurbishment works in June 2003 and issued a licence for use in December 2003. As stated by the joint expert Bulgarian lawyer, Ms Galina Andreeva, the issuance of the use permits certifies that the building was found to meet all applicable regulatory requirements. In her initial report dated 16 November 2009 Ms Andreeva identified two potential breaches of local standards, namely the lack of a handrail on the left side of the steps and the lack of green and/or anti-slip tape on the edges of the steps. Upon being asked questions by the Defendant, Ms Andreeva confirmed that: (i) the requirement for a second handrail would only apply if the pool area had a capacity of 50 people or more. (There is little evidence on this and it appears that the capacity is no more than 27 people); (ii) there is no requirement that the edges of the steps should be a particular colour. The Court is not going to go behind the certificate as there is no evidential challenge to its efficacy. It is therefore otiose to consider Bulgarian building regulations and the report of Ms Galina Andreeva further in that regard.
14. Therefore for the Claimant to succeed on liability in this case, she needs to establish that the hotel's management or staff were negligent when judged against local prevailing standards in not protecting against the kind of accident she sustained. In this case, there is no code of practice nor evidence available from Bulgarian hoteliers or other experts to guide the Court. The only evidence comes from the Defendants themselves as to the standards established by them for their elderly customers visiting this health spa hotel.

Facts

15. Despite her age and the lamentable passage of time since her accident, the Claimant gave clear and consistent evidence about her fall and the missing green tape. She told the court that she "did not realise that the steps began where they did because the pathway was tiled in exactly the same way as the steps. There were no markings on the edge of the steps to highlight the fact that they began there and there was no warning sign. The steps were very wide and they were curved in a sort of half moon shape. … I thought I was still walking on the pathway when in fact I had completely missed the fist step." She complained to the Manageress who agreed with her saying she too thought that the steps were "hazardous". The next day she observed that "there were workmen applying green tape to the edge of each step in order to make them easier to see."
16. Her evidence was corroborated in detail by Mrs Iris George. Both witnesses gave very clear evidence that was maintained in cross examination of three separate visits to the steps by both of them: first, at the time of the accident itself; secondly, on the next day in the company of the hotel manageress, who admitted that the steps were dangerous according to both witnesses; thirdly, the day after, when both witnesses saw workmen applying green reflective tape to the steps. Both these elderly witnesses demonstrated an impressive recollection of the essential details of the accident which was wholly unshaken in detailed skilful cross-examination. In my judgment they were patently honest witnesses and unambiguous in their evidence.
17. In addition, the Claimant has been totally consistent at all times since then. She gave the same account in the relatively contemporaneous Guest Comments Form dated 20^th May 2004 and in her initial letter of complaint on 17^th June 2004.
18. By contrast, despite informing the Claimant that 'we are currently conducting a full investigation into the issues you have raised' [letter 21^st June 2004]] and then reassuring her 'that we are treating this matter as a priority and that we are still conducting our investigation' [letter 23^rd August 2004], the Defendant finally wrote to the Claimant on 2^nd December 2004 and said: 'Having reviewed this file again we would confirm that we do feel that our previous replies do explain our position on this matter quite clearly.'. At no point in this correspondence did the Defendant advance the case that the green tape was in position on the step at the time of the accident, despite claiming to have conducted a full investigation into the matter. In fact, the only time that this defence was raised after the accident was in the Guest Incident Report which was completed on 20^th May 2004, 11 days after the accident and 9 days after the green tape was applied according to the evidence of the Claimant and Mrs George. This form was apparently written immediately after the Claimant completed the Guest Comments Form. The forms are obviously inconsistent, but the Defendant's representative, Antonia Mievyna, signed them both, apparently without querying the two different accounts, without identifying the source of her information and without bothering to find out whether they could be reconciled, for example by investigating whether the Claimant's claim that the green tape was applied only after the accident was correct or not. The fact that she stated in the Guest Incident Form that there were no witnesses to the accident, whereas it could easily have been established that Mrs George was a vital witness, indicates that the form was completed without much care or proper investigation.
19. The Defendant called no witness to rebut the admission by the hotel "manageress" as alleged by the Claimant and Mrs George.
20. Lazko Jardanov, the Hotel Manger was the only live witness called by the Defendant. He did not witness the accident and he does not feature in the limited paper trail concerning this accident. Even allowing for the difficulties he had in speaking through an interpreter, he presented himself as a wholly unsatisfactory witness, who was clearly attempting in his oral evidence to present favourable evidence on behalf of the Defendant, regardless of whether this evidence was truthful or not. He claimed under pressure in cross examination that he had himself spoken to Bonka Kazandzhieva, the pool attendant employed by the Hotel Luna, shortly after the accident and she had assured him that she had applied new green tape to the steps before the accident. He also claimed that he had himself inspected the scene of the accident soon after it had happened, but neither of these assertions was made in either of his witness statements, despite the obvious importance of this evidence. He could provide no explanation for their omission, when invited in cross-examination to do so.
21. He also admitted in oral evidence that what was stated in the Civil Evidence Act Notice of 22^nd August 2008, namely that Bonka Kazandzhieva, the pool attendant, was 'unable to give evidence as she cannot be located and is beyond the seas' was untrue and that she was in fact still working at the Hotel Luna and could have attended the trial to give oral evidence and to be cross-examined. Mr Jardanov did not explain in his oral evidence how this untruthful Notice came to be produced and no explanation has been forthcoming from the Defendant's solicitors since 7^th April 2010. Adopting the guidance provided by the Court of Appeal in Welsh v. Stokes [2008] 1 WLR 1224, in which it was held that where a case depended entirely on hearsay, the court would be particularly careful before concluding that it could be given any weight. In addition, Section 4 of the Civil Evidence Act 1995 requires the court to have regard to certain listed factors in estimating the weight (if any) to be given to hearsay evidence. Those factors include: (a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the statement as a witness; (b) whether the original statement was made contemporaneously with the occurrence; (d) whether any person involved had any move to conceal or misrepresent matters and (f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight. There was no good reason why Ms Kazandzhieva could not have attended to give oral evidence. Her statement is undated but appears to have been made more than 4 years after the events that it describes. She had a strong motive to conceal her own failure to do what her contract required her to do. The fact that an untruthful Civil Evidence Act Notice was produced to justify her non-attendance tends to indicate that the operator of the Hotel Luna was attempting to prevent proper evaluation of her evidence. Accordingly, the court gives the disputed parts of her evidence no weight at all.
22. Evidence adduced by the Defendant on this issue probably explains how the green tape was absent. Lazko Jardanov admitted in his 1^st witness statement that the Hotel Luna was extensively refurbished in 2003 and that the green tape on the steps to the indoor swimming pool was damaged during construction work and had to be replaced. In her undated statement, Ms Kazandzhieva states that it was her duty to replace the tape 'at the beginning of each tourist season' which she states would have been in April. Mr Jardanov said in his oral evidence that the season opened at the beginning of May. It is therefore very likely that this job was either overlooked, or had not yet been done, by the time of the Claimant's accident, which was only 9 days after the start of the season.
23. In my judgment, the green tape was not present at the time of the accident but was fitted subsequently because the unidentifiable hotel manageress considered the steps to be "hazardous".

Improper performance/breach of duty

24. There was a combination of reasons why these steps were admittedly "hazardous". First, the path and the steps were of very similar colour and texture as the Claimant pointed out. Secondly, they did not have a straight edge but were "moon curved", as the Claimant put it, thereby making it difficult to establish just where the edge was whilst walking towards the first step. Thirdly, the position of the handrail on the right hand side did not align with the edge of the steps so as to mislead the unwary and first time visitor such as the Claimant.
25. I have no doubt the steps without the green tape were in fact a "hazard" and were duly admitted by the Bulgarian Hotel management as such to the Claimant at the time of the accident in May 2004 i.e. the Hotel management admitted that they fell below Bulgarian standards.
26. The Court is further informed about Bulgarian hotel standards of reasonable care by the fact that Ms Kazandzhieva was obliged, as a term of her employment contract, to fix green tape to the edge of the steps before the start of the holiday season and that she had not done so in breach of her employed duties. Articles 49 -51 of the Bulgarian Law on Contracts and Obligations would make the employee and the Hotel liable to the Claimant for her fall and for compensation for damage for the consequences of the tort, according to Galina Andreeva. Furthermore, according to her, under Article 39 of the Tourism Act the tour operator is liable in Bulgarian Law for the breaches by the Hotel and its employee.
27. The obligation to affix green tape to the steps was admitted by Mr Jardanov and by Ms Kazandzhieva in their witness statements. It is also clearly set out in Ms Kazandzhieva's job description regarding "safety" of the steps, as explained in his oral evidence by Mr Jardanov. As a minimum, reasonable skill and care must therefore extend to the performance of those services which the Defendant's suppliers had committed themselves to providing.
28. Further and independently of Ms Kazanzdhieva's employment contract, liability is made out on the basis of Mr Jardanov's written evidence, as elaborated in his oral evidence, in relation to his German tour operator client, ITS as well. In paragraph 6 of his 1^st witness statement evidence he explained that the green tape was applied 'at the request of ITS'. In cross-examination, he explained that ITS made this request, because it had a number of elderly clients and they found it difficult to see the steps when they were on their way to the indoor swimming pool and had removed their spectacles. In other words, even if he had not realised it already, this request must have put Mr Jardanov on notice that the steps represented a foreseeable danger to hotel guests. The Claimant was in exactly the category of elderly guest for whom this basic safety feature should have been provided. Therefore, the exercise of reasonable skill and care on his part required that the tape should be provided at all times when the hotel was open to guests.
29. The fact that green tape was affixed to the edges of the steps after the hotel manageress admitted they were "hazardous" confirms liability in my judgment. It is accepted that, without more, "The fact that [the occupier] took that action after the accident does not enable me to draw the inference that, in order to discharge the common duty of care [to the claimant] they should have done so before the accident occurred", per Kennedy LJ in Staples v West Dorset DC [1995] P.I.Q.R. P439 at 445. A hotel might seek to improve standards as a response to an accident is not necessarily evidence that the earlier condition of the steps was inadequate but here it quickly followed an admission of "hazard" on the previous day. It was not, as submitted by the Defendant, a coincidental compliance with the requirements of ITS rather than to improve safety.
30. In my judgment, the steps without clear edge marking such as green tape were a foreseeable "hazard" falling below the prevailing local standards and there was an improper performance of the contract by the Defendant.

Causation

31. I accept the evidence of the Claimant that if the green tape been fixed to the step she would have seen it and not missed her footing and fallen.

Contributory Negligence

32. This step without the edge marking or any warning of its presence just inside the entrance constituted a "trap" for the first time unwarned visitor such as the Claimant. No blame whatsoever can be placed upon her.

Damages

33. The quantum of general damages for pain and suffering and loss of amenity has been agreed by the parties at £7,500 inclusive of interest.
34. The Claimant's claim for special damages is pleaded at £9,627.91, inclusive of interest up to 31^st December 2006.
35. The Claimant has offered to reduce the claim for care by 25% from £7.94 to £6 per hour to take account of its non-commercial nature, which would reduce the value of this head of claim to £612, which is reasonable.
36. Leaving aside the claim for a second hand automatic car, the claim for additional expenses amounts to £518. The Claimant has reduced the travelling expenses claim to £99. The sums therein claimed are reasonable making a rounded total of £500.
37. The Claim for a new replacement automatic car in exchange for her old manual car to cater for her arm disability needs to allow for betterment. The Claim of £6,994 is excessive and the Defendant's offer of £750 is inadequate having put the Claimant in this position because of her disability. It is a well-known fact that automatic vehicles are always more expensive that manual vehicles, both to purchase and to maintain. The Claimant's evidence in her 2^nd witness statement was that, but for her accident, her previous car would have lasted for the rest of her life. Although that car was quite old, it was of low mileage and thus reliable. It was therefore reasonable for her to require a reliable, low mileage replacement. The car actually purchased was probably more expensive than was strictly necessary, but her duty to mitigate is not a very exacting one and the choice of vehicles in a rural area is very limited. In my judgment, a fair sum is £2,500.
38. I find that the special damages is therefore as follows:

Personal care:	£612.00
Additional expenses:	£500.00
Alternative vehicle:	£2,500.00
Interest up to 19.12.2006 (reduced for lower care claim):	£566.36
Interest up to 27.5.2010 (14.2%)	£515.43
Total:	£4,693.79

39. The Claimant also claims damages for (1) diminution in value and (2) loss of enjoyment. Since the accident happened on the 2^nd day of a 14 day holiday, the main purpose of which was to play bridge in congenial surroundings and the Claimant's evidence is that she was only able to play 4 games unsuccessfully before abandoning the attempt and that she could not swim either, the damages for diminution in value should be near the full undiscounted cost of the holiday, which was £540. I accept the Claimant's suggestion of a figure of £360 for diminution in value i.e. 66.66%.
40. Similarly, the award for loss of enjoyment should be substantial in view of the fact that the Claimant painfully lost almost the whole intended benefit of the holiday.
41. In the light of the recent guidance provided by the Court of Appeal in the case of Milner v. Carnival Plc [2010] EWCA Civ 389, the figure of £500 suggested by the Claimant is reasonable.
42. The total award of damages is therefore £13,053.79, inclusive of interest.

Costs

43. No submissions have as yet been made on costs and any Part 36 offer has yet to be drawn to the Court's attention. Subject to that, this is a case where the Defendant as the unsuccessful party should pay the costs of the successful Clamant.
44. This case was issued on 10^th May 2007 and allocated to the Fast Track on 7^th July 2008. Therefore Fast Track Trial Costs CPR 46 will be applicable and the Court will have to summarily assess them.
45. Notwithstanding the extremely high quality of the advocacy and excellent preparation of the case by solicitors on both sides as well as the extraordinary complexity of Holiday Law, it was a great shock post the Jackson Review on Costs, to see the costs' schedules submitted by both parties. The Defendant has apparently spent £44,629.51 whilst the Claimant has spent £61,547.92 on contesting a claim of £13,053.79 i.e. disproportionately 3.5 and 4.75 times the value of the claim.
46. Unless the parties can agree a reasonable order regarding costs (or the parties agree to the case being transferred to multi track so a detailed assessment can take place), there will regrettably have to be a summary assessment hearing before me when the Judgment is formally handed down with skeleton arguments/submission being exchanged and filed before hand.

HH Judge Simon Brown QC
27^th May 2010