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Cite as: [2005] ScotCS CSOH_164, [2005] CSOH 164

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Cheesman v. International Travel Service Ltd [2005] ScotCS CSOH_164 (08 December 2005)

OUTER HOUSE, COURT OF SESSION

[2005] CSOH 164

PD1417/04

OPINION OF LADY PATON

in the cause

DIANA CHEESMAN

Pursuer;

against

INTERNATIONAL TRAVEL SERVICE LIMITED

Defenders:

________________

Pursuer: R N Thomson, Advocate; Anderson Strathern,WS

Defenders: Wallace, Advocate; McKay Norwell, WS

8 December 2005

Proof or jury trial
[1] In September 2001, the pursuer injured her right ankle when she tripped on loose carpeting in a bus travelling on an excursion over the Simplon Pass to Zermatt. She seeks damages from the defenders, a travel company called International Travel Service Limited. The defenders oppose the pursuer's motion for a jury trial.

Procedural history
[2] The pursuer enrolled a motion in term of rule 43.6(5)(c), seeking a jury trial. The motion came before the court on 11 January 2005. During the debate, counsel for the pursuer was given new information, and as a result, moved to amend the pursuer's pleadings. An amendment procedure then took place. The pursuer's continued motion for issues came before the court on 24 November 2005.

The amended pleadings
[3] The pursuer avers inter alia:

"Stat. IV. In early August 2001 the pursuer's husband contracted with International Travel Service Limited ('ITS') for the provision of a holiday in Lake Maggiore, Italy for himself and the pursuer, tour reference SC.LM. He did so by completing a booking form at the rear of an ITS brochure which gave details of holidays organised and operated by the defenders including the tour in question. A further copy of the said brochure with its form intact is produced. The defenders contracted with the pursuer to provide the services of an ITS tour manager in Italy. The tour manager in Italy was supplied by Verbano Viaggi Agency. On or around 9^th September 2001, the pursuer and her husband arranged to take an optional excursion to the Simplon Pass and Zermatt as part of the said holiday. That optional excursion had been described in the brochure, and in the itinerary sent to the pursuer before the holiday commenced. At the welcome meeting for the tour, the said tour manager, Frederica Zambonini, advised that a change had been made to the itinerary in that the said optional excursion had been changed from the Wednesday to the Friday. Along with many others on the tour, the pursuer and her husband booked the excursion and paid cash for it. The said booking and payment was made to Ms Zambonini in her capacity as tour manager. She was employed by Verbano Viaggi Agency, the local agents for the company. However in her dealings with the pursuer and her husband and other guests in the hotel travelling on the defenders' tour, she held herself out as the defenders' tour manager rather than as a representative of the Verbano Viaggi Agency. The pursuer, her husband, and others, contracted on the representation and understanding that they were exercising the option to take the excursion described in the contract. Ms Zambonini as ITS tour manager was a general agent for the defenders. The defenders had held her out as their general agent in the contractual documentation. Esto she did not have actual authority to sell the excursion to the pursuer and her husband on behalf of the defenders, which is denied, she had ostensible authority to do so. The coach excursion was supplied by the said agency on behalf of the defenders. On Friday, 14^th September 2001 the pursuer and her husband were travelling to Zermatt by coach as part of the said excursion. They were seated at the rear of the coach. As the pursuer was unable to hear the commentary due to the loud air conditioning fan noise, she decided to move to a different seat, nearer the front. As she did so, she tripped on loose carpet in front of the rear seat and fell heavily in the aisle, sustaining the loss, injury and damage hereinafter condescended upon. The nature of the defect, including its size and the presence of fraying, indicated that it had been present for some time and certainly a matter of days. Further and in any event, there had been no opportunity for it to have been caused during the excursion prior to the accident. There would have been ample opportunity, prior to commencement of the excursion, for drivers, excursion guides, or cleaners, or any other such personnel, to see the defect and procure its repair. It presented an obvious danger and repair should have been effected before any further use of the coach by passengers was permitted. After the pursuer's fall, and during the said excursion to Zermatt, the said loose carpet was secured with a plastic strip which was nailed and clipped to the step. During the excursion the tour guide obtained an ice pack for the pursuer to put on her ankle. On returning to Baveno, the pursuer was accompanied by Ms Zambonini to the chemist for advice. The pursuer purchased ointment which she used as directed. The tour guide and Ms Zambonini were accordingly fully aware of the injury and its cause. However, the pursuer did not seek to make much of the matter because she hoped that she had only sustained a sprain.....

Stat. VII. The pursuer's claim is based upon the defenders' breach of said contract, breach of Regulations 15(1) and 15(2) of The Package Travel, Package Holidays and Package Tour Regulations 1992, and fault and negligence at common law."

[4] At page 11A-D of the Record, the defenders aver inter alia:

"Verbano organised an additional tour to Zermatt on Friday, 14^th September 2001 at their own instance. The Wednesday, additional Friday and Saturday tours were contracted by interested parties at their option directly with Verbano. Payment would have been made direct to Verbano through the tour manager in Italian lire. In such transactions Verbano were not acting as agent for the defenders. The defenders received no remuneration or commission from Verbano. The tour parties of the defenders were free to organise excursions of their choice from a variety of local agencies. Local agencies other than Verbano provided excursions to Zermatt. Verbano sold tickets for their excursions to the general public and the tour parties of other tour operators. Neither Ms Francis, Ms Zambonini or Ms Wise have any knowledge of the pursuer or her husband travelling to Zermatt on a coach tour during the period 9^th to 16^th September, 2001. They have no knowledge of any accident being reported....."

The contract terms

[5] The brochure: The defenders' brochure (page 6) described the pursuer's 8-day Lakelands holiday based in Baveno, together with certain excursions. One excursion was described as an "included excursion", but two others (including the excursion to the Simplon Pass and Zermatt) were described as "optional excursions". The brochure explained that the package holiday price of £776 plus £23 pre-payable taxes did not include the optional excursions. The package holiday price did however include the services of an ITS tour manager in Italy.

[6] The brochure (page 15) set out certain contract conditions. Clause 2 of the conditions provided:

"2. Our responsibilities. We accept responsibility for ensuring that the services which we contract to provide are supplied and to a reasonable standard, unless prevented by circumstances amounting to force majeure. We also accept responsibility for any loss or damage you may suffer as a result of the negligence of our employees or agents. Accommodation, transport and services are provided by independent suppliers for whom we will accept responsibility on the terms set out as follows. If you or your party suffer death, bodily injury or illness arising from negligence of our suppliers (other than by air, rail and sea carriers performing any domestic, internal or international carriage of whatsoever kind for whom we accept no liability), their sub-contractors, servants and/or agents, we will accept responsibility provided they were acting within the scope of, or in the course of their employment when the accident occurred.....

Should you or any other member of your party suffer illness, personal injury or death through any misadventure arising out of an activity which does not form part of your holiday arrangement nor part of any excursion sold through us, we shall offer you every assistance we can. This includes advice, guidance and initial financial assistance where appropriate up to the limit of £5,000 per booking form...."

[7] Clause 3 of the conditions provided:

"3. If we change your booking. Arrangements for our tours are made many months in advance and very occasionally changes have to be made to some aspects of the tours. For instance timing of events or transport services may change or an hotel may close. Any changes that do occur are usually minor ones and we will inform you of them as soon as possible. Should any change alter significantly the nature of the tour, we will inform you as soon as possible, and we will offer you an alternative and pay compensation where applicable, as stated below.

Minor changes. Sometimes due to operational problems, a minor change may be necessary. You will be informed as soon as possible, although no compensation will be offered...."

[8] The brochure (page 14) also contained a paragraph entitled "Brochure accuracy", which was in the following terms:

"At the time of going to press the information given in this brochure is correct. However it is possible that hoteliers may decide to change facilities, restaurant owners may decide to take a break, flight timings may change or a hotel close down. Day to day itineraries may change as a result of local conditions and certain facilities including optional excursions may be withdrawn due to lack of demand, weather conditions, essential maintenance work or other circumstances over which we have no control. When we are told of any significant changes we will always endeavour to let you know prior to departure."

[9] The itinerary: A further document, the itinerary, described the optional excursion to the Simplon Pass as taking place on Wednesday 12 September. The itinerary further provided:

"Price: Lir 97,000 per person including coach and mountain rail journey. Payment direct to your tour manager whilst on tour."

The Package Travel Regulations 1992
[10] The Package Travel, Package Holidays and Package Tours Regulations 1992 (S.I. 1992 No. 3288) provide:

"Interpretation

2.(1) In these Regulations -

... 'the other party to the contract' means the party, other than the consumer, to the contract, that is, the organiser or the retailer, or both, as the case may be; ...

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 the fault of that other party nor to that of another supplier or 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

(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 has 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...."

Submissions for the pursuer
[11] Counsel for the pursuer moved the court to allow issues. It was accepted that the jury would have to make decisions on questions of mixed fact and law: for example, what constituted the package holiday contract between the parties (including whether and to what extent the itinerary formed part of the contract); whether the optional excursions were part of the contract or whether they were separate contracts with local operators; whether the optional excursion to the Simplon Pass, once rearranged from Wednesday 12 September to Friday 14 September, remained part of the package holiday contract on the view that the contract envisaged alterations in times and dates; whether the Verbano Viaggi agency were the defenders' general agents in Italy; whether their employee Miss Zambonini, when arranging and accepting payment for the Simplon Pass trip on Friday 14 September, was acting on the basis of actual authority given to her by the defenders, failing which, whether she had ostensible authority to act on behalf of the defenders; whether there had been any negligence on the part of the defenders' agents or suppliers; whether the sub-contractor coach company who had supplied the coach were agents or suppliers of the defenders; whether the circumstances of the pursuer's accident gave rise to liability on the part of the defenders in terms of clause 2 of the package holiday contract and/or regulation 15 of The Package Travel Regulations 1992.

[12] Counsel envisaged the jury being directed that, if they formed a certain view of the facts, certain legal consequences would follow; but if they formed another view about the facts, certain other legal consequences would follow. Counsel submitted that the questions arising were not too complex for a jury. The jury would have the assistance of directions in law from the judge. Questions of mixed fact and law did not per se mean that the case was unsuitable for a jury. Many "accident at work" cases involving mixed questions of fact and law were sent to jury trial.

[13] Counsel referred briefly to Higgins v. DHL International (UK) Ltd., 2003 S.L.T. 1301. Unlike Higgins, the present case was a straightforward one, eminently suitable for a jury. The pursuer had a right to a jury trial, unless the defenders demonstrated special cause. No special cause had been demonstrated, and issues should be allowed.

Submissions for the defenders
[14] Counsel for the defenders submitted that the action was not a simple personal injuries action suitable for a jury. The case concerned complex facts and relationships. The true wrong-doer might be the bus-operator whose identity was unknown. Questions arose as to what constituted the contract between the pursuer and the defenders; how that contract should be construed; the proper construction of the word "supplier" in the 1992 Regulations; whether, when accepting the pursuer's booking for the Simplon Pass excursion, Miss Zambonini was acting as agent for the defenders with actual authority, or alternatively with ostensible authority; whether that excursion represented a contract entered into with the defenders, or with another party; the identity of such other party (for example, the bus-operator, or the Verbano Viaggi Agency). Many questions could only be resolved once certain issues of fact had been decided. Against that background, it would be difficult for the judge to formulate intelligible directions.

[15] There were clear disputes between the parties which would have to be resolved. For example, the defenders did not agree that the itinerary formed part of the contract. The itinerary was a document which was issued after the contract had been constituted. The itinerary might conceivably assist in the construction of the contract if the contract were ambiguous.

[16] Furthermore, it was the defenders' contention that, on a proper construction of the package holiday contract, the optional excursions were simply available to customers in the same way as shopping facilities or swimming facilities might be available. The optional excursions did not form part of the package holiday contract. They did not give rise to any rights or obligations. They were not contractual options such that failure to perform them could result in a claim for breach of contract. Counsel drew attention to the wording at the end of the description of the second optional excursion on page 6 of the brochure: "Your tour manager may have other optional plans during your stay." There was no suggestion that such further optional plans were included in the package holiday contract. The instruction to pay the tour manager in respect of the optional excursion supported the proposition that the client was being invited to contract directly with other individuals. Thus questions of fact required to be decided before questions of law could be resolved.

[17] Further the defenders did not accept that the Verbano Viaggi Agency were the defenders' local agents. The defenders had no knowledge of the pursuer and her husband paying cash to Miss Zambonini for an excursion on Friday 14 September. The defenders had no knowledge of any accident involving the pursuer. The question of Miss Zambonini's capacity when she accepted payment from the pursuer and her husband for the Friday excursion was far from clear. Evidence would be required before any decision could be made about actual (failing which ostensible) authority. The fact that the pursuer might attempt to present an esto case to a jury (actual authority, failing which ostensible authority) suggested that the case was unsuitable for a jury.

[18] Counsel concluded by submitting that there were a number of complex issues, and questions of mixed fact and law, making the case unsuitable for a jury. Issues should be refused.

Discussion
[19] The only question at this stage is whether effective directions in law could be given to, and applied by, a jury.

[20] In this case, a jury would be faced with many questions of mixed fact and law: for example, what constituted the package holiday contract; whether the optional excursions were part of the package holiday contract, and if so, whether an optional excursion to the Simplon Pass (defined in the itinerary as taking place on Wednesday 12 September) was part of the package holiday contract when the excursion was to take place on Friday 14 September; whether the Verbano Viaggi Agency were the defenders' local agents; whether Miss Zambonini, an employee of the Verbano Viaggi Agency, acted qua agent for the defenders (with either actual or ostensible authority) when she accepted the pursuer's payment for the Simplon Pass excursion; whether there was any negligence, and if so, on whose part; whether the circumstances of the pursuer's accident gave rise to liability on the part of the defenders, arising from the package holiday contract and/or the Package Travel Regulations 1992.

[21] Counsel for the pursuer submitted that effective directions could be given to the jury such that they could properly discharge their function. Counsel for the defenders contended that it was doubtful whether such directions could be given.

[22] I agree with counsel for the defenders. In my view, there are too many questions of mixed fact and law, some of considerable complexity. The law applicable to certain parts of the case may not be clear until factual issues have been resolved. In such circumstances I do not accept that it would be an easy matter to give the jury adequate directions. I am satisfied that special cause has been shown such that the case should not go to a jury.

Decision
[23] I shall refuse the pursuer's motion for issues. I reserve the question of expenses to enable parties to address me on that matter.