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URL: http://www.bailii.org/scot/cases/ScotCS/2008/CSOH_58.html
Cite as: 2008 Rep LR 66, [2008] ScotCS CSOH_58, 2008 GWD 11-206, [2008] CSOH 58

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OUTER HOUSE, COURT OF SESSION

[2008] CSOH 58

PD1417/04

OPINION OF LADY SMITH

in the cause

DIANA CHEESMAN

Pursuer;

against

INTERNATIONAL TRAVEL SERVICE LIMITED

Defenders:

________________

Pursuer: Thomson, Advocate; Anderson Strathearn W.S.

Defenders: Wallace, Advocate; McKay Norwell W.S.

4 April 2008

Introduction
[1] In September 2001, the pursuer and her husband went on a "Scotsman" holiday to what was described in the brochure as "the Swiss and Italian Lakelands". On the last day of the holiday, the pursuer injured her ankle when she tripped on a defect in a carpet on a step in the coach in which they were travelling on an excursion.

[2] The contract for the holiday was between the pursuer and her husband, and the defenders.

[3] On 9 September 2004, the pursuer raised the present action. It came to proof before the late Lord Dawson on 11-13 July 2006. On 13 July 2006, he made avizandum. He died on 11 June 2007, when the case was still at avizandum. By interlocutor dated 26 June 2007, the court ordered that the cause continue and be disposed of by another Lord Ordinary. The case was put out By Order before me on 2 November 2007 at which hearing it was agreed by parties that the case should proceed by having the notes of evidence from the July 2006 diet extended and then there being a hearing at which counsel would make submissions of new. That hearing was fixed for and took place on 28 and 29 February 2008.

Agreed Facts
[4] The terms of the contract for the holiday are to be found in the brochure. On the double page spread headed "Swiss and Italian Lakelands", there are some attractive photographs and text which includes the following sections:

"Itinerary in brief

.................................

Optional Excursions
(1) SIMPLON PASS & ZERMATT

(Switzerland)

A most exciting scenic drive crossing into Switzerland, over the legendary Simplon Pass descending into the Valais region of the Rhone Valley. You'll continue up to the unique resort of Zermatt. Here there's time to take lunch, walk the traffic free streets and marvel at the natural forces that gave birth to the Matterhorn and its glaciers.

..............................

Your Tour Manager may have other optional plans during your stay."

" THE PRICE INCLUDES

..........................

* Travel by luxury air-conditioned coach for all coaching described in the itinerary .................

* Services of an ITS Tour Manager in Italy

Not included: ................... * Optional excursions."

[5] There was also said to be one excursion included and there was one other optional excursion, the details of which were set out in similar fashion to those of the Zermatt option.

[6] The last page of the brochure is headed "YOUR CONTRACT" and it is followed by a section headed: "WHAT WE DO" which contains some detailed contractual provisions including:

"2. Our responsibilities. We accept responsibility for ensuring the services which we contract to provide are supplied and to a reasonable standard .................. 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 ......... their subcontractors, servants and/or agents, we will accept responsibility provided they were acting within the scope 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 every assistance we can .........."

[7] The pursuer and her husband had noted the details of the Simplon Pass/Zermatt excursion ("the Zermatt excursion") before they booked and had decided that they would opt for it. They did so by indicating that that was their wish and making an additional payment to the defenders' representative in Baveno, the resort where they were staying, at a "welcome" meeting. The defenders' representative was called Frederica Zambonini and she was the daughter of Anna Francis, the managing director of the Verbano Viaggio Travel Agency, an organisation with whom the defenders had contracted to provide local support services for the holiday.

[8] The Zermatt excursion took place on Friday 14 September 2001, the last day of the holiday. The pursuer and her husband went on it. They travelled in the same coach as had transported them from the airport at the beginning of the holiday and as had been used for the other excursions. The coach was provided by a separate company with which the Verbano Agency had contracted and its driver was employed by the coach company.

[9] The pursuer and her husband were sitting at the back of the coach in the rear seat. They were the only passengers sitting there. There was a step that was about 9 inches high, up to that seat. At one point, the guide pointed out something and the pursuer thought she would be able to see better if she moved forward. When the coach was going very slowly, she got up and went to step down to the lower level. As she did so, she tripped and fell forward. She described it as ' sailing' forward and her husband described it as her having ' pitched' forward; parties were agreed that she fell heavily. She suffered an avulsion fracture of her left ankle as a result of doing so as a result of which she experienced pain, discomfort and suffering and her husband rendered necessary services to her in the form of domestic assistance and driving. She was still experiencing some symptoms as at the date of the proof before Lord Dawson.

[10] The cause of the pursuer's fall was a defect in the carpet at the angle between the riser and tread of the step. There was a join in the carpet there. The pursuer's husband got down and examined it after the accident. The fixing on the riser had failed and the carpet was bulging out over a length of about 9 inches. The outwards bulge was to the extent of something between half an inch and an inch with the defect being about 3 or 4 inches deep. In short, the carpet was unstuck for quite a significant length and the pursuer had caught her foot, probably her toe, in it. The pursuer's fall did not cause the defect.

[11] It was also, ultimately, accepted on behalf of the defenders, that a single prior trip would not have caused the defect.

[12] The pursuer's accident occurred before they arrived at Zermatt. When they got back onto the coach, an "L-shaped" piece of plastic had been stuck along the length of the step where the defect in the carpet had been.

The Pursuer's Claim
[13] The pursuer's claim is in contract. She claims that, under the holiday contract, the defenders agreed to provide coach travel for the Zermatt excursion, that they agreed to accept liability for the negligence of their transport suppliers including the coach company and that the presence of the defect in the carpet which caused her to fall was due to the coach company's negligence or the negligence of their driver. That being so, she claims damages in respect of her injuries (solatium and services).

The Issues
[14] Between the date of raising of the action and the date of the hearing before me, the defenders took issue with much in the pursuer's case. They did not even accept that the pursuer had gone on the Zermatt excursion. Even less did they accept that she had sustained an accident or that there was any defect in the carpet. Ultimately, however, the issues were considerably narrowed. The issues between the parties that remain to be determined are:

1. whether the defect in the carpet was one which would have been identified and remedied by a coach company/coach driver, exercising reasonable care, prior to the pursuer's accident?

2. whether, if it was, the contractual arrangements between the pursuer and defenders were such as to render them liable in respect of her injuries?

The First Issue

[15] The resolution of the first issue requires two separate matters to be considered:

(a) The Carpet Defect
The nature and extent of the defect was spoken to in evidence by the pursuer's husband. His occupation is that of senior lecturer at Heriot Watt University in construction management. He also acts as a health and safety consultant particularly in relation to accidents in buildings where people have sustained injury as a result of falling downstairs or slipping on floors. He has a special interest in measuring the resistance of floor finishes and the application of building regulations to floors and ramps. He often gives expert opinions in connection with claims, for litigation purposes and had, when giving evidence, been engaged in that work for some 30 years.

In short, the pursuer's husband was particularly well placed to examine and assess the carpet defect. For many years his work has involved him considering how and why people have had falls and whether it has been to do with any defect in that upon which they had placed their feet at the time of their fall. I am readily satisfied that his qualifications add considerable weight to his evidence. Further, he being an experienced expert witness, it makes it less likely that his evidence was swayed by a desire to favour the pursuer's interests.

I have already referred to the estimate of the measurements of the defect which Mr Cheesman's gave in evidence. When asked, in chief, for his impression of how long the defect would have been present, he said that it would have to have been there for some time. That was because for the carpet to bulge out as it did, it would have had to stretch and work loose. It would have been the result of passengers climbing up and down or even as a result of it being pulled when being cleaned. It was not something that would have happened just that day or even within the couple of days before the pursuer's accident. It had happened, he said, in circumstances where either the carpet had never been properly stuck down in the first place or with it having come unstuck. It was not suggested to Mr Cheesman in cross examination that he was wrong about the presence or cause of the defect. No alternative explanation was offered and, as I have already noted, in submission, Mr Wallace's position came to be not only that the defect could not have been caused by the pursuer herself but that it would have taken more than one single prior trip on the carpet join to bring it about.

No evidence was led for the defenders that contradicted Mr Cheesman's description of what he saw. The defenders' only witness, Anna Francis, had not seen the carpet defect nor, it seemed, made any express enquiry of anyone about it. The best she could do was speak to what she considered would be normal practice by the coach company so far as checking for cleanliness and defects was concerned.

Whilst I did not hear or see Mr Cheesman, the transcript of his evidence reads with a clarity and cogency that points strongly to the conclusion that his hypothesis as to how the defect in the carpet arose was correct. I am, in all the circumstances, satisfied that the pursuer has established, on a balance of probabilities, that the carpet defect was not only present when she got onto the coach on the morning of 14 September 2001 but had been present for a significant length of time prior thereto. That is, it had certainly been present for more than a couple of days and was a defect that would have built up over the passage of time.

(b) Negligence
I turn to the part of the first issue that concerns the matter of whether or not the defect would have been identified and remedied if the coach company or its driver had been exercising reasonable care.

The starting point is, of course, the defect itself. I recognise that, on the evidence, as parties appeared to agree, the pursuer's fall may itself have exacerbated the defect. Also, Mr Cheesman very fairly accepted that it might have been necessary to get down and look at the carpet to see the defect although he did also comment that you could have seen it when you were sitting down. It did not appear to be suggested by any witness that the defect would have been noticed by a passenger who was standing up. However, it was not disputed that a defect in the carpet where there was a join at the edge of the step arising from it being or having become unstuck, would have been identifiable if that part of the carpet had been examined and, as was pointed out by Mr Thomson, what has to be considered is not what would have been noticed by a passenger but what would have been noticed by the coach company or its driver if inspecting it with reasonable care. Clearly, what would be noticed by the person upon whom the duty to take reasonable care to check for defects rests is likely to be different from and greater than that which would be noticed by a person who does not bear the burden of that duty, such as a passenger.

It is also self evident that if there is such a defect in the carpet on a step, it constitutes a tripping hazard. In the case of such a step on a coach the risk is plainly elevated by the fact that persons may be having to use the step when the coach is moving. In these circumstances, any coach company would, on becoming aware of the defect, be bound to remedy it in implement of its duty to take reasonable care. It is also of significance that a plastic strip was able to be put in place to protect passengers from the defect in the short period whilst they were out and about in Zermatt. That is indicative of it having been reasonable to expect prompt action to be taken.

So, should the coach company or the driver have been aware of the carpet defect? I am satisfied that the pursuer has established that he and/or they should have been so aware.

[16] Firstly, there is the nature of the defect itself, to which I have already referred. Secondly, there is the evidence of Mrs Francis. She said that the coach drivers cleaned the coach after every excursion and checked to see if there were any dangerous defects. She would have expected them to notice if there was loose carpet or anything of that nature, and to deal with it immediately. She did not accept that there could have been a defect in the carpet but that appears to have been because she thought the carpet was in one single piece that stretched the length of the coach and she was wrong about that; there was a join at the edge of the step. Her belief about the presence or absence of the defect does not, in my judgment, detract from her clear evidence that the practice of the coach drivers was to check the coach including the carpets, after every excursion and maybe even during excursions, when passengers were out of the coach.

[17] Thirdly, even without Mrs Francis' evidence, the circumstances are such that the conclusion can be drawn that if the coach company/its driver had carried out a reasonable inspection of the coach, the defect would have been identified prior to the Zermatt excursion. The case does not, contrary to Mr Wallace's submission, fall into the same category as Cordiner v British Railways Board 1986 SLT 209 where the Lord Ordinary, with much regret, found himself unable to find in favour of a pursuer who had slipped on a greasy patch on a station platform. The problem there began with the absence of any evidence pointing to how long the patch had been present and was compounded by the lack of any case as to what sort of inspections should have been being carried out by the defenders. There were similar difficulties in the other case relied on by Mr Wallace, Hanlon v British Railways Board 1991 SLT 228. Conversely, in the present case, a conclusion can be drawn regarding the presence of the defect prior to the accident, as already discussed. Following on from that, the relevant circumstances are that its presence presented a significant tripping hazard on a step within a vehicle in which persons would be moving around and may be moving around whilst the vehicle is travelling. Further, as happened on this occasion, the reason why a person moves around within the coach may well be because their attention has been drawn to something that they can see out of the window, drawing their vision away from their feet. The need to carry out regular checks on the carpet, particularly at the step, is obvious. To suggest that those checks should take place at least at the end of every excursion seems only reasonable. I am satisfied that it can readily be concluded that the exercise of reasonable care in this case required the carpet at the step to be checked for defects at the end of every excursion. Had such a check been carried out at the end of the excursion before the Zermatt excursion, the carpet defect would, on a balance of probabilities have been identified.

[18] I would only add that the fact the plastic strip was affixed to the edge of the step whilst the passengers were out and about in Zermatt does raise the question of whether the coach driver was in fact aware of the defect but had simply not got round to doing anything about it until the pursuer had her accident. There was no evidence as to where the driver got the strip and it is not difficult to infer that he must have already had it with him in the coach. If so, that would point to him being aware of the need for it. This is not in fact a question which, in the circumstances, I require to answer but had I been I required to do so, given the total absence of any explanation from the defenders as to where the driver got the strip from and why he had not applied it sooner, I would have been persuaded to infer that it was indeed the case that he knew of the defect but had delayed in remedying it.

The Contract
[19] I turn then to the question of whether or not the defenders are liable in contract for the negligence of the supplier of the coach transport.

[20] Parties were at issue as to whether or not the Zermatt excursion was provided under their contract. Mr Thomson founded on the parts of the brochure quoted above. He submitted that the availability of the optional excursions was a significant element of the holiday. Further, the price was said to include travel by luxury coach for all coaching described in the itinerary and that included the Zermatt excursion. That being so, the supply of coach travel was included amongst those matters for which the defenders accepted they would be responsible if the actual supplier was negligent.

[21] Mr Wallace, for the defenders, submitted that the Zermatt excursion was not a "supply" under the contract. So far as that excursion was concerned, neither the Verbano agency nor the coach company was a supplier to the defenders. He relied heavily on the fact that there was an additional charge for it and submitted that it was clear from the evidence and from the contractual documentation that when the price of the Zermatt excursion was collected by Frederica Zambonini, she did so on behalf of the Verbano Agency, not on behalf of the defenders. He relied not only on the brochure but on 6/1 of process which is a document headed "TOUR LM - LAKE MAGGIORE 9^TH SEPTEMBER 2001" and appears to have been sent to the pursuer and her husband by the defenders shortly before their departure. As regards the Zermatt excursion, it states:

" PAYMENT DIRECT TO YOUR TOUR MANAGER WHILST ON TOUR."

[22] That is, of course, what the pursuer and her husband did.

[23] The position thus was, in Mr Wallace's submission, that the Zermatt excursion required to be arranged through the Verbano Agency. When asked what his position was as to whether or not the defenders had, at least, an obligation to put arrangements in place so that the optional excursions were available, he indicated that he could see that there would be force in the proposition that they did have such an obligation. That being so, if the defenders had failed to make such arrangements and the optional excursions were not available then the clients would, he accepted have a claim for breach of contract in respect of the failure to put the necessary arrangements in place. That was not, however, to say that the defenders had supplied the excursion that took place; they did not supply it. He relied, in support of his submissions, on the case of Wong Mee Wan v Kwan Kin Travel Services Ltd & Ors [1995] 4 AER 745.

[24] The case of Wong Mee Wan turned on its own particular facts and circumstances, which were different from those of the present and is not authority for any general proposition that where an excursion is not included in the price of a holiday, it cannot be regarded as provided by the company which sells the holiday, as seemed to be the thrust of Mr Wallace's submissions. However, it is a helpful authority to the extent that it demonstrates that, in the holiday contract context, the normal approach to construction of contracts applies and the question of whether a holiday company agreed merely as agent to arrange for services to be supplied by others or one where they agreed to supply those services, depends on the particular terms and conditions of the contract under consideration.

[25] The defenders chose, in this case, to set out the terms on which they would be prepared to contract in their brochure, a document also designed to sell their holidays. It is an important document since it contains details of the supply that the defenders undertake to make to those who contract with them. When the terms of the contract in this case are examined (as set out in the brochure), the following are clear:

- the defenders undertook to provide luxury air conditioned coach travel for all coaching described in the itinerary;

- the provision of that coach travel was included in the price;

- the coaching described in the itinerary includes the coaching for the Zermatt excursion;

- the defenders undertook to provide an "ITS" Tour Manager at the resort in Italy;

- the defenders undertook to provide the optional excursions including the Zermatt excursion;

- if a client decided to go on one of the "optional excursions" there would be an additional charge. Whilst the defenders' submissions proceeded on the assumption that the additional charge was to cover the whole coach costs involved in the Zermatt excursion as well as the other costs that would obviously be involved, that was not borne out by any of the evidence in the case. The defenders undertook, in terms of the contract, to provide luxury coach travel for all coach travel. That covered all excursions, including the optional ones. It is entirely understandable that there would be other costs involved in providing an excursion, hence the extra charge, but the contract makes it plain that the defenders will provide the coach travel as part of the initial holiday price;

- the defenders put their clients on notice that they would be fulfilling their obligation to provide coach travel by using an independent supplier for whose negligence they would accept responsibility so long as the supplier was acting within the course of his employment at the relevant time.

[26] It is plain, in my view, that the defenders' offer of terms, as included in the brochure, included an obligation on their part not simply to act as an agent for their clients in placing the optional excursion business with some unidentified supplier but to provide those excursions. They do so in a way which sends out a message that if a holidaymaker contracts with them then they can be assured that all excursions including the optional ones are excursions for which the defenders take responsibility and will have their seal of approval. They can be distinguished from the "other optional plans" referred to in the brochure. That reference is wide enough to cover circumstances where the Tour Manager would be doing no more than facilitating an excursion contract between the clients and other businesses which run other attractions or excursions. It serves to emphasise that the specified excursions, including the Zermatt excursion are excursions that will be supplied by the defenders.

[28] The way in which, as a matter of fact, the provision of the holiday operated, supports the above analysis. The information leaflet (6/1) sent out before departure, in stating that the additional price payable for the Zermatt excursion is to be payable to "YOUR TOUR MANAGER", namely the "ITS Tour Manager" which the defenders undertook to provide, gives the impression that the Zermatt excursion is to be provided by the defenders. Further, Mrs Francis agreed in evidence which was not challenged and which I accept, that the Verbano agency was "acting as the face of ITS throughout the holiday" and that they were taking over the defenders' contractual responsibilities. She also confirmed that, at the welcome meeting, when one of the matters referred to was the Zermatt excursion, Frederica was welcoming clients on behalf of the defenders. That was, again, not challenged and is evidence that I accept. It plainly fits with the scheme of the defenders' contractual obligations and supports the conclusion that the optional excursions were being provided by the defenders.

[29] In all these circumstances, I reject the defenders' submission to the effect that they did not supply the Zermatt excursion. It is manifestly clear that they did do so. They are, accordingly, bound in terms of their contract, to accept responsibility for the negligent failure to identify and remedy the defect in the carpet prior to the pursuer's accident.

Damages
[30] Parties were agreed that the nature and extent of the pursuer's injuries are accurately summarised in a report by Margaret McQueen dated 28 August 2003. She sustained a lateral ligamentous injury and an avulsion fracture of the cuboid bone in her right ankle. She required crutches for several days. She suffered significant discomfort in her foot for 2-3 months and could not drive for 2 months. By the date of the report she was not suffering pain in the course of normal daily activities but found that her foot and ankle were sore if she sat cross legged and that her ankle ached if she walked over a mile on a hard surface. Her ankle was also stiff first thing in the morning and became sore if she had to keep getting up and down from her chair at work. Ms McQueen found all reports of continuing symptoms to be reasonable, commented that they were attributable to the pursuer having contracted a chronic ligamentous problem and concluded that it was likely that it would persist.

[31] When the pursuer gave evidence in 2006, she was complaining of the same symptoms as she had described to Ms McQueen.

[32] After the accident, the pursuer's husband had had to assist her for a couple of months with housework, tasks like getting in and out of the bath and driving.

Solatium
[33] For the pursuer, Mr Thomson submitted that guidance could be gained from the cases of Nimmo v Secretary of State for Scotland 2000 Rep LR14 and Brown v City of Edinburgh Council 1999 SLT (Sh Ct) 43, particularly from the former. He also referred to the case of Kirk v Fife Council 2002 SLT 21 although he accepted that it involved more serious injury. Solatium should, he submitted, be valued at £7,500 before the application of interest.

[34] Mr Wallace submitted that the appropriate valuation for solatium was £3,000, under reference to the cases of Connell v BP Chemicals Ltd 1993 SLT (Notes) 787 and Nimmo v British Railways Board 1990 SLT 680.

[35] The two cases referred to by Mr Wallace, which involved awards of £2,200 (present value about £3,000) and £1,500 (present value about £2,500) involved ankle strain injuries of less severity than that sustained by the pursuer. On the other hand, the cases relied on by Mr Thomson all involved injuries of somewhat greater severity. Whilst the case of Nimmo v Secretary of State for Scotland , where an award of £6,000 (present value about £7,000) was made, is the closest, it did involve a more severe injury; the pursuer there was off work for 13 weeks, experienced extreme pain and suffered continuing symptoms of pain and swelling that could occur after any ordinary day's work.

[36] In all the circumstances, I assess solatium at £5,750 of which I apportion two thirds to the past. Applying interest at one half the judicial rate from the date of the accident brings out a figure which rounds to £1,000.

Services
[37] Parties were agreed that services should be assessed at an interest inclusive figure of £650.

Interlocutor
[38] In the foregoing circumstances, I will pronounce an interlocutor finding the defenders liable to make payment to the pursuer in the sum of £7,400. I will, in the meantime, reserve all questions of expenses.