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Lougheed v On the Beach Limited [2014] EWCA Civ 1538 - 27/11/14

Description

The Court of Appeal heard an appeal in a package holiday claim where the claimant consumer had slipped on some water on granite stairs at a hotel in Spain causing personal injury. At first instance it was found that the hotel had not exercised reasonable care and the defendant organiser was thereby liable for the injuries under the Package Travel, Package Holidays and Package Tours Regulations 1992.

On appeal, the Court reiterated that the relevant standard of care by which the hotel was expected to meet were the locally recognised standards, and not the standard of care expected in England and Wales. Tomlinson LJ remarked, "an Englishman does not travel abroad in a cocoon" and explained that the standards by which the hotel would be judged would be informed by local standards of care as applied by establishments of similar size and type.

The first ground of appeal was whether the trial judge had wrongly relied on evidence of the hotel manager as evidence of local standards. There had been no expert evidence before the trial judge in respect of local standards and no enquiry as to the general practice in monitoring spillages in Spain. Tomlinson LJ said, "A claimant who chooses not to adduce such evidence in a case of this sort does so at his peril". There is no requirement that the evidence need be put before the court by an expert, but in the present case the evidence from the hotel manager was not sufficient.

The second aspect of the appeal went to the well known judgment of Lawton LJ in Ward v Tesco, where he said of a slippage in a supermarket, "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". Tomlinson LJ confessed having difficulty with this reasoning, because it still begged the question as to when the spillage occurred: if it was immediately before the accident there would be nothing a defendant could do. He went on to say that he was bound by Ward v Tesco but added that it seemed to him that the decision was premised on the finding that the defendant in that case knew of a likelihood of spillages occurring from time to time and that such spillages posed a danger if not dealt with quickly. In the present holiday case, in his judgment, the accident could have occurred despite the exercise of proper care. It was not an appropriate case for the invocation of the principle in Ward v Tesco as there was no finding that spillages or the presence of water were likely in this area. The appeal was therefore allowed on both grounds and the claim dismissed.

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