piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

How to admit, pay millions and get off Scott-free

    How do you get off Scott-free when you have made an admission of liability and paid millions in damages? The answer in AC and Others v Devon County Council [2012] EWHA 796 was not by withdrawing that admission but bringing a Part 20 Claim. Even then the result is rather curious but the case raises some interesting points of highways law and permission to appeal was granted this week. TR was the driver of a Landrover on a rural road in Devon which was edged with white lines. The width of the road between the white lines was about 4.6 metres. TR sought to overtake a Vauxhall Vectra at 45mph and his offside wheels went over the white lines at the side of the road. His case was that he got into a rut, steered to get out of it, swerved across the front of the Vectra, left the road and collided with trees. TR admitted liability and presumably settled the claimants’ claims but then brought Part 20 proceedings against the highway authority, Devon County Council. I limit myself to 4 issues. The first is whether the accident was caused by the Landrover entering the rut at the point of a pothole which was a dangerous defect, or whether it entered the rut at a point at which the road was not dangerous. The Council argued that the claimant had to prove whether the precise spot which caused the accident was dangerous (James v Preseli Pembrokeshire District Council [1993] P.I.Q.R. P114). The judge distinguished Preseli on the basis it dealt with pedestrians. She reasoned that cars moved (unlike pedestrians?) and so the relevant issue in a case involving motor vehicles was whether the stretch of road was dangerous and not the precise spot. The second issue relates to the section 58 defence. The Council had a 6 monthly inspection policy. The Code of Practice recommended a 1 monthly policy. The judge found that the Council had not carried out a risk assessment and justified its departure from the non-mandatory Code of Practice issued by the Department of Transport and therefore had not made out the statutory defence. It was not clear what the risk assessment would have identified, the road had always only had 6 monthly inspections and was notable for the absence of accidents. She did not really deal with the interesting submission that the Bolam test should have been applied when considering the reasonableness of the Council’s system of maintenance. The third issue also relates to the section 58 defence. The Claimant submitted that it was not open to the Council to say that if it had in fact taken all reasonable care, the accident would not have been prevented; it relied on dicta in Griffiths v Liverpool Corporation [1967] 1 QB 374. It was submitted on behalf of the Council that a causation defence was open to the Defendant under section 58; it relied on dicta in Rance v Essex County Council (unreported). Without giving reasons the judge appeared to prefer the dicta in Rance but she then found on the facts that a monthly inspection regime would have prevented the accident. The final issue relates to contributory negligence. The judge found that the Claimant was not negligent in crossing the white line marking the edge of the road when overtaking and he was not at fault in reacting in the way he did once he had driven onto the potholed and rutted area. Accordingly she did not make a finding of contributory negligence despite the fact that the Claimant had admitted liability in the main proceedings. Curiously the judge did not refer to the reasons why the Claimant admitted liability. The trial judge gave permission to appeal to the Court of Appeal on section 41, section 58 and contributory negligence. If the Court of Appeal allows the appeal on either sections 41 or 58 but upholds the judgment on contributory negligence then the Claimant will be asking big questions as to why he admitted liability to those who were injured. (Photo courtesy of FreeFoto.com)

If you go down to the woods today...

Picture the scene: a wild area of woodland, full of trees, leaves, plants and wildlife. How nice it would be to have an area like that within the grounds of your workplace. An area like that is going to be full of trip and slip hazards. Surely no-one would want it to be smoothed out, or for the carpet of leaves and bluebells to be replaced with some kind of solid surface?   But what happens when an employee trips in a hole in the course of his employment, and sues relying on Regulations 5 and 12 of the Workplace (Health, Safety and Welfare) Regulations 1992?   Regulation 5 requires that the workplace “shall be maintained… in an efficient state, in efficient working order and in good repair”. The duty is strict. Is that to say that whenever a rabbit or other animal makes a hole in a “workplace” in a wood, their employer is in breach of duty?   Regulation 12(3) provides that (so far as reasonably practicable) workplace floors shall be kept free from obstructions and any article which may cause a person to slip, trip or fall. Does this really apply to slip and trip hazards in a wood, such as leaves and branches.   Fortunately, Regulation 3(4) provides that Regulations 5 and 12 do not apply to:-   … any workplace which is in fields, woods or other land forming part of an agricultural or forestry undertaking but which is not inside a building and is situated away from the undertaking’s main buildings   Does this exclude all fields and woods, or only those forming part of an agricultural or forestry undertaking? The Directive on which the regulations are based provides no assistance.   On 13th April 2012 in Davis v PA Consulting District Judge Gill held that the exclusion was for all fields and woods, and that Regulations 5 and 12 would not apply to any workplace in a wood. He accepted the argument that the words “fields, woods” would be otiose were the narrower meaning to be correct; and also that as a matter of common sense it would be straining Regulations 12(3) and 5 to (or beyond) the limit to apply them to woods. As far as I’m aware there is no higher authority on this question so watch this space for any further developments!

Good with Food?

Case note: Josephine Mitchell & Others v United Co-operatives Limited [2012] EWCA Civ 348 Just occasionally the law reports provide us with a glimpse of the difficult working conditions that some employees have to endure (even where their employer is not to blame for such working conditions). Josephine Mitchell and others, decided by the Court of Appeal at the end of last month, is an example of such a case. The judgment (of Ward LJ) starts like this, “It is a sad feature of our suburban life that some areas are at high risk of crime. One such place is Shaw Road, Heaton Moor, a side road off the main road linking Stockport and Manchester”. Shaw Road had a small parade of shops and the shops included a Co-operative food store where the Claimant ladies were employed as shop assistants. The Court referred to a “Harsh reality” confronting the Co-op and those employed at the shop. The harsh reality was this, “There were two robberies in the eleven years before the Co-op acquired the premises but ten robberies between 25th February 2000 and 7th December 2005. These crimes were committed on 25th February 2000, when a shotgun was produced, 6th November 2001 when the robberies were armed with batons, 16th March 2002 when a knife was used, 13th January 2003, 11th March 2003, 20th December 2003, 24th June 2004 when Mrs Benton and Mrs Goodwin were the victims threatened with a screwdriver, 18th October 2005 and 7th December 2005 when Mrs Mitchell was the victim.”   The Claimants alleged that they had sustained psychiatric injury (specifically post-traumatic stress disorder and anxiety) as a result of the robberies. It was their case that their employer was liable for this and the resultant losses as a result of its breach of an (admitted) common law duty to take reasonable care to keep its employees reasonably safe (applying Swanwick LJ’s test in Stokes v Guest & Others [1968] 1 WLR 1776 (CA) as endorsed by Lord Mance in Baker v Quantum Clothing Group [2011] UKSC 17).   Prior to the robberies in which the Claimants were the victims, the Co-op had introduced a series of measures to reduce the incidence of robbery and these included CCTV monitoring, panic alarms, the provision of “smoke notes” which emitted dye when passing a transmitter at the doorway and a mobile security response team. There was evidence that the Co-op’s policy on the prevention of crime compared favourably with that of other retailers. However, the Claimants complained, first, that the Co-op had removed security screens when it acquired the store and should have installed such screens around the till. The second line of the Claimants’ argument was that the Co-op should have provided a security guard.   The Claimants’ claims were dismissed at first instance. HHJ Armitage QC (sitting in the Manchester County Court) concluded that a screen might have had some deterrent effect, but it carried risks for the staff which outweighed any benefit and so reasonable care for their safety did not require the provision of a security screen or enclosure. He was also satisfied that failure to provide full-time guarding did not amount to a failure to take reasonable care. On appeal, it was held: (1) The Judge had properly distinguished between measures which would have deterred robbers and measures which would have prevented robbery, the former being the correct consideration. His judgment was based on the deterrent effect of screens and of a full-time guard. The reasonable steps to be taken by the employer were to deter robberies; no employer could be expected to go so far as to prevent any robbery taking place. (2) The judge was also entitled to conclude that although a screen might have had some deterrent effect, it carried risks for the staff which outweighed that benefit. The issue was not only what deterrent effect screens would have on a robbery taking place but also what deterrent effect the presence of screens would have to guard the employees against psychiatric injury. (3) There was evidence that the store was running at a loss and a proper approach required a balance to be struck between the probable effectiveness of the precaution that could be taken and the expense involved (small suburban shops did not usually have a security guard permanently stationed). This case provides a rare example of common law pragmatism in the context of an employers’ liability claim: the taking of reasonable care involves the balancing of competing considerations. The Claimants’ experience was unfortunate (to say the least), but – looked at in the round – their employer was not liable for its consequences.      

From vicarious liability to non-delegable duties...

Some cases are destined for not just one visit to the appellate courts but several. You may remember the case of Woodland v Beryl Stopford and others [2011] EWCA Civ 266. Simon Trigger wrote about it on this blog exactly 1 year ago to the day under the heading ‘We can all now resile from pre action admissions’. It is now back on the issue of non-delegable duties in the context of schools and pupils (Woodland v Essex County Council [2012] EWCA Civ 239).   Just to remind you of the facts, a school pupil, Annie Woodland, suffered a hypoxic brain injury on 5th July 2000 as a consequence of getting into difficulties in a swimming lesson. The swimming pool facilities were not those of the education authority, Essex County Council (‘Essex’), but of Basildon Council. Neither the life guard nor the swimming teacher were employees of the school but of Ms Stopford who traded as Direct Swimming Services. The question was whether Essex owed Annie Woodland a non-delegable duty of care. What was contended was that the duty owed by Essex was personal: that it owed a duty to ensure that reasonable care was taken and that it was not sufficient just to take reasonable care in employing competent contractors.   Such a duty only currently exists in well-defined circumstances - employers are required to take reasonable care for the safety of their workmen, dangerous operations on the highway, particularly hazardous operations, the escape of fire and the rule in Rylands v Fletcher. What was being advocated was an extension of the principle to the school-pupil relationship. The case will also be of particular interest to medical negligence practitioners given the discussion of the hospital-patient relationship.   Laws L.J. was prepared to allow the appeal. He considered that there was a justification for imposing a personal duty in both the school and hospital context based on the acceptance of responsibility for a group of persons who are particularly vulnerable or dependent. However he recognised that there needed to be some limit to the scope of the duty and postulated that ‘a school or hospital owes a non-delegable duty to see that care is taken for the safety of a child or patient who is (a) generally in its care, and (b) is receiving a service which is part of the institution’s mainstream function of education or tending the sick’.   The other judges did not think that anything had been placed before them which justified such an extension of the law and accordingly the appeal was dismissed. Tomlinson L.J.  thought that Laws L.J.’s formulation would result in a finding of liability where a child on a school trip was bitten by an animal due to the negligence of a zoo-keeper unless the trip could be considered not to be a part of the school’s mainstream function of education (which he doubted). He observed that the imposition of such a duty would be likely have a chilling effect on the willingness of education authorities to provide valuable educational experiences for their pupils. In dismissing the appeal Tomlinson L.J. observed that only the Supreme Court could impose such a duty as was contended for. I suspect this will not be the last time this case is heard of in the appellate courts.

Vicarious Liability for a non-employee - again

XVW & YZA v X School for Girls & Adventure Lifesigns Ltd [2012] EWHC 575 (QB) This action was brought by two Claimants and arose out of a school trip/expedition to Belize in July/August 2005. The Claimants were pupils at the D1 school; they were aged 16 years and 15 years respectively. D2, a UK company, assisted with the planning of the expedition, as well as providing two ex-military adult staff to accompany the same. The expedition was a developmental training experience for the participants; it was not a holiday. The young women who participated were actively involved in the choice, selection, planning and budgeting for the index expedition. A teacher from D1 also accompanied the expedition. During the course of the expedition it was necessary for the planned itinerary to be altered as a result of a hurricane which affected the area (Mexico) to which the group intended to travel. The young women participating in the expedition were actively involved in the change of plan and the arrangements for alternative accommodation. A local Belizean company provided accommodation to members of the expedition party in return for work undertaken by the participants and an agreement to undertake trips with the Belizean company to be paid for by the participants from funds held by them. A local man (A) was the son of the owner of the Belizean accommodation and might have been co-owner of the resort where the group stayed. During the early hours of the morning of 1 August 2005 A raped the Claimants and another of the young women on the expedition who was staying in the same cabana accommodation at the resort. The Claimants alleged that they had sustained psychiatric injury as a result of the sexual assaults. They brought proceedings against the Defendants in respect of the alleged intentional wrongdoing of A. The Claimants’ case was that D1 and/or D2 were vicariously liable for the conduct of A. Alternatively, it was submitted on their behalf that the scope of D1 and/or D2’s duty of care extended to the intervening criminal conduct of A (which was, the Claimants alleged, foreseeable) and that there had been a number of causally relevant breaches of duty by D1 and D2 with respect to the planning of the expedition, the supervision of the expedition, the vetting of A and the security of the Claimants. The Claimants relied on a number of alleged incidents of inappropriate behaviour by A prior to the assaults (although it was denied that these incidents had come to the notice of D1 or D2’s staff). The trial took place before Mackay J on 27 – 29 February and 1 March 2012. The Claimants’ claims were dismissed and it was held: (1) A was not an employee of D1 or D2 and his involvement, such as it was, in the expedition was sufficiently limited that it was not just and fair to describe him as a person for whose actions D1 or D2 were vicariously liable (Lister v Hesley Hall Limited [2002] 1 AC 215 (HL(E), JGE v The English Province of Our Lady of Charity & Anor. [2011] EWHC 2871 (QB) and EL v The Children’s Society [2012] EWHC 365 (QB) considered, among other cases; (2) The scope of the duty of care was to be determined by application of the Caparo test: was it fair, just and reasonable for the duty to extend as far as the Claimants contended; (3) There was no causative breach of duty in this case. It was not alleged that A had a criminal record which went undiscovered or that Belize had a UK-style system of CRB checks. The local police would, if they had been consulted in advance, probably have given A a good character reference. The school party was continuously supervised by 3 experienced adults and, short of placing a guard outside each cabana occupied by the school party at the resort, there was no means by which to defeat A’s assault (he had been careful to keep his conduct towards the young women, prior to the assaults, hidden from the adult staff).  This case is the latest in a number of recent decisions in which vicarious liability is discussed in respect of persons who are not employees (or even deemed or temporary employees) of the Defendant. These cases are discussed in the most recent (March 2012) edition of the Chambers Personal Injury Briefing  and in Lisa Dobie's post  below.

The Animals Act rears its head again…

‘Oracular and opaque’ are the words Jackson L.J. uses of the Animals Act in a judgment (Goldsmith v Patchcott [2012] EWCA Civ 183) which is impeccably logical and clear. The facts are the easy bit: ‘Red’ was a horse who reared and then bucked violently, throwing the claimant to the ground and then striking her in the face with its hoof and causing her nasty injuries. Hold tight for a moment whilst we canter through the law: If you are dealing with an animal which is not of a dangerous species then you need to establish that (a) the damage the animal caused by the animal is likely to be severe unless the animal is restrained (b) the likelihood of damage is caused by characteristics of the animal not normally found in animals of the same species or not normally so found except at particular times or in particular circumstances and (c) those characteristics were known to the keeper at the time. It is a defence for a defendant if the claimant voluntarily accepted the risk (s.5(2)). The judge found that horses’ characteristics included bucking in particular circumstances when they were startled or alarmed and thus (b) above was made out. The claimant took issue: horses do not only buck when they are startled or alarmed. Jackson L.J. said that was a conclusion the judge was entitled to come to on the evidence. Strikingly however there was no expert evidence in this case. Longmore L.J. said that the appeal on (b) would have succeeded if there had been expert evidence that bucking was a normal characteristic of any horse in any circumstance. The lesson for defendants is to go to court armed with such expert evidence. However the claim failed because the judge found that the claimant had voluntarily accepted the risk of Red rearing and bucking. The claimant’s argument was that she had not voluntarily accepted the risk of the horse rearing and bucking as violently as it did. The Court of Appeal found that the claimant did not need to foresee the precise degree of energy with which the animal would engage in its characteristic behaviour. This case includes a useful review of the authorities on sections 2 and 5 of the Animals Act for anyone who practices in this field…   (Photograph courtesy of Freefoto.com)

Whiplash: Again ...

A short article in yesterday’s Guardian caught my eye (Let’s not add insult to personal injury: 20.2.12). It wasn’t the author’s commentary on David Cameron’s recent “Insurance Summit” that attracted my attention (see, Laura Johnson’s PIBLAWG piece a week ago). It wasn’t the reporting of the statistics, although it has to be admitted that these are eye-popping (the CRU apparently reports a 52% increase in reporting of motor personal injury claims – up to 790,999 claims in 2010/11. The reported statistics are not consistent, but everyone seems to agree that there has been an increase in claims and, er/um, the increase has been massive: can we believe that all of these claims are entirely genuine?) Instead, my eye was drawn to the following, “The practice of insurers making a compensation offer to injured people before they have even had a proper medical examination has become more widespread, and they are trying hard to get to third parties quickly and settle their claims before they have gone to a solicitor for independent advice. This all encourages people to have a go. Why, instead, have insurers not challenged in court claims they believe to be bogus? Interestingly, one outcome of the Downing Street summit was a commitment that they will. [emphasis added by me]” It remains to be seen whether the insurers’ “commitment” proves to be real, but we probably all know why such claims are not contested to trial. First, by the time that a modest whiplash claim comes to Court, the costs will usually have outstripped by a considerable margin the amount that is at stake in the claim itself: an obvious reason why insurers will instead seek to settle claims early – even those that are believed to be bogus (indeed, contesting a bogus or fraudulent claim will generate greater costs than taking issue with discrete aspects of a claim believed to be genuine). The problem, of course, with paying Danegeld of this kind is that it simply encourages more claims – as the statistics referred to above make clear. It also removes work from solicitors, although insurers probably won’t lose any sleep over this. Second, it is not easy to satisfy a Court that a claim is bogus; most Judges will apply – whether or not this is acknowledged – a Hornal v Neuberger Products [1957] 1 QB 247 approach to any allegation that a claim is bogus/fraudulent and will require a quantity of cogent evidence in order to find such allegation proved. Some medical expert witnesses are adept at finding a whiplash injury in factual circumstances where it would be surprising (at least to the lay person) that a Claimant had sustained any injury at all. Where such medical evidence is available, it is not easy for the Defendant to challenge this without incurring speculative costs. The result is that, by a default process, the claim will succeed/be settled. Third, it has to be said (on the finest anecdotal evidence) that on occasions the Courts have encouraged questionable claims. One is reminded of the increasing volume of highway tripping claims (some decades ago); the advancing tide was only retarded when the higher Courts started to dismiss these claims and provided guidance on what needed to be proved in order for the Claimant to succeed. If the Judiciary had been less credulous as to whiplash then we might all – genuine Claimants and insurers alike – have been in a happier position. If the Guardian piece is to be believed, we seem now to be reaching a position where only the bravest insurer would challenge a whiplash injury claim at trial; it will be interesting to see whether recent Government action will make any difference.  

The English Claimant in Spain

  Gallagher v Wright (Manchester CC, Recorder Gregory, 25 November 2011 and 2 February 2012)   The Claimant (G) was a rear seat passenger   in a car travelling to Alicante airport, Spain when the Defendant driver (W) entered a slip road on the wrong side of the road and collided head on with a vehicle approaching in the opposite direction. The Claimant sustained multiple injuries and sued W who promptly admitted liability.   Both G and W were British nationals, domiciled in England. The car had been hired in Spain and was insured under a Spanish insurance policy. The question for the court – at preliminary issue trial – was whether the nature, extent and assessment of the damages to which the Claimant was entitled would be dealt with in accordance with English or Spanish law.   Previous entries on this blog have discussed the temporal scope of the Rome II Regulation. The recent decision of Homawoo v GMF Assurances SA – (ECJ, Case C-412-10) conclusively determines that Rome II does not apply to accidents giving rise to damage which occurred before 11 January 2009. Accordingly, the Private International Law (Miscellaneous Provisions) Act 1995 was the correct instrument for determining applicable law in G’s case.   Section 11 of the 1995 Act establishes the general rule that a claim in tort will be determined according to the law of the country in which the tort occurred (in this case, Spain). Section 12 provides that the party seeking to displace the general rule must demonstrate that it is “substantially more appropriate” to apply the law of a different country. According to Waller LJ in Roerig v Valiant Trawlers [2002] 1 WLR 2304 (CA) “the word ‘substantially’ is the key word. The general rule is not to be dislodged easily”.   In Roerig, Waller LJ went on to provide guidance as to the correct approach to determining the applicable law, using a three stage exercise:   Stage Application to the facts (1) Identify the issue to which the general rule may not be applicable The assessment and quantification of damages (2) Identify the factors connecting the tort with the other country (England) - The nationality and domicile of G - The nationality and domicile of W - W had admitted 100% liability - G and W had been in a relationship in England and had come to Spain for the purposes of a short holiday - The location of G’s treatment and losses, including most of her pain, suffering and loss of amenity (3) Identify the factors connecting the tort with the country (Spain)* - The nationality and domicile of W’s insurer     In the light of the numerous factors connecting the accident with England, it was argued by counsel for W that the nationality of W’s insurer was a “crucial consideration”. The insurer stood behind W and would manage the litigation and satisfy the judgment and so was, in effect, the “real Defendant”. Furthermore, it was entirely fortuitous that G had elected not to proceed against the insurer directly in accordance with the jurisdictional route provided by section 3 of the Judgments Regulation (EU (Council) Regulation 44/2001, as interpreted by the ECJ in Odenbreit (2007)).   HELD:   The mere fact that G could have pursued W’s insurer directly did not require the Court to treat the insurer’s nationality with the same weight as if it was in fact a party to proceedings. Following Garland J in Edmunds v Simmonds [2000] [2001] 1 WLR 1003 (QB), the domicile of the Defendant’s insurer was not a factor of overwhelming weight or importance.   Further, insurers of hire cars in tourist areas had to contemplate that the majority of hirers would be foreign and that accidents involving them might result in damages being quantified according to different systems of law. The weight to be given to the factors connecting the accident with England were sufficient to displace the general rule; it was substantially more appropriate for the applicable law to be the law of England and Wales.   This case raises an interesting strategic dilemma in overseas RTA litigation: pursuing foreign insurers directly, rather than the tortfeasor, has the advantage of simplicity and certainty of recovery, but in doing so the domicile of the insurer may carry greater weight for the purpose of determining applicable law (although HHJ Armitage QC – also sitting in the Manchester County Court – thought otherwise in Kershaw v Carey & Anor. 6 September 2011).   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]

“Safe sex?”

The New Year will hopefully bring with it important news from Australia for employees everywhere - particularly those having sex in hotels!   It has long been the law that an employee who is negligently injured in the course of employment is generally entitled to look to his or her employer for compensation.   However, in a case which is currently awaiting the delivery of a reserved judgment in the Federal Court of Australia, the time, place and conditions under which an “on-the-job” accident occurs has been the subject of anxious judicial scrutiny.   The Claimant, a female public servant, sued the Australian federal government after being injured while having sex on a work trip in a hotel bedroom. A glass light fitting came away from the wall above the bed as she was having sex striking her in the face and causing injuries to her nose, mouth and a tooth as well as “a consequent psychiatric injury” described as an adjustment disorder.   The Claimant’s partner’s evidence was that they were “going hard” and that he did not know “if we bumped the light or it just fell off”.  He added, not unreasonably, that he was “not paying attention because we were rolling around”.   The Claimant claimed compensation because her injuries were caused “during the course of her employment” as she had been instructed to travel to and spend the night in the hotel in a small town in New South Wales ahead of a departmental meeting early the next day.     ComCare, the Australian government's workplace safety body, rejected the claim on the grounds that sexual activity “was not an ordinary incident of an overnight stay like showering, sleeping or eating”. That decision was upheld by the Administrative Appeals Tribunal.   However, on appeal to the Federal Court, the Claimant’s counsel submitted that the accident was in truth “no different than slipping over in the shower”. In addition, “lawful sexual activity” should now be considered reasonable behaviour in a hotel room by an employee as “it's not the 1920s”.   Counsel for ComCare responded that people need to eat, sleep and attend to their personal hygiene but “you don't need to have sex”   The judge, Justice Nicholas, has reserved his judgment describing the case as “by no means easy”.   The judge is right to be cautious. Claims by employees have succeeded in the past when injuries have occurred in the course of employment related recreational activities involving drinking and socialising where negligence has been made out. It can be argued that being injured whilst having sex is no different provided that the injury occurred within an overall period or episode of work and negligence can be shown. Would the position be any different if, for example, the hotel had a gym and the Claimant had been negligently injured whilst working out on one of the hotel’s exercise bicycles or cross trainers?   The judgment may also provide useful guidance as to whether, at least in Australia, sexual activity should now be regarded by the prudent employer as a reasonably foreseeable part of an overnight stay in a hotel by an employee. If so, this will give a whole new meaning to the expression safe sex.  

Camel Accident Gives Holiday Consumers the Hump!

  A cantankerous, even-toed ungulate was the unlikely subject of the latest in a line of cases examining the tortious duty of care owed by tour operators for accidents during holiday excursions.       Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) concerned the provision of a “Camel Safari” excursion during a package holiday to Rajasthan, India. The plan was simple: the Claimants were to ride on the back of a Bactrian (two-humped) camel, setting off from their hotel. The camel had other ideas. Before the claimants were out of the hotel gates, it began “making sidesteps in a very jaunty manner” causing the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English (the camel handlers or raikas spoke no English). The representative had no particular knowledge of camel riding and, indeed, this was his first (and only) time assisting with the excursion.   The excursion was described in the Defendant tour operator’s brochure as an “optional experience” “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants maintained in evidence that they made no separate booking for the excursion and were not asked at any stage for payment and so the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package Travel, Package Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.   This was not, however, the end of the road for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back consisted of a seat with a hook-shaped “pommel” at the front and was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgment for the Claimants.   This case underlines the significance attached to the attendance on the excursion by a local representative in the context of the tortious route to liability for excursions that go wrong.   [Case note prepared with the assistance of Thomas Collins, Pupil Barrister.]