piBlawg

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Holiday claims – Hotel structure – Local standards and how these are determined

The Court of Appeal handed down judgment today in the landmark case of Japp v Virgin Holidays [2013] EWCA Civ 1371, dismissing the Defendant’s appeal and upholding the first instance finding of liability. This is now the most authoritative decision on local standards for structural features of hotels in holiday claims. Andrew Spencer represented the Claimant and Sarah Prager the Defendant.
 
 
Local standards – when, what, where and how?
 
Had there been relevant binding building regulations assessment of the local standard would have been straightforward. The Court of Appeal agreed that absent binding regulations, a non-binding code could set the local standard – just as British Standards do in the UK as they represent the consensus of professional opinion and practical experience as to sensible safety precautions (see Ward v Ritz Hotel [1992] PIQR 315).
This is entirely consistent with a hierarchy of factors to consider when determining the local standard, with binding regulations at the top; then non-binding but authoritative guidance from an appropriate body; and finally custom and practice.
 
The Court of Appeal confirmed that the relevant date was not the date of the accident, but the date of construction of the hotel. They agreed with the Defendant that, unless changing standards provided for updating (which there was no evidence in this case they did), there was no duty to update the premises to comply with improving standards. The Court of Appeal followed the approach taken to premises in this jurisdiction in McGivney v Golderslea (unreported, 6th November 1997). The Court of Appeal noted this “served to establish an important point of principle”.
 
Background
 
The Claimant stayed at a hotel in Barbados on a package holiday with the Defendant tour operator. The Claimant had been reading on her balcony. She closed the plate glass door behind her. The ‘phone rang and the Claimant went to answer it – but walked right through the closed door. The glass in the door was not toughened or safety glass: it was annealed float glass, which shattered on impact, causing serious lacerations.
It was common ground that the Defendant was required to provide accommodation of a reasonable standard that was reasonably safe, and that the accommodation would comply with all applicable local safety standards and regulations that were in force.
 
Both parties obtained expert evidence into local standards. The Claimant instructed a surveyor with practical experience of the local building industry. The Defendant instructed a personal injury lawyer.
 
The experts agreed that the Barbados National Building Code (published by the Barbados National Standards Institution) stated that this sort of door should be fitted with safety glass and that this was an “essential minimum provision in the public interest”. The Code was published in 1993, prior to the installation of the door in 1994.
 
The Defendant’s expert argued that the Code was not law. The hotel was not legally obliged to comply with the Code. The Defendant’s expert also argued annealed float glass and doors like these were in common use in Barbados.
 
The Claimant’s expert’s evidence was that custom and practice was to follow the Code. Annealed float glass was very dangerous, and the door was not fit for purpose.
 
At first instance, the judge held that the standard of the hotel fell to be considered by reference to custom and practice in the building industry at the date of the accident – which was 2008, 14 years after the hotel was constructed.
 
The judge preferred the evidence of the Claimant’s expert, who, he found “spoke with considerably more expertise and experience” than the Defendant’s expert. He found that the local standard at the time of the accident required safety glass in the door, and that there was a duty to update the premises to install safety glass to comply with current custom and practice. At the very end of the judgment, at the request of Counsel, the judge confirmed that there was also a breach of duty at the time the hotel was constructed.
 
The Defendant appealed, arguing that the judge had asked the wrong question. The Defendant contended that the duty of care should be considered by reference to standards at the date of construction of the hotel, not the date of the accident, and that there was no duty to update.
The Claimant argued that the judge had found there was a breach at the time of installation and that this finding was unimpeachable. Further, on the judge’s findings the hotel knew or ought to have known both that the glass was “very dangerous” and that the Code considered safety glass was an essential minimum provision in the public interest. The Claimant argued that even if custom and practice permitted installing this sort of glass, the given what the hotel knew (or ought to have known), the standard of reasonable care was not met. The Claimant relied on Evans v Kosmar [2008] 1 WLR 297 and the approach taken by the High Court in Northern Ireland in Griffin v My Travel UK Limited [2009] NIQB 98.
 
 
Post-script: Evans v Kosmar exception?
 
Much of the argument in the Court of Appeal centred around whether there could be a breach of duty even where local standards were complied with. The Defendant contended this would undermine Wilson v Best [1993] 1 All ER 353, at least so far as structural features were concerned. The Court of Appeal declined to express any view on the matter. This remains an interesting and dynamic area of the law – and one where there will no doubt be further argument in the not too distant future!

 

 

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