BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | ||
England and Wales Court of Appeal (Civil Division) Decisions |
||
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947 (13 June 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/947.html Cite as: [2001] EWCA Civ 947 |
[New search] [Printable RTF version] [Help]
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
(Mr Justice Douglas Brown)
Strand London WC2 |
||
B e f o r e :
LORD JUSTICE LONGMORE
and
MR JUSTICE CARNWATH
____________________
GERARD HONE | Claimant/Appellant | |
-v- | ||
GOING PLACES LEISURE TRAVEL LIMITED | Defendant/Respondent |
____________________
Smith Bernal Reporting Limited
190 Fleet Street London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr S King (instructed by Messrs Vizards Staples & Bannisters, London WC1) appeared on behalf of the Respondent Defendant.
____________________
Crown Copyright ©
"(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 [my emphasis] of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because -
(a)the failures which occur in the performance of the contract are attributable to the consumers;
(b)such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable; or
(c)such failures are due to -
(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 had 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."
"Even if, contrary to my view, there was fault on the part of the airline staff, this was not an event which the Defendant, as the other party to the contract, could, with all due care, forestall."
(1)that, on their true construction, the Regulations of 1992 imposed an absolute or strict liability on the other party to the contract subject to defences, the onus of proving which was on that other party to the contract;
(2)that the requirement of regulation 15(1) of "improper performance of the contract" was met because the expectation of the parties was that there would be safe carriage to and from the holiday and, if injury was sustained during that carriage, there was improper performance;
(3)that the intention of the Regulations was to achieve a result comparable to that achieved by the unamended Warsaw Convention which, it was agreed, imposed liability for death and personal injury if the accident causing such death or personal injury took place on board (or in the course of embarking or disembarking from) an aircraft. That liability was a limited liability and was subject to the defence that the carrier was not to be liable if he were able to prove either that his servants and agents had taken all necessary measures to avoid the damage or that it was impossible to take such measures (Article 20), or that the damage was caused by the negligence of the injured person (Article 21);
(4)that if the burden was on the claimant to prove improper performance in the sense of fault, the existence of the fault-based exceptions was otiose and made no sense;
(5)that his submissions were supported by the statements of the relevant Ministers in the House of Commons and the House of Lords that liability was strict.
(1)that a claimant had to prove either a failure of performance or improper performance of the contract;
(2)that the present case was not a case of failure to perform but, if anything, one of improper performance of the contract;
(3)that improper performance of the contract had to be a breach of the contract;
(4)that there was no breach of contract unless there was a failure to perform the contract with reasonable care and skill, and in that sense there had to be shown to be fault on the part of the other party to the contract or the supplier of the relevant service for whose fault he was responsible;
(5)that the Regulations were drafted differently from the Warsaw Convention and that such differences were significant;
(6)that the Ministers of the Crown in the course of parliamentary debates, by using the phrase "strict liability", did not intend to deny the effect of the requirement that there had to be improper performance of the contract.