Scottish Sheriff Court Decisions

A272/06

 

SHERIFFDOM OF TAYSIDE, CENTRAL AND FIFE AT CUPAR

JUDGEMENT OF

SHERIFF G J EVANS

in causa

Lauren Frances Pilmer

as mother and legal representative of the child

AB (AP)

both residing at

Cupar

PURSUER

against

 

BALKAN HOLIDAYS LIMITED

a company incorporated under the Companies Acts and having a place of business at

Sophia House

19 Conduit Street

London

DEFENDERS

 

CUPAR, 16 February 2007. The Sheriff, having resumed consideration of the cause, Sustains the Defenders' first plea-in-law and Dismisses the action as irrelevant; Finds the Pursuer liable to the Defenders in the expenses of the Debate and of the cause, in so far as not already dealt with; Allows an account thereof to be given in and Remits the same, when lodged, to the Auditor of Court to tax and to report.

 

 

 

Sheriff

 

NOTE:-

 

INTRODUCTION

 

This is an action of damages brought by a mother on behalf of her injured child against a holiday company. It arises out of an accident to the child while the family was on its package holiday in Bulgaria at the hotel Sunrise, St Vlas between 28 July and 11 August 2003. The accident happened some 9 days into the holiday, on 5 August 2003. A portable TV set weighing approximately 16.25 kg fell from the cupboard unit on which it normally rested when the child (who was born on 25 August 1999 and would have been about 4 at the time) opened the glass doors of the cupboard to reach for her toy, this causing the unit to tip forward and the television to slide off the top of the unit and fall, hitting the child on the head and causing her to fall and in turn strike her head on the floor. She was knocked unconscious and suffered a fracture to the back of her skull and other injuries. The sum of £25,000 is sought by way of damages on her behalf.

 

The defenders, who had nothing directly to do with the running of the hotel or the choice of furniture in it, are sued under Regulation 15 of the Package Travel, Package Holidays and Package Tours regulations 1992. This provides inter alia:-

 

"(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 will 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 of the contact unless the failure of the improper performance is due neither to any fault of that other party nor to that of another supplier of services, because (and here follow certain specified failures which, by concession, do not apply to the instant case)".

 

It is not in dispute that, while the package holiday was booked in a local travel agency in Cupar, the defenders are the "other party to the contract" in terms of the regulations. It is averred on behalf of the pursuer (page 5, line 156ff of No 15 of Process):-

 

"The said apartment was used for family holidays and it was therefore reasonably foreseeable that any furniture in the apartment would be used by a child staying in said apartment. The package holiday was booked in the lead name of Steven Muir on behalf of himself, Lauren Pilmer, C H and the pursuer. The Hotel Sunrise was a supplier of services in respect of the said package holiday for the purposes of the aforesaid Regulations. In terms of Regulation 15(1) the defenders are liable to the pursuer for the proper performance of the obligations of the Hotel Sunrise in respect of the supply of said services. It was an implied term in the contract that reasonable skill and care would be used in the supply of said services. In particular it was an implied term in the contract for the package holiday that reasonable skill and care would be taken to ensure that the furniture and equipment provided by the Hotel Sunrise for use by persons on package holidays in the said apartment could be used by them reasonably safely and without injury. The television unit could not be used reasonably safely for the purpose for which it was supplied because foreseeable risk of the unit unbalancing whilst a television was on top of it in the manner hereinbefore condescended upon. The Hotel Sunrise knew or ought to have known of the risk of the unit unbalancing in the circumstances herein condescended upon. The Hotel Sunrise accordingly failed to exercise reasonable skills and care in the supply of the furniture for the use of persons on package holiday in the said apartment. In consequence there was not a proper performance of the contract on the part of the Hotel Sunrise. Said failure is a failure for which the defenders are liable in terms of Regulation 15 of the 1992 Regulations aforesaid. With reference to the defenders' averments in answer not known and not admitted whether the television and unit conformed to local health and safety legislation or whether there had been no previous complaint or accident concerning the television units."

 

The matter came before me for Debate on the defenders' preliminary plea. Ms Nisbet appeared for the defenders and Mr McInnes for the pursuer.

 

SUBMISSIONS

 

Ms Nisbet's first point was that nowhere in the pleadings did the pursuer offer to prove the written terms of the contract between the pursuer as consumer and the defenders as organiser and tour operator. It was stated in condescendence 3 (line 114) that the defenders arranged the holiday for inter alia the pursuer and the holiday included transport and accommodation but no further specification was given. As was stated in Hone v Going Places Leisure Travel Limited (2001) EWCACiv 947 at para 15:-

 

"It is only possible to determine whether it is a case of improper performance by reference to the terms of the contract which is being performed."

 

The point also arose in Wilson v Best Travel Limited(1993) 1All ER 353 (a pre-regulation case), where the plaintiff argued that, despite there being no particular feature of its contract that gave rise to the implication that the defenders owed the plaintiff a duty to exercise reasonable skill and care to ensure that the hotel was reasonably safe, such a term fell to be implied in every contract for a package holiday of that kind. That approach was rejected on the basis of the previous case of Wall v Silver Wings Surface Arrangements Limited(18 November 1981, unreported), a decision of Hodgson J.)."

 

Ms Nisbet's second point was that even if such a term could be implied, it had to be considered in the context of local standards. That was consistently borne out in the following cases, viz 'Wilson supra, Codd v Thomson Tours Operations Limited(C of A 7 July 2000, unreported, Logue v Flying Colours Limited (2001) CLY4281 and Johnson v First Choice Holidays and Flights Limited (2004) CLY2723. There would be no failure to perform or improper performance of a contract where what was done either complied with local regulations or the generally expected standards of accommodation locally. The pursuer did not aver any breach of such local standards in relation to the use of the unit in question and indeed her position in her pleadings was that she did not know and did not admit whether the television and unit conformed to local health and safety legislation and her third plea-in-law stated that the defenders' own averments about such matters were irrelevant and should not be admitted to probation. The opposite was the case, however, and the pursuer's own case was irrelevant without her being in a position to aver that the use of the unit was contrary to either local regulations or local standards of what was acceptable in such accommodation. The position might have been different if there had been any complaints from holiday makers or others about the claimed inherent instability of the unit. That would have put the hotel on alert to a problem despite what the local regulations or standards laid down. How otherwise could one impute a knowledge of the construction of the unit to the hotelier? There were no averments that they constructed it or it contained defects discoverable by some form of inspection. Why should the hotelier have been aware in the first place that there was any difficulty with this unit? There was nothing special about the unit in itself that would have put the hotelier on notice. The pursuer did not aver that it was an obvious folly to have such a unit or anything along those lines. In any event what was obvious would depend on what local standards applied here and the pleadings were silent about that. I was invited to sustain the defenders' first plea-in-law and dismiss the action as irrelevant, expenses to follow success.

 

Mr McInnes for the pursuer stated at the outset that he was not maintaining that Regulation 15 laid down any absolute or strict liability on the tour operator in any sense that implied the pursuer being able to avoid having to prove fault against the hotel. The factual situation was that the defenders and the hotel were well aware that small children were going to be using the facilities and yet they had allowed this heavy unit in a room used by small children. It must have been reasonably apparent that using the doors on the unit would lead to the television being unstable and overbalancing. Mr McInnes made the general point that none of the cases cited to me by Ms Nisbet had been decided without proof having been heard. I should therefore allow a proof in this case. In the 'Logue' case supra relied on by the defenders, which involved a person being injured on holiday in Ibiza when he sought to arrest his fall by putting out his right hand and it went through the glass patio window of his bedroom, there was evidence that there were no regulations in either Ibiza or generally in Spain specifying the thickness of glass to be used in patio windows. Mr McInnes accepted that British standards were not determinative but given that all the cited English cases had been decided after proof, that should apply here. As to the contract documents desiderated by Ms Nisbet, it would probably be easy enough to produce the brochure and found on it but not only would its contents be already familiar to the defenders, it was doubtful whether they would shed much light on the matter anyway. The defenders had accepted the booking and were the tour operators. It was simply a matter of finding out what brochure was in force in 2003. The burden of proof did not necessarily remain with the pursuer once he or she had established a prima facie case of negligence. In some cases the admitted or proven fact that an accident occurred might per se yield an inference of negligence which it would then be up to the defender to negate. I was referred to para 32.13 of Gloag and Henderson (11^th Edition). I was invited to either repel the defenders' preliminary pleas entirely and allow a proof, or allow a proof, reserving the affect of that plea on the merits, ie a proof before answer.

 

DECISION

 

(i) Relevance of written brochure or other contractual documents

 

While I accept that there may be cases in which it may be important to establish first what the consumer and the service provider agreed should be done before deciding whether or not there has been any breach of any implied term (vide Brown v J Nisbet and Co Ltd (1941) 57Sh.Ct.Reps.107 and vide generally McBryde on Contract (2^nd Edition) at para 9.24), I do not consider that this is one such case. I do not find support for Ms Nisbet's first contention in either of the cases relied on by her. In 'Hone', the question arose as to whether or not the regulations imposed "absolute liability" and it was answered in a way that I find confusing as "absolute liability" was equated with a term of the contract, rather than liability imputed by force of law irrespective of the presence or absence of fault in the conduct of the person to whom liability is imputed. Lord Justice Longmore (who gave the sole judgement in the case) put the matter thus (at para 12):-

 

"In the absence of any contrary intention, the normal implication will be that service contracted for will be rendered with reasonable skill and care. Of course, absolute obligation may be assumed. If the brochure or advertisement, on which the consumer relies, promises a swimming pool, it will be a term of the contract that a swimming pool will be provided. But, in the absence of express wording, there would not be an absolute obligation, for example, to ensure that the holidaymaker catches no infection whilst swimming in the swimming pool. The obligation assumed will be that reasonable skill and care will be taken to ensure that the pool is free from infection."

 

What I take from that is that if a contract is silent about the provision of a certain service, then there may well be an implied duty to provide that service, but only to a certain standard, viz with reasonable skill and care. If a contract expressly mentions that a certain service will be provided, there will be a duty to provide that service without qualification as to the standard of performance. Thus if it is not being maintained by the pursuer in the instant case that the defenders' contract with her was to provide her with a 100% child proof environment, I cannot see any reason why she should have to make reference to the written or otherwise expressed terms of the contract. It is surely understood from the way that the matter is expressed in the pleadings (viz that there was an implied term in the contract that the hotel supplying the furnished accommodation would take reasonable care and skill to ensure that what was supplied could be used by its customers in reasonable safety and without an unreasonable risk of injury) that whatever form the contract took, it did not include such a term in written form. In the second case, viz 'Wilson' supra the claimed implied term did not relate to the exercise of reasonable care and skill by the hotel in the way it furnished its rooms but to an implied warranty by the tour operator that the structure of the hotel would be reasonably safe. It was stated by Philips J. that the tour operators "would not have considered it either obvious or reasonable that they should give a warranty of that kind." I respectfully agree with that but there is no attempt in the instant case to import such a warranty into the contract and thus no need to aver the extent of the written terms of the contract, or to explore that matter in evidence. The pursuer is entitled to rely on the term implied at common law into the contract for the provision of hotel services that the hotelier will carry out the contract by ensuring that his premises are as safe as reasonable care and skill can make them (cf. Stair Encyclopedia Volume 11: Hotels and Tourism at para 1738), and any proven deficiency in the performance of that duty of care will be imputed to the tour operator by virtue of the 1992 Regulations. The only relevance of the written contract in that context would be if it expressly negatived or disclaimed such an implied term and expressed the disclaimer in such a way that it was not disallowed under the terms of the Unfair Contract Terms Act 1977. It would surely be up to the defenders, as the other party to the contract, with imputed knowledge of the content of the contract, to specify and found on any such disclaimer or exemption. I certainly do not accept that the pursuer's case as it stands is irrelevant because it does not specify the terms of the brochure or other holiday contract.

 

(ii) Lack of averments about local standards

 

I consider that there is more force to the second point made by Ms Nisbet. The pursuer's pleadings attribute the cause of the accident to the inherent instability of a light cupboard unit bearing a portable television weighing approximately 16.25 kg. It is averred (at condescendence 2, page 3, line 80ff):-

 

"The top of the unit was approximately 0.630 metres above the floor. Believed and averred that the effect of the unit's light construction coupled with the glass doors opening outwards to the front surmounted by a television occupying the whole top of unit caused the whole assembly to be unstable with a predisposition to tip forwards if the doors were opened. Such instability and tendency to tip forwards made it reasonably foreseeable that the television on top of the unit would slide off, if the doors were opened. Believed and averred that when the cabinet tilted more than 15/18 degrees below the horizontal, friction between the feet of the television and the flat top of the unit was overcome and the television slid. Believed and averred that in the course of the pursuer's play she opened the glass doors of the unit to reach for her toy causing the unit to tip forwards and the television to slide off the top of the unit and fall."

 

It is further averred in condescendence 3 at page 4 and 5, lines 139 to 156:-

 

"When the television set was on top of the unit, the weight of the unit and the television was not evenly balanced. In particular the bulk of the weight of the television was located to the front of the television. This weight was placed on a board which overhung the front doors of the unit. The front door (sic) of the unit themselves overhung the front legs of the unit, as shown in the side view sketch of the unit number 2/6 of process. As a result, even if the television set was placed centrally on the board, the balancing point of the unit with the television set on it was located over the front legs of the unit. This arrangement meant that it was reasonably foreseeable that the unit would be unevenly unbalanced when the television set was placed on the board. The glass doors at the front of the unit were held closed by magnetic catches. It was reasonably foreseeable that when pulling open the glass doors the balance point of the unit would also move forward. In all the foregoing circumstances described herein it was therefore reasonably foreseeable that when opening the glass doors of the unit that the unit could tip forward, and that if it did so the television would slide forward and off the board to the injury of any person positioned immediately in front of the unit."

 

The defenders point out in their pleadings (at Answer 5, page 6, lines 194 to 203):-

 

"The television and unit conform to local health and safety legislation. There had been no previous complaint, or accident concerning the television units. The pursuer and her family had been staying at the hotel for nine days prior to the accident. The television and units are used throughout the hotel. Since the date of the accident they are still in use, and there have been no accident involving the television and its units. The television unit in itself was not of a construction that it would alert a reasonable hotelier to a risk a toppling. It was not reasonably foreseeable that the unit was unstable when in use."

 

The main issue between the parties therefore is one of reasonable foreseeability of harm. The pursuer cannot point to any previous complaint or accident involving the television unit. She cannot point to what the reasonable practice was in Bulgarian hotels about supporting tv units of similar weight or what a Bulgarian Agency for Health and Safety laid down, if anything, in that regard. She does not say why, if the unit was so inherently unstable, the accident did not happen until 9 days into the holiday when, presumably, the television and cupboard unit had been in use throughout that time. It is known that someone had at some point operated the glass doors of the unit and placed the pursuer's toy inside as it is averred that:-

 

"... in the course of the pursuer's play she opened the glass doors of the unit to reach for her toy causing the unit to tip forwards and the television to slide off the top of the unit and fall." (vide page 3, lines 89 to 91)

 

Foreseeability of the inherent instability of the unit is essential to the question of whether or not there was a duty of care. Mr McInnes for the pursuer came very close to arguing res ipsa loquitur on the basis of the passage relied on from Gloag and Henderson supra but, as Ms Nisbet pointed out, no such case has been pled. There have therefore got to be averments on the part of the pursuer from which such foreseeability can be proved. There appear to be none. As was stated by Lord Jauncey, as the Lord Ordinary in the case of Robb v Dundee District Council 1980 SLT(Notes)91 at page 92:-

 

"Foreseeability falls to be determined from facts and circumstances and if no such facts and circumstances averred foreseeability cannot be established."

 

I accept and agree with the approach in the English cases cited to me (in particular 'Johnson' and 'Logue') that the pursuer would have to be in a position to aver and prove that the choice of a unit of that kind as a suitable support for a television of that weight was contrary to local regulations or, in the absence of such regulations, the generally accepted standards of accommodation locally. I am prepared to accept that those local standards may on some occasions have to be overridden due to the reported and verifiable dangers created by such a unit when used as a television support. The pursuer appears to aver that it would be apparent right away from placing a television of that weight on top of a support unit of that construction that it thereby became an unevenly balanced assembly and that that alone would give rise to liability. I do not accept that such a scenario is sufficient to allow the matter to go to proof. What would or would not be apparent depends both on the extent to which the person observing is trained or experienced in such matters and in what country the training was done and the experience gained. The pursuer's case lacks any local dimension at all and the lack of it is fatal to her case. I can understand why a local solicitor in Fife may be reluctant to make what may be difficult or expensive enquiries of how television units are normally safely installed in Bulgarian hotels but, on the strength of the cases cited to me, it is an essential element in her case. In 'Logue' supra, expert evidence was led of the generally accepted standards in the country concerned. In 'Johnson' supra, an employee of the relevant hotel group, a specialist in matters of health and safety and the assessment of risks gave evidence. In 'Wilson' supra, the manager of the hotel in Greece gave evidence and a UK chemist spoke to British standards. In 'Codd' supra, there was evidence that lifts were inspected regularly by engineers in accordance with Spanish law ie there was a maintenance system in operation that accorded with Spanish law. The cases all failed because the plaintiffs had not led any evidence to the contrary effect. The pursuer in the instant case has put herself in a position that she cannot prove the matter one way or the other as she has no averments on local practice whatsoever. As was stated by Lord Jauncey in 'Robb' supra:-

 

"I am aware that it is only in rare and exceptional cases that an action of damages for alleged negligence can be disposed of on relevancy (Miller v South of Scotland Electricity Board 1958 SC(HL)20, per Lord Keith of Avonholm). However I consider this is such a case, and I shall therefore sustain the defenders' first plea-in-law and dismiss the action."

 

That has been my approach in this case as well and accordingly I have dismissed the action. The defenders are entitled to expenses in that event as the same shall be taxed.