When pursuing a claim for damages against a tour operator, the question of liability is ordinarily decided with reference to local standards, rather than those that apply in the UK. It is, therefore, very important to obtain credible evidence from local experts to clarify the standards against which a hotel should be measured.
The Court of Appeal recently scrutinised the current case law and some potential ambiguities following the three day trial ofLougheed v On the Beach.
The claimant suffered injury after she slipped while holding on to a handrail when descending polished granite steps in the hotel that she had booked as part of a package with On the Beach. Although her solicitors applied late in the day for permission for their own expert evidence on local standards, this was refused due to concerns that the delay might derail the court timetable.
In the absence of supporting expert evidence, the claimant primarily relied on the oral testimony of the hotel manager when cross-examined. He stated that there were no such specific standards in Spain but that the stairs were cleaned daily, wet floor signs were used and staff were responsible for cleaning up any identified spillages. The trial judge found that there was a foreseeable danger arising from the use of the stairs by people who had just come from the pool and that the defendant was negligent for allowing this to happen and in breach of local standards.
The appeal judge overturned the decision. He concluded that the standards by which the hotel was to be judged in its performance of unregulated tasks had to be informed by local standards of care as applied by similar establishments. In this case, there had been no enquiry as to the general practice in similar establishments concerning the monitoring of public areas with a view to identifying and removing spillages or areas of liquid which might pose a hazard to guests. It was also not possible to draw an inference of want of care without sufficient evidence of Spanish standards.
The trial judge's finding of a foreseeable danger also fell far short of a finding that the hotel knew of the likelihood of a dangerous situation arising. Not everything which was foreseeable was likely.
This decision hammers home the point that evidence on local standards forms a crucial part of a claimant’s armoury against a tour operator. In the words of Tomlinson LJ: “A Claimant who chooses not to adduce such evidence in a case of this sort does so at his peril”.