Harrison v Jagged Globe Limited [29.05.12] Court of Appeal rules that a tour operator was not liable for injuries sustained on a self-led mountaineering expedition during two "stunt" falls; the stunts formed no part of the tour operator's itinerary.
This case highlights the limited responsibility of tour operators in negligence vis a vis consumers for the actions of independent contractors employed by them that fall outside the remit of the contract. It draws a clear distinction from strict liability and the doctrine of assumption of responsibility in travel law, and in that regard, is to be welcomed.
Overall, the decision represents another failed attempt to argue vicarious liability for the actions of a non-employee. Following on from the case of XVW and YZA v Gravesend Grammar School for Girls and Adventure Life Signs Ltd [13.03.12], the courts have made it clear that the doctrine of vicarious liability should be carefully applied.
In this instance the Claimant failed to establish the existence of a duty on the Defendant tour operator to protect her from the risks of unforeseen activities that did not form part of the itinerary which the Defendant put together.
In March 2004, the Claimant was invited by Sir Ranulph Fiennes to accompany him on a self-led expedition to Ecuador in October 2004. Sir Ranulph engaged the services of the Defendant, an experienced provider of mountaineering expeditions, to organise the expedition. The Defendant arranged the services of guides and supplied a professional cameraman to film the expedition. During the expedition Sir Ranulph suggested staging two stunt falls. The Claimant volunteered to be the "victim" and during the stunts she sustained a head injury and a soft tissue injury to her neck.
The Judge at first instance held that the Package Travel, Package Holidays and Package Tours Regulations 1992 (the Regulations) did not apply. The Claimant had volunteered freely and without compulsion and as such, the injuries resulting from the stunts fell outside the scope of the contract. However, the Judge implied a common law duty of care into the contract and imposed a tortious duty of care on the Defendant. He found that the guides’ failure to decline to support the stunts and advise the Claimant against them was attributable to the Defendant. Accordingly, the Defendant was vicariously responsible for the injuries caused.
The Judge assessed the level of the Claimant’s contributory negligence at 40 per cent.
The Defendant appealed.
The Court of Appeal held that the Judge had made an error of law in concluding that the Defendant owed a duty of care in respect of the stunts. Lord Justice Pitchford, in delivering the judgment, held that in having resolved that the Defendant owed no contractual duty to prevent the Claimant from undertaking stunts, it was not open to the Judge to then impose a like duty by way of implied term or tort.
The Court held that the acts of the guides fell outside the scope of the contract and as such, the Defendant could not be held liable for their actions as they were not part of the itinerary. The Court re-affirmed Wong Mee Wan v Kwan Kin Travel , where a contractor is to be held liable for the acts of third parties where the activities undertaken by third parties were part of the contract and should have been performed with reasonable skill and care. The Court also re-affirmed Cassidy v Ministry of Health , namely that a party can be held to be in breach of a duty of care where the third party is an employee (a contract of services) but not if he is an independent contractor (a contract for services).