18th June 2014 Package travel, glass doors and local standards: Japp v Virgin Holidays

The Package Travel Regulations

If you have an accident abroad whilst on a package holiday, your tour operator may be liable for any personal injury and financial loss under the Package Travel, Package Holiday and Package Tour Regulations 1992. In order to succeed in a claim against the tour operator, you would need to show that the tour operator or the supplier of a service you contracted for (for example, your hotel) failed to perform its contractual obligations to you with reasonable care and skill.

The question of 'local standards'

The obvious question is: how is the test of "reasonable care and skill" to be applied in a foreign country where safety standards may be different to those in the United Kingdom? The matter was first looked at it in detail in the case of Wilson v Best Travel Ltd [1993] 1 All ER 353, where the claimant had tripped and fallen through a glass patio door whilst on holiday in Greece. The judge held that the duty of care owed to the claimant by the tour operator included a duty to exercise reasonable care to exclude from the accommodation offered any hotel where the guests would not be staying in reasonable safety. Importantly, however, the judge held that relevant safety standards were not those applicable in England, but those applicable locally.

Which local standards should be applied?

In the recent case of Japp v Virgin Holidays Limited [2013] EWCA Civ 1371, the Court of Appeal looked in further detail at the question of 'local standards'. As with Wilson v Best Travel, a glass door was involved; this time, the claimant walked through the sliding balcony doors and sustained injury. The claimant's case was that safety glass should have been used as it was required by the Barbados National Building Code, which had been published since 1993.

One of the points the Court of Appeal had to decide was the reference date for compliance with local standards. If different standards had applied at the time a hotel was first built, should those be taken as the relevant local standards? Or should it be the local standards that applied at the time of an accident? The judge below had held that the answer was the local standards that applied at the time of the accident. He also found that the hotel had a continuing duty to tear out and replace all features that did not comply with developing standards. The defendant argued that this placed too difficult a burden on hoteliers and that the appropriate local standards should be those at the time the hotel was built.

The Court of Appeal agreed with the defendant. It confirmed that, when assessing whether a structural feature of a building complies with 'local standards', the local standards to be applied are those that were applicable at the date when the accommodation was built and not at the date of a later accident. Although Lord Justice Richards conceded that there will be circumstances where changing standards specifically provide for action to be taken in existing buildings - for example, where regulations require the removal of asbestos - he found that hoteliers had no duty to engage in a constant process of updating existing buildings so as to reflect changes in standards.

When an accident happens abroad, working out what the applicable local safety standards are is often not a straightforward matter. The case of Japp provides welcome clarification in this regard.

Author profile:

Sarah Ramsey

Barrister, 3 Hare Court

Sarah became a tenant at 3 Hare Court in 2013 and practices in travel law, personal injury and other areas. For Sarah's professional profile please see http://www.3harecourt.com/Barristers/Barrister.aspx?MemberID=57