Judgment
Title: | Scaife -v- Falcon Leisure Group |
Neutral Citation: | [2007] IESC 57 |
Supreme Court Record Number: | 111/05 |
High Court Record Number: | 1999 11061 P |
Date of Delivery: | 12/04/2007 |
Court: | Supreme Court |
Composition of Court: | Hardiman J., Fennelly J., Macken J. |
Judgment by: | Macken J. |
Status: | Approved |
Result: | Dismiss |
 | |
| Judgments by | Link to Judgment | Concurring | Macken J. | | Hardiman J., Fennelly J. | |
|
THE SUPREME COURT
111/05
Hardiman J.
Fennelly J.
Macken J.
Between:Mary Scaife
Plaintiff/Respondent
and
Falcon Leisure Group (Overseas) Ltd
Defendant/ Appellant
Judgment delivered on the 4th day of December 2007 by Macken, J.
This is an appeal from a judgment of the High Court of the 23rd February 2005, and from the Order made thereon by which the High Court found in favour of the Plaintiff against the Defendant in respect of personal injuries sustained by the plaintiff in the course of a holiday in Spain contracted for with the Defendant in the State.
The Background Facts
The plaintiff/respondent entered into an agreement (“the agreement”) with the defendant/appellant, a company registered in the United Kingdom and having a place of business in the State, and who is a provider of, inter alia, package holidays. The agreement in writing was made through a travelling companion of the plaintiff on 29th January 1998. By the terms of the same the defendant agreed, in consideration of the payment of an appropriate sum, to supply to the plaintiff/ respondent and others in a small group travelling with her, a “package holiday”, including flights and hotel accommodation, the latter in the present case comprising what is known as “half board”, that is, breakfasts and evening meals, at Cambrils Princess Hotel in Salou, Spain. The High Court judge found, as a fact, that the hotel itself was of a good standard, since the plaintiff and others in her group had previously stayed there and had chosen to return to that particular hotel.
On the 21st May 1998 during the course of an evening meal, taken towards the end of the serving period, the plaintiff was injured. The injury occurred when the plaintiff, while walking past a pillar on her way to the buffet table to serve herself, fell on liquid foodstuff which had fallen on the floor behind a pillar in circumstances where, it was found by the High Court, she could not have seen the spillage and had no warning of its existence until she fell in it. She suffered physical injuries as a result, and these are not disputed by the defendant.
Although in the course of the High Court proceedings the defendant alleged that the Plaintiff had caused or contributed to her injuries, this defence was rejected by the High Court judge as being without foundation, and the defendant does not seek to maintain that defence in this appeal. In the High Court evidence was tendered by and on behalf of the Plaintiff. The Defendant did not go into evidence, relying instead on legal submissions as to liability.
The High Court proceedings, the argument and the legal findings
In the High Court the plaintiff relied on the provisions of the Package Holidays and Travel Trade Act of 1995 (“the Act of 1995”), an Act which transposed into Irish law Council Directive 91/314/EEC of 13 June 1990 on package travel, package holidays and package tours (OJ 190 L 158) (“the Directive”). The defendant/appellant has accepted that it is an “organiser” that the plaintiff/respondent is a “consumer” the hotel proprietor in Spain a “service supplier”, and that the holiday was a “package holiday” all within the meaning of S.20 of the Act of 1995, which Section corresponds to Article 5 of the Directive.
By an ex-tempore judgment of the High Court (Herbert, J.) delivered after an oral hearing, it was held that the plaintiff was entitled to succeed against the Defendant under S. 20 of the Act of 1995. The High Court judge found that there was a legal duty on a hotel proprietor to take reasonable care to ensure that his hotel was reasonably safe and was maintained in a reasonably safe condition for visitors to the hotel. He determined that S.20 of the Act was not to be given a restrictive meaning, but that the hotel proprietor was not, under the Act of 1995 and contrary to the argument of counsel for the defendants, an insurer to the plaintiff, or bound to foresee or forefend against every possible event. It was only obliged to take reasonable care in respect of an event which was reasonably foreseeable, such as the event which befell the plaintiff. He found that even if the hotel ordinarily operated to a satisfactory standard, there was no evidence to suggest that any appropriate system for avoiding the accident or for warning of the existence of the liquid was in place on the evening in question. Rather on the contrary, it had not acted with reasonable skill and care on the evening in question.
As concerns the Act of 1995, the learned High Court judge held that the clear intention of the legislature, on the plain meaning of the words used, was to give effect to the intention behind the Directive. This intention was to:
“facilitate citizens of Member States who have accidents while on a package holiday abroad by allowing them to sue, so to speak, a central person, [so] that they do not have to sue the supplier of the particular service, in this case the hotel in the country of domicile of the hotel which in this case would have been Spain. They can sue the organiser. And the Section says that the remedy or right of action the organiser may have against the retailer or other supplier of services is not in any way affected”.
He found that the Directive was sufficiently clear on its wording so as not to require him to embark on a purposive interpretation of it. He continued:
“So although in this case Falcon Leisure Group (Overseas) Ltd could be said to have done nothing wrong whatsoever [nevertheless] because of the business which they are in, that is organising and selling package tours, they have to accept as one of the downsides of that, that they will be responsible if somebody providing a [service] does not properly perform the contract. In this case it would have been clearly an implied term of the contract, if not an express term, that the place provided where the ladies were to stay under the package holiday would be safe and would be kept safe”
The High Court judge found that the legislative scheme has as its consequence that the organiser “though not in any way to blame himself, must shoulder the position of defendant to the plaintiff and then recoup their losses from the actual tortfeasor or the person who is the contract breaker, in this case the provider of the service”.
The High Court judge determined that according to the Act of 1995, the defendant was liable for the wrongful acts of the hotel owner, being the latter’s improper performance of one of the obligations under the package holiday agreement and that the plaintiff was entitled to recover from the defendant, by virtue of Section 20 of the Act of 1995, damages in respect of the injuries sustained by her. From that judgment the defendant has appealed to this court.
The Appeal
Senior counsel Mr Counihan, on behalf of the appellant argues that Article 5 of the Directive, and therefore S. 20 of the Act of 1995, and was never intended to harmonise the law of torts relating to accidents causing injury, but only the law relating to obligations arising under a “package holiday” contract itself, so as to ensure the proper performance of the obligations undertaken. Section 20 of the Act of 1995 does not equate the proper performance of those obligations with their perfect performance. He submits that the learned High Court judge misdirected himself in law in holding the appellant was liable, because Section 20 of the Act of 1995 does not cover what he calls an event of “casual” negligence, such as occurred in the present case and about which the appellant could have no knowledge and over which it could have no control, within the meaning of S.20(2)(C)(ii) of the Act of 1995. Although he accepts that, according to the scheme provided for in the Directive and the Act of 1995, in which there is an organiser, a consumer, and other suppliers of services which the organiser has undertaken contractually to provide to the consumer, the correct interpretation of Section 20 of the Act of 1995, he argues, is to make the appellant liable to the respondent only where the supplier of the service, that is to say, the hotel owner in Spain, would have been liable to the respondent were it not for the existence of the scheme established by the Directive and the Act of 1995. It follows that the Act of 1995 cannot be understood as providing that the appellant is to be made liable to the respondent merely because the former’s right of action over against a non performing service supplier, such as the hotel, is enshrined in the Act of 1995.
Further, counsel submits that none of the recitals to, nor Article 5 of, the Directive provides that the protection afforded to a consumer is to constitute a form of insurance or guarantee on the part of an organiser. Therefore the principle of strict or absolute liability which he argues the High Court judge adopted, cannot apply to the appellant in respect of every injury howsoever caused to a consumer such as the respondent who undertakes a package holiday. The Act of 1995 must be understood as providing for liability on the part of the appellant only if there has been fault on the part of the hotel owner in Spain leading to the improper performance of the particular obligation in the contract. The respondent must first therefore establish that there was such a failure on the part of the hotel owner or operator in this case to perform an obligation under the contract. The mere fact that there was a spillage of food upon which the respondent then fell does not, ipso facto, establish that either the hotel failed properly to perform obligations arising under the contract. Counsel for the appellant argues that, for the purposes of determining the liability imposed on him for wrongful acts of a service supplier such as the hotel pursuant to Section 20 of the Act of 1995, it is not possible to discern whether the standard to be imposed on the hotel owner or proprietor for whose acts the appellant is being sought to be made liable, is the Irish legal standard or the Spanish legal standard, but that it must be the latter, being the standard governing the place where the accident occurred.
Senior Counsel Mr McGovern for the respondent, clarifies that he does not contend that S.20 of the Act of 1995, and by implication, Article 5 of the Directive, imposes strict liability on an organiser such as the appellant for the breach of obligations by a service supplier, in all circumstances. He submits that the effect of Section 20 of the Act of 1995 implementing the Directive is to place primary liability on the appellant for the proper performance of the obligations comprised in the contract “package”, whether the obligations are to be performed by him or by others, such as the hotel owner in Spain. The appellant can escape liability only in the limited circumstances identified in Section 20(2) of the Act of 1995, that is to say, only if the events in question could not have been foreseen or forestalled by the appellant or the hotel owner. He submits that the intention to protect the consumer in circumstances such as the present is reinforced by the provisions of Section 20(2) of the Act of 1995. Finally, he argues that, since the contract provided for travel, accommodation, and the provision of meals on a half board basis, it was an implied term of the contract between the appellant and the respondent that all services and facilities would be provided with reasonable skill and care and to a reasonable standard, and they were not. He reminded this Court that the High Court judge had found that, on the evidence, the hotel had been very satisfactory in all respects on an earlier occasion when the respondent had stayed there, but not on the occasion in question, in that any system which might ordinarily have operated in the hotel to avoid or minimize accidents, had not operated appropriately or properly on the occasion in question, for which the appellant, as organiser, was liable under the Act of 1995.
Each of the parties to the proceedings has invoked Irish and United Kingdom case law in support of their respective submissions. This case law is considered further below.
Conclusion
For the purposes of this judgment, it is essential first to set out the provisions of Section 20 of the Act of 1995 which transposed into Irish law the relevant corresponding provisions of the Directive.
The Act of 1995 has as its long title, the following:
“An Act to enable effect to be given to Council Directive No. 90/314/EEC of 13 June 1990 of the European Communities on package travel, package holidays and package tours, to amend the Transport (Tour Operators and Travel Agents) Act 1982, and to provide for connected matters”.
Article 5 of the Directive is transposed by the provisions of S.20 of the above Act which in its relevant part reads as follows:
“20.—(1) The organiser shall be liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by the organiser, the retailer, or other suppliers of services but this shall not affect any remedy or right of action which the organiser may have against the retailer or those other suppliers of services.
(2) The organiser shall be liable to the consumer for any damage caused by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of the organiser or the retailer nor to that of another supplier of services, because -
(a) the failures which occur in the performance of the contract are attributable to the consumer,
(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) force majeure, that is to say, unusual and unforeseeable circumstances beyond the control of the organiser, the retailer or other supplier of services, the consequences of which could not have been avoided even if all due care had been exercised, or
(ii) an event which the organiser, the retailer or the supplier of services, even with all due care, could not foresee or forestall.
…
(8) The provisions of this section are without prejudice to the provisions of the Hotel Proprietors Act, 1963.” (emphasis added)
The Hotel Proprietors Act 1963, referred to in S.20(8) is an Act which legislates for certain rights and obligations concerning hotel proprietors and guests of a hotel. The relevant provision of this Act is the following:
“4(1) Where a person is received as a guest at a hotel, whether or not under special contract, the proprietor of the hotel is under a duty to take reasonable care of the person of the guest and to ensure that, for the purpose of personal use by the guest, the premises are as safe as reasonable care and skill can make them”.
The Occupiers Liability Act 1995 is an Act which legislates for certain rights and obligations concerning occupiers of premises and visitors to those premises. Section 3 of that Act provides as follows:
(1) An occupier of premises owes a duty of care ("the common duty of care") towards a visitor thereto except in so far as the occupier extends, restricts, modifies or excludes that duty in accordance with section 5.
(2) In this section "the common duty of care" means a duty to take such care as is reasonable in all the circumstances (having regard to the care which a visitor may reasonably be expected to take for his or her own safety and, if the visitor is on the premises in the company of another person, the extent of the supervision and control the latter person may reasonably be expected to exercise over the visitor's activities) to ensure that a visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.”
As concerns the Directive itself, since Section 20 of the Act of 1995 faithfully transposes the provisions of Article 5 of the Directive, it is not necessary to set out the terms of that Article separately. It is, however, relevant to cite Article 8 of the Directive which reads:
“Member States may adopt or retain more stringent provisions in the field covered by this Directive to protect the consumer.”
It seems to me that the provisions of the Hotel Proprietors Act 1963 are within the ambit of Article 8 of the Directive since the obligation concerning the state of hotel or other premises, as well as the safety of guests, are provisions protecting the consumer which are or may be, more stringent than the provisions of the Directive. Similarly, apart from the statutory protection given to hotel guests as set forth above, and as specifically retained by the Act of 1995, an occupier’s common law liability to visitors, now enshrined in S.3 of the Occupiers Liability Act 1995, may well also fall within Article 8 of the Directive, even if not specifically referred to in the Act of 1995. Having regard to Mr. Counihan’s argument for the appellant, that the appropriate standard for the High Court to have applied is the standard operating in Spain and not the standard in Ireland, the question arises as to whether the High Court judge was entitled to invoke the standard operating by virtue, inter alia, of the above sections of the above Acts or the established common law tests.
Section 20 of the Act of 1995
Section 20(1) of the Act of 1995 expressly makes the organiser primarily liable to the consumer, and maintains a right of action over in favour of the organiser against the service supplier, in the present case a supplier with whom the appellant entered into arrangements for the provision to the respondent of hotel accommodation in Spain on a half board basis. What requires to be determined is what is meant by “improper performance” of an obligation, and the consequent extent or scope of the liability of the appellant, as organiser, to the respondent, as consumer.
First, it is appropriate to have regard to the wording of the legislation. On a plain reading of this, it seems to me that the correct meaning to be attached to the combination of subsections 20(1) and (2) of the Act of 1995 is that when contractual obligations are assumed by an organiser - the appellant in this case - as part of a “package holiday” contract entered into with a consumer, such as the respondent in the present case, those obligations to the consumer remain the organiser’s obligations, and do not become the independent obligations of the service supplier, such as the hotel in Spain, to the consumer. The Section speaks of (a) the obligations under the contract; (b) irrespective of whether those obligations i.e. the organiser’s obligations, are to be performed by the organiser himself, or (whether such obligations) are to be performed by other suppliers of services; and (c) a right of action over is maintained by the organiser against such other supplier(s) for the latter’s failure to perform the organiser’s contracted for obligations. Thus, when the consumer – the respondent in this appeal – enters into the agreement, it may well be that some of the organiser’s contractual obligations will be performed by other persons, such as hotel proprietors, even in another Member State. That, however, does not change the relationship between the organiser and the consumer, who frequently will not even know the name of the supplier of the services not being performed by the organiser himself.
This is why, when considering the meaning of Section 20(2) of the Act of 1995 (Article 5.2 of the Directive), that organiser’s liability continues to exist “unless” there is to be no fault on his part “because” the failure was due to an event which “the organiser or the supplier of service, even with all due care, could not foresee or forestall.” Apart from such excusing circumstances, it seems to me that the organiser remains at all times liable to the consumer for the wrongful acts in question. If it be the case that the organiser wishes to invoke the defence available in subsection 20(2)(c)(ii) of the Act of 1995, it is for him to establish that there was no such fault either on his own part or on the part of a supplier of the service which he has engaged, once a failure to perform is established by the consumer.
On the questions raised by Mr. Counihan as to the standard to be applied and as to whether the respondent discharged the burden of proof in this case, it is useful first to consider the Irish and United Kingdom cases on the appropriate test or standard to be applied, and which have been invoked by both parties. In Ireland, prior to the passing of the Act of 1995, the case law establishes that the standard of reasonable skill and care is appropriate in assessing the performance of services for the purpose of establishing whether there has been a breach of contract or that a party is liable to another in tort. In McKenna v Best Travel Ltd. [1998] I.R. 57, a case whose events predated the transposition of the Directive, an appeal was taken to the Supreme Court on a limited point of law as to whether the defendant tour organiser was liable in tort for failure to give a warning in respect of conditions in Israel which the customer was visiting as part of a holiday. The claim was originally founded both in contract and in tort. The High Court judge had found that there had been no breach of contract but a breach of duty in tort to the customer. In the course of his judgment on the appeal to this court, Barron, J. stated:
“The duty of care in tort arises from the proximity creased by the contractual relationship. The duty extends to all matters concerning the safety, well being and comfort of the tourists which by the nature of the relationship between the tourists and those providing the service would or should be known to the latter but not to the former. … The defendants in this case were not insurers that nothing would happen to injure the plaintiff. Their obligation stops at taking all reasonable steps to ensure the safety and well being of their customers. … The test is what a reasonably prudent tour operator exercising reasonable care would consider necessary to inform those travelling with it.”
The first of the English cases cited to this court is Hone v Going Places Leisure Travel, unreported, 13 June 2001, [2001], a decision of the English Court of Appeal. There the plaintiff, in the course of an emergency crash landing in which passengers had to disembark from the aeroplane by emergency chute, being unable to avoid colliding into another passenger who was stationery at the bottom of the chute, was in turn struck by the next passenger exiting the aeroplane, and suffered damage to his spine. He sued the defendant under United Kingdom legislation corresponding to the Act of 1995. He alleged there was a failure to perform, or an improper performance, of the contract because, inter alia, there was no trained personnel at the top or bottom of the emergency chute and no instructions to passenger to remove footwear or to use the chute only when it was clear of other passengers. He also claimed that the United Kingdom Regulations, which transposed the Directive more or less verbatim, imposed a strict liability test on the organiser, subject only to the defences found in the Regulations, which mirror those in Section 20(2) of the Act of 1995.
The High Court judge held there that it was for the plaintiff to show that there was improper performance, and in the context of that case, this meant he had to show that his injuries were attributable to the fault of someone supplying services in relation to the package tour. Liability was thus not absolute or strict, subject to certain exceptions. The judge also held that the plaintiff had, in that case, wholly failed to establish that the accident was anyone’s fault. The plaintiff was given leave to appeal to the Court of Appeal on the single question whether the English Regulations transposing the Directive imposed strict liability.
In the Court of Appeal, Longmore, L.J. found that it is necessary frequently to imply a term as to the standard of performance, since the requirement will not normally be set out in any detail in a contract, and that the normal implication will be that the service contracted for will be rendered with reasonable skill and care, unless absolute obligations are assumed (for example the provision of a hotel specifically with a swimming pool). Whereas previously at common law it was controversial as to whether a travel agent himself assumed the relevant contractual responsibility, or only agreed to put the customer into contractual relations with the actual provider of the service, this situation is now resolved by the Regulations. The United Kingdom Regulations do not give any guidance as to the extent of the obligation. However the judge found that the case of Wong Wee Wan v Kwan Kin Travel Services Ltd [1996] 1 WLR 38 was a good example of the approach of the common law on both questions. In that case it was held that a term was to be implied into the contract that reasonable skill and care would be used in the rendering of the services which the travel agent had contracted to provide, whether carried out by him or by someone else.
Longmore, L.J. stated that it was not possible to determine whether a particular complaint founds improper performance, by reference to the Regulations themselves. He stated:
“To my mind Regulation 15(2) does not give the answer to the question “What is improper performance?” Rather it is a requirement of the application of Regulation 15(2) that there should be improper performance. That can only be determined by reference to the terms of the contract. There may be absolute obligations …, but in the absence of the assumption of an absolute obligation, the implication will be that reasonable skill and care will be used in the rendering of the relevant service. There will thus be no improper performance of the air carriage unless there is an absence of reasonable skill and care in the provision of that service. If, as here, it is the claimant who seeks to rely on regulation 15(2), then he has to show that there has been improper performance.
Mr. Dean submits that there was improper performance because the parties expected that the air carriage would be safely executed. That would only be the position if there were a term of the contract that the air carriage would be safely executed. For my part, I do not consider that there was any such absolute term. In the absence of an express agreement, the implication was that the air carriage would be performed with skill and care.” (emphasis added)
The above case of Wong Mee Wan v Kwan Kin Travel Services Limited & Ors, supra., also cited by both parties before this court, was a case which came on appeal from the Hong Kong Court of Appeal to the Privy Council, and concerned the appropriate standard to be applied in a contract of service, being a package tour of part of mainland China offered by a Hong Kong travel company at an all inclusive price. The main purpose of the tour was to visit a lake in China, and part of the tour consisted of a lake crossing, during which crossing the plaintiff was injured. The Privy Council held that there was an implied term of the contract that the services would be carried out with reasonable skill and care. This term did not mean that the defendant undertook to ensure the safety of the plaintiff or of the component parts of the package, or that the plaintiff’s daughter would be reasonably safe. It was a term that reasonable skill and care would be used in rendering the services to be provided. The trip had not been carried out with reasonable skill and care in that no steps had been taken to see that the driver of the speedboat was of reasonable competence and experience and the first defendant was liable for such breach of contract.
On the question that such a term would impose an intolerable burden on package tour operators, Lord Slynn of Hadley. stated:
“It must be borne in mind that the tour operator has the opportunity to seek to protect himself against claims made against him in respect of services performed by others by negotiating suitable contractual terms with those who are to perform those services. He may also provide for insurance cover. … It also has to be borne in mind, in considering what is ‘tolerable’ or reasonable between the parties, that the traveller in the position of Miss Ho Shui Yee could have no influence on the terms negotiated by the tour operator with third parties, and if injured by their lack of care would, if having no right against the package tour operator, be obliged to pursue a claim in a foreign country. The difficulty involved in doing so does not need to be elaborated. In considering what is or is not tolerable as between traveller and tour operator it is of some relevance to note the Package Travel, Package Holiday and Package Tours Regulation 1992 … made pursuant to Council Directive 90/314 (EC). The organiser or retailer of the package tour –
‘15(1) … 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 of the contract …’
…
These terms do not of course apply to the present contract but they do throw some light on the contention that an unreasonable burden would be imposed if the contract were held to contain a term that reasonable skill and care would be used. …”
The case of Healy v Cosmoair Plc [2005] All E.R. 432), invoked by Mr. Counihan on behalf of the Appellant, also proceeded on the basis that the standard was that of reasonable skill and care. The technical issue in that case, which depended on Spanish standards applicable to them, concerned only the question of slippiness of tiles. There is no true comparison between the position in the present case and the facts in that latter case. The Respondent invokes that case apparently on the hypothesis firstly that there may be a difference between Irish and Spanish law on the appropriate legal standards governing the safety of hotels for visitors or guests, and on the further hypothesis that it may be the case that the Spanish standard governing the safety of hotel premises is lower than that which is applicable in Irish law, and more easily met by the hotel owner, for there would be no point in the appellant raising such an issue unless that were the case. Apart from the fact that this does not appear to have been an issue in the High Court, there was no evidence to support either hypothesis. Further, the application of a lower standard, if such exists in respect of the safety of hotels in Spain, might not necessarily comply with the provisions of the Directive. In that regard, the following extract from the Opinion of Advocat General Tizzano in the case of Leitner v TUI Deutschland GmbH & Co. KG, a case invoked by both parties, is telling:
“More specifically, I note that, in the event of any doubt, the provisions of the Directive in question must be interpreted in the manner most favourable to the person whom they are intended to protect, namely the consumer of the tourism service. That may be inferred not only from the systematic analysis of the text and aims of the Directive, but also from the abovementioned fact that it was adopted pursuant to Article 100a, paragraph 3 of which requires that harmonisation measures in respect of consumer protection should be based on a high level of protection.”
The conclusions to be drawn from all of the above cited cases are that, both before and after the coming into force of the Directive and its transposition in national law, the established principle is that the organiser is not an insurer to the customer. The learned High Court judge correctly found that the hotel proprietor was not such an insurer under the legislation. The above cases also establish the principle that the test is not one of strict liability, and in that regard I am satisfied also that the High Court judge’s finding, when correctly read, was not that strict liability applied. The final principle clearly established by those cases is that the standard by which the acts in question are to be judged is that of reasonable skill and care, which standard, if not expressed in a contract will be readily implied into it. In the circumstances, I am satisfied that the reasonable skill and care test generally applicable according to the above case law and by statute, and applied by the learned High Court judge, was the correct test in law.
There remains only the question as to whether the plaintiff established that there was a failure to perform an obligation under the contract on the part of the hotel proprietor in Spain by reference to that test of reasonable skill and care. I reject the appellant’s argument that the extent of the liability on the organiser under a contract of this nature is confined, so far as hotel premises are concerned, to ensuring that the structure itself is safe. The contract here was for travel and hotel accommodation on a half board basis, and the latter clearly included the provision of an evening meal as a necessary ancillary part of the accommodation service provided. An implied term that the same would be furnished with reasonable skill and care follows from my earlier findings. The learned High Court judge heard and accepted the evidence of the plaintiff and others as to the following facts: (b) there was evidence of a liquid substance being on the hard marble floor measuring about 30 inches in diameter which, from its description, could properly be found by him to be a soup or a sauce which had fallen on the floor and on which the plaintiff slipped; (c) the nature of the spillage was such that it must have been caused by staff clearing away foodstuffs, it being evident that they were doing just that when the accident occurred; (d) it was not possible for the plaintiff, while navigating past a pillar where the spillage had occurred, to have seen it or to have had any opportunity to avoid it, (a fact now accepted by the defendant); (e) the spillage had not been removed when the respondent went towards it; (a) there was no warning or other indication by means of any crash of utensils, for example, such that might have put the plaintiff on notice that something untoward had occurred; and (f) there was no barrier or tape or other item placed around the area, if there had been insufficient time for the hotel staff to remove the spillage before the Plaintiff suffered the accident . Moreover, when the accident did occur, it is unchallenged that there was an immediate direction to the staff to bring buckets of sawdust or some such absorption material, to where the spillage took place to cover it and sweep away the debris. It is telling that this was done on the instructions of the Manager of the hotel, for it clearly follows that the spillage could have been readily taken care of, and that the hotel had a system in place for dealing with just such an event, and was able to do in the normal course of events, but had not done so on the occasion in question, prior to the respondent falling.
Having regard to the foregoing, the learned trial judge had before him evidence that the accident was a wholly foreseeable event on the part of the service supplier, the hotel in Spain, that they had in place a system which could have warned of the hazard and/or prevented the accident, but had not operated that system on the evening in question. In the circumstances, the learned High Court judge was entitled to find that the service in question was not supplied with reasonable skill and care. He was therefore correct to find for the Plaintiff.
I would dismiss the appeal and affirm the order of the High Court.