On 6 June 2019 Mr Justice Barr delivered his judgment in the case Siobhan Kellett v. RCL Cruises Limited, Panther Associates Limited trading as Cruise Holidays and Panther Associates Limited trading as Tour America [2017] No. 6905P. Dismissing the Plaintiff’s action against the cruise operator, Mr Justice Barr found there was no negligence on the part of the defendants and that the Plaintiff who had signed up for “an adrenaline-infused boat ride” had unfortunately simply been injured during the course of a vigorous activity.

In 2016 the Plaintiff booked a seven day cruise in the West Indies with the first named defendant on the cruise ship the "Freedom of the Seas". Prior to leaving Ireland, the Plaintiff booked through the first defendant an excursion entitled "White Knuckle Jet Boat Thrill Ride” to go on whilst the cruise vessel would be docked in St. Maarten. When booking the excursion the Plaintiff had viewed the website of the company providing the excursion and she saw photographs and a video of the ride in progress. The tour was described as:

“If your goal for a perfect vacation day involves an adrenaline-infused rush from a water rollercoaster ride then you are in the right place.

The only one 'White Knuckle' Jet Boat thrill ride - water rollercoaster on St. Maarten offered to you daily with an hourly departure.

When you’re aged 5 or higher (minimum height 4ft 2in and up) and enjoy exciting boat rides, then you will love this sort of ride - the kind with 180, 270 and 360 degree spins with sweeping turns, amazing tricks and manoeuvres, such as sideway slides, sashays and as you travel up to 53 miles per hour with a 300 HP jet boat, you'll enjoy approximately 30 minutes of exhilarating action, that will have you involuntarily laughing and praying for your life

And that will knock you silly!

It will be your big event of this vacation: thrill jet boat ride! The best adrenaline rushes in St. Maarten. "

On the fifth day of the seven day cruise the cruise vessel docked in St Maarten and the Plaintiff and her husband were collected from the cruise vessel by the operator of the ride. While on the ride, the skipper made a 360 degree turn to the starboard side. The Plaintiff, who was at that stage sitting on the extreme right of the front bench, was allegedly lifted out of her seat even though she was holding on to a bar in front of her seat. She claims she fell back into her seat with force and struck her right elbow against the gunwale on the starboard side of the boat. An x-ray taken two weeks after the Plaintiff arrived back in Ireland revealed that she had suffered an un-displaced healing fracture to the lateral epicondyle in her right elbow.

In the proceedings the Plaintiff claimed that the first defendant as the provider of the cruise and the second defendant, which was the travel agent through which she had booked the cruise were liable to compensate her in respect of her injuries, loss and damage, pursuant to the provisions of s. 20 of the Package Holidays and Travel Trade Act 1995. The Plaintiff alleged that the white knuckle tour boat was unsafe and dangerous. In particular she alleged that due to the manoeuvres the ride should have included a safety harness or lap belt, a bar along the gunwales on either side of the boat and padding on the gunwales should have been fitted as safety measures to the boat.

At the trial of the matter expert evidence the Plaintiff called Mr Barry Tennyson to give expert evidence. Mr Tennyson stated that making a 360 degree turn at speed was in his view a very unusual manoeuvre for a boat to make turn. He stated that in his expert opinion the excursion operators should have provided a harness or lap belt, or a sidebar for the passengers at the extremities to hold onto and/or should have provided padding to the gunwale on each side of the boat to prevent people injuring themselves, should they come into contact with them. He claimed that these were practical and inexpensive safety features which should have been put in place by the excursion operator in light of the manoeuvres which it was intended would be carried out during the excursion.

Under cross examination Mr. Tennyson admitted he had not inspected the boat in question and was not aware of the make or model of the boat nor had he undertaken any research to find this out. He confirmed his opinion was based on his interview of the Plaintiff and from his review of the boats used on the excursion as set out on the excursion operator's website. Mr Tennyson confirmed he was not aware of any Irish regulations governing such boat trips and he was not aware of any local regulations, guidelines or standards applicable in St. Maarten for boats doing such trips. When asked could he point to any boat where these features had been used, Mr. Tennyson stated that he had been on a boat on the River Thames in England, which had side rails. He admitted that such boats on the Thames did not have any seatbelts or padding, but they were not going to do 360 degree turns.

When put to him that the use of a safety or lap belt would be dangerous in the event of the boat capsizing, Mr. Tennyson stated that in his view the risk of capsize occurring, was far less than the risk of a person being ejected during a 360 degree turn performed at speed and as such a safety belt was justified.

The 27 page judgment of Mr Justice Barr provides a significant and comprehensive review of case law of the liability of an organiser pursuant to section 20 of the Package Holidays and Travel Trade Act 1995 (the 1995 Act”).

Section 20 of the 1995 Act provides as follows:

"20. (I) 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."

Mr Justice Barr referred to the leading Irish case on section 20: Scaife v. Falcon Leisure Group (Overseas) Limited [2008] 2 I.R. 359. In that case the Plaintiff slipped and fell in a hotel restaurant in Spain. The Supreme Court had to consider whether the travel agent as the organiser of the holiday under section 20 of the 1995 Act was liable for the negligence of the hotel staff in failing to keep the floor clean and safe. Macken J delivering the judgment of the Supreme Court held that the organiser was not an insurer of the customer nor was the hotel proprietor. The test was not one of strict liability and that the standard by which the acts in question were to be judged was that of reasonable care and skill.

Mr Justice Barr went on to review a number of English authorities which had looked at the issue of the standard of care to be provided by service provider in a foreign country. He referred firstly to the case of Wilson v. Best Travel Limited [1993] 1 All E.R. 353 in which the court had to consider whether there was a breach of duty by the travel agent in circumstances where glass doors in a Greek hotel were fitted with ordinary 5mm glass which complied with Greek safety standards, but did not comply with British safety standards. Mr Justice Barr in his judgment quoted from the judgment of Philips J as follows:

"What is the duty of a tour operator in a situation such as this? Must he refrain from sending holiday makers to any hotel whose characteristics, insofar as safety is concerned, failed to satisfy the standards which apply in this country? I do not believe that his obligations in respect of the safety of his clients can extend this far. Save where uniform international regulations apply, there are bound to be differences in the safety standards applied in respect of the many hazards of modern life between one country and another. All civilised countries attempt to cater for these hazards by imposing mandatory regulations. The duty of care of a tour operator is likely to extend to checking that local safety regulations are complied with. Provided they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question. "

Mr Justice Barr then referred to the decision in Gouldbourn v. Balkan Holidays and Flights Limited [2010] EWCA Civ. 372. In that case the court considered the standard of care which had to be exercised by a ski instructor when teaching a class of novices. The trial judge had concluded that the instructor's conduct had to be judged against the relevant local standards in Bulgaria. There was no evidence as to the content of such local standards and the claim was accordingly dismissed. Mr Justice Barr noted that in the course of his judgment, Leveson L.J. addressed the issue as to the standards applying both locally and in the UK and in considering which was to be adopted as being the appropriate standard against which to assess the liability of the service provider he stated:

"It is a mistake to seek to construe the judgment of Phillips J. as if it was a statute: see the observations of Richards L.J. in Evans v. Kosmar Villa Holidays pic [2008] 1 WLR 297 at para 24 page 3068 to the effect that the case did not purport to be an exhaustive statement of the duty of care. Nevertheless it does identify a very important signpost to the correct approach to cases of this nature, which will inevitably impact on the way in which organisations from different countries provide services to UK tourists. To require such organisations to adopt a different standard of care for different tourists is quite impracticable. What might be required for American tourists may well be different to that required by a French or Western European tourist, itself different to that required by a Japanese tourist. Neither do I consider that the Regulations impose a duty on English tour operators to require a standard of care to be judged by UK criteria or necessarily western European criteria."

Mr Justice Barr’s decision then considered the English Court of Appeal decision in Lougheed v. On The Beach Limited [2014] EWCA Civ. 1538 and noted that the court in that case held that mere compliance with the local regulations did not exhaust the inquiry as to whether the service operator had provided the service with reasonable skill and care. Quoting sections from the decision of Tomlinson L.J;-

"It follows that I cannot accept Mr Huckle's broad submission that local standards are a distraction and not determinative of the issue whether reasonable skill and care has been exercised. I would accept, as is obvious, that mere compliance with locally applicable regulations will not exhaust the enquiry, for the very reason that the locally applicable standards may recognise that such compliance is of itself insufficient. But I reject the suggestion that the English court can, if it finds local standards to be unacceptable, judge performance in that locality by reference to the standards reasonably to be expected of a similar establishment operating in England or Wales. Such an approach is neither sensible nor realistic. It is also precluded by authority."

Mr Justice Bar however noted that the learned judge went on to stress the importance of the claimant establishing the applicable local regulations in relation to the provision of the service.

Mr Justice Barr in his judgment finally reviewed the decision in Kerr v, Thomas Cook Tour Operations Limited [2015] NIQB 9. In that case the court had to determine whether the travel agent was liable when the plaintiff was attacked by a cat in the grounds of the hotel in which she was staying in Tunisia. The court found as a fact that both the hotel management and the defendant must have known of the presence of a large number of cats in or around the hotel. This was due to the fact that the defendant had carried out monthly health and safety and quality audits at the hotel. The court was satisfied that the person who carried out those audits on behalf of the defendant must have observed the large number of cats in and around the hotel. Maguire J. stated as follows:

“The court can see that differential standards of care may well exist as between one country and another in relation to a matter of this kind.”

Following review of the various authorities Mr Justice Barr concluded that the following broad principles apply:

1. The 1995 Act imposes a vicarious type liability on the organiser in respect of negligence and that a breach of duty on the part of third parties who are engaged by it;
2. The liability imposed by the 1995 Act is not a strict liability;
3. The Plaintiff must establish negligence or breach of duty on the part of the service provider in order to establish liability on the part of the organiser;
4. The standard of care to be applied is that of reasonable care and skill and that if it is established that the service provider complied with all relevant local regulations and standards the organiser will not be liable in negligence or breach of duty unless it can be shown the local standards were patently deficient or were not in conformity with uniformly applicable international regulations.

Applying these principles, Justice Barr noted that Mr Tennyson had not pointed to any standards or regulation in St. Maarten, or in Ireland, or elsewhere which mandated the use of the safety features the Plaintiff or Mr Tennyson proposed should have been fitted to the boat.

Mr Justice Barr stated that he was not satisfied that there was any substance of the allegations of negligence made against the service provider. Mr Justice Barr noted that the duty at common law is only to take reasonable care to prevent those injuries that are likely to occur if reasonable care is not taken. “One does not have to take steps to prevent all possible injury, no matter how remote or unlikely it may be. To impose such a duty would in effect make the person an insurer for the safety o the other person.”

Mr Justice Barr concluded he could not find any liability on the part of the defendants under the 1995 Act and dismissed the Plaintiff’s action.

Noble Shipping Law, Jim O’Callaghan SC and Darren Lehane BL were instructed on behalf of the Defendant.