We have previously reported Noble Shipping Law were successful in defending a cruise line against a claim of negligence in Siobhan Kellett v. RCL Cruises Limited, Panther Associates Limited trading as Cruise Holidays and Panther Associates Limited trading as Tour America [2017] No. 6905P. The Plaintiff appealed the decision of Mr Justice Barr to the Court of Appeal in February of 2020. In delivering three judgments, Mr Justice Noonan, Mr Justice Haughton and Mr Justice Collins have dismissed the Plaintiff’s appeal.

The judgments of the Court of Appeal provide a key review of the relevant authorities that apply in assessing the difficult question as to: “What standard of care can be expected of a service provider in the foreign country. “– is it local standards, or the standards of the jurisdiction hearing the claim or some other EU autonomous law standard?

The Plaintiff signed up for “White Knuckle Jet Boat Thrill Ride” as an excursion in St. Maarten from her seven-day Caribbean cruise holiday and was unfortunately injured during the course of a vigorous activity. The Plaintiff claimed the injury she sustained was caused by breach of contract and negligence of the travel agency through whom she booked the cruise, and the cruise operator and that those parties were accordingly liable to compensate her for the injury she sustained pursuant to section 20 of the Package Holidays and Travel Trade Act, 1995 (the “1995 Act”).

Dismissing the appeal, Mr Justice Noonan noted that the appellant’s engineer in the High Court had given no evidence of any relevant standards or regulations that might have applied to the activity in St. Maarten and had been unable to offer any evidence of similar craft anywhere having safety features he claimed should be fitted to such vessels, namely: seatbelts, side bars or side-rails and/or padding on the gunwale. He also noted that the appellant’s engineer gave evidence that he was not aware of any Irish regulations governing such boat trips and that he was unaware of any local regulations in St. Maarten.

In her appeal, the appellant contended that the trial judge erred in his application of the 1995 Act by determining there was an obligation on the appellant to provide evidence of local standards and that this was contrary to the stated purpose of the European regulations upon which the 1995 Act is based (Council Directive 90/314/EEC of 13 June 1990 of the European Communities on Package Travel, Package Holidays and Package Tours) (the “Package Directive”) to protect the rights of consumers. The appellant argued to require a claimant to incur the prohibitive costs of retaining a foreign expert to deal with local standards was consistent to the purpose of the Package Directive. The appellant therefore argued that the normal burden of proof should be reversed placing the onus on a defendant to provide evidence of compliance with local regulations.

Mr Justice Noonan in reviewing the authorities distilled the following principles:

  • “(a) In claims pursuant to section 20 of the 1995 Act, the appropriate test is whether reasonable skill and care have been employed in the provision of the service complained of;
  • (b) the standard by which the test of reasonable skill and care is to be judged is the standard, as distinct from the law, applying in the place where the event complained of occurs. The issue of liability is to be determined by reference to Irish law;
  • (c)   if there are internationally recognised norms applicable to the facts of the case, the court is entitled to have regard to these in its assessment of whether reasonable skill and care has been used;
  • (d)  Per Scaife, there may be cases where the court can have regard to the standards prescribed in Irish legislation such as the Hotel Proprietors Act 1963 and the Occupiers Liability Act 1995 in determining whether there has been compliance with the Directive and the 1995 Act;
  • (e)  it will not necessarily be a defence to a claim to show that local regulations were complied with, if such are recognised locally as inadequate, or are so patently deficient that any reasonable person would view them as obviously inadequate; conversely, there may be a requirement to comply with local standards that are higher than those obtaining in this jurisdiction;
  • (f)   the tour operator is not to be regarded as an insurer;
  • (g)  the onus of proving that the relevant service has been provided without reasonable skill and care rests upon the plaintiff and accordingly, it is for the plaintiff to establish that any relevant standard has not been complied with;
  • (h)  it will normally be difficult for the court to make an assessment of whether reasonable skill and care has been used in the provision of the service, absent evidence of relevant local standards, as distinct from Irish standards, subject to (d) above
  • (i)  the court should not be overly prescriptive as to how compliance with local standards is to be proved. It is not necessarily the case that such proof can only be provided by a locally qualified expert, subject always to the rules of evidence and the relative weight to be attached to non-expert evidence.
  • (j)  The parties may, of course, expressly contract for the provision of a service to a particular standard.”

Mr Justice Noonan noted, based on the above principles, he could not accept the contention of the appellant that an onus fell on the respondents to demonstrate compliance with local regulations. To do so would be a reversal of the burden of proof. He noted that at the trial of the matter the appellant’s engineer was not in a position to offer evidence as to the standards and regulations, if any, that applied to the activity in St. Maarten and indeed was not in a position to offer any evidence of any such standards or relations that might apply in Ireland. Mr Justice Noonan concluded that the appellant’s engineer’s evidence at trial was at best therefore evidence as to what might amount to use of reasonable skill and care for such an activity in this jurisdiction and on that basis the trial judge correctly concluded it was not possible to attribute negligence to the travel agency and/or the cruise operator.

Mr Justice Noonan found the trial judge had “correctly held that the appellant had failed to discharge the requisite onus of proving that the service had been provided without reasonable skill and care when judged against applicable local standards" and that, "even judged by any relevant Irish standard, he could still not find that there had been any breach of duty by the respondents."

In concluding Mr Justice Noonan stated: “At the end of the day, as the trial judge pointed out, this was unfortunately an injury that simply occurred during the course of a vigorous activity.

Mr Justice Collins agreed with Mr Justice Noonan the appeal should be dismissed. He noted the trial judge decided the Plaintiff’s claim on the basis most favourable to her namely by reference to common-law negligence principles (there being no evidence given by the appellant of any relevant local or Irish regulations). Mr Justice Collins agreed with the trial judge’s conclusion that the Plaintiff had failed to establish any liability on the part of the Defendants.

Mr Justice Collins noted that it was not strictly necessary to the disposition of the appeal to consider the Package Holiday Directive and caselaw but considered it appropriate to make some observations as to the legal standard by which a claim should be adjudicated. He noted that Article 5 of the Directive provides limited guidance other than “fault” on the part of the organiser and/or supplier of the service is required. The effect of Article 5 is that the organizer or retailer  is responsible for the failure to perform an/or improper performance by the supplier of the service of the “obligations arising” under the contract. Mr Justice Collins noted however that, whilst the contract was in evidence before the trial judge, that contract did not identify the obligations or the standard by which the performance of those obligations was to be judged. Mr Justice Collins commented that an argument might be made that for an autonomous EU law meaning. He noted however there was no support for this from the caselaw and no argument had been advanced in the proceedings for this effect.

Mr Justice Collins stated that there was clear Irish authority in for the form of the Supreme Court decision in Scaife v. Falcon Lessie Group (Overseas) Limited [2008] 2 I.R. 359 that the standard by which performance of a package holiday contract  is to be assessed is that of “reasonable skill and care.”  Mr Justice Collins noted however the question remains as to what standards reasonableness is to be judged. The approach in England and Wales appears to favour a reference to the regulations and standards applicable to where the accident occurred but Mr Justice Collins highlighted that a number of the cases referred to do not engage with the Directive and refer to standards and regulations of a different nature, some being technical standards, some being advisory and some binding. He also noted that it was far from clear to what extend a court should inquire beyond such local regulations and standards. Mr Justice Collins therefore concluded that a “flexibility of approach identified by the Judge in paragraph 37 of his judgment is, perhaps more apparent than real “ and that had the issue fallen for determination in the proceedings, which it did not, it would have been appropriate to make a preliminary reference to the CJEU under Article 267 TFEU to obtain its opinion on the interpretation and effect of Article 5 of the Directive and, in particular, its opinion as to what are the standards by which the issue of “proper performance” is to be assessed and whether, to the extent that local regulations and/or standards are relevant to that issue of “proper performance”, the onus of proving such should be on the holidaymaker or on the organiser/retailer.

In delivering his judgment Mr Justice Haughton, agreeing the appeal should be dismissed, determined that the trial judge had decided the case on the basis of the standards that might be thought to be applicable in this jurisdiction, thereby adopting the most favourable approach to the appellant. In taking this favourable approach, Mr Justice Haughton concluded the trial judge was entitled to come to the conclusions he did and to dismiss the case on the basis that the appellant had failed to discharge the onus of providing a failure by the respondents to exercise “reasonable care and skill” – the test approved by the Supreme Court in Scaife.

On that basis Mr Justice Haughton noted it was strictly necessary to review the authorities and analyse Council Directive 90/314/EEC of 13 June 1990. He however expressed caution as to principle (b) quoted above from the judgment of Mr Justice Noonan, noting this principle is derived from UK authorities and had not been determined in this jurisdiction. Mr Justice Haughton also expressed a reservation that this conclusion might be counter to the consumer protection objectives of the Directive. He therefore indicated he favoured the approach suggested by Mr Justice Collins that should this issue arise in a case (which it did not in this case) a preliminary reference should be made to the CJEU under Article 267. In concluding however, Mr Justice Haughton stated:

 “As matters stand before pursuing a claim plaintiffs and their lawyers and experts would be well advised to research holiday destination standards/regulations in order to be prepared to establish breach of such local standards, or at least to contest compliance with local standards asserted by a tour organiser as a defence, or alternatively in order to criticise such standards or the manner in which they are applied or policed locally as being inadequate: they would, as has been observed, fail to do so at their peril.