Accidents abroad: The need for evidence of local standards

By Elliot Kay

Lougheed v On The Beach Ltd [2014] EWCA Civ 1538

 Summary

A holidaymaker who sustained personal injuries from slipping on a wet staircase in a hotel in Spain succeeded at first instance in a claim against the holiday operator. The Court of Appeal overturned the first instance decision where there had been no evidence of local standards of care and the judge had wrongly imposed an evidential burden of proof on the holiday company to prove it exercised reasonable care and skill in performance of the contract.

The case

Ms Lougheed (“L”) booked a package holiday with her family to Spain using On the Beach Ltd (“O”). L suffered fractures to her ankle and shoulder when she slipped on a patch of water on a flight of polished granite steps in the hotel. L successfully contended that O was liable pursuant to regulation 15(1) of the Package Travel, Package Holidays and Package Tours Regulations 1992. Importantly, no expert evidence as to local standards of floor-cleaning, inspection or maintenance was adduced at trial. The hotel manager stated that no specific standards existed in Spain but that the stairs were cleaned daily, wet floor signs were used, and staff were responsible for cleaning up any spillages identified. The judge found that there was a foreseeable danger arising from the use of the stairs by people who had just come from the pool.

O appealed. The issues on appeal were whether the judge had been wrong to (i) rely on the evidence of the hotel manager in relation to local standards; and (ii) find that O bore an evidential burden of proof.

In allowing the appeal, Tomlinson LJ, Floyd LJ and Ouseley J held as follows:

• Standards of maintenance and cleanliness vary from country to country; evidence of local standards was required and should have been adduced at trial. If the English court found local standards to be unacceptable, it is unrealistic to judge performance in that country by reference to standards expected in England and Wales. Instead, the hotel should be judged by reference to local standards of care as applied by similar establishments. In the instant case, no expert evidence as to local standards had been adduced and there had been no enquiry as to the general practice in similar local establishments. It was not possible to draw an inference of negligence without sufficient evidence of Spanish standards.

• The judge had not been justified to conclude that the accident would not have happened if the hotel management had used proper care. It was an accident which could have occurred despite the use of proper care, as would have been the case if, for example, L had negotiated the stairs before the puddle ought reasonably have come to the attention of the hotel staff. An evidential burden should not be imposed upon a party such as O unless it was shown that the hotel knew of the likelihood of the presence of a hazard and also of the danger posed to consumers by that hazard if not dealt with promptly.

Comment

This case highlights the importance of adducing expert evidence of local standards in international slip/trip cases. In a case like this the Court will not judge the performance of a foreign individual/business by reference to domestic standards; rather it will determine whether the Defendant’s conduct fell below local standards; quite straightforward when you think about it.

You can read the full judgment here

Tags: Accidents abroad, burden of proof, Elliot Kay, Evidence, local standards