QCR Winter 2019: Package holiday – negligence – personal injury - sometimes accidents happen
Kellett v RCL Cruises and Others High Ct (Barr J)  IEHC 408
The plaintiff and her husband booked a cruise with the first defendant through a travel agent, the second defendant in the case. Before leaving for the cruise, the plaintiff signed up for the “White Knuckle Jet Boat Thrill Ride” at St Maarten though the first defendant. Prior to booking the excursion, the plaintiff had looked at the website of the company providing the “White Knuckle Jet Boat Thrill Ride” where she saw photographs of the ride in progress and watched a video showing the excursion.
On the day of the excursion, there was a safety briefing and the participants were issued with lifejackets. During the excursion, the skipper indicated that he was going to make a 360-degree turn to starboard. As instructed during the safety briefing, the plaintiff planted her feet on the floor of the boat and held tightly to the bar in front of her. However, she found herself lifted out of her seat and coming back into her seat with some force. When she fell back into her seat, her right elbow struck against the starboard gunwale and she suffered an undisplaced fracture of the lateral epicondyle of the right elbow and a small focal tear in the area.
The plaintiff brought proceedings under section 20 of the Package Holidays and Travel Trade Act 1995 (the 1995 Act). The plaintiff alleged that the boat used during the excursion was in an unsafe and dangerous condition having regard to the vigorous manoeuvres that were going to be undertaken as part of the excursion. She argued that the boat should have had a safety harness or lap belt fitted, a bar along the gunwales on either side of the boat, padding on the gunwales, and she should have been sat in a different part of the boat.
The defendants conceded that they were each an “organiser” of the package holiday, as defined in the 1995 Act but argued that: 1) as the plaintiff had voluntarily elected to go on an activity, which she knew would involve vigorous manoeuvres done at speed, she could not complain if she happened to injure herself in the course of such activity; 2) they were entitled to rely on the exceptions to the imposition of liability on an organiser provided for in section 20(2)(a) “the failures which occur in the performance of the contract are attributable to the consumer” and (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” of the 1995 Act; and 3) the plaintiff had not discharged the onus of proof of establishing that there had been negligence, or breach of duty on the part of the excursion operator.
The court held that the following principles applied:
- The 1995 Act imposed a vicarious liability on the organiser in respect of negligence and/ or breach of duty by a service provider engaged by it;
- The liability imposed by the 1995 Act is not a strict liability. In general, if it is established that the service provider complied with all relevant local regulations and standards, they and the organiser will not be liable in negligence or breach of contract to the consumer, unless it can be shown that such local standards were patently deficient, or were not in conformity with uniformly applicable international regulations. It is possible for a consumer to expect a five-star service, or service to a standard comparable to that found in first world countries, if there is a stipulation to that effect in the consumer’s contract with the organiser and in such case the consumer would have an action for breach of contract;
- The onus rests on the plaintiff to establish that the service provider did not provide the service in accordance with local regulations or standards, or in accordance with internationally recognised regulations.
The court rejected the defendants’ first two arguments. The court found that just because a person signs up to participate in an excursion or activity which involves some risk and as such would be taken to have consented to such injuries as could reasonably be expected might occur in the course of such an activity, it cannot be said that they thereby consent to the excursion operator, or other people engaged in the activity, acting in a negligent fashion towards them.
Nevertheless, the court held that the plaintiff has not established that the excursion operator failed to comply with the relevant standards applicable in St. Maarten. There was no evidence of what those standards might be. There was also no evidence of any uniformly applicable international or even Irish standards or regulations that would apply to an excursion operator providing similar service in Ireland.
The court was satisfied that the boat was in good seaworthy condition and was safe for the activities which were proposed for the excursion. The court found that if the passengers were strapped to their seats by harness or lap belt, as suggested by the plaintiff, that could lead to fatalities if the boat was to capsize. While the risk of ejection of a passenger while doing a 360degrees turn may be higher than the risk of capsize, the risk of a capsizing of the boat with twelve passengers strapped into their seats would be so grave, that one could not advocate their use. The court also found that the provision of a sidebar along the gunwales would constitute a serious tripping hazard at each embarkation and disembarkation of the vessel. The need for padding along the gunwales was also rejected by the court given that the cost of the padding would outweigh the benefit of it. No regulation was put in front of the court, which mandated such measures being put in place nor was there any evidence of any such measures being adopted in similar craft undertaking similar manoeuvres elsewhere in the world. In the circumstances, the court declined to find the boat owner negligent for failure to provide safety features listed by the plaintiff.
The court did not find any evidence of negligence on the part of the excursion operator; therefore there was no liability on the part of the defendants under the 1995 Act. The court held that in this case the plaintiff signed up for an adrenaline infused boat ride. She was not able to keep herself seated as instructed and as a result, she injured herself. It was simply an injury which occurred in the course of a vigorous activity. The plaintiff’s action was dismissed.
This is yet another case in which the plaintiff asked the court to apply to the service provider and the organisers a much higher standard than compliance with local and uniformly applicable international regulations. The judgment is a welcome reminder that if it is established that the service provider complied with all relevant local regulations and standards, they and the organiser will not be liable in negligence or breach of contract to the consumer, unless it can be shown that such local standards were patently deficient, or were not in conformity with uniformly applicable international regulations or there is an express term in the contract applying a much higher standard. In the last case the consumer would have an action for breach of contract.
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