More tips on how travel agents may be caught by, or avoid, the PTR - Helen Pugh, 3 Hare Court

26/01/12. On 15th December 2011 the Court of Appeal judgment in Titshall v Qwerty Travel Limited [2011] EWCA Civ 1569 was handed down. It was the second time the Court of Appeal has waded into the debate about when a combination of holiday arrangements is a ‘package’ within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the Regulations”).

This is of real interest to both specialist travel departments and to domestic personal injury lawyers alike. Put succinctly, the broader the definition of ‘package’, the more opportunities for bringing and defending personal injury claims in the English courts pursuant to English law.  Unfortunately, whether a holiday is a ‘package’, within the meaning of the Regulations, is in some cases as clear as mud.

As regular readers will already know, the relevant definition in section 2(1) provides as follows:

“’package’ means the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation:

transport;

accommodation;

other tourist services not ancillary to transport of accommodation and accounting for a significant proportion of the package, 

and

the submission of separate accounts for different components shall not cause the arrangements to be other than a package;

the fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions (whether modified or not) shall not of itself cause it to be treated as other than pre-arranged”

Disputes about whether a purchase includes two or more qualifying components and whether the time condition is satisfied are likely to be rare. The insertion of sub-paragraph (ii) set out above also reduces the likelihood of a dispute about whether a package is pre-arranged. The main area of controversy is over the meaning of ‘sold or offered for sale at an inclusive price’. 
 

ABTA v CAA

The Court of Appeal first considered the meaning of this phrase in ABTA v CAA [2006] EWCA Civ 1356. Chadwick LJ defined the issue as follows:

“The factual question to be resolved – on a case by case basis – is whether the services are being sold or offered for sale as components of a combination; or whether they are being sold or offered for sale separately, but at the same time.”

As Lord Justice Chadwick pointed out, it will often be easy to find an inclusive price where there is no breakdown of the price of each individual component or where there is a universal discount applied to the combination. 
 

Titshall v Qwerty

Mr Titshall had the misfortune of being injured in as yet unexplained circumstances whilst on holiday in Corfu.  He had seen a teletext advert which the judge found “advertised a last-minute get away to Corfu”. Mr Titshall had then rung the number and spoken to a representative of Qwerty Travel Limited, a travel agent. Neither the Claimant nor Qwerty’s representative could remember much about the call. There were no contemporaneous or near-contemporaneous documents such as invoices. The only firm evidence was Qwerty’s evidence of the script used during the call in which callers were informed that Qwerty were acting as agents only for suppliers (which were identified) in respect of the flights and accommodation respectively.  The Judge, trying the matter as a preliminary issue, decided that Qwerty did not sell him a package.

The Court of Appeal allowed the appeal and held that the holiday was a ‘package’. Tomlinson LJ identified two factors as the ultimate undoing of Qwerty. Firstly, at no point was Mr Titshall apparently told that he could purchase the flights or the accommodation, the one without the other. Secondly, an amount levied by Qwerty in respect of ‘service costs’ was a “clear unifying feature connecting the provision of the one service with the provision of the other”. There had been no breakdown of the service costs as it related to the accommodation and flights separately (indeed there was no explanation of what the service costs related to at all) and it “must have been presented as in part the price for putting together the package”.

The relevance of both factors can be firmly traced back to the decision in ABTA v CAA and in particular to the examples given by Chadwick LJ. The importance attributed to the service costs can be seen as the corollary of the importance attributed to a global discount. Similarly, the fact that a consumer was informed that the components could be purchased separately, one without the other, was of high importance in ABTA v CAA. 

Insofar as the decision in Qwerty confirms the importance and correctness of ABTA v CAA, it is of course to be welcomed. However, the decision entrenches the notion that the form of words used rather the substance of the transaction can be of most importance. This will make it easier for travel agents and others to avoid the Regulations simply by using specific wording. To this extent, the decision is to be regretted.

Helen Pugh
3 Hare Court 

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Maynard v Wigan Metropolitan Borough Council [2011] EWCA Civ 1694 - Daniel Tobin, 12 King’s Bench Walk

26/01/12. On 28^th August 2006 the Claimant fell on a grass verge located outside her home in Platt Bridge, Wigan. She suffered very modest injuries to her foot. She eventually brought a claim for personal injuries and loss against the Defendant, alleging that her fall was caused by a breach of Section 2(2) of the Occupiers’ Liability Act 1957.

The Claimant maintained that she fell because her foot had gone into a hole in the grass. She said that her foot had become stuck in it. She estimated the depth of the hole as at least 4½ inches. Her husband estimated it at 6 inches. Neither ever attempted to measure it.

The Defendant local authority accepted that...

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Maynard v. Wigan Metropolitan Borough Council [2011] EWCA Civ 1694 - Daniel Tobin, 12 King’s Bench Walk

26/01/12. On 28^th August 2006 the Claimant fell on a grass verge located outside her home in Platt Bridge, Wigan. She suffered very modest injuries to her foot. She eventually brought a claim for personal injuries and loss against the Defendant, alleging that her fall was caused by a breach of Section 2(2) of the Occupiers’ Liability Act 1957.

The Claimant maintained that she fell because her foot had gone into a hole in the grass. She said that her foot had become stuck in it. She estimated the depth of the hole as at least 4½ inches. Her husband estimated it at 6 inches. Neither ever attempted to measure it.

The Defendant local authority accepted that it was the occupier of the grass verge and that it owed the Claimant the common duty of care.

The evidence about the existence and size of the hole was less than satisfactory. There were no contemporaneous or near contemporaneous measurements or photographs. There were four sets of photographs taken between 2007 and 2010 but none were particularly helpful, not least as there was evidence to suggest that the first in time photographs (which were taken 15 months after the accident) appeared to show that the ground had been tampered with before they were taken. The photographs taken in July 2010 (almost 4 years after the accident) showed a hole or indentation in the grass measuring just 2 inches. The Claimant accepted in her evidence that these photographs gave the best visual impression of the appearance of the hole at the time of her accident, however she did not accept that the actual depth of the hole as measured in 2010 was the same as its depth in 2006.

The Claimant also alleged that she had complained about the hole on several occasions before her accident. It was clear that although the Defendant had a system in respect of which it had done work, not all of which had resulted from complaints, no repair had been effected to the grass verge.

The trial of the claim came before HHJ Hodge QC in February 2011. Although it was listed for 1½ days, the learned judge felt able to give an ex tempore judgment by the end of the first day.

HHJ Hodge, QC found for the Claimant but made a finding of 50 per cent contributory negligence. Accordingly, the Claimant was awarded damages in the sum of £1,500.

The Defendant local authority challenged this decision in the Court of Appeal. The appeal was heard by Dame Janet Smith and Lloyd LJJ.

The Court of Appeal observed that the learned judge had found the Claimant to be an honest witness and had concluded that he should not disbelieve the Claimant’s evidence regarding complaints. 

In the material part of his judgment, the learned judge had said: 

“... the fact and reality of the matter is that I am satisfied that it was as a result of stepping into this hole that Mrs Maynard suffered her fall. That, to my mind, indicates, whatever the precise dimensions of the hole at the time of the accident, that it was a potential and, in the event, an actual source of danger.”

The Defendant alleged that the learned judge did not make any clear findings about the size, depth or characteristics of the hole.

The Court of Appeal agreed that the Defendant’s criticisms of the learned judge’s findings about the defect had validity. The Court of Appeal said that the learned judge’s task was to make findings about the nature and size of the hole and then to decide whether it presented such a foreseeable risk of injury to persons crossing the grass verge that it was reasonable to expect the Defendant to have found and repaired it. It was not open to the learned judge to infer that the hole must be dangerous simply because it had given rise to a fall. That was not a permissible test.

Moreover, criticism was levelled at the learned judge on the basis that he appeared to have inferred that the hole was dangerous merely because the Claimant had complained about it. The Court of Appeal said that, if this was the basis for his finding that the hole was dangerous, then his reasoning would be flawed and his decision could not stand.

However, notwithstanding the flaws in the learned judge’s reasoning, especially in respect the dimensions of the hole, the Court of Appeal held that when the judgment was read as a whole it was tolerably clear that the learned judge did in fact accept the Claimant’s account of how the accident happened and that, although he did not say so expressly, he meant to find that the hole was sufficiently deep for the Claimant’s foot to get stuck in it. That was a finding of fact which was plainly open to him and the Court of Appeal thought that it was the only fact which was consistent with his observations about the Claimant’s truthfulness. If the hole was deep enough to have this effect, it must have been considerably more than 2 inches deep and it would be reasonable to infer from the precise way in which the accident happened that the hole must have been foreseeably dangerous. The Court of Appeal observed that a hole which was deep enough to trap a foot was dangerous. Although it may have been hidden, the Defendant had been warned about it and could reasonably have been expected to rectify it. On the basis of the findings which the learned judge intended to make but did not express, there had been a breach of duty.

Accordingly, notwithstanding the deficiencies in the learned judge’s judgment, the appeal was dismissed.

Comment

This occupiers’ liability claim should be of interest, not just to local authority occupiers, but any entity which may find itself on the wrong end of a claim under Section 2 of the 1957 Act.

It is notable in a number of respects.

First, it is the writer’s professional experience that many a County Court judge feels himself able to infer danger from the mere happening of an accident. In the present case, the Defendant complained that the mere fact that the hole was big enough to cause a fall did not mean that it was a danger. It said that people can fall as a result of very slight imperfections in the surface upon which they are walking or even when there are no imperfections at all. The Court of Appeal agreed. Dame Janet Smith said: 

“It was not open to the judge to infer that the hole must have been dangerous simply because it had given rise to a fall. If that were a permissible test, any fall resulting from even a small imperfection would give rise to primary liability. That is plainly not the law.”

Secondly, the Court of Appeal reiterated an important point which also featured in the judgment of Eady J. in the recent highways case of Kent County Council v. Lawrence [2011] EWHC 1590 (QB); namely, that in determining the issue of danger what mattered was the judge’s own view based on the evidence he had accepted, not the views of the witnesses before him.

Thirdly, the learned judge had correctly set out the test under Section 2(2) of the Occupiers’ Liability Act 1957 when he said that the duty was to take such care as in all the circumstances of the case was reasonable to see that the visitor would be reasonably safe in using the premises or area for the purpose for which he was permitted to be there. The Defendant argued that this meant that the law only required the interests of user of the land to be balanced against what it was reasonable to expect the occupier to do. The Court of Appeal did not expressly reject this submission.

Fourthly, the case illustrates the need for a judge to make clear findings of fact and, where necessary, support his findings with clear reasons. 

One cannot help but feel a measure of sympathy for a Defendant who persuades the Court of Appeal that a learned judge’s findings are inadequate but still loses its appeal. One cannot help but wonder whether the appellate court would have been less forgiving of the learned judge had the claim been of a higher value. This possibility is unlikely to be of much comfort to a Defendant who will, undoubtedly, have paid costs which vastly exceeded the value of the claim.

Finally, a measure of sympathy may need to be accorded to the learned judge, for the Court of Appeal noted that judges are often under pressure of work to give judgment without much opportunity to reflect on how best to explain their reasoning. It may be a sign of the times that similar observations regarding a trial judge’s failure to set out his central findings of fact were made in the recent case of Wilkinson v. City of York Council [2011] EWCA Civ 207, wherein a Deputy District Judge in a fast track trial felt compelled to give what was a very short judgment late in the afternoon. 

Daniel Tobin
12 King’s Bench Walk
Temple, London
EC4Y 7EL

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