Hone v Going Places Leisure Travel Ltd

Under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, a contracting party is responsible for obligations performed by other service suppliers. The regulation does not determine the content or standard of those obligations.

Improper performance must be established by reference to the package contract. Unless the contract assumes an absolute obligation, it will ordinarily contain an implied term that services are performed with reasonable skill and care. A consumer alleging personal injury must therefore prove a failure to exercise such skill and care. The occurrence of injury during a contracted service does not itself establish improper performance or impose strict liability.

The claimant contracted with the defendant travel agent for a package holiday in Turkey. During the return flight, a bomb scare led to an emergency evacuation by chute. The claimant injured his back when another passenger descended behind him.

Douglas Brown J dismissed the claim under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992. He held that the claimant had to prove improper performance through fault by the relevant service supplier and that the evidence did not establish such fault.

The claimant appealed against the rejection of strict liability, the allocation of the burden of proving fault and the judge's treatment of ministerial statements recorded in Hansard. The central issue was whether injury during a package-tour service itself established improper performance or whether the claimant had to prove breach of the contractual standard of reasonable skill and care.

1. Appeal dismissed unanimously. Longmore LJ delivered the leading judgment. Carnwath J and Henry LJ agreed.

2. Regulation 15(1) of the Package Travel, Package Holidays and Package Tours Regulations 1992 resolves who bears contractual responsibility. The other party to the package contract is responsible for the proper performance of obligations performed by an airline or another service supplier. The provision does not determine the content or standard of those obligations.

3. The content of the obligation must be derived from the contract. A contract may contain an absolute obligation, such as an express promise that a specified facility will be provided. In the absence of express wording or another contrary intention, the normal implied obligation governing the performance of services is one of reasonable skill and care.

4. Regulation 15(2) requires failure to perform or improper performance before liability for resulting damage arises. The claimant's case concerned improper performance. He therefore had to prove that the air-carriage service was not performed with reasonable skill and care. The parties' expectation of safe carriage did not create an absolute contractual guarantee that no injury would occur.

5. The Regulations did not adopt the liability scheme of the Warsaw Convention. Articles 17 to 19 of that Convention imposed liability upon the occurrence of specified events without requiring improper performance. The express requirement of improper performance in regulation 15(2) showed that a different scheme was intended. The fault-based exceptions in regulation 15(2) were not rendered otiose because they could still operate where the contract contained an obligation that was itself absolute.

6. Ministerial descriptions of the regime as imposing strict liability did not alter that construction. Their context showed that the description could refer to the organiser's or retailer's responsibility for services performed by others. The statements did not establish that every obligation under a package contract was absolute. The context also differed from Pepper v Hart [1993] AC 593, where the responsible Minister's statement concerned the policy underlying primary legislation promoted by a government department.

7. The claimant had not established any failure by the airline staff to exercise reasonable skill and care. The judge's dismissal of the claim therefore stood. The appeal was dismissed with costs.

1. Court of Appeal (Civil Division): The claimant's appeal was dismissed unanimously, with costs. The court affirmed the conclusion that the claimant bore the burden of establishing improper performance under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992.

2. High Court of Justice, Queen's Bench Division, Manchester District Registry: Douglas Brown J dismissed the personal injury claim. He held that liability was not absolute and that the claimant had failed to prove fault by anyone supplying the package-tour services. No citation for that decision is stated in the judgment.