Harrison v Jagged Globe Ltd

Under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, liability for proper performance is confined to obligations undertaken under the package contract. An adventure operator is not liable under the Regulations, or through an implied contractual term, for an activity outside the agreed itinerary. A tort duty cannot be imposed simply because independent guides assumed personal responsibility for an extra-contractual activity. In the absence of a direct or established non-delegable duty, the operator is not liable for collateral negligence by independent contractors. The position may differ where negligence occurs during the ordinary performance of contracted training or climbing services.

The claimant joined a self-led mountaineering expedition in Ecuador arranged by the defendant. The defendant arranged travel, accommodation and local guides. During the expedition, the claimant volunteered for staged falls intended to produce film footage and suffered injury.

The trial judge found that the stunts were outside the package obligations and that the Regulations did not apply. He nevertheless held that the defendant owed contractual and tortious duties because the guides should have prevented the stunts. Judgment was entered for the claimant in respect of one accident, subject to 40 per cent contributory negligence. The defendant appealed on liability. The central issue was whether it owed a duty in contract or tort for the safety of activities outside the agreed itinerary and could be liable for negligence by independent contractors.

Appeal allowed unanimously. Lord Justice Pitchford gave the leading judgment, with Lord Justice Laws and Mr Justice Lloyd Jones agreeing.

1. Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 concerns the proper performance of obligations undertaken under the package contract. The contractual terms determine whether an activity forms part of those obligations. Since the stunts were neither contemplated nor included in the agreed itinerary, the Regulations did not apply.
2. An implied contractual term requiring reasonable skill and care is confined to services which the defendant undertook to provide. It cannot impose responsibility for safely managing an activity for which the defendant was not contractually responsible. In Evans v Kosmar Villa Holidays Limited [2008] 1 WLR 29, the contractual terms, including implied terms, were central to identifying the scope of the tortious duty. The trial judge had overlooked that relationship.
3. The defendant could not be made liable in tort merely because the guides assumed personal responsibility for an activity outside the contractual itinerary. No contractual term had been pleaded or identified which defined the scope or standard of care for that activity. There was therefore no discernible basis for imposing a corresponding direct tort duty.
4. The guides were independent contractors. Under the principle explained in Cassidy v the Ministry of Health [1951] 2 KB 343, an employer or provider remains liable for breach of its own direct duty, but is not liable for collateral negligence by an independent contractor where no such direct duty exists. Wong Mee Wan v Kwan Kin Travel [1996] 1 WLR 38 represented the strongest case for the claimant because the contract expressly included the service negligently performed. That distinction did not apply here. Parker v TUI UK Ltd [2009] EWCA Civ 1261 likewise concerned an assumption of responsibility in a materially different setting.
5. The court observed that the result might have differed if the guides had failed to exercise due care during the ordinary incidence of contracted training and climbing at altitude. On the findings made, however, the defendant owed no relevant duty and the appeal was allowed.

• Court of Appeal (Civil Division): In [2012] EWCA Civ 835, the appeal against liability was allowed unanimously.
• Central London Civil Justice Centre: Following a trial from 7 to 10 March 2011 before His Honour Judge Freeland QC, judgment was entered for the claimant concerning one accident, with 40 per cent contributory negligence. The judge rejected application of the Regulations but found contractual and tortious duties.