Japp v Virgin Holidays Ltd

Whether a structural feature of holiday accommodation complies with local safety standards is ordinarily assessed by reference to the standards applying when the feature was designed and installed. A hotel has no general duty to rebuild or refurbish continually as standards develop.

A later standard may require action concerning an existing structure. In that event, its specific requirements may create a duty to alter the premises. Local standards may also arise from a voluntary code where professional custom and practice recognise that code as setting the applicable safety standard.

A holidaymaker suffered lacerations when she walked into closed glass balcony doors at a hotel in Barbados and the glass shattered. The Brighton County Court held the tour operator liable, subject to a 20% deduction for contributory negligence, and awarded £19,200.

The tour operator appealed. It argued that compliance should have been assessed when the doors were installed in 1994, rather than when the accident occurred in 2008; that there was no continuing duty to update the building as standards developed; and that the evidence did not establish that the voluntary Barbados National Building Code represented local custom and practice in 1994.

The central questions were the correct reference date for assessing a structural feature against local standards and whether the doors breached the standards applying at installation.

1. Appeal dismissed. Richards LJ, with whom Tomlinson and Lewison LJJ agreed, held that the judge had applied the wrong reference date as a matter of principle. The error did not affect the result because the doors also failed to comply with local standards when installed.

2. Where compliance of a structural feature with local standards is in issue, the starting point is the standards applying at the date of design and construction. For the balcony doors, that meant the date of installation. Subject to standards which specifically require action concerning an existing building, there is no duty to rebuild or refurbish continually to reflect developing standards. McGivney v Golderslea Limited was followed as strong support for that conclusion.

3. The Barbados National Building Code governed standards for the design and construction of buildings. None of its material provisions required alteration of existing structures. The county court judge therefore erred by assessing compliance as at the accident date and by finding a general continuing duty to update the hotel.

4. The error did not remove liability. The judge had found that the Code represented local standards in 1994. Both experts had addressed the Code's relevance throughout the period from construction to the accident. The claimant's expert gave an unqualified opinion that professionals customarily followed it. His experience, the Code's description of its provisions as essential minimum safeguards, and the known danger of the glass supported his evidence. Once the judge permissibly preferred that expert, the finding that the Code represented local custom and practice was inevitable.

5. The doors did not comply with the Code when installed. The tour operator's challenge to that factual finding therefore failed. The court left undecided the respondent's alternative contention that a hotel might breach its duty despite complying with local custom and practice.

1. Court of Appeal (Civil Division): The appeal was dismissed. The county court had erred concerning the reference date and the existence of a continuing duty to update, but its finding that the doors breached local standards when installed was upheld.
2. Brighton County Court: His Honour Judge Hayward gave judgment for the claimant for £19,200, after a 20% deduction for contributory negligence.