Lougheed v On the Beach Ltd

For a package holiday abroad, the contractual standard of care is ordinarily informed by local standards and practices applicable to a comparable establishment. Local safety regulations are an important signpost but do not necessarily exhaust the enquiry. However, an English court cannot substitute English or Welsh standards where local standards appear inadequate. An evidential burden arises only where the facts show that the accident ordinarily would not occur with proper care, including evidence that the hazard was likely and posed a known danger if not promptly removed. Foreseeability alone is insufficient. The burden may in principle apply to a package organiser liable for a supplier’s performance under the Package Travel, Package Holidays and Package Tours Regulations 1992, but only in a proper case.

Mrs Lougheed was a consumer under a package holiday purchased by her daughter from On The Beach Limited. She slipped on water on hotel stairs in Spain and suffered serious injuries. The trial judge found that On The Beach was the organiser under the Package Travel, Package Holidays and Package Tours Regulations 1992, inferred negligence by the hotel and awarded £30,000.

On The Beach appealed, arguing that there was insufficient evidence of the applicable Spanish standards, that the hotel manager’s evidence had been overstated, and that no evidential burden arose. The central issue was whether the evidence justified an inference that the hotel had failed to exercise reasonable care.

1. Disposition. The appeal was allowed. The order of 31 January 2014 giving Mrs Lougheed judgment for £30,000 was set aside and her claim was dismissed.
2. Applicable standard. Under the Package Travel, Package Holidays and Package Tours Regulations 1992, performance by a foreign hotel is judged by standards of care informed by local standards and practice, including the practice of comparable establishments. The approach in Wilson v Best Travel Limited [1993] 1 All ER 353, Evans v Kosmar Villa Holidays [2008] 1 WLR 297 and Gouldbourn v Balkan Holidays & Flights Limited [2010] EWCA Civ 372 was applied. Local regulations may be inadequate or incomplete, but the court cannot replace them with standards reasonably expected in England or Wales.
3. Evidence of local standards. The hotel manager’s evidence established only that identified spillages should be removed. It did not address the local practice for monitoring public areas and detecting spillages. The court preferred evidence from an appropriately experienced witness where suitable, but expert evidence is not invariably essential. A claimant who omits relevant evidence of local standards proceeds at peril.
4. Evidential burden. The Court was bound by the majority decision in Ward v Tesco Stores Ltd [1976] 1 WLR 810, but held that its principle was not engaged here. The relevant premise was proof that spillages were likely and that they posed a danger if not promptly dealt with. Foreseeability of wetness on stairs did not establish such likelihood. The water might have appeared shortly before the accident, despite reasonable care. Dawkins v Carnival [2012] 2 Lloyd's Rep 1 was distinguished because it concerned the different liability regime under the Athens Convention.
5. Regulatory liability. Regulation 15(1) imposed liability on the package organiser irrespective of whether performance was undertaken by another supplier. That did not automatically create an evidential burden against an organiser lacking control of the hotel. In this case the danger from water was established, but the likelihood of its presence in the relevant area was not. The inference of breach was therefore unavailable.

1. Court of Appeal (Civil Division) [2014] EWCA Civ 1538: allowed On The Beach Limited’s appeal, set aside the county court order and dismissed the claim.
2. Portsmouth County Court: Mr Recorder Giles Harrap, in a judgment delivered on 31 January 2014, found On The Beach to be the organiser of the package holiday, held it liable and awarded £30,000 damages.