Andrew Cannestra v Mclaren Automotive Events Limited

Under the Package Travel and Linked Travel Arrangements Regulations 2018, a package organiser may be liable for the proper performance of services supplied by its servants, agents, suppliers or subcontractors. The applicable standard is the reasonable local standard of care in the place where the service is provided. The traveller bears the burden of proving causative breach. A traveller is not entitled to compensation for a lack of conformity attributable to the traveller under regulation 16(4).

In assessing breach, the court must distinguish best practice from the applicable standard. A guide’s failure to maintain visual supervision may constitute breach, but liability still requires proof of causation. Expert evidence must be independent, objective and confined to matters within the expert’s expertise.

The claimant, a neurosurgeon, was injured while riding a snowmobile during a four-day McLaren driving experience in Lapland. He alleged that the defendant was liable in contract and negligence for inadequate briefing, use of an unsuitable power mode, excessive speed, and failure by the guide to maintain visual contact and guide him safely.

The defendant admitted a duty of care but denied breach and causation. The trial concerned liability, including breach, causation and contributory negligence. The central issues were whether the briefing and guiding met the applicable Finnish standard, whether changing the snowmobile to Standard mode was reasonable, and whether any breach caused the accident.

1. Disposition. The claim was dismissed. Judgment was to be entered for the defendant, subject to consequential orders concerning costs.
2. The contract was governed by the Package Travel and Linked Travel Arrangements Regulations 2018. The defendant was responsible for proper performance by its servants, agents, suppliers and subcontractors under regulation 15. The claimant bore the burden of proving causative fault. The relevant standard was the local Finnish standard of reasonable care, not an expert’s preferred best practice. Regulation 16(4) provided a possible defence where the lack of conformity was attributable to the traveller, although the claim failed principally on breach and causation.
3. The briefing complied with the applicable standard. It properly addressed operation of the snowmobile, braking, throttle use, turning, leaning, separation distances, the emergency stop and tether cord. No separate practice area or detailed description of the track was required on the facts.
4. The snowmobile was suitable for a beginner initially in ECO mode. Changing to Standard mode was within the local standard because the claimant had ridden confidently, wanted greater speed, received a warning about increased power and was thereafter guided through a gradual increase in speed.
5. The guide did breach the standard by failing to look back on the second straight. That breach was not causative. The guide remained sufficiently close and visible when the claimant exited the first turn.
6. The accident was caused by the claimant accidentally pressing the throttle while negotiating the second left-hand turn, after having been instructed how to operate the snowmobile safely. The pleaded case that the accident resulted from excessive speed caused by a guide who had disappeared from view was not proved.
7. Expert evidence had to be independent, objective and unbiased. An expert must state the factual assumptions underlying the opinion, consider material facts adverse to the conclusion, remain within the expert’s expertise and avoid acting as an advocate. The court placed little weight on Mr Gale’s evidence because he adopted the defendant’s factual case and failed to engage fairly with disputed evidence.