Japp v Virgin Holidays – holiday accident law

The Court of Appeal handed down their decision in the above case in November 2013. The defendant’s appeal was unsuccessful, the Appeal Court upholding the first instance decision in favour of the claimant. The result is confirmation that, when an accident occurs and holiday accommodation requires to be assessed for compliance with local standards, the standards which are to be applied are those in force at the time of construction of the property rather than at the time of the accident. It is the most authoritative case for such types of cases at present.

By way of background, the case involved the claimant Mrs Japp, who sustained serious laceration injuries when she walked into glass patio doors on her hotel balcony in Barbados, causing them to shatter. The case was pled under the Package Travel, Package Holidays and Package Tours Regulations 1992, alleging liability against the tour operator for improper performance of an implied term of the contract with Mrs Japp. The basis of this was the hotel’s failure to ensure that the hotel, and glass doors were of a reasonable standard and reasonably safe, and so complying with local standards.

Argument at first instance related to whether local standards, where not legally binding, necessitated legal obligation by the hotel owner in any event to follow them. The relevant local standards – the claimant argued – arose from a 1993 edition National Building Code. The relevant parts of this National Code related to safety glass. The defendants argued that the Code did not have to be complied with as it was not binding, and that the type of glass which had been fitted was commonly used in Barbados. The claimant argued that custom and practice was to follow the relevant Code, and that the doors fitted at the material time were dangerous and so not fit for purpose.

The decision of the judge at first instance was that the Code represented local standards which the hotel ought to have complied with, and most importantly that there ought to have been compliance as at the date of the accident – which took place 14 years after construction of the hotel. His view was that:

“The Code was there, they should have known the Code, and so I am satisfied that when this hotel was built that Code should have been complied with, and in any event by the date of the accident many years later, they should have been updating to comply with the Code.”

The defendants’ appeal proceeded on the argument that the first instance judge had wrongly decided as a matter of law what the relevant date of compliance with local standards was – it ought to be the date of installation of the glass doors rather than the date of the accident. Appeal judges agreed with this proposition, accepting that there was no duty to constantly update to reflect changing standards between these two dates.

The second point of appeal was on the grounds that the judge had insufficient grounds upon which to find that the defendants ought to have complied with local standards as a matter of custom and practice, at the time of construction/ installation of the doors.

The appeal failed.

Lack of success was on the basis that the Appeal court took the view that the hotel, and therefore the defendants had failed to comply with the terms of the Code as at the time of installation of the glass doors in 1994, as well as at the time of the accident. In their opinion, the trial judge had accepted that experts who gave evidence on the point, had had it in their minds the relevance of the Code throughout the entire period. Whilst the defendants’ expert maintained the Code did not represent local custom and practice at any time, the claimant’s expert had plainly formed the opinion that the Code did represent local custom and practice, and that this was relevant throughout the period from installation to the accident date. The trial judge had preferred the evidence of the claimant’s expert. Following on from this it was inevitable that he found the hotel/defendants failed to comply with local standards at the time of installation .

The issue of whether there could be a breach of duty even where local standards had been complied with relating to structural features, was raised but not opined upon by the Appeal Court. The defendants’ contention was that do make such a finding would undermine Wilson v Best [1993] 1 All ER 353.

Any further court decisions in this area of law will be viewed with some interest. Failure to plead local standards where there is a structural defect (the Wilson v Best defence ) has been a convenient escape route for defenders. This clearly well prepared case for the claimant shows one method of closing that down.