Japp v Virgin Holidays Ltd [2013] EWCA Civ 1371

Case No B3/2012/2841

[2013] EWCA Civ 1371

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRIGHTON COUNTY COURT

His Honour Judge Hayward

Case No. 1WG01449

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Thursday 7 th November 2013

Before

LORD JUSTICE RICHARDS

LORD JUSTICE TOMLINSON

LORD JUSTICE LEWISON

Between

Moira JappClaimant/ Respondent

Virgin Holidays LimitedDefendant/Appellant

(Transcript of the Handed Down Judgment of

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Ms Sarah Prager (instructed by Plexus Law) for Appellant

Mr Andrew Spencer (instructed by Green Wright Chalton Annis) for Respondent

Judgment

Lord Justice Richards :

[1]This case relates to an accident suffered by Mrs Moira Japp when on holiday at the Crystal Cove Hotel, Barbados in September 2008. She had gone onto the balcony of her hotel room to read a book, closing behind her the sliding glass balcony doors (the overall measurements of which were 10 feet by 8 feet). When the telephone in her room rang a short time later, she got up from her chair and made to go back to the room, but she walked into the closed doors. The glass shattered, causing lacerations to her body. She subsequently brought a claim for damages for personal injury against the tour operator, Virgin Holidays Limited. His Honour Judge Hayward, sitting in the Brighton County Court, gave judgment in her favour (subject to a 20% deduction for contributory negligence) in the sum of £19,200. Virgin now appeals against the judge’s finding of liability.

[2]The hotel was constructed in 1994. It was described by the hotel manager as a four and a half star hotel with between 50 and 60 rooms. He was not aware of any similar accidents at the hotel.

[3]The focus of the case before the judge was on whether the glass in the balcony doors complied with local safety standards. The glass actually used was ¼ inch annealed float glass. The claimant’s case was that safety glass should have been used.

[4]The concentration on local standards stems from the decision of Phillips J in Wilson v Best Travel Ltd

[1993] 1 All ER 353

, which happened also to be a case involving glass patio doors in a hotel. Phillips J held that the duty of care owed by a tour operator under section 13 of the Supply of Goods and Services Act 1982 included a duty to exercise reasonable care to exclude from the accommodation offered any hotel whose characteristics were such that guests could not spend a holiday there in reasonable safety (page 356g-h). He said that the case was about the standards to be applied in assessing reasonable safety; and as to that, he held that the relevant standards were those applicable locally, not those applicable in England, and that the duty to ensure reasonable safety was discharged if the tour operator had checked that local safety regulations were complied with, unless the absence of a particular safety feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question (page 358b-d).

[5]The courts have been consistent in following the approach in Wilson v Best Travel Ltd as to the applicability of local standards, though the legal framework has been altered to some extent by the Package Travel, Package Holidays and Package Tours Regulations 1992, regulation 15 of which provides that “[t]he other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services”. As was observed in Evans v Kosmar Villa Holidays Ltd

[2008] 1 WLR 297

, para 23, since the tour operator is directly liable under the regulations for improper performance of the contract by the hotel even if the hotel is under independent ownership and management, the focus can be on the exercise of reasonable care in the operation of the hotel itself rather than in the selection of the hotel and the offer of accommodation at it. Thus, the particulars of claim in the present case pleaded an implied term, among others, that “the hotel, including the glass doors, would be of a reasonable standard and reasonably safe and would comply with all applicable local safety standards and regulations”; and the defence effectively admitted that implied term, subject to the addition of the words “that were in force” at the end.

[6]It was and is common ground that local standards can be set not just by binding regulations but also by a voluntary code which it is the custom and practice to follow. Thus, for example, British Standards serve to set the relevant standards in the United Kingdom because, although non-binding, “they represent the consensus of professional opinion and practical experience as to the sensible safety precautions” (Ward v The Ritz Hotel (London) Limited [1992] PIQR 315, 327).

The evidence as to local standards

[7]At the heart of the issue of local standards is the Barbados National Building Code, 1993 edition (“the Code”), published and maintained by the Barbados National Standards Institution. The Preface states that the Code is based on the Caribbean Uniform Building Code published in 1985 and that its development was initiated by the Barbados Government with the assistance of the Commonwealth Fund for Technical Co-operation. Under the heading “Scope of the Code”, it states:

“The Barbados National Building Code sets out technical requirements and standards for the design and construction of buildings in respect of issues concerning structural sufficiency and durability, fire safety, health and amenity, which are regarded as essential minimum provisions in the public interest.”

[8]Section 6.5 of the Code deals with standards for materials and assemblies. Subsection 6.502 relates to glass. The directly relevant provisions are in 6.502.4, which reads:

“Human impact Measures shall be taken to reduce the hazards of human impact on glass panels and glazed doors by the use of glass in small panels, protecting the glass with rails or barriers, or the use of laminated or toughened safety glass, organic-coated safety glass or wired safety glass, as follows: (a) Doors – Safety glass shall be installed in all doors with glass area exceeding 0.5m 2 and in all unframed glass doors ….”

[9]The balcony doors at the hotel did not comply with the Code. The main debate before the judge related to whether the Code represented local standards with which they should have complied. There was expert evidence addressed to that question from Mr Ian Rollitt, instructed by the claimant, and Ms Karen Thornhill, instructed by the defendant. The experts had produced written reports and a written joint statement but there was no direction for them to give oral evidence, so that at trial the judge had to do the best he could with the written material.

[10]In his report, Mr Rollitt set out his extensive qualifications and experience as a chartered builder and chartered surveyor based in Barbados. He considered himself “well and truly qualified to give an opinion on building methods and building standards in Barbados and the Caribbean”. He referred to the relevant provisions of the Code, set out his personal experience of up-market hotels in Barbados using safety glass or small panes of glass in patio doors, and described the US standard for glass in or near operable doors, which was for tempered or laminated glass. He stated that the building standards in Barbados were currently being reviewed and revised, and whilst the Code was not enacted by law “it is the custom and practice by professionals in the industry to follow the Code”. Hotels tended to follow the International Building Code or Florida Building Code. His conclusion was in these terms:

“The BNSI Building Code has been published since 1993 and although not legally mandated they are readily available. The glass used in the aluminium glass sliding door at Crystal Cove hotel was annealed float glass and this is known to be very dangerous. The sliding door did not comply with Barbados Building Code and was not fit for purpose ….”

[11]In her report, Ms Thornhill said that she was an attorney-at-law with a firm of international legal consultants in Barbados. She had previous experience preparing expert reports on local standards in the hotel industry throughout the Caribbean arising out of personal injuries. She referred to the relevant provisions of the Code and stressed that it remained a voluntary document and was not legally binding. The material attached to her report included a note of a conversation with the former head of the Barbados National Standards Institution who said that the Code was published in 1993 and “[people] have been using it since then although it is not the law in [Barbados]. Most standards are voluntary but [people] use them as they represent solutions to their problems”. Ms Thornhill stated that from discussions with local engineers and architects as well as from correspondence it appeared that some parties were aware of the Code and referred to it in practice, some were aware of the Code but not fully aware and/or familiar with its contents, and some were not aware of the existence of the Code at all. She referred to correspondence with the Chief Executive Officer of Oran Ltd, the supplier of the glass used in the balcony doors at the hotel, who informed her that ¼ inch annealed float glass had “often been used in doors & windows” and that “[t]here are no building codes in Barbados that dictate the type of glass to be used in windows & doors and to that extent the annealed float glass has been installed for both commercial and residential purposes for many years”. She had also established that there appeared to be no statutory requirements for hotels to be refurbished, so that “Crystal Cove Hotel is not legally bound to retrofit their glass patio doors since reported installation in 1994”. Her closing summary included the following:

“At the time of the accident there were no compulsory standards for glass patio doors and the use of ¼ inch thick annealed float glass does not constitute a breach of any local law or standard. Indeed it should be noted that products from Oran Ltd are widely used in Barbados, to the extent where it is likely that their products, including glass patio doors, effectively constitute the standard local products. The Building Code, which sets out voluntary local standards, was in existence but not legally binding and therefore Crystal Cove Hotel was free to install whatever glass patio doors they wished. There are also no laws in Barbados obliging the hotel to upgrade their glass patio doors to safety glass, even if they had knowledge of the Building Code and/or following the Claimant’s accident.”

[12]The experts’ joint report contained little by way of agreement between them, beyond a statement of the bare facts relating to the balcony doors in question and their non-compliance with the Code. It is not necessary for me to recite the lengthy passages recording the extent of disagreement between the experts.

The judgment below

The judge’s conclusions on the issue of liability are at paras 30-34 of his judgment:

“30. … The authorities I have been referred to establish that the duty of care owed by the hotel, and therefore by the Defendant company because of the 1992 Regulations, falls to be considered by reference to the custom and standard prevailing in Barbados at the date of the accident. The Barbados Building Code is a very important factor in this case. Although it is not mandatory, it has been in existence since, in one form or another, 1985, amended from time to time. The provisions relating to glass have existed since 1992, before this hotel was built. The Code is expressed to be essential minimum provisions in the public interest. The dangers created by plate glass doors have been known for many, many years. I am satisfied that the hotel knew or should have known of these dangers and the existence of the Code. 31. It seems to me therefore that the essential question is whether the Code was sufficiently widely observed and/or regarded as representing the appropriate standard in the hotel industry in Barbados to be treated as the accepted custom and/or standard. 32. On this issue I have not found the evidence of Miss Thornhill particularly helpful. She is a personal injury lawyer with some experience of accidents happening in hotels. She has no real experience of the building industry, she made very limited enquiries of those who are involved and such enquiries really only revealed what we already know, namely the Code is not mandatory …. 33. Mr Rollitt is an extremely experienced surveyor. I have already read out his qualifications, but in addition he set out some of his practical experience, which is as follows .... I am satisfied that Mr Rollitt speaks with considerably more expertise and experience than Miss Thornhill, and I prefer his evidence. 34. I am satisfied that the Code and its provisions relating to glass reflect the custom and/or the standard to be expected of the higher end hotel business in Barbados. The hotel failed to meet the standard and the Defendant company is therefore liable to Mrs Japp. Although there is no statutory requirement for hotels to carry out works to comply with the Code or update to comply with the Code, in my judgment if the hotel in question fails to do so then it runs the risk of being held liable in the event of an accident occurring because of a breach of that code and a failure to update to comply with it.”

[14]After judgment had been delivered, counsel for Virgin queried the judge’s statement that the duty of care fell to be considered by reference to the custom and standard prevailing at the date of the accident (rather than at the date of installation of the glass).

The judge confirmed that this was not a slip, and stated further:

“It seems to me that there is a continuing duty on a hotel to have regard to safety issues and if necessary update facilities.”

[15]In response to a suggestion from counsel for Mrs Japp, the judge went on to say that he thought it followed that if there was a breach at the date of the accident then there was a breach when the installation was carried out. He confirmed:

“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 issues in the appeal

[16]There are three grounds of appeal: i) the judge was wrong as a matter of law to find that the duty of care fell to be considered by reference to custom and practice at the date of the accident, rather than at the date of construction of the hotel; ii) he was wrong as a matter of law to find that the hotel owed a continuing duty to update the fabric of the premises as custom and practice developed; and iii) he was wrong to find as a matter of fact that the custom and practice at the date of construction of the hotel was to comply with the Code, this finding not being justified on the evidence before him.

[17]In addition to resisting each of those grounds, the respondent seeks to uphold the judge’s decision on the alternative basis that if the door was in accordance with local custom and practice, that is not sufficient to fulfil the duty of care: the hotel was or ought to have been aware both of the Code and of the danger created by plate glass doors at the time the door was installed, and installing a door without safety glass in this position was a breach of duty.

The reference date for compliance with local standards

[18]For the appellant, Ms Prager submitted that the judge was wrong to hold that the question of compliance with the duty of care in relation to the balcony doors fell to be considered by reference to the standards prevailing at the date of the accident. The accident occurred some 14 years after the hotel was constructed and the doors were installed. If the relevant standards were those in force at the time of the accident, rather than at the date of installation, it would follow that hoteliers owe a continuing duty to tear out and replace all features of their premises that do not comply with developing standards. It cannot be correct that they are subject to such an onerous duty, and the judge was wrong to say that this hotelier was under such a duty. The position is accepted to be different if the developing standards themselves require occupiers of premises to undertake alterations to the existing fabric of their premises, but there is no suggestion of that in this case.

[19]For the respondent, Mr Spencer submitted that the judge was correct to look at the matter as at the date of the accident since the claim is in contract and the relevant date is that of the alleged breach. The question is whether the door complied with local standards at the date of the accident: did those standards require the building to have a particular feature at that time? Standards change and may require an old feature to be updated. In any event the judge was right to say that the hotel could be liable for failure to update the building to comply with the Code.

[20]I am satisfied that the appellant’s submissions on this issue are correct. Where the question is whether a structural feature of a building complies with local standards, the starting point must be the standards applicable at the date of design and construction, which in this case means those applicable at the date when the balcony doors were installed. There will be circumstances where changing standards make specific provision for further action to be taken in relation to a structural feature of an existing building (the regulations relating to the removal of asbestos may provide an example). Subject to that, however, I do not think that there can be a duty to engage in a constant process of updating of existing buildings, by rebuilding or refurbishment, so as to reflect changes in standards.

[21]The one authority directly in point, McGivney v Golderslea Limited (Court of Appeal judgment of 6 November 1997), strongly supports this approach. It concerned an accident in which the claimant’s hand had gone through a glass pane on a door in a block of flats. The basis of the claim was that the glass was unsafe and should have been replaced with thicker safety glass. At the time the flats were built, the glass used was compatible with the building regulations in force; but if they had been built at the time of the case, the regulations in force would have required stronger glass to be used. The claimant argued that in those circumstances the glass in the door should have been replaced and brought up to current standards in order to comply with the duty under section 2(2) of the Occupiers Liability Act 1957. The court rejected the argument. Swinton Thomas LJ, with whom Hirst LJ agreed, considered that “it is quite impossible to say that these landlords of the block were in breach of that duty in failing to remove a pane of glass which complied with the regulations when it was installed and to replace it with more up to date safety glass”.

[22]In the present case the Code sets out standards “for the design and construction of buildings in respect of issues concerning structural sufficiency and durability, fire safety, health and amenity”. It is directed at the standards to be observed at the time of design and construction. None of its material provisions requires changes to be made to the structure of existing buildings. It is common ground that the balcony doors at the hotel did not comply with the Code at the date when the hotel was constructed and the doors were installed in 1994. The remaining relevant question is whether the Code represented local standards at that time. The judge was wrong to look at the matter in terms of compliance with local standards as at the date of the accident in 2008, or in terms of a duty to update the hotel so as comply with developing standards.

[23]It follows that in my judgment the appellant succeeds on the issues of principle raised by grounds (i) and (ii).

Non-compliance with local standards at the date of installation

[24]The appellant still faces the difficulty that the judge made a finding, albeit at a very late stage, that if the duty was to comply with local standards at the date of installation of the doors, there was nevertheless a breach of that duty. The judge clearly regarded the Code as representing the local standards in 1994 as well as in 2008.

[25]Ms Prager submits that the judge failed properly to consider the evidence before him as regards the local standards applicable in 1994, and that if he had addressed his mind to this question he would or should have come to the conclusion that the claimant had failed to prove non-compliance as at that date. Neither of the experts had turned their minds to the standards applicable in 1994; and neither of them offered an opinion in this regard.

[26]I do not accept that submission. I think it plain that both experts were looking at the position obtaining throughout the period from the date of construction of the hotel to the date of the accident, including in particular the relevance of the Code throughout that period. Mr Rollitt was of the opinion that the Code represented local custom and practice throughout, whereas Ms Thornhill’s view was that it did not represent local custom and practice at any time during the period. That the experts had 1994 in mind can be seen, for example, from paragraph 3 of their joint statement. After setting set out Mr Rollitt’s view that the door at the hotel did not comply with the “local code” or with safety standards in the hotel industry in the Caribbean, the paragraph continues:

“[s]ave that the glass door did not conform to the provisions of the Building Code, Karen Thornhill is not in agreement on this issue since the common practice, probably even more so in 1994 than today, appears to involve the use of glass doors with annealed float glass”

(emphasis added).

[27]Ms Prager also mounted a more general attack on the judge’s acceptance of Mr Rollitt’s evidence that it was the custom and practice in Barbados to comply with the Code. She accepted that the judge was entitled to find that Mr Rollitt spoke with considerably more expertise and experience than Ms Thornhill, but she submitted that Mr Rollitt’s evidence and chain of reasoning were unsatisfactory and did not provide a proper basis for the judge’s finding.

[28]I reject that submission too. Mr Rollitt may have lacked a degree of precision and have dealt with some matters that were of limited relevance (such as the compliance by certain hotels or hotel chains with US standards), but he was highly experienced and his report included an unqualified statement that “it is the custom and practice by professionals in the industry to follow the Code”. This was reinforced by other points he made which served to underline why the relevant provisions of the Code should be regarded as representing local safety standards. For example, in his report he pointed to the statement in the Code that its provisions “are regarded as essential minimum provisions in the public interest”, and he expressed the view that the glass used in the balcony door at the hotel “is known to be very dangerous” and that the door “was not fit for purpose”. Once the judge preferred Mr Rollitt’s evidence to that of Ms Thornhill, as he was entitled to do, the finding that it was the custom and practice to follow the Code was not only open to the judge but was inevitable.

[29]The appellants’ case on ground (iii) therefore fails, and the appeal overall fails with it.

The respondent’s alternative basis for upholding the judge

[30]In those circumstances the alternative basis on which the respondent sought to uphold the judge’s order does not arise for decision. Ms Prager submitted that to accede to the respondent’s case would involve an impermissible undermining of the general rule laid down in Wilson v Best Travel Ltd that, at least in the case of structural features, it is necessary to prove non-compliance with local standards in order to establish a breach of duty. It is not necessary or appropriate, however, to express any view on the matter.

Conclusion

[31]The appeal has served to establish an important point of principle in the appellant’s favour on the question whether, in relation to a structural feature such as the balcony doors, the duty of care falls to be considered by reference to local standards at the date of construction/installation or at the date of the accident. But the appellant fails in its challenge to the judge’s finding of fact that the doors did not comply with local standards at the date of their installation. For that reason the appeal must be dismissed.

Lord Justice Tomlinson:

[32]I agree.

Lord Justice Lewison:

[33]I also agree.