In Lougheed v On the Beach (2014) EWCA Civ 1538 the Court of Appeal reaffirmed the importance of the Claimant adducing evidence of local safety standards in the context of package holiday claims. The recent decision of the High Court of Northern Ireland in Kerr v Thomas Cook [2015] NIQB 9 provides a colourful (and not unamusing) example of the same principle being applied in a very different factual context.

The Claimant and her partner travelled to Tunisia on a holiday organised by the Defendant tour operator. Whilst she was there the Claimant was attacked by a cat (not pictured) which jumped out at her from a bush, scrabbing and biting her right lower leg, which was uncovered as she was wearing shorts. After the attack the cat disappeared into the bushes.
Prior to the attack, the Claimant told the court that she had noticed the presence in the hotel grounds of a large number of cats which appeared to roam freely. They did not appear to be owned by anyone. The court was satisfied that this situation had long pre-dated the accident not least because there were numerous TripAdvisor reports which mentioned the cats. Importantly, however, none of the reports made any reference to a cat attacking anyone.
Perhaps somewhat boldly, the Defendant called no evidence in the case. The Claimant’s account of the incident was not therefore contested.

The judge indicated that he was minded to accept that if a large number of stray cats were roaming around a hotel this situation would give rise to some obligation on the part of the hotel management to use reasonable skill and care to control them in an appropriate way. He also accepted that “the obligation which arises, moreover, at …a general level, would apply equally, whether the hotel in question is in Tunisia or the United Kingdom or elsewhere.” However, he went on to accept that that “differential standards of care may well exist as between one country and another in relation to a matter of this kind”.

The Defendant’s case was simply that a long line of authority, from Wilson v Best Travel (1993)1 All ER 353 all the way through to Lougheed made it clear that a claimant had to prove a breach of local safety standards in order to succeed. The Claimant had not adduced any such evidence in this case and the claim must therefore fail. The Court agreed, albeit ‘reluctantly’.

It is noteworthy that the Claimant had sought to escape this conclusion by arguing that the onus of proving that it had acted with reasonable care and skill should rest with the Defendant. The Court rejected this assertion, holding that there was no authority to support it. Although not cited in the case, the English Court of Appeal (albeit only at a permission hearing) came to the same conclusion in Drabble v Sunstar (2008) EWCA Civ 1062.

Perhaps reflecting his unease at dismissing the claim on the basis of the absence of local safety standards, the judge also went on to find that the cats could not properly be described as “feral” in the sense of having aggressive or dangerous characteristics. In the circumstances, the court held that the attack was not foreseeable and the damage sustained by the Claimant was too remote.

The Claimant did not seek purr-mission to appeal.

SOURCE: piBlawg – Read entire story here.

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