TATLA
ALAN SAGGERSON
1 CHANCERY LANE
LONDON WC2A 1LF
JANUARY 2009
Trivialization, superficial exoticism and diabolic!
[Pope John Paul II of the Package Travel Industry 2001]
DENIED BOARDING
ECJ
Date: Dec 23, 2008 Wallentin-Hermann v Alitalia
In a test case, the European Court of Justice has ruled that airline passengers are entitled to compensation when a plane is cancelled because of a technical fault, unless that fault was due to exceptional circumstances such as sabotage or terrorism. The case was brought against Alitalia by an Austrian family after the airline refused to pay compensation for a cancelled flight, blaming the cancellation on extraordinary circumstances. Article 5(3) of Regulation No 261/2004 must be interpreted as meaning that a technical problem in an aircraft which leads to the cancellation of a flight is not covered by the concept of ‘extraordinary circumstances’ within the meaning of that provision, unless that problem stems from events which, by their nature or origin, are not inherent in the normal exercise of the activity of the air carrier concerned and are beyond its actual control. The Montreal Convention is not decisive for the interpretation of the grounds of exemption under Article 5(3) of Regulation No 261/2004.
INSURANCE
KOSMAR VILLA HOLIDAYS PLC v TRUSTEES OF SYNDICATE 1243 (2008)
[2008] EWCA Civ 147
CA (Civ Div) (Rix LJ, Jacob LJ, Forbes J) 29/2/2008
The consequence of breach of a procedural condition precedent in a liability insurance policy, in the instant case a requirement that the insured notify the insurer immediately of any injury, was that liability under the policy was discharged; the doctrine of election did not arise in such situations. The exercise by an insurer of a right to conduct a claim made against his insured under a liability policy was not an election to accept liability under the policy, the issue was one of estoppel.
The appellant insurers (T) appealed against a decision ((2007) EWHC 458 (Comm), (2007) 2 All ER (Comm) 217) that T had elected to waive compliance with a condition precedent in a public liability insurance policy issued to the respondent tour operator (K). The policy covered accidental injury to holiday makers and contained a condition requiring K to notify T immediately of the occurrence of any injury. In breach of the condition K had notified T of a potential personal injury claim over a year after the injury had occurred. T wrote to K requesting further information and informed the holiday maker's solicitors that it was taking over conduct of the claim. Several weeks later T repudiated the claim for breach of the condition. K was found liable in damages to the holiday maker and began proceedings seeking an indemnity in respect of that liability from T. The judge found that T had unequivocally communicated to K that it would deal with the claim and had thereby elected to waive compliance with the condition, but rejected K's arguments that T was prevented by estoppel by convention or representation from enforcing the condition. K successfully appealed against the decision that it was liable to the holiday maker, but sought an idemnity for its costs from T under the policy. T argued that the judge had been wrong to find that breach of a condition precedent was different to breach of a promissory warranty in an insurance contract, which automatically discharged the insurer from liability and did not give rise to a situation of election, and that he had been wrong to conclude that the communications by T after notification of the claim had been unequivocal; merely dealing with the claim for a short period was not inconsistent with repudiating liability. K argued that breach of a condition precedent merely gave rise to a defence, and the insurer had to elect whether to rely on that defence. K argued that the communications were consistent only with T unequivocally making the informed choice to accept liability for the claim. K further argued that the communications amounted to a representation that T had accepted liability, which it was estopped from denying.
HELD: (1) Breach of a procedural condition precedent remained the area of estoppel not election. Election required knowledge of the facts giving rise to the choice on the part of the
party electing, and knowledge of the choice having been made on the part of the other party, Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd (No1) (1971) AC 850 HL and Motor Oil Hellas (Corinth) Refineries SA v Shipping Corp of India (The Kanchenjunga) (1990) 1 Lloyd's Rep 391 HL considered. An insurer who began to deal with a claim, even if he thereby represented that he viewed that claim at that time as being, if good, a matter for indemnity under the policy, was not thereby required for all time to maintain his dealing with or conduct of the claim. The exercise by an insurer of a right to conduct a claim made against his insured under a liability policy was not an election, and certainly not an unequivocal election, to accept liability under the policy, Soole v Royal Insurance Co (1971) 2 Lloyd's Rep 332 QBD considered. Dealing with a claim was not necessarily inconsistent with repudiating liability for indemnifying the insured in respect of it. (2) In the communications T had not expressly said that it was waiving the need for immediate notification or that it was accepting liability to indemnify K. Although T had taken over conduct of the claim, it had also requested more information from K, and was entitled to a reasonable time to consider the response before reaching a decision about repudiating the claim, McCormick v National Motor and Accident Insurance Union Ltd (1934) 49 Ll L Rep 361 CA applied. The judge had been wrong to hold that T had sufficient knowledge to repudiate liability earlier. (3) As there had been no unequivocal acceptance of liability, there had been no waiver by estoppel.
Appeal allowed
Barclay v British Airways
Article 17 Montreal Convention – “Accident” on board aircraft.
CA. Laws LJ – 18 December 2008.
“I conclude that Article 17.1 contemplates, by the term “accident”, a distinct event, not being any part of the usual, normal and expected operation of the aircraft, which happens independently of anything done or omitted by the passenger. This gives the term a reasonable scope which sits easily in the balance the Convention strikes. It is, I conceive, in line with all the leading authorities from Saks onwards which, save only, with respect, for Lady Hale’s opinion in DVT, uniformly emphasise the importance of the causative event’s being “external” to the passenger. There are some particular formulations in the cases which (without picking over the texts to the last comma, a fruitless and inappropriate exercise) especially point, as it seems to me, towards this approach. I have already cited paragraph 21 of Lord Phillips’ judgment in DVT, where he referred to “an untoward event which impacts on the body...”. This suggests to my mind the happening of an event which is anterior to and separate from any involvement of the passenger. So also Lord Steyn’s observation in DVT at paragraph 33 that “it is an integral part of the test of what amounts to an accident that it must have a cause external to the passenger”. Assistance is also to be had from O’Connor J’s observation at p. 406 of Saks itself:
“… [W]hen the injury indisputably results from the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft, it has not been caused by an accident, and Article 17 of the Warsaw Convention cannot apply.”
This was the passage which, it may be recalled, Mr Menzies submitted was “not part of the Saks definition”. I do not agree. This statement is part and parcel of the Supreme Court’s exegesis of the Convention.
In all these circumstances I cannot accept Mr Menzies’ submissions. There was no accident here that was external to the appellant, no event which happened independently of anything done or omitted by her. All that happened was that the appellant’s foot came into contact with the inert strip and she fell. It was an instance, to use Leggatt LJ’s words in Chaudhari, of “the passenger’s particular, personal or peculiar reaction to the normal operation of the aircraft”.
SPORTS AND LEISURE
Dearman v MyTravel Group Plc
18th. December 2008
Southend CC
Whilst on a package holiday with his family Sam Dearman (then aged 14 now aged 17) joined in a game of hockey organized by Tony Cain (an entertainer at the Alcudia Pins hotel, Majorca employed by the Defendant). The game took place on the hotel’s cork-surfaced five-a-side pitch. In the course of the game the Claimant was hit over the left eye by Tony Cain’s hockey stick sustaining a nasty injury. The two relevant players were on opposing sides. Tony Cain (page 52) was in possession of the ball (like a tennis ball) running towards the opponents’ goal, past the half way line. He is left handed. He was about to make a shot/pass when he became aware of the Claimant out of the corner of his eye - correctly anticipating that the Claimant would try and block/tackle him. As a result of the Claimant making contact with Tony Cain he started to overbalance reaching out his right arm to break his inevitable fall. As he fell, the hockey stick (in his left hand) was out of control and rising to the left as Cain fell over (to his right) and the stick struck the Claimant in the face. The Claimant on the other hand had the impression that he was hit in the eye when Tony Cain took a swing at the ball “like a golf swing”. Tony Cain was himself responsible for instilling the rules of the game into the participants – and it is almost unanimously accepted that he made it crystal clear in the pre-game instructions that sticks should not be raised (although recollections as to whether this was above the waist, shin or knee vary).
There are 2 ways of approaching the liability issues – both largely amounting to the same thing.
(a) As a case on vicarious liability.
(b) As a case of “improper performance” of the holiday contract.
The central issue was one of mixed fact and law. Was Tony Cain “negligent” – on his own recollection of the facts, or even on the Claimant’s recollection of the facts?
(c) If Cain’s recollection is correct – there can surely be no liability for such an accident.
(d) If the Claimant’s is correct – it is submitted that there is still not the high level of carelessness (tantamount to recklessness) required to demonstrate a breach of duty in the context of a sporting context.
It would have been surprising if the Claimant’s case did not involve reliance on the case of Leatherland v Edwards (Newman J. QBD 1998) where a deliberate golf swing with a hockey stick which took out someone’s eye was regarded as negligent. But since then the law relating to the duty owed in sporting contests has developed in the form of the Compensation Act 2006 and was re-stated by Holland J as approved by the CA in Caldwell v Maguire [2001] EWCA Civ 1054. at paragraph 11 – Tuckey LJ (5 propositions):
(a) Contestants in a sporting contest owe each other a duty of care.
(b) The duty is to exercise objectively reasonable care in the prevailing circumstances to avoid inflicting injury.
(c) The prevailing circumstances depend on the contest – but will include its objectives, rules and the standard of the players.
(d) The threshold for liability is in practice inevitably high – proof of breach of duty will not flow from proof of error of judgment or momentary lapse in skill (or one might add concentration or a moment’s over-enthusiasm).
(e) In practice it may be difficult to prove such a breach of duty absent proof of conduct that amounts to a reckless disregard for a contestant’s safety.
In the heat and rough and tumble of a fast game, errors of judgment will occur; mistakes will be made; rules of the game breached and even injuries sustained (one might add particularly when the participants are all young people) – but these factors in themselves do not constitute an actionable breach of duty. Accordingly, even if Cain’s hockey stick was raised higher than the rules suggest it should have been – and even if in the heat of the game Cain’s back swing proved far too high – the result could be described as a terrible accident, no more.
The trial judge was unimpressed with the Defendant’s contentions. Leatherland he considered to be on all-fours with the present case, and given that all such cases turn decidedly on their own facts and circumstances he felt that the swing of the hockey stick was the wrong side of the line from the Defendant’s-point of view – Judgment for the Claimant.
PACKAGE TRAVEL
Djemal & Kartal v CTA Holidays Ltd
20th. March 2008
CLCC HHJ Mitchell
A case with a bit of everything.
· The Contractual Status of “Special Requests”
· Whose Agent is the Travel Agent?
· Mitigation of loss & reasonable alternative accommodation (PTR Regulation 14)
· Filing foreign language witness statements
· Credibility and identical witness statements
1. The Claimants claimed damages (£50,000!) against D1 (a tour operator) fro alleged breach of a holiday contract. At the end of June 2005 the Claimants booked (rather late in the day) a family holiday based at the all-inclusive Marti Myra Hotel[1] in Antalya, Turkey for 2 weeks commencing 3 August 2005. There were 10 travellers (7 adults, 3 children in a total of 5 rooms). The Claimants claim that they were not allocated the correct accommodation, as a result of which they returned home (D1 says unnecessarily) on or about 5 August 2005.