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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 58
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PD1417/04
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OPINION OF LADY SMITH
in the cause
DIANA CHEESMAN
Pursuer;
against
INTERNATIONAL
TRAVEL SERVICE LIMITED
Defenders:
ннннннннннннннннн________________
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Pursuer:
Thomson, Advocate; Anderson Strathearn
W.S.
Defenders: Wallace, Advocate; McKay Norwell W.S.
4 April 2008
Introduction
[1] In September 2001, the
pursuer and her husband went on a "Scotsman" holiday to what was described in
the brochure as "the Swiss and Italian Lakelands". On the last day of the holiday, the pursuer
injured her ankle when she tripped on a defect in a carpet on a step in the
coach in which they were travelling on an excursion.
[2] The
contract for the holiday was between the pursuer and her husband, and the defenders.
[3] On
9 September 2004, the
pursuer raised the present action. It
came to proof before the late Lord Dawson on 11-13 July
2006. On 13 July 2006, he made avizandum. He died on 11 June 2007, when the case was still at
avizandum. By interlocutor dated 26 June 2007, the court ordered
that the cause continue and be disposed of by another Lord Ordinary. The case was put out By Order before me on 2 November 2007 at which hearing
it was agreed by parties that the case should proceed by having the notes of
evidence from the July 2006 diet extended and then there being a hearing
at which counsel would make submissions of new.
That hearing was fixed for and took place on 28 and 29 February 2008.
Agreed Facts
[4] The terms of the contract
for the holiday are to be found in the brochure. On the double page spread headed "Swiss and
Italian Lakelands", there are some attractive photographs and text which
includes the following sections:
"Itinerary in brief
.................................
Optional Excursions
(1) SIMPLON PASS
& ZERMATT
(Switzerland)
A most exciting
scenic drive crossing into Switzerland,
over the legendary Simplon Pass descending into the
Valais region of the Rhone Valley. You'll continue up to the unique resort of Zermatt. Here there's time to take lunch, walk the
traffic free streets and marvel at the natural forces that gave birth to the Matterhorn
and its glaciers.
..............................
Your Tour
Manager may have other optional plans during your stay."
" THE
PRICE INCLUDES
..........................
* Travel by
luxury air-conditioned coach for all coaching described in the itinerary .................
* Services of an
ITS Tour Manager in Italy
Not included: ................... * Optional excursions."
[5] There
was also said to be one excursion included
and there was one other optional excursion, the details of which were
set out in similar fashion to those of the Zermatt
option.
[6] The
last page of the brochure is headed "YOUR
CONTRACT" and it is followed by a section headed: "WHAT
WE DO" which contains some detailed contractual provisions including:
"2. Our responsibilities. We accept responsibility for ensuring the
services which we contract to provide are supplied and to a reasonable standard
.................. We also accept responsibility for
any loss or damage you may suffer as a result of the negligence of our
employees or agents. Accommodation,
transport and services are provided by independent suppliers for whom we will
accept responsibility on the terms set out as follows. If you or your party suffer death, bodily
injury or illness arising from negligence of our suppliers ......... their
subcontractors, servants and/or agents, we will accept responsibility provided
they were acting within the scope of their employment when the accident
occurred .....
...............................
Should you or
any other member of your party suffer illness, personal injury or death through
any misadventure arising out of an activity which does not form part of your
holiday arrangement nor part of any excursion sold through us, we shall offer
every assistance we can .........."
[7] The
pursuer and her husband had noted the details of the Simplon Pass/Zermatt
excursion ("the Zermatt excursion") before they booked
and had decided that they would opt for it.
They did so by indicating that that was their wish and making an
additional payment to the defenders' representative in Baveno, the resort where
they were staying, at a "welcome" meeting.
The defenders' representative was called Frederica Zambonini and
she was the daughter of Anna Francis, the managing director of the
Verbano Viaggio Travel Agency, an organisation with whom the defenders had
contracted to provide local support services for the holiday.
[8] The
Zermatt excursion took place on Friday 14 September 2001, the last day of
the holiday. The pursuer and her husband
went on it. They travelled in the same
coach as had transported them from the airport at the beginning of the holiday
and as had been used for the other excursions.
The coach was provided by a separate company with which the Verbano
Agency had contracted and its driver was employed by the coach company.
[9] The
pursuer and her husband were sitting at the back of the coach in the rear
seat. They were the only passengers
sitting there. There was a step that was
about 9 inches high, up to that seat.
At one point, the guide pointed out something and the pursuer thought
she would be able to see better if she moved forward. When the coach was going very slowly, she got
up and went to step down to the lower level.
As she did so, she tripped and fell forward. She described it as ' sailing' forward and
her husband described it as her having ' pitched' forward; parties were agreed that she fell
heavily. She suffered an avulsion
fracture of her left ankle as a result of doing so as a result of which she
experienced pain, discomfort and
suffering and her husband rendered necessary services to her in the form of
domestic assistance and driving. She was
still experiencing some symptoms as at the date of the proof before Lord
Dawson.
[10] The cause of the pursuer's fall was a defect in the carpet at
the angle between the riser and tread of the step. There was a join in the carpet there. The pursuer's husband got down and examined
it after the accident. The fixing on the
riser had failed and the carpet was bulging out over a length of about 9 inches. The outwards bulge was to the extent of
something between half an inch and an inch with the defect being about 3
or 4 inches deep. In short, the
carpet was unstuck for quite a significant length and the pursuer had caught her
foot, probably her toe, in it. The
pursuer's fall did not cause the defect.
[11] It was also, ultimately, accepted on behalf of the defenders,
that a single prior trip would not have caused the defect.
[12] The pursuer's accident occurred before they arrived at Zermatt. When they got back onto the coach, an "L-shaped"
piece of plastic had been stuck along the length of the step where the defect
in the carpet had been.
The Pursuer's Claim
[13] The pursuer's claim is in
contract. She claims that, under the
holiday contract, the defenders agreed to provide coach travel for the Zermatt
excursion, that they agreed to accept liability for the negligence of their
transport suppliers including the coach company and that the presence of the
defect in the carpet which caused her to fall was due to the coach company's
negligence or the negligence of their driver.
That being so, she claims damages in respect of her injuries (solatium
and services).
The Issues
[14] Between the date of raising
of the action and the date of the hearing before me, the defenders took issue
with much in the pursuer's case. They did not even accept that the pursuer had
gone on the Zermatt excursion. Even less did they accept that she had
sustained an accident or that there was any defect in the carpet. Ultimately, however, the issues were
considerably narrowed. The issues
between the parties that remain to be determined are:
1. whether the defect in the
carpet was one which would have been identified and remedied by a coach company/coach
driver, exercising reasonable care, prior to the pursuer's accident?
2. whether, if it was, the
contractual arrangements between the pursuer and defenders were such as to
render them liable in respect of her injuries?
The First Issue
[15] The resolution of the first issue requires two separate matters
to be considered:
(a) The
Carpet Defect
The nature and extent of the defect was spoken to in evidence by the
pursuer's husband. His occupation is
that of senior lecturer at Heriot Watt
University in construction
management. He also acts as a health and
safety consultant particularly in relation to accidents in buildings where
people have sustained injury as a result of falling downstairs or slipping on
floors. He has a special interest in
measuring the resistance of floor finishes and the application of building
regulations to floors and ramps. He
often gives expert opinions in connection with claims, for litigation purposes
and had, when giving evidence, been engaged in that work for some 30 years.
In short, the pursuer's husband was
particularly well placed to examine and assess the carpet defect. For many years his work has involved him
considering how and why people have had falls and whether it has been to do
with any defect in that upon which they had placed their feet at the time of
their fall. I am readily satisfied that
his qualifications add considerable weight to his evidence. Further, he being an experienced expert
witness, it makes it less likely that his evidence was swayed by a desire to
favour the pursuer's interests.
I have already referred to the
estimate of the measurements of the defect which Mr Cheesman's gave in
evidence. When asked, in chief, for his
impression of how long the defect would have been present, he said that it
would have to have been there for some time.
That was because for the carpet to bulge out as it did, it would have
had to stretch and work loose. It would
have been the result of passengers climbing up and down or even as a result of
it being pulled when being cleaned. It
was not something that would have happened just that day or even within the
couple of days before the pursuer's accident.
It had happened, he said, in circumstances where either the carpet had
never been properly stuck down in the first place or with it having come
unstuck. It was not suggested to
Mr Cheesman in cross examination that he was wrong about the presence or
cause of the defect. No alternative
explanation was offered and, as I have already noted, in submission, Mr Wallace's
position came to be not only that the defect could not have been caused by the
pursuer herself but that it would have taken more than one single prior trip on
the carpet join to bring it about.
No evidence was led for the
defenders that contradicted Mr Cheesman's description of what he saw. The defenders' only witness, Anna Francis,
had not seen the carpet defect nor, it seemed, made any express enquiry of
anyone about it. The best she could do
was speak to what she considered would be normal practice by the coach company
so far as checking for cleanliness and defects was concerned.
Whilst I did not hear or see
Mr Cheesman, the transcript of his evidence reads with a clarity and
cogency that points strongly to the conclusion that his hypothesis as to how
the defect in the carpet arose was correct.
I am, in all the circumstances, satisfied that the pursuer has
established, on a balance of probabilities, that the carpet defect was not only
present when she got onto the coach on the morning of 14 September 2001
but had been present for a significant length of time prior thereto. That is, it had certainly been present for
more than a couple of days and was a defect that would have built up over the
passage of time.
(b) Negligence
I turn to the part of the
first issue that concerns the matter of whether or not the defect would have
been identified and remedied if the coach company or its driver had been
exercising reasonable care.
The starting point is, of course,
the defect itself. I recognise that, on
the evidence, as parties appeared to agree, the pursuer's fall may itself have
exacerbated the defect. Also,
Mr Cheesman very fairly accepted that it might have been necessary to get
down and look at the carpet to see the defect although he did also comment that
you could have seen it when you were sitting down. It did not appear to be suggested by any
witness that the defect would have been noticed by a passenger who was standing
up. However, it was not disputed that a
defect in the carpet where there was a join at the edge of the step arising
from it being or having become unstuck, would have been identifiable if that
part of the carpet had been examined and, as was pointed out by
Mr Thomson, what has to be considered is not what would have been noticed
by a passenger but what would have been noticed by the coach company or its
driver if inspecting it with reasonable care.
Clearly, what would be noticed by the person upon whom the duty to take
reasonable care to check for defects rests is likely to be different from and greater than that which would be
noticed by a person who does not bear the burden of that duty, such as a
passenger.
It is also self evident that if
there is such a defect in the carpet on a step, it constitutes a tripping
hazard. In the case of such a step on a
coach the risk is plainly elevated by the fact that persons may be having to
use the step when the coach is moving.
In these circumstances, any coach company would, on becoming aware of
the defect, be bound to remedy it in implement of its duty to take reasonable
care. It is also of significance that a
plastic strip was able to be put in place to protect passengers from the defect
in the short period whilst they were out and about in Zermatt. That is indicative of it having been
reasonable to expect prompt action to be taken.
So, should the coach company or the
driver have been aware of the carpet defect? I am satisfied that the pursuer has
established that he and/or they should have been so aware.
[16] Firstly, there is the nature of the defect itself, to which I
have already referred. Secondly, there
is the evidence of Mrs Francis. She
said that the coach drivers cleaned the coach after every excursion and checked
to see if there were any dangerous defects.
She would have expected them to notice if there was loose carpet or anything of that nature, and
to deal with it immediately. She did not
accept that there could have been a defect in the carpet but that appears to
have been because she thought the carpet was in one single piece that stretched
the length of the coach and she was wrong about that; there was a join at the edge of the
step. Her belief about the presence or absence
of the defect does not, in my judgment, detract from her clear evidence that
the practice of the coach drivers was to check the coach including the carpets,
after every excursion and maybe even during excursions, when passengers were
out of the coach.
[17] Thirdly, even without Mrs Francis' evidence, the
circumstances are such that the conclusion can be drawn that if the coach
company/its driver had carried out a reasonable inspection of the coach, the
defect would have been identified prior to the Zermatt
excursion. The case does not, contrary
to Mr Wallace's submission, fall into the same category as Cordiner v British Railways Board 1986 SLT 209 where the Lord Ordinary,
with much regret, found himself unable to find in favour of a pursuer who had
slipped on a greasy patch on a station platform. The problem there began with the absence of
any evidence pointing to how long the patch had been present and was compounded
by the lack of any case as to what sort of inspections should have been being
carried out by the defenders. There were
similar difficulties in the other case relied on by Mr Wallace, Hanlon v British Railways Board 1991 SLT 228. Conversely, in the present case, a conclusion
can be drawn regarding the presence
of the defect prior to the accident, as already discussed. Following on from that, the relevant circumstances
are that its presence presented a significant tripping hazard on a step within
a vehicle in which persons would be moving around and may be moving around
whilst the vehicle is travelling.
Further, as happened on this occasion, the reason why a person moves
around within the coach may well be because their attention has been drawn to
something that they can see out of the window, drawing their vision away from
their feet. The need to carry out
regular checks on the carpet, particularly at the step, is obvious. To suggest that those checks should take
place at least at the end of every excursion seems only reasonable. I am satisfied that it can readily be
concluded that the exercise of reasonable care in this case required the carpet
at the step to be checked for defects at the end of every excursion. Had such a check been carried out at the end
of the excursion before the Zermatt excursion, the
carpet defect would, on a balance of probabilities have been identified.
[18] I would only add that the fact the plastic strip was affixed to
the edge of the step whilst the passengers were out and about in Zermatt does
raise the question of whether the coach driver was in fact aware of the defect
but had simply not got round to doing anything about it until the pursuer had
her accident. There was no evidence as
to where the driver got the strip and it is not difficult to infer that he must
have already had it with him in the coach.
If so, that would point to him being aware of the need for it. This is not in fact a question which, in the
circumstances, I require to answer but had I been I required to do so, given
the total absence of any explanation
from the defenders as to where the driver got the strip from and why he had not
applied it sooner, I would have been persuaded to infer that it was indeed the
case that he knew of the defect but had delayed in remedying it.
The Contract
[19] I turn then to the question
of whether or not the defenders are liable in contract for the negligence of
the supplier of the coach transport.
[20] Parties were at issue as to whether or not the Zermatt
excursion was provided under their contract.
Mr Thomson founded on the parts of the brochure quoted above. He submitted that the availability of the
optional excursions was a significant element of the holiday. Further, the price was said to include travel
by luxury coach for all coaching described in the itinerary and that included
the Zermatt excursion.
That being so, the supply of coach travel was included amongst those
matters for which the defenders accepted they would be responsible if the
actual supplier was negligent.
[21] Mr Wallace, for the defenders, submitted that the Zermatt
excursion was not a "supply" under the contract. So far as that excursion was concerned,
neither the Verbano agency nor the coach company was a supplier to the
defenders. He relied heavily on the fact
that there was an additional charge for it and submitted that it was clear from
the evidence and from the contractual documentation that when the price of the Zermatt
excursion was collected by Frederica Zambonini, she did so on behalf of
the Verbano Agency, not on behalf of the defenders. He relied not only on the brochure but on
6/1 of process which is a document headed "TOUR LM - LAKE MAGGIORE 9TH
SEPTEMBER 2001" and appears to have been sent to the pursuer and her husband by
the defenders shortly before their departure.
As regards the Zermatt excursion, it states:
" PAYMENT DIRECT
TO YOUR TOUR MANAGER WHILST ON TOUR."
[22] That is, of course, what the pursuer and her husband did.
[23] The position thus was, in Mr Wallace's submission, that
the Zermatt excursion required to be arranged through
the Verbano Agency. When asked what his
position was as to whether or not the defenders had, at least, an obligation to
put arrangements in place so that the optional excursions were available, he
indicated that he could see that there would be force in the proposition that
they did have such an obligation. That
being so, if the defenders had failed to make such arrangements and the
optional excursions were not available then the clients would, he accepted have
a claim for breach of contract in respect of the failure to put the necessary
arrangements in place. That was not,
however, to say that the defenders had supplied the excursion that took
place; they did not supply it. He relied, in support of his submissions, on
the case of Wong Mee Wan v Kwan Kin Travel Services Ltd & Ors [1995]
4 AER 745.
[24] The case of Wong Mee Wan turned on its own particular facts and
circumstances, which were different from those of the present and is not
authority for any general proposition that where an excursion is not included
in the price of a holiday, it cannot be regarded as provided by the company
which sells the holiday, as seemed to be the thrust of Mr Wallace's
submissions. However, it is a helpful
authority to the extent that it demonstrates that, in the holiday contract
context, the normal approach to construction of contracts applies and the
question of whether a holiday company agreed merely as agent to arrange for
services to be supplied by others or one where they agreed to supply those
services, depends on the particular terms and conditions of the contract under
consideration.
[25] The defenders chose, in this case, to set out the terms on
which they would be prepared to contract in their brochure, a document also
designed to sell their holidays. It is
an important document since it contains details of the supply that the defenders
undertake to make to those who contract with them. When the terms of the contract in this case are examined (as set out in the
brochure), the following are clear:
-
the defenders undertook to provide luxury air
conditioned coach travel for all coaching described in the itinerary;
-
the provision of that coach travel was included in the
price;
-
the coaching described in the itinerary includes the
coaching for the Zermatt excursion;
-
the defenders undertook to provide an "ITS" Tour
Manager at the resort in Italy;
-
the defenders undertook to provide the optional
excursions including the Zermatt excursion;
-
if a client decided to go on one of the "optional
excursions" there would be an additional charge. Whilst the defenders' submissions proceeded
on the assumption that the additional charge was to cover the whole coach costs
involved in the Zermatt excursion as well as the other
costs that would obviously be involved, that was not borne out by any of the
evidence in the case. The defenders
undertook, in terms of the contract, to
provide luxury coach travel for all coach travel. That covered all excursions, including the
optional ones. It is entirely
understandable that there would be other costs involved in providing an
excursion, hence the extra charge, but the contract makes it plain that the
defenders will provide the coach travel as part of the initial holiday
price;
-
the defenders put their clients on notice that they
would be fulfilling their obligation to provide coach travel by using an
independent supplier for whose negligence they would accept responsibility so
long as the supplier was acting within the course of his employment at the
relevant time.
[26] It is plain, in my view, that the defenders' offer of terms, as
included in the brochure, included an obligation on their part not simply to
act as an agent for their clients in placing the optional excursion business
with some unidentified supplier but to provide those excursions. They do so in a way which sends out a message
that if a holidaymaker contracts with them then they can be assured that all
excursions including the optional ones are excursions for which the defenders
take responsibility and will have their seal of approval. They can be distinguished from the "other
optional plans" referred to in the brochure.
That reference is wide enough to cover circumstances where the Tour
Manager would be doing no more than facilitating an excursion contract between
the clients and other businesses which run other attractions or
excursions. It serves to emphasise that
the specified excursions, including the Zermatt
excursion are excursions that will be supplied by the defenders.
[27] In similar vein, a distinction is drawn on the last page, when
it comes to what the defenders do and do not accept responsibility for, between
services provided by the defenders and activities which do not form part
of the holiday arrangement "nor any part of any excursion sold through us". Thus, negligence causing injury on an
excursion which is "sold through us", such as the Zermatt
excursion, is, within the structure of that clause, one for which the defenders
expressly accept responsibility.
[28] The way in which, as a matter of fact, the provision of the
holiday operated, supports the above analysis.
The information leaflet (6/1) sent out before departure, in stating
that the additional price payable for the Zermatt excursion is to be payable to
"YOUR TOUR MANAGER", namely the "ITS Tour Manager" which the defenders
undertook to provide, gives the impression that the Zermatt excursion is to be
provided by the defenders. Further,
Mrs Francis agreed in evidence which was not challenged and which I accept,
that the Verbano agency was "acting as the face of ITS throughout the holiday"
and that they were taking over the defenders' contractual
responsibilities. She also confirmed
that, at the welcome meeting, when one of the matters referred to was the Zermatt
excursion, Frederica was welcoming clients on behalf of the defenders. That was, again, not challenged and is evidence
that I accept. It plainly fits with the
scheme of the defenders' contractual obligations and supports the conclusion
that the optional excursions were being provided by the defenders.
[29] In all these circumstances, I reject the defenders' submission
to the effect that they did not supply the Zermatt
excursion. It is manifestly clear that
they did do so. They are, accordingly,
bound in terms of their contract, to accept responsibility for the negligent
failure to identify and remedy the defect in the carpet prior to the pursuer's
accident.
Damages
[30] Parties were agreed that the
nature and extent of the pursuer's injuries are accurately summarised in a
report by Margaret McQueen dated 28 August
2003. She sustained a
lateral ligamentous injury and an avulsion fracture of the cuboid bone in her
right ankle. She required crutches for
several days. She suffered significant
discomfort in her foot for 2-3 months and could not drive for 2 months. By the date of the report she was not
suffering pain in the course of normal daily activities but found that her foot
and ankle were sore if she sat cross legged and that her ankle ached if she
walked over a mile on a hard surface.
Her ankle was also stiff first thing in the morning and became sore if she
had to keep getting up and down from her chair at work. Ms McQueen found all reports of
continuing symptoms to be reasonable,
commented that they were attributable to the pursuer having contracted a
chronic ligamentous problem and concluded that it was likely that it would
persist.
[31] When the pursuer gave evidence in 2006, she was
complaining of the same symptoms as she had described to Ms McQueen.
[32] After the accident, the pursuer's husband had had to assist her
for a couple of months with housework, tasks like getting in and out of the
bath and driving.
Solatium
[33] For the pursuer,
Mr Thomson submitted that guidance could be gained from the cases of Nimmo v Secretary of State for Scotland 2000 Rep LR14 and Brown v City of Edinburgh
Council 1999 SLT (Sh Ct) 43, particularly from the former. He also referred to the case of Kirk v Fife Council 2002
SLT 21 although he accepted that it involved more
serious injury. Solatium should, he
submitted, be valued at г7,500 before the application of interest.
[34] Mr Wallace submitted that the appropriate valuation for
solatium was г3,000, under reference to the cases of Connell v BP Chemicals Ltd 1993
SLT (Notes) 787 and Nimmo v British Railways Board 1990 SLT 680.
[35] The two cases referred to by Mr Wallace, which involved
awards of г2,200 (present value about г3,000) and г1,500 (present
value about г2,500) involved ankle strain injuries of less severity than
that sustained by the pursuer. On the
other hand, the cases relied on by Mr Thomson all involved injuries of
somewhat greater severity. Whilst the
case of Nimmo v Secretary of State for Scotland , where an award of г6,000 (present
value about г7,000) was made, is the closest, it did involve a more severe
injury; the pursuer there was off work
for 13 weeks, experienced extreme pain and suffered continuing symptoms of
pain and swelling that could occur after any ordinary day's work.
[36] In all the circumstances, I assess solatium at г5,750 of
which I apportion two thirds to the past.
Applying interest at one half the judicial rate from the date of the
accident brings out a figure which rounds to г1,000.
Services
[37] Parties were agreed that
services should be assessed at an interest inclusive figure of г650.
Interlocutor
[38] In the foregoing
circumstances, I will pronounce an interlocutor finding the defenders liable to
make payment to the pursuer in the sum of г7,400. I will, in the meantime, reserve all
questions of expenses.
