Daly v Irish Group Travel t/a Crystal Holidays & Christine Hamer
| Jurisdiction | Ireland |
| Judge | Mr. Justice Kearns |
| Judgment Date | 16 May 2003 |
| Neutral Citation | 2003 WJSC-HC 2401 |
| Court | High Court |
| Date | 16 May 2003 |
2003 WJSC-HC 2401
THE HIGH COURT
BETWEEN
AND
AND
Citations:
PACKAGE HOLIDAYS & TRAVEL TRADE ACT 1995 S20
BRUSSELS CONVENTION 1968 ART6(1)
KALFELIS V BANKHAUS & ORS 1988 ECR 5565
EC REG 44/2001 ART 6
REUNION EUROPEENE SA & ORS V SPLIETHOFF'S BEVRACHTINGS KANTOOR BV 1998 ECR I-6511
RSC O.11
ANALOG DEVICES V ZURICH INSURANCE CO 2002 2 IR 272
JURISDICTION OF COURTS & ENFORCEMENTS OF JUDGEMENTS (EUROPEAN COMMUNITIES) ACT 1988 S3
BRUSSELS CONVENTION 1968 ART 2
BRUSSELS CONVENTION 1968 ART 6
GANNON V BRITISH & IRISH STEAMPACKET CO LTD & ORS 1993 2 IR 259
MCGEE V JWT LTD ASSOCIETE HOLDING IMBERTE UNREP O'SULLIVAN 27.3.1998 1998/25/9776
MCKENNA V BEST TRAVEL LTD 1998 3 IR 57 1998/8/2476
BRUSSELS CONVENTION 1968 ART 5
Synopsis:
PRACTICE AND PROCEDURE
Jurisdiction
Brussels Convention - Claims in contract and tort against Irish and Austrian defendants - Whether claims brought against various defendants sufficiently related to each other - Whether Ireland appropriate venue to hear and determine claims - Brussels Convention, 1968, article 6(1) - Jurisdiction of Courts and Enforcement of Judgments (European Communities) Act, 1988 (2001/36251 - Kearns J - 16/5/2003)
Daly v Irish Group Travel t/a Crystal Holidays
the plaintiff's husband died whilst on a rafting trip organised by the second to fourth defendants, based in Austria, during the course of a holiday purchased from the first defendant, a travel agent registered in Ireland. Claims in tort and contract were made against all defendants arising out of that accident. The defendants brought a motion contesting the jurisdiction of the High Court to hear and determine the plaintiff's claim. They accepted that the joinder in the proceedings of the Irish defendants was not done for the purpose of ousting the jurisdiction of the Austrian court but that the claim against the Irish defendants was essentially one in contract whilst the claim against the Austrian defendants was one in tort, notwithstanding the content of the written pleadings, and accordingly, they were not sufficiently related to each other for both claims to be heard in Ireland.
Held by Kearns J in refusing the application that the claims against the respective defendants were so closely connected, there being a considerable overlap of issues as between the claims against the Irish defendants and the Austrian defendants, that it was expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings in different jurisdictions.
JUDGMENT of Mr. Justice Kearns delivered the 16th day of May, 2003
These proceedings arise out of an accident which occurred in Austria on the 7 th June, 1999 when the plaintiff's husband Alan Daly died while on a white river rafting trip. The tragedy occurred during the course of a "lakes and mountains" holiday which the plaintiff had purchased in May 1999 from the first named defendants who are travel agents based and registered in Ireland.
On arrival to their hotel in Austria, the plaintiff and Alan Daly were given a welcome pack containing a brochure entitled "Crystal Holidays Welcome to Austria Zell Am See". The brochure indicated that a white water rafting trip could be purchased by customers who would be looked after by experienced rafters and further introduced Jake Aust and Karin Geerlings as the Irish defendants' representatives at the resort. The following morning, the plaintiff and Alan Daly attended a welcome meeting where Jake Aust and Karin Geerlings, wearing Crystal Holidays uniforms, encouraged holiday makers to sign up for various trips and activities, including river rafting. The deceased opted to take such a trip, which was to be provided by the second to fourth named defendants ( "the Austrian defendants"). Some days later, Alan Daly attended at the river rafting centre run by the Austrian defendants. In the course of the trip, Alan Daly and several other holiday makers were drowned when the raft in which they were travelling under the guidance of a rafting guide provided by the Austrian defendants, failed to complete a landing manoeuvre prior to a weir which it had been intended to by-pass on land and were in fact swept over the weir. Both the guide, Gottfried Eder and Trevor Hamer, the operator, have been convicted of manslaughter in Austria arising out of the incident.
The present application is one brought on behalf of the Austrian defendants contesting the jurisdiction of the High Court to hear and determine the plaintiff's claim against them. At the outset of the hearing before this court, the Irish defendants, being the travel agents through whose office or agency the holiday was booked, were also joined as a notice party to the application.
The plenary summons was issued on the 9 th March, 2001. An appearance was entered on behalf of the Irish defendants on 3 rd May, 2001. A statement of claim was delivered on the 31 st January, 2002.
It is appropriate to summarise the claims pleaded against both defendants.
The following claims in contract are made against the Irish defendants:-
(a) That the Irish defendants' representative or agent would provide help and advice to Alan Daly,
(b) That the Irish defendants would act with reasonable skill and care in and about the services provided for, arranged for or offered to Alan Daly by the defendants, their servants or agents (who included Jake Aust, Karin Geerlings and the Austrian defendants) as part of or in connection with the said holiday, the river rafting being such a service,
(c) that the Irish defendants would ensure that the services provided would be supplied by persons of reasonable competence and skill.
A further claim in tort against the Irish defendants was advanced to the effect that the Irish defendants owed a duty of care to Alan Daly to ensure that their servants or agents would act with reasonable skill and care in and about the services provided, including the said river rafting service. It is further pleaded that the Irish defendants are liable for the improper performance of their obligations under and by virtue of Section 20 of the Package Holidays and Travel Trade Act, 1995. From the affidavit evidence it further appears that the Irish defendants took a commission on the purchase of the river rafting trip.
Claims in tort and contract are made against the Austrian defendants. It is alleged that the Austrian defendants entered into a contract to bring Alan Daly on a river rafting trip and that it was an implied term thereof that the Austrian defendants would act with reasonable skill and care in its conduct. It is alleged that this duty was breached when, inter alia, the Austrian defendants failed to warn Alan Daly of the dangers associated with the trip, chose to disembark at a point which was known to be unsafe by reason of the occurrence there of two previous fatal accidents and failed to take any adequate steps to see that the guide on the river trip and other staff involved were of reasonable competence and experience. Similar allegations are relied upon in alleging negligence against the Austrian defendants.
It is further alleged against both the Irish and Austrian defendants that Jake Aust and Karin Geerlings, acting as servants or agents of either the Irish or Austrian defendants or both, made negligent misrepresentations as to the safety of the river trip to Alan Daly; alternatively, the servants or agents of the Irish and Austrian defendants are alleged to have made negligent misrepresentations as to the safety of the trip in the "welcome" document.
On behalf of the Austrian defendants, Mr. Ian Finlay S.C. submitted that Article 6(1) of the Brussels Convention 1968, upon which the plaintiff relies to establish the jurisdiction of the Irish Courts, must be read in conjunction with the interpretation given to it by the European Court of Justice in Kalfelis v. Bankhaus Schröder, Münchmeyer, Hengst and Co. [1988] ECR 5565.
Article 6(1) of the Convention states:-
"A person domiciled in a Contracting State may also be sued where he is one of a number of defendants, in the Courts for the place where any one of them is domiciled."
Kalfelis required that, as an additional requirement to found jurisdiction, the claims must be so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings. This requirement was later incorporated into Article 6 of Council Regulation (EC) 44/2001.
Looking at the facts of this case, Mr. Finlay submitted that the factors connected with the particular event, namely the death of Alan Daly, are all located in Austria:-
• . The place of the accident is in Austria.
• . The Austrian defendants, not the Irish defendants, were the operators of the raft.
• . Alan Daly booked the rafting tour with the Austrian representatives of the Irish defendants once he was in Austria.
• . The legal rules applicable to white water rafting on the Salzach River are Austrian.
Mr. Finlay submitted that the case made by or on behalf of the plaintiff against the Irish defendants is essentially one in Irish contract law and the 1995 Act. While the plaintiff had also pleaded negligence as against the first defendant, careful analysis of the pleadings and claims advanced therein revealed that the negligence pleas are "make-weights".
That being so, he submitted that there was no real risk of irreconcilable judgments resulting from separate proceedings in different jurisdictions. Mr. Finlay...
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