Kellett v RCL Cruises Ltd
| Jurisdiction | Ireland |
| Judge | Mr. Justice Barr |
| Judgment Date | 06 June 2019 |
| Neutral Citation | [2019] IEHC 408 |
| Docket Number | [2017 No. 6905 P.] |
| Court | High Court |
| Date | 06 June 2019 |
[2019] IEHC 408
THE HIGH COURT
Barr J.
[2017 No. 6905 P.]
AND
Tort – Personal Injury – Package Holidays and Travel Trade Act 1995 – Plaintiff seeking compensation for injury, loss and damage pursuant to S. 20 of Package Holidays and Travel Trade Act 1995 – Whether defendant was liable as an organiser for actions of the supplier, and whether supplier of services had been negligent in the operation of the excursion
Facts: The plaintiff was on a cruise on a ship owned by the fist defendant and took part in a speed boat excursion where she suffered a fractured elbow and related injuries. The plaintiff claimed that the first defendant, and the second defendant (the travel agent), were liable as organisers pursuant to S. 20 of the Package Holidays and Travel Trade Act 1995. Specifically, the plaintiff contended that the boat provided was not safe for the purpose of the activities that were being performed and that safety measures such as a harness and side padding should have been in place. The defendants argued that the plaintiff had voluntarily assumed the risk by signing up for the “White Knuckle Jet Boat Thrill Ride.” The defendants further argued that they could rely on the exceptions to liability contained in S. 20(a) and (c) of the 1995 Act, namely that the fault was attributable to the consumer or was due to force majeure or an event which could not have been foreseen by the organiser.
Held by Barr J that the plaintiff was not prevented from alleging negligence on the part of the service providers simply because she had signed up for a risky activity. Furthermore, Barr J held that there had been no force majeure, nor was it a totally unforeseeable event such that the exceptions contained in S. 20(a) and (c) would apply.
Barr J held it was therefore necessary for the plaintiff to demonstrate that the service providers had failed in their duty of care. Under the relevant case law, the onus was on the plaintiff to establish that the service provider did not provide the service in accordance with local regulations or standards, or in accordance with internationally recognised standards. The plaintiff did not provide evidence as to what these standards might be. Furthermore, Barr J held that the defendants were not ‘insurers’ and did not have a duty to take steps to prevent every foreseeable injury occurring. Barr J declined, therefore, to find that there had been any negligence on the part of the excursion operators, and as such there was no liability on the part of the defendants under the 1995 Act.
Relief denied.
The essence of this case is as follows: while participating in a cruise on board a ship owned by the first defendant, and while the ship was docked at the island of St. Maarten in the West Indies, the plaintiff and her husband availed of an excursion in a speed boat as part of a ride which was advertised as being a ‘ White Knuckle Jet Boat Thrill Ride’. The plaintiff had booked this excursion when booking the cruise and had paid a supplement for it. The ride was operated by a company located in Phillipsburg, St. Maarten.
While on the ride, the skipper made a 360 degree turn to the starboard side. The plaintiff, who was sitting on the extreme right of the front bench, was lifted out of her seat even though she was holding on to a bar in front of her seat. She fell back into her seat with some force, striking her right elbow against the gunwale on the starboard side of the boat. Subsequent investigations revealed that she had suffered an undisplaced fracture to the lateral epicondyle in her right elbow, with a small focal tear in the area.
The plaintiff claims that the first defendant as the provider of the cruise and the second defendant, which was the travel agent through which she had booked the cruise and the excursion, are liable to compensate her in respect of her injuries, loss and damage, pursuant to the provisions of s. 20 of the Package Holidays and Travel Trade Act 1995 (the 1995 Act). In particular, it is the plaintiff's case that the boat which was provided for use on the excursion was in an unsafe and dangerous condition having regard to the vigorous manoeuvres that were going to be undertaken as part of the excursion. It is the plaintiff's case that the following safety features should have been incorporated in the boat: a safety harness or lap belt, a bar along the gunwales on either side of the boat, padding on the gunwales and the plaintiff should have been put sitting in a different part of the boat.
The defendants are the cruise line and the travel agent in Dublin through whom the cruise was booked. They were jointly represented at the trial. They filed a full defence to the plaintiff's claim. At the trial, they conceded that they were ‘organisers’ of the package holiday, as defined in the 1995 Act. However, they maintained that as the plaintiff had voluntarily elected to go on an activity, which she knew would involve vigorous manoeuvres done at speed, she could not complain if she happened to injure herself in the course of such activity. They also submitted that they were entitled to rely on the exceptions to the imposition of liability on an organiser provided for in s. 20 (2)(a) and (c) of the 1995 Act. Finally, they alleged that the plaintiff had not discharged the onus of proof of establishing that there had been negligence, or breach of duty on the part of the excursion operator.
The year 2016, was a special year for the plaintiff and her husband. In that year, the plaintiff turned 50 years of age. It was also their 25th wedding anniversary. To celebrate these milestones, the plaintiff and her husband decided to treat themselves to a special holiday. As part of that vacation, the plaintiff and her husband booked a cruise with the first defendant. They selected a seven day cruise in the West Indies. They flew from Dublin to the United States on Saturday, 2nd April, 2016. On the following day, they boarded the ship, ‘ Freedom of the Seas’ at Port Canaveral, Florida. In the following days, they cruised to the Bahamas and to the island of St. Thomas. On Thursday, 7th April, 2016, the ship docked at Phillipsburg on the island of St. Maarten.
Prior to leaving Ireland, the plaintiff had booked an excursion through the first defendant for her husband and her to go on a White Knuckle Jet Boat Thrill Ride which was to be provided by a company in St. Maarten. The plaintiff paid a supplement of €124.20 for her and her husband to go on the excursion.
Prior to booking the excursion, the plaintiff had looked at the website of the company providing the excursion. There, she saw photographs of the ride in progress and there was also a video showing the excursion. On the website, the following description was given of the excursion:
‘Tour description
If your goal for a perfect vacation day involves an adrenaline-infused rush from a water rollercoaster ride then you are in the right place.
The only one “White Knuckle” Jet Boat thrill ride – water rollercoaster on St. Maarten offered to you daily with an hourly departure.
When you're aged 5 or higher (minimum height 4ft 2in and up) and enjoy exciting boat rides, then you will love this sort of ride – the kind with 180, 270 and 360 degree spins with sweeping turns, amazing tricks and manoeuvres, such as sideway slides, sashays and as you travel up to 53 miles per hour with a 300 HP jet boat, you'll enjoy approximately 30 minutes of exhilarating action, that will have you involuntarily laughing and “praying for your life”.
And that will knock you silly!
It will be your big event of this vacation: thrill jet boat ride! The best adrenaline rushes in St. Maarten.’
On the morning in question, the plaintiff and her husband disembarked from the cruise ship and were brought with eight other passengers from the ship, to the offices of the excursion operator at the harbour from where the excursion would begin. They were given the following instructions by the skipper of the boat: they were told to stay seated at all times, they were to hold tightly onto the bar in front of their seat and plant their feet firmly on the floor when he was performing turns on the water, preceding which he said that he would give a hand signal to alert them that he was about to make a turn, they were told to wear swimming togs or other suitable clothing and to wear the life jackets that were provided for their use.
The plaintiff and her husband and the other passengers were then brought down to embark onto the boat. It was a fibreglass speed boat with three bench seats, each of which could accommodate four people. The plaintiff stated that the skipper designated where the various passengers were to sit. This was presumably done to ensure an even distribution of weight. The plaintiff and her husband were directed to sit on the front bench along with the skipper. He sat on the port side, the plaintiff was in the middle and her husband was on the starboard side. The remainder of the passengers occupied the other two benches. The plaintiff stated that they were older than the plaintiff and her husband.
The boat proceeded out onto the water and the skipper gave a signal that he was about to make a 360 degree turn to the port side. When he did this, notwithstanding that the plaintiff was holding tightly to the bar in front of her, she lifted out of her seat and moved to her left, with her head striking the skipper's head. He brought the boat to a halt and told the plaintiff to change places with her husband. This meant that she was now sitting on the starboard side of the front bench.
Sometime later, the...
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