Kellett v RCL Cruises Ltd

JurisdictionIreland
JudgeMr. Justice Robert Haughton
Judgment Date21 May 2020
Neutral Citation[2020] IECA 138
Date21 May 2020
CourtCourt of Appeal (Ireland)
Docket NumberRecord Number: 2019/342
Between/
Siobhan Kellett
Plaintiff/Appellant
and
RCL Cruises Limited, Panther Associates Limited T/A Cruise Holidays and Panther Associates T/A Tour America
Defendants/Respondents

[2020] IECA 138

Noonan J.

Haughton J.

Collins J.

Record Number: 2019/342

High Court Record Number: 2017/6905P

THE COURT OF APPEAL

Damages – Personal injuries – Negligence – Appellant seeking damages for personal injuries – Whether there had been negligence on the part of the respondents

Facts: The plaintiff/appellant, Ms Kellett, appealed to the Court of Appeal from the judgment and order of the High Court (Barr J) of the 6th June, 2019, in which the court dismissed the plaintiff’s claim for damages for personal injuries. Many of the grounds of appeal were somewhat generic and suggested that the trial judge had sufficient evidence, contrary to his findings, to determine that there had been negligence on the part of the respondents. Other grounds suggested that the findings were against the weight of the evidence. At paragraph 55 of his judgment, the trial judge said that “one must also take account into that passengers...have to embark and disembark over the gunwales; the provision of a sidebar would constitute a serious trip hazard at each embarkation and disembarkation of the vessel”. It was pleaded that there was no evidence led which supported this finding. It was said further that the judge applied the wrong test on the issue of liability. The appellant further contended that the trial judge erred in his application of the Package Holidays and Travel Trade Act 1995 by determining that there was an obligation on the appellant to provide evidence of local standards and that this amounted to an evidential deficit in the appellant’s case. Finally, it was said that the trial judge erred in applying the provisions of the 1995 Act and the European regulations upon which it was based (Council Directive 90/314/EEC of 13 June 1990 of the European Communities on Package Travel, Package Holidays and Package Tours). The appellant contended that the stated purpose of the regulations is to protect the rights of consumers of package holidays and an interpretation which requires a claimant to incur the prohibitive costs of retaining a foreign resident expert to deal with local standards is inconsistent with the purpose of the Directive. In this latter regard, the appellant in her submissions contended that the normal onus of proof should be reversed and the burden of establishing that there was compliance with local regulations lay upon the defendants/respondents, RCL Cruises Ltd and Panther Associates Ltd.

Held by Noonan J that the trial judge identified the appropriate legal test and correctly applied it to the facts of this case. Noonan J held that the trial judge’s conclusion was, in any event, stress tested against any relevant Irish criteria and even then the judge was rightly of the view that he could still not find that the service was provided without reasonable skill and care.

Noonan J held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr. Justice Robert Haughton delivered on the 21st day of May, 2020

1

I agree with Noonan and Collins JJ. that this appeal should be dismissed. In particular I agree that, while the trial judge found a “deficit” in the appellant's evidence in respect of local regulations, guidelines or standards applicable in St. Maarten for such boat trips, he ultimately decided the case on the basis of the standards that might “be thought to be applicable in this jurisdiction”. In so doing he took the approach most favourable to the appellant. On that basis he was entitled to come the conclusions that he did in respect of the various...

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1 cases
1 books & journal articles
  • Table of Cases
    • United Kingdom
    • Wildy Simmonds & Hill Saggerson on Travel Law and Litigation - Seventh Edition Contents
    • 30 August 2022
    ...117 SJ 91, CA 10.108 Kedgley v Britannia Airlines, 1 September 2004 (unreported), Wandsworth Cty Ct 10.49 Kellett v RCL Cruises Limited [2020] IECA 138, [2021] 1 Ll Rep 213 (CA, Ireland) 5.172 Table of Cases xxxvii Kemp v Intasun Holidays Limited [1987] BTLC 353, [1987] 2 FTLR 234, [1988] 6......

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