Mason Heeney (A Minor) Suing by His Father and Next Friend Kevin Heeney and Kevin Heeney v Sunway Travel Ltd T/A Sunway Holidays

• Jurisdiction: Ireland
• Judge: Mr. Justice Cian Ferriter
• Judgment Date: 17 February 2022
• Neutral Citation: [2022] IEHC 89
• Docket Number: [2021 No. 38 CA]
• Year: 2022
• Court: High Court

Between

Mason Heeney (A Minor) Suing by His Father and Next Friend Kevin Heeney and Kevin Heeney

Plaintiffs

and

Sunway Travel Limited T/A Sunway Holidays

Defendant

[2022] IEHC 89

[2021 No. 38 CA]

THE HIGH COURT

Damages – Injury – Causation – Plaintiffs seeking damages for injuries sustained while on a package holiday – Whether the plaintiffs could establish causation

Facts: The plaintiffs, the Heeneys, appealed to the High Court from an order of the Circuit Court dismissing the plaintiffs’ claims for damages for injuries sustained while on a package holiday in Tenerife, Spain and for the reimbursement of the costs of the holiday. The plaintiffs submitted that the expert evidence demonstrated that the reasonable skill and care obligation on the defendant, Sunway Travel Ltd, was breached as a fan was at an unacceptably low level and therefore a hazard, particularly in circumstances where Mr Heaney as a tall man had specifically put the defendant on notice of the fact that he regarded the fan as a hazard to him. They submitted that an accident was caused by the very thing complained of, as a result of a perfectly foreseeable act on the part of a parent in relation to a child i.e. lifting a child up to comfort him. The plaintiff also submitted that the terms of s. 20(2)(b) of the Package Holidays Trade and Travel Act 1995 were such that the defendant was forced in effect to argued that Mr Heaney’s actions were a form of novus actus interveniens when there was no tenable basis for that legal doctrine to apply. The defendant’s essential defence was twofold: firstly, that there had been no improper performance of their obligations within s. 20 as the plaintiffs had not discharged the burden on them of demonstrating that there had been a lack of reasonable skill and care in relation to the height of the ceiling fan; and, secondly, that if it was wrong in that regard, it submitted that the plaintiffs could not establish causation on the basis that either the act of Mr Heeney lifting up his child to the height of the level of the ceiling fan blades was not foreseeable or that the height to which the child had been lifted by Mr Heeney (which, on the balance of probabilities, was at least seven feet) meant that the height of the fan at below seven feet was not causative of the accident and the injuries sustained.

Held by Ferriter J that on the very particular facts of this case, there was a breach of the duty of reasonable skill and care by the defendant, and therefore improper performance by the defendant of its obligations to the plaintiffs in breach of s. 20, in circumstances where Mr Heeney had specifically complained about the dangerously low level of the ceiling fan and twice requested alternative accommodation without such a hazard and where the defendant did not take steps to address that hazard by moving Mr Heeney and his family into separate accommodation notwithstanding that there was, in fact, separate accommodation with air conditioning without a ceiling fan in the complex at the time of his complaints. Ferriter J held that s. 20(2) on the face of it imposes a full liability on the organiser for any damage caused by the improper performance of the contract unless it can demonstrate that the improper performance of the contract “is due neither to any fault of the organiser or the retailer nor to that of another supplier of services” because of one of the scenarios specified in s. 20(2)(a), (b) or (c), each of which in essence addresses scenarios where the fault is entirely that of someone other than the organiser and/or where the consequences are unforeseeable and unavoidable. Ferriter J noted that none of those provisions was sought to be relied upon by the defendant as against Mr Heeney. In light of the provisions of s. 20(2), in Ferriter J’s view the defendant was liable in full to both defendants for the damage resulting from its improper performance of its obligations.

Ferriter J held that an appropriate level of general damages to fairly and reasonably compensate the child for the injury of a small lifelong scar behind his right ear was €8,500. Ferriter J held that it was also appropriate to order compensation to Mr Heeney for the return of the entirety of the sum of €3,596 paid by Mr Heeney for the package holiday.

Appeal allowed.

Judgment of Mr. Justice Cian Ferriter delivered on the 17th day of February 2022

Introduction

1 This is an appeal from an order of the Circuit Court dismissing the plaintiffs' claims for damages for injuries sustained while on a package holiday in Tenerife, Spain and for the reimbursement of the costs of the holiday.

The Evidence

2 I heard evidence at the hearing from the first-named plaintiff (Mr. Heeney) and from an expert engineer called upon the plaintiffs' behalf, Mr Conor Murphy (Mr. Murphy). The defendant did not call any evidence.

3 Mr Heeney's evidence can be summarised as follows. In July 2015, Mr Heeney booked a package holiday with the defendant for a two-week stay in an aparthotel in Tenerife in August, 2015 for himself, his wife and their two children, Evan, who was six at the time, and Mason (the first named plaintiff) who was just short of three years old at the time. Mr. Heeney paid €3,596 to the defendant for the package holiday.

4 The family flew out to Tenerife on 8th August, 2015 to commence the holiday. Shortly after they arrived in their apartment, Mr. Heeney (who, at six foot three inches, is tall) hit his fingers against an overhead ceiling fan in the apartment while changing into a t-shirt. As a result, Mr. Heeney was concerned that the fan was unsafely low, particularly given his height. The following morning, 9th August, Mr Heeney went down to the reception in the aparthotel to express his concern that the ceiling fan was too low and was “a bit dangerous” and to request that they be moved to an apartment that was air-conditioned but did not have a ceiling fan. He was told that there was not any other apartment available that day but to come back the following day. Mr. Heeney gave evidence that he repeated this request on the following day, 10th August, but was again told there was no alternative accommodation.

5 On the morning of the next day, 11th August, Mason was on the end of a couch in one of the rooms in the apartment when he became agitated and started crying. Mr. Heeney went to lift up Mason to comfort him. Mr. Heeney didn't realise he was under the fan and in the lifting movement, lifted Mason up above his head and then heard a bang where one of the blades of the ceiling fan hit Mason on the back of the head. Mr. Heeney said that there was “blood everywhere” and Mason was distressed. He and his wife immediately rushed down to reception with Mason. The aparthotel staff were, thereafter, helpful in arranging for a taxi to take the Heeneys to the local GP who bandaged Mason's head and arranged for an ambulance to take Mason to the local hospital where they spent a number of hours. The laceration to the area behind Mason's right ear (photographs of which were before the court) required three stitches. The blow from the blade also left a cut mark at the time on the side of Mason's face near his right ear. The family returned to the hospital a day or so before the end of the holiday to have the stiches removed.

6 Mr. Heeney gave evidence that he reported the incident to the manager of the aparthotel on return to the hotel and raised the fact that he had twice sought to be moved from the apartment because of his concerns as to the ceiling fan. The manager was very apologetic and told him that in fact they could have been moved because there was alternative accommodation free within the aparthotel. The manager then arranged for the Heeneys to move the following morning into an air-conditioned apartment which did not have ceiling fans.

7 Before moving apartment, Mr Heeney took photographs of the fan ceiling placement in the apartment and arranged for measurements of the height of the ceiling fan in the room to be taken. The defendant facilitated these measurements and it is agreed that the lowest point of the blades of the ceiling fan were 6 foot 9.5 inches above the floor.

8 When Mr. Heeney was cross-examined to the effect that the accident was entirely his fault, he maintained that he had identified the ceiling fan as a hazard from first arriving in the apartment, had twice raised that with the staff in the hotel and that the accident happened when he was engaging in the perfectly natural step of lifting up his two-year-old child to comfort him.

9 It was also put to Mr. Heeney in cross-examination that he would not be maintaining a claim if he had lifted his child up when going through a door opening (door openings being six foot, six inches in height) or if he had banged Mason's head into a curtain pole at that height. Mr. Heeney accepted that he would not have claimed in such circumstances but stated that a ceiling fan was something which he was not used to and represented a very different kind of hazard given that it was only six inches or so above his head and rotating at high speed. He accepted that he had switched the fan on but said that the fan needed to be on at all times given the heat in Tenerife in August.

10 Mr. Murphy, a highly experienced engineer and expert witness, then gave evidence on behalf of the plaintiffs.

11 Mr. Murphy gave evidence that he had been unable to identify any Spanish or Irish standards as regards a safe minimum height between floor and blade level for ceiling fans. Based on his research, Mr. Murphy was in a position to tell the court that an American ceiling fan standards document (which did not appear to be legislation-based) recommended that ceiling fans be fixed at ten feet from the floor but recognised that it would be permissible to hang ceiling fans at a minimum height of 2.1 metres or seven feet. Mr. Murphy said that a...