McKenna v Best Travel Ltd

• Jurisdiction: Ireland
• Judge: Morris J.,Mr. Justice Lavan.
• Judgment Date: 17 December 1996
• Neutral Citation: [1996] IEHC 42
• Docket Number: Record No. 1992/61P,[1992 No. 61P]
• Court: High Court
• Date: 17 December 1996

[1996] IEHC 42

THE HIGH COURT

No.1992/61p

MCKENNA v. BEST TRAVEL LTD

BETWEEN

MARION McKENNA

PLAINTIFF

AND

BEST TRAVEL LIMITED TRADING AS CYPRIANA HOLIDAYS AND CHUDLEIGH LIMITED TRADING AS THE HOLIDAY SHOP

DEFENDANTS

Citations:

SALE OF GOODS & SUPPLY OF SERVICES ACT 1980 S39

SMITH V LITTLEWOODS ORGANISATION LTD 1987 1 AER 710

WORTHERLY V GREYHOUND CORPORATION 365 SO (2d) 177

HEDLEY BYRNE & CO LTD V HELIER & PARTNERS LTD 1964 AC 465

MONTGOMERY V UK MUTUAL SS ASSOCIATION LTD 1891 1 QB 371

EEC DIR 90/314

WILSON V BEST TRAVEL 1993 1 AER 353

ANNS V MERTON LONDON BOROUGH COUNCIL 1978 AC 728

DAVEY V COSMOS AIR HOLIDAYS 1989 CLY 327

DONOGHUE V STEPHENSON 1932 AC 562

WARD V MCMASTER 1988 IR 337 1989 ILRM 400

ANGELL V ARANZINI LUMBAR CO 363 SO (2d) 517

COMMISKEY V MCDERMOT 1974 IR 75

CIVIL LIABILITY (AMDT) ACT 1964 S2

WHITE IRISH LAW OF DAMAGES CH 5

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S68(1)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S306(K)

SOCIAL WELFARE (CONSOLIDATION) ACT 1981 S204

CIVIL LIABILITY ACT 1961 S68

PAREE V CLEEVER 1970 AC 13

GREHAN V MEDICAL INCORPORATED & VALLEY PINES 1986 ILRM 627

REDDY V BATES 1983 IR 141

Synopsis:

Negligence

Package holiday; optional tour; plaintiff injured by stone throwing; duty of care; breach of contract; period of unusual civil disturbance; failure to warn plaintiff and to take all reasonable precautions; contributory negligence; quantum; whether compensation already received under Israeli government scheme should be deducted; S.2 Civil Liability (Amendment) Act 1964 considered Held: Defendants held 75% negligent; Israeli government compensation not deductible from damages award (High Court: Lavan J 17/12/1996)

McKenna v. Best Travel Ltd & anor.

1 Judgment delivered on the 17th day of December, 1996 by Mr. Justice Lavan.

2 The facts of the case are as follows. On the 29th August, 1990 the Plaintiff agreed to purchase a holiday in Cyprus from the Second named Defendant trading as The Holiday Shop. Having chosen same from the brochure of the First named Defendant, trading as Cypriana Holidays, which contained therein the option of "Add on mini cruise" to Egypt and Israel, including seeing Jerusalem and Bethlehem. As the cruise was bookable only in Cyprus and from a representative of Cypriana the Plaintiff booked it on the 24th September, the day after arriving in Cyprus, from the First Defendant's agent, Paradise Island Tours Limited. On the way to Bethlehem as part of the said cruise the Plaintiff was travelling in a coach when she was struck by a large stone and consequently suffered serious injuries, including loss of bone, 8 teeth and incurred two scars to her face.

3 Counsel for the Plaintiff alleges breach of contract under the Sale of Goods Act, under the Sale of Goods and Supply of Services Act, 1980and breach of a further implied condition that the Defendants would not knowingly expose the Plaintiff to a significant risk to her life, limb or health which they were aware of or ought to have been aware of, and that they would warn the Plaintiff of any dangers travelling to selected destinations where there would be significant risk and that they would take all reasonable steps to ensure the Plaintiff's safety including using goods which would be reasonably fit for their intended purpose. These expressed or implied conditions were allegedly breached in that the Plaintiff was exposed to significant risk, was given no advice as to any possible dangers inherent in travelling to certain parts of Israel, especially while the Intefata was active. The bus used by the Defendant's agent was not fitted with reinforced glass. Furthermore or in the alternative the Plaintiff alleges negligence and breach of duty of care owed to the Plaintiff in failing to warn the Plaintiff of the dangers in recommending the Holy Land as a holiday destination, in failing to organise the trip so as to minimise the risk to the Plaintiff by permitting the Plaintiff to travel through Bethlehem in a bus easily identifiable as Israeli.

4 The first Defendant claimed that reasonable care was taken by daily checking of routes and there was no warning with respect to this route on this particular day. No attack on a tourist bus had taken place in the nine months previous to the incident according to Mr. Lawyer or ever according to Mr. Caspi. There was no evidence that warning should have been given to tourists not to take organised bus tours, a completely different category to Israeli scheduled buses, nor is there any evidence that the coach used was unsuitable. They submit that there as no duty of care in Irish Law requiring travel agents to warn clients of a probable risk to their health posed by the client's chosen destination. In England the duty of care to protect from the criminal activity of others may arise where injury to the injured party from such criminal conduct was "highly likely" as per Smith -v- Littlewoods Organisation Limited, 1987, 1 All England Reports at page 710. Further assuming that the duty of care is that recognised in Wortherly -v- Greyhound Corporation, 365 S.O. 2D at 177, that is and I quote:-

"To warn passengers of dangers which are reasonably foreseeable and which might cause harm."

5 The First Defendant submits that there was no danger of which the Plaintiff ought to have been warned.

6 The Second Defendant claims that it was an agent of the First Defendant and therefore it is the First Defendant who should be sued. Concerning the trip to Israel they are not agents for the Plaintiff or First Defendant. Even if they were on principle in Hedley Byrne & Company Limited -v- Helier and Partners Limited, 1964 Appeal Cases at 465, the duty would be to take reasonable care in giving advice and the Plaintiff never sought advice or said she was going on that particular trip.

7 On the Second Defendant's defence of the general rule of an agency as espoused by Wright J. in Montgomery -v- U.K. Mutual S.S. Association Limited, 1891, 1 Queen's Bench at 371:-

"This is a general rules and the intention of the parts and parties and the particular circumstances surrounding the contract can render the agent liable."

8 I make that comment clearly pointing out that I am deciding this case and this particular matter without reference to Council Directive No. 90/314/EEC, which came into effect on the 13th June, 1990 with regard to the claim of breach of contract.

9 The Sale of Goods and the Supply of Services Act, 1980, Section 39 includes as implied conditions in a contract for the supply of services that:-

"the supplier will (b) supply the service with due skill, care and diligence, (c) that where materials are used they will be sound and reasonably fit for the purpose for which they are required."

10 As regards the first implied condition the routes in this case were checked each morning and no warning had been issued for that route on that morning. The fact that nothing like this had ever happened before would seem to indicate that the Defendants exercised the due care required as their precautions were effective.

11 The Plaintiff contended that the bus should have been fitted with reinforced glass. However no evidence has been adduced that this was common practice or indeed recommended practice and therefore on the basis of Wilson -v- Best Travel, 1993, 1 All England Reports at 353 this argument fails.

12 The issue of Israeli registration plates making the bus easily identifiable as an Israeli bus has not been proven as a causative factor in the attack. In addition to Mr. Caspi's evidence of approximately 2,000 trips to Jerusalem and Bethlehem each year by such buses with no prior attack having been complained of this would seem to rule out this factor. Allowing for the public sentiment in the West Bank after the invasion of Kuwait it is possibly more likely that the fact that the occupants of buses were easily identifiable as westerners, which was a factor in the attack and this would not have been disguised by different registration plates on the bus.

13 Counsel for the Plaintiff cites a further implied condition in all holiday contracts that the operator will not knowingly expose the holiday maker to significant risk to life, limb or health. This appears to be the opinion of the authors Nelson, Jones and Stewart in, and I quote, "A practical guide to package holiday law and contract", derived from the decision in Anns -v- Merton London Borough Council, 1978 Appeal Cases at 728, a case of tortuous liability and therefore not an implied condition in contract. The only other implied condition could derive from Davey -v- Cosmos Air Holidays, 1989 CLY at 327. There is a county court case in England where the Judge held a breach of an applied term of contract and I quote:-

"To take such steps as are reasonable taking all the circumstances into account to avoid exposing their clients to any significant risk of damage or injury to their health."

14 For the same reasons that the Defendant did not breach the implied condition under the Act it would seem that neither did they breach this condition, should it apply, reasonable care having been taken.

15 Turning to law on the Duty of Care in Tort as laid down in Donoghue -v- Stephenson, 1932 Appeal Cases at 562, andstated by Lord Wilberforce in Anns -v- London, in Anns -v- Merton London Borough Council at 751, this was affirmed in Ireland by the Supreme Court in Ward -v- McMaster, 1989, 9 Irish Law Reports Monthly 400, 409 by McCarthy J. who refused to dilute the words of Lord Wilberforce and preferred to, and I quote:-

"Express the duty as arising from the proximity of the parties, the foreseeability of the damage and the absence of any compelling exemption based upon public policy".

16 With regard to the latter consideration I quote:-

"Such a consideration must be a very powerful one if it is...