McKenna v Best Travel Ltd

• Jurisdiction: Ireland
• Judge: BARRON J.
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C. Nos. 73 and 79
• Court: Supreme Court

1998 WJSC-SC 2476

THE SUPREME COURT

Hamilton C.J.

Keane J.

Barron J.

73 & 79/97

MCKENNA v. BEST TRAVEL LTD T/A CYPRIANA HOLIDAYS

MARION McKENNA

Plaintiff

and

BEST TRAVEL LIMITED TRADING AS CYPRIANA HOLIDAYS ANDCHUDLEIGH LIMITED TRADING AS THE HOLIDAY SHOP

Defendants

Synopsis

NEGLIGENCE

Personal injury; damages; duty of care; breach of contract; mini-cruise; tour operator; plaintiff suffered serious injury while on coach tour in Israel; whether warning should have been given to plaintiff of the state of unrest in Israel; whether duty to give warning rested with the tour operator; principle of duty of care arising from proximity of contractual relationship; extent of duty of care; standard of knowledge to be attributed to tour operator; test of reasonableness Held. Appeal allowed; no breach of duty of care (Supreme Court: Hamilton C.J., Keane J., Barron J. 18/11/1997) [1998] 3 IR 57

McKenna v. Best Travel Ltd.

1 JUDGMENT delivered on the 18th day of November 1997 by BARRON J. [NEM DISS]

2 The first named defendant is a tour operator which arranges inter alia holidays in Cyprus, Egypt and Israel. The second nameddefendantis a travel agent through whom such holidays may be booked. In August 1990 the plaintiff and her sister booked a holiday in Cyprus with the first named defendant through the agency of the second named defendant. The brochure produced by the first named defendant on which the plaintiff chose her holiday contained also details of a mini cruise to Egypt and Israel which could be booked on arrival in Cyprus. It is common case that the plaintiff wished to purchase such mini cruise in Dublin but was informed that this could not be arranged and that that cruise was bookable only from Cyprus. In the event on arrival in Cyprus the plaintiff booked such cruise.

3 This cruise brought the plaintiff both to Egypt and to Israel. It involved inter alia a coach tour in Israel including both Jerusalem and Bethlehem. While in the coach and close to Bethlehem a stonewasthrown through the window of the coach driver's door striking the plaintiff on the mouth as a result of which she sustained seriousinjuries.

4 These proceedings have been brought to recover damages for these personal injuries so sustained. The claim is brought both against the tour operator and the travel agent concerned. It is founded both in contract and in tort. In the course of the trial in the High Court the learned High Court judge found that there had been no breach of contract on the part of either defendant but that there had been a breach of the duty of care and found for the plaintiff. The defendants have appealed to this Court from that judgment. There has been no cross-appeal.

5 The sole issue on the hearing of the appeal was whether or not a warning should have been given to the plaintiff concerning the state of unrest which then existed in and around Bethlehem. The learned trial judge found that such duty was owed having regard to the thenexistingpolitical situation in the area in Israel through which the plaintiff would have been travelling and...