Clay v TUI UK Limited (Cardiff County Court, H.H. Judge Seys Llewellyn Q.C. 8/4/16)
The Claimant claimed damages against the Defendant package tour operator (Thomson Holidays) for injuries arising out of an accident at the Guayarmina Princess hotel in Tenerife on 21 July 2011 when, in the early hours of the morning, he fell from a second floor balcony, fracturing his skull.
The Claimant was on holiday with his wife, 2 children and his parents. He and his wife and children were staying in Room 358, and his parents in the next door Room 357. On the night of the accident the Claimant, his wife and parents, having returned to the hotel from an evening in town, went out on to the balcony of Room 357 for a drink. The Claimant went back into the room to visit the toilet; when he came out again he closed the sliding door to the balcony, which locked behind him. The balcony door could only be locked or unlocked from the inside with the result that the Claimant and his family found themselves locked out of the room, with no means of re-entering. They had no mobile phones and no means of contacting hotel staff, and their efforts to attract attention from passers-by in the street below were unsuccessful. After some time the Claimant decided that he would climb from the balcony to the balcony of his room (358), where he knew the door to the room to be unlocked. In order to do this it was necessary for him to stand on a cornice or ledge outside the balcony balustrade and then step over to the ledge of the adjacent balcony. The cornices were, unfortunately, only ornamental and not weight-bearing, with the result that the cornice on which he stood broke away from the façade, causing him to fall to a balcony at ground level.
The Claimant’s case was that the hotel proprietors had been negligent, for which negligence the Defendant was liable under the Package Travel, Package Holidays and Package Tours Regulation 1992; in particular because (a) the lock to Room 357 was defective, in that it could spontaneously move to the locked position when the door was forcibly closed, (b) it was negligent for the hotel to have doors which could only be unlocked from the inside, alternatively to fail to warn residents of this risk (c) the ornamental ledge appeared to be part of the balcony construction and therefore weight bearing, and (d) his action in attempting to climb between the balconies was a reasonable and foreseeable response to the dilemma in which he and his family found themselves.
The Defendant’s responses to these allegations were: (a) the lock to Room 357 was not defective (it was neither replaced nor repaired after the accident), but even if it was the Defendant had a system, which was reasonable according to local standards, for inspecting and maintaining the balcony doors and locks, (b) sliding doors of this kind were in standard use in hotels in the Canary Islands and there was no evidence that warnings against the risk of becoming locked out were ever given, (c) the cornices were purely ornamental, were not part of the balcony construction and were typical of decorative cornices to be found in other hotels in the Canary Islands, and (d) in any event the Claimant’s action in attempting to climb between the balconies, when neither he nor his family were in any danger, was a novus actus interveniens. which broke the chain of causation between any negligence on the part of the hotel and the accident.
The judge, while extremely sympathetic to the Claimant and his family, all of whom he found to be honest and reliable witnesses, felt constrained, with regret, to dismiss his claim. He was bound by the line of authorities culminating inLougheed v On the Beach Limited  EWCA Civ 1538 to judge the hotel’s conduct by reference to local standards, rather than those which he might apply in a domestic action. The evidence showed that sliding door lock mechanisms of this kind were not unusual in the Canary Islands and nor were decorative cornices of this kind (or, more accurately, the Claimant, on whom the burden of proof rested, had not proved that either were). If the lock was defective according to standards which might apply in this country (which he was inclined to find that it was by reason of its propensity to lock spontaneously), it did not render the hotel premises unsafe by local standards. Furthermore, the hotel’s system for inspection and maintenance, even if it could be criticised by reference to standards in this country, accorded with local standards. Finally, even if the lock was defective this could not be regarded as a sufficiently proximate cause of the accident, as opposed to being part of the history and background to it, i.e. the Claimant’s action in attempting to climb between the balconies was a novus actus.
The case exemplifies the vital importance, in cases of this kind, of proving failure to comply with local standards of care. The Defendant marshalled evidence that sliding door locking mechanisms equipped with locks of this kind were in common use locally, that the hotel’s system for inspection and maintenance of them accorded with local standards, and that ornamental cornices of this kind were typical of the region. The Claimant was wholly unable to contradict this evidence, thus leaving the judge with no alternative but to dismiss his claim.
For the Claimant: Christopher Purchas Q.C., Bryan Thomas
For the Defendant: Ronald Walker Q.C.
For the Claimant: Leo, Abse & Cohen, solicitors, Cardiff
For the Defendant: MB Law, solicitors, London