Europe still sets the pace
Julian Morris considers a CJEU ruling on what constitutes the cancellation of a flight, foreign jurisdiction issues, and a recent epidemic of holiday sickness claims
Since the last time of writing, just after Brexit, much has happened in the wider world and at home: Trump has been elected, the inquest into the sad circumstances surrounding the deaths of holidaymakers in Tunisia has started, the pound continues to fall, and fuel prices are steadily increasing. Whether you voted to remain or leave, the Supreme Court has also handed down its judgment on article 50: parliament, and not the government, is the entity to give relevant notice to the European Union. How and in what way that might affect our own union we will have to wait and see. For now, we are still part of Europe and its legal influences.
In C-83/10 Rodriguez v Air France, it was held by the CJEU that the concept of cancellation does not refer exclusively to the situation where an aircraft fails to take off at all. In C-32/16 Wunderlich v Bulgarian Air Charter, a flight departed from Bulgaria but was forced, en route, to make an unscheduled stop in Prague. The case raised the question as to whether such an event would or could be encapsulated within the meaning of cancellation under Regulation 261/2004 on flight delay compensation.
Following its deliberations, the court concluded that this did not amount to cancellation: the plane, following the stopover, resumed its flight to the end destination. However, the CJEU did state that had the stopover (or indeed, by implication, any deviation) meant a delay of over three hours (as compared to the scheduled time of arrival), then the regulations would have taken effect and passengers would have been liable for compensation. Up to that point, it was an annoyance or inconvenience, nothing more.
Choice of law
Knowing when, and therefore how, to bring and defend a travel claim with foreign jurisdiction issues is a frequent conundrum. In Cristiano Committeri v Club Mediterranee SA and Generali Assurances Iard SA  EWHC 1510 (QB), a claim was brought against a travel company following an accident in France. The question for the court was whether English or French law applied against the defendants.
The claimant was injured (while ice climbing) during a team-building exercise in France organised by his employer. The employer’s contract with Club Med, the first defendant, stated that the booking conditions would be governed by English law, with both travel and accommodation being provided by Club Med, and any claim falling under the Package Travel, Package Holidays and Package Tour Regulations 1992. In France, an organiser of travel arrangements has strict liability for an injury suffered by a person on a package holiday. In essence, the negligence claim against the defendants had been discontinued earlier. The issue to be decided was whether the claim was contractual (governed by the Rome I Regulation) or non-contractual (Rome II).
Dingemans J concluded, following expert evidence and a review of the relevant provisions, that the contract between the parties conferred benefits on the claimant, and therefore the claimant was, in turn, enforcing the proper performance of the contract. However, on the choice of law, the booking conditions and indeed the brochure were all deemed to be covered as described. It therefore followed that any reasonable party would understand that English law applied to the whole contract – under which the claimant would have no claim. The claim was therefore dismissed.Employer’s responsibility
The question of an employer’s responsibility following the actions of employees and others has been the subject of much discussion in recent years. Hamilton v Kuoni Travel Ltd  EWHC 3090 (QB) concerned the physical and sexual assault by a locally employed electrician of a holidaymaker in Sri Lanka. The claimant and her husband had booked an all-inclusive package. The claimant maintained that the individual was an employee of the hotel while on duty carrying out his tasks, and therefore the defendant was liable pursuant to regulation 15 of the 1992 Regulations. By contrast, the defendant maintained that the assault did not amount to improper performance and therefore regulation 15 was not engaged, but, if it did, in the alternative it could not have been foreseen or forestalled even with all due care (regulation 15(2)(c)).
It was accepted that the defendant had no supervising control over the electrician, that his employment was lawful, and that there was nothing which could or should have led the hotel to be suspicious and therefore identify him as a risk. HHJ McKenna concluded that none of the actions of the employee formed any part of the contracted services. He also highlighted Hone v Going Places Leisure Travel Ltd  EWCA Civ 947, in that there was no absolute obligation on any defendant to warrant the safety of all its clients at all times. Accordingly, the claim was dismissed.
Interestingly, had the issues noted above not been agreed before trial and been scrutinised to a greater degree, or indeed left live in another case, the outcome may have been different. As we are all aware, cases turn on their specific facts.
Holiday sickness claims
Finally, a case for claimants: Wood and another v TUI Travel plc t/a First Choice  EWCA Civ 11, which recently went to the Court of Appeal (judgment was handed down on 16 January 2017). Those familiar with the travel industry will be aware of the plethora of claims currently being brought alleging sickness. Defendants are understandably wary when they hear the names of Antcliffe v Thomas Cook Tour Operations (2012) and Kempson v First Choice Holidays (2007) quoted by claimant solicitors.
In Wood, the issue was whether it is sufficient to establish that food was contaminated or whether, in addition, an individual must show that the contamination was caused by a failure of the defendant (or its servant or suppliers) to exercise reasonable care and skill. In turn, could the provision of food or drink be characterised as a contract within section 4 of the Supply of Goods and Services Act 1982 (where there is an implied condition that the goods supplied under the contract are of satisfactory quality) or an implied term under section 13 (where only reasonable care and skill had to be used)?
At first instance, the judge found that the hotel’s systems were sufficient but held that the contamination of the food alone was sufficient to reach a conclusion that the food was of unsatisfactory quality and therefore in breach of the 1982 Act.
The issue, once common ground was acknowledged, was whether the property in food at a restaurant was ever transferred to the consumer at all. The defendant argued, based on PST Energy 7 Shipping LLC and another v OW Bunker Malta Ltd and another  UKSC 23, that there was no contract to transfer food and drink at all; it merely provided customers with a licence to consume food and drink in the restaurant. When food was consumed, it was destroyed and therefore the property in it never passed. With that simple analogy, there could not be a transfer, and therefore there was no strict implied term requiring satisfactory quality. In putting forward its defence, the defendant emphasised that to become the guarantor of the quality of food the world over provided too higher a burden.
However, the court re-emphasised that any claimants are still required to prove causation. Burnett LJ stated: ‘It would not be enough to invite a court to draw an inference from the fact that someone was sick. Contamination must be proved; and it might be difficult to prove that food (or drink) was not of satisfactory quality… in the absence of evidence of others who had consumed the food being similarly afflicted. Additionally, other potential causes of the illness would have to be considered such as a vomiting virus.’
Julian Morris is a partner at Plexus Law