The Court of Appeal has dismissed an appeal by Siobhan Kellett, upholding the High Court’s dismissal of her personal injury claim arising from a jet boat excursion during a Caribbean cruise package holiday.
Kellett and her husband booked a seven-day cruise that included a stop at St. Maarten. She had paid extra for an advertised “White Knuckle Jet Boat Thrill Ride”. During the excursion, the skipper performed a 360-degree turn after a hand signal from Kellett. She was lifted from her seat and struck her head against the skipper. After he stopped and moved her beside her husband on the front bench, he performed another turn in the opposite direction. Kellett was thrown back down and struck her right elbow against the boat’s gunwale. The injury was an undisplaced fracture of the right lateral epicondyle.
Kellett argued that the cruise organisers were liable under section 20 of the Package Holidays and Travel Trade Act 1995. Her engineer said the boat should have had seatbelts, a side rail and padding on the gunwale, and that after the first incident the skipper should have moved her to the back row. He identified no applicable standards or regulations in St. Maarten, Ireland or elsewhere requiring those features. The respondents called no evidence on liability.
The High Court dismissed the claim in June 2019, finding that Kellett had not established the relevant local standards or shown a failure to meet them. It also concluded that even if Irish standards were applied, the evidence did not establish a lack of reasonable skill and care.
On appeal, Kellett argued that the trial judge had applied the wrong test and wrongly placed the burden of proving local standards on her. The Court of Appeal said the applicable test under section 20 was whether reasonable skill and care had been used, assessed against standards applying where the event occurred, while liability was determined under Irish law. It held that the burden remained on the claimant to prove the service was not provided with reasonable skill and care. Local standards need not be proved only by a locally qualified expert, but the court will normally need evidence of them to assess the claim.
The court noted that no transcript of the High Court evidence had been provided, limiting its review of evidential issues. It nevertheless found that the trial judge had correctly applied the legal test. The lack of evidence about St. Maarten standards was not the only basis for the result: the trial judge had also considered the allegations against relevant Irish criteria and found no breach. The Court of Appeal agreed and dismissed the appeal.