The Court of Appeal dismissed Siobhan Kellett’s appeal over a boat trip in St Maarten, agreeing that she had not proved the defendants failed to exercise reasonable care and skill. The judgment did not establish a definitive rule on whether Irish or destination-country standards should govern similar package-holiday claims.
In a judgment delivered on 21 May 2020, Mr Justice Robert Haughton said he agreed with Justices Noonan and Collins that the appeal should be dismissed. He said the trial judge had noted a lack of evidence about local regulations, guidelines or standards for the boat trips in St Maarten, but ultimately assessed the case by reference to standards that might apply in Ireland—a more favourable approach for Ms Kellett.
On that basis, the trial judge was entitled to reject the negligence criticisms advanced by Ms Kellett’s consulting engineer, Haughton J said. The case had been dismissed because she did not discharge the burden of proving that the defendants failed to exercise “reasonable care and skill”.
Haughton J then addressed, although it was not necessary to decide the appeal, how courts should assess the standard of care and contractual performance when an accident occurs abroad. He was hesitant to adopt a rule that would judge care by the standards applying in the place of the incident, while applying Irish law to liability. He noted that the Supreme Court had not endorsed local standards as determinative in an earlier package-holiday case, and raised concerns that relying on destination standards alone could burden consumers or result in lower safety standards.
He tentatively favoured Collins J’s view that the assessment should be flexible: courts could consider local regulations and standards, the nature of the activity and risks, whether local rules were adequate, and the wider circumstances of the accident. Standards in the holidaymaker’s or organiser’s home state might also be relevant. These were observations, not the basis of the dismissal or a binding resolution of the broader issue.
Haughton J said the uncertainty could warrant a reference to the Court of Justice of the European Union in an appropriate future case; he stressed that the issue did not arise for decision in this appeal. He also said there was force to the argument that, once a claimant establishes a prima facie case, a defendant raising local standards as a defence might bear an onus to prove those standards and compliance. He cautioned that this did not displace the general rule that a plaintiff must prove the elements of a claim on the balance of probabilities, subject to rare cases where res ipsa loquitur applies.
He concluded that claimants and their advisers should research destination-country standards and be ready to establish a breach, challenge an organiser’s evidence of compliance, or argue that local standards or their enforcement were inadequate.