About this case:

• Citation:
  [2019] IEHC 408
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Mr Justice Anthony Barr

Dismissing the action, Mr Justice Anthony Barr could not find any negligence on the part of the excursion organisers and said it was unfortunately “an injury which occurred in the course of a vigorous activity”.

Background

In April 2016, Ms Siobhan Kellet and her husband went on a cruise in the West Indies which they booked through travel agents in Dublin - Panther Associates Limited trading as Cruise Holidays and Panther Associates Limited trading as Tour America.

The ship was owned by RCL Cruises Limited, and on 7 April 2016, the ship docked at the island of St. Maarten in the West Indies. Prior to leaving Ireland, Ms Kellet booked to go on a “White Knuckle Jet Boat Thrill Ride” with her husband, provided by a company in Phillipsburg, St. Maarten. 

Prior to booking, Ms Kellett saw photographs of the ride in progress and a video showing the excursion. The company’s website described the excursion as a “water rollercoaster” with “180, 270, and 360-degree spins with sweeping turns, amazing tricks and manoeuvres”, travelling “up to 53 miles per hour”.

While on the excursion, the skipper made a 360-degree turn. Ms Kellett was lifted out of her seat and fell back into her seat with some force, striking her right elbow against the gunwale of the boat.

Ms Kellet he continued to experience pain throughout the remainder of her holiday, and went for an x-ray and MRI scan when she had returned to Ireland. It was revealed that Ms Kellet suffered a fracture to her right elbow, with a small focal tear in the area. 

High Court

Ms Kellett claimed that the defendants were liable to compensate her in respect of her injuries, loss and damage, pursuant to the provisions of s. 20 of the Package Holidays and Travel Trade Act 1995. Her case was that the boat on the excursion was in an unsafe and dangerous condition having regard to the vigorous manoeuvres undertaken. She said that she should have been put sitting in a different part of the boat, and that the boat should have had the following safety features:

• A safety harness or lap belt;
• A bar along the gunwales on either side of the boat;
• Padding on the gunwales.

The defendants conceded that they were the “organisers” of the package holiday pursuant to the 1995 Act, but maintained that since Ms Kellet had “voluntarily elected to go on an activity, which she knew would involve vigorous manoeuvres done at speed, she could not complain if she happened to injure herself in the course of such activity”.

They also submitted that they were entitled to rely on the exceptions to the imposition of liability on an organiser provided for in s.20(2)(a) and (c) of the 1995 Act.

Finally, they alleged that Ms Kellet had not discharged the onus of proof of establishing that there had been negligence, or breach of duty on the part of the excursion operator. 

Mr Justice Barr explained that the 1995 Act imposes a type of vicarious liability on the “organiser” in respect of negligence and breach of duty on the part of third parties engaged to provide services as part of the holiday package. He said the liability was not a strict liability, and that the plaintiff must establish “negligence or breach of duty on the part of the service provider in order to establish liability against the organiser”.

Mr Justice Barr said “just because a person signs up to participate in an excursion or activity which involves some risk, it cannot be said that they thereby consent to the excursion operator, or other people engaged in the activity, acting in a negligent fashion towards them”. As such, he was satisfied that Ms Kellet was “not prevented from alleging that there was negligence on the part of the excursion operators, merely because she signed up to go on the White Knuckle Jet Boat Thrill Ride. While she would be taken to have consented to such injuries as could reasonably be expected might occur in the course of such an activity, she did not consent to any injuries that may have been inflicted upon her as a result of the negligence of the excursion operator”. He also said that her injuries were not attributable to any negligence on her part, and further, that the exceptions in s.20(2)(c) of the 1995 Act did not apply in this case.

Mr Justice Barr said the gravamen of Ms Kellet’s case was “that the boat… while safe in a general seafaring sense, was not safe having regard to the activities which were going to be performed during the excursion and in particular when doing 360 degree turns at speed”.

Mr Justice Barr said the case law made clear that the onus rested on Ms Kellet to establish that “the service provider did not provide the service in accordance with local regulations or standards, or in accordance with internationally recognised standards”. He said Ms Kellet had not established that the excursion operators failed to comply with the relevant standards applicable in St. Maarten, and that there was no evidence of any equivalent Irish standards or regulations. Mr Justice Barr added that, “given the risk of capsize, one could not have such restraints in use on a boat, as that could lead to fatalities if the boat were to capsize”. Accordingly, he could not find negligence for failure to provide such restraints.

Considering the absence of any sidebar on the gunwales, Mr Justice Barr said the existence of a sidebar would not have prevented the injury and that the provision of a sidebar would constitute a serious trip hazard. He said the instruction to hold the bar in front of the bench seats was sufficient precaution against the ejection of a passenger during the manoeuvre. Considering the absence of padding, Mr Justice Barr also found no evidence of negligence.

Dismissing Ms Kellet’s action, Mr Justice Barr said it was unfortunately “an injury which occurred in the course of a vigorous activity” and he could not find that it happened as a result of any negligence on the part of the excursion operators.

• by Seosamh Gráinséir for Irish Legal News