Expert witness failed to adduce evidence of standards to be applied to boat ride in Caribbean

Noonan J (nem diss): Personal injuries - dismissal of claim - cruise to Caribbean - speedboat excursion - 'White Knuckle Jet Boat Thrill Ride' - supplement for excursion - 360 degree turns - plaintiff lifted from seat - fracture to limb - alleged breach of contract and negligence - Package Holidays and Travel Trade Act, 1995 - s 20 of Act - claim by engineer that boat should have been fitted with seatbelts - whether any regulations concerning such an excursion in Irish law or in St Maarten - standard of care to be expected of a service provider in a foreign country - reasonable skill and care - standard by which test of reasonable skill and care was to be judged.

"The appellant’s engineer gave no evidence of any relevant standards or regulations that might have applied to the activity in question in St. Maarten. Although he offered the view that items (i) to (iii) above should, in his opinion, have been provided, he was unable to offer any evidence of such features in any similar craft anywhere with the exception that he had once been on a boat on the Thames which had a side rail.
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It follows from the foregoing that I cannot accept the contention of the appellant that an onus fell upon the respondentsto demonstrate compliance with local regulations. That would be to reverse the burden of proof. In the present case, the appellant’s engineer was not in a position to offerevidence as to the standards and regulations, if any, that applied to the activity in question in St. Maarten. Indeed he was not in a position to offer evidence as to any such standards or regulations that might apply to such an activity in Ireland.
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While the appellant claims that no countervailing evidence was led by the respondent, it does not follow that merely because this evidence was given by the appellant’s engineer, the court was obliged to accept it. In any event, the judge’s findings on these matters were merely an application of basic common sense. The same goes for his determination that he did not fault the skipper for his action after the first incident in moving the appellant to a different position on the front bench, and not swapping her to the last row. He was entitled to point out the potential for danger at sea in moving two passengers in a fibreglass craft of shallow draft with no walkway between benches."

Haughton J (concurring): Approach of trial judge - whether to adopt local standards, Irish standards or international standards in determining 'reasonable care and skill' - burden of proof.

"As matters stand before pursuing a claim plaintiffs and their lawyers and experts would be well advised to research holiday destination standards/regulations, in order to be prepared to establish breach of such local standards, or at least to contest compliance with local standards asserted by a tour organiser as a defence, or alternatively in order to criticise such standards or the manner in which they are applied or policed locally as being inadequate: they would, as has been observed, fail to do so at their peril."

Collins J (concurring): Adoption by trial judge of basis most favourable to plaintiff - Council Directive 90/314/EEC on package travel, package holidays and package tours - whether defendant had failed to perform the contract or improperly performed the contract - whether boat safe or fit for purpose - Article 5 - nature of obligations towards holidaymakers by organisers of holiday - whether to be determined by reference to local standards - whether a reference to the CJEU might have been made.

"In terms of the facts here, the effect of Article 5 would appear to be that the Defendants are liable for any failure to perform and/or improper performance by Captain Morgan Charters of any of “the obligations arising” from the contract between Plaintiff and Defendants, at least where such failure of performance or improper performance was attributable to the “fault” of Captain Morgan Charters (or possibly the “fault” of the First Defendant in selecting Captain Morgan Charters as its chosen “supplier of services”)."

"That is particularly so, in my view, where what is at issue is an optional holiday activity such as the jetboat ride here. Such an activity ought not to be offered to holidaymakers unless the organiser satisfies itself that it is reasonably safe."