Sheila Mawdsley v. Cosmosair Plc Thursday 18 April 2001
LORD JUSTICE JONATHAN PARKER:
1. This is an appeal by Cosmosair Plc ("Cosmos"), the defendant in the action, against an order made by His Honour Judge Singer in the Manchester County Court on 26 September 2001, whereby he awarded Mrs Sheila Mawdsley, the claimant in the action, damages in the sum of £17,500 in respect of personal injuries which she suffered on 29 September 1997 as a result of a fall at the Marmaris Palace Hotel in Turkey whilst on a package holiday supplied by Cosmos. Permission to appeal was granted by Hale LJ on the papers on 27 November 2001.
2. It is common ground that the fall occurred when Mrs Mawdsley and her husband were descending a flight of stairs leading to the restaurant in the hotel. They were carrying their bay baby daughter, Charlotte, in a pushchair between them. In the process Mrs Mawdsley lost her footing, slipped and fell. The only issue was as to liability. The quantum of any damages to be awarded in respect of the injuries which Mrs Mawdsley suffered in the fall was agreed at £ 17,500. Although Mrs Mawdsley also claimed general damages for inconvenience, distress and discomfort, by the time of the trial this additional claim had been compromised so the judge was only concerned with the issue as to whether Cosmos is liable for damages in respect of the injuries suffered by Mrs Mawdsley in her fall.
3. By her Particulars of Claim, Mrs Mawdsley alleges that in the brochure advertising the hotel, in reliance on which she and her husband booked the holiday, Cosmos represented that the hotel restaurant could be accessed by a lift when in fact it could not, and that the hotel was suitable for parents with young children when in truth it was not so suitable.
4. Mrs Mawdsley claims damages against Cosmos in respect of these alleged misrepresentations on three different basis.
(1) She pleads that Cosmos breached its duty under Regulation 4 of the Package Travel Regulations 1992 ("the Regulations"), in that its brochure contained "misleading information", and that under that Regulation Cosmos is liable for any loss suffered in consequence of that breach of duty. (2) In the alternative, she claims damages for negligent misrepresentation. (3) In the further alternative, she claims damages for breach of contract on the footing that the representations were a term of the contract with Cosmos for the purchase of the holiday; that she relied on the misrepresentations; and that, in consequence, she suffered the injuries which resulted from her fall.
5. By its Defence, Cosmos denies that the information contained in its brochure was misleading or that the representations in it were false. It goes on to plead that there was nothing unusual, difficult or dangerous about the flight of stairs down which Mrs Mawdsley was descending when she suffered her fall. Cosmos further denies that it was a term of the contract that it would be possible to have access to the restaurant without using any steps. It further denies that if there was a breach of contract, that breach was causative of the accident. It is further pleaded that it was not in the reasonable contemplation of Cosmos that personal injury would result from the provision of what is described in the pleading as "an ordinary staircase". The Defence goes on to deny that Mrs Mawdsley and her husband were obliged to carry a buggy and a pram up and down the relevant staircase. It put Mrs Mawdsley to proof of the injuries in respect of which she claims damages.
6. Mr and Mrs Mawdsley have two children, Jack and Charlotte. At the time of the holiday Jack was aged about 3 1/2 and Charlotte about six months. The brochure issued by Cosmos on which, as the judge found, Mr and Mrs Mawdsley relied when booking the holiday, shows photographs of the hotel and pool area. The photograph of the hotel shows it as a modern concrete type structure facing the sea with rising ground to the rear. To the rear of the hotel, viewing it from the sea, is the main building. To the front of the main building at a lower level is a substantial terrace. The terrace extends underneath the main building and also outward towards the sea beyond the line of the front wall of the main building. Immediately below that terrace is another terrace which in turn gives access via a single flight of steps to the pool area. The photograph shows two substantial flights of steps leading from the upper terrace to the lower terrace.
7. The written part of the brochure draws attention to various features of the hotel and of the holiday which is offered. Under the heading "Facilities" appear the words, "Lifts (in main building)". The brochure also lists a number of facilities which are available for children and to price reductions for children.
8. The holiday booked by Mr and Mrs Mawdsley included full board, which entailed their visiting the hotel restaurant at least twice a day. The restaurant for those enjoying full board is situated on the upper terrace, which is on level 1. Level 1 is one floor down from the ground floor of the main building where the hotel reception is situated. The pool area is at level 2, one floor below level 1. There is a lift in the main building between the reception and the pool area (level 2), but it does not stop at level 1 which is a mezzanine floor.
9. Direct access to the restaurant from the reception area is provided by four flights of steps, 39 steps in all. This route is described in the judge's judgment as route 2. There is an alternative route from the reception area to the restaurant via a ramp and some steps outside the main building. This route, which involves negotiating 14 steps, is referred to in the judgment as route 1. Direct access to the restaurant from the pool area is provided by two flights of steps, 24 steps in all. This route is referred to in the judgment as route 3.
10. Mr and Mrs Mawdsley and their two children were accommodated in a maisonette or bungalow in the grounds of the hotel separate from the main building. On the fifth day of the holiday, Mrs Mawdsley suffered the fall which forms the basis of her claim. The judge described what happened on page 10B-E of his judgment: "On the day in question the Claimant on day five was going down the first of the 11 steps of the 39 steps that they had to negotiate from the reception to the restaurant. She was holding the handle of the pushchair, which was facing downstairs. Her husband, having his back to the pushchair, was holding the foot area, a position in which wives and husbands can regularly be seen to take in carrying a pushchair downstairs. That is something which, whilst I cannot claim I can take judicial notice of, is accepted by all the parties as a fairly usual way of going down the stairs, and it is not suggested that they were adopting anything that was a negligent way of carrying the pushchair down the stairs. She says in her statement that she lost her footing and slipped, and I find that that is what happened."
11. The judge turned, first, to the holiday brochure. He began by rejecting the argument, put forward on behalf of Cosmos, that it was obvious from the description in the brochure of the various activities which were available, and from the photograph of the hotel itself, that there were bound to be a number of steps to be negotiated. As to that argument, the judge said at page 3D: "I take the view that there is absolutely no reason why an hotel, overlooked as the description said by the scenery described and as depicted in the photographs and having the facilities that were described, should not itself have been on fairly level ground."
12. The judge went on to find that Mrs Mawdsley relied on, among other things, the words "Lifts (in main building)" as a representation that the hotel was suitable for young children. As to that, the judge said at page 4E-F: "I see no reason to throw any doubt on the Claimant's assertion that that made her feel that since there were lifts in the main building, she and her husband would have no difficulty in transporting their children round the hotel either in or out of the pushchair or buggy that they took with them. One could reasonably suppose that the lift would provide access to the pool and to every other floor."
13. Later in his judgment, at page 5B, the judge said: "... if you say there are lifts in the main building, it clearly implies that that will provide access to everything."
14. The judge recounted what happened when the Mawdsley family arrived at the hotel and discovered there was no access to the restaurant by lift. He said at page 5F-G: "Accordingly, they found that there were two ways that they could get to the restaurant. The ways that in fact have been described have been described as routes 1, 2 and 3. There was a route 4, which was from the bungalow to the reception, which does not appear to be relevant at that stage."
15. He then described route 2 (the direct route from the reception area to the restaurant), and route 3 (the route from the pool area to the restaurant) as being the route which the Mawdsleys took. He described route 1 (the alternative route from the reception area to the restaurant), but concluded, rejecting the evidence of the Cosmos' representative, Mr Goodwin, to the contrary, that Mr and Mrs Mawdsley were not told about route 1. The judge further found that, not only were they not told about it, but there was no reason why they should have discovered it. The judge said at page 6H-7C: "On the evidence, I am satisfied that there is no way that the Claimant could have reasonably discovered this round about way to the restaurant, and accordingly I find that it was not a route which she ought to have taken. It is accepted by the Claimant, I believe, through her counsel, that had she known of that route, that would have been one which would not have put her to the risk and danger which the Claimant claims she was put to by virtue of the other two routes."
16. In relation to that last reference to an acceptance by Mrs Mawdsley through her counsel that route 1 would have posed a lesser risk, the position as I understand it, is that in the course of her cross-examination Mrs Mawdsley made a comment to that effect, which the judge has recorded, but that aspect of her evidence was not explored in re-examination. Mr Kilvington, who appears for Mrs Mawdsley and who also appeared before the judge, has told us that he has no recollection of making any such concession.
17. The judge went on to find that when Mr and Mrs Mawdsley complained to Mr Goodwin about the stairs to the restaurant he said: "In that case you can leave the buggy and the pushchair at the top."
18. The judge commented, "This they could not do". He went on to conclude that it was reasonable for them to take Jack, Jack's buggy and Charlotte in her pushchair at the same time. At page 8D he said: "I also find it entirely reasonable, and it has not been challenged that the Claimant and her husband should take baby Charlotte in what is described as the pushchair."
19. The judge returned to the allegation of misrepresentations in the brochure. He concluded that the brochure represented that the hotel was suitable for young children. There is nothing controversial in this conclusion. Cosmos asserts that the brochure does so contain that representation. But the judge went on at page 9A-B: "In my judgment, it was unsuitable for children, because for an hotel to provide the only available accesses to the restaurant which holiday makers had to use together with their children, via 24 or 39 steps, is not providing a hotel which is suitable."
20. The judge elaborated on this conclusion at page 9D of the judgment: "It was misleading to say that there was a lift in the main building because the lift only gave access to all the floors bar the restaurant."
21. The judge went on to hold that, in making this misrepresentation, Cosmos was in breach of the Regulations, in breach of contract and liable in the tort of negligence subject to establishing damage. He then turned to the issue of causation of damage. That is the issue whether the injuries which Mrs Mawdsley suffered in her fall were caused by the misrepresentations he had found.
22. After referring to a number of authorities which had been cited to him, including Kemp v Intasun Holidays, an unreported decision of the Court of Appeal dated 20 May 1987; Quinn v Birch Brothers (Builders)  2 QB 370 CA; and Manning v Hope, an unreported decision of the Court of Appeal dated 16 December 1999, the judge expressed his conclusion on the causation issue in following passage in his judgment at page 17E-18F: "This is a situation in which I find as a fact that the claimant and her husband were required by the failure of the Defendants to supply lift access two or three times a day to negotiate stairs, carrying a pushchair in the way that they have described, which was a tricky situation. I will come back to that later on -- the issue of foreseeability. But, in my judgment, the description of Mr Kilvington that she loses her footing because she was put in the position of going up and down steps with the pushchair and cannot watch her feet and the way she is descending is a fair and accurate way of explaining the matter. If you are having to concentrate in part on carrying the pushchair, your six-month old baby being in it, you cannot be paying as much attention as is reasonably necessary to where your feet are going on the stairs. He also characterises it in this way. The Claimant was put in an unsuitable position by the misleading information and suffered injury by the lack of suitability of the premises, the lack of suitability being requiring her to carry a baby in a pushchair down 39 or up 24 steps to get to and from the restaurant. He said that is why the injury was suffered. Whilst we do not know precisely how she came to lose her footing, in fact it is reasonable to suppose in my judgment, that she did so because she was unable to pay sufficient attention to how she was descending the stairs because of the task that she and her husband had to perform so many times a day on so many occasions. There is, in my judgment, a clear causal connection between the misrepresentation which directly put them in that difficult situation and the injury that was suffered. Therefore, the Claimant does satisfy the issue of causation in relation to each of the three grounds upon which the matter is argued."
23. The judge then went on to the consider the issue of foreseeability. He concluded at page 19B that it was "not unlikely" that Mrs Mawdsley would lose her footing as she did. At 19D of his judgment he said: "In my judgment any reasonable person considering the circumstances would say that, whilst not dangerous, it is a hazardous thing to require somebody to do two or three times a day in the way the claimant was required to do."
24. Appearing for Cosmos, Mr Alan Saggerson, who did not appear below, submits, addressing the claim in contract, that there was no basis upon which the judge could conclude that the description of "Lifts (in main building)" could amount to an implied term of the contract between Mrs Mawdsley and Cosmos that the restaurant could be accessed by lift, and that his conclusion that that description implied that the lift would provide access to "everything" (ie all the facilities in the main building) is unsustainable. He submits that there is no representation that the lift would stop at all levels in the main building, including the mezzanine level on which the restaurant is situated. He points out that there was indeed a lift in the main building and that that particular facility was provided as stated in the brochure.
25. Mr Saggerson points out that the brochure says nothing about where in the hotel complex the relevant restaurant is situated, and that there was no reason to suppose that it was necessarily situated in the main building. As to the alleged misrepresentation that the hotel was suitable for parents with young children, he submits that, although the judge found that Mr and Mrs Mawdsley were not told about route 1, a finding which he does not seek to challenge in this court, route 1 was undeniably available to hotel guests and it cannot be said that the hotel was unsuitable for young children. He submits that it is unrealistic to conclude that a hotel with steps leading to and from guest facilities is unsuitable for young children. He points out that a parent carrying a child may trip on a single step. He submits therefore that the fact that the restaurant could only be accessed by negotiating flights of steps, did not and could not be said to render the hotel in its entirety unsuitable for young children.
26. As to the judge's finding that Mrs Mawdsley relied on the brochure in booking the holiday, in his written skeleton argument Mr Saggerson seeks to challenge that finding, submitting that the judge nowhere finds that she gave any thought to the specific question of access to the restaurant.
27. As to the case pleaded under the Regulations, Mr Saggerson submits, correctly in my judgment, that this claim adds nothing to the two other heads of claim pleaded by Mrs Mawdsley.
28. As to causation, which Mr Saggerson put this at the forefront of his oral submissions, he submits that Mrs Mawdsley's injuries were caused by the fact she lost her footing, no doubt because she had her hands full with Charlotte in her pushchair. He submits that this could have happened anywhere in the hotel complex, and the fact that it happened on the stairs leading to the restaurant is purely coincidental and does not provide the necessary causal link between the representation and the injury. He points out that there is no finding, nor has it been alleged, that the stairs in question were in themselves inherently unsafe, that the surface material was compromised in any way, or that the stairs were not properly maintained. Nor was it alleged that, as a result of what she read in the brochure, Mrs Mawdsley expected the hotel complex to be entirely free of steps or other difficulties for guests and children.
29. Mr Saggerson submits that the precise reason why Mrs Mawdsley lost her footing is a matter in respect of which no finding is, or could on the evidence be, made. He says that Mrs Mawdsley had a number of choices as to the manner in which she descended the stairs and that, in making the choice which she did, she effectively broke the chain of causation with the consequence that the liability for the injuries cannot be laid at the door of Cosmos because of the misrepresentations contained in the brochure.
30. He submits that an appropriate test is to ask whether, but for Cosmos' conduct, Mrs Mawdsley would have avoided an accident of this character in some other situation on some other different family holiday. He submits that the answer to that must in all probability be "No".
31. Mr Saggerson says that, however reasonable Mrs Mawdsley's conduct (and he does not seek to challenge the judge's finding that it was reasonable), it was, nevertheless, one of a range of reasonable choices which she could make. He submits, therefore, that the fact that the accident occurred on the stairs leading to the restaurant is neither here nor there and does not provide sufficient causal link. He urges us to draw a distinction between damages in respect of the injuries which Mrs Mawdsley suffered as a result of the accident and general damages for inconvenience and disappointment etc, the latter claim being one which is a separate claim and which has already been compromised.
32. In support of his submissions on causation, Mr Saggerson relies on Quinn v Birch Bros (Builder)  2 QB 370, to which I shall return.
33. Accordingly, even if otherwise actionable, Mr Saggerson submits that the statement in the brochure "Lifts (in main building)" did not cause Mrs Mawdsley to suffer injuries for which she seeks damages.
34. For Mrs Mawdsley, Mr Kilvington, in his written skeleton argument, begins by objecting to Mr Saggerson's reliance on route 1 in connection with his submissions as to the suitability of the hotel for young children and availability of other choices for Mrs Mawdsley. However, in his oral argument he has not maintained that objection. Accordingly, I need not address it.
35. Mr Kilvington submits that the judge was right to conclude that the description "Lifts (in main building)" was a representation that, in effect, all levels in the main building, including the mezzanine level, could be accessed by lift. As to the allegation that the admitted representation that the hotel was suitable for parents with young children was a false representation in that the hotel was not so suitable by reason of the absence of a lift giving access to the restaurant, Mr Kilvington relies on the finding of the judge and the passages from the judgment to which I have referred. He submits that the particular defect which renders the hotel not suitable for young children is the very defect highlighted by the misrepresentation arising, as he contends, out of the description "Lifts (in main building)".
36. As to causation, Mr Kilvington submits that the misrepresentation not only provided the opportunity for Mrs Mawdsley to suffer the injuries she suffered when she fell, but that it was the effective or dominant cause in that the misrepresentation itself exposed her to the risk of injury because it exposed her to a hazardous situation. There was, he submits, a direct link between the misrepresentation that the restaurant could be accessed by lift and the presence of Mrs and Mrs Mawdsley and their children on the stairs leading to the restaurant. He relies on the judge's finding on page 8 of the judgment that it was reasonable for Mrs and Mrs Mawdsley to descend the stairs carrying Charlotte in her pushchair between them. In this respect Mr Kilvington distinguishes the case of Quinn v Birch Brothers (Builders), on which Mr Saggerson relies, in that there was a novus actus interveniens (a new intervening act) which is not present in the instant case.
37. Mr Kilvington submits that the judge applied the right test on both causation and foreseeability. In so far as necessary he submits that, in relation to the claim in contract, Cosmos had special knowledge for the purposes of the second limb of the rule in Hadley v Baxendale in that it knew that Mr and Mrs Mawdsley would be accompanied by young children.
38. He submits that the flights of stairs created a particular risk for guests with pushchairs in the same way as they would they would create a risk for the disabled, elderly or infirm. He submits that Cosmos' misrepresentations and breaches of contractual duty exposed Mrs Mawdsley to the very risk of the kind of accident which, in the event, she suffered.
39. He further submits that the necessity for the Mawdsley family to traverse flights of stairs two or three times a day in accessing and leaving the restaurant only served to increase the particular risk to parents with young children. He says that in every case it is a matter of degree and that in the instant case the level of risk resulting from the misrepresentations rendered the misrepresentations actionable.
40. In the first place I agree with the judge that the description "Lifts (in main building)" in the brochure does represent that all levels in the main building can be accessed directly by lift. That, as it seems to me, is how a potential customer would naturally read and understand that description. The fact that the brochure describes the hotel us a "Holiday Village" standing in landscaped gardens and lists a large number of facilities seems to me to be immaterial for present purposes. The representation is expressly limited to the main building. Nor does the fact that the brochure makes no specific mention of the restaurant assist in this connection. Absent any such specific mention, a reader of the brochure would, it seems to me, naturally assume that the restaurant was situated somewhere in the main building and consequently accessible directly by lift.
41. Accordingly, I would conclude that description "Lifts (in main building)" is a misrepresentation. On the other hand, I am unable to agree with the judge's further conclusion that the fact that there is no direct access to the restaurant by lift rendered the hotel unsuitable for parents with young children. I agree with Mr Saggerson that it is unrealistic to conclude that the mere fact that access to the hotel restaurant involves negotiating stairs renders the hotel unsuitable for young children; the more so when one looks at the nature of the hotel complex as shown in the photographs in the brochure. It is plain from the photographs that, given the differing levels as described earlier, enjoyment of at least some of the hotel's facilities must be likely to involve negotiating a flight of steps.
42. I proceed, therefore, on the basis that the operative breach of contract/misrepresentation is that which is constituted by, or embodied in, the description in the brochure "Lifts (in main building)"; that is the representation that, in effect, all levels in the main building, including the restaurant, could be accessed by lift. In my view that was "misleading information" for the purposes of Regulation 4 of the Regulations, with the result that Cosmos is liable under that Regulation for all consequent damage. Since Regulation 6 of the Regulations provides that particulars in the brochure are implied warranties in the contract, it follows that Cosmos was also in breach of contract in that respect. Moreover, in the context of negligent misrepresentation, the judge's finding that Mrs Mawdsley relied on the misrepresentation seems to me to be unassailable in this court.
43. I turn, then, to the issue of causation. I turn first to Quinn v Birch Brothers (Builders) on which Mr Saggerson relies. In that case the claimant was a plasterer carrying out work under a subcontract. The defendants, the main contractors, in beach of contract failed to supply him with a step-ladder despite his request for one. In order to complete his work in the absence of a step-ladder, the claimant chose to prop a folded trestle against the wall and use it as a ladder. The foot of the trestle was not made firm and it slipped causing the claimant to fall and suffer injuries. The claimant claimed damages against the defendants in respect of those injuries.
44. At first instance Paull J held that, although the defendants were in breach of contract, that breach did not cause the accident since the claimant's negligent failure to make the trestle secure broke the chain of causation. It was, he held, a new intervening act. The Court of Appeal upheld his decision. In the course of his judgment Sellers LJ said at page 389D: "The breach of contract was not a cause of the subsequent events which brought the plaintiff's accident."
45. At page 390A-B Sellers LJ said: "... this cannot be said to be an accident which was caused by the defendant's breach of contract. No doubt that circumstance was the occasion which brought about this conduct of the plaintiff but it in no way caused it. It was in no way something flowing probably and naturally from the breach of contract."
46. Dankwerts LJ, agreeing, said at page 391G: "The failure of the defendants to provide the equipment required may have been the occasion of the accident but it was not the cause of the accident."
47. Salmon LJ, also agreeing, said at 395A: "The breach of contract merely gave the plaintiff the opportunity to injure himself and was the occasion of the injury. There is always a temptation to fall into the fallacy of post hoc ergo properter hoc; and that is no less a fallacy even if what happens afterwards could have been foreseen before it occurs."
48. Mr Saggerson submits that, although there is an additional element in Quinn in that the course of conduct chosen by the plaintiff was negligent, that is not a factor which distinguishes Quinn from the instant case. In the instant case, as he has submitted, Mrs Mawdsley was faced with a number of choices as to the course which she should take in reaching the restaurant.
49. In relation to causation of damage, Mr Saggerson submits that Quinn is on all fours with the instant case in that all that the misrepresentation in the instant case has done is to provide Mrs Mawdsley with an opportunity to suffer the very accident which she suffered.
50. I cannot accept that submission. In my judgment, Quinn is distinguishable from the instant case in that there was not in the instant case, whereas there was in Quinn, a new intervening act breaking the chain of causation. The sole causes of the claimant's accident in Quinn, as I read that decision, were his choice of using a trestle in place of a ladder when he could have waited for a ladder to be supplied, and his own negligent failure to secure the trestle properly. In that case it was truly said that the defendant's breach of contract provided no more than the opportunity for the claimant to do what he did. In the instant case there is, in my judgment, a sufficient causal link between the misrepresentation that the restaurant could be accessed by lift and the accident which occurred on the stairs. As Mr Kilvington submitted, the misrepresentations served to expose Mrs Mawdsley to the risk of suffering the very type of accident which in the event she suffered. It is not just that "but for" the representation Mrs Mawdsley would not have been in the hotel at all; the misrepresentation related directly to the means of access to the restaurant. Nor, as I have already pointed out, is there any finding of negligence on the part of Mrs Mawdsley. The judge expressly found that it was reasonable for her to descend the stairs in the way she did.
51. In my judgment, therefore, on the facts of this case, the judge was right to find as he did at page 18E of the judgment that: "There is, in my judgment, a clear causal connection between the misrepresentation which directly put them in that difficult situation and the injury that was suffered."
52. Since no separate issue arises on foreseeability, it follows that, for the reasons I have given, I would dismiss the appeal.