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THE HIGH COURT
No. 1992/61p

BETWEEN

MARION McKENNA
PLAINTIFF
AND
BEST TRAVEL LIMITED TRADING AS
CYPRIANA HOLIDAYS AND CHUDLEIGH LIMITED
TRADING AS THE HOLIDAY SHOP
DEFENDANTS

Judgment delivered on the 17th day of December, 1996 by Mr. Justice Lavan .

1. The facts of the case are as follows. On the 29th August, 1990 the Plaintiff agreed to purchase a holiday in Cyprus from the Second named Defendant trading as The Holiday Shop. Having chosen same from the brochure of the First named Defendant, trading as Cypriana Holidays, which contained therein the option of "Add on mini cruise" to Egypt and Israel, including seeing Jerusalem and Bethlehem. As the cruise was bookable only in Cyprus and from a representative of Cypriana the Plaintiff booked it on the 24th September, the day after arriving in Cyprus, from the First Defendant's agent, Paradise Island Tours Limited. On the way to Bethlehem as part of the said cruise the Plaintiff was travelling in a coach when she was struck by a large stone and consequently suffered serious injuries, including loss of bone, 8 teeth and incurred two scars to her face.
2. Counsel for the Plaintiff alleges breach of contract under the Sale of Goods Act, under the Sale of Goods and Supply of Services Act, 1980 and breach of a further implied condition that the Defendants would not knowingly expose the Plaintiff to a significant risk to her life, limb or health which they were aware of or ought to have been aware of, and that they would warn the Plaintiff of any dangers travelling to selected destinations where there would be significant risk and that they would take all reasonable steps to ensure the Plaintiff's safety including using goods which would be reasonably fit for their intended purpose. These expressed or implied conditions were allegedly breached in that the Plaintiff was exposed to significant risk, was given no advice as to any possible dangers inherent in travelling to certain parts of Israel, especially while the Intefata was active. The bus used by the Defendant's agent was not fitted with reinforced glass. Furthermore or in the alternative the Plaintiff alleges negligence and breach of duty of care owed to the Plaintiff in failing to warn the Plaintiff of the dangers in recommending the Holy Land as a holiday destination, in failing to organise the trip so as to minimise the risk to the Plaintiff by permitting the Plaintiff to travel through Bethlehem in a bus easily identifiable as Israeli.
3. The first Defendant claimed that reasonable care was taken by daily checking of routes and there was no warning with respect to this route on this particular day. No attack on a tourist bus had taken place in the nine months previous to the incident according to Mr. Lawyer or ever according to Mr. Caspi. There was no evidence that warning should have been given to tourists not to take organised bus tours, a completely different category to Israeli scheduled buses, nor is there any evidence that the coach used was unsuitable. They submit that there as no duty of care in Irish Law requiring travel agents to warn clients of a probable risk to their health posed by the client's chosen destination. In England the duty of care to protect from the criminal activity of others may arise where injury to the injured party from such criminal conduct was "highly likely" as per Smith -v- Littlewoods Organisation Limited , 1987, 1 All England Reports at page 710. Further assuming that the duty of care is that recognised in Wortherly -v- Greyhound Corporation , 365 S.O. 2D at 177, that is and I quote:-

"To warn passengers of dangers which are reasonably foreseeable and which might cause harm."

4. The First Defendant submits that there was no danger of which the Plaintiff ought to have been warned.
5. The Second Defendant claims that it was an agent of the First Defendant and therefore it is the First Defendant who should be sued. Concerning the trip to Israel they are not agents for the Plaintiff or First Defendant. Even if they were on principle in Hedley Byrne & Company Limited -v- Helier and Partners Limited , 1964 Appeal Cases at 465, the duty would be to take reasonable care in giving advice and the Plaintiff never sought advice or said she was going on that particular trip.
6. On the Second Defendant's defence of the general rule of an agency as espoused by Wright J. in Montgomery -v- U.K. Mutual S.S. Association Limited , 1891, 1 Queen's Bench at 371:-

"This is a general rules and the intention of the parts and parties and the particular circumstances surrounding the contract can render the agent liable."

7. I make that comment clearly pointing out that I am deciding this case and this particular matter without reference to Council Directive No. 90/314/EEC, which came into effect on the 13th June, 1990 with regard to the claim of breach of contract.
8. The Sale of Goods and the Supply of Services Act, 1980, Section 39 includes as implied conditions in a contract for the supply of services that:-

"the supplier will (b) supply the service with due skill, care and diligence, (c) that where materials are used they will be sound and reasonably fit for the purpose for which they are required."

9. As regards the first implied condition the routes in this case were checked each morning and no warning had been issued for that route on that morning. The fact that nothing like this had ever happened before would seem to indicate that the Defendants exercised the due care required as their precautions were effective.
10. The Plaintiff contended that the bus should have been fitted with reinforced glass. However no evidence has been adduced that this was common practice or indeed recommended practice and therefore on the basis of Wilson -v- Best Travel, 1993, 1 All England Reports at 353 this argument fails.
11. The issue of Israeli registration plates making the bus easily identifiable as an Israeli bus has not been proven as a causative factor in the attack. In addition to Mr. Caspi's evidence of approximately 2,000 trips to Jerusalem and Bethlehem each year by such buses with no prior attack having been complained of this would seem to rule out this factor. Allowing for the public sentiment in the West Bank after the invasion of Kuwait it is possibly more likely that the fact that the occupants of buses were easily identifiable as westerners, which was a factor in the attack and this would not have been disguised by different registration plates on the bus.
12. Counsel for the Plaintiff cites a further implied condition in all holiday contracts that the operator will not knowingly expose the holiday maker to significant risk to life, limb or health. This appears to be the opinion of the authors Nelson, Jones and Stewart in, and I quote, " A practical guide to package holiday law and contract ", derived from the decision in Anns -v- Merton London Borough Council , 1978 Appeal Cases at 728, a case of tortuous liability and therefore not an implied condition in contract. The only other implied condition could derive from Davey -v- Cosmos Air Holidays , 1989 CLY at 327. There is a county court case in England where the Judge held a breach of an applied term of contract and I quote:-

"To take such steps as are reasonable taking all the circumstances into account to avoid exposing their clients to any significant risk of damage or injury to their health."

13. For the same reasons that the Defendant did not breach the implied condition under the Act it would seem that neither did they breach this condition, should it apply, reasonable care having been taken.
14. Turning to law on the Duty of Care in Tort as laid down in Donoghue -v- Stephenson , 1932 Appeal Cases at 562, and stated by Lord Wilberforce in Anns -v- London , in Anns -v- Merton London Borough Council at 751, this was affirmed in Ireland by the Supreme Court in Ward -v- McMaster , 1989, 9 Irish Law Reports Monthly 400, 409 by McCarthy J. who refused to dilute the words of Lord Wilberforce and preferred to, and I quote:-

"Express the duty as arising from the proximity of the parties, the foreseeability of the damage and the absence of any compelling exemption based upon public policy".

15. With regard to the latter consideration I quote:-

"Such a consideration must be a very powerful one if it is to be used to deny an injured party whose right to redress at the expense of the person or body that injured him".

16. Counsel for the First Defendant cites Smith -v- Littlewoods as evidence for the proposition that liability may only arise where injury due to the criminal activity of a third party was, and I quote " Liably probable ". The test used in the United States of America is that of reasonable foreseeability, Angell -v- Aranzini Lumbar Company 363 SO 2D at 517, Werndli -v- Greyhound Corporation aforesaid. Given that McCarthy J.'s opinion on the position of the Irish Courts with regard to the duty of care in general the United States position is more in line with the Irish division than that of the English position. Therefore it seems to me on the test whether the incident was reasonably foreseeable the following evidence must be taken into account.
17. The attitude of the inhabitants of the West Bank towards westerners following the invasion of Kuwait was knowledge in the public domain of which people in the travel industry ought to have been aware of. Also taking into account the evidence of the Second Defendant that if asked about visiting Israel or Egypt or taking the tours recommended in this particular case from Cyprus to Israel or Egypt, Miss English, the managing director of the Holiday Shop, advised her staff to advise clients not to travel during that period. Considering these various factors it could be said to have been reasonably foreseeable that an incident such as the present one would occur. Given that the Israeli victim law for victims of hostile actions was in place and that the victim (the Plaintiff) was compensated under those provisions, the injuries having been incurred by a stone, the chosen weapon of the Intefata, it may be said that the incident was a direct result of the dangers of the destination in question at that time. The standard of care in the law of negligence is that recognised in Commiskey -v- McDermott , 1974, Irish Reports 75 at page 89 as that of a, and I quote:

"A reasonably careful man in the circumstances ".

18. The exacerbation of circumstances due to the Iraqi invasion of Kuwait therefore ought to have been taken into account and the necessary warning made to put the Plaintiff on notice. In the absence of such, the First and Second Defendants may be seen to be held to have been negligent. The Second Defendant cannot be relieved of liability on the basis of Hedley Byrne & Company -v- Helier aforesaid as given the proximity of the relationship between the Plaintiff and the Second Defendant as their reliance with the former place and the scale of the latter omission to give the information is just as negligent as failing to take reasonable care in giving the information. The latter consideration regarding an exemption on the basis of public policy cannot be said to apply here as the Defendant could have escaped liability by putting the Plaintiff on notice and therefore it is not too onerous a duty to impose, especially given the particular circumstances of the case.
I note in Ward -v- McMaster the opinion of Henchy J. at 403 where he expressed the view that it would be unconscionable and unfair if liability and negligence could be avoided on the grounds that the Plaintiff himself could have taken the necessary steps to make himself aware of the circumstances. In those circumstances I therefore hold both Defendants to be in breach of their duty of care to the Plaintiff. Having regard to the respective responsibilities of these Defendants I would apportion their liability as follows. The First Defendant I would apportion as being two thirds liable. It was their package holiday. It was their add on cruise and this could only be booked, according to their brochure, from their Cypriana representative in Cyprus. For the reasons already enumerated I would hold the Second Defendant one third liable.
19. Turning to the issue of Contributory Negligence. I have carefully considered this. I would expect a Plaintiff in the ordinary course of events and of affairs such as the subject matter of this case to be aware of the problems attendant upon a visit to Israel, to Jerusalem and to Bethlehem in particular and in the circumstances I hold the Plaintiff to be 25% guilty of contributory negligence.
20. Now turning to quantum, there remains one further interesting issue to be decided in this very interesting case and that is the deductibility of the victim impact compensation. I have had the benefit of the medical reports from the Plaintiff and the Defendants. I am satisfied this Plaintiff suffered very serious injuries and will have continuing and serious sequelae. In the circumstances I will award the Special Damages as aforesaid in the sum of £10,085. I will award the future loss in relation to dental care in the sum of £10,000. In relation to pain and suffering to date, I will allow a figure of £30,000. Having regard to the Plaintiff's age and the fact she will continue to permanently suffer the defects and continuing dental care, for pain and suffering into the future, I will allow a figure of £35,000.
21. There follows the final issue as to whether or not the sums paid to the Plaintiff by the Israeli Government under the Compensation of Victim shall be deducted in this case. For the purpose of completeness may I say that the opinion of the Israeli lawyer submitted by the agreement of the parties does not state the precise figure that the Plaintiff received but it is my recollection that it was in or about £9,000. I propose to deal with it on that basis.
22. The First Defendant submits that money received by the Plaintiff from the Government of the State of Israel should be deducted from the sum claimed by the Plaintiff in respect of special damages as it does not fall within Section 2 of the Civil Liability (Amendment) Act of 1964. The Defendant based his claim on the assumption that the monies received were to pay for her medical and dental expenses and the effect of its non-deductibility from any special damages would lead to the position that the Court might award what would be medical expenses being paid twice, something which was not or could not have been the intention of the legislator when enacting the Section.
23. Mr. Michael Einstow in his opinion on the relevant Israeli law for the Plaintiff agreed by the Defendant's notes that the monies received by the Plaintiff from the National Insurance Institute, who are charged with the administration of the compensation scheme under the victims law, was under two headings; namely:

"(a) reimbursement of medical and dental fees incurred by the Plaintiff and
(b) a monthly payment based upon assessment of continuing disability".

24. The letter from the National Insurance Institute to the Plaintiff confirms that two types of payments had been awarded. Section 2 of the Civil Liability (Amendment) Act, 1964 aforesaid provides that and I quote:

"In assessing damages in an action to recover damages in respect of a wrongful act
including a crime resulting in personal injury not causing death account shall not be
taken of :

(a) any sum payable in respect of the injury under any contract of insurance or
• any pension, gratuity or other like benefit payable under statute or otherwise
in consequence of the injury".

25. As I understand it has been assumed by White in his "Irish Law of Damages" that this Section includes Social Welfare benefits apart from those laid out in Sections 68(1), 306(K) on the Social Welfare Consolidation Act, 1981, which are contained in Chapter 5 of the same entitled "Occupational Injuries", the effect of Section 204 aforesaid being assumed by the provision in Section 68 of the 1961 Act. It is thereby suggested by the author that the two types of payments be dealt with separately as the first would seem to be a pure calculation of costs incurred while the second being of a continuous monthly nature is more akin to a Social Welfare payment. Should this be an accurate assessment of the nature of the second payment the results of non-deductions under the 1954 Act would apply. Even if this type of payment is held not to fall within those mentioned in Section 2 of the 1964 Act it may be argued that the Section merely recognises the general policy considerations favouring non-deductibility of compensating benefits in personal injury actions as depending on and I quote "justice, reasonableness and public policy" as per Lord Reid in Paree -v- Cleever , 1970 Appeals Cases at page 13. Arising therefrom the position will be that the second payment should not be deducted. Alternatively should this payment be considered non-deductible on this basis it is then false to consider whether the fact that it was awarded by an institute of the Government of Israel alters this conclusion. There are it seems to me three main theories and much confusion in relation to the law of conflicts as regards which jurisdiction should apply when a tort is committed abroad but no specific guidelines regarding the particular issue in the present case. However it seems to me that in Grattan -v- Medical Incorporated and Pine Valley Associates , 1986 at 627, Walsh J. at 638 recommended a flexible approach:

"capable of responding to the individual issues presented in each case and to the so
cial and economic dimensions of applying any particular choice of law, rule in the
proceedings in question".

26. It seems to me it is on this basis that this Court may decide to consider whether the second payment should be treated as if it were a Social Welfare payment in Ireland or to use the words of the statute, "other like benefit under statute" on the one hand or apply the Israeli treatment to the payment which according to Mr. Stowe's opinion would be to deduct the value of payment from any damages awarded under any Israeli Court. It seems to me having regard to the first payment that the Supreme Court in Reddy and Bates , 1983, Irish Reports seems to favour an approach of non-duplication or overlap of damages. Notwithstanding that I take the view that the proper test to be applied is that enunciated by Walsh J. in the Grattan Court and in the unusual circumstances of the case and applying that test I will determine both payments to be non-deductible.