Two recent cases highlight the legal position of holiday makers involved in accidents in Portugal and Barbados.
Van & Ors -v- Ocidental-Companhia De Seguros SA ( 2014) EWHC 545 QB
In September 2010 the Van family were on holiday in the Algarve region of Portugal. They were leaving a restaurant at 11.30, and had begun to cross the road when Mr & Mrs Van were hit by a car driven by a Mr De Sa. Unfortunately, Mr Van was killed and Mrs Van suffered severe injuries. Proceedings were brought in the High Court in England. The parties agreed that Portuguese law applied to the assessment of liability and contributory negligence( See Regulation (EC) No864/2007, art 4(1).
Both sides produced reports from Portuguese lawyers setting out the material legal principles regarding the presumption of liability on the part of a driver in a road traffic accident in Portugal. This presumption would not apply if the defendant could show that the injured party was at fault. The injured party would then be required to prove relevant fault on the part of the driver. If there is fault found on both sides, in broad terms the apportionment of liability would not be dissimilar to the approach taken by English law as regards contributory negligence.
The court considered specific provisions in the Portuguese Highway Code (Articles 99 and 101) which set out the obligations on pedestrians to use pavements, footpaths and crossings when available, and to cross a road taking into account the distance and speed of approaching vehicles.
After considering the evidence, including the police report and expert evidence, the judge found on the balance of probabilities that Mr & Mrs Van had begun to cross the road before Mr De Sa's vehicle was visible, and that he had been travelling in excess of the speed limit. There was no finding of contributory negligence.
Japp -v- Virgin Holidays Ltd (2013) EWCA Civ 1371
In 2008, whilst on holiday in Barbados, Ms Japp had gone out onto a balcony to read, closing the sliding glass balcony door behind her .Later when the phone rang in her room she got up, and walked into the closed glass doors which shattered, causing lacerations to her body.
Proceedings were brought against the tour operator Virgin under the Package Travel, Package Holidays and Package Tour Regulations 1992, SI 1992/3288. Here again, the court considered the local standards which applied and in particular the Barbados National Building Code, 1993 Edition.
The balcony had been constructed in 1994. The starting point had to be what standards were applicable at the date of the design and construction, which in this case meant the date when the balcony doors had been installed. There would be circumstances when changing standards made specific provision for further remedial action to the structural feature of an existing building. Subject to that however, there could be no duty to engage in a constant process of updating of existing buildings, so as to reflect changes in standards. The Court of Appeal upheld the decision of the judge at first instance, that in 1994 the balcony doors had not complied with the Barbados National Building Code which professionals followed as a matter of custom and practice, and which represented local safety standards.
If you would like advice about accidents abroad, please contact Patrick Eastwood.