UK: Court of Appeal decides in broken glass door case

Michael Wukoschitz's picture

The case relates to an accident suffered by the plaintiff when on holiday in Barbados in September 2008. She had gone onto the balcony of her hotel room to read a book, closing
behind her the sliding glass balcony doors. When the telephone in her room rang a short time later, she got up from her chair and made to go back to the room, but she walked into
the closed doors. The glass in the door was not toughened or safety glass: it was annealed float glass, which shattered on impact , causing lacerations to her body. She subsequently brought a claim for damages for personal injury against the tour operator.

It was common ground that the defendant was required to provide accommodation of a reasonable standard that was reasonably safe, and that the accommodation would comply
with all applicable local safety standards and regulations that were in force. The experts agreed that the Barbados National Building Code (published by the Barbados National
Standards Institution) stated that this sort of door should be fitted with safety glass and that this was an “essential minimum provision in the public interest”. The Code was published
in 1993, prior to the installation of the door in 1994.

The defendant's expert argued that the Code was not law. The hotel was not legally obliged to comply with the Code. Annealed float glass and doors like these were in
common use in Barbados. The plaintiff's expert’s evidence was that custom and practice was to follow the Code. Annealed float glass was very dangerous, and the door was not fit for purpose.

At first instance, the judge held that the standard of the hotel fell to be considered by reference to custom and practice in the building industry at the date of the accident – which was 2008, 14 years after the hotel was constructed. The judge found that the local standard at the time of the accident required safety glass in the door, and that there was a duty to update the premises to install safety glass to comply with current custom and practice. Only at the very end of the judgment, the judge confirmed that there was also a breach of duty at the time the hotel was constructed.

The Court of Appeal agreed that absent binding regulations, a non-binding code could set the local standard. The Court of Appeal confirmed that the relevant date was not the date
of the accident, but the date when the door was installed. The Court also agreed with the defendant that, unless changing standards provided for updating (which there was no
evidence in this case they did), there was no duty to update the premises to comply with improving standards.

However, since the judge at first instance had made a finding, albeit at a very late stage, that if the duty was to comply with local standards at the date of installation of the doors,
there was nevertheless a breach of that duty, the appeal failed.

Full text of judgement of Nov. 7, 2013 in case Japp v Virgin Holidays [2013] EWCA Civ 1371 available at http://www.bailii.org/ew/cases/EWCA/Civ/2013/1371.html

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