However, the court agreed that the holidaymaker, Moira Japp, was entitled to compensation from Virgin Holidays for injuries that she sustained when she walked into a glass patio door and it shattered. This was because the door did not comply with local standards at the time it was installed, 14 years before the date of the accident, according to the judgment.
Defendant personal injury expert Ian Evans of Pinsent Masons, the law firm behind Out-Law.com, said that although the decision would cost Virgin Holidays, it was not as bad news for the UK travel industry as had originally been feared. The Court of Appeal did not address the High Court's alternative finding, which could have resulted in tour operators being forced to insist that all hotels they used complied with UK standards rather than those applicable locally.
"Although Virgin lost the case, some areas of its defence were valid and confirmed by the court," he said. "The appeal failed as it was found that the hotel had failed to comply with the local standard at the time of construction."
"The judges agreed that the original High Court judge had erred in stating that the hotel had to upgrade/refurbish; and that the standards at the time of the accident should be applied, not those at the time of construction. They also agreed that the correct test was local standards at the time of construction unless those standards had required upgrade/refurbishment," he said.
Under the current law, a UK-based tour operator has a duty to ensure holidaymakers' 'reasonable safety'. However, it can avoid liability if it has checked that a hotel or resort abroad complies with local standards. As is the case in the UK, local standards can be set not just by binding regulations but also by a voluntary code which it is the custom and practice to follow.
In his judgment, Lord Justice Richards said that the Barbados National Building Code, as it applied in 1994, would have required that the patio doors be constructed with safety glass. As this had not happened, Japp was entitled to compensation, he said.
Overruling the High Court judge, he agreed with Virgin that the correct test was that of the local standards applying at the date of construction or installation, rather than at the date of the accident.
"Where the question is whether a structural feature of a building complies with local standards, the starting point must be the standards applicable at the date of design and construction, which in this case means those applicable at the date when the balcony doors were installed," he said.
"There will be circumstances where changing standards make specific provision for further action to be taken in relation to a structural feature of an existing building (the regulations relating to the removal of asbestos may provide an example). Subject to that, however, I do not think that there can be a duty to engage in a constant process of updating existing buildings, by rebuilding or refurbishment, so as to reflect changes in standards," he said.