Jackson V Horizon Holidays 6v186i

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Status:

Positive or Neutral Judicial Treatment

*1468 Jackson v Horizon Holidays Ltd. 1972 J. No. 1312 Court of Appeal 5 February 1974

[1975] 1 W.L.R. 1468 Lord Denning M.R. , Orr and James L.JJ. 1974 Feb. 4, 5 Damages—Contract—Breach—Family holiday—Contract made by head of family for benefit of himself, wife and children—itted breaches affecting whole family causing discomfort and disappointment to all—Whether damages recoverable by person making contract tn recompense whole family The plaintiff booked a holiday at a named hotel in Ceylon for himself, his wife, and twin boys aged three, through the defendants, a travel company, after studying their holiday brochures, stating in a letter his precise requirements with regard to accommodation for the family, food, amenities and facilities, and receiving an assurance that they would be met. The price payable was £1,432. Shortly before the departure date, the defendants informed him that the hotel he had chosen would not be ready in time and they offered him for £1,200 a substitute which was also described in glowing in the brochure. He accepted it after being assured that it would be as good as his original choice. The accommodation, food, services, facilities and general standard of the hotel to which they were transported proved so unsatisfactory that the whole family suffered discomfort, vexation, inconvenience and distress and went home disappointed. The plaintiff brought an action against the travel company, claiming damages for misrepresentation and breaches of contract. The company, though initially denying all the allegations, later itted liability. On the trial of the issue as to damages the trial judge awarded the plaintiff £1,100. He did not divide up that sum in any way; but he stated specifically that the damages were the plaintiff's and that though he could consider the effect on the plaintiff's mind of his wife's discomfort and the like, he could not award a sum which represented her own vexation. On appeal by the defendants and notice of additional grounds by the plaintiff: — Held, dismissing the appeal, (1) that the plaintiff had made a contract for a family holiday and though only he could sue for damages for breaches of that contract he could recover damages not only for his own discomfort and distress but also *1469 for the distress and discomfort suffered by his wife and children by reason of the defendants' breaches of the contract to provide them with the holiday for which the plaintiff had contracted. (2)That though the sum awarded would have been excessive if awarded only for the damage suffered by the plaintiff, it was a right and proper figure when extended to his wife and children. Dictum of Lush L.J. in Lloyd's v. Harper (1880) 16 Ch.D. 290, 321, C.A. applied . Decision of Judge Edgar Fay Q.C. sitting as an additional judge of the Queen's Bench Division affirmed on wider grounds.

The following cases are referred to in the judgments: Beswick v. Beswick [1968] A.C 58; [1967] 3 W.L.R. 932; [1967] 2 All E.R. 1197, H.L.(E.) . Jarvis v. Swans Tours Ltd. [1973] Q.B. 233; [1972] 3 W.L.R. 954; [1973] 1 All E.R. 71, C.A. Lloyd's v. Harper (1880) 16 Ch.D. 290, C.A.

The following additional cases were cited in argument:

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Green v. Russell [1959] 2 Q.B. 226; [1959] 3 W.L.R. 17; [1959] 2 All E.R. 525, C.A. Stedman v. Swan Tours Ltd. (1951) 95 S.J. 727, C.A. APPEAL from Judge Edgar Fay Q.C. sitting as an additional judge of the Queen's Bench Division. The plaintiff, Julien Anthony Jackson, issued a writ claiming damages for breaches of representation arising out of a contract made between him and the defendant company, Horizon Holidays Ltd., a travel company, in December 1970. By his statement of claim he claimed that by two brochures entitled “Far Horizons Long Distance Holidays by Air 1971” and “Far Horizons Long Distance Holidays by Air 1970/71” the defendants in the course of their business of experts in arranging and providing holiday accommodation and facilities had made representations in reliance on which he had agreed with them that in consideration of the sum of £1,432, they would make all arrangements for and provide a holiday for him and his family at the Pegasus Reef Hotel, Ceylon, for a period of 28 days between January 23, 1971, and February 20, 1971. He claimed that the agreement was on the following and conditions (1) that the Pegasus Reef Hotel was the newest and most luxurious addition to the chain of beach hotels in Ceylon; (2) that the hotel would be open in December 1970; (3) that the accommodation in the hotel was excellent; (4) that Horizon had carefully selected two beach resorts; (5) that the meals were four-course meals with a choice of three or four dishes to each course; (6) that the hotel would provide an unequalled degree of dependability and excellence; (7) that all hotels included in the holidays provided by the defendants had been investigated and inspected by experts; and (8) that each of the rooms had a private bath, shower and w.c. He claimed further that the agreement was varied by a letter from the defendants to him dated January 14, 1971, as follows: “With reference to our telephone conversation of today we regret to inform you that, due to delays in the construction of the above hotel, it will not be fully completed by January 23. We therefore find it *1470 necessary to transfer you and your family to the Brown's Beach Hotel, Negombo, for the entire duration of your holiday where we are sure you will receive the standard of service and accommodation which you would have expected at the Pegasus Reef.” In the premises he claimed that there was incorporated into the agreement as varied the representations set out in regard to the Pegasus Reef Hotel. It was further a term of the agreement as varied that the Brown's Beach Hotel provided for a private bath to each room; a mini golf course; a swimming pool; a beauty salon; but that in breach of the representations and of the of the agreement as varied Brown's Hotel had no bathroom; no mini golf course nor any golf course; no swimming pool; and no beauty salon; and that the room allocated to the plaintiff (which was adjacent to a shower room) had thereon a stinking black mildew so that he was unable to occupy it, and the whole family had to sleep in one room; that the hotel was not a luxury hotel; it failed to provide lavatory paper: there were dirty sheets on the beds on the plaintiff's arrival at the room; and they were not changed during the course of his stay; that the hotel failed to provide any or any adequate menu as expressly provided in the agreement or compatible with the status of a luxurious or first class hotel, failed to provide an a la carte menu and failed to provide any or any adequate toilet or washing facilities; and that by reason of the breaches of representation and of contract the plaintiff had suffered loss and damage. The defence delivered itted the booking of the holiday at Brown's Hotel but denied all the allegations in the statement of claim; but before the trial the company itted liability and the trial proceeded on the issue as to quantum of damages. The judge awarded the plaintiff £1,100 damages. The defendant company appealed on the ground that the damages awarded were excessive. By a respondent's notice the plaintiff asked that the judge's judgment should be affirmed on the additional ground that in awarding the plaintiff damages of £1,100 the judge misdirected himself in holding that the plaintiff was not entitled to recover damages for the distress and inconvenience suffered by his wife and children by reason of the defendants' breaches of their contract with him to provide him and his wife and children with the holiday in Ceylon for which the

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plaintiff contracted. Before hearing the appeal the court dismissed an application by the defendant company for leave to adduce further evidence.

Representation G. W. Cheyne for the defendant company. J. J. Davies for the plaintiff. LORD DENNING, M.R. Mr. Jackson is a young man, in his mid twenties. He has been very successful in his business. He is married with three small children. In November 1970 there were twin boys of three years of age; and his wife had just had her third child. He had been working very hard. They determined to have a holiday in the sun. He decided upon Ceylon. He inquired of Horizon Holidays Ltd. He made arrangements with their agent, a Mrs. Bremner, for a holiday at a hotel, the Pegasus Reef Hotel, Hendala Point, Ceylon. He wrote them a letter which shows that he wanted everything of the highest standard: “With reference to our telephone conversation would you please confirm that you can arrange for my wife myself and my two twin *1471 boys aged three years to stay for 28 days from January 23 at the Hotel Pegasus Reef, Hendala Point, Ceylon. Would you also arrange that the children's room has an ading door to our room; this is essential and is a condition of me booking this holiday. Would you please make sure that the balcony is facing the sea and would you also confirm the distance the hotel is from the sea. Would you confirm that the meals are four course with a choice of three or four dishes to each course. Could you confirm that there have been arrangements made that an English speaking doctor would call on the hotel if needed. Would you please make a clear answer to all these questions appreciating that you might have difficulties in answering some of these questions and not to send an evasive answer to any of these questions.” He spoke on the telephone to Mrs. Bremner. She led him to believe that the hotel would come up to his expectations. She wrote on the booking form: — “Remarks Twins' room with connecting door essential. Total charge £432.” He sent it in and booked the holiday. In the middle of January it was discovered that the Pegasus Reef Hotel would not be ready in time. So Horizon Holidays recommended a substitute. This was Brown's Beach Hotel. It was described in the advertisment as being “superbly situated right on the beach, with all facilities for an enjoyable holiday including mini-golf, excellent restaurant, cocktail lounge, and gift shop … The bedrooms are well furnished and equipped in modern style. All rooms have private bath, shower, w.c., sea view and air-conditioning.” Mr. Jackson had some hesitation about this other hotel. But Horizon Holidays assured him that it would be up to his expectation. So Mr. Jackson accepted it. But Horizon Holidays reduced the charge. Instead of the price being the total sum of £1,432 it would, because of the change of hotel, be £1,200. That included air travel to Ceylon and back and a holiday for four weeks. So they went there. The courier, Miss Redgrove, met them and took them to Brown's Beach Hotel. But they were greatly disappointed. Their room had not got a connecting door with the room for the children at all. The room for the children was mildewed — black with mildew, at the bottom. There was fungus growing on the walls. The toilet was stained. The shower was dirty. There was no bath. They could not let the children sleep in the room. So for the first three days they had all the family in one room. The two children were put into one of the single beds and the two adults slept in the other single bed. After the first three days they were moved into what was said to be one of the best suites in the hotel. Even then they had to put the children to sleep in the sitting

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room and the parents in the bedroom. There was dirty linen on the bed. There was no private bath but only a shower; no mini-golf course; no swimming pool; no beauty salon; no hairdressers' salon. Worst of all was the cooking. There was no choice of dishes. On some occasions, however, curry was served as an alternative to the main dish. They found the food was very distasteful. It appeared to be cooked in coconut oil. There was a pervasive taste because of the manner of cooking. They were so uncomfortable at Brown's Beach Hotel that after a fortnight they moved to the Pegasus Reef Hotel. It appears that by that time it was *1472 nearing completion. But a lot of building work was still going on. At any rate, for the second fortnight they were in the Pegasus Reef Hotel, where things were somewhat better than at Brown's Beach Hotel. They stayed out the four weeks, and came home. Soon after their return, Mr. Jackson wrote a letter setting out all his complaints from the beginning to the end. Then Mr. Jackson brought an action for damages in respect of the loss of his holiday for himself, his wife and the two small children. Horizon Holidays itted liability. The contest was only on the amount of damages. In Jarvis v. Swans Tours Ltd. [1973] Q.B. 233 , it was held by this court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained, but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday. The judge directed himself in accordance with the judgments in that case. He eventually awarded a sum of £1,100. Horizon Holidays Ltd. appeal. They say it was far too much. The judge did not divide up the £1,100. Counsel has made suggestions about it. Mr. Cheyne for Horizon Holidays suggests that the judge gave £100 for diminution in value and £1,000 for the mental distress. But Mr. Davies for Mr. Jackson suggested that the judge gave £600 for the diminution in value and £500 for the mental distress. If I were inclined myself to speculate, I think Mr. Davies' suggestion may well be right. The judge took the cost of the holidays at £1,200. The family only had about half the value of it. Divide it by two and you get £600. Then add £500 for the mental distress. On this question a point of law arises. The judge said that he could only consider the mental distress to Mr. Jackson himself, and that he could not consider the distress to his wife and children. He said: “The damages are the plaintiff's … I can consider the effect upon his mind of the wife's discomfort, vexation, and the like, although I cannot award a sum which represents her own vexation.” Mr. Davies, for Mr. Jackson, disputes that proposition. He submits that damages can be given not only for the leader of the party — in this case, Mr. Jackson's own distress, discomfort and vexation — but also for that of the rest of the party. We have had an interesting discussion as to the legal position when one person makes a contract for the benefit of a party. In this case it was a husband making a contract for the benefit of himself, his wife and children. Other cases readily come to mind. A host makes a contract with a restaurant for a dinner for himself and his friends. The vicar makes a contract for a coach trip for the choir. In all these cases there is only one person who makes the contract. It is the husband, the host or the vicar, as the case may be. Sometimes he pays the whole price himself. Occasionally he may get a contribution from the others. But in any case it is he who makes the contract. It would be a fiction to say that the contract was made by all the family, or all the guests, or all the choir, and that he was only an agent for them. Take this very case. It would be absurd to say that the twins of three years old were parties to the contract or that the father was making the contract on their behalf as if they were principals. It would equally be a mistake td say that in any of these instances there was a trust. The transaction *1473 bears no resemblance to a trust. There was no trust fund and no trust property. No, the real truth is that in each instance, the father, the host or the vicar, was making a contract himself for the benefit of the whole party. In short, a contract by one for the benefit of third persons. What is the position when such a contract is broken? At present the law says that the only one who can sue is the one who made the contract. None of the rest of the party can sue, even though the contract was made for their benefit. But when that one does sue, what damages can

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he recover? Is he limited to his own loss? Or can he recover for the others? Suppose the holiday firm puts the family into a hotel which is only half built and the visitors have to sleep on the floor? Or suppose the restaurant is fully booked and the guests have to go away, hungry and angry, having spent so much on fares to get there? Or suppose the coach leaves the choir stranded halfway and they have to hire cars to get home? None of them individually can sue. Only the father, the host or the vicar can sue. He can, of course, recover his own damages. But can he not recover for the others? I think he can The case comes within the principle stated by Lush L.J. in Lloyd's v. Harper (1880) 16 Ch.D. 290 , 321: “I consider it to be an established rule of law that where a contract is made with A . for the benefit of B., A. can sue on the contract for the benefit of B ., and recover all that B . could have recovered if the contract had been made with B. himself.” It has been suggested that Lush L.J. was thinking of a contract in which A was trustee for B. But I do not think so. He was a common lawyer speaking of common law. His words were quoted with considerable approval by Lord Pearce in Beswick v. Beswick [1968] A.C. 58 , 88. I have myself often quoted them. I think they should be accepted as correct, at any rate so long as the law forbids the third persons themselves from suing for damages. It is the only way in which a just result can be achieved. Take the instance I have put. The guests ought to recover from the restaurant their wasted fares. The choir ought to recover the cost of hiring the taxis home. Then is no one to recover from them except the one who made the contract for their benefit? He should be able to recover the expense to which he has been put, and pay it over to them. Once recovered, it will be money had and received to their use. (They might even, if desired, be ed as plaintiffs). If he can recover for the expense, he should also be able to recover for the discomfort, vexation and upset which the whole party have suffered by reason of the breach of contract, recompensing them accordingly out of what he recovers. Applying the principles to this case, I think that the figure of £1,100 was about right. It would, I think, have been excessive if it had been awarded only for the damage suffered by Mr. Jackson himself. But when extended to his wife and children, I do not think it is excessive. People look forward to a holiday. They expect the promises to be fulfilled. When it fails, they are greatly disappointed and upset. It is difficult to assess in of money; but it is the task of the judges to do the best they can. I see no reason to interfere with the total award of £1,100. I would therefore dismiss the appeal. ORR L.J. I agree. *1474 JAMES L.J. In this case Mr. Jackson, as found by the judge on the evidence, was in need of a holiday at the end of 1970. He was able to afford a holiday for himself and his family. According to the form he completed, which was the form of Horizon Holidays Ltd., he booked what was a family holiday. The wording of that form might in certain circumstances give rise to a contract in which the person g the form is acting as his own principal and as agent for others. In the circumstances of this case, as indicated by Lord Denning M.R., it would be wholly unrealistic to regard this contract as other than one made by Mr. Jackson for a family holiday. The judge found that he did not get a family holiday. The costs were some £1,200. When he came back he felt no benefit. His evidence was to the effect that, without any exaggeration, he felt terrible. He said: “The only thing, I was pleased to be back, very pleased, but I had nothing at all from that holiday.” For my part, on the issue of damages in this matter, I am quite content to say that £1,100 awarded was the right and proper figure in those circumstances. I would dismiss the appeal. M. M. H.

Representation Solicitors: Margolis & Co.; Stuart Scott & Co. Appeal dismissed with costs. Leave to appeal to House of Lords refused.

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