Clyde & Co and Deka Chambers Successfully Defend Assumption of Responsibility Claim Against Online Holiday Rental Platform

News

28/05/2024

Online booking platforms are an everyday part of modern life; marketplaces which permit consumers to browse, and companies to display competitors, allow for convenience and consumer choice. However, can a booking agent displaying accommodation be liable for any injury suffered by a customer through the accommodation it advertises? This note focuses on whether a duty arises between the agent and consumer as to personal injury. This comes in the context of increasing regulatory pressure on holiday booking sites, including new European Union harmonised rules on how data related to short-term accommodation rental services should be collected and shared, adopted by the European Parliament in February this year.

The decision of the Supreme Court in HXA v Surrey County Council [2023] UKSC 52 has been considered in detail with its impact on assumption of responsibility as to a Local Authority’s failure to remove children where there is a risk of abuse, but its implications are further reaching both in terms of the general shift further away from assumption of responsibility, and the conditions of success. The principles derived from this can be applied in order to properly test Claimant’s cases and may be especially useful to cases pleaded before the judgment was published. Recently, we successfully defended a claim for personal injury brought against an online holiday rental platform.  A homeowner in Spain listed their property for rental on the platform, which the Claimant found and booked.  The Claimant was injured whilst staying at the property and brought a claim against the online platform on the basis that they assumed some responsibility for the injuries sustained, as a result of information on the rental listing.  The claim was disputed on the basis that the online platform bore no responsibility for the listing information, as made clear in the terms and conditions; however, despite this, proceedings were issued.    Following an application to strike out, the Claimant eventually discontinued against the online rental platform. Sarah Prager KC and Julia Brechtelsbauer of Deka Chambers were instructed  by Sandeep Aujla of Clyde & Co.

This note will firstly focus on HXA and its potential to be applied more widely, and specific issues with regards to a booking agent being liable through assumption of responsibility for personal injury. The practical impact is that terms and conditions of booking agents ought to be drafted defining what exactly they are responsible for in order to ensure their liability is limited and predictable in line with the service they provide.

HXA: Implications and Utility Beyond Failure to Remove 

HXA comes within a package of decisions (Tindall v Thames Valley Police [2022] EWCA Civ 25; Miller v Irwin Mitchell [2024] EWCA Civ 53) where the higher courts are interrogating the concept of assumption of responsibility, the combination of which sets the tone that assumption of responsibility ought to be properly considered and tested in order for a claim to be successful.

HXA made clear it is incumbent upon the Claimant to set out in his pleaded case the exact nature of the assumption of responsibility upon which he relies. This was reiterated in Miller v Irwin Mitchell at [53]. Therefore, when considering a claim for assumption of responsibility, an important consequent question is – What did they/it/he/she assume responsibility for and to whom?  This goes to the scope of the duty assumed.  A company may assume a responsibility to carry out the terms of a booking (i.e., that an accommodation exists and will be provided) but not the quality and safety of the subsequent booking. This is crucially important in assumption of responsibility, since it is liability which is imposed due to a voluntary act on behalf of the Defendant – a Defendant cannot assume responsibility for something which it never held out to do.  This naturally then informs how the Defendant may discharge that duty.

Applying this principle to the situation at hand, a booking agent must therefore assume liability towards the personal injury of the Claimant. This is a difficult hurdle to overcome regarding many of the representations which are made by booking agents, since they are essentially a marketplace displaying to the world at large. As laid out by Lord Sumption in Playboy Club London Ltd v Banca Nazionale del Lavaro SpA [2018] UKSC 43; [2018] 1 WLR, at[7]:

It is fundamental to this way of analysing the duty that the defendant is assuming a responsibility to an identifiable (although not necessarily identified) person or group of persons, and not to the world at large or to a wholly indeterminate group.”

An added layer of complexity is that, of course, many bookings are made on behalf of another – for example, a husband booking for a husband and wife. The Claimant to the personal injury claim may not have even seen or heard of any the representations, and this can cause difficulties to the claim. This may change if there is a specific personal dealing between the Claimant and the booking agent, such as a phone-call of specific assurances. What is important, is to look at what is objectively said or done by the Defendant to the Claimant, and whether that can amount to a specific assumption of responsibility as required by HXA.

Liability of Booking Agents

There is no direct authority on whether holiday booking agents, or intermediaries in such contracts, can assume responsibility for personal injury.  It is therefore a “novel” duty of care.  In accordance with the guidance as offered in Robinson v Chief Constable of West Yorkshire [2018] UKSC 4, [24], novel duties of care should be developed “incrementally and by analogy with established authority.”  However, when looking at analogous cases such as agents and pure economic loss, two principles become clear: (1) there must be a direct holding out by the Defendant to the Claimant, and (2) this holding out must not be in contradiction with express contract terms.

The difficulty with the first aspect is that booking agents may not actually do anything themselves beyond that provided by their client to the customer – that may change if for example there is some kind of “stamp of approval” provided by the booking agent. The law is clear here – intermediary cases follow the general principle as given by Lord Bingham in Commission of Customs and Excise v Barclays Bank [2006] UKHL 28; [2007] 1 AC, [38] that in assumption of responsibility cases “a duty of care is ordinarily generated by something which the defendant has decided to do”. A demonstration of this principle is Smith v Eric Bush [1990] 1 AC 831 where a surveyor was held to have assumed responsibility for the consequent buyer of the property as to the quality of said property. The survey was requested and produced by the bank who was providing a mortgage for the property – Lord Templeman explicitly said that no assumption arising from “obtaining and disclosing a valuation”. Whilst it may be attractive to provide assurances as to quality of the property – this may come with the trade-off that it could be considered an assumption of responsibility towards the safety of the property and thus the personal injury of the customer.

What may mitigate against that risk is of course the second component – which is that an assumption of responsibility cannot be inconsistent with express contractual terms. The case-law on this point is overwhelming, and it is safe to say that this an entrenched principle. As a matter of principle, it of course makes sense that you cannot assume responsibility for something which at the same time you deny any liability for. It must also, however, be borne in mind that contract terms can be considered unenforceable for reasons of unfairness, in accordance with the Consumer Rights Act 2016. This therefore may permit an assumption despite there being express indications to the contrary. This is what occurred in relation to the surveyor in Smith v Eric Bush; although there was a disclaimer of liability, the disclaimer was unfair in accordance with the Unfair Contract Terms Act 1977. 

Finally, even if cases which point in favour of liability, the Caparo test ought to be considered as to whether the extension of liability is appropriate in the circumstances. The test is:

  1. The harm must be reasonably foreseeable as a result of the Defendant’s conduct;
  2. The parties’ relationship must be proximate; and
  3. It must be fair, just and reasonable to impose liability.

Any of which may suggest that there ought not to be liability. Often, in terms of a booking agent, foreseeability will be difficult to make out – provided they have minimal control or interaction with the accommodation itself.  A useful tool is to think about what the agent could have done to avoid the injury occurring and whether that results in a very remote risk. For example, it is readily apparent from imaging sent by the provider to the booking agent which they then advertise that there is a danger, this is a much more foreseeable risk than for example cracked floor tiles, which have occurred since any photos, and no inspection was expected or required by the agent.

In summary, claims for assumption of responsibility against booking agents have to be particularised carefully, and not simply a question of assertion. Attention should specifically be paid to what is represented to the Claimant, or anyone who booked on behalf of the Claimant, and whether that is inconsistent with any terms and conditions. Whilst it may be more attractive to the consumer to offer more assurances, a cost in liability may be paid.

Featured Counsel

Sarah Prager KC

Call 1997 | Silk 2023

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