21.04.2010
Christopher Lundie and Hayley McLorinan successful in landmark holiday damages appeal
Christopher Lundie and Hayley McLorinan successful in landmark holiday damages appeal.
On 20 April 2010 the Court of Appeal handed down its judgment in Milner v Carnival Plc providing authoritative guidance as to the assessment of damages in holiday claims. The appeal had been much publicised and was eagerly anticipated by those dealing with holiday claims.
The claimants, Mr and Mrs Milner, commenced proceedings in the Bradford County Court following a disappointing holiday on board the Queen Victoria cruise ship, seeking damages totalling £76,240. On 14 May 2009 Spencer HHJ awarded the claimants £22,500 made up of £2,500 each for diminution in value, £7,500 each for distress and disappointment and £2,000 for “wasted expenditure on [Mrs Milner’s] wardrobe of formal dining gowns”. Permission to appeal was granted by Sir Simon Tuckey, who indicated that the case may provide the opportunity to give authoritative guidance on the appropriate measure of damages in holiday cases.
The Court of Appeal allowed the appeal, reducing the total award of damages to £12,000. Lord Justice Ward confirmed the approach frequently adopted in spoilt holiday claims of assessing damages under the heads of “diminution in value” and “distress and disappointment”, whilst stressing that judges should always be alert to ensure that there is no duplication of damages under the two heads. For example, judges must exclude from the “diminution” assessment consideration of how the client felt about the diminution in the service provided.
As regards “diminution in value” the correct approach is to try and assess the difference between what the supplier contracted to provide and what was actually provided, it being an assessment of pecuniary loss. Damages were assessed in the sum of £3,500, taking a third of the price actually paid for the holiday, less the refund already paid.
Turning to damages for distress and disappointment, Ward LJ commented that this was an exceptional case. The cruise had been the maiden voyage of the Queen Victoria and the first time that Queen Mary 2, Queen Elizabeth 2 and Queen Victoria had sailed together. Expectations had been sky high and the holiday had been long awaited, having been booked 18 months before. However, the trial judge’s award was out of line with those sums regularly awarded in the county court and was “excessive and disproportionate”. Damages had to be assessed against the background of damages awarded for psychiatric damage in personal injury cases, injury to feelings in sex and race discrimination and damages for bereavement. It was wrong to use the price of the holiday as a benchmark for damages. He awarded £4000 to Mr Milner, to £4,500 for Mrs Milner, the latter having been more acutely distressed.
Christopher Lundie and Hayley McLorinan appeared for the successful Appellant instructed by Lester Aldridge LLP
http://news.bbc.co.uk/1/hi/england/north_yorkshire/8632144.stm
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