Keoghs Insight

Author

Kate Burt

Accidents abroad (part one)

AWARE17/04/2013
Casualty Aware 3

Current law is principally found in the Package Travel, Package Holidays and Package Tours Regulations (SI/1992 3288) (The Regulations) which came into effect on 23 December 2002. Prior to this the common law applied. This made it difficult for consumers to overcome the challenges of bringing a claim against a foreign defendant in a foreign court.

The Regulations were designed to help harmonise the laws on consumer protection in the European Union in relation to package holidays and apply to packages sold or offered for sale in the territory of the United Kingdom.

The definition of a package holiday for the purpose of the regulations is wide. Regulation 2 defines a ‘package holiday’ as the pre-arranged combination of at least two components of:

(a) transport

(b) accommodation

(c) other tourist services when sold or offered for sale at an inclusive price and when a service covers a period of more than twenty-four hours or includes overnight accommodation.

Regulation 15 (1) provides that the other party to the contract (the organiser or retailer) is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that party or by other suppliers of services. This regulation therefore prevents the organiser or retailer seeking to defend a claim on the basis that they delegated part or all of their duties to a third party or parties. The duty is not however, absolute and the other party has a defence if the failure was due:

  • to the consumer;
  • a third party unconnected with the contract which was unforeseeable or unavoidable; and/or
  • to unforeseeable or unusual circumstances which could not have been avoided even if all due care had been exercised.

The consumer is not precluded from bringing a claim directly against the actual supplier of the service. Likewise, the organiser is not precluded from pursuing a recovery against the supplier of the services. This course of action by either the consumer or the organiser is far from straightforward and the practicalities and pitfalls of the latter will be considered in the next edition of Liability Aware.

The reference to ‘organiser or retailer’ in the Regulations can cause confusion as to whom the claim should be brought against. The organiser is a party who other than occasionally organises packages and sells or offers them for sale whether directly or through a retailer. This can extend beyond those acting in a course of business and to someone who regularly organises trips for friends as long as the trips include the components of a package. The retailer is the person who sells or offers for sale the package put together by the operator.

The liabilities of the retailer under the Regulations are not as numerous as those of the organiser. The current preference tends to be to bring proceedings against the tour operator who will often be insured. The liability imposed is restricted to those obligations to be performed under the package holiday contract. When considering liability the starting point must be the wording of the contract itself along with any brochure or literature provided to the consumer.

The evidential importance of these documents was considered in the QBD High Court case of Jones v Sunworld Limited (now Incorporated in JMC Holidays Ltd) 2003.

This case concerned a fatal accident which occurred whilst Mr and Mrs Jones were on honeymoon in the Fun Island Resort in the Maldives. The lagoon bed in question was uneven and Mr Jones, who was not a strong swimmer got into difficulties and tragically drowned. A claim was brought against Sunworld alleging breaches of the Regulations. Mr and Mrs Jones had entered into a contract with Sunworld after finding the holiday in one of their brochures at a travel agent. The price of the holiday included accommodation, meals, services of a Sunworld representative and return flights.

Sunworld argued that the lagoon was outside the package and therefore not caught by the Regulations. The claimant’s case was that the lagoon was mentioned in the brochure as an attractive feature of the location. They also relied upon the fact that the lagoon (together with the island) was leased by the resort owners and there was no swimming pool. The court agreed that the lagoon did form part of the package but made it clear that the defendant was not obliged to assess the safety of the lagoon (given its size and nature) in the same manner as it assessed (and was obliged to assess) the safety of the buildings and paved areas on the island.

Further, there was no obligation on the defendant to survey the lagoon for features that may have a bearing on safety. They should however, have taken a visual inspection and enquiries with the resort’s management about particular features that might have a bearing on safety and carried out an inspection of records kept by the resort of any accidents in the lagoon. There was no evidence that the defendant carried out any of these steps.

The claimant argued that they were given the impression that they could wade wherever they went in the lagoon and would therefore, in the absence of a warning, be liable to panic if they suddenly found themselves in deep water. This submission was rejected by the court, there was a reference to watersports in the brochure suggestive of the fact that water in places would be out of wading depth. In addition, a safety notice was pinned to a notice board at the resort warning in relation to strong currents and cautioning against swimming in parts of the lagoon.

In the 10 years preceding the accident no guest had reported any problems with the lagoon and despite 75,000 visitors, there had only been two deaths, which were unrelated to the depth or any feature of the lagoon. The court was satisfied that adult holidaymakers like Mr and Mrs Jones must be taken to know that the seabed is uneven particularly as the deep blue of certain areas of the lagoon ought to have made the changes in depth apparent.

The court was not persuaded that a specific warning was reasonably necessary and after consideration was satisfied that even if the defendant had made itself aware of the characteristics of the pool, those characteristics were not such that it would have been under a duty to warn Mr and Mrs Jones about. As such their allegation of breach of Regulation 15 failed. Their claim under Regulation 4 (a duty not to provide misleading information in brochures) also failed.

Practice points

  • The starting point is that if the hotel/local supplier has provided less than the claimant was entitled to expect, the defendant is likely to be liable under the Regulations.
  • The contract entered into and any associated literature/brochure are key to determining what the claimant was entitled to expect.
  • Is expert opinion on liability needed? Engineers, local specialist or local architects?
  • Consider a claim for contribution/indemnity against the service provider.