PERSONAL
INJURY – PACKAGE HOLIDAY CLAIMS
Duncan
McNair
Under the common law, a person
injured on holiday abroad would face serious difficulties in making a claim, if
the failure was not the direct responsibility of the company she booked her
trip with. Not only would she have to cope with a language she may not
understand, but she would also have to instruct lawyers in a faraway place,
somehow carry through with the litigation, and deal with a legal system she –
or her English solicitors – might be completely unfamiliar with.
All that has changed with the
Package Travel, Package Holiday and Package Tours Regulations 1992. Such a
claimant can bring an action directly against her tour provider back home under
the Regulations, even if her injuries were caused by someone for whom the
provider had only indirect responsibility.
This article sets out how such
claims can be brought or defended successfully. It is aimed at those who have
never encountered such a claim before.
THE NATURE OF A CLAIM UNDER THE
REGULATIONS
Regulation 15 sets out the
requirements for civil liability. It is worth noting that Regulation 15
provides only for liability in relation to proper performance of the contract.
In other words, a claim will always be in contract rather than tort.
Although this might be expected to
cause some problems in relation to parties, the Regulations extend liability a
considerable way beyond the normal position at common law, as will be seen.
WHO CAN BE A PARTY?
A person can make a claim under the
Regulations if she is a ‘consumer.’ That definition is wider than would
normally be the case. A consumer is not only the person who makes the contract
for a package holiday (the ‘principal contractor’), but also any person on
whose behalf the principal contractor makes the contract, as well as a
transferee.
This means that a person can make a
claim even if he was not in fact a party to the holiday contract – for example,
spouses and children of the principal contractor – provided the principal
contractor made the contract on their behalf. This codifies the common-law
position set out in Jackson v. Horizon Holidays [1975] 3 All ER 92.
The consumer can sue the ‘other
party’ to the contract. The Regulations define ‘other party’ as the organiser
or retailer of package holidays with whom the contract was made. A party can be
sued as an organiser if it just assembled the package, even if the package was
sold by a separate retailer.
WHAT AMOUNTS TO A PACKAGE HOLIDAY?
A package holiday, as defined in the
Regulations at 2(1), requires the following to be satisfied:
- Any two of transport,
accommodation and other services ancillary to tourism must be provided;
- Sold or offered for sale at an
inclusive price;
- Services to be provided over a
period greater than 24 hours, or the accommodation is overnight.
A holiday can be a package even
though the provider submitted separate accounts for different aspects of it. In
other words, if the organiser agreed to provide flights for £200, and
accommodation for £400, and invoiced the two separately, then the result would
probably be a package. Further, a package assembled at the consumer’s specific
request is still a package.
However, there is a de minimis rule as to what amounts to a service being provided: Keppel-Palmer v. Exsus
Travel Ltd. [2003] All ER (D) 183 (Jun). If the service provided is so
trivial compared with the rest of what was provided, it does not trigger the
Regulations. In Keppel-Palmer an airport transfer was held to be de
minimis in relation to holiday accommodation costing some £88,000, and the
contract was not subject to the Regulations.
LIABILITY
The provisions regarding civil
liability are set out in Regulation 15. The provider is liable to the consumer
for proper performance of the contract, even if those obligations were to be
performed by other providers of services. The provider is responsible for the
acts and omissions of anyone performing services under the contract – such as
hotels, drivers, or restaurants. Even if the provider exercised reasonable care
in selecting the sub-contractor, the provider remains liable for any failure.
The consumer could still claim
against the sub-contractor directly, of course.
Because liability is only
contractual, the consumer is restricted to claims for breach of contract.
However, there is an implied term in a holiday contract that services will be
provided with reasonable care and skill: Hone v. Going Places Leisure Travel
Ltd. [2001] EWCA Civ 947. There is no strict liability, unless the contract
specifies an absolute requirement, as in Mawdsley v. Cosmosair plc [2002]
EWCA Civ 587), where a statement in a brochure that a hotel possessed a
lift was found to be such a term.
AVOIDANCE AND EXCLUSION OF LIABILITY
Regulation 15 sets out (not very
clearly, it must be said) situations in which the ‘other party’ is not liable
to the consumer. They are if:
· The failure
is attributable to consumer;
· The failure
is attributable to an unconnected third party and unforeseeable or unavoidable;
· The failure
is due to:
o Unusual and unforeseeable
circumstances beyond the control of the ‘other party’, the consequences of
which could not have been avoided if all due care had been exercised, or
o An event which the ‘other
party’ or supplier of services could not foresee or forestall with all due
care.
These are not dissimilar to the
common-law provisions which govern liability for breach of contract.
Regulation 15 also restricts the way
the contract can limit or exclude liability. For a PI claim, the contract
cannot limit or exclude liability at all. The one exception is if this is ‘in
accordance with international conventions.’ In practice, this means the Warsaw
Convention regarding air travel claim. However, the contract must incorporate
the Convention for the ‘other party’ to gain protection under it. If not, the
consumer could sue the ‘other party’ for the full amount of damages, even if
the airline’s liability was limited.
DAMAGES
There are two unusual heads of claim
which should almost always be pursued: loss of enjoyment, and diminution in
value of the holiday. The diminution in value should reflect what the claimant
got compared to what she paid for. The courts frequently base the calculations
on the proportion of holiday ruined – the ratio of bad days to total days,
multiplied by the cost of the holiday.
CONCLUSIONS
This is a basic guide to package
holiday claims. A reader who has never dealt with them before should now have
sufficient background knowledge to deal with such claims.
