Holiday ends, claim begins
District Judge Geoffrey Martin puts litigators in the mood for the holiday season
In holiday claims, the normal principles of agency, liability and causation apply.
All that the Package Travel, Package Holidays and Package Tours Regulations 1992 do is to extend (occasionally) the number of people for whose acts or defaults the principal becomes responsible.
Do not read too much into them.
You must still prove negligence or breach of contract by someone in the chain for whose actions the tour operator or travel agent is responsible.
Even if you succeed on liability, you must still prove that the fault caused or contributed to the loss suffered.
Agency
Hone v Going Places Leisure Travel Ltd [2001] All ER (D) 102 (Jun) is welcome authority that the regulations do not impose strict liability.
Going Places sold Mr Hone a package but did not tell him the name of the operator until after the contract was made.
Where the principal is undisclosed at the time of contracting, the contract is made with the agent, and he is personally liable and entitled on it.
Therefore, Mr Hone could choose to sue either the principal or the agent.
As the principal was insolvent, he sued the agent.
He was entitled to do so under the basic principles of agency.
He did not have to rely on the regulations.
A retailer is liable only if it is agent for an undisclosed principal or it provides the package, whether solely or jointly with another.
If a retailer is only an agent, it would be well advised to make that clear, and to identify the principal, before concluding the contract on its principal's behalf.
Liability
On Mr Hone's flight home, the aircraft was diverted because of a bomb scare.
The passengers were evacuated using emergency chutes.
A large lady in front of Mr Hone got stuck at the bottom of the chute.
He did not notice this until he was half way down and picking up speed.
Having collided with her rear, he was promptly struck from behind by his wife.
Fortunately, she was less substantial, but his back was injured.
Trying to help the large lady, he caused further injury to his back.
There was no evidence of undermanning or breach of proper procedures.
It was not proved that the accident was anyone's fault.
It was argued that regulation 15 makes the organiser or retailer of the package strictly liable for the proper performance of the contract.
The Court of Appeal made it clear that the regulations merely require 'proper performance' of the contract.
That means no more, and no less, than meeting the contractual obligations.
The question is therefore: what did the contract require? An express term may impose strict liability, but you will not find many of those.
There can be no 'improper performance' of the contract unless that standard is breached.
Regulation 14 implies terms into every contract that where, after departure, a significant proportion of the services contracted for is not provided, the organiser will provide a suitable alternative at no extra cost, or transport home, and compensation.
It appears to provide greater protection.
In fact it does not.
In Charlson v Warner [2000] CLY 4043, exceptional weather made skiing impossible.
The judge found that the retailer had exercised reasonable care and skill in obtaining weather forecasts, and that the weather was so extreme that it could not have been foreseen.
He reasoned that the force majeure provisions in regulation 15(2)(c) apply equally to regulation 14.
The defendants were not liable.
Whose standards?
Proper performance is judged by the standards of the place where the default occurs.
Wilson v Best Travel [1993] 1 All ER 353 survives the regulations and was followed in Logue v Flying Colours Ltd [2001] 6CL 454.
In each case the claimant was injured when a pane of glass shattered.
The glass complied with local but not British standards.
There was no failure to exercise reasonable skill and care.
Performance is also judged by the nature of the holiday.
In Williams v First Choice Holidays and Flights Ltd [2001] 8CL 437, the claimant on a 'wild, exciting, youth-oriented holiday' joined enthusiastically in a Greek plate smashing party, and was injured by a shard from a china plate.
Alcohol was not compulsory; alternatives were available.
Reasonable steps had been taken to warn guests of the risks, to ensure that they smashed only plaster plates provided for the purpose, and did so only in a designated area.
The claim failed.
In Buhus-Orwin v Costa Smeralda Holidays Ltd [2001] 11CL 360, the tour operator promised an opulent luxury holiday and provided a rat-infested villa.
The defence appears to have been that they were not rats, but mice; and all houses in that area are infested with them.
It may not have been difficult for the court to find a lack of reasonable skill and care in selecting the holiday accommodation.
In personal injury claims, the test is the same.
In McRae v Thomson Holidays Ltd [2001] 5CL 572, a poolside chair collapsed without warning or any indication of any defect.
The retailer had not failed to exercise reasonable care and skill.
What the carrier provides is just as important.
In Horan v JMC Holidays Ltd (2002) The Times, 16 April, the tour operator was held liable for putting a 6ft tall customer into a seat only 29ins from the seat in front on a long-haul flight.
Will this decision have a significant effect on the travel industry? Probably not.
JMC contracted to provide flights of a reasonable standard, which on this particular flight it failed to do.
Agents always have to exercise reasonable skill and care in selecting the carrier.
They should know which airlines have cramped seats, and can give advice to tall customers.
Causation
In Mawdsley v Cosmosair plc (2002) LTL, 18 April, CA, Ms Mawdsley was injured descending a long staircase with a pushchair.
The hotel had been advertised as having a lift, but she could only reach the restaurant using the staircase.
On the facts, the statement about lifts was held to be a breach of implied condition, and a misrepresentation.
In the absence of strict liability, the court went on to consider causation and applied the 'but for' test.
But for the misrepresentation, she would not have been there.
It seems difficult to distinguish this case from Quinn v Burch Brothers [1966] 2 All ER 283, where the defendants provided the opportunity but not the cause for the injury - but the Court of Appeal managed to do so.
Preparation
Without evidence of a failure to exercise reasonable skill and care and causation, the claim will fail.
You may need expert evidence, for example, as to the standard of care required of a ski instructor.
Photographs can be useful, if not used selectively.
Ask to see them all.
There is no holiday claims protocol yet, but it is sensible to disclose your case to the proposed defendant as early as possible.
District Judge Geoffrey Martin sits at Leicester County Court
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