24 July 2018
Increasingly cases are landing on my desk from prospective Claimant clients who have injured themselves whilst on holiday. The first question any litigator must pose to the new client is whether or not they travelled on a package holiday booked through a travel agent/tour operator. If they did, pursuing their claim is a much more straightforward process than if they had booked the different components of the holiday themselves and separately.
The reason for this disparity in position comes down to The Package Travel, Package Holidays and Package Tours Regulations 1992.
In the UK anyone who sells you a package holiday is obliged to comply with these Regulations which were brought in to establish the duties and responsibilities of tour operators. They also outline what recourse is available to the holiday consumer if something goes awry whilst they are on holiday.
In order to be afforded protection from these Regulations, your holiday must meet the following tests
- (a) It must have been sold or offered for sale in the United Kingdom.
- (b) It must include at least two of the following components
- The combination of components must be pre-arranged.
- The combination must be sold or offered for sale at an inclusive price.
- The service must cover a period of more than 24 hours or include overnight accommodation.
- Other tourist services not ancillary to transport or accommodation and accounting for a significant proportion of the package.
Almost half of British people who holiday abroad do so on a package holiday. This figure drops to approximately one-third for travellers from the older generation.
So what happens if you are injured whilst on holiday?
The tour operator is liable to the customer for any damage or injury caused to him/her by the failure of the tour operator to perform the contract properly.
Under Regulation 2(1) of the Package Travel Regulations 1992 hotel owners and tour operators have a duty of care to safeguard the health and safety of their customers. They can be held accountable under the Regulations if your accident occurred whilst on the hotel’s premises or whilst you were using the hotel’s facilities. Liability will attach to the tour operator provided that the accident occurred due to some sort of defect on the premises or negligent act/omission on the part of the hotel. Conversely they will not be responsible for injuries sustained whilst you are on a sightseeing excursion or if you trip and fall on an uneven pavement in the local town centre.
Please note that the local standards will be considered when determining whether or not the accommodation fell short of what was reasonable. For example a hotel will not be held accountable if you fall down a staircase which has no handrail if the local regulations in that country do not require hotels to have such a handrail in situ.
One of the key benefits of the Regulations is that they allow you to pursue the personal injury claim in the country where you booked the holiday (in the UK) as opposed to the country in which you were injured.
What can you claim for?
Generally you can claim for compensation in 4 categories:-
- Personal Injuries (pain and suffering)
- Out of pocket expenses reasonably incurred. These can include taxi fares for travel to a hospital, the cost of painkillers purchased from a pharmacy in your holiday destination, loss of income if you are unable to work due to your injuries and medical expenses incurred whilst you were away.
- Loss of enjoyment of your holiday.
- Loss of value of the holiday you actually experienced when compared with the value of the holiday you would have experienced had it not been for the accident.
What is your position if you were injured on a holiday which was not booked as a package through a tour operator?
If an injured holiday maker cannot avail of the 1992 Regulations the option available to them is to invoke paragraphs 7 & 8 of Schedule 4 of the Civil Jurisdiction and Judgements Act 1982 which allows for a potential breach of contract claim to be brought against a negligent provider of holiday accommodation in this jurisdiction. This is not the easy route home generally available under the Package Tour Regulations. Essentially the claimant has to establish that the hotel was in breach of contract in supplying the accommodation in question.