If the family wish to pursue a damages claim for the failure do they require to instruct Greek lawyers to pursue a claim in Corfu with all of the uncertainty and linguistic barriers this may entail or is there an easier option?
Package tour operators
The Package Travel, Package Holidays and Package Tours Regulations 1992 introduced a right to claim against the UK tour operator here for negligent failures of the foreign hotelier abroad provided it is a package holiday. The rules apply to services provided not only by the hotel but also the airline or company providing transfer facilities.
What is a package holiday?
For the Regulations to apply, your holiday must be a 'package holiday.' This is the case if:
- it is provided at an all-inclusive price;
- it lasts for longer than 24 hours, or includes overnight accommodation; and
- it includes at least two of the following services:
- accommodation; or
- less commonly, another tourist service which accounts for a significant portion of the package.
It is necessary to show that someone supplying services as part of the package holiday was at fault and caused the injuries. As an example, a hotel may be at fault for failing to have a lifeguard on duty at a swimming pool, failing to properly maintain a staircase or furnishings within the hotel in a good state of repair, or where there is food poisoning. Further examples might include the coach crashing whilst transferring holidaymakers to their accommodation, or airline staff failing to secure overhead baggage in an airplane which consequently fell injuring a passenger.
In deciding whether the foreign supplier is at fault the UK court must assess whether they exercised reasonable care in the circumstances or whether they fell below the standard expected of them. In weighing this up, it is relevant to consider the local standards applicable in the country where the accident occurred. This requires evidence of regulations and practices in the foreign country which may be difficult to obtain. Most cases fail not because of a good cause for complaint but because of lack of evidence of local practices, e.g. boiler maintenance standards.
It is crucial to prove that local standards have been breached in order to be successful in a claim of this type and the best evidence of local safety standards is likely to be a person with day-to-day knowledge of the issue being examined. This may be a manager of a comparable local hotel or a Health & Safety expert who can speak to generally accepted standards in the region. Once you have provided evidence of the standards other hotels in the region work to, the final hurdle is to show that these standards have been breached in order to be successful in making a claim.
If your accident occurred whilst you were on a package holiday then you can sue in the local court where you booked the trip. If the tour company wish to contest evidence, such as how the accident happened, they will require to bring over witnesses such as staff from the foreign hotel where the accident happened. In practice this may be difficult or impossible for them to do, in addition to being costly. Therefore, provided the claimant is able to lead the required evidence, he may have a considerable advantage in being able to raise the action at home.