Serious accidents happen abroad but how do you deal with a serious claim where the laws are different and you don't speak the language or understand the procedures and rules?
The Package Travel, Package Holidays and Package Tours Regulations 1992 introduce a right to pursue a claim against a UK tour operator, as an agent, for accidents which take place during a package holiday. In other words, the UK tour operator will be held liable for the actions and omissions of any suppliers of services under the package holiday contract, whether that is a hotel, airline or company providing coach or taxi transfer facilities. Therefore, in the event any of these suppliers are negligent, the UK tour operator may be held liable to compensate the holidaymaker, avoiding any difficulties which may be encountered in pursuing a claim against an unknown foreign company.
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.
In order to be successful in recovering compensation as a result of a holiday injury, it is necessary to show that the injuries sustained as a result of the accident were attributable to the fault of someone supplying services as part of the package holiday.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 causing hotel guests to become unwell as a result of food poisoning.Further examples might include the driver of a coach being at fault for causing a road traffic accident whilst transferring holidaymakers to their accommodation, or airline staff failing to secure overhead baggage in an aeroplane which consequently fell injuring a passenger.
The effect of the Regulations, is that the UK tour operator becomes liable for all these accidents, although they remain entitled to subsequently seek compensation from the foreign service provider.
In considering whether the hotel, coach company or other foreign company were at fault or negligent whilst providing services, the 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.
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. Many claims fail because of inadequate or non existent evidence of standards.
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. 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.