19th June 2015

Burst Packages: Travel safe this summer!

As the holiday season comes round again, and thousands of people pack their sunglasses and shorts to depart for the magical climes of Ibiza and Lanzarote, personal injury lawyers watch from behind their net curtains, secure in the knowledge that a lot of these happy holidaymakers will come back home injured.

Summer Holiday Chaos 

A collective madness seems to come over Brits abroad.  People normally noted for their highly developed aversion to all risk will suddenly fling themselves off sky-high diving boards, run across busy roads whilst looking in the wrong direction, and lean backwards over balconies to get that special selfie.  People who fail to take proper care for their own safety, and who are injured as a result, have only themselves to blame.  But many people are injured abroad on holiday through somebody else’s carelessness, often in their hotels, or whilst engaged on activities arranged by their hotel.

Before 1992, claiming compensation arising out of a holiday abroad was a nightmare.  First, there was the language difficulty.  Then, there was the problem of finding out the identity of the exact person or company who was legally responsible.  Finally, if one’s letters of claim were ignored (they usually were), the injured person had to find a foreign firm of lawyers who might be prepared to sue.  Little wonder that most people preferred to lick their wounds and forget about it.

Some progress was made in 1992 when Parliament passed the Package Travel, Package Holidays, and Package Tour Regulations.  These stated that the supplier of a package holiday was liable directly to the customer for the proper performance of the items in the package which the customer had paid for.  So, if somebody buys a package holiday including hotel accommodation, and is injured in that hotel, he should be able to claim compensation direct from the supplier, such as Thomsons, or Cooks.  He does not have to worry about engaging foreign lawyers to claim against the owners of the hotel.

Any such accident must still be due to the hotel’s fault, however, as was shown in last year’s case of Lougheed v On The Beach Ltd.

The Case

Mrs Lougheed bought a package holiday from On The Beach Ltd.  Whilst walking down a flight of stairs in her hotel she slipped on some water and fell, fracturing her ankle and shoulder.  Back home, she claimed compensation from On The Beach, alleging that the hotel had been careless in not clearing up the spillage on the stairs, and that On The Beach were liable to pay because they were the tour operators.

At first, she did well.  The judge at the trial found that the puddles on the stairs had most likely come from a user of the nearby swimming pool, and noted that the hotel had failed to give any evidence of the steps they had taken to ensure that floors and stairs were not left in a wet condition.  It was therefore assumed that the hotel must have been negligent, and compensation was awarded.

Sadly, Mrs Lougheed’s triumph was short lived.  On The Beach appealed, and the appeal court overturned the decision.  It was not correct, they said, to demand that the hotel explain the steps they had taken to ensure that floors were not left in a wet condition, and to assume that they had been careless in the absence of any such explanation.  The burden was always on the claimant to prove that the hotel was negligent.  In this case there was no evidence that water was likely to be found on the stairs, so it would be unfair to require the hotel to have a system to remove it.

Mrs Lougheed’s legal team tried another argument.  They said that although the hotel might have lived up to local safety standards, British standards were higher, and Mrs Lougheed was entitled to expect that British standards of safety would apply.  The appeal court had no difficulty in rejecting that argument.  Lord Justice Tomlinson said that British holidaymakers “did not travel abroad in a cocoon”.  Once abroad, we are subject to local safety standards, and British standards do not apply.

The lesson of all this is simply that whilst the Regulations make it simpler to claim compensation for many holiday accidents, holidaymakers should still take care while abroad.

Richard Godden 
Partner – Dispute Resolution/Personal Injury 
@The_PIMan
www.blackadders.co.uk

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