PI Brief Update

The development of the duty of care owed by a tour operator to a holidaymaker

It has hitherto been beyond doubt that should a holidaymaker sustain injuries during the course of a package holiday caused by a breach of duty by the tour operator or local supplier, he or she only has a cause of action pursuant to the Package Travel Regulations - which in essence, is a statutory claim for breach of contract. The holidaymaker does not have a separate and additional cause of action in tort. However, in two recent cases there appears to have been a slight shift in this analysis such that the ground may be opening up for holidaymakers to bring claims against a travel agent or tour operator in tort.

The first of these cases is Parker v TUI [2009] EWCA Civ 1261. Mrs Parker sustained injuries in an accident that occurred just after she had completed a toboggan run in Austria. At the time she was on a package holiday supplied by the defendant but had purchased a ticket for the toboggan excursion separately in resort. The defendant’s reps had accompanied Mrs Parker and others on the bus which took them to the tobogganing event. The reps had briefed the participants on the bus and at the top of the mountain that at the end of the run there was a flashing red light at which point they must dismount their toboggans and walk the rest of the way down the mountain. The reps spread themselves out among the participants during the event. The accident occurred when Mrs Parker remounted her toboggan at the end of the run and careered into straw bales which were hard and frozen.

Although much of the argument at trial and on appeal centred on whether Mrs Parker had a contract with the defendant or with the local supplier, it was argued that the defendant was nonetheless liable in tort. Mrs Parker argued that the defendant was negligent because amongst other things, it had not provided reps to stand at the end of the toboggan run. If they had been there, they could have helped Mrs Parker down to the bottom of the mountain or at least stopped her from remounting the toboggan.

It was argued by the defendant that the tour operator owed no duty of care to the claimant. This argument was firmly rejected by the Court of Appeal. It found that there was a duty of care, which had been created by the assumption of responsibility on the part of the defendant - specifically, that local reps had accompanied Mrs Parker and others on the run and had given them instructions and directions as to how to complete the run safely. Ultimately, the Mrs Parker’s appeal failed because the scope of the duty contended for was too high. There were also insurmountable difficulties with causation.

Nonetheless, Parker is clear authority for the proposition that in certain circumstances, regardless of the contractual nexus between a tour operator and holidaymaker, a tour operator may owe a duty in tort to the holidaymaker. The advantage of this from the holidaymaker’s point of view is that if the excursion contract is with the local supplier, he or she has a remedy against the tour operator. Whether there has been an assumption of responsibility depends on the facts of each case. In many excursion cases it is likely that there has been an assumption of responsibility on the part of the tour operator - for example by the carrying out of a risk assessment or giving directions in relation to safety issues. However, there is highly unlikely to be a tortious duty owed in cases where a local rep has simply sold tickets as agent on behalf of a local supplier - save for any narrow duties owed arising from its position as agent.

The second case is Harrison v Jagged Globe Limited, unreported, Central London County Court 14 April 2011. The facts of this case are unusual as it involved Sir Ranulph Fiennes and a ’staged’ accident performed during the course of an expedition to Peru. The defendant tour operator specialising in mountaineering expeditions assisted with a planned expedition to Peru. The defendant asked Sir Ranulph whether he wanted to be provided with a leader on the expedition, which he declined. However, he was provided with local guides who were to assist with acclimatisation, altitude training and training in climbing techniques. Sir Ranulph invited the claimant to join him on the expedition. During the expedition, the claimant agreed to take part in a staged fall down a crevasse and subsequent rescue. There were two staged falls - both of which resulted in injuries.

The local guides supplied by the defendant had assisted with the staged falls. The court found that the provision of assistance with the staged falls did not form part of the package holiday contract since it was not contemplated until well after the contract had been concluded. However, the local guides supplied by the defendant had assumed responsibility for the staged falls in agreeing to assist with them and in so doing had imposed a tortious duty on the defendant to provide this assistance with reasonable skill and care. The court found that the first staged fall had been poorly managed and executed and there was breach of duty in relation to it (albeit there was a reduction for contributory negligence by 40%). However, in relation to the second fall, the claimant had accepted the risk of injury, which would have been obvious from the first fall and the defendant was not liable on account of the principle volenti non fit injuria. Essentially, liability was established against the defendant because of the assumption of responsibility of the local guides who had been supplied by the defendant as part of the package holiday contract.

Both decisions reflect an important development in travel law. They open up the potential for claims to be brought against a tour operator in tort for its negligence or that of its local suppliers, whereas previously claims have been almost exclusively contractual in nature. It remains to be seen how far this approach will be extended. Although the courts may readily find there has been an assumption of responsibility and therefore that a duty of care is owed to the claimant by the tour operator, practitioners ought to keep in mind that the courts are unlikely to find there has been a breach of duty where the scope of the duty contended for is too high, as was the case in Parker. As Longmore LJ commented in Parker, to allow Mrs Parker’s appeal would effectively ’encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about".

CLARA JOHNSON
August 2011