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Holiday Claims

on Friday, 20 July 2018.

For most of us, summer holidays are the highlight of our year - but for some they are a nightmare that continues long after returning home.

Accidents and injury on holiday are difficult enough to cope with in this country, but what if they happen abroad - would your clients know how to get redress?

Ideally, your client will have complained to the hotel or service/accommodation provider at the time and given them the opportunity to investigate it. 

For holidays booked prior to 1 July 2018, a package holiday is defined as a pre-arranged combination of the following:

  • Transport
  • Accommodation
  • Other tourist services not related to either of those two above and accounting for a significant proportion of the package

New rules came into force for holidays booked from 1 July 2018, from which time the Package Travel and Linked Arrangements Regulation 2018 apply.

Under the new Regulations, a package holiday is probably a package if:

  • it was advertised as a package or all-inclusive deal.
  • the client bought the holiday for an inclusive or total price.
  • the client bought more than one part of their holiday, such as flights and accommodation, from one company with one payment.
  • after booking one part of the  holiday, the client was prompted to buy another and didn’t have to enter any of their personal or payment details again and they completed this all within 24 hours of the first booking.

A linked travel arrangement occurs when your client books one part of their holiday and is then prompted to click through to another trader to book further services but personal information and payment details are not transferred and a separate contract is entered into. Again, this must take place within 24 hours of the first booking.

Who Can Your Client Sue?

The client will need to check their holiday brochure and booking paperwork for the terms and conditions which apply to their holiday.

The Regulations impose liability on "the organiser", "the retailer" and "the other party" to the contract. Usually the organiser will be the tour operator but it could even be someone who frequently arranges weekends away for friends if transport accommodation or tourist services are provided. Travel agents are certainly in the frame. The retailer is the person who sells the package.

What Are They Liable For?

The organisation being sued will be liable for damage caused by failing to exercise reasonable skill and care in providing the services under the contract ie the holiday/excursion. They will be liable if the standard of service provided fell below the safety standards in place in the country where the accident occurred and it is for the injured party to prove this.

Compensation can be claimed for the injury, loss of enjoyment of the holiday and financial loss caused by the injury, including loss of a bargain or drop in value of the holiday.

What If the Injury Happened Outside the Resort - Excursions or Activities?

It will depend on the small print in the conditions - excursions are often included as part of the package holiday services, if provided by the tour operator.

But beware - there is no liability for obvious dangers - in the case of Evans v Kosmar Holidays (2007), the Claimant dived into the shallow end of a swimming pool, hitting his head on the bottom, suffering serious injuries. There was no duty on the tour operator and/or the service provider as the risk was obvious and known by the Claimant. 

Who Else Might Be Liable?

The Regulations will usually provide remedies for the injured Claimant, but it is always worth considering whether there is also a claim against the service provider, eg hotel owners should the Regulations not apply.

And Finally... A Word on Funding the Claim

Travel insurance will not necessarily cover legal costs as many policies exclude claims under package holiday Regulations.  

Our personal injury specialists, Augustines Injury Law can advise your client on funding and will be willing to act on a "no win, no fee" agreement in appropriate cases.

If you would like fee share for a personal injury referral, please remember not to send the client's details to us and instead ask them to contact us on 0845 226 8445 or vwvapproach@vwv.co.uk and to tell us that you suggested us. If you don't want fee share, please go ahead and send their contact details to us. For further guidance please check the Personal Injury leaflet here.



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