Holiday Accident or Injury? Did You Know You Might Be Able to Make a Claim?

Accidents and injury on holiday are difficult enough to cope with in this country, but what if they happen abroad? Once you get over the problems of getting the right treatment at the right places - and the worry of paying for it - what can you do to get compensation and refunds of the financial losses?

The first step you need to take is to complain to the hotel or service/accommodation provider. You have a duty to report the accident and give them the opportunity to investigate it. If you try to bring a claim later, you may be criticised for not doing this.

Examples of complaints leading to injury may include:

• Were there sharp edges on the steps of the swimming pool?
• Were the tiles cracked and loose in the pathway?
• Were the sports activities badly supervised or the equipment provided faulty?
• What about excursions provided by the hotel/accommodation?

Start by considering whether your claim would be covered by the Package Travel Holidays and Package Travel Regulations 1992. 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

So, for example, if the customer chooses various tourist services but from one brochure provided by a tour operator, this would be likely to satisfy the definition and be covered by the Regulations, as it would be classed as a 'pre-arranged combination'.

Who can you sue?
What are they liable for?
What if the injury happened outside the resort - excursions or activities?
Who else might be liable?
And finally... a word on funding your legal costs

Who can you sue?

You need to check your holiday brochure and booking paperwork for the terms and conditions which apply to your 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 you are suing will be liable for damage caused by failing to exercise reasonable skill and care in providing the services under the contract ie your 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 ie you, to prove this. You could do this by obtaining evidence of what standard other hotels or providers offer, or by witness or expert statements.

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?

Read the small print in the conditions as 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 your legal costs

Do not assume your travel insurance will cover your solicitor costs, as many policies exclude claims under these Package Holiday Regulations.  Augustines Injury Law can advise you on funding and will be willing to act on a 'no win, no fee' agreement in appropriate cases.

For further advice, please call Mandy Yeandle on 0117 314 5372, or our team on 0117 314 5400. Augustines Injury Law are specialist personal injury solicitors.