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European Court of Justice: no obligation to reimburse patient for costs of unscheduled hospital care during a temporary stay in another Member State

Following a complaint from a person insured under the Spanish national health system who had had to be admitted to hospital unexpectedly during a stay in France and who, on his return to Spain, was refused reimbursement of the portion of the hospital costs which, in accordance with French legislation, he had been left to pay, the Commission decided to bring action against Spain for failure to fulfil obligations. The Commission maintains that the Spanish legislation is in breach of the principle of freedom to provide services, since it refuses persons insured under the national health system reimbursement for that portion of the costs of care which is not covered by the institution of the Member State of stay. In that way, the effect of the legislation in question is to restrict not only the provision of hospital care, but also the provision of tourist or educational services, the obtaining of which can be the reason for a temporary stay in another Member State.

In its judgment in Case C-211/08 - Commission v Spain, delivered June 15, 2010, the Court of Justice held that the freedom to provide services encompasses the freedom of an insured person established in a Member State to travel – as a tourist or student, for example – to another Member State for a temporary stay and to receive hospital care there from a provider established in that Member State, where the need for such care during that stay arises because of his state of health. Nevertheless, the Court considers that, viewed globally, the Spanish legislation cannot be regarded as restricting the freedom to provide hospital care services, tourist services or educational services.

The fact of imposing on a Member State the obligation to guarantee to persons insured under the national system that the competent institution will provide complementary reimbursement whenever the level of cover applicable in the Member State of stay in respect of the unscheduled hospital treatment in question proves to be lower that that applicable under its own legislation would ultimately undermine the very fabric of the system which Regulation No 1408/71 sought to establish. In every such case, the competent institution of the Member State of affiliation would be systematically exposed to the highest financial burden, whether through the application of the legislation of a Member State of stay under which the level of cover is higher than that provided for under its own or through the application of its own legislation in the contrary situation.

The Court therefore dismissed the action brought by the Commission.

Source: ECJ press release No 56/10 of June 15, 2010

Full text of judgement available here>>.

England: no tour organizer liability for toboggan accident

Plaintiff (P) and her family booked a skiing holiday at Mayrhofen, Austria with defendant (D). The package included the hotel and the flight but made clear that ski equipment, ski passes and any lessons had to be booked separately. The internet brochure stated that tobogganing was available at the resort. On the third day P asked D's representative at the resort who had welcomed the group on their arrival if a tobogganing event was suitable for their party of adults and children, particularly P's seven year old son Joe and whether it was available that evening. D's representative replied that D had no spaces left. She suggested that she would contact another tour operator called Inghams and get the family party on the event with them which she then did.

The event itself was organised by an Austrian company called Action Club Zillertal (“ACZ”) who took bookings from members of the public as well as from tour operators such as D.The bus from the hotel was provided by ACZ who handed out a docket or ticket to those on the bus entitling its passengers to obtain a toboggan and a ride on the gondola (which took the participants up to the beginning of the toboggan run). Four representatives of D were on the trip and at the toboggan run spread themselves out among the participants. The fast participants went first, the slower ones following. P and a friend arrived safely at the end of the run (although they could not stop until they had passed a red light indicating the end of the run). They got off their toboggan a little beyond the proper end of the run.

After the red light there was a prominent sign stating “Ende der Rodelbahn”. After this sign only just before a snowbank, the road went round a left hand bend quite steeply downhill towards the cable car station and a chalet hotel which was on the right. The accident happened because P and heri friend had remounted their toboggan and came down the lower road from the end of the run to the cable car station too fast. Seeking to avoid the buildings they careered into some straw bales which were hard and frozen. P suffered severe injury to her legs.

The judge of first instance court found that the tour representatives had briefed the participants both on the bus and at the top of the mountain that there was a flashing red light at the end of the run and that they must then get off their toboggans, and walk down the rest of the way to the toboggan shed and the bus. The judge specifically found that this instruction was given several times and that P had heard it. He dismissed the claim.

Upon P's appeal, the High Court of Justice held that it was not entirely easy to determine, on the exiguous evidence before the judge, whether P had a contract with D in relation to the toboggan run.Had there been a contract, the only relevant term would be an implied term that D would exercise due diligence. However, D had assumed responsibility to their customers, and owed them a duty of care in tort.

Anyway, it was not the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side. So to hold would only 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.

Case Details: Susan Parker v. TUI UK Ltd [2009) EWCA Civ 1261; full text of judgement available here>>.