Lambert v Travelsphere [2005] CLYB 957
L had booked a package tour in January 2003 which included flights to Beijing, a tour of China and a three day stopover in Hong Kong on the way back. In March that year the World Health Organization issued a warning about SARS for those travelling to Hong Kong. They and the UK Department of Health strongly advised against travel there. On 8 April T wrote to L stating that some of the itinerary had been changed but that the Hong Kong stopover may still take place. L cancelled on 12 April and claimed a full refund including the cancellation fee chargeable under T’s terms and conditions. On 23 April, T cancelled the tour and fully refunded other holidaymakers under Regulations 12 and 13 of the Package Travel Regulations.
T argued that it was entitled to retain the cancellation charge as, at the time that L cancelled, T’s notice of 8 April was still in effect and it had expected to provide the tour including the stopover in Hong Kong. Furthermore, even if Hong Kong had been excluded it was not an essential term of the contract.
On appeal it was held that the letter of 8 April was merely a statement that T might be constrained to alter the tour, not that T was actually altering it. Any uncertainty in L’s mind was due to the publicity concerning SARS and not because of the letter of 8 April. Thus, Regulation 12 did not apply.
The court went on in obiter, to say that the Hong Kong stopover was an essential term. Also for T to be considered as “constrained” to alter the terms meant that it had to be absolutely inevitable and unavoidable.
"Sodalem esse societatis quae dedicetur ad exercitatio legis ut produceat iter peregrationemque"
Showing posts with label England. Show all posts
Showing posts with label England. Show all posts
Friday, July 09, 2010
England: Agency Law
Moran v First Choice Holidays & Flights Ltd. [2005] EWHC 2478
C was injured when she fell off a quod bike being driven by her husband. The quad bike was provided as part of an excursion purchased at the resort in the Dominican Republic. The husband had failed to control the bike and it veered off the road, descending down a drop of 13-14 feet. The court held that F was liable as it had acted as the undisclosed agent of the company providing the excursion.
C was injured when she fell off a quod bike being driven by her husband. The quad bike was provided as part of an excursion purchased at the resort in the Dominican Republic. The husband had failed to control the bike and it veered off the road, descending down a drop of 13-14 feet. The court held that F was liable as it had acted as the undisclosed agent of the company providing the excursion.
Friday, March 26, 2010
English Travel Law Case: Coach Travel
Welsh v Messenger, 13 September 2005, [CLYB] 2875
W, aged 68, suffered serious neck and hip injuries when the coach she was travelling on veered off the road and rolled down a bank. She had not been wearing a seatbelt at the time and was thrown from the coach. In 2001, a regulation had been introduced requiring all coaches made after that date to be fitted with 3 point seatbelts. The accident occurred in 2002. The regulation did not require that passengers use the seatbelts but the Highway Code 2004 advised that passengers should do so where they were available. The 2002 version of the code contained no such advice.
M claimed that W had been contributory negligent in that she had not worn a seatbelt. W pointed out that she was a frequent coach traveller and had never been warned of the requirement to wear a seatbelt. Although she always wore a seatbelt when travelling by car, she believed that she was relatively safer in not doing so in the environment of a large car. The court dismissed the claim of contributory negligence. There was no general public perception of the importance of wearing seatbelts in coaches and W had not been negligent.
John J Downes
W, aged 68, suffered serious neck and hip injuries when the coach she was travelling on veered off the road and rolled down a bank. She had not been wearing a seatbelt at the time and was thrown from the coach. In 2001, a regulation had been introduced requiring all coaches made after that date to be fitted with 3 point seatbelts. The accident occurred in 2002. The regulation did not require that passengers use the seatbelts but the Highway Code 2004 advised that passengers should do so where they were available. The 2002 version of the code contained no such advice.
M claimed that W had been contributory negligent in that she had not worn a seatbelt. W pointed out that she was a frequent coach traveller and had never been warned of the requirement to wear a seatbelt. Although she always wore a seatbelt when travelling by car, she believed that she was relatively safer in not doing so in the environment of a large car. The court dismissed the claim of contributory negligence. There was no general public perception of the importance of wearing seatbelts in coaches and W had not been negligent.
John J Downes
Friday, March 19, 2010
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>>.
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.
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