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Horror of Injury Abroad: What Are My Remedies?
by Padraig Walsh

Introduction
If you are thinking of going on holidays, then read on, because your rights have been improved as a result of the passage of new legislation. Now, a tour operator can be held liable for the improper performance of contractual obligations of the package tour. This has very important implications for you, the consumer of package holidays. Consider the number of things that can go wrong on a holiday:- food poisoning, a road traffic accident because of the negligence of a tour bus driver, gas poisoning, assault and battery, theft of baggage, personal injury, inadequate standard, failing to comply with the terms of the brochure. In the past, proceedings would have to be taken outside of Ireland for actions involving negligence and injury. Now, a new piece of legislation enables this action to be taken in Ireland.

Background Information
The passing of the Package Holidays and Travel Trade Act 1995 only affects those engaged in package holiday operations. Remember, there is a distinction between a tour operator and a travel agent. It is the tour operator who actually selects and arranges the component facilities such as hotels and flights; the tour agent merely sells the operator's package holiday. Your contract is with the tour operator, and not the tour agent.

The Package Holidays and Travel Trade Act 1995
The 1995 Act introduces many important changes in the liability of tour operators. The chief area of concern in this article is the provisions relating to the liability of the tour operator in negligence.

A. Extent of Liability
Essentially the aim is to make the tour operator responsible for all the elements of the package, and therefore liable for anything that goes wrong with it. The tour operator is now liable to you for the proper performance of his obligations, regardless of whether another person actually performs the obligations. In a recent Irish case, a lady slipped on a ramp between the buffet area and the terrace bar area of the hotel in which she was staying, sustaining a severe injury to her ankle. Although the tour operator was not held accountable under the old law - it was stated that the tour operator's duty did not extend to everyday management and supervision of the hotel - there is little doubt that this decision would be different under the new legislation.

B. Defences
The tour operator is now limited to very specific stated grounds on which he may be exonerated:-

(i) The improper performance of contractual obligations was not his fault, or the fault of the retailer or supplier of services. It is now more difficult for the tour operator to establish no fault, than it is for the holiday maker to establish fault. It should be remembered that in spite of the above, not every claim by a holiday maker will succeed. The Courts will look at the content of the promises in the brochures, and will not entertain any claims based on the individual expectations of the holiday maker.

(ii) The improper performance of contractual obligations was the fault of the holiday maker. Obvious examples of where the tour operator will be able to avail of this defence are where * the holiday maker fails to arrive in time for a flight, * fails to obtain a visa which he has been informed in good time was necessary, or * contracts food poisoning as a result of eating at a roadside cafe that does not comprise part of the package holiday.

(iii) The improper performance of contractual obligations was the fault of an unconnected third party and were unforeseeable. Airlines, bus operators, other carriers, and hotels whose services and facilities feature in the brochure are connected parties. The same applies to the people who supply them, such as butchers, suppliers of spare parts, the electricity company and so on. Therefore, a failure on the part of any of these parties renders the tour operator liable. Who are unconnected third parties? Other holiday makers, general members of the public, the police, and so on, are unconnected third parties. Thus, if during the course of your holiday, you sustain personal injuries arising from an assault from a member of the public (or of your tour!), generally the tour operator won't be liable. The failure in performance must also be unforeseeable, an in law, unforeseeability has a specific meaning. To ascertain whether an event is foreseeable ask yourself the question:- is the event probable as opposed to merely possible? Thus, if your tour involves a midday visit to Windsor Castle, it is improbable, though not impossible, that you will be assaulted, but in the unlikely event that your tour involves a midnight visit to Soho, it is probable that you may be assaulted there.

(iv) The improper performance of contractual obligations was caused by force majeure. Force majeure refers to acts of God. Examples, depending on the location, may be forest fires, flooding, riots, landslides, earthquakes, and so on.

C. Implied Term
A term is now implied in all contracts between the tour operator and the holiday maker, imposing an obligation on the tour operator to render prompt assistance to the holiday maker in the event of failures in performance due to unconnected third parties or force majeure. This duty will no doubt fall on the shoulders of the local representative. The duties of the local representative are generally to meet holiday makers upon arrival, assist in transportation to and from the hotel, and deal with any queries or complaints. In a recent case, a tour operator was held liable due to his local representative's failure to act on the complaint of a member of his tour that a Morroccan waiter was persistently pinching the tourist's posterior. You might say that this amply illustrates the extent of control required.

D. Limitation of Liability
The tour operator can't duck these duties. Also, the tour operator is barred from attempting to limit the extent of his liability arising from death or personal injury, and damage caused by the wilful misconduct or gross negligence of the organiser. However, it is possible for the tour operator to include a term in the contract limiting the amount of compensation payable as a result of the non-performance or negligent performance of the services involved in the package.

Conclusion
Just remember if the nightmare of injury abroad comes to pass, you have new rights and remedies, and there's valuable help available from your local Solicitor.

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