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