Sunday, 27 May 2012

What Duty of Care is Owed to you on a Holiday Excursion?

A contentious camel was the unlikely subject of the latest in a string of cases examining the tortious duty of care owed by holiday companies for accidents that happen during a holiday excursion.

Hendry and another v Kuoni Travel Ltd (Guildford County Court, HHJ Reid QC, 10 – 11 November and 16 December 2011) is about the provision of a “Camel Safari” excursion during a holiday by a tour operator to Rajasthan, India. The object of the excursion was very straightforward: the Claimants were to ride on the back of a camel. They were to set-off from their hotel. However the camel had it’s own ideas just before the Claimants reached the hotel gates.  The camel began “making sidesteps in a very jaunty manner” this in turn caused the Claimants to lose their balance and fall off, each sustaining serious injury. The Claimants were accompanied on the safari by the Defendant tour operator’s local representative who provided instructions in English.  It is also important to point out that the camel handlers or raikas spoke no English. And even more important it was confirmed that the representative used on this occasion by the holiday company had no knowledge of riding a camel and this assignment was his first and only time assisting with the excursion.

The holiday company described the excursion in their brochure as an “optional experience” and “available locally at extra cost”. The Defendant’s Booking Conditions provided that “the experience will be supervised and all reasonable precautions will be taken to ensure that you and your party are safe. We will only accept responsibility for personal injury where it is caused by our negligence or the negligence of our suppliers”. The Claimants remained firm in evidence that they had not made a separate booking for this excursion and had not been asked at any stage for payment and so therefore the excursion must have formed part of the package of services provide pursuant to the holiday contract, to which the Package TravelPackage Holidays and Package Tours Regulations 1992 applied. The court held that the excursion had been booked separately and so was outside the scope of the 1992 Regulations. The Claimant’s alternative case was that they had made a separate contract for the excursion which was governed by the terms of the Defendant’s Booking Conditions; this argument was also rejected by the Judge.

However, this was no the end of the line for the Claimants. Following Parker v TUI [2009] EWCA Civ 1261, they argued – in the further alternative – that the Defendant, in providing a local representative to accompany the excursion and to give instructions beforehand, had assumed responsibility to the Claimants for the reasonable safety of the excursion and, accordingly, owed them a tortious duty of care. It was held that the content of this common law, tortious duty was defined by local standards in accordance with the Court of Appeal’s guidance in Gouldbourn v Balkan Holidays Ltd [2010] EWCA Civ 372 (and other case law subsequent to Wilson v Best Travel Ltd [1993] 1 All ER 353 (QBD). Unsurprisingly, there were no specific statutes, rules or regulations to govern the provision of camel rides and safaris in India. Instead, there was local customary practice and both parties relied on expert evidence of what such practice required. The saddle on the camel’s back was simply  a seat with a hook-shaped “pommel” at the front which was attached by a rope running around the camel’s belly with a carpet and quilt placed loosely over the top. There were no stirrups or rope loops along the side of the camel that either rider could hold for stability. The reins were held at the front by the camel handler. It was held that the failure to provide stirrups constituted a breach of local customary practices. The court went on “so far as the second alleged breach of duty is concerned, in my judgment it is made out. There is simply no evidence that the defendant took any steps whatsoever to establish that the excursion provider was competent”. Judgement was made in favour of the Claimants.

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