Travel Law Seminar for Vantage. Ian Hopkinson mb LAW

Transcription

1 Travel Law Seminar for Vantage Ian Hopkinson mb LAW

2 mb LAW Specialists in travel and leisure Commercial and regulatory Liability and recovery

3 Day job South African bus crash Food poisoning leading to CFS Water slide accident Wave incident Laceration of toe Charging elephants and biting monkeys Bandits and sexual assaults Electric shock

4 Routine cases Slips and trips Food poisoning Road Traffic Accidents Claims remain expense Chronic compensation culture Jackson: don t recover costs Recoveries more important

5 Insurance Good news for Tour Operators Niche insurers Knowledge of cases Knowledge of industry NB: claim against YOU, not the insurer Support is key

6 Insurance Supporting your insurer Duty to notify Failure = BIG PROBLEM You deal with claim Without expertise of claims handlers Without indemnification Legal costs Damages Claimant s legal costs

7 Insurance Mrs. B v Ski Tour Op Fell down chalet stairs Drunk but badly injured High powered professional Failed to notify Paid legals, experts, translators Fortunately no damages 10,000 pre-issue

8 Insurance Supporting your insurer Assistance with the evidence Witness information Cajoling hotel and staff Documents Cajoling hotel and staff Recovery

9 Key Legislation The Package Travel, Package Holidays and Package Tours Regulations 1992 Unfair Terms in Consumer Contracts Regulations 1999 Consumer Protection from Unfair Trading Regulations 2008 Supply of Goods and Services Act 1982

10 Package Travel Liability Regulation 15 other party to the contract liable to consumer for proper performance liable for third party supplier

11 Package Travel Liability What is proper performance? 1. Identify the terms of the contract 2. Has their been any improper performance? 3. Is there any loss?

12 Defences for Tour Operators In practice this means: Compliance with local standards If no local standard/where its low, exclude property

13 Defences for Tour Operators Reg 15 - no liability if failure due to: Consumer or third party unusual and unforeseeable circumstances beyond your control, consequences couldn t be avoided, even with all due care; or an event, even with due care, could not be foreseen or forstalled (avoided)

14 Key definitions The Art of Slipping Art Expression or application of human creative skill/imagination Slip Lose one s footing and slide unintentionally for a short distance

15 The Art of Slipping Art form that attracts lawyers Like all good art: Genuine cases attract high values Beware of fakes Some fabrications Some not very good Examine some examples

16 Fake or fortune? McDonald Slipped on wet restaurant floor Minor laceration Pre-existing complication (1960s train) Dormant osteomylitis Amputation No system for slippages Full recovery Fortune rather than fake

17 Fake or fortune Healy v Cosmos Slipped and fell Shallow pool Neck fracture > 4 million Non-slip pool surround (1m) defect Causative breach of contract Reg 15

18 Fake or fortune Cosmos evidence Been drinking: barman-receipts-photos Approached pool Swallow dive Lay witnesses Pool compliant: pool expert Dive not slip: biomechanic

19 Fake or fortune? KEY ISSUE Can a slip become this?

20 Fake or fortune Judgment Moderate consumption Lay witnesses confused Slip not dive But he slipped outside surround i.e. where non-slip not required Slipped and flew????????????????? Claim dismissed Fake

21 The Restaurant Classic

22 Hilton v MyTravel Facts Self-service restaurant Slipped on small pool of liquid Ceramic clay tiled floor Serious knee injury

23 Hilton v MyTravel MyTravel Didn t deny accident occurred Didn t deny presence of liquid on floor Agreed Ward v Tesco applied

24 Hilton v MyTravel Ward v Tesco 1976 Liverpool branch Slipped on pink yoghurt Claimant believed i.e. re hazard Presumption of fault Rebuttal by proving: awareness of hazards system for dealing with hazards

25 Hilton v MyTravel Mrs. Hilton s evidence Restaurant understaffed No cleaning in service No wet floor signage Noticed lots of spillages Spillages unattended

26 Hilton v MyTravel MyTravel s evidence 10 waiting staff of 110 tables System for spillages: 1 staff remains at spot Another fetches Then cleaned away Constantly monitor area No history of accidents

27 Hilton v MyTravel MyTravel argued Pool of liquid very small If Mrs. H couldn t see it, how could we? Staff vigilant but can t guarantee One incident doesn t comp system Unfortunate accident

28 Hilton v MyTravel Judgment Mrs. H s evidence preferred Not impressed with rep and maitre d Circumstances consistent with fault No adequate explanation from hotel No trays High risk of spillage No adequate system

29 Williams v Balkan Holidays Facts Fell on wet floor exiting lift Slipped and fell Suffered modest injuries Witnessed by daughter

30 Williams v Balkan Holidays Balkan Didn t deny accident Denied liquid on floor Admitted floor being cleaned Argued proper system Adequate signage

31 Williams v Balkan Holidays Mrs. Williams evidence Wet floor Cleaner present Water seeped in clothes No visible warning signs Doctor and manager attended Both agreed no signs No proper system

32 Williams v Balkan Holidays Balkan s evidence 5 hotel staff to scene Warning signs present Visible signs from lift Contemporaneous statements Dr. attending Mrs. W Report favourable

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41 Williams v Balkan Holidays Judgment Mrs. W fell outside lift Area cleaned but not dry 2 visible warning signs Hotel witnesses truthful Impressed by documents/photos Mrs. W dazed Daughter concern for mother

42 Williams v Balkan Holidays Judgment Held: adequate system in place Claimant no evidence of local standards Can t assess standard of care as per local standards

43 Cases turn on evidence Evidence of: Analysis of risks/hazards Can t guarantee safety Reduce of risk/hazard Systems

44 Cases turn on evidence Contemporaneous statements Plans Photos Reports incident/expert Information given to customers Evidence of systems: HACCP, cleaning, wiring, etc Persistence

45 Day job South African bus crash Food poisoning leading to CFS Water slide accident Wave incident Laceration of toe Charging elephants and biting monkeys Bandits and sexual assaults Electric shock

46 Travel Law Ian Hopkinson Tel: