Your Right To Compensation For A Poorly Wrapped Holiday Package
The worry among many of those travelling abroad to grab their annual two weeks in the sun is that their aircraft will experience some catastrophic failure while in the air. Statistically speaking, however, the chances of some relatively minor - but still holiday-spoiling - incident are infinitely greater, whether during the flight, at the airport or within the holiday accommodation. This is why people take out travel insurance - not because they expect to make a claim but because a policy provides, or should provide, a large measure of reassurance.
Unfortunately, travel policies are not scientifically worded, which makes them open to various interpretations. Therefore it might be worthwhile swotting up on your legal rights prior to going on holiday just in case the insurance company, declares itself "not liable" for a claim, and you have to pursue the matter alone - either against a travel company or the insurance company for its refusal to pay.
Under the Montreal Convention 1999, air carriers are strictly liable in damages for accidents to passengers during flights or while embarking or disembarking, up to SDR113,100. SDR is not a currency in itself but for stands for Special Drawing Rights, which is a mix of currency values established by the International Monetary Fund (IMF), and which at present is about £85,000. This means that the airline cannot avoid liability by denying the accident was their fault. Where damages of more than that sum are claimed, the airline has a defence if it can prove either that the accident was not their fault, or that it was a third party's fault.
Most families flying to the Mediterranean (or further afield) this summer will be doing so through a package holiday. The Package Travel, Package Holiday, and Package Tour Regulations 1992 govern this type of deal, and are an important piece of consumer protection. "Package Holidays" are defined in the regulations as having at least two of the following three components, all as part of a 'package' for which the client pays an inclusive price:
Transport, such as flights and transfersaccommodation; andany other tourist service which makes up a significant proportion of the package, e.g., excursions.
Billing separately for different parts doesn't stop it being a package. Some tour operators have tried to get round this by offering separate contracts, one for accommodation, one for flights, etc, and not defining the deal as a 'package'. Guidelines laid down by the courts mean that if the total price charged to the consumer for all three services is less than the aggregate cost of the services had they been sold individually, then this is obviously a package. The same would apply in unusual cases where the 'all in' price is more. Only when the price of both is the same is the law something of a grey area.
In each case the bottom line is that that a 'package' holiday puts certain responsibilities on the package provider relating to all the services purchased as part of the deal. The regulations state: "The other party to the contract (i.e. the package provider) is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services".
So, if for example a package brochure states that a hotel has a swimming pool then it must have one. It is not good enough for the package provider to say that he thought there was a swimming pool. There is no obligation on the package holiday provider to ensure the pool is safe, but he is liable if reasonable care has not been taken to see that it is safe. It should be remembered that local standards apply, so if a Turkish pool is safe enough by Turkish standards it may be that the package provider has a defence, notwithstanding that the pool might not have satisfied EU standards.
The regulations go on to state that if the improper performance of the contract is due NEITHER to any fault of the package provider NOR to that of another supplier of services, the package provider is not liable, so this right of action is not absolute.
Incidentally, this principle not only applies to foreign package holidays, which in most cases involve air travel; but also to similar holidays in the UK where travel is by rail or coach.
Although still highly recommended, travel insurance is not an absolute guarantee that financial compensation will automatically be given for some loss, mishap or accident. Therefore if you suffer a debilitating incident while on holiday this summer and are not satisfied by the response from the insurer then it could be worthwhile contacting a solicitor who is experienced in this sphere. And not having travel insurance should not, in itself, preclude you from making a claim for damages.
We hope you have a happy - and safe - holiday.
McKay Norwell are Edinburgh Lawyers serving individual and business clients across Scotland. Richard Godden is a specialist Personal Injury Solicitor Scotland.
Posted by Ikhwanesia.com
on 18.42. Filed under