Injured abroad

More and more people are travelling abroad for holidays and work. But claiming compensation for accidents abroad can be complex. Martyn Gwyther of Thompsons’ specialist overseas accidents unit looks at some of the cases that have brought confusion or clarity to claiming for injuries suffered in a foreign jurisdiction.

When an accident happens abroad, the issue of liability – who is at fault – often has to be assessed in accordance with the law of the country in which it happened. Such laws can be complex and less favourable to injured people than UK laws.

Time limits for lodging claims can be much shorter than in the UK and, crucially, some countries prevent injured people from bringing a claim for damages if they have not reported their injuries in detail or sought medical attention in that country within a strict time limit, which can be as little as five days.

Whether or not a case has to be pursued under the foreign law, union members should still go to their union legal service so that the union’s lawyers can assess the prospects of success under the foreign law. They may work with foreign personal injury lawyers and health and safety experts to do this.

RTAs in the EU

Alternatively, many claims can be pursued in England without the involvement of foreign lawyers. This can include road accidents that happen within the European Community.

The 4th and 5th motor directives give the right to a victim of an RTA within the EU to pursue a claim against the insurer of the person who was responsible for causing the accident (provided that they are from another EU state), in the country in which they live. This was confirmed by the case of Odenbeit. In fact, insurers have a legal obligation to appoint a claims handler in England and Wales to deal with this type of claim and it is often possible to resolve such claims without the need to commence legal proceedings.

Another possibility is where the accident happened abroad but the parties to the action all live in, or work in England and Wales. In this type of case, the Private International Law (Miscellaneous Provisions) Act 1995 stipulates that the law that will apply to the claim is the law of the country in which the accident occurred, but that this general rule can be displaced if it is substantially more appropriate to do so.

An example is found in the decision of the House of Lords in 2006 in the case of Harding -v- Wealands where a claimant, who was injured in a road traffic accident that occurred in Australia, established that the limits to compensation imposed in New South Wales did not apply and that the calculation of damages should be handled in accordance with English law, not least because both the claimant and the driver of the car in which he was injured lived in the UK.

Claims from accidents that occurred in a foreign country can also be pursued in England and Wales when people travel on a package holiday, booked through a tour operator in England or Wales.

The definition of a package holiday was dealt with in the case of Association of British Travel Agents -v- Civil Aviation Authority. Although much of the case was irrelevant to personal injury proceedings, it discussed what constituted a package holiday under the Package Travel, Package Holiday and Package Tours Regulations 1992.

What is a package holiday?

The definition of a package holiday is important because a claim can only be brought against a tour operator in England and Wales if the component part of the holiday during which someone was injured forms part of a pre-arranged package that was sold by the tour operator.

The judgment focused on the part of the Package Travel Regulations that refers to aspects of a holiday being sold at an “inclusive price”. It concluded that a package holiday is only a package where there is some degree of interrelation between the price of the component parts of the holiday.

In other words, if an element of the holiday is capable of being sold separately and independently of the other elements, and at the same price, then it is not likely to be a package and the claim may have to be pursued abroad. The legal debate around this ruling continues and test cases are anticipated.

Where a claim can be pursued against a tour operator in England and Wales, the case of Hone -v- Going Places Leisure Travel Ltd confirms that there is no strict liability on the tour operator under regulation 15 of the Package Travel Regulations. Instead, it is for the injured person to prove that the tour operator or agent has breached a duty of care that they owed to that person. In other words, it is still down to the claimant to establish that the tour operator was to blame for the accident.

The package holiday regulations impose a requirement on the tour operator to investigate the safety of a hotel only against local safety regulations. In Codd -v- Thomson Holidays, a child was injured trying to close the door of a stuck lift at a Spanish hotel. The hotel had a system of maintenance that it said was in accordance with Spanish legal requirements.

The claimant’s case was that the hotel should, in accordance with English law, have put a notice on the faulty lift warning residents not to use it. This was rejected. The Court of Appeal said that while English law applied in establishing whether there had been negligence by the Spanish hotel, there was no requirement for the hotel to comply with English safety regulations.

Similarly, in Wilson -v- Best Travel, the court ruled that glass patio doors, through which a British holidaymaker fell while on holiday in Greece, complied with Greek safety standards and so there was no breach of duty. English law would have required that the glass doors be made of re-enforced safety glass.

Laws and cases aside, the fact remains that every accident is different and, just as in any accident claim, in order for a holiday claim to succeed, it is necessary to prove that somebody else was to blame and that injuries sustained were as a direct result of their actions.