Keith Richards, the ageing rocker with the Rolling Stones, made news last year when he fell out of a coconut tree and suffered a head injury while on holiday.
Although some people might think this was normal behaviour for him, there is no doubt that lots of people do things on holiday that they would not usually get up to at home.
Take the man who went to bed somewhat worse for drink, tried to get up to go to the toilet but got into a fight with his duvet which, he alleged, then catapulted him through patio windows. Despite the extreme circumstances, he was still able to claim compensation for his injuries.
So how was he able to succeed? If someone injures themselves while abroad on holiday and wants to sue, the court proceedings usually have to start in the country where the accident occurred. That does not make life easy for claimants as the laws relating to accidents vary widely around the world, as do the time limits for bringing claims. Nor is it always easy to find a foreign lawyer with the necessary level of expertise in personal injury claims.
However, in a large number of cases, claimants can have the case heard in a UK court, if the Package Travel Package Holidays and Package Tour Regulations 1992 apply. These allow people injured in a holiday accident abroad to bring proceedings against the tour operator.
Regulation 15 states that the tour operator is liable for the “proper performance” of the holiday contract. As the parties entered into the contract in this country, English law applies. And it includes a term that “reasonable care” must be exercised in the provision of facilities and services. In other words, they must comply with local standards. So, for example, if a tourist walks through glass doors while on holiday in Cyprus, the standard for deciding whether the glass was faulty is the building and health and safety regulations in Cyprus.
Take the case of UNISON member Lorraine Dewison. Her 14-year-old daughter Natalie was badly injured on a family holiday in Tenerife when a glass door shattered, injuring her upper arms and face. Thompsons was successful in helping the family take legal action against the travel company in the UK to cover the cost of medical treatment in Tenerife, but only after it became possible to prove that the door mechanism broke Spanish law.
Likewise, Malcolm Jones who endured a “holiday from hell” in Spain. He and his family were given a cramped room with two single beds and a camp bed which finally collapsed causing serious injury to Mr Jones. The holiday company tried to argue they weren’t liable for his injuries, but the judge said it had failed to exercise “reasonable skill and care” in the supply of the bed.
But it is not all bad news for tour operators. They are not liable if they can show that the failure to perform the contract was someone else’s fault, or was because of unusual and unforeseeable circumstances beyond their control, for example hurricanes, earthquakes or riots.
And, unfortunately, the regulations will not help an injured holidaymaker if their injury had nothing to do with the services or facilities that were part of their package holiday contract. So, for instance, if they wandered out of their hotel and were knocked down by a local motorist they would not be able to sue their tour operator, nor if they tripped over a pavement outside the hotel.
Nevertheless, there have been cases where the tour operator was held liable in precisely those circumstances. For instance, if the operator knew that tourists were likely to be the target of a particular hazard.
In Martens -v- Thomson Tours Operations Limited (1999) a very drunk Mr Martens fell down a deep well outside his campsite in Goa. Although the tour operator had no control over the area where the well was sited, the tour operator’s employees knew about the well, that it was dangerous and that guests at the campsite were very likely to pass by it. The court said they should have warned Mr Martens of the presence of the hazard and were found in breach of their duty to do so.
Sea and air travel
In addition to the Package Travel Regulations, there are other ways in which holidaymakers can bring court proceedings here.
Air passengers are protected by the Warsaw Convention (incorporated into English Law by the Carriage by Air Act 1931). This says that the airline has to accept liability unless it can show that it took “all reasonable measures” to avoid the accident. And the Air Carrier Liability Order offers strict liability (in other words, the airlines are automatically to blame once the facts are established) up to around £100,000 for European carriers as long as the claim is brought within two years.
For sea passengers, the Athens Convention, which also has a two-year limitation period, states that shipping companies have to take the blame in cases of shipwreck collision, stranding, explosion or fire and defects in the ship. Otherwise claimants have to prove fault in the usual way.
One of the biggest obstacles to bringing a claim against a foreign motorist has been solved by the European Communities (Rights Against Insurers) Regulations 2002. Although it only applies in the European Union, it gives a new right to issue proceedings against the person responsible for the accident, as well as against the driver.
So a holidaymaker from Newcastle who goes on holiday to Spain and is knocked over by a German motorist, can issue court proceedings against the German motorist’s insurance company in the Newcastle County Court.
There is a snag, however. Although the claim can be brought here, the assessment of any compensation and the award of legal costs would be dealt with in accordance with the law of the defendant’s country.
In some cases, particularly where there has been a serious injury, the claimant’s solicitor may try to bring the case in an English court because the law may be more favourable. This is known as forum shopping but is not always easy to do.
Take the following example. Assuming there are at least two possible defendants to a claim, one of whom can be served with court proceedings in this country (and there is an arguable case against them), then another defendant from a foreign country may be joined into the action. The English court then allows English court proceedings to be served on the other defendant who lives abroad.
Final words of advice
- If you suffer an injury abroad which you believe is someone’s fault, try to preserve the evidence. Take photographs, measurements, find out names and addresses. It will be much more difficult to do this when you get home.
- Act quickly. If you have to consider court proceedings in another country, some limitation periods are very short.
- But don’t act like Keith. Take care.