CONTINUED FROM BACK COVER CAA head of Atol Andy Cohen agreed,
saying: “Kate has set out the position. We organised a meeting of implementers who were all of a similar view, but it looks like we are staying with ‘the place of establishment’. It will be up to us to find a way of making it work.” Jennings also identified a problem with
the proposed definitions in the PTD. She said: “Most of what [we call] Flight-Plus is in the package definition and we welcome the fact that there is some additional protection in the Assisted Travel Arrangement (ATA), but the UK position is not to support the current [ATA] definition. It only applies protection to the travel provider and not the other elements and we think that is confusing. We’re not happy with that.” The ATA will apply to so-called click-through web sales. Abta chief executive Mark Tanzer said: “Where someone starts on one site, say an airline’s, and through targeted marketing or transfer of data moves to another – say an accommodation site – we see that as a package. The Council sees it, at best, as an ATA which does not require package protection.” However, Tanzer added: “It is a step
forward from where we are now.” Industry accountant Chris Photi,
of White Hart Associates, suggested: “Whether it is good or bad depends on who you are in the industry. A travel agent maybe won’t feel it’s a good thing.” He said: “The PTD needs to be revamped; the regulations are out of date. But does the consumer need this level of protection when they pay with a credit or debit card?” Photi added: “It worries me that the UK has a Rolls-Royce protection model when you see what other countries offer.” Jennings said: “Our working assumption is that the PTD will be agreed by May, be published in June and we’ll do a consultation this autumn. “We’ve not decided on one or two
consultations. My personal view is we could do one. It’s not clear yet whether it will require primary legislation.” New Atol Regulations could be
expected in spring or autumn 2016 and come into force in 2017, with companies allowed six months to adapt.
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78 •
travelweekly.co.uk — 22 January 2015
travelweeklybusiness TRAVLAW BIG TENT 2015: Travel’s top legal experts discuss
PERSONAL INJURY: COURT OF APPEAL CLARIFIES LAWIN ON THE BEACH CASE
A recent Court of Appeal ruling “squashed flat” an attempt to argue local standards should not apply in a case for compensation brought by a holidaymaker injured abroad. The judgment in late November in the
case of Lougheed v On The Beach clarified the law on a number of counts, according to Travlaw senior partner Stephen Mason. The case concerned a Mrs Lougheed, who slipped and was injured on steps at a hotel in Lloret de Mar in August 2009. Mrs Lougheed won a claim for negligence against On The Beach in 2013. The travel firm successfully appealed. Mason told the Travlaw event in London: “The case saw an attempt to argue that it is not local [safety] standards that should count [in a destination]. The Court of Appeal squashed that flat.”
It also closed a loophole suggested by another ruling that “local standards may
not be the end of the matter” in deciding whether negligence has contributed to an injury. The Appeal Court agreed, “but only if both sides agree that these [local standards] are inadequate. It added that an Englishman does not travel abroad in a cocoon.” The ruling provided clarification on a third
issue, referring to the 1976 case of Ward v Tesco Stores which established, in Mason’s words, “that it was for the defendant [in cases of personal injury] to prove they were not negligent rather than for the claimant to prove they were”.
Stephen Mason: ‘It was a remarkable decision’
“In Lougheed, that was restricted to an area where accidents were deemed ‘likely to happen’ [and] in the area where Mrs Lougheed fell, there had never been an accident,” said Mason. “The Court of Appeal said travellers should take out their own insurance rather than blame tour operators because all it does is put up the price of holidays. It was a remarkable decision,” he added.
APPEAL COURT: NO BREACH OF LOCAL STANDARDS
On The Beach appealed the judgment in the case brought by Mrs Lougheed, arguing the trial judge was wrong to find the hotelier in breach of local standards. The Court of Appeal agreed. It noted:
“It was an accident that could have occurred despite the use of proper care, as would have been the case if the stairs had become wet only very shortly before Mrs Lougheed negotiated them and before the wetness had come . . . to the attention of the hotel staff. There was no evidence here that slipping at this place was a known likely risk.” Travelaw’s Stephen Mason noted this
was “not the way in which courts have previously approached the question”. Lord Justice Tomlinson of the Appeal Court also noted that findings of liability
against tour operators “no doubt result in an increase in the cost of such holidays”. On The Beach argued at the initial trial that it was not an organiser as defined by the Package Travel Regulations. But the court rejected that and On The Beach did not contest this on appeal.
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