Bonnar Accident Law
With the upsurge in recent years of consumers booking holidays themselves directly via the internet, it is more important than ever for the public to be aware of their rights and to the protection afforded to them, should an accident occur whilst they are abroad.
The Package Travel, Package Holidays and Package Tours Regulations 1992 (as amended) are the starting point to ascertain whether such protection exists, and whether a claim may be possible. They enable a consumer to sue in this country. If the Regulations do not apply to an accident it is extremely difficult to sue in the foreign courts – you will have to sue in the foreign court where the accident occurred which could be anywhere in the world. For serious or catastrophic injuries it might be worthwhile, but anything less won’t pass a cost benefit analysis.
But what is a Package Holiday for these purposes?
It is defined as:
“the pre-arranged combination of at least two of the following components when sold or offered for sale at an inclusive price:
3. other tourist services not ancillary to transport or accommodation and accounting for a
significant proportion of the package;
and it should also be noted that:
(i) the submission of separate accounts for different components shall not cause the arrangements to be other than a package;
(ii) The fact that a combination is arranged at the request of the consumer and in accordance with his specific instructions (whether modified or not) shall not of itself cause it to be treated as other than pre-arranged”
The Regulations are easily interpreted to cover the traditional method of going into the travel agents and selecting a holiday from a brochure, where everything is booked at one time by a member of staff on one’s behalf – so this usually covers at least components 1 and 2 above. What is not so clear cut is whether various types of online bookings by a consumer themselves also attract the same protection.
It is generally accepted at present that, unless a consumer is specifically accessing separate sites to book each component and paying separately, then the booking will fall within the definition of a package.
For example when booking flights, and a flight booking page then prompts you, before payment, to click into a hotel booking page, and/or then an airport transfer booking page; and if an inclusive price is quoted which is paid at one time – this can constitute a package booking for the purposes of falling within the ambit of the Regulations. Even where each component has been provided by a separate supplier, in this way there could still exist a package.
Here are some examples of packages and non packages:
1. Purchase of accommodation only in advance via an operator, and then during the holiday the consumer purchases ski passes via the operator. This is NOT a package – separate contracts exist (Gallacher v Airtours Holidays Limited  CLY4280).
2. A free limo transfer from the airport to a villa, which was offered when accommodation was purchased, did NOT constitute a package, as the transport was considered so minimal as to be disregarded (Keppel-Palmer v Exus Travel Ltd EWHC 3529).
3. A consumer logs into the Ryanair website, selects a flight, and is then offered a hotel selection prior to payment. They choose a hotel of choice and are quoted a price, and then proceed to a payment page, where they enter credit card details for an inclusive price. This should constitute a package.
It should be noted that changes are afoot in the near future, to clarify the extent of protection. There is presently a period of Consultation until early 2014, before amendments are possibly made to the UK legislation.
One of the potential changes is to widen the definition of a package to make it easier for consumers to enforce the Regulations. There is hope that one result of this is consumers being better protected if they suffer an accident whilst abroad, even where they have chosen to book their holiday directly via the internet.