Apparently, a few days ago, in the mythical land of Oz, the AXA man (distant relation to the Tin man) and the Straw man presented a wizard idea to an invited audience. ‘There is no such thing as whiplash’, they declared, ‘even if it existed, which it doesn’t, it doesn’t hurt. If you think something might be wrong and if you hurry, you can see one of our approved doctors over in Munchkin Land who will tell you how to get back to work asap. Naturally, the Wizard will not be paying compensation under any circumstances – premiums are high enough around here, what with accidents happening every day.’
We have come to expect the coalition government to be hell bent on a crusade to reduce worker safety, fuelled by a spurious political dogma that a reduction in the regulatory burden will unleash the entrepreneurial spirit of British industry, thus solving all our economic woes at a stroke – and the Queen’s Speech on 8th May didn’t disappoint…
In the aftermath of the Luxor balloon tragedy, I looked at the Guardian Online edition which chronicled the troubled and troubling history of hot air balloon accidents over Luxor and Karnak.
The article noted that in June 2008 four Scottish holidaymakers were injured when the balloon in which they were travelling crash landed. Bonnar & Co. acted for those holidaymakers. I remember thinking how terrible an ordeal it must have been for them and a number of points occurred to me as I looked at the terrible recent news.
1. The tabloid press and some broadsheets routinely scoff over health and safety (“Elf ‘n Safety”) bureaucracy. They long for a return to light touch regulation where everything is just common sense. Light touch regulation of dangerous activities inevitably turns into casualties, particularly where a profit motive is concerned. This is not opinion, it’s arithmetic.
2. The persons we acted for had booked the trip of a lifetime to Egypt using a highly reputable adventure travel company. The balloon trip had not been pre-booked. Instead they had signed up during a welcome meeting organised by the travel company with a person whom they believed was an authorised representative of the adventure travel company.
This is a very common scenario, and I suspect one which involves a money inducement. Following the accident the travel company did everything possible to distance themselves from the excursion. It was not part of the package, the persons had booked independently, and the claim should be directed against the Egyptian balloon company care of some street in Cairo.
The victims would have to proceed via the Egyptian courts. Every lawyer who does this kind of case will know what a familiar tactic this is. They wanted to argue that the person who appeared at the function organised by the travel company and taking bookings for the balloon flight had suddenly become a completely independent contractor for whom the company bore no responsibility.
3. In particular they wanted to claim that the Package Holiday Regulations 1992 did not apply as the excursion was not part of the “package.” Technically they might have been right about that. However, it is useful to remember that the normal law of agency applies in these situations and the company can be held liable for someone whom it may have held out as an authorised representative and agent.
In the event court proceedings had to be raised in the Court of Session in Edinburgh before the case could settle.
These kind of tactics represent our common experience when dealing with the travel industry. Matters never settle without litigation and the industry itself uses every possible loophole to evade responsibility. This is in the hope that persons injured on holiday give up or are otherwise deterred from going to court. Our invariable experience is that it is naïve in the extreme to expect the travel company to do the decent thing.
If something does happen to you on holiday, you are going to have to prove it.
Take photographs, get witness details including mobile phone numbers.
You will almost certainly have to rely on these holiday acquaintances to prove your case.
You probably won’t see this on the holiday brochures, but it is something you should bear in mind.
Written by April Meechan, Associate Solicitor, Bonnar Accident Law.