Tui pool bug ruling ‘puts focus on small print’

A court ruling that found Tui Travel liable for an illness-inducing bug in a pool in Spain should lead tour operators to revise their terms and conditions immediately, leading travel industry lawyer Stephen Mason has warned.

A Birmingham County Court judge ruled in January that Tui Travel was liable for an outbreak of illness among 49 holidaymakers due to cryptosporidium in the pool of a hotel in Majorca.

Mason said: “The Tui judgment broke new ground, making tour operators responsible not only for things outside their control, but also for things for which no one at all is to blame. The company said the judgment ‘imposed impossibly high standards that simply cannot be met’ and, having read the judgment, I agree.

“Organisms get in a pool because a holidaymaker swims when they are not well. There is nothing the tour operator can do about it. The Spanish rule [that a pool should not contain a single organism] is a regulatory requirement. It is not used in relation to customers. But the judge said: ‘This is the standard in Spain’.”

However, the judgment also drew attention to a clause in the tour operator’s booking conditions that stated care had been taken to ensure everything followed “the local and national laws and regulations of the country”.

This recognises the fact English law requires foreign hotels to comply with local health and safety standards, which are frequently less demanding than those in the UK.

Mason said: “Where the local standard is higher than in England, it must also be complied with – and Spanish regulations require there be no organisms at all in swimming pool water.”

He said: “The company guaranteed its compliance rather than said it would not be negligent. The judge drew on that guarantee. Normally, English law requires that someone in some way was negligent before there can be liability.”

The company confirmed it would not appeal. Mason said: “All tour operators should consult their lawyers.”

The good news for operators is the government is poised to curb the pursuit of no-win, no-fee actions later this year – a system that has been described as “a racket” – following the end of a consultation on proposed changes this week.

The Ministry of Justice intends to abolish the current practice that results in a tour operator that loses a claim paying the “success fee” of the claimants’ lawyers. This will be paid by the claimant instead. There will also be moves to encourage more settlements out of court.

Mason said: “The current system gives claimants a stake in litigation. In future, claimants’ lawyers will have to be more careful and it should diminish the speculative cases. Lawyers will cherry-pick cases and there should be fewer. The cost of losing will also be less for operators.”

However, he said: “Tour operators won’t get their costs back if they win, so fighting and winning will become more expensive.”