Recent court rulings have opened new areas of liability regarding excursions, and claims against operators are increasing. Yet many firms appear not even to apply clear terms and conditions to bookings.
Lawyers and insurers issued a warning to the trade last week at a seminar on excursions liability in London, organised by Vantage Insurance Services.
Alex Padfield, managing director of law firm Hextalls, said: “The culture of claiming is increasing. Claimants’ lawyers are trying harder and in more ways to make tour operators liable. Judges are often sympathetic to a badly injured claimant, and if a judge can find a way to attach liability to a tour operator they will do it.”
Tour operators have recently become liable for negligence (tort) in relation to excursions, and Padfield warned: “Small mistakes can cost a fortune. Insurers now see excursions as a big issue.”
He referred to a recent case settled out of court by a “well-known tour operator” after a claimant was injured on a four-wheel-drive excursion in Egypt.
“The company believed the injury had nothing to do with it,” said Padfield. However, the excursion was sold by a rep wearing a T-shirt with the company’s logo and who distributed leaflets and issued a receipt stamped with the company’s name. The settlement cost £20,000 plus legal fees.
Padfield said: “It is not a situation where you have to pay every claim that comes in. But you need to understand your business model and ensure your documents do not contradict it.”
David Grant, Vantage professor of travel law, said: “Most of the law is quite settled, but there have been recent attempts to pass on liability through the law of agency.”
He said: “There needs to be consistency throughout the process, including the way in which a trip is sold, the guidance given to reps and how money is handled.”
Vantage underwriter Alan Lumsden warned: “Creative lawyers will ensure you can’t keep liability in easily regulated channels. Travellers want more exotic experiences and less risk to themselves. Responsibility can fall back on a tour operator where it was not the intent of the company to be responsible.”
Padfield said defending lawyers frequently found problems with travel firms’ terms and conditions.
“Booking conditions vary massively from company to company. Some are extremely concerned to get the conditions right. Others seem not to worry,” he said, adding that many companies appeared to use terms and conditions cut and pasted from the web.
Padfield warned: “What can look like similar clauses can lead to quite different outcomes.” For example, there is a difference between a company saying it can “arrange” an excursion or “provide” one. The latter can mean the company contracts to “ensure it is performed”.
“A judge will look at the impression created rather than the specific terms, so make sure you do your homework,” said Padfield.
“Look at Abta’s standard terms and conditions and pay a lawyer to adapt them to your business model. It will cost £750 or £1,000. But if you cut and paste from the internet you will end up with contradictions.”