Under what circumstances can an injured party bring a claim against a tour operator in the UK to avoid having to bring a claim against a local entity in another country?
Under the Package Travel Regulations [Etc] 1992 (the Regulations), a tour operator can be held liable for injury and losses as a result of the improper performance of the holiday contract. This is regardless of who performed any component part of the package.
The first issue relating to any excursion is whether it is covered by the Regulations and if the tour operator is liable under the Regulations.
Often, excursions are paid for separately and apart from the package contract. The most common time for booking excursions is in-resort at the welcome meeting. These excursion contracts fall outside the Regulations as they are not pre-arranged, sold or offered for sale at an inclusive price and are not sold in the United Kingdom as part of the package holiday.
Notwithstanding this, a tour operator may still be found liable for the excursion if it can be shown that they were principal to the excursion contract. The tour operator will normally say that although the excursion was booked through their representative, they were in fact only selling the excursion as an agent for the local excursion provider.
Whether or not the tour operator will be found to be principal to the contract often depends on how the booking of the excursion took place and, in particular, what was said by any rep and any documentation provided at the time. Important factors to be considered are:
- where was the excursion booked?
- was the rep wearing the tour operator's uniform?
- what documentation was provided prior to booking?
- are you left with the reasonable impression that the contract was with the tour operator?
- were you told the tour operator was only acting as an agent for a local tour operator/excursion provider?
Where an excursion is sold by a tour operator’s local rep, the information provided by that rep, along with the excursion documents, should be clear and not leave a consumer with a reasonable view that the excursion contract is run by the tour operator. If it is not clear to a reasonable customer, then despite the fact, as is often the case, that it is a local excursion provider, the tour operator can be found as principal to the contract. However, the customer does have to show it was reasonable to believe that the excursion was being provided by the tour operator. For example, if the customer was handed a leaflet at the time of booking, which discloses the fact that the excursion is provided by a local entity, but that leaflet was not read by the customer, then in all probability any claim against the tour operator would fail.
It can also be argued that a tour operator does have a duty to ensure that any local excursion provider they recommend is a reputable provider.