Emma Moore v Hotelplan (T/A Inghams Travel) & Tantera (Queen's Bench Division — 22 February 2010)
During a holiday with tour operator Inghams Travel, the claimant booked a snowmobile excursion through its resort representative. The excursion was provided by Mr Tantera, the third party to proceedings brought by Inghams. On the excursion, the claimant lost control of her snowmobile resulting in a collision that rendered her paraplegic.
Inghams' liability to the claimant, as set out in the holiday booking contract, included providing services to a reasonable standard. Inghams said it would accept liability for injury caused by a lack of care and skill on the part of Inghams or its suppliers.
The excursion did not form part of the main holiday contract, but, the claimant argued that the terms of the main holiday contract were implied into this parallel contract for the excursion made with the representative. Inghams argued that its representative only acted as agent for Mr Tantera and it was not, therefore, liable for any negligence or breach of contract by Mr Tantera.
The parties also disputed whether the instruction given by Mr Tantera on the use of the snowmobiles was suitable and/or causative of the accident.
The court held that the brochure and holiday documents suggested the excursion would be arranged by Inghams' representatives in the resort. When she booked the excursion, the claimant was given an Inghams receipt. Further, the third-party claim between Inghams and Mr Tantera was pleaded on the basis of a contract for the provision of snowmobile excursions.
The representative was not, therefore, acting as agent for Mr Tantera, who was a supplier under the terms of the holiday contract. As to liability, the claimant's driving caused her to overtake the others and believe she was losing control of the snowmobile. Had Mr Tantera instructed her to use the emergency cut-off switch, the accident would have been avoided. To reflect the claimant's driving, the judge reduced the claim by 30% to show her degree of culpability.
The judgment in this case is in contrast to the position established in the 2001 case of Gallagher v Airtours, where the tour operator was not liable for a ski-pack sold on the transfer coach. The tour operator's liability for excursions appears, therefore, to fall into two separate categories. If the representative or the publicity material makes it clear that the excursion will be provided by a local supplier, the tour operator is unlikely to owe a duty to the claimant. If the existence of the independent supplier is not adequately disclosed, however, then the tour operator could be liable for the negligence of the supplier. In light of this, tour operators should pay close attention to the wording of their brochures and excursion publicity material if they do not want to bear the burden of liability for excursion suppliers.
Dafydd Pugh, BLM London
This law report was contributed by national law firm Berrymans Lace Mawer.
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