Defending lawyers have frequently found problems with firms’ terms and conditions
Lawyers and insurers issued a warning at a recent seminar on excursions liability in London, Travel Weekly reported.
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 firm 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 firm’s logo, 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 which comes in. However, you need to understand your business model and ensure your documents do not contradict it.”
David Grant, professor of travel law at Vantage who organised the seminar, 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.”
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 firms appeared to use terms and conditions cut and pasted from the web. “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,” advised Padfield.
