Sun, sea and...sue
Rain or rude waiters take the shine off your holiday? Join the queue outside the compensation courts, says Charlotte Reynolds
By the time this article goes to press I will be enjoying the 'seemingly endless expanses of the softest, finest sands and clear, warm azure waters of the Medi-terranean'. Jealous? Well don't be too hasty-going on holiday is a hazardous business these days.
Or so you would think, if the number of travel agents, tour operators and even car-hire companies being taken to court is anything to go by. Litigation-happy holidaymakers are learning to sue, sue, sue, determined to make somebody pay if their holidays disappoint.
As the law stands, for a finding of negligence to be made it is necessary to show that the tour operator did not act as 'the reasonable person' in their situation would have acted. This is an objective standard against which potentially negligent behaviour can be judged.
So, a reasonable car-hire company would ensure that its rental vehicles were roadworthy and one that did not would be at fault. Similarly, a reasonable travel agent would ensure that holiday accom-modation he was recommending was not half-built and one that did not would be at fault.
While this is all well and good, recent developments in the case law reveal a shift away from liability based on fault. The new breed of litigant is not concerned with fault but with making somebody pay when any disaster strikes- natural, self-induced or otherwise.
In 1995 two women won £3000 damages from their tour operator for psychological injury suffered while on holiday in Tunisia. The cause? Obscene gestures and love notes from lustful waiters. Aside from the fact that I know women who would pay extra for this, the implication is clear. Tour operators are to be held responsible for the sexual advances of Tunisian men. Ridiculous? Try this one.
In 1996 the Florida Court of Appeal ruled that a British holidaymaker shot by muggers in Miami could sue not only the car-hire company, but her travel agent and tour operator, for compensation. The idea that Lunn Poly is somehow responsible for the random criminal activities of an individual is ludicrous at best. At worst it presents a fundamentally twisted view of the nature of responsibility and fault. Law centres on the notion of the individual legal subject, capable of rational decision making. To suggest that a travel agent is at fault if a mugger in Miami decides to shoot a tourist undermines the entire concept.
But the acts of third parties are not the only thing that holidaymakers now feel tour operators should have control over. The weather is another popular cause of complaint. More than 400 passengers recently threatened to sue P&O after the cruise ship Oriana ran into a hurricane during a Caribbean voyage, narrowly missing two more. People have always complained about the weather-but whereas in the past rain would mean running for cover, today it is more likely to mean running for a lawyer.
The relatives of three holidaymakers who drowned off the coast of Cyprus are currently suing their travel company for failing to warn them of the risks posed by swimming. First Choice holiday firm apparently now gives a general warning about the dangers of sea bathing. Aside from the fact that First Choice clearly has no control over freak undercurrents, how long will it be before the firm starts advising holidaymakers to remember their armbands and crash helmet?
Holiday accommodation is another frequent cause for complaint. In August judge Anthony Cleary set a legal precedent by flying to a Malta hotel to see the conditions for himself and concluded that 'certainly it was fair value for the rock-bottom prices they paid'. As the brochure said: 'Malta is sub-tropical; cockroaches exist.'
While some of these examples may seem extreme they really are just the tip of the iceberg. (Funny how nobody on the Titanic sued.) They represent a shift away from fault-based liability to something very different, with potentially drastic consequences both at the level of law and of society.
If tour operators are to be liable for third party acts, weather conditions and freaks of nature, then the notion of fault and reasonableness goes out of the window. How can we decide if somebody has acted as 'the reasonable person' would have acted when nothing they could have done would have made a difference? In other words, how can a travel agent act reasonably so as to prevent a hurricane occurring? How can a car-hire com-pany act reasonably so as to prevent muggers shooting tourists? The concept of reasonableness becomes meaningless, and there is no longer any possibility of objectively judging somebody's behaviour or their responsibility. Nothing and everything is reasonable and somebody could be sued for nothing, anything, everything.
Worse still, travel agents will be forced to treat us all like morons, incap- able of dealing with the odd amorous waiter or of coming to terms with the fact that bad weather is simply bad luck. One of the best things about going on holiday is the adventure of it all-travelling to new places, meeting different people, and not quite knowing what to expect. In the future it seems we should expect safe, predictable and frankly boring holidays, where travel agents check to make sure we have packed the correct factor suntan lotion, where tour operators search our handbags at night to make sure we are carrying condoms, and where lifeguards belt us into our deckchairs in case we fall in without armbands.
In the meantime, back to daydreaming about my own holiday. I wonder if I'll have any reason to sue for harassment when I get back. Here's hoping!
Reproduced from LM issue 114, October 1998