Holidays in the sun
Going away is something that we all look forward to. It provides a welcome release from the day-to-day of normal life. However, with this new-found freedom comes increased risk of personal injuries.
The risks become even more significant in a foreign country. When abroad, we can be exposed to simple enhanced risks like the change in direction of road traffic as a pedestrian, or driving on the right-hand side of the road.
Aside from this, holidaymakers may also engage in activities that they may not have experienced at home, which carry further risks of personal injury – even something simple like hiring a moped.
These are claims that legal practitioners will not see every day, and they can require careful consideration. When there is a jurisdictional element to a personal injuries claim, suddenly the basic questions of where to sue, who to sue, and how much is the plaintiff likely to recover become much more complex.
Here, we consider some of the relevant legal provisions for litigating personal injuries accidents in the context of Irish customers purchasing holiday packages abroad, with specific emphasis on packages purchased in Ireland, Britain and the European Union.
Everywhere
The contractual relationship that gives rise to the accident abroad becomes extremely important in terms of attaching liability to defendants. Consider this: an Irish-based holidaymaker books a family package holiday in Mexico through a package-holiday provider, also based in Ireland.
On the holiday, the husband slips and falls on alleged dangerous tiles at the hotel swimming pool. He is rushed to the local hospital and admitted for three weeks with a head injury. His ultimate recovery back in Ireland takes 12 months, where he is unable to return to work.
There is a significant loss-of-earnings claim and post-accident treatment expenses back in Ireland. Suddenly, it becomes easy to imagine a problematic and complex claim. Issues of privity of contract between the plaintiff and the package-holiday provider would arise in normal circumstances.
Package-holiday providers can include travel agents, retailers, and organisers within the legal relationship. These distinctions can become important when considering liability, how the holiday package was sold, and where it was sold.
A number of these legal issues can be resolved by making a claim under the Package Holidays and Travel Trade Act 1995.
The act transposed Council Directive 90/314/EEC of the European Communities on package travel, package holidays and package tours. Section 2(3) of the 1995 act provides: “This act applies to packages offered for sale or sold in the State.”
However, the interpretation of ‘offered for sale or sold’ under the 1995 act requires the organiser of the package to be established within the State or to have a travel agent or retailer selling a package directly in the State. In this regard, you might have a travel agent selling a package holiday for an organiser abroad, with other third parties possibly providing the services abroad.
Under the legislation, a ‘package’ is a combination of at least two components, whether transport, accommodation, or tourist services arranged by the organiser.
The service should cover a period of more than 24 hours or include overnight accommodation.
Dreadlock holiday
A key benefit of suing under section 20 of the 1995 act is that the legislation allows the customers to establish vicarious liability in respect of the organiser for the negligent acts of other third parties that provide services under the package.
Notwithstanding, there must actually be negligence under the test established by the Supreme Court in Scaife v Falcon Leisure Group (Overseas) Ltd – that is, the test is not one of strict liability, but the services must be performed with reasonable skill and care.
The 1995 act also recognises that a customer can be a ‘principal contractor’ or a ‘beneficiary’, allowing beneficiaries to overcome the privity of contract rules that would normally preclude the non-contracting party from suing the travel agent or organiser.
Because of the requirement under the 1995 act for the organiser (or travel agent, or retailer, as the case may be) to be established within the State, the legislation has, in many respects, fallen behind commerce and innovation with the advance of internet selling.
In more recent years, linked travel arrangements have become much more popular.
This can lead to many package holidays falling outside of the scope of the 1995 act. Technology has given consumers far more options to book their own flight connections and packages through organisers abroad.
Roam
Many holiday package providers target consumers in other member states for package holidays, though not established in that member state.
Thomas Cook closed its Irish package-holiday operation in 2014 to grow its online business from Britain. The managing director of Thomas Cook UK, Reto Wilhelm, commented: “Our proposal to offer greater personalisation and flexibility to our Irish customers through our dedicated website reflects our high-tech, high-touch business strategy.”
If a customer were to purchase a package in this way, but arrange their own flights to where the package originated from, they might find themselves unable to rely on the 1995 act.
In these circumstances, the customers would still be relying on the 1990 directive, but suing in the defendant’s member state.
For example, if a customer purchased a package holiday through a British provider departing from Stansted, but booked their own flights leaving from Ireland to get to Stansted, this would mean they could not sue under the 1995 act, but could sue under Britain’s Package Holidays and Package Tours Regulations 1992.
The 1992 act does the same as the 1995 act, but the Irish customers would have to sue in Britain and would, no doubt, recover less in damages under the British courts’ personal injuries regime.
If a plaintiff found themselves outside the scope of the 1995 act, but still wanted to sue from Ireland, they could possibly rely on the special jurisdiction rules for consumers under section 4 of Council Regulation 1215/2012 (Brussels 1 Recast).
The section 4 consumer jurisdiction rules can oust the default jurisdiction rules under the regulation. The default rules can be unhelpful in the context of holiday packages, because they require the plaintiff to sue a defendant in their own member state or where the contract is performed. Brussels 1 Recast came into force in Ireland on 9 January 2015 through the European Union (Civil and Commercial Judgments) Regulations 2015 (SI 6 of 2015).
Fly away from here
Article 17 of Brussels 1 Recast allows a consumer who is acting outside their trade or profession to sue the other contracting party in the consumer’s own member state if it can be demonstrated that the party selling the package pursued commercial or professional activities and directed those activities into the member state where the consumer is domiciled.
Therefore, you might have a company directing marketing activities into a member states through emails, adverts, websites and Google, or other online marketing campaigns, which can pull them within the scope of article 17.
Article 18(1) provides: “A consumer may bring proceedings against the other party to a contract, either in the courts of the member state in which that party is domiciled or, regardless of the domicile of the other party, in the courts for the place where the consumer is domiciled.”
The application of article 17(1)(c) in terms of what constitutes ‘commercial or professional activities’ has been considered by the European Court of Justice (ECJ). In Pammer v Reederei Karl Schlüter GmbH & Co KG, the court held that the change to the wording between the Brussels Convention and Brussels 1 were to give greater protection to consumers.
The professional activities caught by article 17(1)(c) are, in that regard, wider than that of the earlier Brussels Convention. A professional directing marketing emails, such as offers directed to consumers, into a member state is certainly evidence of directing activities under article 17(1)(c).
Here I go again
It gets more complicated in respect of online marketing and websites. When an internet search is carried out, it is not always obvious, and can be hard to link how the organiser or retailer is directing activities into a member state. Just because a professional creates a website, it does not follow that they are targeting global business or a particular member state where the consumer is domiciled.
In Pammer, the ECJ held that the court needed to consider whether the professional party has “manifested its intention to establish commercial relations with consumers from one or more other member states, including that of the consumers domicile”.
The mere fact the consumer can access the website would not mean that the test was satisfied; nor would the mention on the website of an email address, geographical address, or telephone number without an international dialling code.
Examples of evidence where the intention to solicit might be apparent include specific references to the goods or services offered in a given member state, or money spent on search-engine optimisation services for that country.
Examples
There may be other less obvious examples.
In Pammer, the ECJ stated that the following factors were relevant: “The international nature of activity at issue, such as certain tourist activities; mention of telephone numbers with the international code; use of a top-level domain name other than that of the member state where the trader is established, for example ‘.de’, or use of a top-level domain names such as ‘.com’ or ‘.eu’; the description of itineraries from one or more other member states to a place where the service is provided; and mention of international clientele composed of customers domiciled in various member states, in particular by presentation of accounts written by such customers.
In Emrek v Sabranovic, the ECJ declined to impose an additional requirement that there be a direct causal link between the activities relied upon (such as setting up an internet site) and the conclusion of the contract. Clearly, however, such activities would be indicative evidence to the court where jurisdiction was being sought, and to which it should have regard.
There is no requirement for the contract to have been concluded in the consumer’s member state, nor does the consumer need to take any steps to conclude the contract in their member state.
This was one of the key differences between the Brussels Convention and Brussels 1, and continues to be a feature of Brussels 1 Recast.
King of the road
In order to strengthen the protection of consumers around linked travel arrangements and modernise the law, the EU has introduced the Package Travel and Linked Travel Arrangements Directive (Directive 2015/2302). The ‘linked travel arrangement’ (LTA) will apply when a traveller pays for two or more travel services on a business’s point-of-sale device.
Interestingly, in the preamble to the directive, it is noted how the traditional way of selling packages has been replaced by customised packages that are sold on the internet. The preamble states: “Many of those combinations of travel services are either in a legal grey zone or not covered by Directive 90/314/EEC.”
Directive 2015/2302 enhances the protection for customers by enforcing additional insolvency contingency requirements on package organisers within member states.
The directive now makes organisers automatically liable for services provided by their third-party business partners who provide the direct services under the package – for example, the hotel providing accommodation or the charter airline providing the flight transfers under the package.
Under the 1990 directive, organisers could be held vicariously liable for negligent acts, but the new changes further enhance customer protections.
The directive also provides enhanced pre-contractual information disclosure obligations and more favourable cancellation options for customers, including no termination fees where the customer has to cancel for “unavoidable and extraordinary circumstances”.
Directive 2015/2302 was required to be transposed and be in force on 1 July 2018 in member states.
The obligation to introduce this directive through legislation falls on Transport Minister Shane Ross. This issue has come up in Dáil parliamentary questions twice recently.
The issue was last raised by Deputy Noel Rock and answered on 23 January 2018 by Minister Ross, who stated: “Officials in my department are currently working on regulations to amend the relevant provisions of these instruments with a view to promulgating the regulations ahead of the 1 July 2018 deadline.”
At the time of writing, unfortunately, there is no draft legislation available or published in Ireland. Interestingly, Britain is set to leave the EU and has had the draft legislation published on their website since 24 May 2018.
The minister must be busy advancing reform of judicial appointments!