Lawyers to the travel and leisure industry
travellers’checks
Autumn 2003
contents
Meeting the needs
of disabled customers
1
School trips a question of safety
4
Tomlinson -v- Congleton
Borough Council & Cheshire
County Council
5
Corporate Governance Update 7
Legal Update
8
New laws on “Split Contracts”
Welcome to the
autumn edition....
Consumer safety has long been a
priority for all our readers and is
the focus of this issue of
travellers' checks. We comment
on last month's gaoling of school
teacher Peter Ellis following the
death of a ten year old in his
school tour, Max Palmer. We also
analyse the duty on tour
operators to inspect premises in
the light of recent cases.
With the help of our guest
contributors Peter Huntingdon,
Chief Executive of Transfed, and
David Phillips of the charity
Holiday Care, we look at the
impact of future changes in the
law for service providers and
suggest steps you should be
taking now.
www.ngj.co.uk
Meeting the needs of disabled customers
The main provisions of the Disability
Discrimination Act 1995 ("DDA")
became effective in December 1996.
The final provisions of Part III, the duty
to make adjustments, come into force
in October 2004.
The DDA is the first comprehensive
piece of legislation designed to
address the issue of discrimination
against people with disabilities. The
DDA is not just about wheelchair
users, ramps, wide doorways and
accessible toilets - fewer than 10% of
disabled people, are wheelchair users.
It is more about the way disabled
people are treated.
It is unlawful to treat a person
unfavourably by reason of their
disability unless there is justification for
doing so under the DDA. It is already
a requirement to:!
Make reasonable adjustments to
practices, policies or procedures
which make it difficult for disabled
people to use a service; and
!
Provide aids or services which
would make it easier for them to
use a service; and
!
Provide a reasonable alternative
method of making services
available to disabled people where
a physical feature makes it
impossible or unreasonably difficult
for disabled people to make use of
the service.
travellers’checks
From 1 October 2004 service providers
will have an additional duty to:!
Remove, alter or provide a
reasonable means of avoiding
physical features (or a reasonable
alternative method of making the
service available) which make it
impossible or unreasonably difficult
for disabled people to use their
service.
It is important to understand the
extent to which changes to premises
may be required and how to
implement any changes if you are a
freeholder or leaseholder. The duty to
make physical adjustments applies to
premises in the UK whether held
freehold or under a lease and covers,
for example, retail outlets, offices,
airports and ports. Small businesses
with fewer than 20 employees have
been exempt from DDA requirements,
but from 1 October 2004 this
exemption will no longer apply.
We recommend you start considering
what physical adjustments may be
required to your premises now. The
points you should be thinking about
are as follows:-
All Premises
!
Consider a disability audit of
your premises - a non
exhaustive list of adjustments
which may be needed would
include widening doorways,
installing ramps, including
tactile buttons in lifts, changing
levels of light and other
switches or handles
!
Obtain the views of disabled
customers - they know best
what hurdles they face
2
!
Train your employees on DDA
generally, and how to deal with
requests for a reasonable
adjustment
the DDA but may be subject to future
legislation). Specialist charities such as
Holiday Care can provide more
information about making the
necessary changes.
Leaseholder
!
Check your lease to see if it
provides that alterations may
be made with or without
consent - if not DDA will imply
such wording
!
Apply now to your landlord for
consent to allow plenty of time
for approval
We asked David Phillips of the charity
Holiday Care, to comment on the new
provisions in the light of the needs of
disabled customers.
Since the Disability Discrimination Act
(DDA) was introduced in 1996, much
has been written in the travel press
about meeting the needs of disabled
customers. But this year in particular
it is more important than ever to
review what is being done to meet
the needs of those who have specific
access requirements, as 2003 has
been designated the 'European Year
of Disabled People'.
In addition, in October 2004 the final
phase of Part III of the DDA will be
introduced in the UK. This will require
all providers of goods and services to
have considered what adaptations to
premises might be reasonable to
facilitate access by disabled customers,
including those with sensory
impairment. In a travel context this
means that retail agencies, UK termini
(including airports) and tour operators
with public access will all have to
consider these issues (means of
transport are currently exempt under
However, catering for disabled
customers isn't just about premises.
Travel agents, tour operators and UKbased airlines all need to review the
way in which they handle enquiries
from disabled customers - not only
through shops, but also via the
internet, reservations offices and
direct line sales.
The web is an increasingly powerful
business tool both for the
information, which it makes available,
and the transactions, which it
facilitates. So giving disabled
customers equality of access to this
service is important. The way in
which business websites are
developed has considerable
significance for visually impaired
customers, for example, as they rely
upon a Microsoft-friendly text reader
to scan and read the text to them.
There are a number of systems that
can be used to check how userfriendly a site is - e.g. 'Bobby
Approved'.
Accuracy of information given to
customers is a priority for all travel
businesses and this applies equally to
disabled customers. For example, the
means by which data about suitably
accessible accommodation is collected
and disseminated is critical in this
respect. If a wheelchair user requires
a ground floor room, it is vital to
ensure that such a room really does
exist and that this is recorded as a
requirement for the holiday and not
simply a request. Enquiries should be
Autumn 2003
made about the suitability of transfers
between the airport and the chosen
accommodation as some 'package'
arrangements may include a transfer
using a vehicle that has several steps
to gain access. If this is part of the
'package' then an alternative and
accessible means of transfer will need
to be provided. Consideration should
also be given to the accessibility of
excursions.
Holiday Care provides a primary
source of reference to disabled people
wishing to travel in the UK and to
some 40 overseas destinations. It also
provides a consultancy service to the
travel industry to help businesses meet
the needs of disabled customers and
to review their operations in the light
of the DDA.
Holiday Care, 7th Floor Sunley House,
4 Bedford Park, Croydon CR0 2AP
Information Helpline: 0845 124 9971
Travel Industry Advisory Services:
Tel: 0845 124 9974;
Email:holcare.consult@virgin.net
Web: www.holidaycare.org.uk
'Bobby Approved' - Contact:
Watchfire International Headquarters,
211 Piccadilly, London W1J 9HF
Tel: 020 7917 2962;
Web: www.bobby.watchfire.com.
We also asked Peter Huntingdon,
Chief Executive of Transfed to
comment on its response to the
changes.
It is four years since the video "It's a
Bloody Nuisance" and training guide
were launched by TRANSfED, the
training arm of the Confederation of
Passenger Transport, at Coach and
Bus 1999. In the intervening period
the law has changed (October 2002)
to include duties affecting the
conduct of coach and bus drivers and
conductors, and the number of fully
accessible DDA - compliant buses
equipped with accessible features
continues to grow.
With this in mind, there is a clear
need for up to date training material
to help PCV operators and drivers
understand and comply with legal
duties and responsibilities. It is the
intention of the Department for
Transport and the industry, through
TRANSfED, to update both the video
and the guide and initial estimates are
that this will cost in the order of
£65,000-£70,000.
DfT will be making a financial
contribution to the project but we are
also keen to secure financial input
from the industry. The initial response
has been encouraging and we are
now well under way with the project.
However, it is not too late for
contributions from all interested
associated companies, so that we can
produce a high quality product that
fully meets the industry's training
needs.
Companies representing urban, inter
urban and rural services have been
identified and filming began at the
beginning of October. It is hoped that
both the video and the amended
guide will be ready by the end of
November.
TRANSfED plans to produce sufficient
copies for all bus operators to receive
a free copy for each of their operating
bases together with a copy of the
guide. All 3,000 of the print made in
1999 have now been distributed and
it continues to be widely used within
the industry. Additional copies of the
video and the guide will also be
available at a minimal cost to all
companies and organisations who
have an interest in this subject.
Expressions of interest should be sent
to John Smith c/o TRANSfED, Regency
House, 43 High Street,
Rickmansworth, Herts WD3 1ET.
3
travellers’checks
School trips - a question of safety
At the end of last year, the
Department for Education and Skills
issued new guidelines entitled
"Standards for Local Education
Authorities in Overseeing Educational
Visits". In February 2003, we hosted
a seminar which suggested practical
solutions to reduce potential liability
of tour operators, transport providers,
teachers, educational visits coordinators or anyone involved in the
planning of trips for groups of young
people.
The conviction for manslaughter of
school teacher Paul Ellis on 23
September 2003 has highlighted the
need for proper safety systems to be
in place before any school trip is
undertaken. The conviction arose out
of the tragic death of 10 year old Max
Palmer on a school outing to the Lake
District. Paul Ellis was described by
the Judge as "unbelievably foolhardy
and negligent" for allowing Max to
jump into a mountain pool following
heavy rain.
John Dunford, General Secretary of
the Secondary Heads Association is
quoted as saying "The plea of guilty
will regrettably make teachers think
twice about leading school trips".
This was echoed by David Hart,
General Secretary of The National
Association of Head Teachers who
said "Teachers might be deterred from
running school trips in the future if
they feel that they are at such risk,
they could end up in the criminal
courts".
Mr Hart advised teachers to follow the
guidelines issued by the Department
4
for Education and Skills on assessing
and organising school trips and
overseas visits.
These guidelines recommend that
Local Education Authorities should list
questions which schools should ask
contractors, such as tour operators,
relating to safety management, and
what to look for in the replies.
Further, teachers should obtain
assurances from service providers that
risks have been assessed. It is good
practice to seek details of any
independent inspection based external
verification.
School tour operators need to be in a
position to answer the detailed
questions that are asked by Local
Education Authorities and schools.
They can only do so if they have a
properly developed and implemented
health and safety policy and
procedure. It needs to be reviewed
regularly. The same is true for any
company in the travel industry both
for the well being of its staff and
clients. A good policy should ensure
that the highest reasonable standard
of safety for clients and staff is
achieved. This means:!
Taking all reasonable measures to
reduce the risk of accidents.
!
Ensuring that the component parts
of our tours comply, where
applicable, with local national
and/or international standards, and
maintaining records.
!
Actively promoting safety
awareness, continual assessment
and improvement, both in the UK
and overseas.
!
Ensuring that the training provided
to staff equips them to give
accurate advice, and to carry out
their duties.
!
Ensuring that all directors and
members of staff are trained to
respond quickly and efficiently in
the event of an emergency.
!
Monitoring safety standards and
reporting matters of concern to
the immediate attention of the
directors of the company.
We have many years of experience in
this area and are happy to provide inhouse training courses on health and
safety and can review or help you to
produce health and safety policies and
procedures.
Please contact either Cynthia Barbor
or Laura Harcombe for further
information.
Autumn 2003
Tomlinson -v- Congleton Borough Council &
Cheshire County Council House of Lords July 2003
In the last edition of Travellers'
Checks, we reported on our
successful defence of the claim
brought against JMC Holidays by Liza
Jones. Tragically, Mr Jones drowned
on the second day of his honeymoon
after wading in the lagoon
surrounding the resort of Fun Island
where he and his wife were staying.
The Judge said that adult holiday
makers like Mr and Mrs Jones must be
taken to know that the sea bed is not
even and that there is nothing
unusual about changes in depth.
They must be taken to appreciate that
the sea is capable of springing
surprises.
The Tomlinson case, which we report
below, did not involve a foreign
package holiday but a claim for
damages for personal injury pursuant
to section 1(3) of the Occupiers'
Liability Act 1984. However, we
believe that parallels can be drawn
between the duties owed by occupiers
of premises and the duties owed by
tour operators to their customers.
This important judgment of the House
of Lords is relevant to all companies
involved in the travel and leisure
industry.
The Claim
Mr Tomlinson's claim arose from an
injury he sustained in May 1995,
when he dived into a disused quarry
which had formed a 14 acre lake and
sandy beach at Brereton Heath Park, a
site owned and occupied by
Congleton Borough Council and
managed by Cheshire County Council.
To the Councils' knowledge, the lake
had become a popular place to swim
and there had been a history of
accidents. The Councils had been
aware that the lake was shallow and
dangerous for a number of years and
had attempted to stop swimmers
from using the lake by erecting
warning notices, "DANGEROUS
WATER. NO SWIMMING" and,
through their rangers, distributing
leaflets and warning people of the
dangers. In 1990, they had agreed to
landscape and plant the beach area in
an attempt to stop people using it,
although this work had only just
begun in 1995 shortly before Mr
Tomlinson had his accident.
Mr Tomlinson had, from a standing
position where the water only reached
his mid-thigh, dived into shallow
water, struck his head and suffered a
broken neck. He is now a tetraplegic
and unable to walk. It was not
disputed that Mr Tomlinson had seen
and ignored the warning signs, so
that he had become a trespasser
rather than a visitor within the
meaning of the Act.
Mr Tomlinson's Case
Mr Tomlinson's case against the local
authorities was that, as occupiers, it
was their breach of duty of care
towards him which was the cause of
the accident. Under s.1(1) of the
Occupiers Liability Act 1984, a duty of
care only arises for persons other
than visitors (i.e. trespassers) in
respect of:
'any risk of their suffering injury on
the premises by reason of any danger
due to the state of the premises or to
things done or omitted to be done on
them'
5
travellers’checks
It was Mr Tomlinson's contention that
the Council was under a duty to take
reasonable care to see that he did not
suffer injury by reason of the danger
from diving. Although in appropriate
cases it may be sufficient to warn or
discourage, the notices in this case
had been patently ineffectual and,
therefore, it was necessary to take
more drastic measures to prevent
people like himself from going into
the water.
The Judgment
High Court
Mr Tomlinson's case was originally
dismissed by High Court judge, Mr
Justice Jack, in March 2001. The
judge ruled that the risks of diving
into the lake were obvious, and
neither council could be blamed for
the tragedy.
Court of Appeal
Mr Tomlinson appealed and in March
2002, the Court of Appeal decided
that as the Councils knew that steps
taken to dissuade swimmers were
ineffective, they were in breach of
their duty of care by failing to carry
out a plan for landscaping which
would have been comparatively simple
and inexpensive and would have
prevented people from using the
beach and swimming. The number of
accidents was above the norm and
the attempts by the Council to stop
swimmers using the lake were known
to be ineffective. Comparatively
inexpensive and simple deterrent
works could have been carried out.
The Court did, however, uphold the
Judge's assessment of two thirds
contributory negligence on the part of
the Claimant.
6
House of Lords
The decision of the Court of Appeal
was overturned by the House of Lords
on 31 July 2003. The Law Lords held
that there was no risk to Mr
Tomlinson from the state of the
premises or from anything done or
omitted to be done at the premises.
The Councils therefore owed no duty
of care under the Occupiers' Liability
Act.
The risk of Mr Tomlinson striking his
head on the lake bottom was one
arising from a natural feature of the
lake. The relevant characteristics of
the lake were obvious to Mr
Tomlinson and he did not need to be
warned against the risk. The warning
signs gave him no information beyond
what was already obvious. The risk of
striking the lake bottom from diving,
in what he knew to be shallow water
and the risk of injury therefrom, was
not one against which the Councils
might reasonably be expected to have
offered him some protection under
the Act. Accordingly, the Councils
owed Mr Tomlinson no duty of care.
The House of Lords also said it would
be unreasonable to impose on public
authorities a duty to protect persons
from self-inflicted harm sustained
when taking voluntary risks in the face
of obvious dangers. Even if swimming
had not been prohibited and even if
the Councils had owed Mr Tomlinson
a duty it would not have required
them to prevent him from diving or
warn him against dangers which were
perfectly obvious.
Mr Tomlinson was a person of full
capacity who had voluntarily and
without any pressure or inducement
chosen to indulge in an activity that
was inherently dangerous. Local
Authorities and other occupiers were
ordinarily under no duty to incur social
and financial cost to protect a
minority of people against obvious
danger.
Lord Hoffman said:
"It will be extremely rare for an
occupier of land to be under a duty to
prevent people from taking risks
which are inherent in the activities
they freely choose to undertake upon
the land. If people want to climb
mountains, go hang gliding, or swim
and dive in ponds and lakes, that is
their affair."
Lord Hoffman continued:
"I think there is an important question
of freedom at stake. It is unjust that
the harmless recreation of responsible
parents and children with buckets and
spades on the beaches should be
prohibited in order to comply with
what is thought to be a legal duty to
safeguard irresponsible visitors against
dangers which are perfectly obvious.
The fact that people take no notice of
warnings cannot create a duty to take
other steps to protect them. … A
duty to protect against obvious risks
or self inflicted harm exists only in
cases in which there is no genuine
and informed choice … It is of course
understandable that organisations like
the Royal Society for the Prevention of
Accidents should favour policies which
require people to be prevented from
taking risks. Their function is to
prevent accidents and that is one way
of doing so. They do not have to
consider the cost, not only in money
but also in deprivation of liberty,
which such restrictions entail. The
Courts will naturally respect the
technical expertise of such
Autumn 2003
organisations in drawing attention to
what can be done to prevent
accidents. But the balance between
risk on the one hand and individual
autonomy on the other is not a
matter of expert opinion. It is a
judgment which the Courts must
make and which in England reflects
the individualist values of the common
law."
Corporate Governance update
Further to the Higgs Report released
earlier this year (on the role and
effectiveness of non-executive
directors in UK listed companies) a
new Combined Code of Principles of
Good Governance and Best Practice
has today been published. The new
Combined Code will come into effect
for reporting years beginning on or
after 1 November 2003. Thereafter,
companies should report on their
compliance in their annual report and
accounts.
!
Appointment and tenure
!
Comment
In our view, this important judgment
is likely to have far reaching effects.
There has been a tendency for those
who represent the interests of
consumers to allege that local
authorities, hoteliers or tour operators
are liable whenever an accident occurs
resulting in injury or death. In the
context of foreign package holidays,
this has resulted in suggestions that
operators should accept responsibility
for conducting safety audits of
seabeds, shore lines and beaches,
whether or not these form part of the
package sold to customers. A logical
extension of this proposition would be
for operators to inspect all areas
surrounding holiday accommodation,
such as, for example, cities on City
Break holidays and mountain paths in
the Tyrol. This would be unworkable
and unreasonable. Whilst operators
should warn customers about known
dangers, we do not believe that they
can accept the degree of responsibility
which some consumer representatives
maintain is necessary, nor do we
believe that such obligations are
imposed by law. The judgment in this
case confirms our view.
The new Combined Code is
substantially different to that
proposed on publication of the Higgs
Report. The principal differences from
the current Combined Code are:
!
!
Board balance
!
At least half the members of the
board should be independent nonexecutive directors. There is an
exception for smaller listed
companies (i.e. those outside the
FTSE 350) who need only include
two such independent nonexecutive directors.
Chairman and the chief
executive
!
!
The same individual should not act
as both chairman and chief
executive.
The chief executive should not
become chairman of the same
company.
The role of the non-executive
director and the senior
independent director
!
The chairman should hold regular
meetings with the non-executive
directors without the executives
present.
A senior independent director
should be available to receive
shareholders' concerns which
cannot be resolved through the
normal channels of contact with
the chairman, chief executive or
finance director.
!
The nomination committee should
consist of a majority of
independent non-executive
directors.
Any term beyond six years for a
non-executive director should be
subject to rigorous review.
Executive directors should not take
on more than one non-executive
directorship in a FTSE 100
company nor become chairman of
such a company.
No individual should be appointed
to a second chairmanship of a
FTSE 100 company.
Although the Combined Code only
binds companies on the Official List it
is anticipated that AIM companies will
continue to follow it as a matter of
best practice. Compliance is often
seen as necessary to meet the high
standards of corporate governance
required to attract and retain
institutional investors.
This will not affect our non-listed
clients.
For advice on corporate
governance issues please contact:
Stuart Borrie on 020 7360 8155.
7
travellers’checks
Legal Update:
New laws on “Split Contracts”
As readers are aware, "split contract"
sales are arrangements by which a
holiday company sells a flight and
accommodation, or other travel
products such as car hire as a prearranged package but under separate
contracts which may or may not be
protected. This creates a gap in
consumer protection as there is a risk
of financial loss if a service provider
fails and there is no financial
protection in place.
In the Spring 2003 edition of
"Travellers' Checks", Helen Simpson,
Director of the Consumer Protection
Group of the Civil Aviation Authority
("CAA"), reported on the CAA's
public consultation process on their
proposed amendments to the ATOL
Regulations, to deal with contract
splitting.
On 16 July 2003 the Department for
Transport laid before Parliament new
Who to contact
For further information contact
Cynthia Barbor or Laura Harcombe.
cynthia.barbor@ngj.co.uk
laura.harcombe@ngj.co.uk
8
Regulations which reflect the
recommendations made by the CAA.
The new Regulations came into force
on 8 October 2003 and companies
who now sell package holidays on the
basis of split contracts will either have
to obtain an ATOL or stop selling such
packages.
The CAA has prepared guidance on
the steps that companies need to take
in order to obtain an ATOL. This
includes new streamlined processes
for companies selling fewer than 500
seats each year in order to reduce the
licensing burden. The CAA is also
developing, in conjunction with third
parties, arrangements under which
ATOLs may be issued to small
businesses on the basis of protection
offered by those third parties.
Travellers' Checks will keep you
informed of the latest developments.
Nicholson Graham & Jones
110 Cannon Street, London EC4N 6AR
020 7648 9000 www.ngj.co.uk
Internationally a member of GlobaLex.
The contents of these notes have been
gathered from various sources. You
should take advice before acting on any
material covered in Travellers’ Checks.