YOUR LIABILITY WHEN THE BUTLER CAN'T MAKE A DECENT COCKTAIL David Grant Vantage Insurance Visi2ng Professor of Travel Law Leeds Metropolitan University Alex Padfield Managing Director, Hextalls Limited QUALITY COMPLAINTS COURSE OUTLINE •  Liability of Tour Operators under the Package Travel Regula2ons •  Liability of Travel Agents under the PTR and the Common Law •  Calcula2on of Damages in Holiday Cases Liability of Tour Operators under the Package Travel Regula2ons •  15(1)The other party to the contract is liable to the consumer for the proper performance of the obliga2ons under the contract, irrespec2ve of whether such obliga2ons are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of ac2on which that other party may have against those other suppliers of services. Liability of Tour Operators under the Package Travel Regula2ons 15(2) The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract ... Liability of Tour Operators under the Proposed New Package Travel Direc2ve (11)1 Member States shall ensure that the organiser is responsible for the performance of the travel services included in the contract, irrespec2ve of whether those services are to be performed by the organiser or by other service providers. Liability of Tour Operators under the Proposed New PTD: Extended Defini2on of ‘Package’ (2) 'package' means a combina2on of at least two different types of travel services for the purpose of the same trip or holiday, if: (a) those services are put together by one trader, including at the request or according to the selec2on of the traveller, before a contract on all services is concluded; or (b) irrespec2ve of whether separate contracts are concluded with individual travel service providers, those services are: Liability of Tour Operators under the Proposed New PTD: Extended Defini2on of ‘Package’ (i) purchased from a single point of sale within the same booking process, (ii) offered or charged at an inclusive or total price, (iii) adver2sed or sold under the term 'package' or under a similar term, (iv) combined a\er the conclusion of a contract by which a trader en2tles the traveller to choose among a selec2on of different types of travel services, or (v) purchased from separate traders through linked online booking processes where the traveller's name or par2culars needed to conclude a booking transac2on are transferred between the traders at the latest when the booking of the first service is confirmed; Liability of Tour Operators under the Package Travel Regula2ons Leading Cases •  Hone v Going Places [2001] EWCA Civ 947 •  Wilson v Best Travel [1993] 1 ALL ER 353. Liability of Tour Operators under the Package Travel Regula2ons A classic quality complaint case: •  Dixon v Direct Holidays [2006] CLY 1991 Liability of Travel Agents under the Package Travel Regula2ons and at Common Law Under the Package Travel Regula=ons. Regula=on 4 4(1) No organiser or retailer shall supply to a consumer any descrip2ve mafer concerning a package, the price of a package or any other condi2ons applying to the contract which contains any misleading informa2on. (2) If an organiser or retailer is in breach of paragraph (1) he shall be liable to compensate the consumer for any loss which the consumer suffers in consequence. Liability of Travel Agents under the Package Travel Regula2ons and at Common Law Under the Package Travel Regula=ons. Regula=on 4 •  Mawdsley v Cosmosair [2002] EWCA Civ 587 •  Minhas v Imperial Travel [2003] CLY 2043 Liability of Travel Agents under the Package Travel Regula2ons and at Common Law At Common Law •  McKay v Thomas Cook Retail Limited (t/a Cruise Thomas Cook) (unreported Slough County Court, 29 November 2012) (See [2013] Travel Law Quarterly 11) Calcula8on of Damages in Holiday Cases Three Heads of Damage •  Difference in Value •  Consequen2al Loss •  Damages for Distress and Disappointment Calcula8on of Damages in Holiday Cases Difference in Value •  Jackson v Horizon Holidays [1975] 3 All ER 92 •  McLeod v Hunter [1987] CLY 1162 •  Levine v Metropolitan Travel [1980] CLY 638 •  Hartman v P&O [1998] CLY 3732 Calcula8on of Damages in Holiday Cases Consequen=al Loss •  Harris v Torchgrove [1985] C.L.Y. 944 •  Davey v Cosmos [1989] C.L.Y. 2561 •  Harvey v Tracks Travel [1984] CLY. 1006 Calcula8on of Damages in Holiday Cases Distress and Disappointment •  Jarvis v Swans Tours [1973] 1 All ER 71 •  Milner v Carnival Plc (Trading as Cunard) [2010] EWCA Civ 389 •  Keppel-­‐Palmer v Exsus Travel (2003) All ER(D) 183