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Holiday Company Liability: Greater EU Regulation Needed?

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About The Author

Sophie Cole-Hamilton (Writer)

Sophie is a second year law student at the University of Birmingham. Sophie aspires to qualifying as a solicitor, with an interest in all areas of private law. Outside of her studies, Sophie is part of the Birmingham Law School pro bono group and has a passion for writing.

In 2006, two children went on a Thomas Cook package holiday with their family. Bobby and Christi Shepherd, aged 6 and 7 respectively, died tragically of carbon monoxide poisoning after a defective boiler leaked in their Corfu holiday apartment. Their father and his partner, Neil Shepherd and Ruth Beatson, were comatose following the leak but later recovered. Following a nine year legal battle by the Shepherd children’s parents, an inquest jury found last month that Thomas Cook had breached their duty of care. The family’s long-term legal proceedings have coincided with the convictions of several hotel staff and the controversial acquittals of Thomas Cook employees in the Greek courts for manslaughter, where it was said that the defendants ‘were not responsible for bringing about the lethal outcome’ of the Shepherd children’s deaths in failing to investigate the safety of the boiler.

Following this conclusion by the coroner, the Crown Prosecution Service (CPS) may bring criminal proceedings against Thomas Cook employees if they have sufficient evidence to do so. On behalf of the family, Leslie Thomas QC stated that Thomas Cook ‘should hang their head in shame’ for their failure to provide adequate health and safety checks, which would have prevented the children’s deaths.

Thomas Cook has also been brought into disrepute for the lack of responsibility taken for the deaths of the Shepherd children. This has fuelled debate surrounding the need for further EU legislation to protect consumers from negligent holiday companies, and has led to speculation as to whether the EU should implement further legislation enforcing health and safety across Member States. During the Shepherd family’s legal proceedings, Thomas Cook attempted to put the blame on the hotel in which the family stayed. The company’s current chief executive Peter Fankhauser has even gone so far as to say ‘I feel so thoroughly, from the deepest of my heart, sorry, but there is no need to apologise because there was no wrongdoing by Thomas Cook’. This worrying attitude is unfortunately widespread amongst travel companies, and such attitudes may fail to protect consumers from similar tragic circumstances occurring. Thomas Cook’s reputation has understandably been brought into serious jeopardy following their apparent lack of care and compassion for the family.

Unfortunately, the plight of the Shepherd family is not lone-standing; it has been estimated by the UK Federation of Tour Operators that as many as 600 British tourists die on package holidays per decade due to negligent behaviour of travel companies. Thomas Cook’s attitude and the finding of their negligent behaviour has led the West Yorkshire Coroner, David Hinchliff, to announce that he will make a series of recommendations to holiday companies and other relevant bodies later this year regarding health and safety abroad. He stated during the inquest that he hoped this would influence a change in the law, both domestically and within the EU, and hoped these recommendations would also affect attitudes and practices within the holiday industry. In line with those prospective recommendations, this article will examine the current law surrounding holiday companies’ liability both domestically and within the EU, and whether the current law adequately protects consumers.

Current ‘package holiday’ legislation

In 1992, the European Council issued a directive on package holidays which was implemented into English law through the Package Travel, Package Holidays and Package Tours Regulations 1992 (‘Regulations’). The purpose behind this legislation was to make package holiday firms responsible for the third-party accommodation they provide and the services they offer. The Regulations include provisions concerning the contractual liability of package holiday providers, including Thomas Cook and similar companies, and the liability for price rises. Despite it being an important piece of EU legislation, the Directive only imposes a duty for companies to act within ‘local standards’ of health and safety in each resort. Further to this, there is no requirement for tour operators to conduct individual health and safety inspections.

Although the provisions contained in the Regulations may appear vague in application, such ambiguity allows for the autonomy of Member States to be maintained and for the EU to take a harmonious and non-imposing approach towards domestic law. This gives sovereign parliaments across Europe the legislative room necessary for adjusting health and safety laws to particular, domestic circumstances. Throughout the EU, such vagueness and the respect for Member States’ autonomy is a prevalent theme. Despite this, further interference on the EU’s part may be justified in order to prevent potential dangers for package holiday consumers, including those associated with carbon monoxide. Maintaining Member States’ autonomy whilst ensuring that the EU protects consumers is a difficult balance to achieve, and a discussion as to how this goal might be attained will form the key discussion throughout this article.

In spite of the Directive attempting to bring Member States’ laws on package holidays into uniformity, given the wide range of ’local standards’ that are present across the EU, this is often ineffective. The case of the Shepherd family represents a tragic portrayal of this issue – the Louis Corcyra Beach hotel they visited was located in Greece, where the standards on regular boiler checks are devastatingly lax.

Given the narrow scope of these provisions in regard to the ‘local standards’ requirement, the Association of British Travel Agents (ABTA) has called for a consistent standard to cover carbon monoxide safety across the EU. However, it is unlikely this will be achieved within the near future; ABTA’s Chief Executive, Mike Tanzer, has said that ‘ABTA has been working in Europe to develop hotel standards for many years; the frustration is that safety standards are not high on the EU’s agenda’. Given the EU’s current focus on other issues including border control, people-smuggling and the re-stabilisation of the euro zone, it is fairly clear to see why package holiday legislation does not make the cut for the European legislative agenda.

This assertion was also made in a 2006 European Parliament study (‘the Study’) into package holiday travel liability, which highlighted that accident and injury on package holidays was an ‘essentially invisible’ problem that has received only minor attention from the EU, with almost no data being available on its prevalence. The study sought to highlight the problems with the lack of current EU legislation; specifically, it was said that both the national laws and the EU law were piecemeal and wholly inadequate in regulating tourist safety.

Despite the persuasive findings of the 2006 Report, which clearly highlight the need for protecting package holiday consumers, no provisions have thus far been implemented successfully in order to create harmonious laws across all Member States. The Report highlights the failure of the 1992 Directive in unifying health and safety standards across Europe, given the lax nature of the ‘local standards’ test, by asserting that improvements which could further protect tourists have been neglected. Therefore, the report implies that further legislation needs to be implemented by the EU to ensure uniformity of health and safety regulations in the context of holiday companies across the EU. It is therefore necessary to discuss whether further attempts by the EU at uniformity are advisable, or whether Member States should have continuing autonomy on their respective health and safety regulations. This allows us to gauge what the EU’s next move should be to prevent further illness, injury and fatalities to tourists.

How can EU package holiday regulation be improved?

A significant problem in terms of implementing the package holiday provisions contained in the Regulations exists in weighing up whether to respect Member State autonomy or whether to create restrictive legislation promoting harmonious regulation across Member States. The conflict between these two ideological approaches to law-making permeates several areas of EU law. This, coupled with the risk of an influx of cases in both the EU and national courts, legitimates the EU’s reluctance to legislate on such matters. Such an influx would place a significant burden upon the European Courts, whose current backlog of cases was already deemed ‘unacceptable’ by the Lords Justice, Institutions and Consumer Protection EU sub-committee in 2013.

Despite the need to unburden the European Courts from excessive casework, including holiday liability litigation, it would nonetheless appear that some further regulation is needed for the sake of uniform tourist safety. According to the Study, illness is the most prevalent source of holiday companies’ negligence within the EU and occurs regularly; alongside this, the European Parliament recommended the implementation of measures imposing holiday companies’ liability for road traffic safety (e.g. with coach tours), hotel safety, air traffic safety, natural disasters and terrorism. Such categories for legislation are broad in scope but would protect holiday consumers’ from illness, accidents and fatalities which occur as a result of a negligent holiday company or third parties. In relation to the latter two categories, under the European Parliament recommendations, the holiday operators would have a duty to inform consumers of such occurrences and to provide special arrangements for cancellations.

In the report, the European Parliament stressed the need for updated legislation in light of increased numbers of online holiday companies; examples of such companies include Last Minute, Low Cost Holidays and Icelolly, who operate by acting as travel agents for consumers to book holiday packages with a third party. Although such companies comply with the current regulations and provide ATOL protected services, whereby consumers are protected from losing money (for example where their travel provider collapses), the Report argues more EU legislation is necessary. Given that the EU directive on package holidays was implemented in 1992, it cannot be said this works in line with modern technology and the rise in Internet use. Further, the lax nature of ‘local standards’ in different countries across Europe means the implementation of EU legislation involving such measures would surely be beneficial and prevent tragedies such as that experienced by the Shepherd family.

Conclusion

In order to counter health and safety disparities across Europe, the EU proposed in July 2014 to introduce regulations concerning carbon monoxide alarms and independent health and safety inspections, thereby obligating holiday companies to adhere to the relevant common standards. However, it is unlikely such legislation will be prioritised by the EU in the near future given the wide range of other prevalent issues the EU is currently facing. Despite this, it is clear that higher levels of health and safety are required in order to meet current technological needs and to eradicate further negligence by holiday companies.

Such regulations would make it easier for holiday companies such as Thomas Cook and their counterpart Corfu hotel to be held liable for negligence in circumstances similar to those surrounding the deaths of the Shepherd children, and would thus better protect consumers.

It is clear that the current European Union directive imposed upon Member States is somewhat ineffective in protecting families from negligent health and safety procedures across Europe due to the lax ‘local standards’ test, as can be seen from the European Parliament’s recommendations, the unhappiness seen within the national courts and the aforementioned coroner’s prospective recommendations.

Giving countries the freedom to adjust their products and services for holidaymakers on the basis of local standards of health and safety will inevitably result in dangerous situations akin to the defective boiler in the Shepherds’ holiday apartment.

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Tagged: Commercial Law, European Union, Personal Injury, Tort Law

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