Wong Mee, (Administratic of the estate of Ho Shui Yee, deceased) vs 1. Kwan Kin Travel Services Ltd, 2. China Travel Services Co, and 3. Pak Tang Lake Travel Service Co, [1995] UKPC 42
Citation: Wong Mee, (Administratic of the estate of Ho Shui Yee, deceased) vs 1. Kwan Kin Travel Services Ltd, 2. China Travel Services Co, and 3. Pak Tang Lake Travel Service Co, [1995] UKPC 42
Rule of thumb: If you are injured on a travel operator holiday, and are injured on an excursion, but the travel agent can prove that none of the local laws were broken through the injury, can you claim? If the local laws are of a very low standard then you can sue the travel agent for not warning you through a disclaimer.
Judgment:
The Court in this case held that if a claim is being made against travel tour operators then it is the standard of skill and care by law in the foreign country that applies in making the case under the 1992 regulations. The Court also held that if the standard of health and safety in the country is extremely low, making a claim against hire sub-contractors based on the foreign law there virtually impossible, then people in the UK holiday goers should be warned about this absence of legal standards there and a failure by a tour operator to warn about this would bring liability as well. Essentially, if someone can argue that conduct by someone abroad would very clearly breach UK law, and they were not warned about this, this is a good starting point for potentially having a successful case, although it is not a guarantee legally. The Court held that it was expected that tour operators would obtain insurance to cover them and that it is not unreasonable to expect them to get this insurance for the sub-contractors they use. The facts of this case were that Ms Ho was on a package sight-seeing holiday in the People’s Republic of China. Ms Ho was a resident of Hong Kong and booked the holiday from Hong Kong. The brochure stated that sight-seeing was included in the package. Without properly vetting the third party contractor beforehand the package operators booked a 3rd party speed boat operator who did not have the proper experience and license, and he crashed a speed-boat that Ms Ho was riding in, and Ms Ho tragically drowned. No Chinese law was referred to, but it was stated that a driver riding a dangerous piece of transport without the proper license or experience was a clear breach of health and safety making the package operator liable for this – where it is such a blatant breach of health and safety like this without a warning being provided then this will be enough to establish liability, ‘... 1992 regulations ... the standards set were those applicable in the country in question unless... absence of a feature which will be found in an English hotel might lead a reasonable holiday maker to decline to take a holiday at the hotel in question... taking the contract as a whole their Lordships consider that the first defendant here undertook to provide and not merely to arrange all the services in the programme, even if some activities were to be carried out by others... the trip across the lake was clearly not carried out with reasonable skill and care in that no steps were taken to see that the driver of the speedboat was of reasonable competence and experience and the first defender is liable for such breach of contract... Their Lordships of course appreciate the desire of the Court of Appeal to avoid imposing a burden which is intolerable on package tour operators. It must, however, be borne in mind that the tour operator has the opportunity to seek to protect himself against claims made against him in respect of services performed by others by negotiating suitable contractual terms with those who are to perform those services. He may also provide for insurance cover... if having no right against the package tour operator, be obliged to pursue a claim in a foreign country. The difficulty involved in doing so does not need to be elaborated... and to provide insurance... is not imposing upon the tour operators a burden which is “intolerable” ... ’ Lord Slynn at 7-12
Warning: This is not professional legal advice. This is not professional legal education advice. Please obtain professional guidance before embarking on any legal course of action. This is just an interpretation of a Judgment by persons of legal insight & varying levels of legal specialism, experience & expertise. Please read the Judgment yourself and form your own interpretation of it with professional assistance.