Murdoch's Term of the Week: Package Holiday

Package Holiday

A combination of at least two of the following components: (a) transport, (b) accommodation, (c) other tourist services, pre-arranged by the organiser when sold or offered for sale at an inclusive price and when the service covers a period of more than twenty-four hours or includes overnight accommodation: Package Holidays and Travel Trade Act 1995 s.2(1).

This legislation, which implements Council Directive No 91/314 of 13 June 1990, greatly improves the rights of holiday consumers, eg by improving the right to receive information prior to the contract and prior to the holiday and by providing that the tour organiser is primarily liable for non or defective performance by independent contractors. The European Court of Justice has held that the directive implicitly recognises the right to compensation for damage, including non-material damage eg loss of enjoyment: Simone Leitner v TUI Deutschland GmbH & Co KG [2002 ECJ] (case C-168/00 - 12th March 2002). The Supreme Court has held that in the event of any doubt, the provisions of the Directive must be interpreted in the manner most favourable to the person they were intended to protect, namely the consumer of the tourism service: Scaife v Falcon Leisure Group [2007] IESC 57; [2008 SC] 2 IR 359.

The organiser is the person who organises packages and sells or offers them for sale to a consumer, whether directly or through a retailer (ibid s.3). It does not include an “occasional” organiser (SI No 271 of 1995). There is an implied term that the consumer can transfer his booking to another person where he is prevented from proceeding with the package (ibid s.16).

The Circuit Court has held that due to the Brussels Convention (qv) an Irish tourist could sue a Spanish hotelier in the Irish courts for damages relating to an accident while on holidays in the hotel, as the “event giving rise to the damage” (the reliance on the expertise of an Irish based tour operator in selecting the Spanish hotelier) had occurred within the jurisdiction of the court: In re Falcon Leisure Group (Overseas) Ltd and Barbican SA [1999 CC] - Irish Times 19th March 1999.

A travel agent was held liable for the personal injuries of a plaintiff who had booked her holidays through a travel agent and who sustained those injuries when she fell in a hotel restaurant in Spain: Scaife v Falcon Leisure Group [2007] IESC 57; [2008 SC] 2 IR 359. Liability was said to attach to the travel agent on the grounds that pursuant to s.20 of the Package Holidays and Travel Trade Act 1995, when contractual obligations were assumed by the organiser of a package holiday contract, they remained as obligations of the organiser and did not become obligations of the service provider (ibid).

See “Damages in holiday law cases” by barrister Ann Hartnett O’Connor in Law Society Gazette (Mar 2003) 43; “Bad Apple” by Domhnall O’Cathain and Conway O’Hara in Law Society Gazette (July 2010) 26. [Bibliography: Buttimore (1); Long; McDonald M (3)]. See BROCHURE; TOUR OPERATOR; SEX TOURISM; TOUR OPERATOR; TRAVEL AGENT.



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