Law: Tourists seek sun and some easy money

Tour operators are facing an increasing number of compensation cases - but are they really justified?

THE CRUCIAL question for many holiday-makers jetting home is not "when can I afford my next vacation", but "how much compensation will I get for this one?".

Lawyers advising package tour companies say that holiday claims are becoming increasingly trivial. Last week, a British tourist failed to win pounds 3,000 in damages after he fell asleep before both his journeys, missing flights to and from Ibiza. In another case, a tourist took legal action when the air crew failed to serve him boiled sweets.

Stephen Mason, a solicitor and partner at the Leeds holiday specialists Mason Bond, who is co-author of Holiday Law, lays the blame for this escalation in "silly claims" at the door of television consumer programmes.

He says programmes like the BBC's Watchdog have "gone completely over the top" in haranguing good companies and products. His comments are backed up by a judge, who a fortnight ago flew out to test a Malta package holiday which was the subject of a compensation claim. Judge Anthony Cleary said that he was "extremely unhappy" with Watchdog, which featured a special report about the holiday company.

Judge Cleary said that the programme was "one-sided", and "produced untested evidence" in a "kangaroo court".

Mason Bond, a firm of solicitors, recently represented a tour company that was being sued by a plaintiff who fell off a stage after being hypnotised in a hotel in Majorca. Mr Mason explains: "The tour operator did not arrange the entertainment, nor advertise or promote it. That's an illustration of how tour operators are being asked to carry the can for all manner of things that happen."

The Brent County Court judge who heard the case in which the plaintiff fell asleep and missed both holiday flights said that a holiday package was a contract. If the company had a duty to provide an adequate holiday, then the consumer also had a duty to be at the airport to catch the right plane.

Peter Stewart, a partner in City law firm Field Fisher Waterhouse, represented the holiday company sued for the non-service of in-flight sweets. He argues that consumers now have a "much exaggerated expectation" of what they can win from tour companies. Although the company won the "sweet case", which was dismissed by an arbitrator as "petty and trivial", the company still had to go to the expense of defending the case. The plaintiff had to pay just pounds 40 to issue proceedings and then cover his own travelling expenses.

It has become easier for holiday-makers to sue tour companies. The Package Tour Regulations, which came into force in 1992, made the tour operator in Britain liable for the flight, the hotel and anything else included in the package. Before 1992, many potential litigants were discouraged from suing a foreign tour company or hotel owner, because of the expense and trouble in bringing a case abroad.

Lawyers point out that having a number of potential complainants all flying on the same aircraft, sleeping in the same building, and eating the same food, creates perfect conditions for litigation. A single holiday failing is often the subject of general conversation on the return flight and it doesn't take long for one person to introduce the issue of compensation. Stewart maintains that over the past three years complainants have become "vociferous". He says: "They are encouraging an aggression in the litigation which does not help to resolve matters."

Nevertheless, there are many genuine holiday claims which fail, because they either fall outside the remit of the Package Tour Regulations or are not recognised in the foreign holiday jurisdictions.

Now a European Commission directive is being considered which would ensure that every insurance company had a representative in EU countries. But, because there is no uniform set of rules, a group of personal injury lawyers have set up the Pan-European Organisation of Personal Injury Lawyers.

A member, John Price, a partner with the Plymouth law firm Bond Pearce, recently advised a Plymouth holiday-maker who had been a passenger in a car driven by an Italian in France, which was hit by another car driven by a Swiss national. This case, says Mr Price, highlights the potential legal minefield for those seeking compensation for accidents abroad.