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Articles | Mon 8th Jun, 2020
Last week the weather encouraged us to wonder whether lockdown is so terrible after all. This week’s rain has reminded us that the Great British Summer is as capricious as a toddler at tea time, and the team’s plan to jump into the liveried 1CL charabanc and head to Clacton beach for ice cream and amusements has fallen into disarray. This disappointment has prompted us to ask the questions: will anyone be going on holiday this year? And if so, where?
No Vacations until Vaccinations: Assessing the FCO Advice on Travel
With the UK soon to enter the 12th week of its coronavirus lockdown, the Foreign and Commonwealth Office (FCO) continues to advise against all but essential international travel. This has been the UK government’s advice since 17 March 2020 and it is now in place indefinitely.
It spells more pain for travel companies. Not only does the advice discourage British residents from booking holidays abroad, it also makes it very hard for would-be holiday-makers to obtain travel insurance.
Other countries’ advice
What approach have other countries taken? The US, Canada, Australia, and European countries including the Republic of Ireland, Norway and France all advise against (or ban) non-essential international travel.
But other countries are starting to open up. For example:
Why this difference? One reason may be that countries such as Italy and Germany are at a later stage of their respective epidemics. Another may be the greater confidence felt by some nations (notably Germany) regarding their monitoring of the spread of the virus and their ability to provide healthcare in the event of a second wave of infections. But all countries are united by this: if there is an increase in infections and/or the crucial reproduction “R” number, travel restrictions may need to be re-imposed, and at short notice.
Travel insurance for would-be British holiday-makers is not forthcoming:
Whilst it is possible in theory for a travel insurance policy to omit such a term, I anticipate that in practice it will be very difficult for consumers to obtain such a policy. And if they do, the policy will likely not cover them for coronavirus-related emergencies, being a foreseeable risk.
If a person nonetheless travels abroad contrary to FCO advice, will a standard travel insurance policy offer them any protection? The Consumer Rights Act 2015 applies to insurance contracts, and section 62 of the Act provides that an unfair term, which is one that “contrary to the requirement of good faith … causes a significant imbalance in the parties’ rights and obligations under the contract to the detriment of the consumer”, will not bind a consumer. Examples of unfair terms are found in Part 1 of Schedule 2 to the Act.
An argument that a term which excludes liability if the FCO advises against international travel is an unfair term under the Act is almost certain to fail. First, it is possible that such an exclusion clause might come under section 64(1)(a), as specifying “the main subject matter” of the contract, and thus be excluded from an assessment of fairness (so long as the term is transparent and prominent). Secondly, in any event, it would not be regarded as unfair. It reflects a significant increase in risk which an insurance company is entitled to guard against. A consumer who, whether knowingly or not, travels abroad contrary to FCO advice, is unlikely to garner much sympathy before a Court.
The impasse remains. Until the FCO advice changes, few British residents are likely to book holidays abroad. For travel companies the suffering continues with no end in sight, and the industry’s campaign to scrap the quarantine rules continues to gather pace. BA’s parent company, IAG, has sent a letter of claim to the government threatening a judicial review of the rules on the basis that they are a disproportionate and unjustified response to the pandemic. The letter is countersigned on behalf of Easyjet and Ryanair. The government’s response to the industry campaign has been to propose quarantine-free air corridors to countries were transmission rates are low, but as yet no details have emerged as regards how this would work and which countries would be likely to be involved.
The hope must be that, when the present crisis wanes, British residents will have lost none of their appetite for holidays abroad. Certainly, under the current lockdown restrictions, vacations within the UK won’t be replacing holidays abroad any time soon.
About the Author
Susanna Bennett was called to the Bar in 2017. She is a diverse advocate, with a thriving practice in all of chambers’ specialisms. Her interest in travel litigation is marked by the diligence and expertise she brings to all of her cases. She particularly enjoys grappling with expert medical evidence and complex quantum calculations.
The Dangers of the Staycation: a Timely Reminder
We are repeatedly informed (by the media) that – for this year at least (and, perhaps, for longer) – the “new normal” will mean foregoing the annual dash to Benidorm or Nice [insert preferred Summer Holiday Destination] and, instead, a fortnight’s leave in Scarborough or Southend. The newspapers are full of (slightly desperate) tips on how to make the best of this predicament: if a cheeky trip to the Costas will land you in quarantine choky for a fortnight, then better, surely, to stay-cation and avoid the hassle altogether (although one wonders how many broadsheet travel supplement editors took this option when they had the choice).
One of the unexplored side-effects of the holiday-at-home concerns the prospects for a claim if a little reckless fun/excitement results in injury (one can throw holiday caution to the wind – with or without several pints of lager – just as easily in Morecambe as in Magaluf). This morning’s Times newspaper contained a piece by the Parliamentary sketch writer suggesting that fear of “ambulance-chasing lawyers” was inhibiting the UK’s emergence from lockdown. Au contraire/al contrario the travel lawyer might say, pointing to French and Spanish law (rebuttable) presumptions as to fault that substantially favour the injured party (“the victim” as a Spanish lawyer will often refer to them) by contrast to the strict incidence of the burden of proof (of fault) that accompanies most English personal injury litigation.
This morning’s read of The Times coincided with my regular Lawtel feed and a recent English case that illustrates the point: Christopher Wells v Full Moon Events Ltd  EWHC 1265 (QB), judgment handed down on 19 May 2020. Mr Wells was an experienced motorcyclist. He took part in a non-competitive “Enduro Day” motorcycling event. This was organised for fun. It took place in North Wales. The conditions were wet and muddy; it was late September. The Claimant had self-declared (to the organisers) as an experienced motorcyclist. The event involved cross-country motorbiking behind a leader over a 20 mile course. Before taking part, the claimant completed a “signing-on form” and indemnity acknowledging that motorsports were hazardous and that he accepted the risk (of injury) from participation. The itinerary for the event indicated that the day would be tough and challenging “while always safe”. The Claimant rode through a muddy puddle while following his group in single file along a byway open to all traffic (what local highway authorities refer to as a “BOAT”).
The Claimant claimed that the front wheel of his motorcycle struck an object concealed under the water which caused him to lose control, fall and to sustain catastrophic personal injury. The Claimant alleged that the accident was caused by the organising centre’s negligence or breach of an implied contractual term (to the effect that it would organise the event safely). The Claimant’s principal complaint was that the Defendant centre should have carried out a risk assessment in relation to the byway and that the instructor leading his group should have given guidance about how they should negotiate the byway and/or warned of the possible presence of submerged obstacles in the puddles on the track.
The claim was dismissed at split trial (as to liability and contributory negligence): this was on the ground that the Claimant had failed to prove that the accident had happened in the manner alleged. The Court found that the instructor/leader had ridden safely through the puddle before the Claimant and the likely depth of the puddle was such that the Claimant’s motorcycle should have coped with any hidden obstruction. It was more probable, so the Court held, that the accident was caused by driver/rider error in negotiating the puddle. The Court’s obiter comments are, perhaps, of more interest to the stay-cationing travel lawyer or accident victim. The Court referred to Tomlinson v Congleton  1 AC 46 (HL) (the last of a long line of domestic and overseas “diving cases”) and applied the same sort of logic (viz. “the risk was obvious, which means no more than that the plaintiff acknowledged the inevitable, namely that diving into water where one cannot see the bottom creates the risk that one will dive too steeply and so suffer injury”) to the facts of Wells.
In the more recent case, the Trial Judge (Michael Bowes QC) said this (at paras 136 – 137), “I accept the Defendant’s submission that undertaking detailed risk assessments, identifying all hazards, guarding against all hazards, instructing experienced riders on how to negotiate all sections of the course or expressly to avoid parts of the course which ordinarily would be regarded as part of the off-road experience would negate the experience of an Enduro Day and would not be a reasonable requirement to impose on the Defendant. In this regard, I have taken into account the social value of an Enduro Day as a reasonable sporting or recreational activity. … It was not necessary for the Defendant to carry out a risk assessment nor to give any warning in relation to the obvious risk that a water-filled muddy rut may contain a concealed object, as that risk was both inherent and obvious.”
So there you have it, holiday-at-home as you must, but do not expect to take advantage of (qualified) strict liability or a presumption of fault (rebuttable or otherwise) if something goes wrong when (in an appropriately socially-distanced manner) you ride a donkey on Camber Sands/go paragliding over Tenby/wang a welly at Weston. That Summer holiday jug of turbo-strength Sangria and the attendant parachute jump never looked so appealing …
About the Author
Matthew Chapman QC is listed in the Legal 500 and Chambers & Partners as a leading silk in travel law, consumer law and personal injury, indeed the ‘go-to’ barrister for complex issues of jurisdiction and applicable law. His caseload encompasses a broad spectrum of high-profile fatal accidents and catastrophic injury claims, and he is said by Chambers & Partners to be ‘a determined advocate who is very good with clients’. Together with chambers’ colleagues Sarah Prager and Jack Harding he co-authors Saggerson on Travel Law and Litigation, the leading textbook in the field.
As the UNWTO continues to consider how best to restore confidence in safe travel abroad, it is hosting a series of webinars on the issue. As chair of the Travel and Tourism Lawyers’ Association of England and Wales Sarah Prager will be participating in its webinar on 9th June. Discussion will centre on how best to restore consumer confidence in the industry, and the related question of consumer rights in the event of a second spike or further pandemic, with particular reference to the ongoing refund v voucher issue. Readers with views on these issues who would like them to be represented should not hesitate to get in contact with Sarah by email at firstname.lastname@example.org.
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