Stephen Mason, senior counsel at Travlaw, considers information requirements and liability issues

There has been much debate during the Covid-19 crisis about whether package organisers can or should cancel holidays where the Foreign, Commonwealth and Development Office (FCDO) advises against travel or what cancellation rights consumers have.

For the purposes of this article, let us assume the trip IS going ahead. What information does an organiser need to give to the consumer?

Have the information requirements changed in response to the pandemic? In what circumstances might the organiser be liable if things go wrong that relate to the FCDO advice?

We’re all thinking about the pandemic, but I have received these same questions in other scenarios, for example, over hostilities in Kashmir or terrorism in Tunisia or Indonesia.

Information requirements under the PTRs

Tour operators and travel agents must ensure customers are given certain information under the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR 2018) before entering into the contract. The reason this is so important is because:

• A failure to do so would be a criminal offence (Reg 5); and

• The contract is not binding on the customer until the necessary information has been provided (Reg 7). Importantly, the customer could therefore cancel and demand a full refund.

The issue is whether and how that information has changed in response to the pandemic. To answer that, we need to look at the information requirements set out in Schedule 1 of the PTRs.

The information requirements relevant to the pandemic are at paragraph 15 of Schedule 1, which requires: “General information on passport and visa requirements… and information on health formalities, of the country of destination.”

These must be included in the contract, but they do not become binding terms of the contract (Reg 7) and, if requirements change before departure, they do not trigger the consumer rights when faced with a significant change (for example, the right to cancel or to alternatives or refunds – Reg 11).

What does “health formalities” mean? There is no guidance in the PTRs nor in the recitals to the Directive nor in the 2018 Department for Business (BEIS) Guidance.

In normal times this is taken to refer to vaccinations (such as yellow fever) that are compulsory for the destination.

But it must surely now encompass requirements, including quarantine restrictions on entry to the destination country, relevant paperwork that needs to be completed before arrival, compulsory temperature testing and so forth.

What about compulsory mask wearing? For me, that pushes the words ‘health formality’ a bit too far, but the jury is out.

Information requirements arising from the duty of care

Cases decided by courts ranging from the County Court to the Court of Appeal have found there is a duty on holiday organisers to inform consumers about risky situations in resort.

The best illustration is Davey v Cosmos [1989]. The duty on tour operators was expressed by the judge to be an implied term of the contract: “To take such steps as are reasonable taking all the circumstances into account to avoid exposing their clients to any significant risk of damage or injury to their health”.

That is to all intents and purposes the same statement of duty as found in the other cases. It can readily be seen how this test relates to a case where a tour operator or package organiser proposes to run a holiday in the face of contrary FCDO advice in a Covid-19 context.

There is a duty to explain to consumers what the situation is and the risks that are in resort.

In Davey v Cosmos, the consumers contracted dysentery whilst in Portugal, not at the hotel but because the beaches and water supply in the resort were contaminated by sewage. The claimants won their claim against Cosmos. There was a duty to warn, held the judge, so that people could either cancel or take precautions.

In Beales v Airtours [1996], the claimants were mugged and robbed whilst in resort (in Portugal). The contractual duty of care existed as set out above, but the claimants could not show that the situation in the resort was so bad that Airtours had breached their duty by failing to warn them.

In Jones v Sunworld [2003], it was held that the tour operator had a duty to consider and warn customers about serious hazards on the seabed even though that was outside the perimeter of their hotel in the Maldives.

And, of course, at the inquest into the terrorist shootings on a Tunisian beach in 2015, the coroner laid great emphasis on the need for tour operators to make consumers aware of FCDO advice itself.

Liability if things go wrong

What if, having travelled despite adverse FCDO advice, a consumer contracts Covid-19 while on holiday? Or, equally, becomes a victim of violence, for example in Kashmir?

The old (1992) PTR required package organisers to perform the ‘obligations under the contract’ properly. Those obligations would obviously include the implied terms of the contract explored in the previous section.

The 2018 PTR talks instead (Reg 15) about liability to the traveller for proper performance of the travel services themselves (for example, the hotel) rather than the wider concept of contractual obligations. Does that make a difference?

Space does not permit a full analysis, but I think not. The definitions of ‘Traveller’ and ‘Package Travel Contract’ and the fact that the above term for proper performance is imposed by Reg 15(1) as an implied term of the contract, show that the essential link is the contract. If that is the case, the courts will surely imply the same terms as we saw in Davey and other cases.

The tour operator would have to show that all the information requirements had been complied with, and that the consumer had given informed consent to travel. If not, the tour operator is vulnerable to a claim.

But if the consumer genuinely gave informed consent, to succeed in a claim he or she would need to show that the illness was the result of negligence (in the cleaning regime at the hotel, not following protocols, for example) and that, on a balance of probabilities, that negligence was what caused the illness.

This would turn on issues such as incubation periods, consumer activities just before and after the holiday, the airport etc.

Whilst this is a tough case for the consumer to prove, a court may well be inclined to find that the balance of probabilities tilted in favour of the consumer where travel has been contrary to FCDO advice. But each case will turn on its facts.

Stephen Mason is senior counsel at Travlaw LLP. This article will appear in ABTA’s Travel Law Today (issue no.10 ) to be launched at the virtual Travel Law Seminar on Wednesday September 23. Register for the event at abta.com/abtaevents