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A stunt too far for fall guy
Mon 11th Jun 2012 Claims abroad
There are various pieces of legislation that protect consumers when they are abroad. If someone is on a package holiday, having bought their hotel and flights for a single price then they have some protection - but how much?
Fiennes is not a person someone would expect to go on a package holiday in the
traditional sense. However, that is
exactly what he did albeit to do some climbing in Peru in preparation for an assault
on Everest. The package holiday was more of an 'expedition', filmed by HBO, and
arranged by Jagged Globe who specialise in the more adventurous holiday. During the expedition, Sir Ranulph's team were
provided with a local guide by Jagged Globe. He was accompanied by Natalie Harrison.
During the expedition it seems that there was very little drama of interest to the film crew so some stunts were arranged. Natalie Harrison volunteered to be the victim of a 'fall' down a crevasse. The fall and her rescue were filmed, during which she unfortunately banged her head. For whatever reason, Natalie agreed to a further staged fall. During her escape she had some difficulty in freeing herself as apparently the rope was entangled in her backpack. As a result of the two falls, Natalie unfortunately suffered injuries. Fortunately for the Court that considered the case, both incidents were caught on film.
Litigation ensued with Natalie Harrison blaming Jagged Globe as the tour operator for the failings of the local guide, claiming that they had initiated the falls. The case was decided on the basis of the tour operator's liability. Natalie was partially successful at Court. Whilst the Court considered that she was responsible for any injury caused by the second fall, the tour operator was responsible for the first fall, albeit with an element of contributory negligence on behalf of Natalie - reducing her damages. The Court reached this decision by agreeing that the Package Travel Regulations did not apply as the 'falls' in no way formed part of the pre-arranged 'package'. It was however open to the local guides to refuse to permit the 'falls' from happening – which is something that they should have done. She had argued that the guides had initiated the two stunt falls.
The basis for Natalie's success went beyond the Package Travel Regulations. She relied on the tortious duty of care of the tour operator for any failings of the local guide. This case broke new ground as to the extent of the tour operator's liability where for example a tour representative was present. In this case the presence of the local guide was enough for the tour operator to have been found liable. The case also broke new ground where a tour operator may not have adequate wording given to a holidaymaker that clearly details an excursion as not being provided by the tour operator. Most of the large tour operators have through bitter experience managed to sort out their paperwork for excursions, making it clear that the holidaymaker is not on an excursion arranged by the tour operator. Natalie Harrison's case together with an earlier case of Parker changed the position where a tour operator could be liable simply by having any kind of active role in the excursion.
Not satisfied with the judgment, Jagged Globe appealed. That eagerly anticipated judgment has been handed down.
The Court of Appeal decided that the earlier decision was wrong. Having decided that the stunt 'falls' were not part of the 'package holiday', the earlier Judge should not have found the guides responsible for allowing the 'falls' to go ahead. The Court considered that a tour operator's liability for its employees, servants and agents is limited and reached a conclusion that a tour operator could escape liability where the negligent party (in this case the local guide) was employed under a contract for services. There was an implied term that services provided by a tour operator would be carried out with reasonable skill and care but that did not guarantee the safety of all components of a package holiday. In this case the guides had assumed some personal responsibility for the 'falls'; however that did not mean that the tour operator was automatically responsible. The guides were independent contractors. The tour operator had satisfied their liability, and the appeal was allowed - the Tour Operator was not responsible for Natalie Harrison's injuries.
This judgment provides some clarification on what will undoubtedly continue to be an area for ongoing litigation for some time to come. The Parker judgment will need to still be considered by tour operators that provide any representation on any excursion. Whilst the Package Travel Regulations need to be brought up to date - I doubt it was ever intended that they cover a mountaineering expedition in Peru where a holidaymaker stages stunt 'falls' for TV.
For further information, please contact Daniel Scognamiglio, a Partner in our Claims Abroad team, on 023 8085 7339 or at Daniel.Scognamiglio@bllaw.co.uk. Alternatively, please fill in our Contact form and we will call you back.
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