As the holiday season approaches and families prepare to travel abroad regrettably there will be some people who will have the misfortune to have an accident whilst they are on holiday. Nobody likes to think of their holiday ending badly but this is an unfortunate reality for a number of tourists each year.
Liability for an accident can be surprisingly complicated in some instances, what appears to be a straightforward matter can sometimes turn into a convoluted muddle of blame, negligence and vicarious liability. If an accident is due to another party’s negligence evidence must be presented to demonstrate liability, this is fairly obvious to most people. However in the aftermath of an accident collecting contact details from witnesses and photographing the site of the accident, understandably, may be overlooked. However, these simple actions may make the difference between winning and losing a claim for damages.
An accident that takes place overseas adds another element to an ensuing legal case and it can be difficult to manage without a multi-lingual multi-jurisdictional lawyer to assist. The general concepts of liability are similar, to some extent, in most jurisdictions and largely fall into the bracket of civil law as opposed to criminal law. The two broad concepts of law are common law and civil law historically deriving from England where common law arose from and code law from Corpus Juris Civilis of Roman law. Common law is largely seen in the countries of the former British empire and Civil law prevails throughout Europe; both systems enshrine the law of tort. A breach usually involves negligence and there are three core elements:
- there was a duty of care owed;
- the duty was breached; and
- a loss was caused to the injured party as a result of the breach
This is the “but for” test – but for the defendant’s conduct the accident would not have happened.
There are two other factors that also must be considered, for example in the case of an accident in a hotel being caused by poor workmanship of sub-standard materials the matter would be considered in the light of the local standards of the country in which the accident happened; for example if a guest tripped and their hand went through a glass door that had been glazed using thin glass, should the glass be up to the usual local standard then there would be no breach. Similarly, if it is not part of the building and safety regulations of a country to install non-slip tiles around a hotel swimming pool and an individual slips and injures themselves there would be no liability. However, there are international standards that are applicable. Nonetheless, it is easy to make the mistake of assuming that all countries have similar building standards to those found in your own country but this is not the case. It is worth considering the safety standards of the country you are visiting as this may be time well spent.
The other factor that should be noted is when the injured party was in some part a contributor to the accident if they had been careless or compromised their own safety for example by being drunk and attempting to do something risky such as running on a surface made slippery by the person spilling their drink. In the case of Eren Hussein who failed in her attempt to sue Ronnie Scott’s after alleging that the dark stairway was the cause of her fall down two flights of stairs, Judge Heather Baucher QC told Ms. Hussein in no uncertain terms that the fact that: “she was inebriated, wearing three-inch platform shoes and not holding the handrail during her descent of the stairs was the actual cause of her accident”. Ms. Hussein’s arguments that she was walking down the left side of the stairs and the bannister was on the right-hand side of the stairs were swiftly batted away by the Judge who further commented that “Mrs Hussein, at 115kg, must have taken up much of the width of the stairway,” said the judge, “but for some inexplicable reason, she did not use the handrail.” The Judge held that Ms. Hussein’s accident was caused by her missing her step, something that the staff at Ronnie Scott’s could not be held liable. Similarly, failing to use a piece of safety equipment or attempting a risky sport such as skiing when insufficiently skilled may also fall into the category of “own fault”.
On the other hand, there may be several potential organisations that may be liable depending on what actually happened. In the case of road traffic accidents, there may be the option of suing the driver’s insurance company. If an accident occurred during a package holiday there may be the option to sue the tour operator if the hotel’s lack of adequate safety precautions was instrumental in causing the accident.
Nobody wants to think about the potential for an accident on holiday but a moment’s reflection on your personal safety whilst on holiday may be one of the best things you do on your holiday.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.