Balconies, pools and liability: when holidays go wrong!

As millions of us head off for summer holidays in the UK and overseas, there are dangers awaiting us! We often see claims involving serious spinal or brain injury following what should have been the highlight of the year. This is a useful reminder that safety is as paramount overseas as it is back home.

We are familiar with the Package Travel and Linked Travel Arrangements Regulations 2018 (the Regulations). Despite the UK's departure from the EU, the Regulations, which implement the 2015 EU Directive, remain in force, although they are under review.

The key take away is that services provided by travel companies are to be carried out with reasonable care and skill, including those performed by third parties, pursuant to English law and relevant regulations. 

There are various cases which assist us in determining if liability will attach in certain circumstances considering English versus local standards.

The key points are: 

• Package holiday organisers are liable for proper performance regardless of delegation – Wong Mee Wan v Kwan Kin Travel Ltd 1996
• Tour operators are to check compliance with local safety regulations but this doesn’t extend to imposing English standards abroad - Wilson v Best Travel 1993, but breach can sometimes occur where local law is complied with - Evans v Kosmar Villar Holidays Ltd 2007
• Local standards are an important signpost in determining the organiser’s duty of care – Goldborn v Balkan Holidays 2010. 
• Claimants do have to adduce some evidence from which a Judge can find a failure to take reasonable care (local lighting rules were the issue here) - Morgan v TUI 2022

The most serious accidents often involve swimming pools (failure to appreciate the depth of the pool along with more general maintenance provisions) and falls from balconies. This is where we see serious life changing injuries and fatalities. 

Focus on balcony falls

During the average summer 10 young people – mostly male and mostly British - fall to their deaths from balconies abroad. The most common causes are when attempting to climb from one balcony to another, using balconies as an access route when keys have been lost and jumping into the pool below usually when drunk!

These cases can be successfully defended with hoteliers and travel companies taking a hard line on the risky behaviour. There are threats of fines or eviction from hotels if individuals are behaving irresponsibly around balconies but this doesn’t prevent such ‘accidents’.

Insurers specifically exclude cover against falls from balconies now due to the significant increase in them a few years ago.

Claims will continue (although balcony heights do now tend to accord with local standards, there are still issues as to whether pool depth is accurately sign posted). Accidents typically involve death or serious spinal or head injuries. Liability is often successfully denied. However, investigations are expensive and insurers may make an economical pay out to avoid expensive legal costs. Some claimant firms are well aware of this and will take a chance and pursue claims. 

Travel companies and insurers should be encouraged to carefully note the case law and be prepared to be bullish in defending claims where it can be shown there is risky behaviour.