Defendant travel agents and tour operators are now nervous about the sale of excursions as a result of two recent decisions. The first appears to extend tortious liability and the other extends contractual liability in respect of excursions.
On 27th November 2009 the Court of Appeal heard the appeal in the case of Parker v TUI UK Limited  EWCA Civ 1261. Mrs Parker had been seriously injured during the course of a tobogganing excursion whilst on holiday in Austria. She had completed the run and got back onto the toboggan, which had careered into some frozen straw bales placed as a barrier between the end of a slope leading down from the finishing point of the toboggan run and a road for vehicular traffic. The excursion had not formed part of the package holiday but had been booked in resort. The trial judge had found that the tour representatives had briefed the participants both on the bus and at the top of the mountain, and in particular that they had told them that there was a flashing red light at the end of the run and that they must then get off their toboggans, and walk down the rest of the way to the toboggan shed and the bus (an instruction Mrs Parker had ignored).
The trial judge found that there was no contract between the Claimant and TUI in relation to the toboggan run, because they only acted as intermediaries
to bring Mrs Parker into a contractual relationship with the excursion provider. He accepted that TUI owed Mrs Parker a tortious duty of care, but said that their representatives had not acted in breach of any such duty. He made no finding of negligence on the part of the excursion provider. He therefore dismissed the action and refused permission to appeal.
The Claimant appealed on the basis that the road at the end of the toboggan run had not been gritted, and there were no representatives at the end
of the toboggan run when Mrs Parker arrived there. If there had been such a representative, it was said, he or she could have helped Mrs
Parker down to the cable car station or, at least, stopped her from remounting her toboggan.
Lord Justice Longmore held that TUI were acting only as intermediaries, putting their clients into a contractual relationship with the excursion provider
and not assuming any contractual duties themselves. However, he went on to find that by accompanying the excursion the Defendant’s reps assumed a responsibility to their customers, and owed them a duty of care in tort. The only real question, he thought, was whether they had discharged that responsibility. On the evidence, he found that in giving the warnings regarding remounting the toboggans after the end of the run, they had done so, and the appeal failed.
On 22nd February 2010 the High Court gave judgment in the case of Moore v Hotelplan Limited  EWHC 276 (QB). The claim arose out of an accident which had occurred during the course of a skidoo excursion which did not form part of the package holiday but which, the Claimant asserted, was provided
by the Defendant. Towards the end of the excursion, the Claimant had lost control of the skidoo and collided with a stationary car in a car park. As a result of the collision she was rendered paraplegic. The Claimant claimed that the Defendant was responsible for the provision of the excursion as the principal to the excursion contract. The Defendant contended that it acted merely as an agent in booking the excursion, and that the Claimant’s contract was with the excursion provider, who was a Third Party to proceedings.
The Claimant’s case was founded on an alleged failure to instruct her properly in the method of controlling the skidoo. She accepted that she was told of the position of the brake and accelerator, but said that she was not informed of the existence of a cut off switch which had the effect
of cutting the power supply to the engine.
The trial judge found that the Defendant was a principal to the excursion contract, and that the standard terms and conditions of the holiday contract applied to that agreement, notwithstanding that it had been entered into in resort and as a freestanding contract. He found that she herself had created the emergency in driving too close to the preceding skidoo and in applying the accelerator in mistake for the brake. Nevertheless, he went on to find that had she been informed of the existence of the cut off switch, she would have used it, and this would have prevented the collision. He reduced damages by 30% to take account of the Claimant’s culpability in creating the emergency situation.
The combined effect of these two decisions is that holidaymakers are now more likely to succeed in establishing liability for accidents which
occur during the course of excursions. Where the excursion is entirely provided by a third party, as in Moore (and see another decision of the High Court on a similar issue: Moran v First Choice  EWHC 2478 (QB)), liability is likely to be imposed by operation of the terms
and conditions of the package holiday contract (unless liability for excursions is expressly excluded) or because the tour operator has failed
to disclose the existence or identity of the Principal.
Alternatively, Parker demonstrates that even in circumstances where the tour operator acts as agent, and therefore has no contractual relationship with the claimant, a tortious duty may arise.The precise scope of the judgment in Parker is not, however, clear. On the facts of the case a tortious duty arose because, in accompanying their clients on the trip and, in particular, by taking an active role in the health and safety arrangements which applied to the tobogganing (for example by briefing all participants on the bus about the correct use of the equipment, and by spacing themselves out across the course) the defendant’s representatives specifically assumed
responsibility to see that they were reasonably safe in undertaking the various aspects of the activity.
It is questionable whether the same result would necessarily follow in different and, it is submitted, more common scenarios. For example, it is not unusual for holidaymakers to purchase snorkeling excursions during the course of package holidays. If a single representative of the tour operator accompanies the holidaymakers on the boat, in order to provide a friendly face and an Englishspeaking point of contact for its clients, but has no knowledge of the finer technicalities of snorkelling
or the use of equipment, is it likely that a duty of care will arise in circumstances when an accident occurs whilst the claimant is in the sea and under the supervision of local snorkelling guides employed exclusively by the Defendant’s supplier?
Parker should not, therefore, be viewed as a carte blanche for claimants to step outside the contractual framework and rely solely upon claims in tort. Each case will necessarily turn on its facts and there should be a full and proper analysis, applying first principles applicable to ordinary personal injury claims, of why a duty is
said to arise at all.