Balance of risk ‘shifted too far’ against package organisers

The liability of travel organisers and balance of risk have “shifted too far” in consumers’ favour and reform of the Package Travel Regulations (PTRs) should shift it back, according to Abta director of legal affairs Simon Bunce.

He told the annual Travlaw Big Tent Event in London that the combination of the 2018 PTRs and the Supreme Court ruling in the case of X v Kuoni in 2021 “shifted the balance of risk and it seems to us the balance has shifted too far”.

Bunce suggested the Department for Business and Trade (DBT) “should address that” in its review of the PTRs following a Call for Evidence last September and argued: “Let’s re-write Regulation 15 on liability. We have the freedom to do that.”

Regulation 15 of the PTRs on details the liabilities of travel organisers and their “Responsibility for the performance of the package”.

The Supreme Court ruled Kuoni liable for damages under the PTRs for the rape of a holidaymaker by a resort employee in Sri Lanka in 2010 following a lengthy legal battle, a ruling which Bunce argued “massively shifted the liability of operators”.

Blue Bay Travel chief executive and Abta chair Alistair Rowland agreed, saying: “X v Kuoni makes it so hard for an organiser. You’re on the hook for anything that can happen on a holiday.”

Bunce also pointed out the 2018 PTRs introduced a new requirement that “if a holiday is cut short because of unavoidable and extraordinary circumstances, the operator has to give a refund”, saying: “That is another level of exposure for operators.”

He noted: “The engagement from the DBT has been fantastic. They are listening. They are engaging with us.”

But he warned: “They will also be doing that with consumer associations and be hearing precisely the opposite. So, I’m not complacent. They will also be looking at EU reform of the Package Travel Directive and that is moving in the opposite direction.”

Rowland insisted: “We need to make sure there is nothing [included] that is just meant to be a vote winner for the election.”

He highlighted “the opportunity to kill” the Linked Travel Arrangement (LTA), arguing: “It’s badly worded. It’s meaningless as far as consumers are concerned and no one understands it.

“It should be tested whether people are doing it. [But] it should be killed. It can only create consumer distrust.”

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