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Thomas Cook Lose Holiday Accident Compensation Test Case

Simpson Millar’s holiday travel lawyers expect to recover substantial compensation for a child who suffered injuries following an accident in Spain.

The Multi track accident claim of Russell v Thomas Cook Tour Operations Ltd [2012] was heard in Birmingham County Court on 11th and 12th September 2012 before Deputy District Judge McGovern. The Russell family claimed compensation for their 4 year old daughter following a horrific accident abroad in Salou on the first day of their family holiday.

At the time of booking the holiday, the girl’s parents made it clear that they were not seasoned travellers and specifically requested accommodation which was suitable for families with children.

The travel agent suggested a Thomas Cook holiday, and given their brochure was literally replete with images and statements designed to encourage families to go on their holidays they were reassured and they subsequently booked to stay at the Internacional II Apartments in Salou, Spain.

Holiday Accident

‘Your health and safety is of paramount concern to us, especially if children are involved’ – Thomas Cook Tour Operations Ltd.

Simon Lomax, Associate and Holiday Accident and Illness Manager at national law firm Simpson Millar, says: “This young family were allocated a room with a glass balcony door and shortly after arrival their 4 year child collided with it. She failed to realise that the patio door was closed and it shattered on impact into large jagged pieces causing serious lacerations to her foot which are likely to require surgery to the repair the tendons.”

“Acting on behalf of the child, Simpson Millar subsequently pursued a personal injury claim against Thomas Cook pursuant to the Package Travel Regulations 1992. The tour operator’s lawyer strenuously denied responsibility for her accident claim, and refused to offer compensation despite the door being constructed from thin ordinary annealed (non-safety) glass. Thomas Cook stated:

  • The glass complied with local regulations at the time the hotel was built (1988);
  • The hotel was not obligated to modernise in accordance with current Spanish or European regulation and improve standards nor was it required to install cheap safety film to the glass panes to improve safety for families;
  • The child ‘was not fully considering her surroundings and was clearly the author of her own misfortune’;
  • There was no holiday accident profile indicative of dangerous glass or a problem;

This holiday compensation claim was essentially a test case given the number of similar foreign glass patio door accident claims concerning adults which tour operators have successfully defended in the courts, i.e. Hayden v Airtours, Drabble v Sunstar, and Logue v Flying Colours.”

Simon continues to say:

“In pursuing the case we relied on the expertise of a Spanish lawyer and architect, the contents of which were unsuccessfully challenged by the British forensic engineer regularly instructed by Thomas Cook. The Judge preferred the expertise of a qualified Spanish architect given his experience and knowledge of Spanish construction standards, matters in which he had actually practiced in Spain.”

“It was successfully argued what is commonly known to holiday accident solicitors instructed in foreign accident compensation claims as the “second limb of Wilson v Best Travel”.

Holiday Accident

“In the case of Wilson v Best Travel (1993) 1 All ER 352 in which it was held that, even if there has been compliance with local safety standards, a tour operator must not provide accommodation which, by virtue of “the absence of some safety feature which would be found in an English hotel…might lead a reasonable holidaymaker to decline to take a holiday (there)”.

“In Wilson v Best Travel an adult collided with a glass door in Greece sustaining personal injury. On the specific facts of the case, the Court concluded that the degree of danger posed to the person by the absence of safety glass did not call for any further action by the tour operator. However, the adult did not even argue that he should have been warned about the nature of the glass in the property.”

“Thomas Cook did not accept that a parent who is warned of the absence of toughened glass is likely to be more watchful particularly on first arriving at the resort until the family becomes accustomed to their change of surroundings. However, The Judge said that a warning should have been provided to Miss Russell’s parents, bearing in mind they were travelling with a young child who had never been abroad before, matters made known to Thomas Cook when the holiday was booked.”

The critical difference in this accident claim and Wilson is that the holiday arrangements were targeted specifically towards a young family with a 4 year old daughter. The desire for a family-friendly environment, and the fact that this was their first ever time abroad, was made known to Thomas Cook at the time of booking.

Furthermore, Counsel for the child successfully argued at trial that it is an inherent and perfectly foreseeable characteristic of children that they will occasionally run about and bump into objects. Therefore far from being a reason to narrow the scope of the Defendant’s duty of care, it is a factor which makes it all the more important that the hotel should have been aware that there was a real possibility of collision, and the likely severity of the consequences, when considering the safety of the glass patio apartment doors.

Simon concludes: "It was a particularly pleasing result given there does not appear to have been any reported cases in which the Courts have applied the second limb of Wilson v Best Travel to the benefit of a Claimant. It is hoped that tour operators will start to take the safety of young children seriously – as a parent of young children myself I hope that endeavours will be taken to stop these holiday accidents occurring in future and that Thomas Cook will look to improve safety standards especially where children are involved”

Dated: 21/11/2012


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