Resort Activities and Excursions: what can tour operators learn from Mrs. Moore’s experience with Inghams?

The facts

In January 2007, Emma Moore suffered severe spinal injuries leaving her paralysed as a result of a snowmobile accident in the Italian ski resort of Passo Tonale. Mrs. Moore was on a package holiday with Inghams and she along with others in her group had booked a snowmobile excursion through the Inghams representative in the resort. At the time of the accident Mrs. Moore was aged 37 and the mother of two small children.

The snowmobiles (‘skidoos’) were provided by a third party, a local man named Adriano Tantere. He gave training on the use of the skidoos and led the group. As the group were returning to Passo Tonale, Mrs. Moore lost control of her skidoo, overshot the bottom of the slope and collided with a parked car.

She sued Inghams in the High Court for damages claiming (a) that Inghams were the principal to the excursion contract and (b) that the supplier was negligent. In its defence, Inghams denied it had arranged and/or organised the excursion as part of the package holiday. It claimed the excursion was provided by Mr. Tantere and that Inghams (through their resort representative) were merely acting as his agent. It also alleged that Mrs. Moore was negligent in the manner in which she failed to control the skidoo.

Despite this defence, Inghams filed a third party claim against the excursion provider, alleging that Inghams had contracted with Mr. Tantere to provide skidoo excursions, including this one.

The findings on the excursion contract

In examining the contractual arrangements the Judge found that Inghams were contractually responsible for the skidoo excursion, based on the following:

1. Inghams had provided Mrs. Moore with an information pack which advised that its resort representative would provide ‘full details of all available excursions and resort activities including snowmobiling’ all being ‘events that we (Inghams) can offer’.
2. The information provided in the materials included an event called ‘SKIDOO SENSATION’. As this was an ‘Inghams’ document, Mrs. Moore was entitled to infer that arrangements for such excursions were made by the resort representative.
3. Mrs. Moore paid the resort representative for the excursion and she was given an ‘Inghams’ receipt, bearing its logo.
4. There was no suggestion made to Mrs. Moore by the resort representative that;
   a. Inghams were acting as agent for Mr. Tantere; and
   b. that Mr. Tantere was the principal to the contract.

Having found that there was a contract for the excursion between Mrs. Moore and Inghams, the Judge held that the terms of that contract were impliedly those of the package holiday contract, and in particular the relevant section dealing with ‘Our Liability’ in the terms and conditions.

The relevant clause, drafted in accordance with the requirements of the Package Travel Regulations, acknowledged Inghams was liable for the negligent acts of its suppliers such as Mr. Tantere.

Cause of the accident

The Judge found that Mr. Tantere’s training was inadequate, no instruction having been given in respect of the use of the emergency cut off switch. Mrs. Moore lost control of the skidoo, accidentally operating the accelerator instead of her brake, causing her to collide with the rear of a car parked at the end of the slope. The Judge held in terms that the accident would have been avoided had Mrs. Moore been properly instructed in the use of the emergency cut-off switch. However, he found that Mrs. Moore was partially to blame (30%) on account of her failure to maintain a slower speed and by applying the throttle instead of the brake.

What could have been done differently?

Tour operators intending to avoid liability on the basis that they are acting as agent in the sale of resort excursions should consider the following:

1. Review your booking conditions in the light of what you are doing in practice and include appropriate wording that covers the following points:

• contracts for excursions are between the consumer and the excursion provider
• the tour operator acts as agent
• excursions are neither run nor controlled by the tour operator
• the tour operator will not be liable for the excursion
• excursions do not form part of the package and your booking conditions do not apply to them

2. Excursion paperwork with the consumer needs to be clear and unambiguous:

• it must specify the name of the independent excursion provider
• preferably it will not mention the tour operator
• where paperwork does, ensure that it states that the tour operator acts as agent for the excursion provider

3. Resort staff should be properly trained and ensure:

• the tour operator is not held out as principal
• it is clear to consumers that excursions are provided by independent excursion providers, preferably identifying them by name to the consumer

4. Ensure your contract with the excursion provider:

• is consistent with the tour operator’s status as agent
• contains an appropriate indemnity
• is governed by English law and jurisdiction

Finally, always endeavour to deal with reputable suppliers, preferably ones that have adequate insurance and sufficient assets to meet any judgment. For further information please contact Claire Ingleby of mb LAW at claire@mb-law.co.uk.

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.