This is a revised version of a paper originally presented to:
The University of New South Wales
Centre for Continuing Legal Education
Tourism and Leisure Law Seminar 2004
25 February 2004
Anthony J Cordato
Business, Property & Tourism Lawyers
49 York Street
Sydney NSW 2000
Ph: (02) 8297 5600 fax: (02) 9290 2784
About the Presenter:
Anthony J. Cordato is the author of Australian Travel & Tourism Law (Butterworths, 3rd Ed) the leading text in the field in Australia; he is the former chair of the Travel, Tourism and Hospitality Law Committee of the International Bar Association (1995-1999); he is a former lecturer in Travel Law at the Ultimo and Ku-ring-gai campuses of the University of Technology; is currently in private practice as a solicitor in the Sydney CBD where he provides legal advice to a number of participants in the travel and tourism industry; and he has given numerous presentations in the field of Travel and Tourism Law.
ARE YOU A TARGET FOR CONSUMER CLAIMS?
Strategies for Travel Agents, Tour Operators, Airlines, Railway Operators and Accommodation Providers
- The Tourism Industry covers an extraordinary range of services.
- The services are supplied to consumers by a series of participants, who are linked in a complex web of relationships.
- The objective of this presentation is to discuss and devise strategies for Travel Agents, Tour Operators, Airlines, Railway Operators and Accommodation Providers to use for their protection from consumer claims.
THE DYNAMICS OF THE TOURISM
An understanding of the role of the participants and their dynamic relationships in the Tourism Industry will be our first port of call.
The Tourism Industry is organised around the sale of what the industry calls "product" and what lawyers call "tourism services".
Product can consist of one or more of
- Travel by air, land or sea,
- Ancillary services such as excursions, entertainment, food & beverages
The Tourism Industry supplies
its services to the Consumer,
continuously inventing new
product and refining old product
to attract and satisfy the
Participants in the Tourism Industry, be they suppliers of the travel, accommodation, or ancillary services, sell product either directly to the consumer or through an intermediatory such as a Travel Agent or Tour Operator.
The relationship between the Consumer and the participants in the Tourism Industry is represented as follows:
The Consumer may book directly with any tourism service provider. The functions of service providers can overlap, such as Tour Operators who can also be Carriers.
The Consumer accesses tourism services by responding to media advertisements, websites, by word of mouth, or upon advice from a Travel Agent
The Consumer books tourism services either indirectly through a Travel Agent or Tour Operator or directly through a carrier or accommodation provider. The Consumer pays the tourism service provider when the booking is made.
In Australia, the Consumer has been empowered with consumer protection legislation and processes which have made the Consumer the most powerful participant in the industry. (1)
Consumer claims are usually made in the place where the consumer resides, against tourism service providers, particularly Travel Agents, Tour Operators and Carriers who are based in that place.
Travel Agents supply travel advice to the Consumer and supply booking services for travel, accommodation and ancillary services, as an intermediary for the Consumer.(2)
They promote themselves through generic advertising if they are part of a franchise, through the media, and by attracting passing trade from their shop fronts and websites.
They must advise and make bookings to fit the Consumer's requirements and must take safety into account.
They issue itineraries and booking confirmations to the Consumer when the tourism service is booked, and are a conduit for payment.
Tour Operators supply packages of travel, accommodation and ancillary services which they sell to Consumers directly or through Travel Agents.
A "package" is typically travel plus accommodation, such as air travel to a resort and resort accommodation, but can consist of ancillary services, such as accommodation with an event or trip.(3) Some Tour Operators assemble the package. Other Tour Operators such as a cruise ship can supply the whole package themselves. Others supply part of the package, such as a resort with a tie into an airline. Tour operators often work with wholesalers who block book air seats, hotel rooms and tickets for events.
Tour Operators promote their packages in the form of printed and website tour brochures, replete with booking conditions. They accept bookings by way of booking forms and issue confirmations for bookings and payment.
Carriers supply travel (or carriage). Carriage can be air, namely by airlines, by sea, namely by cruise ships, or by land, namely by coach lines and railways. Carriers need not own the aircraft, ships or coaches that they use.
They advertise in the media in newspapers and magazines and on websites. They issue tickets and vouchers to evidence a booking and payment.
Resorts, hotels, motels and B & Bs supply a room to stay, often with access to various facilities such as a swimming pool, restaurant, breakfast bar, a gym, water activities and so forth. They are often part of a group.
They advertise their product in the media and in printed or website brochures. Often they are featured in the advertising and brochures of Tour Operators.
Ancillary Service Providers
Ancillary services are supplied by tour guides, excursion providers and entertainment providers. Often ancillary services are supplied to consumers on an ad hoc basis, as optional alternatives to consumers who have booked with Tour Operators, Carriers and Accommodation Providers.
They advertise in printed or website brochures. Often they are they are featured in brochures of Tour Operators.
Their strategies for protection against consumer claims are to provide what they promise, to make the best of changed conditions and to provide warnings of obvious dangers.
THE LEGAL FRAMEWORK FOR CONSUMER CLAIMS
Legal Bases for claims
Consumer claims are based on promises which are not kept and performance of promises which is inept or non existent.
The sale of tourism "product" is not the sale of a tangible product such as a table and chairs, it is the sale of services. A "dream holiday" consists of a bundle of promises to deliver a service and to perform those promises. The promises are tied to booking conditions to limit the promises and to exclude certain claims.
The four legal bases for consumer claims against suppliers of tourism services are:
- is the promise a part of the contract?
- is the promise "mere puff"?
- is there a breach of the promise?
- are the booking conditions effective to exclude liability?
2.Misleading & Deceptive Conduct, Statements and Representations
- Misleading Conduct is actionable under Section 52 of the Trade Practices Act (4) or Section 42 of the Fair Trading Act (5)
- Misleading representations & statements are actionable under Sections 53, 54, 55A & 58 of the Trade Practices Act or the corresponding sections of the Fair Trading Act.
3. Special Statutes and Conventions
- The Warsaw Convention for airlines
- The Athens Convention for cruise ships
- The Motor Accident Legislation for travel by road
- The Innkeeper's Act for hotels and resorts
- The EU Directive on Package Travel for visitors to Europe or from Europe.
- The Travel Agents Acts (6) and Tourism Services Act (7)
4. Negligence. The law of torts imposes duties of care, such as:
- Failure to warn or provide signage
- Failure to provide safe passage or secure physical environ
Regulation by the Australian
Competition and Consumer
The ACCC has long been interested in the Travel Industry.
Shortly after the Trade Practices Act came into effect in 1975, the ACCC prosecuted several instances of what it considered to be unacceptable practices such as inadequate status of flights and display of outdated brochures.
In November 1999, the ACCC published a Guide: "Travel and Tourism and the Trade Practices Act" (8) which represents a definitive account of its views. The guide was prepared in consultation with industry participants, particularly AFTA (9). The guide encourages the formulation of a compliance policy for travel and tourism businesses.
The Courts and Tribunals
Until recently, most of the reported claims arising from tourism services have been decided in the Courts. The Federal Court of Australia ("F/C") has jurisdiction out of the Trade Practices Act, for misleading conduct, representations and statements and for class actions. The Supreme Courts ("S/C") of various States have extensive jurisdiction, and deal particularly with torts and breaches of contract, as do the District or County Courts in each State. In recent years, particularly in NSW in the last two years, the Consumer Tribunal which is called the Consumer, Trader and Tenancy Tribunal (the "CTTT") has dealt with many consumer claims in the area of tourism services.
The NSW CTTT is now considered the forum of choice by Consumers for these reasons:(10)
- The filing fee for an
Application is $28
- The semi-formal nature
of the proceedings including
for the giving of evidence
- The fact that the
jurisdiction is up to
- The fact that costs are
not awarded against the
losing party, unless the
Application was frivolous or
- The fact that legal representation is not permissible unless the claim exceeds $10,000, except in exceptional circumstances.
In this presentation
illustrations are given by way
of decided cases. The
illustrations carry widely
differing weights, depending
upon which Court or Tribunal
made the decision. The decisions
are referenced in the foot
We now examine the strategies available to limit the liability of each participant for consumer claims.
Travel Agents advise upon the travel plans and make the booking, collect and transmit payment.
- Before the booking is made, they should check the accuracy of the advice they give
- When making the booking, they should be concerned that the travel arrangements are safe and the bookings are made as instructed
- After the booking has been made, they should confirm the booking arrangements accurately and provide warnings on charges and safety.
strategies for Travel Agents for
protection against consumer
claims are based upon accuracy
of advice, a clear description
of the services they provide and
where their responsibility ends,
and a responsibility to make
safe travel arrangements.
Scenario (1) The Travel Agents liability for advice
The Consumer is entitled to rely upon a travel agent's advice, which includes any brochures for tours provided by the travel agent.
Illustration: Cross & Cross -v- Flight Centre CTTT (11)
Mr & Mrs Cross discussed their requirement for two days skiing during their holiday with a representative of Flight Centre, Campbelltown, a travel agent. They were given a brochure stating that the ski season opened at Mount Hutton from "late May to October", before Flight Centre booked their holiday in New Zealand, including two days skiing. No skiing was available, as it was out of season.
The Tribunal awarded $500 for the loss of 2 days skiing in New Zealand as compensation for breach of that part of the booking arrangement. The tribunal rejected Mr & Mrs Cross' claim for the full cost of the holiday, as the holiday was not a total failure as the travelling and sightseeing components were available.
The Tribunal commented: "The respondent [Flight Centre] stated in sworn evidence that they should not be responsible or liable for statements in brochures that they make available to the public. With respect, that is exactly why consumers go to the travel agent and read the brochures that are published there. If material in the brochure is misleading or deceptive the consumer has the right to seek redress at law for that conduct."
Scenario (2) Travel Agents Advice on Flight Status
The status of a flight can be: confirmed/wait listed/not confirmed/unavailable. The status must be accurately advised to the Consumer.
Illustration: Doolan -v- Air New Zealand; Jetset F/C (12)
Members of a tour party were denied boarding on flight from Honolulu to New Zealand, operated by Air Zealand. Jetset Tours had issued tickets marked "Ok" when the correct status was "wait listed". Both Air New Zealand & Jetset Tours were prosecuted and were fined by the Federal Court for breach of Section 53 (c) of the Trade Practices Act.
Air tickets often contain a notation that flights should be confirmed at least 72 hours before departure.
Illustration: Grigg & Grandsimon -v- Qantas, Flight Centre & Air France (13)
Grigg and Grandsimon purchased around the world tickets though a travel agent, Flight Centre, in which Qantas flew the Sydney-Singapore legs and Air France flew the Singapore –Oslo legs. The Applicants purchased their tickets in January 2001 intending to return in late 2001. They needed to reconfirm the bookings as bookings could only be reserved until August 2001 at the time of purchase of the tickets. The Applicants claimed a refund of $3,000 paid to Qantas for a return flight to Australia because they did not desire to wait the 72 hours that Air France required for notice.
The Tribunal found that the Applicants’ failure to reconfirm with Air France at least 72 hours before the flight was the reason for their inability to use their around the world tickets for the return to Australia. The cover of the air ticket was clearly marked on the air ticket "issued by Air France" to indicate that Air France, not Qantas was the airline with which to reconfirm. Inside the air ticket was a general printed note that flights should be confirmed. Accordingly the claim was dismissed.
Comment: The Travel Agent rather than the airlines was the closest to be being found liable. The Tribunal commented that “the Flight Centre had not issued any advice to the travellers when it could have issued a simple itinerary to warn the travellers to confirm return flights with each airline or could have issued a separate brochure or inserted this information on the inside cover of the ticket”.
Scenario (3) Travel Agents Responsibility to Arrange Visas
Strategy: Advice to the Consumer: A visa is/is not required for travel to your destination/s. If travel is not primarily for a vacation, specific visa requirements may apply.
Illustration: Aboss -v- Gitani Travel and anor CTTT (14)
An Islamic Society organised a pilgrimage for the Hajj to Mecca in Saudi Arabia through Gitani Travel, a travel agency. The Travel Agency obtained the tickets while the Islamic Society arranged the visas to Saudi Arabia. Ms Aboss booked for the tour, and also booked a side trip to Pakistan through the travel agency. She claimed compensation against the travel agent, firstly, for not obtaining a visa for the side trip to Pakistan and secondly, for not advising her on restrictions on travel to Pakistan for a Muslim woman travelling alone.
The Tribunal held that neither the Travel Agent nor the Islamic Society were responsible failing to advise on the Pakistan visa or the travel restrictions, as she did not ask them to advise or assist on her visa.
Comment: This decision should be treated with care as it could easily be argued that if a Travel Agent books a flight to a country, then they owe a duty of care to the Consumer to advise upon visa requirements.
By way of contrast, the consequences are different when advice is sought.
Illustration: Morlin -v- Overseas Travel Service CTTT (15).
L & V Morlin booked a tour to Japan and China through a travel agent, Overseas Travel Service. At first the travel agent advised L & V Morlin that as Italian and Australian Citizens they did not need a visa for China. After arrival in Japan, when it became obvious that a visa was required to enter China, they were promised that material would be faxed to their hotel in Japan. In the end no visa was obtained and they remained in Japan for 4 days while the rest of the group enjoyed the China leg of the tour. They claimed a refund for the China leg of the tour, which the travel agent obtained from the airline JAL. They claimed out of pocket expenses for the 4 days spent in Japan of $2,944.66 from the travel agent.
The Tribunal ordered the travel agent pay the out of pocket expenses, as the travel agent had promised to pay them compensation if they kept their receipts, when they had called the travel agent from Japan to complain.
Comment: The Tribunal could have equally based its decision on the failure of the travel agent to advise that a visa was required for travel to China. Note the loss claimed was for the travel not undertaken and for out of pocket expenses. A claim for loss of enjoyment could also have been made.
Business travel may necessitate a visa when leisure travel may not. (16)
Scenario (4) Travel Agents responsibility for Motor Vehicle Hire arrangements
Strategy: Advice to Consumer: "We are responsible for booking the airfares /cruise/ accommodation/ car hire according to your instructions, but are not responsible for the way the travel, accommodation or other services are carried out. Once the booking is made, you are to deal directly with the provider of air travel/cruise accommodation/car hire, subject to their booking conditions.”
Illustration: Edgar -v- Jokalt & anor CTTT (17)
A travel agent, Jetset Bankstown, booked the hire of a Ford Galaxy motor vehicle for use by Mrs Edgar and her family on holiday in the UK. Ms Edgar paid $3,300 in advance to the hirer, Europe Shoppe for the hire. On arrival at Edinburgh airport she was informed that no Ford Galaxy was available, and was offered a Ford Tourneo mini bus with a diesel engine instead. She rejected the mini bus and hired a suitable vehicle from another company. She claimed a refund of the $3,300 paid from the travel agent and the car hire company.
The Tribunal dismissed the claim against the travel agent finding it did "all things necessary and reasonable to assist Ms Edgar in making the booking requested". The Tribunal ordered the car hire company to make refund, holding that Ms Edgar had acted reasonably in rejecting the substitute vehicle offered as it was an entirely different type of vehicle and Ms Edgar was allergic to diesel, and therefore the hire company was unable to rely upon its booking condition entitling it to "automatically upgrade you to the next category (of vehicle) at no extra cost".
Scenario (5) Was the booking made as instructed?
Illustration: Steiner -v- Magic Carpet Tours & ors F/C (18)
John & Lyn Steiner, booked a package holiday to Bali for their honeymoon. The Package Holiday, was advertised and arranged by Magic Carpet Tours, and was booked through a travel agent, Easts Holidays. The Steiners paid the price of $1,030 to Easts Holidays. Magic Carpet Tours issued an itinerary which stated: On arrival our (local) tour operator will provide you with a transfer to your hotel Mandala Bungalows.
The Steiners sued both Easts Holidays and Magic Carpet Tours under Section 52 of the Trade Practices Act complaining that the transfer from Denpasar Airport to the hotel that was promised was not provided, and that when they finally arrived at Mandala Bungalows by private taxi they were told no reservation for accommodation had been made and they were forced to spend the night in staff room.
The Federal Court found evidence in the business records that a booking had been made for the transfer and the accommodation that therefore neither Easts Travel nor Magic Carpet Tours were liable. The Court also found that Mr Steiner had over consumed most of the contents of a bottle of duty free whisky on the flight to Bali and inferred that as a consequence of the drunken state of Mr Steiner, Mandala Bungalows decided not to honour the transfer or accommodation booking.
On appeal, the full Federal Court confirmed the decision and added that Magic Carpet Tours was not responsible for the failure by Mandala Bungalows to honour the reservation, because the principal of Mandala Bungalows was not the agent of Magic Carpet Tours.
Comment: The significance of a travel agent being an "agent" is limited to properly carrying out instructions of the "principal" be it consumer or suppliers for the booking, but not for the performance of the travel.
Although the Travel Agent is responsible for the booking, the Consumer has some residual responsibility to check it. This should be stated
Strategy: Advice to Consumer: Consumers are responsible to check the itinerary and booking arrangements. If the itinerary or booking arrangements stated above are not correct please contact us in writing immediately to allow sufficient opportunity to correct the arrangements.
Scenario (6) AFTA Code of Ethics
AFTA (the Australian Federation of Travel Agents) proclaims on the homepage of its website http://www.afta.com.au "Your AFTA Travel Agent is committed to Value, Integrity and Protection through a Code of Ethics."
The Code of Ethics sets out a practice standard applicable to the services supplied by an AFTA Travel Agent. It is relevant as a standard to be applied to allegations of negligence.
The Code of Ethics is:
ACCURACY - AFTA members will be factual and accurate when providing information in any form about their services and the services of any firm they represent. They will not use deceptive practices.
AFFILIATION - AFTA members will not falsely represent a person's affiliation with their firm.
COMPLIANCE- AFTA members will abide by all Federal, State and local laws and regulations.
CONFIDENTIALITY - AFTA members will treat every client transaction confidentially and not disclose any information without permission of the client, unless required by law.
CONFLICT OF INTEREST - AFTA members will not allow any preferred relationship with a supplier to interfere with the interests of their clients.
CONSUMER PROTECTION - AFTA members will use every effort to protect their clients against any fraud, misrepresentation or unethical practices which may arise in the travel industry.
COOPERATION - AFTA members will cooperate with any inquiry conducted by AFTA to resolve any dispute involving consumers or another member.
DELIVERY - AFTA members operating tours will provide all components as stated in their brochure or written confirmation, or provide alternative services of equal or greater value or provide appropriate compensation.
DISCLOSURE - AFTA members will provide complete details about terms and conditions of any travel service, including cancellation and service fee obligations, before accepting payment for the booking.
NOTICE - AFTA members operating tours will promptly advise the agent or client who reserved the space of any change in itinerary, services, features or price. If substantial changes are made that are written within the control of the operator, the client will be allowed to cancel without penalty
QUALIFICATIONS & PROFESSIONALISM - AFTA Members must employ staff who have appropriate qualifications and are committed to continuing professional development, such as (but not limited to) the Australian Travel Professionals Program (ATPP). AFTA members must ensure that all staff offer truly professional advice by being fully informed on the various facets of Australian and International travel.
REFUNDS - AFTA members will remit any undisputed funds under their control within the specified time limit. Reasons for delay in providing funds will be given to the claimant promptly.
Scenario (7) Travel Advisories
Strategy: Advice to Consumer: The Department of Foreign Affairs and Trade (the "DFAT") issues travel advisories on various destinations. We recommend that you visit their website: http://www.dfat.gov.au/travel. We recommend that you obtain advice from travel medicine services on your medical needs.
Comment: The Australian Department of Foreign Affairs and Trade, in common with its counterparts worldwide such as the UK Ministry of Foreign Affairs maintains Travel Advisories, which are:
- Country- specific advice on risks to Australian Travellers overseas
- General advice on World-wide risks to Australians overseas
- Countries for which it advises against all travel (19)
- Countries for which it advises against non-essential travel (20)
Comment: The advice given
is measured against normal
precautions that an Australian
would take in a major Australian
city. Whilst this is a higher
standard than might be expected,
especially for travel in lesser
developed countries, it is
possible that a travel agent
would be negligent if they were
not to notify the consumer of a
travel advisories and of other
precautions, such as travel
medical services that are
On June 11 2003, the DFAT launched a Charter for Safe Travel. AFTA became the first signatory and committed its members to:
- Provide travellers with DFAT Consular Travel Advice
- Encourage travellers to take out adequate travel insurance; and
- Generally assist travellers in preparing for travel as well as promoting safe travel.
Occasionally, a specific
travel advisory might issue,
such as the AFTA press release
"Travel Information regarding
SARS" (28 May 2003) [See further
the AFTA website http://www.afta.com.au/pressreleases]
This specific travel advisory
should be passed on to
Scenario (8) Travel Insurance
Strategy: Advice to Consumer: We strongly recommend that you take out travel insurance to cover incidents such as cancellations, loss of baggage, theft of cash and belongings, injuries and medical treatment. We provide applications for Travel Insurance.
Comment: For the Consumer, Travel Insurance will provide coverage for incidents where no claim would otherwise be possible, such as baggage stolen while waiting for transport and medical illness.
Travel Insurance not only protects Consumers, but represents good business for Travel Agents because it is a further source of commission income.
Travel Agents should be aware that pre existing medical conditions may mean no travel insurance is available at all, or is limited in availability arrangements made.
However, since the introduction of the Financial Services Reform Act, travel agents cannot advise upon travel insurance unless they obtain a licence.
As the licensing process is expensive and difficult, and as training is required, travel agents are now restricted to giving factual information rather than advice. They can give customers a travel insurance brochure, but need to refer them to the insurance underwriter if they wish to discuss the insurance or need further information.
Legally, the effect of travel insurance is to provide the consumer a relatively straightforward means of claiming compensation, which avoids the need for the consumer to pursue the Travel Industry participant for the loss.
In some cases, Travel Insurance will meet a claim where a Consumer would not have succeeded against the Travel Industry participant because of the existence of a booking condition. It is particularly useful where the Travel Industry participant does not carry on business in the jurisdiction in that without travel insurance, recovery of the loss would be impracticable for a Consumer. Where the participant carries on business within the jurisdiction, if they are responsible for the loss, they will be liable to reimburse the insurer.
Travel Insurers dispute claims where they fall outside the terms of the policy or where the Insurer considers them to be fraudulent. Further consideration of travel insurance claims is outside the scope of this presentation. For further reference, refer to Insurance Enquiries & Complaints Ltd, which is an insurer administered body which deals with these complaints, by visiting their website http://www.iecltd.com.au. (21)
Tour Operators provide a travel package, generally air travel and accommodation, but often land travel as well. They assemble the package in advance, and describe the features of the package in a tour brochure which contains a booking application and booking conditions.
Tour operators rely heavily upon the booking conditions to limit their responsibility for incidents which arise before and during the tour. To be effective, the booking conditions should:
- be found in the brochure and displayed on the booking form. The booking form is to be an offer signed by the Consumer, submitted for acceptance by the Tour Operator.
- be flexible enough to cover the possible variations and cancellations to the tour, in terms of accommodation, meals, excursions, and the like and be consistent with travel insurance commonly available, especially for cancellations and inability to continue the tour.
- clearly delineate the responsibilities of the tour operator, particularly for injury and death during the tour, and the responsibilities of the suppliers (and the applicability of the supplier's conditions).
strategies for Tour Operators
for protection against consumer
claims are based on accuracy of
description of services provided
and to ensure the booking
conditions are relevant and
comprehensive and to carry out
the tour as promised (subject to
the booking conditions and
Scenario (1) Injury caused whilst on a package tour
Illustration: Kovalo -v- Pitsikas & anor S/C (22)
Ms Kolavo booked a package tour to Spain & Moroco in 1996, arranged through a travel agent, conducted by a tour operator, Comos Tourama. She took the option of sharing a room. During the tour she requested a single room because her companion (also female) was conducting herself abnormally. She was told this option of a single room was not available after the tour had commenced.
One morning, as she was preparing to leave the room, her companion attacked her in the room and bit the fifth finger on her hand almost completely off. Her finger was "lockjawed" in her assailant's mouth for several minutes until help arrived and the assailant's mouth was prised open. She received medical attention and later had surgery.
She sued the travel agent and tour operator for her loss. She discontinued the claim against the travel agent before the hearing, and failed in her claim against the tour operator at the hearing on the grounds that her loss was not foreseeable by the tour operator.
Kolavo then sued her solicitor and barrister for negligent advice (and her solicitor also for breach of contract), in that they should have advised her not to proceed with the claim, as it was hopeless.
The Supreme Court (Court of Appeal) found that the solicitor and barrister were negligent for these reasons:
"I am of the opinion that the only advice that could of been given by a competent lawyer is that neither the Tour Operator nor the Travel Agent could, in law, have relevantly foreseen that the failure to allow the appellant [Kolavo] to have a separate room (and assuming one was available) would lead to her being assaulted by Mrs Krueger. In my opinion, foreseeability in the relevant sense was not even arguable."
"I am of the opinion that the contract between the appellant [Kolavo] and the Tour Operator and/or Travel Agent (assuming the contract was with both) contained no implied term to the effect "the tour operator should take reasonable steps to provide accommodation (if available)..." Should she make a reasonable complaint as to the suitability of her accommodation sharer". The Court said that such a term should not be implied because it was "unreasonable; it was unnecessary to give business efficacy to the arrangement... and would contradict other terms of the contract."
The Court did not need to deal with the tour conditions, but made it clear that their presence was effective to counter the argument of an implied term. For the record, the relevant condition was: "The company shall in no circumstances whatsoever be liable to the client or any person travelling with him for- any death, personal injury, sickness, accident, loss, delay, increased expense, consequential loss or any misadventure howsoever caused;...In this condition "howsoever caused" includes negligence on the part of any person".
The Court noted that there
had been no basis for pursuing a
claim against the Travel Agent
as opposed to the Tour Operator,
but did not need to consider
Comment: It has now become a rule of professional practice for solicitors and barristers in NSW ( and elsewhere in Australia) that they must certify that the litigant has "reasonable prospects of success" and lodge what is known as a Section 198L Certificate to certify that opinion when filing a Statement of Claim, Defence or like in the Court Registry. Therefore, institution of proceedings such as these might not only be negligent, but might also constitute professional misconduct.
Scenario (2) Tour Cancellations/Alternative Tours
Strategy Booking Condition: If you cancel the tour before... you will receive a refund of ...%. If we cancel the tour, we will refund you ...%. We reserve the right to cancel the tour if numbers fall below...
Illustration: Andrews -v- Silver Fox Tours & anor CTTT (23)
Mr Andrews booked a tour of Turkey through Silver Fox Tours, paying the full price of $4,555 in July 2001. The tour conditions provided for a 100% refund for cancellations by the Consumer before 1 August 2001, with no refund at all for cancellations after that date. The Tour Organiser was permitted to cancel the tour or adjust the tour price if minimum number were less than 25.
After September 11, 2001, all persons booked on the tour cancelled the tour except for Mr Andrews. Mr Andrews wanted to go ahead with the tour. He rejected the Tour Organiser's offer of an alternative arrangement consisting of a private car and driver to follow the same route, on account of the extra cost ($4,260) payable and the loss of the opportunity to travel with companions. Silver Fox Tours refused to refund the money paid, saying it had not cancelled the tour because it had offered an alternative means of continuing the tour.
The Tribunal held that Silver Fox Tours could not rely upon the tour conditions which allowed it to substitute the alternative arrangement because the cost adjustment was not reasonable and the loss of travelling companions meant that it was not a commensurate arrangement. Therefore by offering the substitution Silver Fox Tours had effectively cancelled the tour and was ordered to refund the full price.
The Tribunal noted that Mr Andrews had taken out travel insurance as required by the tour conditions, but no claim was possible as the cancellation insurance cover was only for cancellation by the traveller for illness, incapacity and the like.
Comment: If the Tour Operator had been a member of AFTA, then they would have been ethically bound to refund the price: refer to the AFTA Code of Ethics, in particular the headings cooperation, delivery, notice and refunds.
The effect of the DFAT warnings issued after September 11 on travel to Turkey was not raised.
It is more common for a tour operator to propose the tour be deferred, rather than cancelled, where circumstances arise that prevent the tour proceeding.
Illustration: White-v-Holloway CTTT (24)
Mr White booked a 7 day Plains Game Safari in South Africa with Mr Holloway for $7,700. He also booked a 14 day Dangerous Game Zambian Safari to follow, at a price of $23,000 plus a bounty for each animal sable taken. The Plains Game Safari proceeded in August 2000. However, the Dangerous Game Zambian Safari was deferred by agreement until August 2001 because of political turmoil in Zambia. In 2001 Mr White travelled to South Africa and again the Zambian safari was unavailable and another Plains game hunt was provided (not in substitution). Mr White claimed a refund for the cost of the Dangerous Game Zambian Safari.
The Tribunal awarded Mr White $25,000 saying that the agreement made to defer the Zambian Safari did not detract from his rights. The order was made against Mr Holloway, the representative for the Zambian Safari in Australia, as it found he was in partnership with the African safari planner, rather than the agent of the African Safari planner.
Scenario (3) Alternative Accommodation
Strategy Booking Condition: In the event that the accommodation advertised (and displayed in an brochure) is unavailable, we are authorised to substitute alternative accommodation of equivalent standard.
Illustration: Young -v-Qantas; Trafalgar Tours CTTT (25)
Mr & Mrs Young booked a 12 day tour through France through a travel agent, Qantas Travel. The tour was booked with Trafalgar Tours. They complained about the standard and location of the accommodation provided in Paris, in the French Riviera and in the Dordogne Valley, complaining particularly about the failure to ensure non-smoking accommodation, and accommodation provided being different from that shown in the tour brochure. They claimed $2,515 for misrepresentation and for non provision of services.
The claim against Qantas Travel was discontinued before the hearing.The Tribunal found that the accommodation in the French Riviera was too far away from the beaches, being 30 kms away, and that the accommodation in the Dordogne was not close to services promised being in the next valley. Trafalgar Tours was ordered to pay compensation for the equivalent of two days of the tour for each of Mr & Mrs Young, a total of $780 because the accommodation provided was not reasonably equivalent and that breach by Trafalgar Tours of the tour contract was not excused by the booking conditions allowing for substitution of reasonably equivalent accommodation.
Scenario (4) Keep the Brochures & Websites current!
Strategy Procedure: All information in printed and website brochures must be current at the time of printing or display, and be kept current.
Illustration: Doherty -v- Traveland & Associated Travel F/C (26)
Associated Travel, a retail travel agent, displayed the outdated brochures "Viva Bali – Singapore" of a tour operator, Traveland, in its brochure racks. The brochures were outdated because the featured tour to Bali had been reduced in length from 13 days to 11 days, because of a change in the Qantas flight schedule that instead of the flights leaving on Fridays, they left on Sundays.
The Federal Court found Associated Travel guilty of a breach of s.55 A of the Trade Practices Act and ordered a total fine of $2,200 be paid.
The Tour Operator, Traveland was also prosecuted, but charges were dismissed because it had warned the travel agent of the change in the tour.
Comment: The same principle applies to out dated information on the travel agent's or tour operator's website.
The strategies for Airlines for protection against consumer claims for airlines are often Statutory or Convention based and rely upon conditions of carriage in tickets and vouchers.
The Warsaw Convention (27) is the starting point to analyse the relationship between International Airlines and their passengers.
The Warsaw Convention has been legislated into Australian Law under the Civil Aviation (Carrier's Liability) Act 1989 (Cth) and its State counterparts (28). The Australian Law applies to both international and domestic air travel.
The Warsaw Convention deals principally with injury & death, loss of baggage and delay. These issues account for most of the claims against airlines. The Warsaw Convention protects airlines by setting an upper monetary limit which caps the amount payable for claims.
The Warsaw Convention requires the carrier to issue a ticket to gain protection. For international air travel, physical tickets are issued with various endorsements as to baggage, limits on liability and IATA conditions of carriage.
Domestically, e-tickets are replacing physical tickets. Both forms of ticket are issued subject to conditions of carriage.
Scenario (1) Is Deep Vein Thrombosis (DVT) an injury?
The most contentious provision of the Warsaw Convention is liability of an airline for injury and death, which is dealt with by Article 17, which is reproduced as follows:
Article 17: The carrier is liable for damage sustained in the event of the death or wounding of a passenger or any other bodily injury suffered by a passenger, if the accident which caused the damage so sustained took place on board the aircraft or in the course of any of the operations of embarking or disembarking.
Illustration Qantas & British Airways -v- Povey S/C Vic (29)
Brian Povey claimed to have suffered DVT as a consequence of the cramped & restrictive economy class seating, offering of alcohol, tea and coffee and discouragement from moving, about the aircraft being conditions he experienced on flights between Sydney and London between 15 and 20 February 2000.
The Victorian Supreme Court, Court Appeal held that there was nothing unusual about the flight conditions and therefore no accident in the sense of an unusual or unexpected event to cause the injury. Nor did the failure by the airlines to warn Povey of the possibility of an injury by DVT, amount to an event which constituted an accident. Therefore there was no injury within the terms of Article 17 of the Warsaw Convention. That being so, Povey had no claim against the airlines for the DVT suffered.
- The common law
principles of negligence (ie
the seating and flying
conditions and failure to
warn) are not to be imported
into Article 17. To claim
under Article 17, all that
is needed is to prove that
an injury was sustained on
board the aircraft, or
whilst boarding or
disembarking. The Warsaw
Convention represents an
exclusive charter for
claims, excluding the common
law. One important aspect of
this is that all claims must
be lodged within 2 years of
the event. (30)
- If an injury is proven, then the airlines can argue the defences in Article 20.
It is to cover the possibility that the passenger might have a claim under Article 17 that airlines provide warnings on tickets, in in-flight videos and in in-flight magazines to seek medical advice and take precautions against DVT. This allows the airline to raise the Article 20.1 defence.
For example, the following is a booking condition found in the Qantas e-ticket:
"Your health and wellbeing in flight. Some studies have concluded that prolonged immobility may be a risk factor in the formation of blood clots in the legs (DVT-Deep Vein Thrombosis). If you feel you may be at risk from DVT or other health problems Qantas recommends you consult with your doctor before travel. Information on health issues can be found on our website- http://www.qantas.com, in our inflight magazine or contact your local Qantas Office.”
Scenario (2) Airline Baggage Claims
The Warsaw Convention confers the benefit of limited liability upon airlines. For personal injury or death , liability is limited to $500,000 for airlines flying in and out of Australia. For loss and damage to checked baggage, liability is limited to US$20 per kilogram and for hand luggage $300. Airlines each have their own daily rate for delay. In Europe, an EU standard applies.
Illustration: Wikner v Qantas CTTT (31)
Ms Wikner claimed compensation for the value of a video camera ($620), a Winnie the Pooh toy ($60) and a Pewter box ($60), which were missing from checked baggage which arrived in Sydney from Singapore, two weeks after Ms Wikner arrived.
The Tribunal rejected the argument that the principles of bailment applied to allow the customer to claim the value of the items. It confirmed the Warsaw Convention limit of $20 per kilogram was payable, as offered by the airline. The claim was dismissed.
Illustration: Indyk v Qantas CTTT (32)
Mr Indyk claimed $1,500 for the alleged breakage of a double handled porcelain urn, which was carried as checked baggage on a flight from Rome to Sydney.
The Tribunal dismissed the claim on the basis that the applicant had failed to establish that the urn was unbroken on check-in in Rome, after the journey from Florence (where it had been purchased), and also the packaging did not appear sufficiently robust for protection. Also, the Tribunal upheld the Qantas condition of carriage which protected the airline from liability for fragile articles whether carried with or without their knowledge.
Illustration: Jeffares & McNaught v Singapore Airlines CTTT (33)
Mr Jeffares & Ms McNaught checked in a total of 150kg of luggage at Zurich for a flight to Sydney. As they had business class tickets, their allowance was 60kg. They were allowed a further 30kg free of charge at the airport check-in, but were required to pay for the remaining 60kg of luggage. They did not pay for that extra 60kg of luggage and so Singapore airlines removed all their luggage from the flight. Their luggage arrived 2 days after they did in Sydney.
The Tribunal awarded compensation because none of the luggage was carried. It awarded $600 as against $1,044 paid for 4 nights accommodation at the Stamford Plaza Hotel, Double Bay, as they did not provide any evidence of attempts to mitigate their loss. The Tribunal rejected their claim for a refund of the business class airfare of $5,196 on the basis that the same fare would have been payable had they travelled without luggage, and in any event the airline was prepared to allow an extra 30kg to be carried free of charge. The Tribunal awarded clothing expense of $373.55 and pharmaceuticals $200.40 as a consequence of the breach of contract for carriage of the luggage but rejected the claim for expenditure on food as that expenditure had no connection to the delay in arrival of the luggage.
The time limits for making claims under the Warsaw Convention must be strictly observed.
Illustration: Kiwi Munchies –v- Thai Airways NSW S/C (34)
Kiwi Munchies claimed against Thai Airways for loss and damage to goods carried by Thai Airways. It relied upon the fact that it had given notice of loss to the freight forwarder Panalpina as being effective notice of loss to Thai Airways.
The Supreme Court of NSW held that no notice of loss had been given to Thai Airlines within the 14 day period laid down under the Warsaw Convention and therefore the claim made against Thai Airways was dismissed on a strike out motion (i.e. without a hearing of the claim).
Scenario (3) Conditions of Carriage
There are a number of aspects of air travel which are not governed by the Warsaw Convention. These must be covered by the conditions of carriage which appear on the ticket. Some are:
- Departures and check-in times
- Fare details and refunds
- Cancellation fees, variation fees, re-ticketing fees.
- Changing bookings- procedures and charges
- Baggage allowances & prohibited items
- Privacy Notice
Cancellation fees, variation
fees and re-ticketing fees, are
a constant area of dispute. They
should be clearly notified to
consumers in the conditions of
carriage that are notified
before the issue of the air
Illustration: Savetta -v-Nauru Air & anor CTTT (35)
F & S Savetta cancelled air tickets purchased with Nauru Air, in order to purchase cheaper air tickets elsewhere. Nauru Air charged a cancellation fee of $795 per ticket. There was no specific cancellation fee for termination of the contract described in the conditions of carriage.
The Tribunal held that $250 was a more reasonable cancellation fee and ordered a refund of the rest of the money paid.
Scenario (4) Misleading Statements
Carriers promote their flights by advertising in the media, on their websites, and in brochures. The misleading statements, representations and conduct provisions of the Trade Practices Act apply.
Illustration: Baxter & anor -v- British Airways & Qantas F/C (36)
Baxter & McIlwaine purchased an around the world ticket First Class with British Airways and Qantas on the basis of a brochure which stated "You can fly to almost everywhere and almost anywhere the two airlines do, as long as you keep travelling in the same direction, all the way around the world, and end up where you started ". The 224 destinations featured included Tel Aviv.
During their trip they desired to travel from London to Tel Aviv. They were told when making the booking in London that from Tel Aviv they would have to back-track to Athens and pay the sector fare in doing so, if they were to continue their trip in an eastwards direction because there was no easterly flight from Tel Aviv. They proceeded to make their booking to Tel Aviv regardless.
The Federal Court found the statement in the brochure was misleading and in breach of Section 52 of the Trade Practices Act but awarded no damages.
Scenario (5) Seat Allocation
Seat allocation, along with baggage that does not arrive at the same time as the passenger, is probably the most common consumer complaint against airlines. Particularly for international flights, preferences are often requested (aisle/window/centre) and special requests are passed on (bulkhead). Airlines avoid allocating a specific seat until check in. Conditions of Carriage are silent on seating, and the general practice is that seating is allocated by the airline is generally pre-allocated by the airline in its computer within the 24 hours before the flight and advised to the customer at check-in.
Illustration: Perrett-Abrahams -v- Qantas VCAT (37)
Ms Perrett-Abrahams requested bulkhead seating in economy class when booking several domestic flights with Qantas, through her travel agent. She did so because of her impairment, being the loss of bending capacity in her left knee, which made it uncomfortable for her to travel in an economy size seat space. Although a bulkhead seat was requested, Qantas Policy does not guarantee seating. On some of the booked flights she was not allocated bulkhead seating and she was either upgraded to business class or seated in an aisle seat.
She claimed compensation for discrimination under the Equal Opportunity Act, (Vic).
The Tribunal found (after a 5 day hearing) there was no discrimination under the Act in that Qantas had a requirement that a passenger who books economy class seating must book on the basis that they are able to comfortably sit in an economy class seat and treated her in the same way as a person with no impairment or with a different impairment. It therefore dismissed the claim.
The Tribunal noted that if Ms Perrett-Abrahams wanted to guarantee bulkhead seating she should have paid a disabled traveller airfare rather than the standard economy fare that she paid.
Scenario (6) Flight Cancellations
The IATA Conditions of Carriage appear on all international air tickets and form part of the conditions of carriage. Condition 9 deals with departures and arrivals and is as follows:
Carrier undertakes to use its best efforts to carry passenger and baggage with reasonable dispatch. Times shown in timetables or elsewhere are not guaranteed and form no part of this contract. Carrier may without notice substitute alternate carriers or aircraft, and may alter or omit stopping places shown on the ticket in cases of necessity. Schedules are subject to change without notice. Carrier assumes no responsibility for making connections.
Problems arise when a flight is cancelled.
Illustration: Holt -v- Garuda Indonesia CTTT (38)
Holt checked in at Heathrow Airport for the Garuda flight from London to Sydney, Garuda cancelled the flight on account of a mechanical difficulty in the aircraft. Holt returned to the airport the next day and was offered a confirmed flight from London to Denpasar with an unconfirmed onward flight to Sydney. He was advised that a confirmed seat on a London to Syndey flight was not available for 4 to 5 days nor could they offer an alternative carrier to Sydney.
Holt booked a flight on another carrier and claimed the cost of $1,267.40. The Tribunal awarded that amount on the basis of breach of contract, saying that condition 9 did not apply as it relates to changes in schedules or carriers and does not exempt a failure to guarantee arrival in accordance with a confirmed ticket.
- Airlines adopt the
practice of finding seating
on another carrier's
aircraft where they are
unable to complete a flight.
The only conclusion to be
drawn in this case is that
Garuda deliberately chose
not to do so, to avoid
paying the inter-carrier
- Cancellations of flights for security (terrorism) reasons are becoming more common since September 11.
Long distance railway journeys feature cabins and common areas for the journey. They are promoted by printed and website brochures.
The strategies for Railways for protection are to ensure that the representations made in the brochure are accurate and that the performance is as promised.
Illustration: Beveridge -v- Great Southern Railway CTTT (39)
Mr Beveridge (a non practising barrister) booked a ticket for himself and his wife on the "Indian Pacific" from Sydney to Perth. He paid $4,048 for the three day rail journey which included $1,050 for a "deluxe cabin" rather than the standard Gold Kangaroo Sleeper. He sued only the operator of the rail service and not the booking agent, Country Link.
The Tribunal awarded him $1,050 (being the additional amount paid) as damages for these misrepresentations which were held to be in breach of section 52 of the Trade Practices Act, namely:
- The bar fridge was not
"well stocked" with
- The "double bed" was
only 112cms wide, not the
standard width of
135-138cms, as a result of
which one of them slept on
the fold down single bed in
- The phrase "enjoy a movie on your own private video player" was not correct, because of the unavailability of videos.
These complaints were made on
the journey but were not
The basis for liability of an accommodation provider is the failure to provide accommodation to the standard represented. This can arise in a number of ways, such as:
- The standard of the room
in terms of furnishings,
fitout, bathroom, air
conditioning is not as
pictured or as represented.
- The aspect or view from
the room not being as
pictured or represented
- The location of the
hotel or resort is not as
pictured or as represented.
- The facilities available
in the hotel or resort such
as swimming pool, spa and
sauna, gymnasium, breakfast
bar, restaurants are not as
pictured or represented.
- The access to attractions and facilities from the hotel or resort, such as beaches, shopping, theme parks is not as pictured or represented.
The pictures or
representations of a hotel or
resort can appear in a printed
brochure or on a website, not
only of the accommodation
provider but also of Tour
Operators and Travel Agents.
The strategies for Accommodation Providers for protection against consumer claims are to accurately represent the room and the facilities in their advertising, and to ensure the features that are booked and are available as advertised and agreed.
Illustration: Taylor & Lee -v- Queensland Travel Centre CTTT (40)
Mr B Taylor and Ms T Lee claimed against their travel agent, the Queensland Travel Centre (trading as Sunlover Holidays) and the accommodation providers, Surfers Del Ray Apartments that the accommodation was not of a suitable or satisfactory standard and was not what they had contracted and paid for. In particular, the beds in issue, the bed bugs, the state of the bathroom and the air conditioning were unsatisfactory. They left after one night of a seven night stay they had booked.
The Tribunal preferred the evidence of the Applicants which gave a detailed account of the complaints as against a letter from the owners of the Apartments who argued to the contrary. The Tribunal ordered Surfers Del Ray to refund $240 in addition to a refund of $768 already made against an accommodation component of $1,344 in the travel arrangements, for breach of the accommodation contract.
The Tribunal found the Queensland Travel Centre not liable as they acted as the agent of the operators of the Apartments and the representation made that it was a quiet location was not misleading.
- Accommodation Providers
will generally be found
liable in these instances
unless they provide strong
evidence, such as a
contemporaneous reports with
photographs, reports and the
like, and send a
representative to give
evidence at the hearing.
- It is fortunate for the accommodation provider that the Applicants did not have legal advice, otherwise they could have recovered the airfare and damages for loss of enjoyment as well.
- Definition of "consumer"
in Consumer Claims Act 1998
is found in s.3, namely
(a) a natural person; or
(b) a firm; or
(c) a small proprietary company...
to whom or to which a supplier has supplied or agreed to supply goods or services, whether under a contract or not... ‘
- Definition of ‘business
of a travel agent" from
Travel Agents Act 1986 (NSW)
"...the carrying on of any one or more of the following activities as a business:
(a) selling tickets entitling another person to travel, or otherwise arranging for another person a right of passage, on a conveyance...; or
(b) selling to, or arranging or making available for, another person rights of passage to, and hotel or other accommodation at one or more places...whether within or outside the state; or
(c) purchasing for resale the right of passage on a conveyance ...; or
(d) advertising a willingness to sell tickets [entitling people to travel etc] or selling rights of passage and accommodation [etc] or purchasing for resale rights of passage [that is, advertising any of the activities set out above]”
- Definition of "package"
from UK Package Travel
Regulations implementing the
EU Directive on package
travel. 'Package': means the
pre-arranged combination of
two of the following three
services sold (or offered
for sale) at an inclusive
(C) other tourist services.
- Trade Practices Act,
1974 (Commonwealth) was
introduced to provide
consumer protection on an
Australia wide basis.
Consumer claims are limited
to be made against
corporations. The Act is
administered by the
Australian Consumer and
Competition Commission (the
- The Fair Trading Act
1987 (NSW) is NSW
legislation (which is
replicated in each state) to
mirror the Trade Practices Act in terms of consumer protection but which enables claims to be made against persons. The Act is administered by the NSW Department of Fair Trading in NSW and by equivalent departments in other states. Fair Trading Act 1987 (NSW), Fair Trading Act 1985 (Vic), Fair Trading Act 1987 (SA), Fair Trading Act 1987 (WA), Fair Trading Act 1990 (Tas), Fair Trading Act 1992 (ACT), Consumer Affairs and Fair Trading Act 1990 (NT), Fair Trading Act 1989 (Qld).
- Each State has its own
Travel Agents Act,
regulation being on a state
by state basis, but with a
compensation fund, the
Travel Compensation Fund
(the "TCF"). The Acts are:
The Travel Agents Act 1986
(NSW), The Travel Agents Act
1986 (Vic), The Travel
Agents Act 1986 (SA), The
Travel Agents Act 1985 (WA),
the Travel Agents Act 1987
(Tas), The Travel Agents Act
1988 (Qld) and The Travel
Agents Act 1968 (ACT).
- Queensland alone amongst
the States has extended its
regulation of the Tourism
Industry by enacting The
Tourism Services Act 2003
(Qld) to apply to inbound
tour operators and tour
- The Guide is found at
the ACCC website: http://www.accc.gov.au/BusinessRights&Obligations/publications
- AFTA was established in
1957. Its membership
consists of travel agents,
tour operators, wholesalers
and others in the travel
Australia. Its members write
90% of the travel industry
turnover in Australia. See
- The Consumer, Trader and
Tenancy Tribunal Act 2001
(NSW) Decisions are to be
found on http://www.fairtrading.nsw.gov.au/tribunal/Tribunaldecisions
- Cross & Cross -v- Flight
Centre Limited t/as Flight
Centre  NSW CTTT 681
(7 October 2003)
- Doolan -v- Air New
Zealand Ltd; Jetset Tours
Pty Ltd (1978) ATPR 40-082
Federal Court of Australia.
See also Dawson –v- World
Travel Headquarters Pty Ltd
(1981) 53 FLR 455; ATPR
- Grigg & Grandsimon -v-
Qantas Ltd, Flight Centre
Ltd & Air France  NSW
CTTT 159 (7 June 2002)
- Aboss -v- Gitani Travel
Agency Pty Ltd & Abu Baker
Al-Sedik Islamic Society
CTTT 759 (9 January 2002).
- L & V Morlin -v-
Overseas Travel Service Pty
LTD  NSW CTTT 620 (5
- The "Molly Meldrum"
incident where he ticked
"business purpose" on his
entry card whilst having a
passport which was not
stamped with a business
visa. This resulted in his
being denied entry into the
USA and having to return to
Australia on the next
flight. It was not reported
if he was claiming
- Edgar -v- Jokalt Pty Ltd
& Grove Travel Pty Ltd
 NSW CTTT 65 (26 April
See also Tretska, Carlton & Tretska -v- Menon Brothers Travel t/as Traveland Epping and Autohome Rentals International Pty Ltd  NSW CTTT94 (15 May 2002) where an award of $7,484.87 was made because the campervan was not in good repair, was not registered and was not suitable for the applicants’ needs for bathroom and cooking facilities and a fridge.
- Steiner -v- Magic Carpet
Tours Pty Ltd; East Holidays
Pty Ltd & V J Ireland (
Court of Australia) (1984) ATPR 40-490. Appeal (1985) ATPR 40-581.
- As at 24th January 2004-
Afghanistan, Burundi, Iraq,
Liberia, Pakistan, Somalia.
- As at 24th January 2004
– Algeria, Central African
Republic, Columbia, Haiti,
(including Bali), Ivory Coast, Kenya, Saudi Arabia, Sudan, Turkey, Yemen.
- The IEC disputes
resolution section publishes
reports of its decisions
annually. The reports on
travel insurance highlight
the fact that for baggage
"left unattended in a public
place and for medical claims
"pre-existing illnesses" are
common areas of dispute
- Kolavo -v- Pitsikas
(t/as Comino and Pitsikas) &
Anor  NSW CA 59 (1
April 2003) - the
- Andrews -v- John Gilbert
Francis t/as Silver Fox
Tours & World Travel and
Sports Holidays Pty Ltd t/as
Dynamic World Travel Service
 NSW CTTT 207 (25 June
- White –v- Holloway
 NSW CTTT 680 (7
- Young –v- Qantas
Airways, Qantas Travel &
Trafalgar Tours (Aust) Pty
Ltd  NSW
CTTT 198 (20 February 2003).
- Doherty -v- Traveland
Pty Ltd & Associated Travel
Pty Ltd (1982) ATPR 40-323
Court of Australia.
- The full title as
applies in Australia is The
Warsaw Convention on
Unification of Certain Rules
Applying to International
Carriage by Air 1929 as
amended by The Hague
Protocol 1955 and by
Protocol No 4 of Montreal
- The State Acts are all
called Civil Aviation
(Carrier's Liability) Acts-
NSW 1959, QLD 1964, SA 1962,
TAS 1963, VIC 1961, WA 1961.
Their provisions adopt the
Commonwealth Act for
domestic (intra State)
- Qantas Ltd & British
Airways plc -v- Povey 
VSCA 227 Supreme Court of
Victoria, Court of Appeal.
- Sidhu -v- British
Airways plc  WLR 26
House of Lords: where the
House of Lords rejected two
claims based on breach of
contract and negligence
which were made outside the
two year limitation period
on the basis that the Warsaw
Convention was an exclusive
charter. The NSW Court of
Appeal followed the
reasoning of this decision
in Kotsambasis -v- Singapore
Airlines Ltd (NSW) 40154/96,
13 August 1997 unreported.
- Wikner –v- Qantas
Airways Ltd  NSW CTTT
53 (23 January 2003).
- Indyk –v- Qantas Airways
 NSW CTTT 864 (17
- Jeffares & McNaught –v-
Singapore Airlines Ltd
 NSW CTTT 114 (22 May
- Kiwi Munchies Pty Ltd
–v- Thai Airways
International Public Company
Ltd  NSW SC 82 Supreme
Court of NSW.
- Savetta -v- Tobaraoi
Travel Pty Ltd & Nauru Air
Corporation  NSW CTTT
- Melanie Baxter and
Russell McIlwaine –v-
British Airways plc and
Qantas Airways Limited,
(1988) ATPR 40-887 Federal
Court of Australia.
- Perrett-Abrahams -v-
Qantas Ltd  VCAT 1634
(31 August 2000) Victorian
Civil & Administrative
- Holt -v- Garuda
Indonesia  NSW CTTT
317 (28 March 2003)
- Beveridge -v- Great
Southern Railway Travel Pty
Ltd  NSW CTTT 194 (21
- Taylor & Lee -v- Queensland Travel Centre & anor  NSW CTTT 466 (4 September 2002)