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
INDUSTRY
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,
- Accommodation
- 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
Consumer.
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
PARTICIPANTS
The Consumer
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
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
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
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.
Accommodation Providers
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:
1. Contract
- 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 COMMISSION ("ACCC")
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
$25,000
- The fact that costs are
not awarded against the
losing party, unless the
Application was frivolous or
misconceived.
- 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
notes.
THE
STRATEGIES
We now examine the strategies
available to limit the liability
of each participant for consumer
claims.
TRAVEL
AGENTS
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.
The
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
available.
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
travellers.
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
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).
The
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
safety.
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:
-
No
foreseeability:
"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."
-
No
implied term:
"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."
-
Tour Conditions:
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
this issue.
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.
AIRLINES
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.
Comments:
- 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
ticket.
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.
Comments:
- 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
charge.
- Cancellations of flights for security (terrorism) reasons are becoming more common since September 11.
RAILWAYS
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
complimentary refreshments
as promised.
- 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 cabin.
- 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
addressed.
ACCOMMODATION PROVIDERS
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.
Comments:
- 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.
FOOTNOTES
- Definition of "consumer"
in Consumer Claims Act 1998
is found in s.3, namely
"consumer means:
(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)
is
"...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
price:
(A) transport;
(B) accommodation;
(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
"ACCC").
- 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
jointly administered
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
guides.
- 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
industry throughout
Australia. Its members write
90% of the travel industry
turnover in Australia. See
http://www.afta.com.au
- 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 [2003] 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
40-193
- Grigg & Grandsimon -v-
Qantas Ltd, Flight Centre
Ltd & Air France [2002] NSW
CTTT 159 (7 June 2002)
- Aboss -v- Gitani Travel
Agency Pty Ltd & Abu Baker
Al-Sedik Islamic Society
[2002] NSW
CTTT 759 (9 January 2002).
- L & V Morlin -v-
Overseas Travel Service Pty
LTD [2003] NSW CTTT 620 (5
September 2003)
- 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
compensation.
- Edgar -v- Jokalt Pty Ltd
& Grove Travel Pty Ltd
[2002] NSW CTTT 65 (26 April
2002)
See also Tretska, Carlton & Tretska -v- Menon Brothers Travel t/as Traveland Epping and Autohome Rentals International Pty Ltd [2002] 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 (
Federal
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,
Indonesia
(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 [2003] NSW CA 59 (1
April 2003) - the
professional negligence
decisions.
- Andrews -v- John Gilbert
Francis t/as Silver Fox
Tours & World Travel and
Sports Holidays Pty Ltd t/as
Dynamic World Travel Service
[2002] NSW CTTT 207 (25 June
2002)
- White –v- Holloway
[2003] NSW CTTT 680 (7
October 2003)
- Young –v- Qantas
Airways, Qantas Travel &
Trafalgar Tours (Aust) Pty
Ltd [2003] NSW
CTTT 198 (20 February 2003).
- Doherty -v- Traveland
Pty Ltd & Associated Travel
Pty Ltd (1982) ATPR 40-323
Federal
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
1975.
- 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)
aviation.
- Qantas Ltd & British
Airways plc -v- Povey [2003]
VSCA 227 Supreme Court of
Victoria, Court of Appeal.
- Sidhu -v- British
Airways plc [1997] 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 [2003] NSW CTTT
53 (23 January 2003).
- Indyk –v- Qantas Airways
[2002] NSW CTTT 864 (17
January 2003).
- Jeffares & McNaught –v-
Singapore Airlines Ltd
[2002] NSW CTTT 114 (22 May
2002)
- Kiwi Munchies Pty Ltd
–v- Thai Airways
International Public Company
Ltd [2002] NSW SC 82 Supreme
Court of NSW.
- Savetta -v- Tobaraoi
Travel Pty Ltd & Nauru Air
Corporation [2002] NSW CTTT
479 (6
September 2002).
- 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 [2000] VCAT 1634
(31 August 2000) Victorian
Civil & Administrative
Tribunal
- Holt -v- Garuda
Indonesia [2003] NSW CTTT
317 (28 March 2003)
- Beveridge -v- Great
Southern Railway Travel Pty
Ltd [2003] NSW CTTT 194 (21
February 2003).
- Taylor & Lee -v- Queensland Travel Centre & anor [2002] NSW CTTT 466 (4 September 2002)
