If a travel agent books
an international flight, are they legally liable if they
fail to advise the visa requirements for the flight
I would like to share this travellerís enquiry and my reply
Thanks for your useful website (www.tourismlegal.com.au). I
have a short enquiry for you:
We booked a flight for my baby daughter and I (both
Australian passport holders) from Santiago (Chile) to Dublin
(Ireland) using [name withheld] Travel Agents in Australia.
The agent booked the flight with a 12 hour stop-over in
Toronto (Canada), then a connecting flight to Dublin.
In Santiago we were denied boarding as we did not
hold an eTA (a Canadian transit visa). We contacted the
Travel Agent immediately to seek their help as we had NOT
been advised by them that a transit visa was required for
the stop-over booked by them, and so had not obtained
Long story short: we lost the flight (the Travel Agent
failed to cancel the flight as we requested) and lost the
hotel booking for the stop-over in Toronto. We had to book a
full new flight, hotel & luggage allowance. As the new
flight was with a different airline it cost around $1,700.
Before travelling, we had exchanged SEVERAL emails with the
Travel Agent to ensure all was in place; bassinet for the
baby booked (they failed to do this as well); luggage
allowances; dates; requirements for my baby daughter; etc.
We have copies of all emails exchanged.
When we claimed the extra costs of $1,700, the Travel Agent
said that we are bound by their standard disclosure and no
compensation is payable:
I understand it is my responsibility to check visas,
immigration, health requirements and that my passport is
valid for at least 6 months beyond my return date to
They deny liability and will not reimburse the extra costs
we had to incur due to the lack of a visa.
We understand is part of the duty of care of travel agents
to advise customers of things such as transit visas. In this
case they failed to advise us accordingly & didn't fulfil
their duties as travel agents which made us incur the extra
costs. We want to pursue this matter and get our extra costs
back. Would you be able to advise on what is the best
Thanks in advance for you time and look forward to
Your question illustrates that there are some travel
professionals who still think that they can book an
international flight, and leave it to the customer to look
after the visa requirements.
They do this even though as travel professionals, they know
that without a valid visa the customer will be denied
boarding on the flight they have booked, according to IATA
When a compensation claim is made, these travel agents point
to their standard disclosure / disclaimer which includes a
customer acknowledgement that:
I understand it is my [the customerís] responsibility to
And by offering help if needed Ė
We can help you find out if you need one.
Itís clever, but does it stand up legally?
The Australian Consumer Law, which came into effect on 1
January 2011, imposes a consumer guarantee Ė a duty of care
Ė upon travel professionals to use due care and skill in
dealings with consumers. This is how it reads:
Section 60 Guarantee as to due care and skill
If a person supplies, in trade or commerce, services to
a consumer, there is a guarantee that the services will
be rendered with due care and skill.
If the services rendered are booking an international
flight, then the travel agentís duty is to use due care and
skill in making the booking. In my view this includes
checking passport validity (at least 6 months from date of
return) and if the customer is travelling on an Australian
passport, advising visa requirements for the ticketed
destination, and any places of transit or stop-over.
Otherwise, the customer risks being denied boarding and
losing the benefit of the flight they have paid for.
What about the disclosure / disclaimer clause? While it
offers sound advice for passport validity, it cannot validly
exclude the travel agentís responsibility to use due care
and skill in relation to visas. This is because the
Australian Consumer law does not allow a disclosure /
disclaimer clause to be used to nullify the travel agentís
guarantee to use due care and skill:
Section 64 Guarantees not to be excluded etc. by
(1) A term of a contract Ö is void to the extent that
the term purports to exclude,
restrict or modify, or has the effect of excluding,
restricting or modifying: Ö
(c) any liability of a person for a failure to
comply with a guarantee that applies under this
Division to a supply of goods or services.
As a result of Section 64, the part of the disclaimer that
reads I understand it is my responsibility to check visas is
void and cannot be relied upon by the travel agent to
exclude your claim for compensation.
If the travel agent does not provide a refund of the extra
money you spent, make a claim with NCAT. The claim is a
financial claim Ė there is no compensation payable for the
failure to book a bassinet.
Thanks so much for your prompt reply. Really helpful.
I will contact [the travel agent] again and look into filing
claim with NCAT if there is no positive response to our