Hi, I wonder if anyone can help with my query. In October we went on holiday to Cyprus with Portland. We booked one of the Thomson Holiday excursions and as there were two types of trip to the Kykoss Monastry, a minibus trip and a 4x4 safari trip we asked what the difference was. We were told that the 4x4 trip was unsuitable if you had mobility problems because of the terrain they covered but the other should be fine. I have a spinal problem and have had several spinal fusions but was enjoying a period of almost pain free time. We booked for the minibus expecting to get to the monastry via hard roads. However halfway through the guide told us we would be travelling along the valley floor and joked that anyone with a bad back would be cured at the end of it and those without would get a free massage. The trip was horrendous, we spent over an hour being bumped along a dirt track in a vehicle without the proper suspension for the terrain covered and along tracks that were not really wide enough for the vehicle. Several times the rear wheels were milimetres away from a steep drop into a river. At the end I was in such pain I had to get a taxi back to the hotel as I couldn't continue for the remainder of the trip. The Thomson rep was told and the next day they gave us the full cost of the taxi back but said that they are only agents for the excursion and would speak to them. For the remainder of my holiday (4 days) were totally spoilt due to the pain I was in.
On return to UK I had to go to my GP and am now on strong painkillers again. We wrote to Portland as I felt that I had been given false information and that I had a case for compensation because our holiday was spoilt through no fault of our own and because I am now back to living with pain again. There answer was that the booking forms explain the excursions are subject to change and that they are 100% non refundable. In so many words their letter said - 'tough - no one else complained'.
I've never complained before about any holiday and wonder if I should accept their response. Any advice would be appreciated.
Hi Meldes
Sorry to hear you had such a terrible time. The only advice I can offer is to ring Ros Fernihough Travel Law
We have teamed up with Ros Fernihough, Travel Law Solicitor, to provide the best information available.
Ros has offered our members free impartial legal advice. Please note that Ros does not read or post on this board any contact to her must be made via :-
Tel :- 01922 621114
Solicitor
Sorry to hear you had such a terrible time. The only advice I can offer is to ring Ros Fernihough Travel Law
We have teamed up with Ros Fernihough, Travel Law Solicitor, to provide the best information available.
Ros has offered our members free impartial legal advice. Please note that Ros does not read or post on this board any contact to her must be made via :-
Tel :- 01922 621114
Solicitor
Hi Meldes,
Sorry to hear you had a bad time.
I dont want to be anti but I think you may have to consider the following points.
The reps are not doctors it maybe difficult for them to know what is suitable.
Were they aware of your medical condition and are they qualified to make a judgement.
When you signed the form to agree on the trip were there any points saying you go at your own risk ?
I hope your back clears up know how bad it can be.
Kind Regards
Stewart
Sorry to hear you had a bad time.
I dont want to be anti but I think you may have to consider the following points.
The reps are not doctors it maybe difficult for them to know what is suitable.
Were they aware of your medical condition and are they qualified to make a judgement.
When you signed the form to agree on the trip were there any points saying you go at your own risk ?
I hope your back clears up know how bad it can be.
Kind Regards
Stewart
Am very sorry to hear of your situation.
Am sure that something was brought out whereby if you booked excursions in the UK then the company ie Thomson etc would be liable but, if, however you booked in resort then you weren't covered.
Ros will probably be able to assist further.
Am sure that something was brought out whereby if you booked excursions in the UK then the company ie Thomson etc would be liable but, if, however you booked in resort then you weren't covered.
Ros will probably be able to assist further.
What an awful thing to happen. I suffer from joint problems myself and it's a hard call working out if a trip is going to be suitable to undertake.
It sounds like you did the correct thing by asking the right questions before booking the trip, but the problem will be proving this and proving that you were totally mislead into booking something that wasn't right for you. It might be helpful if you have some pictures of the vehicle and the type of terrain it was covering to support your case and show it was unsuitable.
Hopefully Ros will be able to advise you.
It sounds like you did the correct thing by asking the right questions before booking the trip, but the problem will be proving this and proving that you were totally mislead into booking something that wasn't right for you. It might be helpful if you have some pictures of the vehicle and the type of terrain it was covering to support your case and show it was unsuitable.
Hopefully Ros will be able to advise you.
I can only offer the information that a tour operator is responsible for the health and safety of their passengers and fully responsible for the actions of all of their suppliers and sub-suppliers.
The guides "jokey" comment indicates that he/she was aware of the terrain, was also aware that those with bad backs would incurr repurcussions.
Check the written descriptions of the two trip options. If either makes reference to unsuitability/suitability for passengers with medical conditions I believe you will have a case against Portland.
The Package Travel, Package Holidays and Package Tours Regulations 1992
Clause 15 covers your situation in the above Regulations.
Check it out at this link: http://www.opsi.gov.uk/SI/si1992/Uksi_19923288_en_5.htm
Interestingly, you complained at the end of that trip and took a taxi back - Thomsons refunded this and in my book that counts towards an acceptance of liability. They are directed by the Regulation 15, clause 7 to provide prompt assistance to consumers in difficulty. Clause 8 requires the supplier to make prompt efforts to find appropriate solutions and clause 9 directs you to communicate in writing (or other appropriate method) a.s.a.p. to the supplier of the services and/or the Tour Op.
I gather you complied with this requirement by complaining at the end of the trip, to the Thomson rep the next day and to Portland upon return to the U.K. and after seeking medicalk assistance.
I believe Portland should have arranged medical assistance in resort.
I believe their terms and conditions with regard to change of itinerary do not absolve them of their duty-of-care requirements
I would advise you to demand far more than a simple refund of the excursion cost - as their response seems to think that's the limit of their possible financial obligation.
I would dismiss their statement re. no other passengers complaining as irrelevant.
Only point I'd bear in mind - did you disclose on your holiday insurance your past spinal problems ? Was that insurance taken out with POrtland as part of the Holiday ?
Good Luck, keep us informed please.
Then contact Ros.
However halfway through the guide told us we would be travelling along the valley floor and joked that anyone with a bad back would be cured at the end of it and those without would get a free massage.
The guides "jokey" comment indicates that he/she was aware of the terrain, was also aware that those with bad backs would incurr repurcussions.
Check the written descriptions of the two trip options. If either makes reference to unsuitability/suitability for passengers with medical conditions I believe you will have a case against Portland.
The Package Travel, Package Holidays and Package Tours Regulations 1992
Clause 15 covers your situation in the above Regulations.
Check it out at this link: http://www.opsi.gov.uk/SI/si1992/Uksi_19923288_en_5.htm
Interestingly, you complained at the end of that trip and took a taxi back - Thomsons refunded this and in my book that counts towards an acceptance of liability. They are directed by the Regulation 15, clause 7 to provide prompt assistance to consumers in difficulty. Clause 8 requires the supplier to make prompt efforts to find appropriate solutions and clause 9 directs you to communicate in writing (or other appropriate method) a.s.a.p. to the supplier of the services and/or the Tour Op.
I gather you complied with this requirement by complaining at the end of the trip, to the Thomson rep the next day and to Portland upon return to the U.K. and after seeking medicalk assistance.
I believe Portland should have arranged medical assistance in resort.
I believe their terms and conditions with regard to change of itinerary do not absolve them of their duty-of-care requirements
I would advise you to demand far more than a simple refund of the excursion cost - as their response seems to think that's the limit of their possible financial obligation.
I would dismiss their statement re. no other passengers complaining as irrelevant.
Only point I'd bear in mind - did you disclose on your holiday insurance your past spinal problems ? Was that insurance taken out with POrtland as part of the Holiday ?
Good Luck, keep us informed please.
Then contact Ros.
Whilst in Cyprus last month we booked a guided walk. We were collected by Landrover from the hotel and before we set off we were required to sign a waiver covering transport over rough terrain and for the walk itself.
Our complaint was that we do harder walking round the village we live in.
My personal view is that if collected by mini bus, I would not expect to be travelling along a valley bottom on an unmade road just to make the trip more interesting/fun. That is why you opted for that means of transport.
I am/was aware that many of the roads in Cyprus are not surfaced but having just been to the same place as you know that there is a surfaced road taking you there. I drove it.
Mike does make an important point regarding disclosure on you insurance form. I have an annual check for Diabetes. My Mother had it and so does my sister. I do not. My check is because I could be classed as "at risk" I took advice from my doctor regarding disclosure.
fwh
Our complaint was that we do harder walking round the village we live in.
My personal view is that if collected by mini bus, I would not expect to be travelling along a valley bottom on an unmade road just to make the trip more interesting/fun. That is why you opted for that means of transport.
I am/was aware that many of the roads in Cyprus are not surfaced but having just been to the same place as you know that there is a surfaced road taking you there. I drove it.
Mike does make an important point regarding disclosure on you insurance form. I have an annual check for Diabetes. My Mother had it and so does my sister. I do not. My check is because I could be classed as "at risk" I took advice from my doctor regarding disclosure.
fwh
Hi Mike regarding your statement below
I've doubled checked with Ros's office and I am correct in saying that if excursions are booked in resort then the T/O isn't liable. It has been deemed that it takes the responisiblity of the T/O too far.
If however the excursion is booked in the UK and is on your confirmation invoice then the T/O is liable.
If you would like more clarification then Pam said for you to give her a call and she will explain the legal standing more fully to you.
I can only offer the information that a tour operator is responsible for the health and safety of their passengers and fully responsible for the actions of all of their suppliers and sub-suppliers.
I've doubled checked with Ros's office and I am correct in saying that if excursions are booked in resort then the T/O isn't liable. It has been deemed that it takes the responisiblity of the T/O too far.
If however the excursion is booked in the UK and is on your confirmation invoice then the T/O is liable.
If you would like more clarification then Pam said for you to give her a call and she will explain the legal standing more fully to you.
That's most helpful legal clarification Glynis.
Looks as if there's been a 'stated case' (court decision) on the Package Holiday Regulations regarding the liability of travel companies with respect to excursions booked through them at the resort.
Otherwise I would have agreed with Mike's interpretation.
Peter
Looks as if there's been a 'stated case' (court decision) on the Package Holiday Regulations regarding the liability of travel companies with respect to excursions booked through them at the resort.
Otherwise I would have agreed with Mike's interpretation.
Peter
We booked one of the Thomson Holiday excursions
The quote above is copied from meldes' original post.
I stand corrected Glynis - thank you for pointing that out. I'd simply assumed that a tour booked with the Tour Operator's employee and purporting to be an official T.Op. excursion would be covered.
I discussed with Pam the obvious opportunity for a T.Op. to setup a wholly-owned subsidiary selling in-resort trips and excursions and hence not liable to the protection afforded in the Travel Regs.
I wonder how a court would now view "allocation on arrival" as there's no "named" hotel on the confirmation invoice. Would the T.Op. still be responsible for the hotelier's actions ?
Extend this further to a car-hire voucher with, say, Alamo or Dollar. Many outlets in the U.S. are in fact franchise operations - would these be covered even though the customer's confirmation invoice shows a Dollar or Alamo car-hire voucher (it might perhaps depend upon the hiring depot's name being on the conf. invoice if not on the voucher itself).
I can see the legal logic whereby a tour operator should not be held liable for the actions of a third party unconnected to the tour op. but when that tour op. SELLS such third party products (excursions) via it's employed rep. network I do feel the tour op. has both a moral and a legal responsibility.
Regulation 15 states:
15.-(1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services
The statement in bold above implied to me that the passenger has a claim against the tour op. but that tour op. may then take action against that other supplier.
I think this is logical, but then the law is a strange beast.....and best interpreted by the experts. Thanks to Ros/Pam for the update.
Mike
or by other suppliers of services
I think the confusion is because on booking your holiday you are in effect signing a contract for the services, however if you book a trip in resort then this isn't part of the contract. From what I can gather, if you book it in the UK and it's on your confirmation invoice then it is part of the contract.
I wonder how a court would now view "allocation on arrival" as there's no "named" hotel on the confirmation invoice. Would the T.Op. still be responsible for the hotelier's actions ?
In this case they would as in the health and safety aspects of the holiday. The only thing you couldn't complain about would be the provision of specific aspects ie a pool etc.
You raise a good point with the Health & Safety aspect Glynis. I recall a recent discussion on this forum about a young child injured when wlaking into a non-safety-glass sliding patio type window. I believe this occurred in Greece or a Greek territory and under their law the use of safety glass is not required (if I remember correctly).
If you're contract is with a British based t.op. because the hotel name appears on the confirmation invoice would British H&S laws apply or the laws in force in the hotel's country ?
This is a rhetorical question.
If you're contract is with a British based t.op. because the hotel name appears on the confirmation invoice would British H&S laws apply or the laws in force in the hotel's country ?
This is a rhetorical question.
Regulation 15 states:
Quote:
15.-(1) The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract, irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services
The statement in bold above implied to me that the passenger has a claim against the tour op. but that tour op. may then take action against that other supplier.
I think this is logical, but then the law is a strange beast.....and best interpreted by the experts. Thanks to Ros/Pam for the update.
Mike
Strange indeed, for verily it is said "The Law is an Ass", when the judiciary interpret it so as the subvert the intentions of the legislators! (If this is what has happened).
We are in danger of
and getting our knuckles rapped.Peter
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