As the current UK Government has substantially changed the way in which people can access Justice, many holidaymakers are now resorting to running a legal case on their own, often without any research or formal advices!
We cannot emphasise enough how important it is to receive advices before you head either into Arbitration, Mediation or the Small Claims Court!
One area that you need to consider is:
- What kind of value would I be happy to accept? and
- What kind of value does the Courts award or the Law state I should get?
The simple rule is this: if your claim is successful, you will be awarded compensation at levels normally awarded by the courts - if a law exists that sets out the limit of the award, then that is what you will receive!
The amount of compensation will depend on the circumstances of the case, or it will depend on any value set out in a given law.
We will deal with some of the principles established by the courts (these could be applied via Arbitration/Mediation but different rules may apply, particularly if the Arbitrator/Mediator is granted a wide discretion).
The examples of awards below were made in the courts of England & Wales and are principally extracted from The Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases (these awards have been uplifted by 10% to account for recent changes). There are many publications available from most major bookstores, or from any law library, which will illustrate the various heads of damage. By its very nature, you should note that each case will depend on its merits. You should fully research any head of damage before making a claim.
If you are reading this from Scotland, then we would recommend that you obtain a copy of this book to help you establish values to your claim.
If you are reading this from Northern Ireland, then the NI Judicial Studies Board reveal a different set of values under 'Injuries to Internal Organs' - these figures appear to be more generous than those found in England & Wales.
If you are reading this from the Republic of Ireland, we cannot find a calculator that will set out values for your holiday illness, but a good area to look is via Citizens Information - they may well be able to help direct you toward values for your claim; if you cannot find any information, just contact us and we will help you.
Remember, the following commentary only applies to cases that can be brought before courts in England & Wales (see above for other sources) but some of those principles may well applies in other jurisdictions - you would need to check with a legal advisor if you are outside the England & Wales jurisdiction.
In holiday claims against tour operators or travel companies, damages may be recovered for all or some of the following (please note this list is only intended to be a general guide to what you may be able to claim, each case is different and will attract different levels of compensation. You should always check with a solicitor who should be able to guide you further):
General damages (Pain Suffering and loss of amenity):
This is a difficult area to determine as the value of your damages may have to be obtained from a supplier in a country outside the UK. However, for present purposes, we will assume that your case can be brought in the UK against a tour operator. The general rule is that you will be awarded damages assessed by reference to the duration and severity of your illness or injury and long term consequences.
For copyright reasons we cannot reproduce the figures that will guide on illness or accident cases. Any damages you could achieve will depend on a number of factors, such as the severity of the illness and the time you have been ill to the nature and extent of an injury from an accident. The Guidelines we refer to above will help you assess the level of those damages that you could claim. It is important to remember that you will need to consider accessing medical help and a report to detail the extent of your illness or injury. If you are going to try to resolve your case on your own, we strongly recommend that you obtain a copy of any guidelines wherever you may live!
This will depend on the nature and seriousness of the failure and you should expect to receive an 'element' award for the failure in question along with any of the following heads of damage where it is considered appropriate:
Diminution in holiday value:
In other words, a sum to compensate you for the holiday you paid for but did not get. This award is generally capped at 100% of the holiday cost but can be subject to a discount;
Loss of enjoyment of holiday/mental distress and anxiety:
This has been somewhat controversial over several years with the argument ranging from:
- You had a part of the holiday, therefore some enjoyment, to
- Whether you are rich or poor - if you are rich you can recover quickly from a bad holiday by buying another (we do not agree with that argument - it does not matter how much you spend, you should receive a safe and good standard - to penalise someone because they can afford another holiday is not only offensive but offers comfort to the Defendant who is in effect receiving 'support' for their failures!)
Loss of Enjoyment etc can be assessed by reference to a daily rate which for each day your holiday was affected, or a percentage of the holiday cost - each case will be assessed on its merits;
Special damages and future losses:
This includes any loss of earnings, travelling expenses, damaged or lost personal possessions, and any private medical or therapeutic expenses - They must be reasonable and you should ensure that you are able to present receipts.
Other sources of compensation can be found in the following areas; remember, these are fixed amounts and will be subject to the usual 'defences' that a Travel Company can use to deny your claim for compensation - just because they say 'no', don't give up!
Flight Delays, Cancellations & Denied Boarding:
These attract set figures which can be found under Article 7 of EC Regulation 261/2004.
Flight Accidents, Lost or Damaged Baggage:
Cruises, Ferries & Inland Waterways:
For Cruises and Ferries the Athens Convention applies (here the compensation is calculated against a Unit of Account measurement but in 1976 this was changed to SDR's - see above), but also EU Regulation 1177/2010 applies to Ferries and Inland Waterway boats (here compensation is calculated by reference to time and a % against the cost of the ticket).
We will deal with the Delay Repay sytem in the UK on a separate page but for the present this commentary from National Rail enquiries should give you an overview on your rights. The principle rights, where you are travelling across EU Borders is contained within EC Regulation 1371/2007 and compensation is expressed by relation to time and a percentage against your ticket.
Bus & Coach:
Rights are less generous; they relate to options and what happens if those options are not offered - there are clear rights for disabled passengers (this is generally the case across all EU/EC Regulations/Directives). Your rights are contained within EU Regulation 181/2011.
If you are unsure, always check with a legal advisor or contact us for further assistance.