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Are you a target for Consumer
Claims?
This is a revised version of a paper
originally presented to:
The University of New South Wales
Centre for Continuing Legal Education
Tourism and Leisure Law Seminar 2004
25 February 2004
Presented by
Anthony J Cordato
Principal
Cordato Partners
Business, Property & Tourism Lawyers
Level 5,
49 York Street
Sydney NSW 2000
Ph: (02) 8297 5600 fax: (02) 9290 2784
Email: ajc@businesslawyer.com.au
Website: www.businesslawyer.com.au
About the Presenter:
Anthony J. Cordato is the author of Australian Travel &
Tourism Law (Butterworths, 3rd Ed) the leading text in the
field in Australia; he is the former chair of the Travel,
Tourism and Hospitality Law Committee of the International
Bar Association (1995-1999); he is a former lecturer in
Travel Law at the Ultimo and Ku-ring-gai campuses of the
University of Technology; is currently in private practice
as a solicitor in the Sydney CBD where he provides legal
advice to a number of participants in the travel and tourism
industry; and he has given numerous presentations in the
field of Travel and Tourism Law.
Are you a target for Consumer
Claims?
Strategies for Travel Agents, Tour Operators, Airlines,
Railway Operators and Accommodation Providers
- The Tourism Industry covers an extraordinary range of
services.
- The services are supplied to consumers by a series of
participants, who are linked in a complex web of
relationships.
- The objective of this presentation is to discuss and devise
strategies for Travel Agents, Tour Operators, Airlines,
Railway Operators and Accommodation Providers to use for
their protection from consumer claims.
THE DYNAMICS OF THE TOURISM 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 (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 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: 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 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
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.
Article 20.1- "The carrier is not liable if he proves that
he and his servants and agents have taken all necessary
measures to avoid the damage or that it was impossible for
him or them to take such measures.”
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- 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:
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
www.afta.com.au
- The Consumer, Trader and Tenancy Tribunal Act 2001 (NSW)
Decisions are to be found on www.fairtrading.nsw.gov.au/tribunal/Tribunal
decisions
- 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)
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