Tour operator liability for accidents

A comparison of Austrian, German

and UK cases Michael Wukoschitz

Austria

Regulation 90/134/EC

Article 5 1. Member States shall take the necessary steps to ensure that the organizer and/or retailer party to the contract is liable to the consumer for the proper performance of the obligations arising from the contract, irrespective of whether such obligations are to be performed by that organizer and/or retailer or by other suppliers of services without prejudice to the right of the organizer and/or retailer to pursue those other suppliers of services. .

2. With regard to the damage resulting for the consumer from the failure to perform or the improper performance of the contract, Member States shall take the necessary steps to ensure that the organizer and/or retailer is/are liable unless such failure to perform or improper performance is attributable neither to any fault of theirs nor to that of another supplier of services, because:

- the failures which occur in the performance of the contract are attributable to the consumer,

- such failures are attributable to a third party unconnected with the provision of the services contracted for, and are unforeseeable or unavoidable,

- such failures are due to a case of force majeure such as that defined in Article 4 (6), second subparagraph (ii), or to an event which the organizer and/or retailer or the supplier of services, even with all due care, could not foresee or forestall.

Major Problems

• applicable standards

• duty of care v. personal responsibility

• local trips

Applicable Standards

Austria

• 5 Ob 108/05a – hotel stair

• 4 Ob 211/07v - glass door

• HG Wien 1 R 18/03 - parasol

Germany

• X ZR 142/05 – water slide

• X ZR 44/04 – glass door

• OLG Karlsruhe 7 U 73/06 – bunk bed

UK

• Brown v. Mytravel – plastic bag on hotel corridor

• McCormick v. Mytravel – glass door

• Drabble v. Sunstar Leisure – glass partition

Duty of care v. personal responsibility

Austria

• 6 Ob 253/99w – Melk case

• 6 Ob 164/05v – candle lit trail

Germany

• OLG Düsseldorf I-12 U 49/04 – water polo

• LG Duisburg 4 O 228/04 – wet floor

UK

• Potter v. TUI UK Ltd – tennis court

• Evans v. Kosmar Village Holidays – pool diving

Local Trips

Austria

• 7 Ob 524/93 – Jeep-Safari

• HG Wien 1 R 603/99v – city tour

Germany

• LG Frankfurt/Main 2-19 O 516/03 – Safari Trip

• LG Frankfurt/Main 2/24 S 218/08 – Vulcano Trip

Many thanks for your attention!