Parker v Tui UK Ltd

A tour operator may assume a duty of care in tort where its representatives undertake responsibility for customers during an excursion. The duty is assessed by reference to reasonable care in the circumstances. It does not ordinarily require a tour operator to repeat clear warnings to rational adults or to identify obvious dangers, such as ice on a road and safer snow at its edge. A failure to position a representative at a particular point is not causative where that representative could not realistically have prevented the accident. Where foreign law is said to govern a tort but no evidence establishes any relevant difference, the court may proceed on the basis that it is the same as English law.

The claimant suffered serious leg injuries during an evening tobogganing event in Austria arranged through representatives of TUI UK Ltd. The event was operated by an Austrian supplier, Action Club Zillertal, and was not part of the pre-arranged package holiday.

The county court held that TUI acted only as an intermediary in relation to the tobogganing contract, but owed the claimant a duty of care in tort. It found no breach and dismissed the claim. Permission to appeal was granted on issues concerning TUI’s contractual role, the adequacy of its safety arrangements and the absence of a representative at the end of the run. TUI also argued on appeal that Austrian law applied under section 11 of the Private International Law (Miscellaneous Provisions) Act 1995.

1. Appeal dismissed. The Court of Appeal agreed with the county court’s conclusion that TUI acted as an intermediary, introducing the holidaymakers to Action Club Zillertal, which supplied the toboggan and gondola ride. TUI therefore assumed no contractual duties in relation to the event on the evidence available.
2. TUI nevertheless owed a duty of care in tort. Its representatives accompanied the event and their conduct, together with the resort manager’s evidence, demonstrated an assumption of responsibility to customers.
3. The alleged failures did not establish breach. The relevant warning had been given clearly and repeatedly, and the claimant knew that participants had to dismount at the red light and walk to the station. A specific risk assessment of the lower road would not have produced a different safety conclusion. The representatives had a system for spacing themselves among participants, and the absence of a representative at the end of the run was not causative because the remounting occurred around a bend, outside the representative’s effective sight or hearing.
4. A tour operator dealing with rational adults on a winter holiday is not ordinarily required to repeat simple warnings already given or to point out obvious dangers and obvious safer alternatives. The law of negligence does not make someone liable whenever an injury occurs.
5. TUI’s argument based on Austrian law under section 11 failed. Even if Austrian law applied, there was no evidence that it differed from English law. The court would therefore assume that Austrian law was the same and reach the same conclusion.
6. Lord Justice Moore-Bick and Lord Justice Patten agreed with Lord Justice Longmore.

• Court of Appeal (Civil Division): [2009] EWCA Civ 1261. The appeal from the Brighton County Court was dismissed.
• Brighton County Court: His Honour Judge Simpkiss dismissed the claim, holding that TUI acted only as an intermediary for the tobogganing contract and had not breached its tortious duty of care.