Moore v Hotelplan Ltd (t/a Inghams Travel) & Anor

A tour operator may assume contractual responsibility for an excursion arranged by its resort representative, even where the excursion was not included in the original holiday booking. The excursion contract may incorporate the terms of the existing holiday contract, including provisions making the operator responsible for the reasonable care and skill of its suppliers.

Where an inexperienced participant is not instructed about an emergency control essential to safe operation, that omission may constitute breach and causation if the control would probably have prevented the accident. A claimant’s contribution must be assessed realistically in the emergency circumstances. Here, the claimant’s damages were reduced by 30 per cent for contributory negligence.

The claimant was seriously injured during a snowmobile excursion on a package skiing holiday in Italy. The excursion was advertised in the tour operator’s resort information, arranged by its resort representative, paid for through her, and supplied by the third party.

The claimant sued the tour operator in contract and tort. The tour operator denied that the excursion formed part of its contractual arrangements and contended that the claimant had contracted directly with the third party. A split trial was ordered to determine liability, applicable law and contributory negligence. The central issues were whether an excursion contract existed with the tour operator, whether its terms incorporated the holiday contract, whether inadequate instruction caused the accident, and the appropriate reduction for the claimant’s own fault.

1. Contractual responsibility. The original holiday contract covered the booked flights, accommodation and related items, but not the snowmobile excursion. However, the arrangements made at the resort created a separate contract between the claimant and the tour operator. The excursion was promoted through the operator’s documents, arranged by its representative, paid for to her, and evidenced by an operator-branded receipt. The evidence was inconsistent with her acting merely as agent for the third party.
2. The excursion contract was to be read in the context of the existing holiday contract. Its terms impliedly incorporated the booking conditions, including the “Our Liability” clause. The third party was a supplier within that clause. The tour operator was therefore liable for injury caused by the supplier’s lack of reasonable care and skill, subject to the contractual exclusions. None applied.
3. Breach and causation. The claimant was not instructed to use the emergency cut-off switch. The court rejected alleged brake failure, finding that she had probably operated the accelerator instead of the brake after approaching the snowmobile ahead too closely. On the balance of probabilities, proper instruction would have led her to use the cut-off switch, which would have stopped the machine within 15 to 20 metres and avoided the collision. The failure to provide that instruction was therefore causative negligence.
4. Applicable law and contributory negligence. Since liability arose in contract, English and Welsh law applied, making it unnecessary to decide the pleaded issues under Italian law. The claimant contributed by failing to keep a proper lookout and by operating the throttle instead of the brake. Her throttle error was an instinctive reaction in an emergency and should not be judged harshly. Her damages were reduced by 30 per cent.

This was a first-instance liability judgment. A split trial had been ordered by Master Eyre. Permission for the third party to participate in the liability trial was refused by MacDuff J but granted by the Court of Appeal.