Are you a target for Consumer Claims?

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 http://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: http://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 http://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 http://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:

1. 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."
    
2. 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."
    
3. 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:

1. 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)
    
2. 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- http://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:

1. 
    
2. 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.
    
3. 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:

1. The bar fridge was not "well stocked" with complimentary refreshments as promised.
    
2. 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.
    
3. 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:

1. The standard of the room in terms of furnishings, fitout, bathroom, air conditioning is not as pictured or as represented.
    
2. The aspect or view from the room not being as pictured or represented
    
3. The location of the hotel or resort is not as pictured or as represented.
    
4. 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.
    
5. 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:

1. 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.
    
2. 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

1. 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... ‘
    
2. 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]”
    
3. 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.
    
4. 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").
    
5. 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).
    
6. 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).
    
7. 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.
    
8. The Guide is found at the ACCC website: http://www.accc.gov.au/BusinessRights&Obligations/publications
    
9. 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 http://www.afta.com.au
    
10. The Consumer, Trader and Tenancy Tribunal Act 2001 (NSW) Decisions are to be found on http://www.fairtrading.nsw.gov.au/tribunal/Tribunaldecisions
     
11. Cross & Cross -v- Flight Centre Limited t/as Flight Centre [2003] NSW CTTT 681 (7 October 2003)
     
12. 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
     
13. Grigg & Grandsimon -v- Qantas Ltd, Flight Centre Ltd & Air France [2002] NSW CTTT 159 (7 June 2002)
     
14. Aboss -v- Gitani Travel Agency Pty Ltd & Abu Baker Al-Sedik Islamic Society [2002] NSW
    CTTT 759 (9 January 2002).
     
15. L & V Morlin -v- Overseas Travel Service Pty LTD [2003] NSW CTTT 620 (5 September 2003)
     
16. 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.
     
17. 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.
     
18. 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.
     
19. As at 24th January 2004- Afghanistan, Burundi, Iraq, Liberia, Pakistan, Somalia.
     
20. As at 24th January 2004 – Algeria, Central African Republic, Columbia, Haiti, Indonesia
    (including Bali), Ivory Coast, Kenya, Saudi Arabia, Sudan, Turkey, Yemen.
     
21. 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
     
22. Kolavo -v- Pitsikas (t/as Comino and Pitsikas) & Anor [2003] NSW CA 59 (1 April 2003) - the professional negligence decisions.
     
23. 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)
     
24. White –v- Holloway [2003] NSW CTTT 680 (7 October 2003)
     
25. Young –v- Qantas Airways, Qantas Travel & Trafalgar Tours (Aust) Pty Ltd [2003] NSW
    CTTT 198 (20 February 2003).
     
26. Doherty -v- Traveland Pty Ltd & Associated Travel Pty Ltd (1982) ATPR 40-323 Federal
    Court of Australia.
     
27. 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.
     
28. 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.
     
29. Qantas Ltd & British Airways plc -v- Povey [2003] VSCA 227 Supreme Court of Victoria, Court of Appeal.
     
30. 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.
     
31. Wikner –v- Qantas Airways Ltd [2003] NSW CTTT 53 (23 January 2003).
     
32. Indyk –v- Qantas Airways [2002] NSW CTTT 864 (17 January 2003).
     
33. Jeffares & McNaught –v- Singapore Airlines Ltd [2002] NSW CTTT 114 (22 May 2002)
     
34. Kiwi Munchies Pty Ltd –v- Thai Airways International Public Company Ltd [2002] NSW SC 82 Supreme Court of NSW.
     
35. Savetta -v- Tobaraoi Travel Pty Ltd & Nauru Air Corporation [2002] NSW CTTT 479 (6
    September 2002).
     
36. Melanie Baxter and Russell McIlwaine –v- British Airways plc and Qantas Airways Limited, (1988) ATPR 40-887 Federal Court of Australia.
     
37. Perrett-Abrahams -v- Qantas Ltd [2000] VCAT 1634 (31 August 2000) Victorian Civil & Administrative Tribunal
     
38. Holt -v- Garuda Indonesia [2003] NSW CTTT 317 (28 March 2003)
     
39. Beveridge -v- Great Southern Railway Travel Pty Ltd [2003] NSW CTTT 194 (21 February 2003).
     
40. Taylor & Lee -v- Queensland Travel Centre & anor [2002] NSW CTTT 466 (4 September 2002)