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Just how suitable is that
tour?
What do you say to a client who asks you to recommend a
destination, or whether a particular tour or a cruise is
suitable? What do you say to a client who asks you to choose
a suitable tour, or a hotel or resort at a chosen
destination?
How far should a travel agent go to in recommending holiday
arrangements?
Travel agents have a clear responsibility to book tours,
cruises and accommodation which are suitable for the
client.
“A travel agent should weigh up a client’s expectations and
budget, then choose a reputable tour operator and ensure the
tour to be booked is suitable for the consumer,” says
specialist tourism lawyer Anthony Cordato, author of the
book “Australian Travel & Tourism Law”.
“Under the Trade Practices Act and the Fair Trading Acts,
the agent warrants that the tour will be reasonably fit
for the client. This means that tour must be suitable for
the person and the purpose described by the client, and must
be booked with a reputable product supplier.”
“Australian Travel & Tourism Law” gives some vivid examples
of what can happen when a tour is unsuitable. In one case, a
Mrs Bradley consulted a travel agent on the NSW Central
Coast to discuss a holiday for herself, aged 57, and her
diabetic husband, aged 63. In her words “I recall saying we
wanted something that was different – and that is how
Kashmir came up – but we also wanted something that wasn’t
too strenuous because of John’s condition”. After reviewing
several options suggested by the travel agent, they chose
the “round Thailand coach tour”. They were told the tour
would include a 5-hour boat trip, which would go around the
rapids. Mrs Bradley was concerned about this aspect of the
tour because her husband could not swim. Prior to leaving
Australia, they were given only part of their itinerary. The
part they were given did not include the boat trip.
On the sixth day of the tour, they were told to board the
boats for the river trip. The boats had no seats. After
complaining “we’re not getting in those boats” the guide
replied “you have to get into the boats, you cannot stay
here. It is the only way to get up the river”. Some hours
later the boat came into “swirling water, seemed to lose its
way before hitting a rock, sinking within seconds”. Mr
Bradley drowned after staying afloat a short time by holding
onto cushion in the boat.
The case surfaced in the NSW Supreme Court in 1995 when Mrs
Bradley brought claims against the travel agent and the two
tour operators (the second being the local operator) based
on misleading and deceptive conduct and false
representations contrary to sections 52 and 53 of the Trade
Practices Act, and negligence. The court held that Australia
was an appropriate forum for the proceedings, as opposed to
Thailand. The case was eventually settled out of court on
confidential terms, so we do not know what was agreed to be
paid.
“The tour was clearly not suitable for a 64-year-old
non-swimming diabetic,” Cordato comments. “The river trip
was an integral part of the tour. It was not an excursion,
and not an option. If the case had gone to court, the court
would have apportioned responsibility, perhaps finding the
tour operators 80% responsible and the agent 20%
responsible.”
As an aside, Cordato says that in such cases, the legal
system compensates less for death than for injuries, because
injuries may require long-term medical care and will include
compensation for pain and suffering. While $200,000 might
compensate for a death, $600,000 might compensate for a
serious injury. In both cases, a substantial additional
amount is payable for loss of earnings.
The responsibility of an agent to choose suitable travel
arrangements is not confined to tours.
There are a great many situations where the agent may be
responsible for advising upon and booking suitable travel
arrangements for the client. These situations have the
“warning bells ringing”:
- Many cruises are advertised according to the
demographic of the passenger – there are ‘kids cruises’,
‘luxury cruises’, ‘singles cruises’
- Where it is common knowledge that some airlines are
unsafe and/or unreliable
- Some airlines and tour operators are known to the
travel industry as being at risk of becoming insolvent,
putting fares paid into jeopardy
- Whether a hotel and resort can still be described as
“luxurious” if it is ‘tired’ or needing renovation, or
is partially closed for renovation (with facilities such
as swimming pools unavailable)
Fortunately, the agent’s responsibility ends with choosing
and booking the travel arrangements. They are not
responsible for how those travel arrangements are performed.
For example, an agent is not responsible in these
situations:
- The airline or tour operator may go into
liquidation without warning
- The injury or loss occurs on an unsuitable
optional excursion, such as a shore excursion on a
cruise, which is not an integral part of the travel
arrangement
- The hotel or resort might be presented in a good
light on the internet, and enquiries made at the
time of booking confirm this
The bottom line is that the agent who chooses suitable
travel arrangements has discharged their responsibility to
advise and book with due care and skill. If a mishap occurs
during the travel arrangements, the client must look to the
carrier, the tour operator or cruise operator, the
accommodation provider or the tour guide for compensation.
Note: this was the fourth in a series of five
interviews in which specialist tourism lawyer
Anthony Cordato discusses issues of vital importance
to travel agents.
Published with the kind permission of e-travel
blackboard, where the article was first published in
August 2007, and with the kind permission of Peter
Needham. |
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