UPDATED MAY 2004
FREE legal advice available from Ros Fernihough.
Author of Safe and Sound - FREE Download From Here.
Call 01922 621114
If you feel up to it contact the UK press
If all else fails I agree with Mike on the above. No large company like that is going to like such bad publicity. Your case seems to have been handled very badly
I have been so stressed out since my return to the UK i have had a month off work and been to a counsellor. Thomas have just sent a letter saying " in our reps opinion there was no problems in the Laguna Vista hotel.
Good luck with your case.
My sympathies go out to you, for what must have been a distressing incident.
When you book a holiday, you enter into a contract with the tour operator; Part of that contract is to protect you.
As this incident happened with their control, i.e. within the hotel, they, the tour operator have failed within that contract to protect you.
If you have written correspondence regarding this incident, & have submitted it to the tour operator, they have a duty to acknowledge your complaint.
If you do not believe you are making any further progress, it depends on how strong you feel , but if I were in your shoes, I would sue the tour operator for breach of contract.
When you sue for breach of contract, part of you claim should be for loss of enjoyment, So if you were booked for 14 days at the hotel, & this incident happened on day 3, part of your claim would be for 11 days loss of enjoyment.
Any evidence that you can obtain will be towards your advantage, i.e., character reference from your employer, or priest, etc, also any medical reports from your GP or hospital regarding your treatment.
Why don't you speak to the small claims court in your area for further advice?
Trust this is of some use to you.
According to them , they say they are not responsible for hotel employees ??
The AXA insurance won't take it on because they say it's not in my best interest !
Going on holiday to EGYPT turned out to not be in my best interest !
I will keep you posted on how I progress
Regulation 15 of the Package Tour & Travel Regulations imposes a strict fault-based liability upon the tour operator for the proper performance of the obligations under the contract by their third party suppliers. In other words the tour operator is responsible to you for everything that was wrong with your holiday which can include accommodation, cleanliness, infestation of insects, food, health, hygiene, plumbing, swimming pool, all-inclusive services if appropriate, representatives services, transfers and pre-booked excursions.
What the tour operator must do is to compensate you the consumer for the problems you experienced and then the tour operator may under a separate claim recover what he has to pay you in compensation from his third party supplier, namely the accommodation owners.
15.1 The other party to the contract is liable to the consumer for the proper performance of the obligations under the contract irrespective of whether such obligations are to be performed by that other party or by other suppliers of services but this shall not affect any remedy or right of action which that other party may have against those other suppliers of services.
15.2 The other party to the contract is liable to the consumer for any damage caused to him by the failure to perform the contract or the improper performance of the contract unless the failure or the improper performance is due neither to any fault of that other party nor to that of another supplier of services because (a) the failures which occur in the performance of the contract are attributable to the consumer (b) the failures are attributable to a third party unconnected with the provisions of services contracted for and are unforeseeable or unavoidable or (c) such failures are due to (i) unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded, the consequences of which could not have been avoided even if all due care had been exercised or (ii) an event which the other party to the contract or the supplier of services even with all due care could not foresee or forestall.
15.3 "in the case of damage arising from the non-performance or the improper performance of the services involved in the package the contract may provide for compensation to be limited in accordance with the International Conventions which govern such services. "
Whether the above law includes the staff's conduct at the accommodation supplied by the Tour Operator is a grey area to me. I will, however contact Ros on Monday for clarification.
Ros would also like to speak to Marce on 01922 621114 and she will offer free legal advice.
On the facts as presented there may be a case on Regulation 15 the other party to the contract i.e. the Tour Operator is responsible for his 3rd party suppliers actions, but there maybe a defense under regulation 15.2 C Unusual and unforeseeable circumstances beyond the control of the party by whom this exception is pleaded the consequences of which could not have been avoided even if all due care had be exercised.
For example, if the person who perpetrated the attack - if he had been thoroughly vetted and references checked by his employers and had no history of sexually deviant behaviour and this was a first incident then the hotelier may have a defense under Regulation 15.2. On the other hand if this man had behaved like this on many previous occasions and had a criminal record and was acting in the course of his employment then his employers (the hotelier) would be vicariously liable and under Regulation 15.1 A claim may exist as there may be liability against the Tour Operator.
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