Following the lockdowns of 2020 and the tentative, uncertain reopening in 2021, the summer of 2022 will be the first opportunity for many to enjoy once again the warmer months with activities overseas. Christopher Deacon, a partner in our International Injury department, provides his top tips to prepare for a summer to remember – for the right reasons.
Before the pandemic, adventure activities abroad had seen a huge increase in popularity. With the pent-up demand caused by travel restrictions over the past two years, we can expect to see holidaymakers eager to embrace thrill-seeking activities during their summer travels.
Hotels, tour operators, excursion and activity providers will be equally eager to welcome customers back. Amid the excitement, it is essential that businesses follow appropriate safety procedures when managing activities and that individuals look out for their own safety and understand their rights if things go wrong.
Here are my tips if you are undertaking an adventure holiday, excursion or activity this summer:
1. Make sure you have the correct insurance for your type of holiday and activities
Travel insurance is essential for any trip overseas but is especially important on an adventure holiday or any activities you undertake involving a heightened risk of injury. You may require an extra layer of coverage for activities such as rock climbing, quad biking, scuba diving and other water sports.
Other things to consider when taking out insurance include:
- Package holidays – many tour operators will offer to sell you insurance alongside your holiday. If you plan to do adventure activities or sports while away, ensure that your tour operator’s standard insurance will cover you for these activities. This could be critical to ensuring you receive appropriate medical treatment in the event of an injury.
- Your destination – make sure the insurance coverage extends to your intended destination. Travel insurance policies can have territorial limitation clauses. For example, if travelling to the USA, you will need a ‘Worldwide including USA policy’. This may sound obvious but can be easily overlooked in the rush to tick off your pre-holiday to-do list.
- Third-party coverage – it is worth considering a policy that gives you peace of mind if you inadvertently cause an injury to another individual while travelling overseas. This section will usually be headed ‘Personal liability’ in the insurance documents.
- Motor insurance – you will likely need additional insurance for driving, as most standard travel insurance policies will exclude claims relating to use of a motor vehicle, including a scooter. You should ensure that any insurance you take out locally is as comprehensive as possible. Almost every year I am contacted in cases following a road accident in South East Asia, for example, where insurance cover for bodily injury is shockingly low compared to the unlimited insurance we are accustomed to in the UK. Many states in the US also have very low minimum insurance coverage requirements, so be mindful of this when thinking about the cover you need.
2. Always consider including your holiday sports and adventure activities as part of a tour operator package
It is always a good idea to book your travel arrangements as part of a regulated package holiday. This enables you to bring a claim against the UK-based tour operator if things go wrong, as the tour operator is liable for the improper performance of the services forming part of the package holiday. This will extend to any holiday sports or adventure activities pre-booked as part of the package.
The 2018 Package Travel and Linked Travel Arrangements Regulations updated the protections available to consumers by extending the definition of a package holiday to include dynamic, tailor-made packages and linked online bookings. Specialist tour operators are increasingly offering a wide range of activities that can be booked at the same time as your flights, accommodation and transfers.
You will then avoid the cost and complexity of having to pursue the local activity or excursion provider in your holiday destination. You will also benefit from having English law apply to any claim you bring against the tour operator.
The long-awaited decision in the case of X v Kuoni delivered by the Supreme Court in 2021 ruled that tour operators can be held liable in a broad range of circumstances where an incident causing injury occurs while you are partaking in the holiday arrangements. The tour operator’s liability extends to both actions taken directly by the tour operator, as well as failings on the part of the tour operator’s local supplier and the supplier’s employees or agents.
3. Whenever possible, pay for your holiday, excursions and adventure activities by credit card
You should always consider paying for your holiday arrangements by credit card to benefit from an additional layer of protection. Under section 75 of the Consumer Credit Act 1974, you can bring a claim against your credit card provider where the tour operator or supplier provides the service you have booked and paid for using your credit card to an inadequate standard. Many consumers will be surprised to hear that the credit card company’s liability may extend to a claim for life-changing injuries abroad.
This includes any package holiday booking, as you will benefit from being able to pursue a claim against your credit card provider if your tour operator becomes insolvent.
In 2018, Thomas Cook became insolvent and had inadequate liability insurance to meet the vast majority of claims being made by customers for injury, death or illness occurring on a Thomas Cook holiday and for which the tour operator may have been liable.
It will be a surprise to many that liability insurance is not compulsory for tour operators. ABTA and ATOL protection can be markers of reputable providers and are often heavily referenced in their advertising campaigns, but they are not a guarantee that the tour operator is fully insured.
The ABTA Code of Conduct requires its members to have liability insurance in place, but ABTA does not scrutinise the level of coverage or self-insured excess held by a tour operator. While the ATOL scheme ensures customers will be refunded or repatriated if the travel company goes bust before or during a holiday, it does not guarantee compensation in the case of serious injury if an uninsured or under-insured provider becomes insolvent.
4. Take extra care when booking an excursion or adventure activity locally at your destination
Traditionally, well-established tour operators have sold an array of excursions and activities locally to customers once they arrive at their destination. The tour operator’s in-resort representative will provide customers with brochures at welcome meetings, and the hotel may offer a range of options, often advertised through in-room brochures.
Although it will not be at the forefront of your mind with the excitement of choosing what you would like to do during your time away, try to keep a reliable paper trail of who, what, where, when and how you book your chosen activity locally.
If something goes wrong on the excursion, this will help establish if the tour operator might be liable for the negligence of the local excursion provider. Having the best evidence from the time of your booking will enable your specialist international injury lawyer to assess if you can benefit from the law of agency, ‘apparent’ or ‘ostensible’ authority when pursuing a claim against your UK tour operator for an excursion or activity booked at your holiday destination through the tour operator’s rep or agent
Do not forget to take your credit card with you on holiday. If you book and pay for any excursions, sporting or adventure activities while away, then provided the cost is £100 or more, you will be able to pursue your credit card provider should you run into difficulties in pursuing the local provider/supplier of your holiday services if things go wrong.
5. Ensure you receive proper instruction for all adventure activities
Regardless of your level of experience, you should always receive proper instruction before attempting any activity with an element of risk. You should be briefed on all the essential safety steps and what to do in an emergency.
Follow all instructions and if you do not fully understand what is being said or required, ask the instructor or guide to repeat and clarify until you feel comfortable to proceed. Make sure you fully understand the implications of an activity before beginning.
Trust your gut instincts: if it does not feel right and you feel uncomfortable, it is always best not to proceed with an adventure activity.
Be wary of signing liability disclaimers, particularly before you have been fully briefed and informed on what the activity will involve and the risks of participating.
6. Check that any equipment, vehicles or machinery you use are in good condition
Equipment for summer sports and adventure activities can range from safety harnesses to quad bikes to a simple tennis racket. Whatever activity you decide to embark on this summer, if it involves a piece of equipment or vehicle then, as far as you are able to, check it is safe to use. If you have any concerns, raise these with the guide or instructor. They may be able to offer you an alternative piece of equipment, vehicle or machine; if this is not possible, think twice about continuing.
If you are involved in an accident that is caused by faulty equipment, the vehicle or machine you are using, it is important to have full details of who provided the equipment, what exactly the issue was that caused the injury and the level of instruction that was provided in advance. Take photos and/or videos of the faulty equipment as this will greatly assist any expert that might need to consider what went wrong and why at a later stage. Ideally, any equipment involved should be seized by the local authorities and preserved until a formal investigation is completed and your chosen expert has had the opportunity to carry out an inspection.
7. Ensure any incident is fully reported to your travel provider and the local authorities
If you are involved in an accident then take steps to have this reported to your tour operator, the activity or excursion provider and the local authorities. Try to obtain any incident report before you return home. Do not sign any documents that you do not understand.
If you can, insist on an English translation before agreeing the contents of an incident report and request a qualified interpreter when being interviewed by the local authorities. This is particularly important following a serious incident and something that your travel insurer or a specialist lawyer based in the UK will be able to help you with.
In my experience, it is always best following a serious incident to seek guidance from a specialist lawyer at an early stage and ideally while you, your family or travelling companion(s) are still at the destination where the incident occurred. This is the best way to protect your position and ensure relevant evidence is preserved. The assistance that can be provided by the FCDO is understandably limited and very often it will be in your best interests to seek input from a lawyer back home that specialises in international law.
8. Check the relevant laws in the country you are visiting
The standard to which an adventure activity, summer sport or excursion is provided will depend on the relevant, local standards in the country you are visiting. These can vary dramatically to the standards you might be accustomed to in the UK.
Your rights and the regulations surrounding activities will vary depending on where you are going in the world. Even in Europe, each country has different laws that will determine the required safety standards .
In some countries, injured parties will be refused treatment until their insurance is verified. Available healthcare will also vary and may have changed since previous visits. For example, as of 2022, uninsured individuals will no longer have access to private healthcare in Greece.
Be respectful of local traditions and customs. As international tourism starts to blossom once more, there will inevitably be stories of visitors to sacred destinations over-stepping the line. Make sure you are not the one hitting the headlines for the wrong reasons by swotting up on the local laws and expectations in advance of your visit.
You can find further information regarding our expertise, experience and team on our International Injury page.
If you require assistance from our team, please contact us.
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