| IFTTA Conference Vienna 2005 Round Table Session29th August 2005 Ireland: Recent Legal Developments of Tourism Interest1. Occupiers Liability Law: Weir–Rodgers v SF Trust, Irish Supreme Court, 21.1.05 Text of decision available at: http://www.courts.ie/judgments.nsf/23fd4a34bad801d980256ec50047a0a8/9b1980461fcc485e80256f9000547baf?OpenDocument&Highlight=0,Weir A recreational visitor was sitting near the edge of a cliff admiring an evening view of the sea. She stood up, lost her footing and rolled down the cliff ending up in the sea and suffering injuries. She sued the landowner under the Occupies Liability Act 1995 claiming there should have been a fence and a warning sign. The Act imposes a low duty of care on occupiers towards recreational users of land which is no higher than that owed to trespassers, which is not to deliberately or recklessly injure them. A recreational user is a person on the land without permission for purposes of recreation etc. In the High Court the trial judge appeared to equate occupier’s liability with ordinary negligence and held for the plaintiff. On appeal the Supreme Court reversed, emphasising the difference between ordinary negligence and recklessness (which is probably even more than gross negligence) and held the landowner had no case to answer. The fact that there was an old decayed fenced did not impose any liability on the landowner. The wider importance of the case lies in its reassurance to landowners and especially farmers that the courts will pay attention to the distinction between negligence and recklessness and will not interpret the 1995 Act in a way which would mean that conduct formerly deemed merely negligent under the pre-1995 law, would now be treated as reckless. Farmers in Ireland have been concerned about potential liability for tourist/walker injury for some years now and besides waging a campaign to ensure they are not legally liable for such injures (which lead to the 1995 act), have often refused visitor access to their lands and also been reluctant to agree to countryside walking routes being created over their land. This has hindered the development of walking tourism in some parts of Ireland. There is no right to roam the countryside in Ireland. Weir-Rodgers is the first reported case involving a recreational user from which landowners and farmers can take reassurance that their fears of being sued are somewhat exaggerated. Why is occupier liability apparently not a problem in other EC states? 2. Unfair terms in Consumer Contracts Law: Mc Donald v Brittany Ferries (BF), Cork Circuit Court. 31.5.05
BF cancelled a ferry sailing from France to Ireland on 14.8.04 because its new ferry had broken down. BF denied any legal liability for the cancellation relying on two ‘exclusion’ clauses in its conditions of carriage and booking conditions. However, on a voluntary basis BF re-routed plaintiff, wife, child and car across England and Wales and voluntarily paid them Euro 400. Rerouting necessitated 10 hours extra driving over 500 miles and an overnight stay. Plaintiff felt compensation was insufficient and also contested the voluntary nature of the rerouting and payment alleging both clauses were unfair contrary to both EC and Irish law on unfair terms in consumer contracts. The two exclusion clauses relied on by BF stated that no liability was accepted for technical breakdown beyond BF’s control and also that no liability was accepted for any consequential loss to passengers arising from a cancellation. Plaintiff claimed both terms were unfair, firstly, because the technical breakdown term was ambiguous (thus the interpretation most favourable to plaintiff should be taken) and, secondly, because any clause which had the effect of potentially leaving passengers stranded abroad without any legal come back against ferry company must by definition be unfair. It was so disadvantageous to plaintiff it could only have been agreed to by virtue of grossly unequal bargaining strength. Both Distract and Circuit Court held that both clauses were not unfair and also rejected Plaintiff’s request to refer the matter to the European Court of Justice. While not entirely clear, it seems both courts were concerned for the consequences to BF if the terms were held unfair. The Circuit Court judge wondered whether the ferry company would need to have a spare ferry on standby. Although mentioned in legal argument the Circuit Court ignored analogous recent developments giving air passengers a legal right to re-routing when a flight is cancelled. Decisions like this reinforce the view that the current law is inadequate because it is too general and relies too much on individual lower court judge’s personal views of fairness. Should a new EC law give sea passengers the same legal (not gratuitous) protections as air passengers? 3. Article 16 of EC Regulation 261/2004 on compensation and assistance to air passengers Regulation 261/2004 confers increased protections on most air passengers flying into or out of Community airports for delay caused by denied boarding, cancellation or long delay. Article 16 requires member states to ‘designate a body responsible for the enforcement of this Regulation … Where appropriate, this body shall take the measures necessary to ensure that the rights of passengers are respected.’ Given that the consumer rights are intended to deal with the immediate effects of flight delays, Article 16 might be understood as meaning that certainly in larger airports the ‘enforcer’ should actually be located in the airport so as to be able to receive, respond and intervene on behalf of air passengers with airlines. However, the Irish government has not taken this view and has designated a state aviation body (the Commission for Aviation Regulation, rather than the consumer protection body) whose offices are based in downtown Dublin, as the enforcer. The public has been informed of this by the same newspaper and website notice http://www.aviationreg.ie/rights/notices.htm which says passengers may complain in writing or electronically to the city centre address. Fax will also be accepted. Does the failure to locate the enforcer at a busy airport like Dublin amount to a failure to implement Article 16? 4. Prosecuting unlicensed tour operators/travel agents under the Transport (Tour Operators and Travel Agents) Act 1982
A woman who organised a supporter’s trip to a rugby match in France from Ireland was convicted of acting as an unlicensed tour operator/travel agent contrary to the Irish Transport (Tour Operators and Travel Agents) Act 1982, Irish Times 10.2.05. She organised a club and sold tickets to members. The legal definition of a tour operator is a person other than an airline who sells accommodation for trips out of Ireland on their own behalf. This problem arises from time to time and can also include organising pilgrims trips to places like Lourdes. The risk consumers take with unlicensed operators is that if the operator ceases trading there is no bond protection. 5. Protecting passengers of low cost carriers who cease tradingIreland does not operated a compulsory airline bonding scheme to protect passengers if an airline ceases trading and passengers are left stranded abroad or have paid for flights not yet taken. In recent times a number of newly started low cost operators have gone bust and left passengers stranded abroad (JetGreen Airways 12.5.04 http://www.aviationreg.ie/archive2004.htm and EUjet, Irish Times 27.7.05). However, sometimes such passengers do have statutory bonding protection because what might appear to consumers to be a low cost airline is technically regarded as a tour operator/travel agent (who must be bonded). The legal definition of a tour operator under the relevant law (the 1982 Act) is wide and covers anyone, but not airlines, who sells seats for travel out of Ireland. This includes any intermediary (anyone between airline and consumer who acts for him/herself). Thus it can happen that even if the flight advertising refers to low cost flights etc it might still be the case that the operator is regarded as a tour operator, will have to obtain a tour operator’s licence and take out a bond to protect passengers. JetGreen Airways was a tour operator while EUjet was not. Should the European Commission propose that a compulsor0y bonding requirement be introduced? Marc Mc Donald Lecturer in Hospitality and Tourism Law Dublin Institute of Technology marc.mcdonald@dit.ie END | 
