LEISURE INDUSTRY

Package holidays - implied terms - duty of reasonable care and skill in provision of contractual services - mitigation of loss

[Package Travel, Package Holidays and Package Tours Regulations 1992 (SI 1992 3288) Reg. 6, Reg. 14, Reg.16.]

B brought a claim against a tour operator, C, with whom he had booked a two week holiday in Sardinia promised by C in its brochure to be "opulent luxury in a dramatic landscape and a beautiful villa with private garden and swimming pool". On arrival, B and his family found that the villa was infested with rats. B complained to C, who eventually offered smaller alternative accommodation with only a communal pool and no private garden. No compensation was offered. B declined the alternative accommodation and returned home. B contended that C was in breach of (1) an implied contractual term to exercise reasonable care and skill in the provision of holiday services, and (2) the terms of the Package Travel, Package Holidays AND Package Tours Regulations 1992. C argued that the rodent infestation was mice rather than rats and was unavoidable in that area. Further, that B, by declining the alternative accommodation, had failed to mitigate his loss.

Held, finding in favour of B, that (1) Reg. 6, Reg. 14, and Reg. 15 of the 1992 Regulations applied to the holiday contract; (2) C had failed to provide luxury, rat-free accommodation in breach of the implied warranties in the descriptive material in its brochure and had failed to comply with its duties under Ref. 14(2) and Reg. 14(3); (3) C had failed to exercise reasonable care and skill in the provision of contractual services, and (4) B's refusal of the alternative accommodation had to be judged by reference to the luxury holiday that he had booked. In the circumstances, he had acted reasonably and mitigated his loss, particularly as C's offer had not included an offer of compensation. B was awarded a sum representing the whole of the holiday lost and consequential losses, together with the sum of £2,000 for loss of enjoyment.

"Current Law" November 2001