Tour Providers (Tourism Law)

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Introduction

Tourism had been one of the most popular and fast-growing industries over many decades be it for leisure, recreational or business. Despite its high demand, many travelers out there may not have much knowledge of the "masterminds" that make tourism’s operational activities possible.

The tourism industry is actually made up of a group of people who are in charge of performing and dealing with different tasks. They are most commonly known as tour providers or operators which cover hotels, airlines, travel agents and carriers. Tour providers are usually in charge of planning and leading tours for travelers who needs the guidance of a better informed person to bring them to places of interest across the travel destination of their choice. Many travelers prefer to rely on tour providers as they help them to prepare for their trips without having to deal with all the travel plans on their own.

However, how many travelers had embarked on their “journey” and later find it unsatisfactory or encounter various issues with the holiday package which are planned out for them. There are bound to be a handful of them who falls under that category. The main question is are the tour providers going to be responsible of those losses or are the tourists being negligent thus should warnings be given beforehand by the tour providers?

With the application of law to this kind of situation, there are certain ways to encounter such problems.

Law of Negligence

Negligence originates from tort law, a judge-made law which deals with civil wrongdoings which does not include the breach of contract or trust that results in injury to another person and for which the injured party is entitled to sue for compensation. This can happen to an individual, businesses, organizations or even sporting participants. In conjunction, occupiers or owners of sporting premises or other recreational facilities can be held liable under the Occupiers’ Liability Act 1985 (WA).[1] An occupier of premises also known as ‘entrants’ is defined as a person occupying or having control of land or other premises and that’s includes any vessel, aircraft or means of transportation.[2]

The standard of care owed by the occupiers who enter the premises would vary depending on how they are classified. In Australian Safeway Stores v Zaluzna (1987)[3], the High Courts stated since Zaluzna was a lawful entrant in the shop thus there is a duty of care owed by Safeway to whoever who is entering the premises and reasonable care should be taken into consideration.[4]

In tort law, the term negligence is used to categorize behavior that creates unreasonable risks of harm to a person and property. Negligence usually occurs when a person is careless and fails to exercise appropriate amount of care that a reasonable careful person would or when the person does something that a reasonably careful person would not do under the circumstances.[5] In order to justify a person being guilty of negligence, the plaintiff must be able to prove three things:

1) Existence of Duty of Care

The person is obliged to take reasonable care in order to avoid any acts or omissions that are reasonably foreseeable that could cause harm or injury to another party as held in Donoghue v Stevenson (1932) [6] though tour operators do not necessarily owe a duty of care for all personal injuries or losses of personal belongings that a traveler suffers.

2) Breach of Duty of Care

There was a breach of duty not only did the duty of care existed but failed to do so due to lack of reasonable care. Using the comparison between Vairy v Wyong Shire Council (2005)[7] and Mulligan v Coffs Harbour City Council (2005)[8] it illustrates the measure of reasonable care for the riskiness of recreational activities and warning signs. The two claimant, Vairy who had dived off a rocky platform had hurt his head on the seabed, Mulligan on the other hand dived into the pool struck his head on an...
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