Horror Holidays: What Are Your Rights When Things Go Wrong?

June 12, 2019


Public Liability


Jacqui Jubb

From the red dirt to the blue seas, we’re a nation of wanderers and explorers.  Taking an Aussie adventure holiday is kind of like a rite of passage.

We hike and bike and campervan our way around the Land Down Under in the thousands. We return home with tired, sun kissed bodies and an iPhone filled with lifelong memories.

But what happens when our thrill-seeking activities and holidays land us in the hospital or in serious trouble?

Who is liable to compensate you when things go wrong?  

Not all adventure activities and vacation events are covered under your travel insurance policy so before you embark on your Australian travels, here’s a rundown on who might be liable when your holiday takes a turn for the worse.

Slips and falls

Caution: Careful not to slip during your holidays. Photo: iStock

The lowdown:

Slips and falls can happen anywhere, from the supermarket to the carpark to the pool deck or stairwell of your holiday hotel. Particularly when the little ones are in tow!

You may be eligible to claim slip and fall compensation if you’ve been injured on holidays because of the negligence of someone else, whether that’s the hotel owner or the restaurant proprietor at the cafe you fell over in that morning.

The law:

Owners and managers of public spaces and buildings have a duty of care to the public to ensure that the area is secure, safe and secure and cleaned and maintained on a regular basis.

If someone has caused or contributed to your accident or injury, they can be found legally liable for your injuries and may even be liable for the actions of others if the location of your accident is under their control.

You can make a slip and fall compensation claim if you can prove that:

• the property owner or person responsible owed you a duty of care

• they failed to meet that duty (either because of action or inaction)

• you suffered injury or loss as a result.

For example, if you slip and fall in the foyer of your resort because there was poor lighting, you might be able to seek compensation from the business that runs the hotel (or the entity that owns the building).

You may claim that they created a foreseeable and real risk of injury occurring as a result of the poor lighting in that area and that they breached their duty of care to you, resulting in your fall.

The tricky part can be figuring out who to claim against and whether or not you or anyone else contributed to the negligence.

For example, did an employee turn off the foyer lights despite their employment contract stating they had to keep them on at all times? Were you acting negligently in some way? Or is the hotel owner fully responsible?

Your compensation claim might cover costs such as medical costs and lost income (including past and future costs), damages for pain, suffering and loss of enjoyment of life and home help or attendant care.

Businesses and other occupiers of premises are also required to carry public liability insurance so they will usually seek payment from their insurer to cover their liability to you.

Tip:Taking photos and recording details of accidents when they occur makes the claim process much easier and can help explain and/or mitigate any loss or damage down the track.

Car Crashes in Hire Cars

Read between the lines when hiring a car. Photo: iStock

The lowdown:

Motor vehicle accidents are common in rental vehicles.

There’s usually a great deal of confusion over who is at fault, who pays for damage and what steps each party should take afterwards to minimise the fallout or make a claim.

When using the road as a cyclist, pedestrian or vehicle driver, you and others on the road have a “duty of care” to act in a reasonable way on the road. You need to ensure your own safety as well as the safety of others using the roads.

The law:

If you’re involved in a motor vehicle accident while driving a rental car, you may be liable to:

• your car rental company for damage to its vehicle,

• other parties for damage to their vehicles, or

• other parties for personal injuries they sustain.

Your level of liability (of any) ultimately depends on the terms of the hire contract you signed.

In terms of injuries to people after a crash, it’s compulsory to have third party insurance to register a car, including rental cars, in all Australian states and territories.

Your rental company should have CTP insurance to cover personal injury claims made by other drivers, passengers, pedestrians and cyclists who were involved in the accident.

If another vehicle is damaged, your liability will normally be covered by your rental company’s policy. You will need to make a claim under the hire company’s insurance policy and they may require you to pay an excess fee regardless of the issue of fault (these fees can be high - up to $5000 or more if you’re renting a premium category vehicle).

One way to minimise this potential fee is to purchase excess reduction insurance through the hire company or another provider when you’re on holidays.

You may also be covered by liability insurance contained in a travel insurance policy or attached to a credit card product.

Tip: Watch out for exclusions and actions that might constitute a breach of your rental contract and could result in you paying much more than your agreed excess (such as driving under the influence of alcohol or breaching road rules).

In some circumstances, you may be fully liable for damages to your rental vehicle and loss of income to the rental company while it’s being repaired.

High risk holiday sports

Will your travel insurance cover your thrills and spills? Photo: iStock

The lowdown:

Slips and falls can happen anywhere, even if you’re simply stepping out of the shower or sauntering down the shopping aisle.

What about the action lovers that like to live on the edge and engage in some thrills and spills?  

Scuba diving, jet skiing, snow skiing, motor cycling, rock climbing, bungee jumping and hang gliding and are just some of the popular activities we throw ourselves into on Aussie holidays.

It’s safe to say they carry a bit more risk than your standard city walking tour.

The law:

Generally, organisers of a sporting or adventure activity owe a duty of care to participants.

The activity organiser or provider must take reasonable precautions against foreseeable harm.

In determining liability, the relevant factors are:  

•       whether the organisation should have reasonably foreseen that its activities and actions (or inaction) could have caused loss, damage or injury to a participant, and

•       whether reasonable steps were taken to mitigate (or reduce) that risk.

The duty may extend to warning participants of identifiable risks associated with the event, providing appropriate instruction or taking actions to reduce risks (i.e., appropriate care and maintenance of safety equipment).

One of the exceptions is when dangerous recreational activities have obvious risks.

In Queensland, for example, the Civil Liability Act2003 states that a person is not liable in negligence for harm suffered by another person as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the person suffering harm.  

This applies whether or not the person suffering harm was aware of the risk.

Dangerous recreational activity as an activity engaged in for enjoyment, relaxation or leisure that involves a significant degree of risk of physical harm to a person.

The law also assumes that participants should take reasonable care of their own safety, so if the participant fails to take reasonable care for their own protection, that lack of self-care will be considered.

The bottom line is that you may be protected from liability for some of your edgier holiday activities but you’re best to make sure your own travel insurance has a wide coverage so you can carve up the snow and scale those cliffs with some peace of mind.

Tip: Do you research on which travel insurance brands will cover your high-risk holiday, whether it's the adventure, destination or your current condition. Websites like Compare Travel Insurance can help you figure out what’s included and excluded from each policy.

Accommodation: Airbnb

Know your rights before you check-in. Photo: iStock

The lowdown:

Who’s to blame when you’re staying in an Airbnb rental apartment on your holiday and things go pear shaped?

In 2018, Workplace Health and Safety began investigating the death of a four-year-old boy who was injured in a swing set accident while staying at an Airbnb in Queensland's Sunshine Coast hinterland at the weekend.

The little boy's death raised questions about who's liable when things go wrong at an Airbnb and what can be done to protect consumers.

Airbnb provides free Host Protection Insurance for owners, including coverage of up to $US1 million "in the event of a third-party claim of bodily injury or property damage" during an Airbnb stay.

So, if your guest breaks their arm slipping on the bathroom floor, this type of cover will come into play. This includes cases like a guest breaking their wrist from slipping on a rug or injuring themselves after falling off a faulty treadmill in the gym complex.

But the regular insurance policy of the Airbnb owner may not cover all types of damage or injury to guests staying in their home.

RACQ insurance spokesperson, Kirsty Clinton, has told ABC that things like fires and storms and cyclones are covered but turning a home into a commercial business tips its insurance coverage on its head.

This means the legal liability portion of your home and contents insurance, namely, the part that offers compensation for death and injury, or loss of damage to someone's property will not usually be covered by insurance.

The host protection insurance doesn't normally cover property issues like mould or bedbugs, or damage or injury from something done on purpose.

And unless the host has been negligent in some way, you might be left to pay for the costs related to accidents or injuries when things go wrong.

Tip: Make sure you ask your property owner about their level of insurance and if something looks unsafe when you arrive, get back in touch with the host to rectify the situation, check that things are compliant or ask questions.

Obtaining comprehensive travel insurance and paying attention to the risks involved in your holiday activities will stand you in good stead to manage the situation when that horror holiday accident happens.

Jacqui Jubb
Rebecca Earl

Writer. Lawyer. Mother. Lifestyle Lover.

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