Tourism Law in Europe

3. The Duty of Care If the duty on the organiser of a package travel contract were simply the provision of, for example, a hotel room, one would expect the courts to impose no obligations on the organiser arising from events outside the hotel. However, several English cases – decided at all levels between County Court and Court of Appeal – have shown that the courts regard tour operators as having a wider duty of care, by way of implying terms into the package travel contract. These cases show that the duty extends, in a resort, beyond the confines of the hotel (or apartment). The best illustration is Davey v Cosmos , from back in 1989, in which the duty was expressed by the judge to be an implied term of the contract as follows: “ To take such steps as are reasonable taking all the circumstances into account to avoid exposing their clients to any significant risk of damage or injury to their health ”; And thatsame statement of duty is also found in the other cases:  In Davey v Cosmos 1989 , the consumers contracted dysentery whilst in Portugal, not at the hotel, but because the beaches and water supply in the resort were contaminated by sewage. The claimants won their claim against Cosmos;  In Beales v Airtours 1996 , the claimants were mugged and robbed whilst out in a Portuguese resort – the contractual duty of care existed, as set out above, but the claimants could not show that the situation in that resort was so bad that Airtours had breached that duty;  There have been other cases too, for example requiring a warning if and where a sea bed is unusually hazardous. It can readily be seen how this test relates to a case in which a tour operator or package organiser proposes to run a holiday in the face of contrary Government advice, in a COVID-19 context, and a consumer seeks to cancel free of charge under Article 12(2) PTD. If the Government says that there is a significant risk to health in visiting a destination, the existence of this duty will make it hard for package organisers to argue that they do not have the duty to warn about it, can perform all the significant contractual obligations under the contract and are not obliged to allow free cancellation under Article 12(2) PTD. They would need to adopt the tough argument that their judgment was better than the Government’s on this issue, and not marginally but markedly so. Was the Advice so perverse that no reasonable Government could have given it? It gives rise to the following