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Liability query

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Hi,

 

I need some advice on a rather complicated issue surrounding a holiday I took in 2006. I would like to know if my understanding of the legal situation is correct, if my compensation claim is fair, if I still can take this through the courts (I believe I have 9 years to make a claim on this) and if anyone has any other helpful advice!

 

Thanks in advance and please bear with me while I explain...

 

 

The Holiday

 

At 4 weeks notice, I was booking a month's holiday. I personally felt that I had three options (in this order): (1) Peru and the Inca Trail, (2) Backpacking around Canada & (3) A tour of Japan.

 

At the time, STA were offering discounted Gap tours to Peru. I rang and discussed this with one of their operatives, and was very interested in taking it up. However, I was put off by the Foreign Office's advice about travelling to Lima - specifically, that taxis were notoriously dodgy and that they were the only method of getting to and from the airport. The Foreign Office recommended booking taxis only from immigration control.

 

Now I was a very inexperienced traveller at the time (this was to be my first trip outside Europe). Plus, I'm ginger, have very pale skin and an obvious English accent and I was to be travelling alone. On top of this, the only flight I could find in my budget included a 14-hour stopover in Bonaire. As far as I was concerned, I might as well walk through Lima airport with a big sign saying "victim".

 

On Gap's website, they offered airport transfers. I again rang STA and spoke with them - they confirmed that they ran private airport transfers, which were very straightforward and completely safe, as the drivers were directly employed by Gap. On the strength of this, I was reassured and booked the holiday.

 

As I booked the holiday, I was asked if I would like to buy travel insurance for £50. This was very expensive (I could get other travel insurance for £40), but they told me that it covered luggage, valuables, travel documents and money up to £1500. As I had been advised by experienced friends and websites not to take traveller's cheques as they would be difficult to exchange, I took the insurance.

 

Two weeks later, I rang again to ask where all of my documentation was. I was told "we didn't have your address so we were waiting for you to ring us back" - despite having both my phone number and my email address. Somewhat bemused, I gave them my address.

 

A few days later - less than a week before I was due to travel - I received my travel documents. This included the insurance documents, which claimed that I would have to pay a £30 charge (over 50% of my premium) to cancel the policy. I read it through, and read that it covered money carried on person up to £200 and in luggage up to £1500.

 

This might seem a bit odd, but I had never bought travel insurance before and had already been told that I was covered up to £1500. I also did not have enough time to cancel the insurance and get another policy - which I would have, if STA had not taken 3 weeks to get the documents to me.

 

A few days later, I arrived in Lima feeling very tired and not really with it - having not slept properly in almost 2 days. Still, I had my taxi booked so I could just get to my hotel and sleep. I walked past immigration control (where the Foreign Office had advised me to book a taxi), through customs and into the main airport.

 

My taxi was not there. I waited for 20 minutes and then booked a taxi with one of the desks. The taxi driver (who was armed) drove me half-way to my destination, pretended to break down and then robbed me. He then flagged down another taxi, whose driver did not speak any English, and told him to take me to my hotel.

 

I arrived at the hotel, only to find that it also had not been booked. Fortunately, the tour had been booked and Gap had already supplied the hotel with the names of the people attending. Had they not, or had the hotel been full, I would have been stranded with nowhere to go.

 

I had lost a lot of my money, my debit card and my new digital camera. Ispent most of the next day trying to sort out what had happened - getting a police report for the insurance, calling my bank to cancel my debit card, getting some more money wired from home and sorting out my accomodation with Gap.

 

I also refused to take a taxi by myself in Lima (which has no other viable means of public transport). I effectively lost a quarter of my holiday (7 days). I resolved to enjoy the rest of my holiday, but the incident did cast a bit of a cloud over my trip.

 

 

The Aftermath

 

When I got home, I contacted the insurance company to make my claim and Gap to investigate why my hotel/taxi had not been booked. I was out of pocket by about £900, but I believed I was covered for £700 and that I could claim off STA for the rest. Two months later, I had a cheque for £168 from the insurance company (Ensleigh) and Gap had told me that STA never booked my hotel and taxi.

 

The insurance company refused to pay out for any of the money I lost. While I was disputing this, I received a cheque from them for £168 with no explanation for what it was for. It turns out it was for my lost electronic equipment, less excess and a 10% "depreciation" charge because they didn't operate an "old for new" policy. My argument that the camera was still within its 7 days return policy was ignored and all requests for how they calculated the 10% were greeted with "please see the letter we sent with your cheque".

 

I am still not sure how my query was explained by: "We have pleasure in enclosing our cheque in settlement of your claim. Please note that we have deducted the policy excess and an allowance, where appropriate, has been made for wear, tear and depreciation."

 

I felt I could continue pursuing the insurance company, but STA had sold me the insurance and I wasn't covered for the things they had claimed I was. I felt that I should claim the whole £900 from STA (or at least £900 less the £168 I had been offered), and that STA could claim back what they wanted from the insurance company.

 

Three weeks later, I finally got through to someone at STA. I gave them my complaint. 6-8 weeks later, they offered me about £400 in compensation (with the insurance, this was still over £300 short of what I'd lost). They also claimed they were not responsible for my mugging or my completely inadequate insurance.

 

I replied that I was unhappy with this, they told me to contact ABTA. I had been trying to get my money for 4 months now, so I claimed that I would now be seeking extra compensation.

 

I contacted ABTA with my complaint and, after two months of chasing them, I got my reply. They stated that I should not pursue my claim because I would have to prove (a) that STA breached our contract and (b) that the incident would not have happened had STA fulfilled my contract (this is not my understanding of the legal situation). They claimed that I could pursue my claim, but it would cost money that I would not get it back if I lost and that they recommended that I take STA's offer.

 

However, the documentation I had provided clearly showed that STA admitted breaching my contract and that the tour operator directly employed their own drivers. I replied to ABTA's email, asking why they were recommending that I drop the claim when it was clear that I met both criteria.

 

Another two months later, I received an email simply detailing their independent arbitration service and how to apply to the small claims court. No explanation of why they were recommending they drop the claim. However, their arbitration services were only applicable if used within 9 months of an incident - and it was now 9 months after the incident in dispute.

 

 

My Position

 

I investigated ABTA and wasn't prepared to trust their "independent" arbitration scheme. I was also in a stressful job which required a lot of out of hours work. To put it bluntly, I was extremely stressed out by the entire incident and couldn't face having to go through the whole court procedure, despite the fact that I don't want STA to get away with leaving me in such an invidious position.

 

At the time, I was taking legal advice from a friend who was studying this kind of law. He told me that I could make a claim up to 9 years (I think) after the incident. It's been 2.5 years since I finished with ABTA, and I'd like to get some compensation for what happened.

 

The insurance company was very unhelpful - but STA sold me the insurance and misrepresented what my cover was. The cover sounded very good, and I believed that this was why the premium was so very high (my friend's insurance was £40 for 12 months, compared to my £50 for 30 days). STA failed to provide me with the insurance policy within good time to examine it properly and also failed to mention the penalty clause for cancelling the insurance.

 

I assumed at the time that ABTA was an impartial ombudsman. After their unhelpful behaviour, I looked them up and realised that they are funded by the travel agents they represent. Therefore, as STA referred me to them, I believe it is reasonable to argue that ABTA are a customer services contractor for STA, with a vested interest in dissuading people from pursuing action against their clients. This is reflected in their attempts to claim that I would lose my argument against STA, when I clearly met their criteria for having a good case.

 

ABTA's analysis of the situation is that I have to prove (a) the travel agent breached my contract and (b) the incident would not have occured if the contract had been fulfilled. My understanding of the legal situation is that I have to prove (a) the travel agent breached my contract and (b) that the incident could reasonably be foreseen to have happened as a result of the breach of contract.

 

I believe I meet these three critera. STA has admitted they breached my contract and Gap has confirmed that they were never asked to book the taxi and hotel. Gap directly employs the driver who would have been booked to pick me up, and they are unlikely to knowingly hire armed robbers. The Foreign Office clearly warned about the dangers of taxis in Lima and I would not have taken this holiday had STA not offered me a private taxi to and from the airport. The Foreign Office advised all tourists to book taxis from immigration control - STA's breach of contract left me unable to do this, as I had to leave customs to meet their taxi.

 

I believe that my position is:

(a) that I booked my holiday based on STA's assurances and contract

(b) that STA breached this contract

© that the breach of contract left me unable to follow Foreign Office safety guidelines

(d) that the breach of contract led to an armed robbery, which was a reasonably likely and foreseeably circumstance

(e) that this incident would not have happened if STA had fulfilled our contract, and that they would have been liable if they fulfilled the contract and it had happened

(f) I would have been left in an even more invidious position had it not been for fortuitous circumstances and my own actions (taken in anticipation of such an incident)

(g) that STA's actions left me without suitable insurance in the event of this incident

(h) that STA's actions in dealing with my claim have led to a great deal of unnecessary stress for me

 

I originally was going to claim for my insurance and get the rest from STA, in the interest of putting the incident behind me as quickly as possible. When STA refused that, I decided that I would claim for £3000 - the £900 I lost plus a refund on the holiday. After 9 months of constantly having to recall the incident, I felt that I should claim for my losses, a refund on the holiday and suitable compensation for the distress caused by the actual robbery.

 

To be clear, I'm claiming the refund for the holiday on the grounds that the 9 months and stress it took to get through the insurance, STA and ABTA mean that I would rather not have ever taken the holiday. I also have a stress-related condition which flared up to a much higher level than it had ever been - and once it got hold, it stayed there.

 

 

Thanks again for taking the time to read through my rather convoluted diatribe. Any advice you have to offer would be much appreciated!

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