WHAT THE EXPERTS SAY
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Legal 500 (2016)
Hijacking in India
Helen booked a package holiday to India in December 1996 with the Defendants Inspirations East Ltd (now part of the Thomas Cook Group).
Hijacking of coach in India
Whilst on holiday she booked an excursion to Agra which was to be provided by the Defendants and their agents. The excursion by coach with several other passengers was undertaken at night and before the coach reached its destination it was stopped at a road block and hijacked by around 12 bandits armed with guns and knives.
The coach and passengers, including Helen and her partner, were then driven to a remote location where Helen was molested but did not suffer any significant physical injury. However, she feared that she would be raped and she and her partner would be killed. The bandits threatened them and other passengers, robbed them of their belongings and then finally fled.
As a result of the incident, Helen suffered psychiatric injury and claimed that the Tour Operator was liable to compensate her under the provisions of the Package Travel, Package Holidays and Package Tours Regulations 1992. Essentially this liability arose because the Defendants, their employees and agents had failed to take reasonable precautions to ensure passengers on the excursion were safe. It was maintained on behalf of the Helen that the risk of bandit activity should have been anticipated by the Defendants and that it was unsafe to travel at night in the region without a higher level of security than that which was provided.
Liability was denied by the Defendants and proceedings were issued. The Defendants maintained their denial of liability although admissions were made prior to Trial. There remained significant issues in respect of quantification of the claim.
The parties relied upon one psychiatric expert each. Both experts had widely differing views as to the extent of the injuries sustained as a result of the incident. The Defendants expert maintained that only 6 months of post traumatic stress disorder symptoms were attributable to the incident. The Defendants maintained that there should be no loss of earnings or other compensation paid after this period of time.
The psychiatrist instructed by Kelly diagnosed post traumatic stress disorder and maintained that she continued to suffer symptoms as a result. It was accepted by her expert that with time and appropriate treatment, she would be able to attend to employment all be it in a less stressful nature to the social work which she had previously undertaken.
After joint discussions, the experts for both parties remained polarised in their views. The Trial on Quantum was listed to occur on the 15 November 2001. The first offer of settlement was made on 4th September 2000 when the Defendants made a Part 36 payment into Court in the sum of £38,045 plus payment of relevant social security benefits. This payment was not accepted. Following further negotiations the Solicitors for Helen and the Defendants eventually agreed a negotiated settlement in the sum of £200,000.00 to Helen plus repayment of her CRU benefits in the sum of £17,427.00 plus costs.
Clive Garner of Irwin Mitchell Solicitors makes the following comment
This case is significant in the context of claims for inadequate security and Tour Operator liability for the independent acts of third parties unconnected with the provisions of holiday services, in this case bandits. Investigations yielded sufficient evidence for Helen to succeed in establishing that the Tour Operator and/or its agents in India had failed to take reasonable steps to ensure that passengers were safe during the excursion.
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