Horizontal Falls Seaplane Adventures’ boat accident in the Kimberley region of Western Australia on Friday 27th May highlights the significance of contractual terms and conditions for consumers when things go wrong on holiday. That’s according to travel and cruise lawyer Victoria Roy.
Horizontal Falls Seaplane Adventures boat tour booking process typical
“Horizontal Falls Seaplane Adventures’ boat tours could be purchased online as you would expect,” explains Ms. Roy. “However, when making online purchases, many consumers do not read the terms and conditions.
“Consumers do not have the power to negotiate terms and conditions with businesses, especially when booking online. They therefore often scroll down to the tick box without giving them a second thought.
Terms and Conditions Crucial When Claiming Personal Injury Compensation
“However,” Ms. Roy continues, “if something goes wrong, the terms and conditions are crucial in figuring out what a consumer’s rights are.
“This is especially following an accident on a tour or on holiday when the consumer wants to claim personal injury compensation.
Horizontal Falls Seaplane Adventures’ boat accident was a recreational activity
“In respect of the Horizontal Falls Seaplane Adventures’ boat accident, the tour was a recreational activity and arguably a dangerous recreational activity. Such activities have their own liability rules in most States and Territories, including Western Australia. They are also covered under the nationwide Competition and Consumer Act.
Obvious Risk Hurdle When Claiming Personal Injury Compensation
“Injured consumers face significant hurdles when bringing personal injury claims arising out of recreational activities, especially those that the law regards as dangerous.
“For example, Western Australia and New South Wales’ Civil Liability Acts stipulate that activity providers are not liable for harm caused by an obvious risk of a dangerous recreational activity.
Risk Warnings In Terms And Conditions When Claiming Personal Injury Compensation
“Both Civil Liability Acts also declare that a tour operator has no duty of care to its customers in respect of a risk of a recreational activity when the risk is the subject of a risk warning. The tour operator does not have to show that the customer received or understood the warning.
“This means that if a tour operator puts a correctly drafted risk warning in its terms and conditions, it does not owe a duty of care to its customers.
Horizontal Falls Seaplane Adventures Boat Accident Waiver in Terms and Conditions
“Waivers in contracts also have a huge impact on a consumer’s rights. From what I have seen online, Horizontal Falls Seaplane Adventures’ terms and conditions have a waiver excluding liability.
“Such a waiver is legal for contracts for recreational activities like the Horizontal Falls Seaplane Adventures boat tour under WA’s Civil Liability Act. The effect of such waivers is that, if properly incorporated into the contract, the tour operator does not owe a contractual duty of care to its customers.
Exceptions to Validity of Waivers in Terms and Conditions under WA law
“There are exceptions to the validity of waivers,” explains Ms. Roy.
“The circumstances and cause of the Horizontal Falls Seaplane Adventures’ boat accident are currently under investigation. However, if the boat accident resulted from contravention of a law that specifies practices or procedures for the protection of personal safety, the tour operator will not be able to rely on its waiver. Similarly, a waiver cannot be relied on in WA if the harm resulted from a tour operator’s reckless disregard to safety.
Exceptions to Validity of Waivers in Terms and Conditions under Australian Consumer Law
“Waivers in contracts also affect a consumer’s rights under the Australian Consumer Law.
“A tour operator like Horizontal Falls Seaplane Adventures’ can put waivers in contracts for the supply of recreational services which exclude the ACL statutory guarantees such as the guarantee that services will be fit for purpose. However, the wording of the waiver is crucial.
“Whilst a waiver can exclude or limit liability for death or injury, it cannot additionally include damage to property. Also, a waiver cannot limit liability for significant personal injury caused by reckless conduct.
Horizontal Falls Seaplane Adventures’ boat accident lessons for consumers
“As you can see, when a consumer suffers injury during a tour or other activity on holiday, how the parties formed the contract and the wording of the terms and conditions has a huge effect on their rights.
“Whilst consumers usually cannot negotiate changes in standard contracts, they should read the terms and conditions carefully and think twice about doing the activity if they are uncomfortable with the liability position.
“The Horizontal Falls Seaplane Adventures’ boat accident also shows the importance of adequate insurance even for domestic travel. An experienced travel lawyer will dissect the contract and put the injured person’s best case forward. However in some circumstances, consumers do not have compensation rights.
“Serious injuries can result in high expenses and lifelong losses. It is therefore important for consumers to carefully consider their insurance needs when making travel plans.
I hope we learn from the Horizontal Falls Seaplane Adventures’ boat accident: both personal injury compensation knowledge for consumers, but more importantly the cause of the accident so that it does not happen again.”
About the author
Victoria Roy is a travel and cruise lawyer and founder of Victory Travel & Cruise Lawyers.
She is an experienced personal injury lawyer focusing on assisting consumers injured in cruise, boating and holiday accidents.
Victoria is Chair of the Australian Lawyers Alliance (ALA) Travel Law Special Interest Group. She is also Secretary of the NSW Branch of the ALA. In that role Victoria has drafted and presented submissions on changing NSW’s dangerous recreational activity provisions to the Attorney General. She also gave a presentation on this subject to delegates at the 2022 ALA NSW State Conference
Victoria acts for injured tourists nationwide. To book a free no obligation chat, click here.
This article does not comprise legal advice and neither Victory Travel & Cruise Lawyers nor the author accepts any responsibility for it. For advice on your specific circumstances, book an appointment with a lawyer.