This question was considered by HHJ Hedley in the trial of McCullough v University of Leicester, handled by Keoghs partner Libby Ferrie and Mark Blann, Claims Specialist at Allianz.
The claimant was a Zoology undergraduate at the University of Leicester. As part of her degree course in 2014 she went on a field trip to Madeira organised by the defendant which involved various lectures, laboratory works and field trips. During one of these activities - a whale watching boat trip - the claimant sustained severe injury to her ankle due to the negligence of the skipper of the boat.
The claimant chose not to sue the boat operators (who were insured) but instead sued the University of Leicester under the Package Tour Regulations 1992, alleging that the field trip was a package tour and the university was the organiser. This meant the claim would be governed by English law and there would be no jurisdictional issues, but the question arose as to whether this type of trip was within the scope of the 1992 Regulations. If the claimant’s allegations were upheld, the University would be liable for the negligence of the skipper.
The Court considered two key issues:
As to the first issue, the judge considered that the trip formed part of the wider contract between the claimant and the University for educational services and the main purpose of the trip was educational. As such, the 1992 Regulations were not intended to apply.
The finding on the first issue meant that the Court did not need to determine the second issue but the Judge considered it in any event. The claimant’s case was that the tuition fee paid, £9,000 at the time, was sufficient to consider the field trip as ‘sold’ to her by the university. However, as evidenced by the defendant, the claimant committed to the fees of £9,000 before selecting the field trip and the tuition fees would be no more or less whether she went on the field trip or not. All undergraduates paid the same tuition fees no matter what the course. The Judge did not consider the connection between the tuition fee and the trip was such that the one could be consideration for the other and gave rise to a separately enforceable contract. The field trip was not something which was sold or offered for sale at all. Nor was it a package which was intended to, or did in fact fall within, the 1992 Regulations. The claim therefore must fail.
The finding is fact sensitive and a different set of funding arrangements and/or split of educational/leisure pursuits may well have led to a different result. However, the finding should provide some reassurance to educational institutions that they will not be held to be tour operators and subject to the same liabilities under the package tour regulations. Claimants injured in this way should consider suing the foreign tortfeasor.
The 1992 regulations have now been replaced by the Package Travel and Linked Travel Arrangements Regulations 2018. Given the 2018 regulations have more focus on the relationship between consumers and commercial organisers, it is likely to be even harder for a student on an educational trip to sue their university under the Package Tour Regulations.
For more information please contact Libby Ferrie, Complex Injury Partner on lferrie@keoghs.co.uk
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