If a tourist venue does not have any specifically risky object and the usage manners of facilities in a scenic spot are known to tourists according to common sense, it would be difficult to conclude that the tourist protection obligation is not fulfilled or the services as provided do not meet reasonable safety expectation even if the tourist operator does not provide any special warning or instructions concerning the usage manners of the facilities(Taiwan)

2017.9.27
Oli Wong

The Kaohsiung Branch of the Taiwan High Court rendered the 106-Bao-Xian-Shang-Zi-3 Civil Decision of September 27, 2017 (hereinafter, the “Decision”), holding that if the usage manners of facilities in a scenic spot are known to tourists according to common sense, it would be difficult to conclude that the tourist protection obligation is not fulfilled or the services as provided do not meet reasonable safety expectation even if the tourist operator does not provide any special warning or instructions concerning the usage manners of the facilities.

 

According to the facts underlying this Decision, the Plaintiff’s mother attended a trip to Japan as organized by the Defendant.  However, when the Plaintiff’s mother was enjoying a hot spa in a hotel, she lost consciousness and lied in the water with her face down. After emergency resuscitation was performed, she still passed away (hereinafter, the “Accident at Issue”).  The Plaintiff filed a complaint, asserting that instructions provided in signs set up by the hotel where the Accident at Issue took place were all in Japanese and not understandable to the Plaintiff’s mother.  In addition, the tourist guide for the tourist group was also negligent for failure to interpret and to inform the Plaintiff’s mother of the instructions concerning the use of spa facilities. Also, since tourist guide was not present at the time of the accident, the Plaintiff’s mother died when the critical resuscitation time had been lost.   Since the Defendant failed to perform the tourist protection obligation and the services so provided did not meet reasonable safety expectation, a complaint was filed to seek damages from the Defendant in accordance with Article 7 of the Consumer Protection Law (hereinafter, the “Law”) and Article 227-1 of the Civil Code, to which Articles 192 and 194 of the same law apply.

 

According to the Decision, if a tourist venue does not have any specifically risky object and the usage manners of facilities in a scenic spot are known to tourists according to common sense, it would be difficult to conclude that the tourist protection obligation is not fulfilled or the services as provided do not meet reasonable safety expectation even if the tourist operator or the service staff does not provide any special warning or instructions concerning the usage manners of the facilities.  In addition, the above-mentioned obligation to safeguard tourist safety does not mean that the service staff of a tourist group is required to stand by the side of the tourists at all times.  Moreover, during the free time of tourists, it is even less likely to require the service staff of a tourist group to accompany the tourists all the time.

 

Therefore, it was found in this Decision that although the instructions concerning the use of the hot spa in the hot spa area of the hotel where the Accident at Issue took place were in Japanese, still they were no different from typical instructions for hot spa usage in Taiwan. In addition, the Plaintiff’s mother had experiences in using a hot spa in Taiwan and should have been aware of typical instructions concerning hot spas.  Even if the tourist guide of the Defendant’s tourist group did not provide any specific instructions concerning hot spas, still it could hardly be concluded that the obligation to protect tourists was not fulfilled.

 

In the determination of the causation , the court concluded that objectively the depth of the hot spa where the Accident at Issue took place was not sufficient to cause the drowning of the Plaintiff’s mother.  Moreover, the Accident at Issue took place during the free time of the tourists when the tourist guide was not expected to accompany the tourists.  With respect to the physical condition of the Plaintiff’s mother, she suffered from hyperlipidemia and was unfit to soak in a spa for a long time; nevertheless, she still decided to soak in a hot spa for a long time based on her own evaluation of her physical condition under the above circumstance.  Although the Accident at Issue was resulted, it could hardly be concluded that this had certain causal relationship with the tourist guide’s failure to provide the instructions in advance.  Based on the foregoing reasons, the court ruled against the Plaintiff.