Plaintiff and his fiancé wanted to go on vacation in late October 2005 and asked their travel agency for a destination of fair weather. The agency inter alia offered Yucatan/Mexico which they chose and booked a package tour for Oct. 16 to 30. When they left for Yucatan on Oct. 16, a tropical depression had developed in the Carribean which on Oct. 18 turned into hurricane Wilma. Plaintiff and his fiancé enjoyed their vacations until Oct. 19 when heavy wind came up and the hotel staff began to nail up windows. From Oct. 20 they were asked not to leave their room. The storm calmed down on Oct. 23 and left much of the neighbourhood of the hotel and most of the surrounding infrastrcuture destroyed. Plaintiff and his fiancé were flown home on Oct. 27.They sued for refund of the full package price, compensation for loss of holiday enjoyment and some minor damages: the tour operator had been at fault because of failing to warn them from the upcoming hurricane. The tour operator argued the general hazard of hurricanes in the Carribean was a fact of general knowledge and hurricane Wilma had only developed after they had arrived.Supreme Court upheld the decision of the court of appeal that plantiff was entitled to a partly refund of the package price (except for the first three days) as well as to compensation for loss of holiday enjoyment and further damages. Even though the general hazard of hurricanes in the Carribean indeed was a fact of general knowledge and the development of hurricane Wilam and its track not foreseeable at the time of booking nor at the time of departure, the tour operator should have informed about the duration of the hurricane season when hurricanes are more likely.Although it was only ascertained that plaintiff had booked for fair weather, Supreme Court concluded that it was likely that he would have booked another destination if properly informed. Even though plaintiff and his fiancé neither would have enjoyed the particular package tour if information had been given they probably would have enjoyed another one of equal shape which therefore also constiuted loss of holiday enjoyment.Supreme Court again opposed a conceptional formula to detetermine immaterial damages. Courts rather had to assess these damages due to the cicumstances of each individual case.Judgement 4 Ob 130/09k of Sep. 29, 2009 is not published yet.
