"e mere fact that a damage occurred during the journey does not in itself constitute a lack of conformity.47 Even if the package organiser has a contractual secondary obligation to ensure the safety and physical integrity of the traveller, the associated requirements must not be excessive.48 Obvious hazards therefore do not give rise to any liability.49 It could be argued that the Directive does not provide for harmonisation of the burden of proof and that its distribution therefore remains subject to national law. However, the Directive expressly provides for the organiser to bear the burden of proof for exceptions to liability.50 It can therefore reasonably be inferred that the traveller bears the burden of proof for the preconditions of liability, i.e. a lack of conformity and its causality for the damage. "is is also in line with the principle that it is generally for the party asserting a fact to prove it. As regards the price reduction, it is obvious that it is for the traveller to prove the lack of conformity on which the claim is based. "ere is therefore no reason for a di%erent distribution of the burden of proof in relation to claims for damages. 3) Calculation of damages Like in case of price reduction, it is hard to determine, how a compensation for loss of holiday enjoyment has to be calculated. In the famous British case of Jarvis v Swans Tours,51 Lord Denning MR didn’t give the least clue on how he calculated the GBP 125 awarded to Mr. Jarvis. In Germany, Ernst Führich has suggested to calculate the compensation according to the formula: „compensation = (package price ÷ number of days) × number of days a%ected × percentage of price reduction“.52 "e Vienna Higher Regional Court, however, has rejected this approach and pointed out that if applied to high-priced packages the Führich formula could lead to a disproportionate result. "e amount granted for a day of lost holiday enjoyment should not exceed the average amount granted for a day of light pain and su%ering in personal injury cases.53 47 OLG Stuttgart (Higher Regional Court of Stuttgart) judgment of 10 Nov. 2023, 3 U 23/23, RRa 2024, 66. 48 OGH order of 8 Apr. 2020, 5 Ob 47/20b, ECLI:AT:OGH0002:2020:0050OB00047.20B.0408.000. 49 See OLG Wien (Higher Regional court of Vienna) judgment of 23 Nov. 2018, 3 R 49/18z, RRa 2019, 42 (wetness around the pool); LG Innsbruck (Regional Court of Innsbruck) judgment of 14 Sep. 2018, 5 R 68/18p, RRa 2019, 92 (level di%erence with steps in the terrace area). 50 Article 14(3): „"e traveller shall not be entitled to compensation for damages if the organiser proves …”. 51 Jarvis v Swans Tours [1972] EWCA Civ 8 52 Führich, Reiserecht7 § 11 Rn 66. 53 OLG Wien 27.02.2007, 4 R 153/06h. 353 ARTICLE 14 | MICHAEL WUKOSCHITZ
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