Beware the slippery slopes of liability

Posted: 17/02/2012

As European ski resorts enjoy good snowfall, Mark Lee, who heads Penningtons' travel law team, talks to Travel Trade Gazette about tour operator liability for clients taking ski lessons, and advises on safeguarding against a claim:

'After a slow start, UK ski operators are now enjoying a busy season, following record snowfalls in European resorts since December. Many holidaymakers enjoy ski lessons during their holiday and these are usually delivered by the tour operator as part of an agreed inclusive package. However, this carries a risk since skiing is an inherently hazardous and inevitably accidents do occur.

The English courts have delivered some important rulings in the past few years regarding the extent of an operator’s liability when something goes wrong. Let’s examine the court’s approach.

Anderson v Lyotier

In the case of Anderson vs Lyotier in 2008, Mr Anderson conceded that he was a relatively experienced skier. During a ski lesson on the last day of his holiday, while skiing off piste, he collided with a tree. Tragically, he was rendered a tetraplegic as a result of his injuries.

Earlier in the week, the class had gone off-piste with the instructor, and the claimant had found this difficult. The off-piste skiing on the day of the incident was at a more difficult level than anything undertaken in lessons previously. It was also acknowledged that Mr Anderson was one of the weaker members of the group.

The court ruled that a ski instructor should take account of the needs of the weakest members of the class and that the slope was beyond his capabilities. However, the court also noted that an adult skier has an obligation to raise any concerns he may have with the instructor. It was acknowledged that it can be difficult to say something in the lesson because a skier may be reluctant to let the rest of the group down or to appear frightened. However, if the skier has serious concerns about his ability to perform the task required, then he has a duty to voice that concern.

Although the ski instructor (and consequently the tour operator) was found to be primarily responsible for the accident, there was also a finding that the claimant was contributory negligent, for failing to inform the instructor of his difficulties, and his damages were therefore reduced by 30%.

Mrs Goldbourn v Balkan Holidays

Mr and Mrs Gouldbourn travelled to Bulgaria for a 'six-day learn-to-ski' package holiday, booked with Balkan Holidays. There were 12 people in the class, consisting of complete beginners and skiers with limited previous experience. The instructor was aware that Mrs Gouldbourn had never skied before.

On the first day the visibility was poor so very little skiing was possible. The next day the instructor taught the group simple manouevres such as snowplough, braking, turning and also how to use the lifts. On the third day, the group again revisited the nursery slopes, but was then taken a little higher up the mountain in the afternoon.

Although two members of the group declined Mrs Gouldbourn agreed to go with them. She followed the instructor and other members of the group on the descent but lost control and fell, causing an injury to her knee.

Mrs Gouldbourn subsequently sought damages against Balkan Holidays, alleging the slope was inappropriate for beginners and that the instructor failed to exercise reasonable care and skill when assessing, instructing and supervising her on the slopes.

Both the County Court and the Court of Appeal dismissed the claim. It was considered the lower part of the mountain was a natural progression from the nursery slope. The appeal judges admitted to some difficulties when deciding whether the instructor had acted with reasonable care and skill because no evidence was submitted regarding the relevant standards applicable in Bulgaria.

This proved to be decisive since the Court did not have the crucial evidence to determine whether the instructor fell below the applicable standard. It is quite possible the result may have been different if evidence regarding local standards had been disclosed. The decision therefore reiterated the general principle that a claimant must usually show a breach of relevant local standards for the claim to succeed.

Ms Kearne v Ultima Tours

Kearne was a 15-year-old enjoying a school skiing holiday in Hochfugen, Austria. The package contract included ski lessons. She was a beginner and was put in the novice ski class. The ski instructor told the claimant to descend a blue run and this run was steeper than any others she had skied on during the trip. At that time, she only had six or seven hours of skiing experience and was observed to be one of the weakest skiers in her class. It was also noted that she was not always in control of her skis at the end of a run.

The claimant alleged she lost control of her speed and direction as she descended the slope, and that consequently she was unable to stop. She fell into a car park and collided with a parked car.

At trial, there were a number of liability issues, including whether the instructor made an accurate and reliable assessment of the claimant’s ability and whether the claimant had herself contributed to her injuries through her own negligence.

However, the two main issues identified by the expert witnesses were the decision by the instructor to take the claimant to that particular slope and also the appropriateness of his Alpine Ski Leader qualification.

The tour operator conceded it was responsible for the proper performance of its obligations to the claimant under the terms of the package holiday contract, and that
the contract did include the supply of skiing tuition. It was also admitted that it was an implied term of the contract that services would be performed with reasonable care and skill, and that the operator was vicariously liable for the acts and omissions of the instructor.

Both parties agreed the instructor had a duty to show the same standard of care as would have been exercised by a reasonably careful parent. This principle was first established in the Chittock v Woodbridge School case. The expected standard of care was further determined by the International Ski Federation rules, which state: “Ski schools, instructors and guides must never allow their pupils to take any risk beyond their capability especially taking into account the snow and weather conditions.”

The claimant also referred to documents prepared by the tour operator, including the tour operator’s handbook for guides, which stated: “Do not be tempted to move into steeper or more difficulty terrain too early”.

In contrast to the Gouldbourn case, the court concluded that the instructor failed to provide the necessary supervision and tuition to comply with the relevant guidance. The judge held that the claimant had not demonstrated the required level of performance for the instructor to make a reasonable decision to advance the group to the blue slope. The tour operator was therefore found to be responsible for the accident.'