Mark Lee, partner and head of the travel law team at Penningtons Manches Cooper, has been quoted in articles from both The Telegraph and The Independent about litigation arising from skiing accidents.
The articles come in the wake of the high-profile ski collision trial involving American actress Gwyneth Paltrow, which has focused attention on the potential legal consequences, should a collision occur while skiing.
In this case, Paltrow is defending herself against a claim from retired optometrist Terry Sanderson, who alleges Paltrow collided with him while out of control, causing four broken ribs and a brain injury. Although the claim was initially pleaded at more than $3 million in damages, Sanderson is now seeking a reduced sum of $300,000 for the incident in Utah, USA. Paltrow has countersued.
In The Telegraph article, Mark provides insight on the International Ski Federation (FIS) regulations , which detail the 10 key rules of conduct for skiers at European resorts. As he explains, Rule 1 requires behaviour ‘that does not endanger or prejudice others’. Rule 3, meanwhile, requires skiers up-slope to avoid endangering skiers down-slope – a key element of the Paltrow trial.
In Europe, if an individual is injured in a collision with another skier, the starting point is to clarify if the accident was caused by a breach of one of the FIS rules of conduct. As Mark explains in the article, ‘If an injured party can prove that a skier breached the rules – and that the breach was the cause of the accident – he/she can then recover damages against the negligent skier/their insurer.’
For collisions involving injury in French resorts, there is an additional peculiarity to consider. In those cases, an injured party may not need to prove a breach of the FIS rules of conduct, or the local law, to secure a damages award. This is because French law allows a claimant to rely on the principle of ‘strict liability’. This raises an assumption that the other skier was at fault, because the injuries resulted from a (potentially) dangerous item in their custody ie their skis.
When this principle is relied upon, a defendant will be liable to pay damages, unless they can prove the accident was the fault of the victim, or that it was caused by a ‘force majeure’ - ie an unforeseen event that could not be avoided.
In the article from The Independent, Mark answers some further queries about skiers’ legal rights when out on the slopes. Responding to the question ‘Who has right of way on a ski slope?’, he highlights the similarities between the FIS rules and the rules of the Utah Park City Municipal Code, which are particularly relevant for Paltrow’s case. Both sets of rules expect skiers to ‘exercise reasonable care’. The Utah Park City Municipal Code also has its own version of FIS Rule 3, putting responsibility on an uphill skier to ‘avoid collision with any person or object below him’.
Speaking on the Paltrow trial specifically Mark highlighted another key element of the case: ‘It is alleged her guide did not provide assistance to the injured skier.’ This is regarded as ‘a cardinal sin’ under FIS rules. Every skier is considered ‘duty bound to assist’, and failure do so in some EU jurisdictions ‘may even result in a criminal offence’.
Finally, Mark was asked to comment on the approach adopted by travel insurers and the Financial Ombudsman regarding cover, should an incident occur whilst a holidaymaker is inebriated. He explains that: ‘The majority of travel insurance policies exclude cover for events that happen after excessive alcohol consumption – but that doesn’t mean holidaymakers will only be covered if they don’t drink at all.’
Ultimately, it is ‘generally accepted by the Ombudsman that holidaymakers are going to enjoy a few drinks… so cover will usually only be excluded if there is clear evidence the policyholder was highly inebriated at the time of the incident’.
The high-profile nature of the Paltrow case means many people are interested to learn the outcome of the trial. Wall to wall media coverage has shone a spotlight on the inherent risks of skiing – and the rules of conduct which govern the many thousands who take to the slopes each year.
To read the full Telegraph article on the increasing opportunities for ski litigation, click here (subscription required).
To read the full Independent article on skiers’ legal rights, click here.