Compensation & Winter Sports, oh, and some common sense

The recent case of Parker and TUI UK [2009] EWCA (Civ. 1261) serves to remind the victims of potentially foreseeable accidents that compensation is not always available to those who embark on hazardous adventures. In the case, Mrs Susan Parker had suffered a personal injury whilst on a winter holiday at a popular Austrian ski resort. The specific details of the case are such that Mrs Parker, who suffers from MS, lost control of her toboggan having remounted it against the general advice of the tour operator. Unfortunately, Mrs Parker’s loss of control over the toboggan resulted in her crashing into a number of frozen bales of straw, which caused serious injuries to her legs. Giving judgement in the case, Lord Justice Longmore agreed that, on the facts, the tour operator could not be held liable for the injury.

Lord Justice Longmore’s decision was based on two crucial points: first, that the tour operator acted with sufficient responsibility in briefing the group of holidaymakers both on the bus and at the summit of the mountain that a flashing red light would signal the end of the run, which was the point at which they must get off their toboggans; and, second, that rational adults ought to be aware of obvious dangers. In respect to the first point, however, the tour operator failed to elucidate the reasons behind such a request and no guide was present at the end of the toboggan run to ensure that the customers would adhere to prior instructions and warnings.

In the event, Mrs Parker and Mrs Owens decided that the road adjacent to the toboggan run was too slippery to walk on, so, instead of moving to the side of the road where there was deeper snow, which would no doubt have offered more grip and safety, the pair opted to ignore the tour operator’s instructions by remounting their toboggans, which resulted in the injury to Mrs Parker. In determining whether the tour operator was liable for Mrs Parker’s injuries, Lord Justice Longmore had to decide whether the duty of care that existed between the defendant company and its customers had been discharged when Mrs Parker chose to ignore safety warnings by remounting the toboggan. On the findings, it was apparent that any specific safety examination of the area beyond the end of the toboggan run would have resulted in similar action being taken by the tour operator in so far as its customers would have been advised not to remount their toboggans. Accordingly, the duty of care was found to have been discharged at the point at which Mrs Parker chose to ignore warnings.

Nevertheless, on the second point, there remains considerable doubt as to whether the tour operator acted sufficiently in respect to “rational adults”, as Lord Justice Longmore described them. Indeed, whilst it is apparent on the facts that the tour operator’s responsibility for Mrs Parker was temporarily severed by her actions, it is still necessary for such operators to provide all the necessary guidance and safety measures to ensure that their customers do not suffer injury. Furthermore, it is unclear as to whether Mrs Parker’s prior health condition was ultimately responsible for her choosing not to walk down the slippery road. In this respect, tour operators are required to provide adequate safety measures for all of their customers – not just “rational adults”. In any case, if an individual suffers a personal injury whilst on holiday, it is essential that they contact a specialist solicitor on a no-win-no-fee basis in order to assess the possible liability of another party.

Make a Claim