SKIING ACCIDENTS
So we come round to that time of
year again when many people discover to their cost that, whatever one’s level
of competence, launching oneself off the edge of a mountain on two bits of wood
is not always as good an idea as it sounds. Usually, a skier will have only
himself to blame, but in some circumstances it may be possible, and worthwhile,
to bring a claim.
The usual suspects will be:
(a) The
person with whom the claimant collided.
(b) The
ski instructor or supervisor
(c) The
equipment provider
(d) The
tour operator
Collisions
Most accidents which give rise to a
claim will be where the claimant came into collision with another skier. Assuming
that the defendant can properly be pursued in an English court (a question for
another article), liability can normally only be established upon proof of
negligence, which usually involves establishing that the defendant’s skiing in
the immediate run up to the accident breached one of the 10 internationally
recognised Rules for Conduct laid down by the Fédération Internationale de Ski.
All 10 Rules are underpinned by
common sense and respect for one’s neighbour and breach of any one of these
rules may well be an indication of negligence. The rules most often invoked in
this connection are Rule 1, ‘Do not endanger others’, Rule 2, ‘Adapt
the manner and speed of your skiing to your ability and the general conditions
on the mountain,’ Rule 3, ‘The skier/snowboarder in front has priority –
leave enough space’, Rule 4, ‘Leave plenty of space when overtaking a slower
skier/snowboarder,’ and Rule 6, ‘Only stop at the edge of the piste or
where you can easily be seen’. Rule 3 is of particular importance – a
skier who was higher up the piste and came into collision with a skier in front
of him will have an uphill struggle rebutting what is almost a presumption that
he was to blame for the accident. Disputes of fact (and it seems to be a
particular feature of skiing claims that each skier is under the impression
that he was the skier in front) can be particularly hard for a judge to resolve
in the absence of independent witnesses. Accordingly, any skier involved in a
collision would be well advised to obtain at least the name and address of
anyone in the vicinity who might have seen what happened, see Lyon v
Maidment [2002] EWHC 1227 (QB) where the claimant failed in his claim
essentially for lack of corroboration of his version of events.
Where, as will usually be the case,
the skiing accident happened outside the UK, the law applicable to the determination
of liability may be the law of that foreign country (also a question for
another article). It is often worth making further inquiries of a local
lawyer. In France, for example, Article 1384 of the Civil Code places
responsibility on any person for damage caused by objects under his control.
French courts have long interpreted this as providing for a form of strict
liability for one’s skis, snowboards, poles etc whereby, where two or more
skiers are involved in a collision on the slopes, each is liable for the other’s
loss and damage (if there is any), thus avoiding any need to determine the
precise circumstances of the accident, to decide negligence or to apportion
responsibility.
Supervision
But many skiing injuries do not
involve a collision with another person. A frequent cause of injury is the
skier losing control and falling over through his own lack of skill or excessive
speed or from skiing outside his comfort zone. It may nonetheless be possible
to establish liability if the claimant was skiing under supervision. He may not
have been taught the Rules of Conduct, he have been asked to ski a run beyond
his capabilities, or been placed into a group of people of a much higher
standard. He may not have received sufficient instruction, or he may have been
left to his own devices rather than being guided down the piste, all breaches
of the FIS safety rules for instructors. It is part of the job of a ski
instructor to teach his student, in the sense of pushing him beyond what he
could do at the beginning of the tuition, but this must be done in a sensible
manner, with the responsibility for assessing what the pupil is capable of
resting at almost all stages with the instructor rather than the pupil.
In Chittock v. Woodbridge School [2002] EWCA Civ 915, the Court of Appeal had to consider the duty owed by
organisers of a school trip to a 17½ year old boy who sustained serious spinal
injuries whilst skiing on a red run otherwise well within his capabilities on a
school trip. His parents and the school had agreed that he could ski
unsupervised but under the school’s general supervision. He and two friends
had skied off piste on two occasions and had been warned about their behaviour,
but no steps had been taken other than reprimand them. Contrary to the judge
at first instance, the Court of Appeal accepted that it was reasonable for the
school not to have withdrawn his ski pass or ordered him to ski under
supervision, noting in any case that supervision does not preclude a skier from
making errors of judgment. Had the school been liable, the judge’s finding of 50%
contributory negligence was said to be unassailable.
Equipment
The other common cause of complaint
by skiers after an accident is of malfunctioning or incorrectly adjusted
equipment. Typically this will involve a ski binding that does not release
when the skier falls. Nowadays, almost every ski hire shop will ensure that its
staff are trained to assist skiers in selecting and adjusting skis, boots and
ski bindings. But it is not uncommon that bindings are faulty and do not
release, or the wrong setting is used when fitting boots, or a learner may even
occasionally find himself provided with skis designed with a professional in
mind. If the equipment is faulty, and photographs are taken before it is taken
back by the shop, a claimant should not have too many difficulties establishing
liability. But establishing negligence in the way in which the equipment has
been fitted or adjusted may be far more troublesome. Assistance might come
from the type of injury suffered. Developments in modern ski bindings have
meant that lower leg fractures are nowadays a far less common outcome of a
skiing fall than knee injuries. If a claimant suffers a tibial fracture, it is
not infrequently accepted that this is because the binding was not correctly
set and so failed to release when the skier fell, or because it was defective.
In the unreported case of Rochead v. Air Tour Holidays Ltd (2000,
Central London CC), the trial judge accepted expert evidence suggesting that
the failure of the ski binding to release when the claimant fell and suffered just
such a tibial fracture must have been the fault of the ski hire shop in wrongly
fitting or adjusting the binding. By contrast, if a skier suffers a knee
injury, this is not necessarily indicative of a fault in the binding or
setting, even if the ski was not released when the skier fell over. The
mechanism of these injuries is much more complicated, which can make it
difficult to prove causation. In these cases, more specific evidence as to the
circumstances of the accident may be required in order to establish liability
against the equipment supplier.
Tour operators
This is not the place for a lengthy analysis
of tour operator negligence. Nonetheless if a claimant was injured skiing it
may well prove fruitful to investigate how the ski holiday was arranged and
purchased. Under the Package Travel (Etc) Regulations 1992 a package holiday
is a pre-arranged combination of at least two of travel, accommodation or other
tourist services not ancillary to transport or accommodation and accounting for
a significant proportion of the package. That might well cover holidays where
flights or travel on the ski train were booked along with accommodation, or
where accommodation was booked along with ski lessons, or flights with ski
hire, ski passes and instruction, for example. The ‘other party’ to a contract
for a package holiday (which could be a tour operator, or a travel agent or
even, potentially, the colleague who organises the work ski trip year after
year) finds himself liable under Regulation 15 for a failure or improper
performance of the contract without being personally at fault himself. If the
claimant finds himself in the common position of being sold a ‘ski pack’ for
skis or lessons by the tour operator on the way to the resort, as happened to
the claimants in Gallagher v Airtours plc [2001] CLY 4280 and Rochead (above), he is likely to have real difficulty establishing that either the
provision of equipment or tuition, however fundamental to the holiday booked
and however negligently provided, formed a part of the package to which the
Regulations applied. But if provision of ski lessons or ski equipment was part
of the package, and there was negligence which caused the claimant injury, the
claimant may find himself in the fortunate position of being able to sue a
company based in England rather than trying to establish liability against a
foreign ski hire shop.
Katherine Deal
November 2006
