As thousands of UK skiers enjoy excellent snow conditions in the Alps, Mark Lee considers the recent case of Kearne v Ultima Tours Ltd, which involves a claimant injured during the course of a ski lesson.
Ms Kearne was a 15-year-old enjoying a school skiing holiday in Hochfugen, Austria. Her package contract included ski lessons.
At the time of the accident, 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 incident occurred when the ski leader told the claimant to descend a blue run. This run was steeper than any others she had skied on during the trip. The claimant alleged she lost control of her speed and direction as she descended the slope, and consequently overtook the leader and was unable to stop. At the bottom of the slope, she skied into a car park and collided with a parked car.
At trial, there were a number of liability issues, including whether the leader made an accurate and reliable assessment of the claimant's ability and also whether the claimant was partially responsible. However, the two main issues identified by the expert witnesses were the decision by the leader 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 pursuant to the package contract, and that the contract did include the supply of skiing tuition. It also admitted that it was an implied term of the contract that services would be performed with reasonable care and skill, and that it was vicariously liable for the acts and omissions of the leader.
Both parties agreed the ski leader had a duty to show the same standard of care as would have been exercised by a reasonably careful parent (see also Chittock v Woodbridge School). The expected standard of care was further determined by the International Ski Federation rules - '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' - and also documents prepared by the tour operator, including the tour handbook for guides, which states 'Do not be tempted to move into steeper or more difficulty terrain too early'.
In all the circumstances, the court concluded that the ski leader 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 100% responsible for the accident.