In the landmark James Evans v Kosmar Villa Holidays plc (23 October 2007) case, the Court of Appeal has finally defined the extent of a tour operator’s duty of care and the status of the Federation of Tour Operators’ (FTO) health and safety guidelines.
In August 2002, Mr Evans (who was just short of his 18th birthday) was holidaying with a group of friends in Kavos, Corfu, booked through Kosmar Villa Holidays plc (Kosmar). On the fifth day of his holiday, in the early hours of the morning, he dived into the shallow end of the pool and hit his head on the bottom, sustaining serious injuries that resulted in incomplete tetraplegia. He brought a claim for personal injuries against Kosmar, who, at trial, was found liable, subject to a finding of 50% contributory negligence. Kosmar appealed.
Basis of the claim
The claim was based on three implied terms. The first was that the facilities at the apartments – in particular, the swimming pool and its surroundings – would comply with local regulations and safety standards applicable in Corfu in 2002. In the event, the apartments and the swimming pool did hold the necessary operating licence from the Greek tourist authorities. The Court of Appeal nevertheless considered and reaffirmed the principle laid down in Wilson v Best Travel Ltd (1993) that the standard to be applied to a hotel abroad is that a hotel (or an apartment) must comply with local safety regulations rather than British safety standards.
The second implied term was that the facilities at the apartments would be of a reasonable standard, in accordance with the recommended minimum standards laid down by the FTO. These standards are often relied on by claimants and it was argued before the Court of Appeal that they lay down internationally recognised and uniform standards. Lord Justice Richards was having none of it, however. “In my view,” he said, “the [FTO] handbook is referred to correctly as guidance. It is advisory in character and has no legal force. It does not lay down standards with which Kosmar is required to comply.”
The case therefore came down to the court’s interpretation of the third implied term –that reasonable skill and care would be exercised in the provision of the facilities and services at the apartment complex and, in particular, at the swimming pool and its surrounding area. Both parties accepted that there was such an implied term. The dispute was over the scope of the duty of care and whether, in these particular circumstances, Kosmar was in breach of that duty.
At trial and before the Court of Appeal, Kosmar argued that it had no duty to guard against the risk that diving into shallow water (or into water of unknown depth) may cause injury. That risk was obvious to an ordinary able-bodied adult such as Mr Evans and, on his own evidence, he knew of that risk and was able to assess it for himself. He took a deliberate decision to dive into the swimming pool in the early hours of the morning when the pool lighting was off; and Kosmar had no duty to warn him against doing that or to take other measures to stop him from doing it.
Kosmar said that its duty should be assessed in line with the approach adopted by the House of Lords in Tomlinson v Congleton Borough Council (2004). This case concerned a claimant who had broken his neck diving into a shallow lake, despite the presence of prominent warning notices. Mr Tomlinson based his claim on a breach of the duty of care owed to him as a trespasser under section 1 of the Occupiers’ Liability Act 1984.
In rejecting the claim, Lord Hoffmann considered what the position would have been if the claimant had been a lawful visitor owed the common duty of care under section 2(2) of the Occupiers’ Liability Act 1957. In such circumstances, there is “a duty to take such care as, in all the circumstances of the case, is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”.
When assessing whether that duty has been discharged, an important consideration is the issue of free will and whether people should accept responsibility for risks they choose to run. In Tomlinson, the claimant was freely and voluntarily undertaking an activity which inherently involved some risk. In the court’s view, the defendant local authority owed no duty under the 1957 Act requiring it to take any steps to prevent the claimant from diving or warning him against dangers which were perfectly obvious.
The Court of Appeal in James Evans also looked at the earlier Ratcliff v McConnell (1999) decision, which concerned a claim by a trespasser who had dived into a closed swimming pool at night. Giving the main judgment in Ratcliff, Lord Justice Stuart-Smith pointed out that the danger of someone diving into a pool where there was insufficient water to accommodate the dive was a danger that was common to all swimming pools. There is no uniformity of shape, size or configuration of swimming pools. The danger is obvious to any adult and indeed to most children who are old enough to have learnt to dive. He continued “…even in the case of a lawful visitor there is no duty to warn of a danger that is apparent…”
Tort and contract
This line of authority was put before the trial judge, who rejected it on the basis that they were all cases in tort, under the Occupiers’ Liability Act, whereas Mr Evans’s claim was in contract and for breach of statutory duty. Lord Justice Richards said that this was the fundamental issue in the case. The key question was whether the conclusion reached in Tomlinson and Ratcliff that people should accept responsibility for the risks they choose to run – and that there should be no duty to protect them against obvious risks – could be applied to a case where there was a contract between a holidaymaker and a tour operator. Lord Justice Richards thought that it could.
Following this line, he said: “Kosmar’s duty of care did not extend… to a duty to guard the claimant against the risk of diving into the pool and injuring himself. That was an obvious risk, of which he was well aware. Although just under 18 years of age, he was of full capacity and was able to make a genuine and informed choice. He was not even seriously affected by drink.”
Accordingly, “there was no duty to give the claimant any warning about the risk of diving into the pool, let alone to have better placed or more prominent signs than those actually displayed, or to take any other step to prevent or deter him from using the pool or from diving into it. [His dive] and its terrible consequence are matters for which he must take full personal responsibility.”
Although this was enough to allow the appeal, the court went on to consider the trial judge’s findings on causation, which caused them considerable concern. The trial judge had decided that causation was established on the basis that the claimant had acted in a brief state of inadvertence, and that better placed and more prominent warning signs would have brought him to his senses before he actually dived in. In arriving at this decision, the judge may have been swayed by photographs of signage put up after Mr Evans’s accident.
Lord Justice Richards noted that, on his own evidence, Mr Evans had not previously seen or taken in (even in daytime) anything that indicated the existence of the pool’s shallow end. In particular, he had not seen the steps that were close to the point from which he dived in, and the accident occurred in the hours of darkness when the pool itself was unlit. Lord Justice Richards continued:
“In all the circumstances, if “no diving” signs of the kind that were put up after the accident had been present at the time of the accident, I think it improbable that they would have made any difference: it is unlikely that the claimant would have seen them or taken them in, nor would they have operated to bring him to his senses and prevent the accident… It is also unlikely that additional signage would have stopped other people from using the pool and diving in, or therefore from setting the example which the claimant said he followed.”
In these circumstances, the court decided that – even if a breach of duty had been established (which it had not been) – the claim would still fail for lack of causation.
Need for caution
This is a significant victory for tour operators who, for many years, have been faced with claims from holidaymakers who have thought that the mere fact of travelling abroad in some way allows them to abrogate responsibility for their own actions to the holiday company.
It may also persuade claimant’s solicitors and defence costs insurers to tread more carefully in future. In particular, they may want to be cautious about pursuing claims on behalf of severely injured holidaymakers in the hope that the potential sums involved will persuade the tour operators’ insurers to compromise the claim, thus allowing them to recover their fees at an enhanced rate under the provisions of a conditional fee agreement.