14.11.08  

Claimant rendered tetraplegic by skiing accident succeeds in claim; ski instructor should not have allowed him to ski in off-piste area  

As a result of a skiing accident on 7 February 2004 Mr Anderson sustained injuries which rendered him tetraplegic. He alleged that the ski instructor to whom he was assigned for the duration of his holiday should not have permitted or encouraged him to ski in the off-piste area where the accident occurred. On arrival on their holiday Mr and Mrs Anderson were assigned to a group with varying levels of experience. Two days before the accident Mr Anderson had found a relatively easy off-piste run challenging. On the day of the accident the instructor proposed that they ski down a steep offpiste slope with trees. In the course of his descent Mr Anderson lost control and collided with one of the trees.  

Held: At the time of the accident three of the group, including Mr Anderson had not mastered to a sufficient level the skills necessary to undertake a piece of off-piste terrain of the nature of that in question in reasonable safety. It was reasonably foreseeable that any one of these would have fallen or lost control of their skis when negotiating the terrain. In addition, there was a reasonably foreseeable risk of impacting with a tree and a foreseeable risk of this resulting in serious injury. On this basis the instructor was liable for the accident but there was contributory negligence on the part of Mr Anderson of one third to reflect his failure to protest or comment prior to the descent.  

Comment: This decision appears to go against recent decisions in favour of Defendants in public liability claims such as Poppleton v Trustees of the Portsmouth Youth Activities Committee [2008] where the Defendant was found not liable where a Claimant who chose to engage in simulated rock climbing was rendered tetraplegic by a fall. However, the key distinguishing feature is that in Anderson the ski instructor assumed a responsibility for the safety of those in his care.  

The Judge was keen to emphasise that this decision does not mean that anyone who suffers injury as a result of a skiing accident or when under the supervision of an instructor will win damages. He stated that “Everyone recognises that skiing is an inherently risky pastime and accidents causing injuries, sometimes very serious, will occur, more often than not without negligence being established on the part of anyone involved.”  

However, potential Defendants and their insurers, both in the skiing industry and more generally those involved in leisure activities undertaken under supervision of an instructor, will doubtless be concerned by this finding of liability. They will want to carry out a review of procedures and risk assessments and ensure that instructors are aware of their responsibility to assess skill levels before activities are undertaken.