England: Package Holiday Case

John Downes's picture

Evans v Kosmar Villa Holidays PLC [2006] EWHC 3417 (QBD)

E, a 17 year old, dived into the shallow end of a pool in the early hours of the morning. He fractured his cervical vertebrae rendering him tetraplegic. The resort premises were exclusively contracted for K’s use. K argued that its duty in respect of those premises was similar to that owed by an occupier under the Occupiers’ Liability Act 1957. It cited cases under that Act claiming that it had no need to tell people what they ought to know already and that E had exercised his own free will in ignoring warnings.

The court pointed out that the claim as made in respect of improper performance of the contract and not under the 1957 Act. It was the PT Regulations that applied. The “free will” argument based on cases under the 1957 Act was not relevant. In any case, there was no proper informed consent on E’s part. The pool did not comply with the FTO’s Health and Safety Handbook. Damages were reduced by 50% for contributory negligence.

This decision was overturned in the Court of Appeal. The FTO handbook has no legal force, it merely provides guidance. It applied the principles laid down by the House of Lords in the case of Tomlinson v Congleton DC [2004] AC 46 in interpreting the 1957 Act. The risk arose out of what C had chosen to do not as a result of the state of the premises and therefore there was no breach of duty. In the case of obvious risks or self-inflicted harm there is only a duty of care where there is no genuine informed choice. K did not have a duty of care to prevent E from diving.

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