Volltext

Lord Justice Leveson:


1. In a reserved judgment dated 6 August 2009 His Honour Judge Worster dismissed the claim for damages and personal injury brought by Mrs Karen Gouldbourn against Balkan Holidays Limited in respect of an injury that she sustained on 17 February 2004 when she fell on a ski slope during the course of a six day package holiday to Bulgaria. She now appeals against that decision by leave of Smith LJ.

2. Although a number of allegations were initially pleaded against the holiday company, by the time of the trial, the central allegations of negligence were that the ski instructor had failed adequately to assess Mrs Gouldbourn's skiing ability, had taken her to a slope that was too difficult for her and had failed to "maintain sufficient instruction and/or dialogue with [her] whilst on [that] run in order to ensure her safety".

3. The background facts are as follows. On Saturday 14 February 2004 Mrs Gouldbourn and her husband flew from Manchester to Sofia for a week's skiing holiday with Balkan Holidays at the Bansko Resort Bulgaria. As part of the package, they booked a six-day learn-to-ski pack at a cost of £89 each: she had never skied before and the learn-to-ski pack was specifically designed for beginners.

4. The ski school was run by Ulen AD, a local operator, and they attended for the first time on the day after they arrived, Sunday. Their instructor was a Mr Damianov, who was a Grade C instructor with six years experience. Grade C is the highest grade for instructors in Bulgaria. Unfortunately the weather was poor and not much skiing was possible. The following day, Monday, the lesson began at 10.00am on the nursery slope, which was a large area with a shallow slope. There were about 12 people in the class, a mixture of complete novices (as Mr Damianov knew Mrs Gouldbourn was) and some who had skied before. They practised snowplough braking, turns and the use of lifts. She did not remember falling over on the nursery slope, which the judge observed was some indication of her progress, but another member of the class, Mrs Mackay gave evidence that although some were more adept in picking up the basics, some (including Mrs Gouldbourn) were struggling.

5. On the Tuesday, the morning was again spent on the nursery slopes, practising the same moves as the previous day. Both Mrs Gouldbourn and Mrs Mackay felt that Mr Damianov was pushing them perhaps quicker than was appropriate. Suffice to say that, at lunchtime that day, he informed the group that he wanted to take them up the mountain, which he said was just like the nursery slope and very easy. Mrs Mackay said that two of the group refused to do so.

6. For the sake of completeness, I ought to add that there was an issue at the trial about whether the run on to which they were taken, the lower section of the Tordorka run, was a part of a red run and too difficult for novices: it is unnecessary to rehearse the comparatively extensive evidence on this topic because the judge concluded that the lower section of Tordorka was a regular next step for beginners progressing from the nursery slope and not inappropriate for beginners. He was not satisfied that it was too steep for her and rejected the pleaded negligence which alleged the contrary.

7. Returning to the day of the accident, Mrs Gouldbourn explained that although she was not altogether happy with the position, she travelled up the ski lifts with Mr Damianov. She got to the top of the lower section of the Tordorka. There was no instruction at the top of the run before they went down. Mr Damianov told the group to follow him and he set off. Mr Gouldbourn went first, then his wife and then Mrs Mackay. Mrs Gouldbourn completed two snowplough turns but on the third turn she lost control, was unable to stop and fell injuring her knee. Mrs Mackay saw her fall, Mr Damianov came back up the slope to help and Mrs Gouldbourn was taken down the mountain. The judge explained that there were some justifiable complaints about the lack of care she received in that process.

8. Having rejected the allegation that the skiing party was taken to a slope that was inappropriate for beginners, the main issue at the trial was whether Mr Damianov had exercised reasonable care and skill in his assessment, instruction and supervision of Mrs Gouldbourn. Mr Damianov, who no longer worked for the ski school, did not give evidence. The judge did, however, hear from Georgi Glavcev, who is a representative of Ulen AD, the ski school who were Part 20 defendants deemed to admit the claim by Balkan Holidays Limited and bound by the main judgment, although he was in fact called by Balkan Holidays. Additionally two experts gave evidence, Mr Fred Foxon for the claimant and Dr Tabar for the defendant.

9. Mr Glavcev confirmed there was a programme to which every day the instructors worked. Depending on the weather, every group was supposed to do the same activities at the same date and time although if a group was progressing very slowly they may not be taken to the lower section of Tordorka on the third day; it was a matter for the instructor. The judge summarised the evidence from the experts on this approach in this way :

"27. Mr Foxon gave evidence that this type of proceduralised system with its set progression of activities was common in the 1950’s to the 1970’s but that since the 1980’s the practice in western Europe had become more client centred. However Mr Foxon did not confess to be an expert in the practice of ski schools in Bulgaria, a country which is usually described as being in eastern Europe, and which is a relative newcomer to the ski holiday market. The procedural approach meant that people had to sink or swim. If they didn’t keep up, they were shed from the class. His evidence was that it did not deal with the psychological aspect of skiing"

10. As to the instructor's instruction at the top of the slope the judge went on:

"Mr Foxon's view on this aspect of the case (based upon his expertise in relation to the client centred approach in western Europe) was that saying ‘follow me’ was far from enough. Dr Tabar was a little more robust. He pointed out that you have to start somewhere. Teaching by demonstration was common and something he did when teaching beginners. He said that he thought he would give some greater explanation, saying turn when I turn, and go a few turns and wait. He would always have the needs of the weakest member of the group in mind. But again he had no experience or knowledge of the standards applicable or teaching methods used in Bulgaria. He said that he did not have enough evidence to come to a judgment as to the level of instruction given to Mrs Gouldbourn. "

11. As the assessment which Mr Damianov should have made of Mrs Gouldbourn, whom Mrs Mackay described as struggling, the judge reserved that he had no evidence as to what assessment he did in fact make or what assessment he should have made on the basis of that evidence by reference to the standards of teaching practice in Bulgaria.

12. Turning to the approach of HHJ Worster to the law, it was common ground that, both expressed in clause 92 of the contract and also provided by regulation 15 of the Package Travel, Package Holidays and Package Tour Regulations 1992 ("the Regulations"), Balkan Holidays Limited were liable for proper performance of the obligations under the contract irrespective of whomsoever provided the particular service in question. As to the test, Mr Poole successfully argued that the proper test was whether Mr Damianov exercised reasonable care and skill as a ski instructor in Bulgaria, which required an analysis of local standards rather than the standards that might be applied in this or any other country. As a result the judge concluded :

“…on western European standards Mr Damianov probably failed to assess her ability correctly and was too quick to take her up on to this slope and given that she had missed most of Sunday's skiing through bad weather and was ‘struggling’ on the nursery slopes. Adopting a client centred approach he may well have pushed her too hard and failed to give her necessary encouragement and instruction at the top of the slope. There are issues as to whether any of that had a causative effect. On the balance of probabilities I would be prepared to find that had she had some more practice before going up onto the slope she would probably have been able to manage her snow plough turns and stops sufficiently well to avoid the sort of disastrous fall she had on the Tuesday afternoon. Alternatively had she been given the option at the time of considering it at the top of the slope on Tuesday afternoon, she would have probably not have skied down it, but would have joined the other 2 members of the group who decided to sit out the session.

44. That said, on the central issue of negligence, I am driven to the conclusion that Mr Damianov's conduct must be judged against the relevant local standards, and that I have no evidence which can satisfy me that he has failed to show reasonable care by reference to such standards. It may be that he fell below those standards but that is not something which I can properly infer from the evidence I have heard."

The question for this court is whether that approach is correct.

13. Before the judge and in this court Mr Clarke argue that the proper standard to be applied in the assessment of the behaviour of the instructor was to be derived from the handbook issued by the Federation Internationale de Ski ("FIS") the international body for enabling competition rules, safety standards and other matters within the sport of skiing, to which at all material times the Bulgarian Ski Federation was affiliated. Mr Fox explained that although its Security and Conduct Handbook did not have the force of law the rules were frequently used as a basis on which judgments were made. Under the heading “The Ski Schools, Instructors and Guides”, there is the following guidance :

"1. The ski school's instructors and guides must teach pupils how to ski safely, which means teaching the technical skiing and the rules of conduct for skiers
2. The ski schools are responsible for placing their pupils into different classes according to their standard of skiing.
3. The ski schools, instructors and guides must never allow their pupils to take any risk beyond their capabilities, especially taking into account the snow or weather conditions
4. The instructors must remind their pupils that during instruction they have no particular priority on the piste and that they should at all times respect the rules and conduct for skiers."

As Jacob LJ observed in argument, these rules cast the duty on a very broad basis.

14. Mr Clarke bases his argument on the decision of Phillips J as he then was in Wilson vBest Travel [1993] 1 All ER 353. The case arose out of an accident sustained by a holidaymaker in Greece who fell through a glass balcony door at the hotel at which he had booked to stay. The glass in the door complied with Greek standards but was not toughened as would have been required in the UK. Phillips J said at page 358c:

“Save where uniform international regulations apply, there are bound to be differences in safety standards applied in respect of many hazards of modern life between one country and another. All civilised countries attempt to cater for those hazards by imposing mandatory regulations. The duty of care of the tour operator is likely to extend to checking that local safety regulations are complied with. Provided that they are, I do not consider that the tour operator owes a duty to boycott a hotel because of the absence of some safety feature which would be found in an English hotel unless the absence of such a feature might lead a reasonable holidaymaker to decline to take a holiday at the hotel in question."

15. He argues that in connection with this particular activity there are indeed uniform international regulations which do govern the obligations owed by ski instructors to those who they are instructing. He points to two first instance decisions which he submits support that decision. The first is Lyon v Maidment[2003] EWHC 1227 in which, in relation to a claim following a ski accident in Andorra, it was accepted by the defendant that the FIS rules governed the conduct of skiers and that breach would result in civil liability for any injuries caused although the claim failed in any event. The second is Anderson v Lyotier [2008] EWHC 2790 (QB). That accident occurred in the French Alps. It was submitted that there was no suggestion that evidence of local standards was required but implicitly that the standard imposed by FIS rules applied.

16. I am afraid I do not find either of these cases helpful. In the first the issue was the way in which the accident happened and the concession, which was clearly not argued, took the case no further. In the second it was conceded at paragraph 8 that investigation into French law revealed no significant points of difference between it and English law in relation to the issues in the case, so the court would be asked to resolve the disputes solely according to the principles of English law. Far from implicitly accepting the FIS rules, by investigating French law the concession demonstrates local law did or at the very least could remain relevant. Mr Poole for Balkan Holidays recognised in the lower court and in his skeleton argument in this court the authority of Wilson and pointed to subsequent decisions which affirmed it. Thus in Codd v Thompson Tour Operators [2000] CA B2/2199/1321 this court dealt with an injury caused in the door of a lift in a Spanish hotel, the mechanism of which would not have complied with regulatory standards in the UK but was properly designed, maintained and serviced in accordance with prevailing Spanish standards at the time. The court referred to Wilson and observed that there was no requirement that a hotel in Majorca complied with British safety standards.

17. A similar approach was taken by Goldring J, as he then was, in deciding Holden v First Choice & Flights Limited (22 May 2006, unreported). This concerned a fall from a flight of steps in a hotel in Tunisia. The county court Recorder found that the claimant probably slipped on liquid and then analysed the requirements of safety, drawing inferences about Tunisian standards. Goldring J said that inferences were "no substitute for evidence for what is local custom and what may be the local regulation". There being no evidence in that regard produced by the claimant he concluded that she had failed to prove a failing short of those standards.

18. This case has been taken to entrench the need for evidence of local standards and indeed in this case paragraph 1(d) of the Defence asserts that the relevant standard of care had to be judged by Bulgarian standards, and this contention was not challenged either in reply or the skeleton submissions filed on behalf of Mrs Gouldbourn at the trial. Neither is a breach of the FIS rules pleaded. In any event, argues Mr Poole, the FIS rules are general principles rather than regulations adopted by all skiing nations as best practice. They establish the general duty of care, that is to say in this case the duty never to allow a pupil to take risks beyond their capabilities, but the implementation of that duty, namely how a particular country goes about ensuring it, is a question of local standards and arrangements and, given that the absence of any evidence on this topic notwithstanding the clear identification of the issue in the Defence, the claim is rightly dismissed.

19. It is a mistake to seek to construe the judgment of Phillips J as if it was a statute: see the observations of Richards LJ in Evans v Kosmar Villa Holidays PLC[2008] 1 WLR 297 at para 224 page 3068 to the effect that the case did not purport to be an exhaustive statement of the duty of care. Nevertheless it does identify a very important signpost to the correct approach to cases of this nature, which will inevitably impact on the way in which organisations from different countries provide services to UK tourists. To require such organisations to adopt a different standard of care for different tourists is quite impracticable. What might be required for American tourists may well be different to that required by a French or Western European tourist, itself different to that required by a Japanese tourist. Neither do I consider that the Regulations impose a duty on English tour operators to require a standard of care to be judged by UK criteria or necessarily western European criteria.

20. In my judgment the reference to “uniform international regulations” is intended to do no more than include into any assessment of the standard of care those standards which the relevant country has accepted and adopted. Thus, I agree that a general requirement never to allow pupils to take any risk beyond their capability imposes a duty of care to pupils in that regard, but it does not identify or mandate the way in which that duty should be fulfilled.

21. It is clear from the judgment that HHJ Worster was not prepared to impose western European standards, as opposed to what he considered to be the procedural approach, and it is noteworthy that although Dr Taber said that he would have given some greater explanation, he had no knowledge or experience of the standards applicable or the teaching methods in Bulgaria. As the judge observed in paragraph 42:

"I cannot properly assess breach of a duty of care in Bulgaria simply by reference to the section of the rather general FIS rule I referred to above. This is not a case of simple breach of local and international regulations but whether an instructor exercised reasonable care and skill. That is to be judged against the prevailing local standards"

22. The crucial finding of the judge was that the slope to which the novice group was taken not an inappropriate choice of terrain. Although Mrs Mackay put Mrs Gouldbourn in the struggling category, there is no evidence that she demonstrated to Mr Damianov that her lack of experience should have led to his decision not to take her onto that slope on that day. The FIS rules equally make it clear that "skiing like all sports entails risk".

23. Unhappy though this accident was, and with real sympathy for Mrs Gouldbourn, in my judgment HHJ Worster was entitled to the conclusion that he came to and in the circumstances I would dismiss this appeal.