The claimant sought damages from the tour operator after he suffered a head injury resulting in incomplete tetraplegia after diving into a shallow swimming pool in the early hours of the morning in a resort in Greece while on a tour run by the defendant.
Held: The defendants’ duty of care did not extend to a duty to guard the claimant against the risk of diving into the shallow end of a pool and injuring himself. That was an obvious risk of which he was well aware.
Richards LJ said: ‘but the core of the reasoning in Tomlinson, as in earlier cases such as Ratcliffe v McConnell [1999] 1 WLR 670 was 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 (subject to Lord Hoffmann’s qualification as to cases where there is no genuine and informed choice or there is some lack of capacity). That reasoning was held to apply not only to trespassers but also to lawful visitors to whom there is owed the common duty of care under section 2(2) of the Occupiers Liability Act 1957 . . I do not see why the reasoning should not also apply to persons to whom there is owed a duty of care in similar terms under a contract of the kind that existed in this case . . Applying that approach here, Kosmar’s duty of care did not extend, in my judgment, to a duty to guard the claimant against the risk of his 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.’
Judges:
Arden LJ, Hooper LJ, Richards LJ
Citations:
[2007] EWCA Civ 1003, [2007] NPC 109, [2008] PIQR P7, [2008] 1 All ER 530, [2008] 1 WLR 297, [2008] 1 All ER (Comm) 721
Links:
Jurisdiction:
England and Wales
Citing:
Appeal from – Kosmar Villa Holidays Plc v the Trustees of Syndicate 1243 ComC 4-Apr-2007
The tour company had lost an action for personal injury by a young man injured on holiday with them in Greece, and now sought an indemnity from its insurers. . .
Cited by:
Cited – Portsmouth Youth Activities Committee (A Charity) v Poppleton CA 12-Jun-2008
The claimant was injured climbing without ropes (‘bouldering’) at defendant’s activity centre. The defendant appealed against a finding of 25% responsibility in having failed to warn climbers that the existence of thick foam would not remove all . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – TUI UK Ltd v Morgan ChD 9-Nov-2020
Tour Co Responsible For injury – Standards Applied
The claimant suffered an injury tripping at a hotel on a package holiday. The company now appealed.
Held: The appeal was refused. A term will generally be implied into a contract for services by operation of law (the 1982 Act s 13) to the . .
Lists of cited by and citing cases may be incomplete.
Personal Injury, Negligence
Updated: 31 March 2022; Ref: scu.260035