'Obvious risk' applied in holiday duty decision

Evans v Kosmar Villa Holidays

(Court of Appeal - 23 October 2007)

While on holiday at an apartment complex in Greece, the claimant sustained serious injuries after diving into the shallow end of the swimming pool. "No Diving" signs were present around the pool because the pool was unsafe for diving.

It was accepted as an implied term of the holiday contract that the defendant would take reasonable care in providing the appropriate facilities at the apartment complex. The claimant argued that the defendant had breached this implied term by failing to ensure the "No Diving" signs were sufficiently prominent. The defendant argued that a duty to warn against the obvious risk of diving into the pool was too onerous and not compatible with the decision in Tomlinson v Congleton BC (2003). The judge concluded that the Tomlinson case had no relevance in the contractual context of this claim and held that there had been a breach of the implied term of the holiday contract.

On appeal, the decision was overturned. The trial judge had been wrong to dismiss the application of Tomlinson and the associated cases dealing with liability under the Occupiers' Liability Acts. The tour operator's contractual duty did not extend to guarding holidaymakers against obvious risks, such as diving into shallow water or water of an unknown depth. As to causation, the court found that it was unlikely the claimant in this case would have taken any notice of more a prominent sign than that already displayed.

COMMENT

The confirmation that principles in cases like Tomlinson apply to accidents while on holiday is good news for the travel industry. Claimants often argue that the terms of holiday contracts effectively provide guarantees for their health and safety abroad. This case emphasises the duty on holidaymakers to retain responsibility for obvious risks they chose to run and not leave their common sense in the departure lounge. - Dafydd Pugh, BLM London.