England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BRIGHTON COUNTY COURT
His Honour Judge Simpkiss
Claim No. 6BN06286

		Royal Courts of Justice Strand, London, WC2A 2LL
		27/11/2009

Lord Justice Longmore:

1. Mrs Susan Parker unfortunately suffered serious injury while she was on a holiday in Austria booked with the Defendants, to whom I shall refer as "TUI"; and whose trade name was Thomson (or sometimes Crystal). The accident occurred, after Mrs Parker had completed a toboggan run, on the evening of 29 December 2003 when she remounted her toboggan and it careered into frozen straw bales placed as a barrier between the end of a slope leading down from the finishing point of the toboggan run and a road for vehicular traffic.
2. Sometime in about early December 2003 Mrs Parker, her husband and their two sons booked a skiing holiday at Mayrhofen with their friends Mr & Mrs Owen and the Owens' daughter. The booking was made with TUI for the week 27 December – 3 January 2004. The package included the hotel and the flight but made clear that ski equipment, ski passes and any lessons had to be booked separately. The internet brochure stated that tobogganing was available at the resort. It was not part of the pre-arranged package and for that reason the Package Travel Regulations 1992 had no application.
3. Mrs Parker suffered (and still suffers) from multiple sclerosis and, although she had been on skiing holidays with her husband before, she was a much less keen skier than he. On the first day of her holiday she did light skiing with an instructor but did not ski on the 29 December. She was having tea at about 5.00p.m. in the company of Mrs Owen who told her that she had noticed that there was a possibility, of participating in an evening toboggan event mentioned in the welcome pack which the tour operator had given to the holiday-makers on arrival at their hotel. They then saw Ms Nicci Hughes who was one of TUI's representative at the resort and had welcomed the group on their arrival. They asked her if the tobogganing event was suitable for their party of adults and children, particularly Mrs Parker's seven year old son Joe and whether it was available that evening. Ms Hughes replied that it was a fun event but that Thomson had no spaces left. She suggested that she would contact another tour operator called Inghams and get the family party on the event with them. She returned later and said she could arrange for the party of 7 after all; Mr Parker then paid the fee of 27€ per head by credit card. Ms Hughes said they must wear warm clothes, glasses and outdoor boots but not ski boots.
4. Those going to the event then assembled outside the hotel at 7.00p.m. and about 70 people (including people with other tour operators) embarked on a double decker bus, which arrived to take them to the tobogganing event. The event itself was organised by an Austrian company called Action Club Zillertal ("ACZ") who took bookings from members of the public as well as from tour operators such as TUI. It seems that the bus from the hotel was provided by ACZ who handed out a docket or ticket to those on the bus entitling its passengers to obtain a toboggan and a ride on the gondola (which took the participants up to the beginning of the toboggan run) together with a drink at the café there. The bus then departed for Haizenburg where the toboggan run was to take place. It was there that the participants exchanged their dockets or tickets for a toboggan suitable for two persons. They then took a toboggan onto the gondola which took them up a mountain called Gerlossteinwand where the run started. It turned out that the run was a distance of about 7 kilometres ending up back at Haizenburg. Four TUI representatives were on the trip and they spread themselves out among the participants. The fast participants went first, the slower ones following. The representatives were spaced out; first was Nigel Metcalf, Emma Lockerbie was next, then Ms Hughes and at the back, Lindsey Howgego.
5. Mr Parker went down with Joe while Mrs Parker went with Mrs Owen, Mrs Parker being in front. Mr Parker and his son came down the run first and waited for the others to arrive at the bottom. Not unnaturally the run had fast parts and slower parts but most of the participants enjoyed themselves. Mrs Parker and Mrs Owen arrived safely at the end of the run (although they could not stop until they had passed a red light indicating the end of the run). They got off their toboggan a little beyond the proper end of the run. The accident happened at a later stage.
6. As I have said, the end of the run was marked by a red light. About 100 metres before the red light the run came round a right hand bend and then flattened out for 30 metres. There was then a slight slope. At that point there was a snow bank with, beyond it, a drop onto a ski piste. After the red light but before the snow bank there was a prominent sign stating "Ende der Rodelbahn". After this sign only just before the snowbank, the road went round a left hand bend quite steeply downhill towards the cable car station and a chalet hotel which was on the right. There was a wide expanse of field on either side of this lower road and a yellow barrier went along-side one side of the road which had a gap towards the end enabling people to pass through to the car park and indeed the cable station. At the bottom of this slope some straw bales had been placed which were in front of a further slope down to a still lower road which was kept clear of ice and snow. The accident happened because Mrs Parker and Mrs Owen had remounted their toboggan and came down the lower road from the end of the run to the cable car station too fast. Seeking to avoid the buildings they careered into the straw bales which were hard and frozen. Mrs Parker suffered severe injury to her legs.
7. The judge found (para 33) that the tour representatives had briefed the participants both on the bus and at the top of the mountain and in particular that Mr Metcalf had told all the people on the bus that there was a flashing red light at the end of the run and that they must then get off their toboggans, and walk down the rest of the way to the toboggan shed and the bus. The judge specifically found that this instruction was given several times and that Mrs Parker had heard it. Although Mr Fullerton for Mrs Parker challenged the finding of "several times" he accepted that at least one instruction was given and that Mrs Parker was aware of it. The judge further found, in the light of Mrs Parker's statement to the police while she was in hospital on 31^st December, that she blamed herself for the accident and that she knew that, once she was past the red light, she was not supposed to toboggan but to walk down to the cable car station. Mrs Parker said that she and Mrs Owen had decided to remount the toboggan partly because they found it difficult to walk on the slippery road down, partly because they were being chivvied from below to get a move on and partly because she thought Mrs Owen was in some pain as a result of a recent knee operation. She thought they would slide down to what looked like a pile of snow but once they were on the toboggan it raced away down the icy road and ran out of control. She could not explain why she did not walk down the side of the road where there was deeper snow which would provide a better grip. Mr Owen apparently did exactly that (para 42). Mrs Owen, who also gave evidence at the trial, accepted that she should have been walking but said that her knee was painful, that she had already fallen and that the danger of remounting the toboggan had not been stressed to them. In the end the judge found that the roadway was not gritted on the night in question but that it was relatively easy to find and walk down deeper snow on the side of the road and thus avoid the icy road. The judge also found (para 53) that there was no tour representative at the red light at the relevant time because Mr Metcalf, Ms Lockerbie and Ms Hughes were already at the bottom and Ms Howgego had not yet arrived.
8. The judge then proceeded to find that there was no contract with TUI in relation to the toboggan run because they only acted as intermediaries to bring Mr and Mrs Parker into a contractual relationship with ACZ. He accepted that TUI owed Mrs Parker a duty of care but said that their representatives had not acted in breach of any such duty. He made no finding of negligence on the part of ACZ. He therefore dismissed the action and refused permission to appeal. Ward LJ granted permission on a renewed oral application in the light of evidence given by TUI's tour manager at the resort (Ms Terri Curtis) that TUI ran the event under the umbrella of Crystal/Thomson. This evidence was not referred to by the judge and arguably compelled the conclusion that a contract did exist between Mr and Mrs Parker and TUI in relation to the toboggan run. There was also arguable negligence, in the light of the fact that the road had not been gritted, and there were no representatives at the end of the toboggan run when Mrs Parker arrived there. If there had been such a representative, he or she could have helped Mrs Parker and Mrs Owen down to the cable car station or, at least, stopped them from remounting their toboggans. These were the main points which were stressed by Mr Fullerton in advancing the appeal on behalf of Mrs Parker.

Contract ?

9. It is not entirely easy to determine, on the exiguous evidence before the judge, whether Mrs Parker had a contract with TUI in relation to the toboggan run. In the light of the judge's finding that there was, in any event, a duty of care in tort it does not greatly matter whether there was a contract or not.
10. Ms Hughes certainly took Mr Parker's money before the family got on the bus and before any docket or ticket was issued but it must have been clear that it was not TUI who was going to provide the toboggan or the gondola ride. It must also have been clear that those services were going to be provided by a local operator even though the identity of that operator may not have been made clear until the docket or ticket was issued on the bus. It is rather doubtful from the transcript of Ms Curtis' evidence whether she was referring to 2003 when the accident happened or to a later time when TUI undoubtedly did themselves undertake the arrangement of toboggan runs for their guests at Mayrhofen. What she said was:

"Even though Club Zillertal were the agents that did the organising for us we still ran the event under the umbrella of Crystal Thomson, yes, and we had extremely strict guidelines".

That is very relevant to the question of assumption of responsibility for the purpose of finding a duty of care but is, to my mind, equivocal in relation to contract. There was evidence from Mrs Owen that the docket or ticket given on the bus had the name of ACZ on the top and in the light of that the judge was, in my view, entitled to conclude that ACZ gave out the tickets, was the supplier of the service and was the counter-party to the contract made in relation to the toboggan run.

11. Moreover, Ms Lockerbie who had undertaken a risk assessment of the provision of the toboggan run on 15 December 2003 had identified the supplier as "Mike at Club Zillertal". In her evidence she said that Club Zillertal "would organise all our excursions … put the lift on for us. Put our coach on. Organise all the toboggans". Again this is somewhat equivocal but it seems to me, on balance, as it did to the judge that, for the purposes of the toboggan run in 2003, TUI were acting only as intermediaries, putting their clients into a contractual relationship with ACZ and not assuming any contractual duties themselves.
12. Had there been a contract, the only relevant term would be an implied term that TUI would exercise due diligence; whether they did exercise such due diligence is, of course, the key question in this case.

Existence of Duty

13. Mr Davenport Q.C. bravely argued that TUI had no duty of care and could leave their customers to the tender mercies of the elements, and the icy terrain at night without a qualm.
14. The judge did not accept that; neither did the tour representatives at the time, since they took it on themselves to accompany the run in the way I have described. Their own recognition of their responsibility as well as the evidence of Ms Curtis as the resort manager to which I have already referred is enough to persuade me that TUI assumed responsibility to their customers, and owed them a duty of care in tort. The only real question is whether they discharged that responsibility.

Scope of duty and performance

15. Although numerous improbable duties were alleged in the Particulars of Claim, Mr Fullerton's argument in the course of the oral submissions came down to the following proposition:-

(1) The risk assessment undertaken on 15 December 2003 should have specifically assessed any risks on the lower part of the road between the end of the toboggan run and the car park. Instead it concentrated on the toboggan run itself;

(2) The probability was that there was in fact no system of ensuring that the tour representatives were evenly spaced out among the tobogganists; the evidence that there was such a system was only invented after the claimant's expert had served a report stating that such a system should exist;

(3) There should have been a representative positioned at the snow bank after the end of the toboggan run to remind the participants that they should not remount their toboggans and advise them to go down on the edge of the road where there was deeper unslippery snow;

(4) Alternatively to (3) that once the front tour representative had come

down the road to the car park he or she should have appreciated that the road was ungritted and then arranged for either himself or another representative to stand at the corner.

16. Mr Fullerton had to face the difficulty that these allegations were not specifically pleaded nor were they put clearly to the witnesses. Mr Fullerton complained that neither Mr Metcalf who occupied the first toboggan nor Ms Hughes who came down third and should, if the system worked, have been waiting at or near the red light was called to give evidence so that he had no relevant persons to whom to put his case. Nevertheless Ms Lockerbie, Ms Howgego and the tour manager Ms Curtis were all called. The judge, moreover, did not deal with the allegations in terms.
17. But even if one disregards these difficulties, the claimant's case must in my view fail. In the first place, it is true, that there was no specific risk assessment for the lower part of the road but it is impossible to think that, if there had been, any conclusion drawn from such assessment would be different from what in fact occurred, namely that the participants should be warned not to get on their toboggans again after they had dismounted at the end of the run.
18. Secondly, the judge was entitled to decide that the representatives did have a system for spacing themselves out among the participants. The arrangement was that one of them would wait at the end of the run. That did not work perfectly on the night because Ms Hughes had left the end of the run before Mrs Howgego (the sweeper behind Mrs Parker and Mrs Owen) arrived at the end of the run. That of itself was not causative of the accident since it would not have been feasible for a representative at the end of the run to have stopped anyone from remounting a toboggan because that remounting would have happened round the left hand bend and, if not out of sight, at any rate out of earshot.
19. So it comes down to the question whether someone should have positioned themselves at the corner as well as (or instead of) at the end of the run. The purpose of thus positioning such a person would only have been to repeat the warning, already given, not to remount the toboggan and to point out the obvious fact that it was more feasible to tread in the snow at the edge of the road rather than on the road itself.
20. I cannot bring myself to hold that it is the duty of a tour operator dealing with rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and the relative safety of snow at its side. So to hold would only encourage potential claimants to believe that whenever an injury occurs someone must be to blame. That is not what the law of negligence is about.
21. It is impossible not to have enormous sympathy for Mrs Parker and her family whose holiday turned out to be a disaster, but I agree with the judge and would dismiss her appeal.

Final point of law

22. Mr Davenport also sought to argue that the claim in tort should have been dismissed in any event because section 11 of the Private International Law (Miscellaneous Provisions) Act 1995 provides:

"The general rule is that the applicable law is the law of the country in which the event, constituting the tort in question, occurs".

and because the claimant had neither pleaded nor relied on Austrian law.

23. This rather breathtaking submission was never made to the judge but is, in any event, hopeless. Even if the judge had been required to apply Austrian law he had no evidence that Austrian law was any different from English law. In those circumstances he would have had to assume that Austrian law was the same as English law and would have come to the identical conclusion as that to which he, in fact, came.
24. So, although neither of TUI's additional arguments can succeed, I would still dismiss this appeal.

Lord Justice Moore-Bick:

25. I agree.

Lord Justice Patten:

26. I also agree.