Pooling responsibilities

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ITIJ 194, March 2017
Almost everyone going on holiday to a warm climate will, at some point, end up in a swimming pool. But the ‘do not dive’ signs and depth warnings don’t always have the desired effect, added to which are huge variations in safety laws. 
Robin Gauldie assesses the dangers lurking in the depths
 
Clearly, there are risks associated with swimming or even paddling on beaches where strong currents, tides and freak waves can take their toll, as can irresponsible use of powered beach toys like personal watercraft, banana boats and water skis (see ITIJ 193, February 2017, The fast and the furious … and the fatal). Yet swimming pools at resort hotels and holiday villas may ultimately be riskier than beaches for vacationers and their insurers. Travellers from countries such as Australia and the UK, where safety standards are rigorous, need to be made aware that such standards are not universal.
“As Australia has such strict water safety rules, some people assume swimming areas are safe everywhere in the world,” comments Richard Warburton, chief operating officer of 1Cover Travel Insurance, an Australian insurer. “The truth is, many popular overseas destinations, such as Thailand and Bali, just don’t have the same safety protocols in place, and holidaymakers may be at greater risk when swimming. For example, pool gates are virtually non-existent in many Asian and European destinations.”
many popular overseas destinations, such as Thailand and Bali, just don’t have the same safety protocols in place
Resort pools seem to provoke risky behaviour in a significant number of holidaymakers too. Each holiday season brings a crop of media stories covering accidents – sometimes fatal – involving tourists jumping into hotel pools from balconies, or diving into shallow pools. “Some people, particularly young adult males, take risks they wouldn’t normally take if they were at home," says Warburton. "They don’t think of consequences.” There is an ongoing need to make insureds aware that travel insurance has its limits, he adds.
In Europe particularly, the craze known as ‘balconing’ is often a result of an alcohol-fuelled night out giving holidaymakers a sense of invincibility. Warburton, though, warns: “One of the most common misconceptions people have about travel insurance is in relation to alcohol consumption. If an accident happens and a person is under the influence, they may not be able to successfully make a claim, depending on the circumstances. This is why we encourage customers to thoroughly read all the terms and conditions of their policy. We strive to be as transparent as we can, educating customers about all facets of the policies. We want to ensure people fully understand what their policy covers them for, so they can make properly informed decisions.”
If an accident happens and a person is under the influence, they may not be able to successfully make a claim, depending on the circumstances
According to Megan Freedman, executive director of the US Travel Insurance Association, insurers in the US would be unlikely to turn down claims for the costs of medical treatment or assistance arising from such accidents on the sole grounds of recklessness. “Claims would not be excluded based on irresponsible behaviour. However, a claim may be denied if the cause was use of alcohol or drugs, intentional self-infliction of harm or an illegal act,” she says. Some policies in the UK, by contrast, specifically exclude claims resulting from falls or jumps from balconies, as accidents and subsequently expensive medical claims resulting from such activities have arisen so often.
 
Preventing tragedies
Reckless teenagers, however hair-raising their escapades, are not the only source of claims arising from pool accidents. Even in destinations that are famed for their beaches and long coastlines, such as Greece or the Algarve, almost all drownings of young children occur in swimming pools, according to the European Child Safety Alliance (ECSA). In Australia, too, tourist-related swimming pool deaths involving very young children continue to be of concern, according to the Australian Water Safety Council (AWSC). The organisation has called on the tourism industry to implement water safety and risk management plans in resorts and hotels, including signage, effective barriers and education programmes.
In many destinations, most such drownings occur in pools at private residences, but a significant number happen in the pools of resort hotels or holiday villas, as is the case with the much more numerous non-fatal accidents that take place in and around swimming pools each holiday season. The ECSA has estimated that for every child fatality, there may be as many as 140 near-drownings resulting in hospital admissions.
insurers in the US would be unlikely to turn down claims for the costs of medical treatment or assistance arising from such accidents on the sole grounds of recklessness
Between 2009 and 2015, 30 British children under 10 years old drowned in holiday swimming pools outside the UK, according to Britain’s Royal Society for the Prevention of Accidents (RoSPA). More than half were under four years old. “Statistics show that until recently, more British children drowned in swimming pools abroad than at home,” says David Walker, leisure safety manager at RoSPA. “RoSPA believes that all of these deaths could have been prevented.”
The presence of lifeguards (or other hotel staff) might even increase risks by lulling holidaymakers into a false sense of security, some sources argue. At hotels with pools, the role of the lifeguard is often combined with other more general pool attendant duties, RoSPA says. In the UK, a lifeguard’s main role is focused on preventing incidents, but the organisation claims that in many destinations outside the UK their main response is usually after the event. Walker says many accidents are due to the standards of the environment and lifeguards on duty being different from country to country, although standards across the EU are fairly similar.
Few would dispute that parents hold ultimate duty of care for their offspring, even in the most carefully monitored environments. Families should not rely on lifeguards, says the UK’s Royal Life Saving Society (RLSS), a drowning prevention organisation, and parents should keep children under constant supervision, even when lifeguards are available. “Lifeguards, where present, are there to observe and predict unsafe situations as well as providing assistance and help during an emergency. They are not there to supervise individual children,” emphasises RLSS UK chief executive officer Di Steer.
“We would happily work with tour operators and travel insurers to get the safety message out there, for example by contributing to awareness campaigns such as leafleting and advertising at holiday airports,” says Alex Blackwell, RLSS UK’s head of vocational qualifications. Blackwell also suggests that tour operators could do more to raise safety awareness when their holiday representatives brief new arrivals at resort hotels and by distributing safety leaflets in hotels. “The tour operators should be providing water safety information at destination,” Blackwell says.
 
Private property
Most hotels in major tourism resorts employ lifeguards, not least to protect themselves from liability claims in the event that an accident does happen. But guests in private villas, holiday homes and most apartment complexes are alone in supervising the safety of their families in and around swimming pools. RoSPA’s figures reveal that although hotels accounted for most fatal accidents involving swimming pools, with 12 under-10s drowning in hotel pools, eight children aged under-10 lost their lives in swimming pools at holiday villas. To put this in context: according to online travel agent Travelsupermarket, some 60 per cent of British holidaymakers stay in hotels, compared with between 11 per cent and 18 per cent booking holiday villas. Industry sources estimate that no more than 250,000 British holidaymakers book a holiday through a specialist villa package tour operator each year.
“While pool owners have a duty to take reasonable steps to ensure safe conditions in public pool settings, that does not eliminate the need for swimmers and patrons, particularly those who are supervising children, to take steps to stay safe at the pool,” says Jesse E. Guerra, founder of J. Guerra Law Firm, a US practice specialising in swimming pool incidents. “However, the owner/operator of the pool, not the patron, is ultimately responsible to maintain the pool. Unsafe pools should never be open for use if dangerous conditions exist.”
In the EU, companies selling accommodation as part of a holiday package are legally liable, under the EU’s 1990 Package Travel Directive, for the shortcomings of accommodation providers. Clients (or their insurers) can take legal action against the package holiday provider in the client’s home country for such shortcomings, so tour operators have a powerful added incentive to monitor safety standards at the villas and hotels they include in the holiday offerings. Companies acting purely as booking agents, on the other hand, are not automatically responsible for the actions of their suppliers and must be sued in a court at the destination where the incident occurred.
“Unfortunately, the general public doesn't necessarily think about risks when they are booking. They have no idea about the responsibilities of tour operators and the steps they take to make sure the properties they sell have been personally checked,” says one UK villa specialist. “The growth of online booking and the proliferation of new build holiday homes that are let on a haphazard basis have changed figures dramatically. The specialist villa tour operator sector is now much smaller than the online non-specialist market.”
Since the millennium, the number of private pools in European holiday destinations has increased dramatically. The economic downturn since 2008 has probably slowed the rate of construction, but holidaymakers using villas in Mediterranean sun destinations increasingly expect a pool as standard, so the number of holiday villas and apartments with pools will likely continue to grow to meet demand.
almost all drownings of young children occur in swimming pools
There have been calls for villa renters to take more responsibility for pool safety for their properties, but also for hotel and villa guests, especially parents, to be more vigilant and risk aware.
The ECSA pointed out as long ago as 2007 that securely enclosing swimming pools attached to holiday villas reduces the likelihood of a drowning by 95 per cent. ECSA called for national and pan-European legislation requiring isolation fencing for swimming pools, specifying the height and spacing of the fencing and requiring secure, self-latching gates. In the US, where swimming pools attached to private homes are more common than in Europe, all pools at rental villas or apartments must be fenced in, with self-latching, self-closing gates no less than 48 inches in height. 
In 2009, the EU introduced a new set of swimming pool safety requirements, EN 15288. Heralded as the most significant new regulation since the introduction of the EU’s Maintaining Health and Safety in Swimming Pools rules (HSG 179) in 1988, this applies separate standards for public pools and aqua-parks, hotel and campsite pools, rented villas and domestic pools in apartment complexes. However, interpretation and enforcement are left to the discretion of national, regional or municipal authorities, so there is a lack of uniformity. In 2003, France – which reportedly has the highest rate in the world of infant deaths by drowning in a swimming pool – introduced its own clearly defined and legally enforceable certification system for newly built pools and private villa pools, which requires them to either have a shelter or cover, an alarm, or to be surrounded by a barrier or fence with a self-latching, self-closing gate.
Such controls at national level are absent or patchily enforced in other EU destinations popular with villa clients. In Spain, the absence of specific safety rules for private pools may be a factor in keeping the level of related claims low, says María del Carmen González González, a lawyer at the Spanish firm Ramallo Pallast & Partner, which deals with more than 300 insurance cases annually: “Unlike France, Spain does not oblige private swimming pool owners to build a fence around the pool, so accidents stemming from such a lack of protection are not in principle a source of liability for the swimming pool owner. We have very few cases concerning fatalities (or even minor illnesses) arising from swimming pools. We can confidently say that private swimming pools, at least in Spain, are neither a major source of claims nor of subrogation claims.”
securely enclosing swimming pools attached to holiday villas reduces the likelihood of a drowning by 95 per cent
If the insurer settled a claim for an accident at a pool and the owner were to be found liable, there is little doubt under Spanish law that subrogation would operate, she adds. “However, the insurer must be able to prove negligence. We have had some cases where negligence was found due to improper maintenance, but no liability has hitherto been found by the mere fact of not having a fence [around the pool].”
Hotels, though, are more vulnerable to claims, she agrees. “Hotel swimming pools have to comply with legal requirements such as lifeguards on duty, non-slip surfaces surrounding the swimming pool, protective grilles, and so on, so it is easier to prove negligence from the hotel owners if their swimming pools do not comply.”
 
Water-borne illnesses
“The most common claims we see are for cuts, lacerations and broken bones caused by falls around the pool. Often, these are a result of poor building or pool maintenance, or hotel negligence. But other times it’s because holidaymakers are not paying close enough attention,” says Richard Warburton of 1Cover Travel Insurance. Where poor construction or maintenance can be proven to have caused the incident, insurers may be able to subrogate. However, it is less easy to prove beyond doubt that inadequate pool hygiene was the cause of a claim for treatment of illness.
In any case, claims arising from minor injuries and infections such as otitis externa (‘swimmer’s ear’) are fairly common. Commenting on the ability to subrogate in such cases, Jack Harding, a barrister at UK law firm 1 Chancery Lane, said:  “Infections caused by swimming pools have always been treated differently because the provision of a pool is a service and does not involve the transfer of goods. Accordingly, the only duty is to exercise reasonable skill and care.” He cites a 2001 court case against the British holiday company Going Places, which confirmed that there is no absolute obligation to ensure that the holidaymaker catches no infection while swimming in a hotel pool.
Diagnosis and treatment of common pool-related infections like otitis externa are relatively inexpensive, but doctors commonly advise that otitis sufferers, especially children, should not fly until the infection has cleared. Claims for alternative travel and accommodation arrangements if holidaymakers are forced to postpone their homeward travel due to such ailments can be much more costly for insurers, and more difficult to subrogate. 
Doctors commonly advise that otitis sufferers, especially children, should not fly until the infection is cured
“The cost of new flights and additional accommodation would be covered by travel insurance where holidaymakers delay their intended departure as a result of the local doctor advising against air travel. Generally, these additional costs are likely to be much more than the cost of the medical treatment for a minor illness like swimmer’s ear,” says Jason Harris, senior claims manager for the UK insurer Aviva. He added: “We’re not seeing a significant number of claims specifically for swimming pool-related illnesses, and it would be very difficult to prove the cause of an infection like swimmer’s ear was a direct result of a dirty swimming pool. Not only would we need the local doctor to categorically state that the infection was caused by dirty water, but also evidence that the swimming pool was unclean and the hotel had been negligent.”