First published in ITIJ 117, October 2010
Injuries on the slopes cost travel insurers a substantial sum each year; a situation that has led to increased legal proceedings. UK-based Barrister Darren Lewis advises claimants on how to prepare for a case
There seems to be an impressive focus amongst those members of the travel insurance industry who I have spoken to on assessing the value of alpine sports claims, as well as an admirable focus on rehabilitation (of course, we’re referring to ‘claims’ in the litigation sense – with a ‘claimant’ suing a ‘defendant’ in legal proceedings). Post Office Travel Insurance data revealed that medical expenses accounted for 75 per cent of all ski holiday insurance claims from last season, so it is worthwhile for insurers to try their best to claw back some of their expenses from the guilty or negligent party. Recent research from Bupa Travel Insurance shows the cost of treating common ski injuries varies by more than 1,000 per cent depending on which country the skier was holidaying in. For example, torn knee ligaments - the most common injury among skiers and boarders - would cost around £670 to have treated if in France, but a massive £2,280 in America.
Thus, it is worth the insurance industry reviewing the evidence that claimants have to produce if they are to prove someone is at fault in a court of law should a legal case arise following an injury on the slopes.
This article considers the evidence that a court will expect to see, focusing on the three main areas that a winter sports claim will usually fall into: collisions, inadequate supervision, and faulty or inappropriately installed equipment. It is firstly necessary, however, to understand the differences between ‘jurisdiction’, ‘choice of law’ and ‘evidencing standard of care’. Each will affect the necessary evidence to be obtained.
Letter of the law
- Jurisdiction refers to the legal area where a court has a right to hear a case. The normal rule is that a case will be heard where an accident happened, but there are special exceptions for EU countries that allow for people to be sued in another country if strict requirements are met – for example, if the defendant is domiciled in another jurisdiction or consents to be tried in another country. It is much harder to establish the jurisdiction of English courts where the accident happens outside the EU.
- Choice of law. Just because a case takes place in one jurisdiction does not mean that the national laws of that jurisdiction apply. A case could be heard in British County Court but the law that it applies could be Austrian or French as appropriate.
In order to sue someone, there must be a breach of a rule or provision that creates duties between two people. In skiing claims in England and Wales, that is likely to be the law of negligence and maybe the Occupiers Liability Act 1957 or nuisance. In France, there are specific provisions like Article 1382 of the Civil Code, which touches on excessive speed, and Article 1384, which makes the skier responsible for damage caused by objects under his control, for example skis and poles, which has often been interpreted as meaning there is no requirement to prove fault.
it is worth the insurance industry reviewing the evidence that claimants have to produce if they are to prove someone is at fault in a court of law should a legal case arise following an injury on the slopes
The main rule for UK insurers to bear in mind is that a court will apply the law of where the injury occurred; but where an accident occurs in the EU and where both skiers are English it can apply English law (EC Regulations 864/2007). Local law is a matter of fact, which is usually proved by obtaining local lawyers’ reports on the law.
- Standard of care. Regardless of which court has jurisdiction or what duty of care is to be applied, the court will always apply the standard of care of the place where an accident happens. The simplest way to explain this is by thinking of drivers in identical situations. In the UK and Germany, I have a duty to drive at a reasonable speed for the road conditions in order to avoid a collision (that is the duty of care). In order to measure whether I meet that duty (the standard of care) we might look at speed limits. If I drive down an English motorway at 80mph, I am speeding and acting in a way that breaches my duty to you, but if driving at 80mph on the Autobahn 90 in Germany, I am driving at the advised (non-mandatory speed). The same is true of alpine sports from country to country, and sometimes resort to resort. Claimants will ultimately have to show that the defendant acted in a way that contravened the normal practice on that slope. This often requires costly expert evidence, such as from local ski instructors.
Collisions are evidentially the easiest form of alpine accident to deal with. English courts use the Federation Internationale de Ski (FIS) Rules of Conduct in a similar way to how they use the Highway Code. However, breach of an FIS rule is not negligence but evidence of negligence.
Some of the most frequently cited FIS rules in relation to collisions are:
- Respect for others – a skier or snowboarder must behave in such a way that he does not endanger or prejudice others.
- Control of speed and movement – a skier or snowboarder must move in control. He must adapt his speed and manner of skiing or snowboarding to his personal ability and to the prevailing conditions of terrain, snow and weather, as well as to the density of traffic.
- Overtaking – a skier or snowboarder may overtake another skier or snowboarder above or below and to the right or to the left provided that he leaves enough space for the overtaken skier or snowboarder to make any voluntary or involuntary movement.
- Perhaps the most useful FIS rule for lawyers and insurers looking for evidence and most frequently ignored by skiers is:
- Identification – every skier or snowboarder and witness, whether a responsible party or not, must exchange names and addresses following an accident.
- Where an independent witness has given your insured their name, every effort should be made to contact them and take as full a note of their evidence as possible.
Cases where someone is injured and alleges that it is due to inadequate supervision present their own evidential difficulties. As claimant or defendant, it is important at a very early stage to get a report from an independent ski instructor at the resort in question. This will let you know whether it is more cost effective to settle or at least make an offer.
The recent case of Gouldbourn v. Balkan Holidays Ltd & Another  EWCA Civ 372 demonstrates the pitfalls in this area. This case involved a relatively inexperience skier who was provided with a ski instructor who told her to follow him; she attempted to mirror most of his manoeuvres but ultimately fell and was injured. The UK’s Court of Appeal recognised that the FIS rules imposed a duty on instructors to never allow pupils to take a risk beyond their capabilities, but the rules did not mandate how that duty was to be met. In the absence of any evidence from a local source that such duty had not been met, the claim failed. A report from an independent local instructor saying he would not have asked the claimant to have followed him on the slope in question might have easily strengthened the Claimant's case.
Supervision cases will more often than not involve contributory negligence, where the injury is partly the fault of the supervisor and also of the skier. Insurers should grapple with this early, as a sensible Part 36 offer to settle on liability will often save costs in the long run. A good example of contributory fault is the case of Anderson v Lyotier  EWHC 2790 (QB), a case where a mixed ability group was taken through increasingly difficult off-piste terrain, which pupils were finding particularly challenging. Ultimately, the Claimant collided with a tree. The English court found that an instructor should not have led a relatively inexperienced skier off-piste where there was a foreseeable risk of them hitting a tree; but the student was under a duty to speak out if he felt he was being asked to do something beyond his ability. The Claimant was found one third responsible for not speaking out.
Tools of the trade
The most common form of injury under the ‘defective equipment and failure to properly install’ heading is due to binding not properly releasing. The biggest evidential difficulty is preserving the evidence.
Claimants will ultimately have to show that the defendant acted in a way that contravened the normal practice on that slope
If there is an alleged defect with a product that your insured owns or an alleged defect with its installation, which results in an injury, the insured should be warned to preserve the product in the condition it was in at the time of the accident. Where it is hired by the insured, often the equipment will be taken back and recalibrated. Where the insured believes a defect caused an accident, they are best advised to warn the hirer that the equipment is valuable evidence and should be preserved, as a claim is likely. Even where this happens, ‘errors’ are often made and the equipment goes back into circulation. With or without the equipment itself, expert evidence will still be necessary to describe the cause of the failure, such as in the case of Rochead v. Air Tour Holidays Ltd (2000) (Unreported), where in the absence of the equipment in question, the UK court accepted the expert’s analysis of the fall as described by the claimant.
In cases of faulty or inadequately installed equipment resulting in injury, establishing which law is applicable and the standard of care to be evidenced is essential. There are specific exceptions to the general rule on choice of law:
- Main rule: law of country in which the claimant had his habitual residence if the product was marketed in that country;
- The law of the country in which the product was bought if it was marketed there; failing that;
- The law of the country where the injury occurred, if the product was marketed there.
- BUT if the defendant can prove that they could not foresee the marketing of the product in any of the countries above, the law applicable will be that of the defendant's habitual residence.
- Finally, where the facts of the case show there is a manifestly clearer connection to one country's legal system than another, the law of the former.
Hopefully, this article is of some assistance in considering some of the evidential difficulties relating to alpine sports injury claims. It is a varied and complex area, where the insurance industry is well advised to instruct lawyers early when the insured or a third party makes a claim in order to assist in the process of properly analysing risks.