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Clough v First Choice Holidays Flights Ltd, Court of Appeal, 25 January 2006

31 January 2006
The issues

Swimming Pools – Causation – “But For” Test – Claimant Slipping From Wall Dividing Two Swimming Pools Whilst Under The Influence Of Alcohol – Chester v Afshar

The facts

The Claimant brought a claim for personal injuries against the Defendant following a catastrophic accident on 13th November 1999 when he slipped from a wall and broke his neck in a swimming pool at a holiday complex in Lanzarote. The booking was made through Eclipse, a division of the Defendant company and there was a contractual term to the effect that the Defendant accepted responsibility for any death, bodily injury or illness caused as a result of the proven negligent acts and/or omissions of their employees and agents or their suppliers, sub contractors and their servants or agents whilst acting within the scope or within the course of their employment.

The Las Lomas complex where the Claimant and his girlfriend were staying was a typical package holiday destination for relatively young couples or couples with young families. The holiday had begun on 4th November. Due to the situation of the Claimant’s accommodation he would have walked past the fountain pool on many occasions before the accident occurred and had used it as well. At the eastern most end of the fountain pool was a shallow circular paddling pool. It was in that part of the fountain pool that the accident occurred. The pool was closed after 7pm but from time to time residents would use the pool after they were formally closed. There was a wall dividing the two swimming pools. The surface of the wall had not been painted with non slip paint.

On the afternoon of 13th November the Claimant had spent some hours drinking watching a football match between England and Scotland on the television. He had drunk up to 6 pints of lager. By 6pm they were in “a state of high spirits” and he and his friend decided to take a dip in each pool. The Claimant got onto the wall between the two pools and whilst walking along it in his bare wet feet, fell into the paddling pool. At the time the Judge concluded that the Claimant was approximately 2 Ω times over the legal limit for lawful driving at the time of the accident but was not incapable of realising the general nature of what he was doing.

The Judge found that the wall presented an increase risk of slipping compared to a surface coated with non slip paint. The Defendant had been negligent in failing to use non slip paint. The Judge however had concluded that the negligence and breach of duty was not causative of the accident. The Claimant appealed.

The decision

In Chester v Afshar the House of Lords had addressed the problem whether in the special circumstances of that case the conventional approach to causation was appropriate and had concluded that the interest of justice required that the normal rules of causation should be relaxed and modified. It was a case where “a lesser degree of causal connection sufficed” (Lord Nicholls). Chester however, favouring a narrow development of causation principles to enable the Court to uphold the right of a patient to be properly informed by her doctor of the possible risks of agreeing to a surgical procedure, did not dilute the essential principle.

Chester was a policy decision with no application to cases of this sort. This was in no way an exceptional accident. The question remained whether the negligence of the Defendant was the cause of the Claimant’s injuries. A successful claim for damages for personal injuries consequent on negligence or breach of duty required the Court to be satisfied that the injuries were indeed consequent on the Defendant’s negligence. The Claimant had sought to argue a distinction between material contribution to damage and material contribution to the risk of damage. This applied where more than one cause of the harm complained of was present and the tortious cause on the balance of probabilities either made or was capable of making a material contribution to that harm. The second arose exceptionally where as a matter of policy the Court allowed causation to be proved even though due to the limits of current knowledge the evidence did not permit a factual inference that the increase in risk had materially contributed to the damage. Even if this distinction had application in different situations it had no application in a case of this sort where the Claimant’s injuries arose from a single incident. Any modification of the principles relating to causation in the context of claims for damages for personal injuries had to be approached with the greatest caution. For the purposes of cases like this, the principle of trite law that the Claimant was entitled to recover damages for personal injuries caused by the Claimant’s negligence was unchanged.

In this case the Judge below was un-persuaded that the Claimant’s slip had been caused or materially contributed to by the absence of non slip paint. Non slip paint would have made the surface less slippery but not non slippery and it would not have removed altogether the risk of a slip by someone walking on the top of the wall with wet feet. The risk of a slip was inevitable and the fact that the Claimant’s slip did not in itself did not demonstrate that the slip resulted from the absence of non slip paint. There was therefore not sufficient evidence to establish a causal link between the negligent absence of non slip paint and the Claimant’s fall. In other words the Judge had not been satisfied on the balance of probabilities that the Claimant’s accident would have been avoided if non slip paint had been used.

Appeal dismissed

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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