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Evans v Kosmar Villa Holidays, Court of Appeal, 23 October 2007

2 November 2007
The issues

Package Travel, Package Holidays and Package Tours Regulations 1992 – swimming pool – tour operators duty to guard against obvious risk.

The facts

James Evans, the Claimant, was on holiday in August 2002 with a group of friends at the Marina Beach apartments in Kavos, Corfu. He was 3 weeks short of his 18th birthday. The holiday had been booked with a tour operator, Kosmar Villa Holidays Plc. The apartment complex was independently owned and managed but was contracted exclusively to Kosmar and was featured in Kosmar’s brochure. It included a small swimming pool. Towards the end of his stay, in the early hours of the morning, Mr Evans dived into the shallow end of the pool and hit his head on the bottom, sustaining serious injuries resulting in incomplete tetraplegia. He brought a claim for personal injuries against Kosmar. The matter came before the Judge who found Kosmar liable for the accident subject to a finding of 50% contributory negligence.

The Defendant appealed.

The resort was described by the Trial Judge as one aimed at young single people holidaying without adult supervision, not infrequently in groups of already formed friends, with ample opportunities to drink substantial quantities of alcohol for very substantial periods or indeed all of the day and night. The complex was situated next to the beach and consisted of flats, a bar and pool. A path ran from the accommodation block past the pool to the bar. The path was separated by a flower bed from the paved area around the pool itself. The Judge found that the bar sometimes closed by midnight but more frequently stayed open for longer. When the bar closed, the lights in the swimming pool and bar area were turned off but the lights on the path remained lit. The pool at the shallow end was probably about 0.8 meters. There was a small depth marker at each end of the pool, although these were probably not visible at night. The pool was 11.2 meters long and 5.8 meters wide and at its deepest end was no more than 1.5 meters. It was unsuitable for diving. There were two small ‘No diving’ signs in the general area of the pool. Despite the existence of these signs diving was a regular occurrence and the Judge found that the Defendant knew full well that not only was the pool regularly used when the bar was shut but that diving took place on a regular basis without reproof or reprimand. The Judge found that the Claimant had probably only used the pool only once before the accident. On that occasion he had not gone into the shallow end. He had seen other people diving in and assumed that the pool was reasonably deep all round. He was unaware of there being a significant change in depth between the end he was using and the opposite end. He did not recall seeing any signs. On the night in question he had gone out with friends for a meal and had stayed out late. They had stayed in their apartment until about 3.30am when on returning. They had been woken up by noise from the pool. When they went down to the pool the bar was shut and the light was poor. He saw people diving in all over the place. The claim was based on the holiday contract between the Claimant and Kosmar and relied on allegations that the company had breached its contract in a number of regards but in particular there had been improper performance of the contract within the meaning of Regulation 15 of the 1992 Regulations. In this case there had been no evidence to support the pleaded claim of non-compliance with local safety regulations.

The fundamental question was whether the Judge had been right to distinguish the line of cases under the Occupiers Liability Act culminating in the decision in Tomlinson v Congleton as he did and to treat them as to having no relevance in the contractual context.

He was right to the extent that the duty owed by occupiers of land to trespassers and lawful visitors might be affected by policy considerations that had no parallel in the context of a holiday contract.

The core of the reasoning in Tomlinson however was that people should accept responsibility for the risks they chose to run and that there should be no duty to protect them against obvious risks. That reasoning was held to apply in relation not only to trespassers but also to lawful visitors. There was no reason why it should not also apply to persons to whom there was owed a duty of care in similar terms under a contract. Kosmar’s duty of care did not extend to a duty to guard the Claimant against the risk of his diving into the pool and injuring himself. That was an obvious risk of which he was well aware. There was no duty to give the Claimant any warning about the risk of diving in the pool, let alone to have better placed or more prominent signs than those actually displayed or to take any other step to prevent or deter the Claimant from using the pool or from diving into it. The dive and its terrible consequences were matters for which the Claimant must take full personal responsibility.

Appeal allowed.

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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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