Holiday accident

Evans v Kosmar Villa Holidays Plc [2007] EWCA Civ 1003; SJ 2 November

The reasoning of occupier’s liability cases holding that there is no duty to protect people against obvious risks applies in the context of a package holiday contract, and a tour operator’s contractual duty does not extend to a duty to guard a holiday maker against the risk of diving into a swimming pool and injuring himself. The claimant was 17 years of age when he went on holiday with a group of friends to an apartment complex in Corfu which was contracted exclusively to the defendant company. In the early hours of the morning, the claimant dived into the shallow end of the swimming pool at the complex, hit his head on the bottom and sustained serious injuries. The pool was not safe for diving and there were ‘no diving’ signs. The defendant was not in breach of its contractual duty of care and therefore not liable under the Package Travel, Package Holidays and Package Tours Regulations 1992, reg 15, for improper performance of the holiday contract. People had to accept responsibility for the risks they chose to run and there was no duty to protect them against obvious risks. There was no duty on the defendant to give the claimant any warning about the risk of diving into the pool, or to have placed better or more prominence signs, or to take any other step to prevent or deter him from using the pool or diving into it. As a matter of causation, it was unlikely the claimant would have seen or taken in more prominent ‘no diving’ signs and it was unlikely that they would have prevented the accident.