Healy v Cosmosair Plc & Ors

A tour operator is contractually liable for improper performance of a package holiday, including failure to provide facilities complying with applicable local safety standards. Compliance certificates issued by local authorities are relevant evidence but are not conclusive. The court must independently construe and apply the relevant local requirements.

Where liability depends on a claimant slipping at a particular location, the claimant must prove that the particular spot was dangerous at the material time and that the condition caused the accident. Evidence that similar accidents occurred elsewhere, or that a surface was generally slippery when wet, may not establish causation. A finding of non-compliance does not itself establish liability without proof of the necessary causal link.

The claimant suffered catastrophic spinal injuries after entering a swimming pool during a package holiday in Portugal. He alleged that he had slipped on wet terrace tiles and fallen into the shallow pool. The tour operator denied liability, contending that he had voluntarily dived contrary to warnings.

The operator also brought a Part 20 claim against the company responsible for the holiday accommodation under contractual indemnity provisions. The principal issues were how the claimant entered the pool, whether he slipped on wet tiles, whether the pool surround complied with Portuguese safety requirements, and, if liability were established, whether the indemnity applied.

1. Primary claim dismissed. The court found that the claimant had not voluntarily dived vertically into the pool. On the probabilities, he suffered an awkward and uncontrolled fall, with rotation after entry causing the approximately 90-degree impact responsible for the cervical injuries. The evidence did not establish, however, that he slipped on a wet tile within the relevant area.
2. In assessing causation, the court had to identify whether the particular place where the claimant lost his footing was dangerous at the material time. General evidence that terrace tiles were slippery when wet, or that other people had slipped at other times or places, did not prove the necessary causal link.
3. Article 13(i) of Portuguese regulation 5/97 required a two-metre strip around the pool with waterproof, non-slip and easily cleaned material. The 410 mm Strukturit strip did not satisfy that requirement merely because the remaining area comprised terrace tiles. The court rejected the argument that greater priority could be given to waterproofing or ease of cleaning over the express non-slip requirement.
4. Local certificates and inspections were relevant but not determinative. The court was required to reach its own decision on compliance with Portuguese standards. Had the claimant proved that he slipped on wet tiles within the first 1,590 mm beyond the Strukturit, the operator would have been liable for improper performance under the holiday contract and would have been entitled to the contractual indemnity against Vilar Da Lapa.
5. The indemnity was construed as applying where non-compliance by the hotelier caused injury for which the tour operator was contractually liable, without negligence or default by the operator itself. The clause did not permit apportionment where the operator’s own negligence or default contributed. The Part 20 reasoning was conditional and unnecessary to the dismissal of the primary claim.