Evans v Kosmar Villa Holidays Plc

A contractual duty to exercise reasonable care in providing holiday facilities does not ordinarily require a tour operator to protect a person of full capacity against an obvious risk which that person understands and freely chooses to run. A momentary failure to heed the risk does not create a duty which would otherwise be absent.

Local safety regulations inform the standard of care for facilities abroad, but compliance with them is not necessarily conclusive. Industry guidance may also inform reasonable care, although advisory guidance has no independent legal force. Liability for improper performance under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 depends upon the obligations imposed by the holiday contract.

Shortly before his eighteenth birthday, the claimant suffered incomplete tetraplegia after diving at night into the shallow end of a swimming pool at holiday apartments in Corfu. The apartments were independently managed but supplied exclusively through the defendant tour operator. The claimant knew generally that diving into shallow water or water of unknown depth was dangerous, but followed other guests and assumed that diving was safe.

The High Court, in [2006] EWHC 3417 (QB), found the defendant liable for breach of its contractual duty of care and improper performance under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992, subject to 50 per cent contributory negligence. The tour operator appealed. The principal issues were whether its duty extended to guarding against this obvious risk and whether better warnings would probably have prevented the accident.

1. Appeal allowed and claim dismissed. The contractual duty to exercise reasonable care in providing the holiday facilities did not require the tour operator to guard the claimant against the risk of diving into the pool. Diving into shallow water, or water of unknown depth, presented an obvious risk. The claimant knew of that risk, was almost 18, had full capacity and could make a genuine and informed choice. He was not seriously affected by alcohol. His brief thoughtlessness or inadvertence at the moment of diving did not enlarge the duty: paras 39–44.

2. The reasoning concerning personal responsibility and obvious risks in Tomlinson v Congleton Borough Council [2004] 1 AC 46 and Ratcliff v McConnell [1999] 1 WLR 670 was relevant beyond claims under the occupiers’ liability legislation. The common duty under section 2(2) of the Occupiers’ Liability Act 1957 could extend to contractual visitors by section 5. Comparable reasoning therefore applied to a contractual duty of reasonable care expressed in similar terms: paras 39–41.

3. Regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992 made the tour operator answerable for improper performance by independent suppliers, but whether performance was improper depended on the holiday contract’s terms. The relevant implied term required reasonable skill and care: paras 19–21 and 26.

4. A foreign hotel is generally judged by local safety regulations rather than British standards. Compliance with local regulations is not invariably sufficient to discharge the duty of care. The Federation of Tour Operators’ handbook was advisory and had no legal force, although it could inform the standard of reasonable care. Had a duty to warn existed, the judge could properly have found the existing signage deficient: paras 22–27.

5. Alternatively, causation was not established. Even if better signs had been installed, it was improbable that the claimant would have seen or absorbed them in the poor light, or that they would have prevented other guests from diving and thereby removed the example he followed. The claim therefore also failed on causation: paras 45–49.

6. The contributory-negligence appeal consequently fell away. Had liability arisen, the court would not have disturbed the equal apportionment of responsibility: para 50. Hooper LJ and Arden LJ agreed with Richards LJ.

1. Court of Appeal (Civil Division): The defendant’s appeal was allowed unanimously. The finding of liability was reversed and the claimant’s claim was dismissed: [2007] EWCA Civ 1003 .

2. High Court, Queen’s Bench Division: His Honour Judge Thorn QC found the defendant liable for breach of contractual duty and improper performance, subject to 50 per cent contributory negligence: [2006] EWHC 3417 (QB).