Anderson v Lyotier & Anor (t/a Snowbizz)

A ski instructor must assess a group by reference to the capabilities of its weakest members. The assessment is prospective and objective, and must take account of the terrain, snow conditions, obstacles and the foreseeable consequences of loss of control. An experienced instructor’s choice is not automatically reasonable where relevant risks and abilities were not consciously considered. An adult skier retains personal responsibility and should raise serious concerns about an activity believed to be beyond reasonable ability. Where both instructor and skier are at fault, responsibility may be apportioned accordingly.

The claimant suffered catastrophic spinal injuries after colliding with a tree while skiing off-piste during a package holiday in France. He claimed against the tour operator, which was responsible under Package Travel, Package Holidays and Package Tours Regulations 1992, and against the ski instructor, Jerome Portejoie.

The principal issue was whether the instructor had negligently selected an off-piste descent for a group whose members had limited and differing experience, particularly in off-piste conditions. The court also considered foreseeability of serious injury and the claimant’s contributory negligence.

1. Breach of duty. The instructor’s decisions had to be based on the needs and capabilities of the weakest group members. The relevant inquiry was prospective and objective. The descent was steeper than any earlier off-piste terrain attempted by the group, had more difficult snow conditions and contained trees capable of causing serious injury. It was reasonably foreseeable that one of the less experienced skiers might fall or lose control and collide with a tree. The instructor therefore breached his duty.
2. The fact that some skiers completed the descent safely did not determine whether it was reasonably safe for the group. The instructor had failed to assess the claimant’s and Mrs Anderson’s previously demonstrated difficulties. The choice of route was therefore negligent.
3. Bolam and Bolitho. The court did not find the Bolam principle helpful because the instructor had not consciously weighed the relevant risks and benefits. The logical-analysis requirement described in [1998] AC 232 could not validate an assumption that all group members were capable of coping. The approach in [2002] EWCA Civ 915 concerned a different context and did not govern the present facts.
4. Foreseeability. The distinction drawn in [2008] EWCA Civ 907 was inapplicable. Unlike the activity considered there, serious injury from a skiing accident, particularly a collision with a tree, was a foreseeable risk. The claimant therefore established causation and recoverable damage in principle.
5. Contributory negligence. An adult skier under instruction does not surrender all personal responsibility. Where the skier reasonably believes that a proposed activity is beyond his ability or presents a serious safety concern, he should say so. The claimant should have raised his concerns, but the instructor bore the greater responsibility. Liability was apportioned two-thirds to the instructor and one-third to the claimant.
6. Judgment was entered for the claimant for two-thirds of the damages to be assessed.