Gouldbourn v Balkan Holidays Ltd & Anor

The reasonable care and skill of a supplier providing services abroad is ordinarily assessed by the prevailing local standards, rather than by United Kingdom or western European standards. International safety rules may identify a general duty, but broad rules do not prescribe how that duty must be performed unless the relevant country has accepted and adopted a particular standard. A claimant alleging breach must provide sufficient evidence of the applicable local standards. A tour operator’s liability for proper contractual performance does not itself require foreign services to meet United Kingdom standards.

The claimant, a novice skier, was injured while descending a ski slope during a package holiday in Bulgaria. She alleged that the local ski instructor had inadequately assessed her ability, taken her onto a slope that was too difficult, and failed to give sufficient instruction and supervision.

HHJ Worster dismissed the claim on 6 August 2009. He found that the slope was not inappropriate for beginners, but that there was insufficient evidence that the instructor had fallen below Bulgarian teaching standards. The claimant appealed, contending that international FIS guidance supplied the applicable standard of care.

The central issue was whether the instructor’s conduct should be assessed by the FIS guidance or by prevailing local standards in Bulgaria.

Disposition

The Court of Appeal unanimously dismissed the appeal.

1. Although regulation 15 of the Package Travel, Package Holidays and Package Tour Regulations 1992 made the tour operator liable for proper performance of the contractual obligations, it did not require foreign services to be judged by United Kingdom or western European standards.

2. The governing inquiry was whether the ski instructor exercised reasonable care and skill by reference to the prevailing Bulgarian standards. Wilson v Best Travel [1993] 1 All ER 353 was an important guide, but not an exhaustive code. It would be impracticable to require foreign providers to apply different standards for visitors of different nationalities.

3. The reference in Wilson to uniform international regulations meant that standards accepted and adopted in the relevant country must be included in the assessment. The FIS guidance imposed a broad duty not to expose pupils to risks beyond their capabilities. It did not prescribe the particular method by which a Bulgarian ski instructor had to assess, teach, or supervise a pupil.

4. The trial judge was entitled to find that the chosen slope was a suitable progression for beginners. There was no evidence that the claimant’s performance should have alerted the instructor that she ought not to ski there. Nor was there evidence of the Bulgarian teaching standards by which any asserted shortcomings in assessment, instruction, or supervision could be judged. General FIS guidance and evidence of western European practice could not fill that evidential gap.

Accordingly, the claimant had not established a breach of duty, and the appeal was dismissed.

• Court of Appeal (Civil Division) — dismissed the claimant’s appeal: [2010] EWCA Civ 372.
• Birmingham Civil Justice Centre (HHJ Worster) — dismissed the claim for personal-injury damages in a reserved judgment dated 6 August 2009.