Happier Times for Ski Operators and their Insurers

Court of Appeal clear Balkan Holidays of liability for ski related injuries

In February 2004, Mrs Gouldbourn sustained a knee injury following a skiing accident in the resort of Bansko in Bulgaria during a package holiday organised by Balkan. As part of the package, Balkan provided a “learn to ski” pack which included equipment hire, tuition and ski passes. The ski class began on the nursery slopes where it was claimed Mrs Gouldbourn was struggling. However, after lunch on the second day, the instructor took the class up the mountain to the lower section of the Tordorka run, a more challenging blue slope. When skiing this slope, Mrs Gouldbourn lost control and fell. Her ski bindings failed to release, and as a result she suffered a rupture to the anterior cruciate ligament of her right knee.

The claim was brought on the basis that:

(1) the bindings were mal-adjusted (the ‘Equipment Issue’);

(2) the slope was inappropriate for beginners (the ‘Terrain Issue’)

(3) the standard of tuition was inadequate in that Mrs Gouldbourn was pushed to attempt a slope beyond her abilities (the ‘Tuition Issue’).

The liability experts in the case, Fred Foxon (for Mrs Gouldbourn) and Dr Hormoz Tabar (for Balkan) agreed that properly adjusted bindings would not have released in the circumstances of Mrs Gouldbourn’s accident, and even if the bindings were maladjusted, this would not have caused her injuries. The Equipment Issue was therefore abandoned and only the Terrain Issue and the Tuition Issue were pursued at trial.

The Judge at first instance accepted Balkan’s evidence that lower Tordorka was a slope to which beginners normally progressed after the nursery slope. After hearing evidence from both experts the Judge concluded that the slope was not inappropriate and therefore the Terrain Issue was dismissed.

That left only the Tuition Issue, on which Mrs Gouldbourn relied upon rule E(3) of the FIS Rules for Safety in Winter Sport Centres which stated that:

“The ski school, instructors and guides must never allow their pupils to take any risk beyond their capability especially taking into account the snow and weather conditions.”

It was submitted on behalf of Mrs Gouldbourn that the FIS Rules were a uniform international code of the kind referred to in the case authority of Wilson v Best Travel and that consideration of local standards was therefore unnecessary. In reply, Balkan submitted that the FIS Rules were overarching standards, and that their implementation was subject to local standards and arrangements that applied in Bulgaria.

The Judge preferred Balkan’s position and accepted that Bulgarian standards were applicable rather than the FIS Rules. Mr Foxon’s evidence focused on the practice in Western Europe which favoured a “client centred approach” under the FIS Rules, rather than the “program driven” approach operated by the Bulgarian ski school in this case. However, as Mr Foxton was not an expert on Eastern European standards he could not therefore assist the Court in determining the applicable standards to be adopted in this particular case.

Whilst the Judge took the view that if western standards were applied, there was probably a failure to properly take account of Mrs Gouldbourn’s abilities, in the absence of evidence of Eastern European standards before the court, the principles in Holden v First Choice applied. Mrs Gouldbourn had therefore failed to prove her case.

The Appeal

Mrs Gouldbourn appealed the Tuition Issue. However the Court of Appeal declined to accept that the FIS rules were a uniform international code in that they did not mandate how a ski school was to assess the abilities of its pupils. It was also suggested that when read in context, rule E(3) referred to pupils generally rather than relating to a specific pupil. The appeal was therefore dismissed. Whilst the case did not require re-consideration of the principles of Holden v First Choice, the outcome implicitly endorses it.

Claims involving bindings

A further issue of relevance to skiing cases generally arises out of the Equipment Issue. There is a body of expert opinion that suggests that bindings are designed to protect against tibial fractures and cannot and do not protect against ligamentous injuries. Any case involving such injuries could very well be defended on causation irrespective of any alleged failure in respect of binding settings.

Balkan was represented at trial and on appeal by Tom Poole of 3 Hare Court, instructed by Robin Adams of mb LAW. Please contact Robin at robin.adams@mb-law.co.uk for further details.

Please note this information is for general guidance only and is not intended to be a substitute for specific legal advice.

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