Michael James Clough v First Choice Holidays andb Flights
Ltd - Court of Appeal (Civil Division) 25th January 2006
The Pursuer, while under the influence of about six pints of
lager, walked along a wall next to a fountain in a Lanzarote
holiday complex where he had booked accommodation with the
Defenders. He slipped and fell into a shallow paddling pool
surrounding the fountain, breaking his neck.
The paint used on the wall breached Spanish regulations for pool
surrounds, as it was not "non-slip". However, it was decided at
first instance that this did not cause the accident. Other pool
users, including the Pursuer, had walked along the wall before
without incident. Given the mix of water and suntan oil, even the
best non-slip paint could not have prevented the surface from being
slippery to some extent. Further, had the Pursuer not drunk so much
lager, the accident probably would not have happened.
The Pursuer appealed, arguing that the lack of non-slip paint
materially contributed to the risk of an accident. The Court
decided that it was not enough to show that a Defender created a
greater risk of an accident in general occurring. It was necessary
to show that the accident that actually did occur, and the injuries
sustained, were at least materially contributed to by the
Defender's negligence. The original judge had decided that proving
lack of non-slip paint was not enough, even if it did increase the
likelihood of slipping. To succeed, the Pursuer needed to show that
the lack of non-slip paint actually caused or materially
contributed to his fall. Given the other factors identified, the
evidence did not bear this out, and so the appeal failed.
It is always worth asking the question, where policy, rules or
regulations have been breached, whether this actually caused the
accident, or whether other factors mean that, on the balance of
probability, it would have happened anyway, even without a breach.
If the breach did not cause the accident, the Pursuer is not
entitled to damages.
Contributed by Lesley Allan