Anderson v Lyotier (2008) - EWHC 2790 (QB)
Somewhat topical for this time of year, this claim arose out of
a skiing accident on 7 February 2004 in the resort of Puy St
Vincent in the French Alps. Mr Anderson booked a holiday with the
defenders, Snowbizz, including tuition from their ski instructor, a
Mr Portejoie. Mr & Mrs Anderson were grouped with 3 other
pupils, including a considerably more experienced skier. The first
2 days consisted of a reintroduction to basic skiing. On the third
day the group skied on relatively flat off-piste terrain which Mr
Anderson found difficult. Unbeknown to Mr Portejoie, he bumped into
a tree. Mrs Anderson advised Mr Portejoie that she preferred
on-piste skiing. On the fourth day Mrs Anderson was absent from the
lesson and the group skied off-piste through trees. Both Mr
Anderson and another member of the group fell over numerous times.
On the fifth day Mrs Anderson returned and they skied down a steep
on-piste slope. Mrs Anderson expressed concern and had to be
cajoled down the slope with a lot of support from Mr Portejoie. On
the final day the group was asked to ski down a steep off-piste
slope and make a turn round a bush. Mr & Mrs Anderson stated
later that they felt that they were trapped and had no option but
to comply. Mr Anderson lost control and collided with a tree,
sustaining serious injury. He was left wheelchair-bound and
tetraplegic.
In assessing whether there had been a breach of duty the court
considered whether, prospectively and objectively, the ski run and
its condition constituted reasonably safe terrain for all members
of the group. Mr Portejoie argued that he knew the resort very
well, had been present and was able to take everything into account
when deciding the capabilities of the group. He further argued that
the risks he ought to have had in mind when assessing the
suitability of the slope should not reasonably have included an
accident of the sort that befell Mr Anderson.
The court held that the off-piste terrain where the accident
occurred was steeper than any of the group had skied that week, the
conditions required more skill to negotiate than the on-piste
conditions, and there were trees on the slope. Mr Anderson had not
mastered the skills necessary to undertake this in reasonable
safety. Mr Portejoie had simply assumed that everyone in the group
was capable of trying the slope and wanted to do so. Mr Portejoie's
failure to address the concerns of Mrs Anderson showed that he had
not considered conscientiously the capabilities of all members of
the group. He had a duty to choose activities for the group that
were within the competence of the least-able member of the group.
This duty was breached: 'It was, on the basis of their experience
and capacity, both generally and on the basis of what they did that
week, a step too far and, if the question had been addressed he
ought to have seen it as such.' However the court found that Mr
Anderson was one third responsible for the accident. A skier, even
a relatively inexperienced skier under the supervision of an
instructor, does not abdicate all personal responsibility for
deciding to do something the instructor suggests. If the skier
believes the proposed terrain to be beyond him, there is an
obligation on him to say so.
This case does not mean that anyone who suffers injury following
a skiing accident necessarily wins damages. Nor does it mean that
everyone who suffers an injury while under the supervision of an
instructor wins damages. Skiing is an inherently risky pastime and
accidents causing injuries, sometimes very serious, will occur more
often than not without negligence on the part of anyone involved.
The court must be persuaded that the skiing accident was not merely
'one of those things', but rather that it ought to have been
reasonably foreseeable to an instructor who had properly considered
the capabilities of his pupils.
Contributed by Daniela Fusi