Susan Parker v TUI UK
Court of Appeal, Civil Division 27th November 2009
The claimant, Ms Parker participated in a tobogganing event while on holiday in Austria, which was booked, but not organised, through TUI. The end of the toboggan run was marked by a red light, at which point participants were required to disembark from their toboggan and walk to the end of the course.
Ms Parker completed the course, but then re-mounted her toboggan after the red light and subsequently crashed into a barrier.
The judge at first instance dismissed the claim and held that there was no contract between TUI and Ms Parker and although it did owe her a duty of care, this had not been breached. The judge found that participants had been briefed on several occasions to dismount at the red light and walk to the end of the course, and that it was possible to avoid the icy area causative to the accident.
On Appeal, it was argued that there was a contract in place between TUI and Ms Parker; there should have been a risk assessment in place for the lower end of the course and a safe system ought to have been in place to prevent participants from remounting their toboggan after the red light.
The Court of Appeal found that there was a duty of care, but a risk assessment would/would likely have stated that participants should be warned to dismount at the red light, which is what occurred in any event. There was a system in place and having a person at the red light to re-warn participants to dismount would not have prevented them remounting further towards the end of the course that was out of sight.
Mr Justice Longmore held that TUI should not be under a duty to repeat simple warnings to adults, setting out obvious dangers. This would only encourage potential claimants to suppose that someone else must be to blame when an injury occurs. The Appeal was dismissed.
This decision is encouraging and follows the line of Judicial reasoning that began in Tomlinson v Congleton. It reinforces the philosophy that if a claimant is injured as a result of an inherently dangerous act, it is possible that the fault could lie with that individual.