Tag Archives: expert witness

Moore Winter Sports accidents

October 25, 2010

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Emma Moore v. Hotelplan (T/a Inghams Travel) & Mr Adriano Tantera [2010] EWHC 276 (Ch)

This case concerns an accident while undertaking winter sports, more particularly an organised evening snowmobile (‘skidoo’) ride at the Italian ski resort of Passo Tonale in January 2007. The claimant was a 37yr old personal trainer on a group skiing holiday organised by the defendant operator (Inghams). The company subsequently joined a third party (Mr Tantera) to the action as he provided the skidoos and instructed the party as to their use.

The action arose when the claimant lost control of the skidoo as the group was descending down the mountain. The claimant collided at speed with a parked car at the foot of the slope causing spinal injury and paralysis at T5 (mid-chest).

The action was for:

  • breach of contract,
  • breach of tortuous / delictual duties owed under Articles 2050 and/or 2043 of the Italian Civil Code
  • Negligence

The case was made more complicated by the fact that the defendant denied responsibility for the activity and blamed the third party entirely, to the extent that it claimed any actions of the Ingham representative on site were merely as an agent for Mr Tantera.

The Court at [7] identified five key questions:

  1. What were the contractual arrangements for the skidoo trip?
  2. What instructions were given to the claimant as to the control of the skidoo, and in particular was she instructed in the use of the engine cut out, the cut off button?
  3. What was the cause of the claimant’s loss of control of the skidoo?
  4. Would the operation of the cut-off button have prevented the accident?
  5. Was there contributory negligence on the part of the claimant?

Taking each in turn,

Although the holiday was booked by another member on behalf of the group four months previously and purported to exclude liability for any subsequent third party excursions, the Court held at [28] that Mr Tantera operated this excursion on behalf of Inghams through a contract signed in 2002, and viewed the party as Ingham customers [16]. The Court also relied on the fact that the Skidoo’s were advertised in an Inghams’ welcome pack [11], the party paid Inghams for the trip [12], received a receipt on headed Inghams notepaper [12], were not told that the onsite representative (Ms Hodges) was acting for a third party [13], had to exclusively book the excursion through Ms Hodges [24] and had to sign disclaimers (that were subsequently not relied on as they were for a different vehicle) on behalf of Inghams [14]. Given these findings, the contract for the supply of the skidoo excursion was also impliedly subject to the original liability clause meaning that Inghams was liable for any injuries and consequent losses “caused by the lack of reasonable care and skill” on the part of Mr Tantera [29].

Having established potential liability, the next question was to establish whether the defendants through Mr Tantera had breached their duty to the group in failing to give clear operating instructions for the Skidoos. The Court heard a number of mechanical arguments relating to the Skidoos (Polaris 550 Fun Sport Edge 136 Touring snowmobiles), but essentially this section can be summarised as a factual discussion of the safety briefing. The Court heard that all members of the group chose to wear helmets, despite the fact that this was non-compulsory [33], and that several members of the group were complete novices. The party also stated unanimously that the safety briefing took 30 seconds each [34-39], and that no-one was shown what or where the cut-off switch was. This contradicted Mr Tantero’s evidence that he spent 2-3 minutes with each person and that his usual practice was to give such an instruction [41]. The most damning bit of evidence though came from Ms Hodges who described Mr Tantera’s briefing in her witness statement as:

“When he briefs each driver he first asks (in English) if it is their first time on a skidoo, then he switches on the engine himself, they are not allowed to do this. He then tests the accelerator, which is on the right, and says “this is the throttle-accelerator; it is an automatic clutch, no gears”. He then shows them the brake on the left-hand side and says “this is the brake”. Stay in line, five to six metres separation, no overtaking, no slalom.” [40]

 Unsurprisingly the Court preferred the evidence of the party and held that Mr Tantero had not shown the group the cut-off switch, thereby breaching his duty to the claimant.

 The Judge held that the accident occurred when the Skidoo was going too fast on the downhill return leg of the journey, 45mins into an otherwise uneventful trip. Although the Court heard from two expert witnesses, it preferred the defendant expert’s view that an examination of the skidoo after the accident had shown no defects with the mechanical operation of the vehicle, suggesting driver error was to blame for the accident. In particular the Judge held that the claimant most probably drove too close to the skidoo in front of her, swerving to avoid it and in her panic hitting the accelerator rather than the brake [65].

The causation question of whether an application of the cut-off switch could have prevented the accident was comparatively straightforward and the Court held at [74] that it would have done.

The only question remaining was whether the claimant was contributory negligent. At [80], the Court found that there were two errors the claimant made that materially contributed to the accident, the first was driving too close to the skidoo in front, the second was in applying the throttle rather than the brake (although the Court was careful to suggest that she should not be judged too harshly for her confusion in the ‘heat of the moment’). The Court however rejected the argument that the claimant should have noticed and applied the cut-off switch.

In summary, the Court suggested that “the Claimant created the emergency, but as a consequence of the negligence on the part of Mr Tantera in failing to instruct her as to the use of the cut-off button in an emergency, she did not have the means of dealing with it in a manner that would have avoided the accident”, although Mr Justice Owen did award 30% contributory negligence.

There are two other interesting elements to the case that are worthy of consideration, the first is a scathing judgment on the quality of the evidence from one of the defendants experts’ (a Mr Christopher Exall). At [75], the Court suggested that there were: “a number of gravely disquieting features of his evidence, culminating in the assertion in his third report, made under an expert’s declaration of truth, that he had had discussions with a Mr Michael McDowell of Polaris UK, an assertion that, as he was forced to concede in cross-examination, was subsequently untrue. I do not propose to set out the other actions on his part which on any view were indefensible for a witness under an obligation to the court to give impartial and objective evidence. But there can be no doubt that he took on the role of an advocate for the defendant. He did not give impartial evidence, and was wholly discredited as a witness. I could not place any reliance on any part of his evidence.”   Ouch!

The other comment interesting part of the judgment relates to insurance. At [17], the Court quoted from the Defendant Reps Manual Winter 06/07 which contained the following paragraph under the heading ‘Snow-mobiling’: “You will find that snow mobiling and ski-doo’s are offered in many of our ski resorts but the normal holiday insurance cover does not include any liability cover for damage, injury or death caused to third parties. The liability cover held by the operator and included in the price or offered as an extra, is unlikely to be anywhere near adequate in the event of an accident causing serious injury or death to a third party…..”

I don’t know about you, but while the Court did not comment on this paragraph, I think it is worth pausing a few minutes to reflect on it. Essentially isn’t Inghams saying they know that not only is their insurance cover excluded by the holiday contract, but that the operator’s own insurance cover is inadequate, even if purchased as an add-on extra! In fact it makes me so worried, that on my next skiing holiday, it would be perhaps be better if I Skidon’t and we stick to the planks of wood (or fibreglass!).

Youtube clip of a skidoo jump:

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