Evans v Kosmar Villa Holidays Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards,Lord Justice Hooper,Lady Justice Arden |
| Judgment Date | 23 October 2007 |
| Neutral Citation | [2007] EWCA Civ 1003 |
| Docket Number | Case No: B3/2007/0021 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 October 2007 |
[2007] EWCA Civ 1003
Lady Justice Arden
Lord Justice Hooper and
Lord Justice Richards
Case No: B3/2007/0021
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
His Honour Judge Thorn QC
Graham Eklund QC (instructed by Kennedys) for the Appellant
Alan Saggerson (instructed by Hugh James) for the Respondent
Hearing date: 26 July 2007
In August 2002, three weeks short of his eighteenth birthday, James Evans was on holiday with a group of friends at the Marina Beach Apartments in Kavos, Corfu. The holiday had been booked with a tour operator, Kosmar Villa Holidays plc (“Kosmar”). The apartment complex was under independent Greek ownership and management but was contracted exclusively to Kosmar and was featured in Kosmar's brochure. It included a small swimming pool. Towards the end of his stay, in the early hours of the morning, Mr Evans dived into the shallow end of the pool and hit his head on the bottom, sustaining serious injuries which resulted in incomplete tetraplegia. He brought a claim for personal injuries against Kosmar. His Honour Judge Thorn QC, sitting as a judge of the High Court, found Kosmar liable for the accident, subject to a finding of 50 per cent contributory negligence. Kosmar now appeals against that decision.
It is clear that the claimant is a remarkable young man. The judge not only found him and his friends to be completely frank witnesses, unreservedly accepting their evidence as against any conflicting evidence for Kosmar, but also commented on how impressive the claimant had been at making the best of his disabilities after the accident and congratulated him on the triumphs he had achieved over his undoubted personal disaster. The warmth of the judge's remarks is a fine tribute to the claimant. As the judge himself made clear, however, that cannot affect the court's decision in the case, which must depend on the application of the relevant legal principles to the facts as found.
By contrast, the judge found that Kosmar's lay witnesses had “variously committed themselves to an early and false joint account to save their backs” and on several issues was driven to the conclusion that “not only have they lied, but that they also put their heads together, probably at several stages, and conspired together to deceive” (para 15). Such conduct is a deeply troubling feature of the case and reflects very badly not only on the witnesses themselves but also on Kosmar. It will no doubt have added to the sympathy that the judge rightly felt for the claimant. Again, however, none of this can affect the legal analysis.
The facts
The judge described Kavos as the sort of resort that was typically aimed at young single people holidaying without adult supervision, not infrequently in groups of already formed friends, and with ample opportunities to drink substantial quantities of alcohol for very substantial periods, or indeed all of the day and night, and generally for the traditional night to be turned into day. He said that the operation at the Marina Beach Apartments was particularly well set up to provide for the young and lively and to fit in with the commercial opportunities at the resort. It was generally free from any real rules, and relaxed to the point of permitting most things that kept the youngsters happy.
The complex itself was next to the beach and consisted of a number of studios and apartments, a bar and the pool. A path ran from the accommodation block past the pool to the bar. The path was separated by a flowerbed from the paved area around the pool itself. The judge found that the bar might sometimes have closed by midnight, but more frequently it stayed open as long as there were guests wanting to drink. When the bar closed, the lights in the swimming pool and bar area were turned off, but the lights on the path remained lit. The judge rejected a defence contention that the pool was then closed. He found that its use by guests was continued and authorised.
The pool was 11.2 metres long and 5.8 metres wide. At the deeper end, furthest away from the accommodation block, the maximum depth of the water was almost certainly no more than 1.5 metres, though there was a ledge under the water on which people could stand. At the shallow end, the depth of the water was probably only about 0.8 metres. There was a small depth marker at each end of the pool, though they were probably not visible at night.
The experts agreed that the pool's dimensions made it unsuitable for diving. There were two small “no diving” signs in the general area of the pool at the material time. One was on the wall of the toilet block, on the other side of the path running between the accommodation block and the bar, though the judge found that there was shrubbery hanging partly over and adjacent to the sign. The other sign was on a tree on the far side of the pool, close to the bar area. Both signs were among a collection of other notices. Despite the existence of those signs, diving was in practice a regular occurrence. Indeed, the judge found that “the Defendant knew full well that not only was the pool regularly used when the bar was shut, but also that diving did take place, probably on a regular basis, and without any reproof or reprimand” (para 19(4)(e)).
The judge accepted that the claimant had probably used the pool only once before the accident, on the Tuesday morning of his stay. In his witness statement, from which the judge quoted extensively, the claimant said that on that occasion he jumped into the deep end to cool off and stood on the ledge, leaning over the edge and talking to friends. He did not go into the shallow end. A little later he referred to his having seen people diving in from all sides and at all ends. He never thought that people would dive in like that to a shallow pool, and consequently he assumed that the pool was reasonably deep all around. He was not aware of there being a significant change in depth between the end he was using and the opposite end. He did not recall seeing any signs pointing out the depth of the pool or stating that there was to be no diving.
On the Wednesday evening the claimant went out with his friends for a meal and stayed out late. When he returned with one of his room-mates, they stayed in their apartment talking until about 3.30 a.m. They had also woken up their other room-mate. It was very hot and they had the windows open. There was a lot of noise from the pool. They could not sleep, so they thought “if you can't beat them, join them” and went out to the pool. The claimant's witness statement continued:
“18. … There were many other people using our pool and also the pool in the next door hotel. We couldn't see anyone else we knew there. The bar was shut and the light was poor as we were relying on light from next door and from the apartments. People were diving in all over the place so I had no reason to think there would be a problem if I did the same. I had not seen any depth markings when it was light so none were apparent in the darkness. At the same time I also could not assess the depth of the pool before I entered but no-one else was having a problem so I assumed all would be fine if I dived in.”
The claimant went on to explain that he had learned to swim at about the age of 8 and had used pools in Turkey and Spain on family holidays as well as in the United Kingdom. He knew that you should not dive into water if you do not know how deep it is. However, he had assumed that this pool was safe. Because he was unaware of the depth of the pool and because he thought that it was perfectly safe to dive in, having seen other people doing it, he walked up and dived in. His was, as he recalled, “a very ordinary racing type of dive out into the water”. The dive was in fact into the shallow end, close to the point where there are ladder-type steps into the pool. He hit his head on the bottom and, it seems, was fortunate to be rescued before he drowned.
In cross-examination by Mr Eklund QC, the claimant made a number of further important concessions. The judge summarised the effect of the cross-examination as follows:
“29. … Jamie was clearly a reasonably experienced swimmer, as his witness statement indicated. He had known that pools were bound to vary in size, in shape, and in depth, and that the shape of the bottom of pools could, and did, vary. He agreed that he knew that most pools have a deep and a shallower end, albeit he commented they are usually marked with such in his experience. He admitted that he knew that knowingly diving into a shallow end could be a very dangerous thing to do, and it could be a dangerous thing to dive in if he did not know the depth of the swimming pool. He admitted that he knew that it was dangerous to dive in if he could not see the bottom of the pool, but he added 'I saw others diving in'. He admitted that he could have looked for depth markers, but commented that he did not recall seeing any of them; nor had he recalled seeing people swimming in this pool during the holiday, although he supposed he must have done. He had no recollection of people standing in the shallow end and thereby indicating it since probably half of their body would then be out of water.
30. In cross-examination, the Claimant added, 'I simply did not know it was the shallow end. I only had got wet in the deep end previously to cool off. I assumed...
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