Gouldbourn v Balkan Holidays Ltd and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Leveson,Lord Justice Jacob,Mr Justice Briggs |
| Judgment Date | 16 March 2010 |
| Neutral Citation | [2010] EWCA Civ 372 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B3 / 2009 / 1960 |
| Date | 16 March 2010 |
[2010] EWCA Civ 372
(His Honour Judge Worster)
Before: Lord Justice Jacob
Lord Justice Leveson
and
Mr Justice Briggs
Case No: B3 / 2009 / 1960
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BIRMINGHAM CIVIL JUSTICE CENTRE
Mr T Clark (instructed by Messrs Challinors) appeared on behalf of the Appellant.
Mr T Poole (instructed by MB Law) appeared on behalf of the Respondent.
Lord Justice Leveson:
In a reserved judgment dated 6 August 2009 His Honour Judge Worster dismissed the claim for damages and personal injury brought by Mrs Karen Gouldbourn against Balkan Holidays Limited in respect of an injury that she sustained on 17 February 2004 when she fell on a ski slope during the course of a six day package holiday to Bulgaria. She now appeals against that decision by leave of Smith LJ.
Although a number of allegations were initially pleaded against the holiday company, by the time of the trial, the central allegations of negligence were that the ski instructor had failed adequately to assess Mrs Gouldbourn's skiing ability, had taken her to a slope that was too difficult for her and had failed to “maintain sufficient instruction and/or dialogue with [her] whilst on [that] run in order to ensure her safety”.
The background facts are as follows. On Saturday 14 February 2004 Mrs Gouldbourn and her husband flew from Manchester to Sofia for a week's skiing holiday with Balkan Holidays at the Bansko Resort Bulgaria. As part of the package, they booked a six-day learn-to-ski pack at a cost of £89 each: she had never skied before and the learn-to-ski pack was specifically designed for beginners.
The ski school was run by Ulen AD, a local operator, and they attended for the first time on the day after they arrived, Sunday. Their instructor was a Mr Damianov, who was a Grade C instructor with six years experience. Grade C is the highest grade for instructors in Bulgaria. Unfortunately the weather was poor and not much skiing was possible. The following day, Monday, the lesson began at 10.00am on the nursery slope, which was a large area with a shallow slope. There were about 12 people in the class, a mixture of complete novices (as Mr Damianov knew Mrs Gouldbourn was) and some who had skied before. They practised snowplough braking, turns and the use of lifts. She did not remember falling over on the nursery slope, which the judge observed was some indication of her progress, but another member of the class, Mrs Mackay gave evidence that although some were more adept in picking up the basics, some (including Mrs Gouldbourn) were struggling.
On the Tuesday, the morning was again spent on the nursery slopes, practising the same moves as the previous day. Both Mrs Gouldbourn and Mrs Mackay felt that Mr Damianov was pushing them perhaps quicker than was appropriate. Suffice to say that, at lunchtime that day, he informed the group that he wanted to take them up the mountain, which he said was just like the nursery slope and very easy. Mrs Mackay said that two of the group refused to do so.
For the sake of completeness, I ought to add that there was an issue at the trial about whether the run on to which they were taken, the lower section of the Tordorka run, was a part of a red run and too difficult for novices: it is unnecessary to rehearse the comparatively extensive evidence on this topic because the judge concluded that the lower section of Tordorka was a regular next step for beginners progressing from the nursery slope and not inappropriate for beginners. He was not satisfied that it was too steep for her and rejected the pleaded negligence which alleged the contrary.
Returning to the day of the accident, Mrs Gouldbourn explained that although she was not altogether happy with the position, she travelled up the ski lifts with Mr Damianov. She got to the top of the lower section of the Tordorka. There was no instruction at the top of the run before they went down. Mr Damianov told the group to follow him and he set off. Mr Gouldbourn went first, then his wife and then Mrs Mackay. Mrs Gouldbourn completed two snowplough turns but on the third turn she lost control, was unable to stop and fell injuring her knee. Mrs Mackay saw her fall, Mr Damianov came back up the slope to help and Mrs Gouldbourn was taken down the mountain. The judge explained that there were some justifiable complaints about the lack of care she received in that process.
Having rejected the allegation that the skiing party was taken to a slope that was inappropriate for beginners, the main issue at the trial was whether Mr Damianov had exercised reasonable care and skill in his assessment, instruction and supervision of Mrs Gouldbourn. Mr Damianov, who no longer worked for the ski school, did not give evidence. The judge did, however, hear from Georgi Glavcev, who is a representative of Ulen AD, the ski school who were Part 20 defendants deemed to admit the claim by Balkan Holidays Limited and bound by the main judgment, although he was in fact called by Balkan Holidays. Additionally two experts gave evidence, Mr Fred Foxon for the claimant and Dr Tabar for the defendant.
Mr Glavcev confirmed there was a programme to which every day the instructors worked. Depending on the weather, every group was supposed to do the same activities at the same date and time although if a group was progressing very slowly they may not be taken to the lower section of Tordorka on the third day; it was a matter for the instructor. The judge summarised the evidence from the experts on this approach in this way:
“27. Mr Foxon gave evidence that this type of proceduralised system with its set progression of activities was common in the 1950's to the 1970's but that since the 1980's the practice in western Europe had become more client centred. However Mr Foxon did not confess to be an expert in the practice of ski schools in Bulgaria, a country which is usually described as being in eastern Europe, and which is a relative newcomer to the ski holiday market. The procedural approach meant that people had to sink or swim. If they didn't keep up, they were shed from the class. His evidence was that it did not deal with the psychological aspect of skiing”
As to the instructor's instruction at the top of the slope the judge went on:
“Mr Foxon's view on this aspect of the case (based upon his expertise in relation to the client centred approach in western Europe) was that saying ‘follow me’ was far from enough. Dr Tabar was a little more robust. He pointed out that you have to start somewhere. Teaching by demonstration was common and something he did when teaching beginners. He said that he thought he would give some greater explanation, saying turn when I turn, and go a few turns and wait. He would always have the needs of the weakest member of the group in mind. But again he had no experience or knowledge of the standards applicable or teaching methods used in Bulgaria. He said that he did not have enough evidence to come to a judgment as to the level of instruction given to Mrs Gouldbourn.”
As the assessment which Mr Damianov should have made of Mrs Gouldbourn, whom Mrs Mackay described as struggling, the judge reserved that he had no evidence as to what assessment he did in fact make or what assessment he should have made on the basis of that...
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