The claimant was on a ski holiday and went on a separately booked night time tour for a toboggan ride. Thus The Package Travel Regulations 1992 did not apply.
However, her representatives from Thomsons did organise the trip and did give some advice about the toboggan ride so a common-law duty arose.
The tobogganists were instructed that they should get out of their toboggan at the end of the ride. This was signified by a flashing red light at its end. They were then to walk down to the cable car station. Instead, the claimant and her friend thought the descent by road to the bottom of the slope was too icy to walk on and so they got into the toboggan again to use that. It then accelerated very quickly to the bottom where she hit some straw bales and was very seriously injured.
The main allegation the claimant brought was that the tour representatives could and should have spaced themselves out so that one was at the bottom of the run to warn them not to toboggan onwards down to the bottom car park but to get out and walk from the end of the run.
However the court found the purpose of positioning such a person would only have been to repeat a warning already given, not to remount the toboggan, and to point out the obvious fact that there was a safe descent walking in the snow at the edge of the road rather than on the icy road itself.
The Judge commented on the duty of a tour operator dealing with “rational adults on a winter holiday to repeat simple warnings already given with clarity or to point out obvious dangers of ice on the road and relative safety of snow at its side. To hold this would only encourage potential claimants to believe that, whenever an injury occurs, someone must be to blame. That is not what negligence is about”
Case dismissed.
Incidentally, counsel for the defendant had said that the claim had to fail in tort because no Austrian law had been pleaded and the Private International Law (Miscellaneous Provisions ) Act 1995 provides that the general rule is that the applicable law is the law of the country in which the tort in question occurs.
The Law Lords described this as a “rather breathtaking submission which was, in any event, hopeless.
Even if the Judge had been required to apply Austrian law, he had no evidence it was any different from English law and in those circumstances he would have to assume that Austrian law was the same as ours and would have come to the identical conclusion as to that which he in fact came”.
In any event the Appeal was dismissed.
Susan Parker -v- TUI UK Ltd [2009] EWCA CIV 1261