Who can you blame for package holiday accidents?
- By James Ferguson
The Court of Appeal in Dublin recently considered a case of volenti non fit injuria, that is: ‘to one who volunteers, no harm is done’ in the context of a ‘White Knuckle Jet Boat Thrill Ride’ package holiday excursion.
In 2016, the appellant dance teacher and her husband went on a Caribbean cruise to mark her 50th birthday and their silver wedding anniversary.
At one of their ports of call, St Maarten, they had pre-booked a supplementary ‘White Knuckle Jet Boat Thrill Ride’ which was described as ‘an adrenaline-infused rush from a water rollercoaster ride’ consisting of ‘extreme manoeuvres… at high speed’ for 30 minutes ‘that will have you involuntarily laughing… praying for your life and… will knock you silly!’
The appellant was seated beside the skipper in the boat when he performed a 360-degree turn at speed. Although she had followed the safety instructions, including to remain seated and hold on to a horizontal bar, the appellant was lifted out of her seat – clashing heads with the skipper. He told her to swap places with her husband, before repeating the 360-degree manoeuvre.
This time, she was thrown back with some force, hitting her elbow against the gunwale sustaining ‘an undisplaced fracture of the right lateral epicondyle’ (a broken elbow).
The cruise was a ‘package holiday’ and so the appellant sued the organiser and the travel agent.
Analogies can be drawn to the football field: in Condon v Basi (1985), the defendant broke the claimant’s leg in a ‘vicious’ tackle. Although his participation in the game was voluntary, the defendant’s actions went beyond the rough and tumble and so fell below the requisite standard of care.
However, to establish a breach of duty one must have regard to the local standards. The court cited with approval the approach in Northern Ireland of Maguire J in Kerr v Thomas Cook (2015):
In this case, there has been no evidence adduced by the plaintiff which establishes the standard of care which the court should apply. It seems to the court that, unless there is such evidence, the court is unable to conclude that there has been a breach of the obligation. Consequently, with reluctance, the court is forced to conclude that the plaintiff has failed to prove her case.
Unlike the fouled footballer, it could not be said that the appellant did not know what it was that she had signed up for. Like the plaintiff in Kerr, the appellant did not make her case.
Even a cursory viewing of the promotion material for this boat ride showed that the passengers could expect to be subjected to significant forces and impacts which might result in bumps and bruises. It would be entirely unreasonable to suggest that such without more, could give rise to liability on the part of the operator
In dismissing the appeal, the Court of Appeal upheld the decision of the High Court that ‘it was simply an injury which occurred in the course of vigorous activity’ and the conclusion that ‘…the appellant had not established any negligence on the part of the defendants or any liability under the [statute]…’.
Volenti non fit injuria.
If you knowingly place yourself at risk, you cannot expect to recover when that risk is realised. If you are claiming a breach of duty, you must establish what that duty was.
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