Mr Justice Owen :
- On 18 January 2007 the claimant, Emma Moore, was seriously injured whilst on a skiing holiday in Italy. Mrs Moore is a married woman, the mother of two young children. At the date of the accident she was 37 years of age having been born on 21 January 1969. She worked as a personal trainer/keep fit instructor.
- In January 2007 the claimant joined a group of friends on a skiing holiday organised by the defendant, a holiday tour operator, in the Italian ski resort of Passo Tonale in the Italian Alps. The group stayed at the Paradiso hotel. The holiday was booked for a week, 13 - 20 January. On the evening of 18 January the claimant and others in the party took a snowmobile trip. The snowmobiles, to which I shall refer as 'skidoos', were provided by the third party, Adriano Tantere, who both instructed the group in their use and led the group.
- As the group were descending, and approaching the village of Passo Tonale, the claimant lost control of the skidoo that she was driving, and in the ensuing collision with a car parked in the car park at the foot of the slope, suffered multiple injuries, the most serious of which was a spinal injury rendering her a complete paraplegic at the T5 level. In lay terms she is paralysed below the mid chest. She is wheelchair-bound and will never walk again. All normal control of personal functions below T5 level has been lost.
- The claimant seeks damages against the defendant for breach of contract, or alternatively for breach of tortious/delictual duties owed to her under Articles 2050 and/or 2043 of the Italian Civil Code, or for negligence if the defendant succeeds in its argument that English law applies to the claim. By its defence, the defendant denied that the accident was caused by its breach of contract or breach of tortious duty of care. It further denied that the skidoo trip was arranged and/or organised as part of the skiing holiday, and asserted that it was organised and provided by the third party; and that in so far as its resort representative, Ms Hodges, was involved in the arrangements for the skidoo trip, she was acting as agent for the third party. The defence further denied that the applicable law is that of Italy, asserting that the relationship between it and the claimant was governed by the law of England.
- The defendant served a Part 20 notice on the third party in which it alleged that the accident in which the claimant sustained injury was caused by the breach of contract and/or tort of the third party. It is further alleged that at a date in or before 2002 the defendant contracted with the third party for the provision of skidoo excursions, a contract in which there were implied terms as to the manner in which the third party would provide such excursions. By its defence the third party denied any liability, whether contractual or tortious, for the injuries to the claimant, and denied in particular that there was any contract between it and the defendant for the provision of such excursions, asserting that the only contract between the defendant and the third party was one of agency, under which the defendant was authorised on behalf of the third party to conclude contracts between the third party and the defendant's clients for skidoo excursions to be provided to such clients by the third party.
- On 30 April 2009 Master Eyre ordered a split trial, the first trial to address the issues of liability between claimant and defendant in both contract and tort, to include questions of the applicable law and contributory negligence. On 14 October 2009 the third party sought permission to participate in the liability trial. Permission was refused by MacDuff J; but on 29 October the Court of Appeal granted permission, such participation to include the cross-examination of witnesses, the calling of factual witnesses and the making of submissions at the close of the evidence.
- The trial of the issue of liability gives rise to the following issues -
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?
What were the contractual arrangements for the skidoo trip?
- The holiday was advertised in the defendant's brochure 'Early Bird (First Edition) Ski Winter Brochure 2006-2007'. The booking was made by Mr Warner on behalf of the group, the booking invoice being dated 21 September 2006, and the cost was divided equally between the members of the party. It is common ground that the holiday contract was governed by the terms set out in the booking conditions at pages 305-306 of the Early Bird brochure. They contained a section headed "Our Liability" which is in the following terms –
"We promise to make sure that all parts of the holiday we have agreed to arrange as part of our contract are provided to a reasonable standard and in accordance with that contract. We also accept responsibility for what our employees, agents and suppliers do or do not do. However, please note that we will not be liable for any injury, illness, death or consequent losses suffered by you or any member of your party unless you are able to prove that such injury, illness, death or consequential losses was caused by lack of reasonable care and skill on the part of ourselves or our suppliers.
And in all claims of whatever nature we will not be liable where the alleged loss or damage results from any of the following:-
(a) the fault of person(s) affected or any member(s) of their party or
(b) the fault of a third party not connected with the provision of your holiday which we could not have predicted or avoided or
(c) an event or circumstances which we or the supplier of the service(s) in question could not have predicted or avoided even after taking all reasonable care [see Force Majeure]
(d) the fault of anyone who was not carrying out work for us (generally or in particular) at the time.
In addition we will not be responsible (i) where you do not enjoy your holiday or suffer any problems due to something about which you did not tell us when you booked your holiday and where the problems you suffered did not result from any breach of our contract or other fault of ourselves, our suppliers or agents.
(ii) Where any losses, expenses, costs or other sum you have suffered relate to any business. Please note, we cannot accept responsibility for any services which do not form part of our contract. This includes, for example, any additional services or facilities which your hotel or any other supplier agrees to provide for you where the services or facilities are not advertised in our brochure and we have not agreed to arrange them.
The promises we make to you about the services we have agreed to provide or arrange as part of our contract- and the laws and regulations of the country in which your claim or complaint occurred- will be used as the basis for deciding whether the services in question had been properly provided. If the particular services which give rise to the claim or complaint complied with local laws and regulations applicable to those services at the time, the services will be treated as having been properly provided. This will be the case even if the services did not comply with the laws and regulations of the UK which would have applied had those services been provided in the UK. In respect of travel by air, sea and rail, our liability will in all cases be limited as if we were carriers under the appropriate Conventions, which include:- The Athens Convention, the Montreal Convention and the Berne / Cotif Convention. In all cases except where personal injury, illness or death results, our liability is limited in total to twice the holiday price of the person(s) affected".
- The section of the brochure devoted to Passo Tonale has a section headed 'Resort Attractions', which contains a list including "Toboggoning, cross-country skiing, ski-doos, horseriding, walking, ice-skating; shops, good value restaurants, pizzerias, restaurants offering both local and international cuisine, several bars, disco…".
- In due course the defendant sent a further document to the group entitled "Holiday and Travel Winter 06/07". Its introductory paragraph is in the following terms –
"You are soon to depart on an Inghams holiday knowing that seventy years experience is behind all the arrangements made on your behalf. This booklet is intended to help you to have a relaxing and trouble free holiday by offering helpful information for use prior to and during your holiday.
The information within this booklet is correct to the best of our knowledge to the time of going to press. However, no responsibility can be accepted for errors or omissions"
The section of the document headed 'In resort information' contains the following-
"ARRIVING AT YOUR RESORT
In most hotels all your resort information including the office and visiting hours of your representative is displayed on the notice board and the Inghams information book….all guests receive an information/welcome pack.
EVENTS AND EXCURSIONS
During your stay, weather conditions permitting, your representative will try to arrange events, which could include 9-pin bowling, folklore evenings, fondue, raclette, dog sledding, snow mobiling etc. dependent on the facilities available in the resort. Please note that payments for these optional events will always be made with credit card. Representatives will provide you with full details of all available excursions and resort activities.
HAZARDOUS ACTIVITIES
Certain activities deemed as hazardous are not organised or promoted by Inghams and as such we can take no responsibility in respect of them. Our local staff will be available to advise you further on events we can offer."
- On arrival in Italy late on Saturday 13 January 2007, the party was met by the resort representative, Ms Hodges. She provided each member of the party with a welcome pack which included information as to events and excursions that Inghams could organise, and in particular an event list entitled "There's more to life than skiing" which set out details of events or activities available at the resort. It advertised the 'SKIDOO SENSATION' on the Tuesdays and Thursdays at a cost of €75 per skidoo. The foot of the document carried the following endorsements-
"Please check that you have the correct voucher and meeting point details with you for all events.
Our suppliers operate a strict cancellation policy, 24 hours cancellation notice required.
For skidoos….you are advised to book before Monday evening to avoid disappointment."
- Having decided to go on the skidoo excursion, the claimant and a number of others approached Ms Hodges on the Monday or Tuesday after their arrival, and asked her to arrange the excursion, which she duly did. She was paid in cash. As Mr Warner recalled '….we met in the foyer at a given time…Jane was going to meet us there to take the names and the payments of whoever was going to go on the skidoo trip. As I recall, it ended up with being quite a pile of money on the table in reception, the coffee table in reception, I think we counted it out and handed it in block to Jane." Ms Hodges then provided Mr Warner with a receipt which was headed with the defendant's logo and a serial number, and which described the event/excursion as "skidoo", set out the time, date, price and numbers involved, and identified the "Venue/Meeting Point" as "Skidoos opposite Hotel".
- A number of the witnesses called on behalf of the claimant gave evidence as to their understanding of the arrangements made with Ms Hodges. Mr Warner said that 'Inghams seemed to be the organisers of the trip and collected the money for the excursion'; Mrs Dawson said 'Inghams tour rep, Ms Hodges, organised the booking for us and Inghams were the organisation we paid our deposit for the trip to'. Similarly in cross examination Mrs Osbourne said '…as an Inghams representative I believed it was a service offered by Inghams'. Importantly Ms Hodge did not suggest in her evidence that she had informed the members of the group that she was acting as an agent for Mr Tantera. She said that she usually told customers, particularly those at the Paradiso hotel that 'we (meaning Inghams) used the garage opposite'.
- The group duly assembled in the foyer of the Paradiso hotel at the appointed time on Thursday 18 January where they met Ms Hodges. She then took them across the road to Mr Tantera's skidoo garage. At the garage she handed out a form in both Italian and English headed "Declaration of liability", and asked each member of the party to sign it. It contained an exclusion of liability which is not now relied upon by the defendant. Nevertheless the evidence as to the circumstances in which it came to be distributed and signed, is material to the contractual issues to which the case gives rise. There was nothing in the document to suggest that the members of the party were contracting directly with Mr Tantera, or that Ms Hodges was acting as his agent. Moreover in the course of cross-examination, and when pressed as to its contents, she said "this is – a disclaimer I had and that's the one that I used because I thought, well-I didn't have the Inghams one on me at the time, and so I used this one so that the guests would be aware that they had to take responsibility for their own driving." Counsel for the claimant pressed her as to why she was inviting the members of the party to sign a document containing a declaration that they were able to drive motorised sleds, a declaration that she knew not to be true. Her response was unsatisfactory. But the significance of the answer set out above is that she would have used the Inghams' disclaimer if she had had it with her. That undermines the contention advanced on behalf of the defendant that she was acting as agent for Mr Tantera. If acting as his agent, why use an Inghams' disclaimer?
- What then was the evidence as to the arrangements between Inghams and Mr Tantera? A former Inghams representative at the resort, Ms Louisa Edwards, gave evidence that Mr Tantera '….was the established supplier then, or I thought the only supplier.' Mr Hugh Walton, the defendant's operation director, confirmed in cross-examination that there was an agreement between the defendant and Mr Tantera that he would be the supplier of the skidoo excursion. Ms Rita Kennedy, another former resort representative, said in her witness statement '…I was only allowed to sell those which Inghams had contracted with. We would not be allowed to use just any suppliers.' Similarly Ms Federica D'Alessandro, another former employee of the Defendant, confirmed that Mr Tantera was the 'chosen supplier' for the ski-doo excursion. Ms Hodges herself confirmed in cross-examination that Mr Tantera was '…running the ski-doo operation on behalf of Inghams'.
- Mr Tantera addressed his relationship with the Defendant in his witness statement in the following terms-
"9. My relationship with Inghams has been continuing for a number of years, and it worked as follows – the Rep would always come to see me at the start of each year to find out my rates for the year, and agree the Inghams commission. Ms Hodges was the Inghams rep for winter 2006/7 season. The practice was for the reps to come on excursions at the very start of the season, so that they know what is involved. Normally the reps take part in the excursions at the start of the season to familiarise themselves with them.
10. The cost of each skidoo ride during that season was €75. The reps took €10 commission then passed the remaining €65 to me…."
But in cross-examination there was the following exchange between Mr Tantera and counsel for the claimant:
"Q. Inghams say they've had a contract with you since 2002.
A. I think so, yes.
Q. And they go (collect the clients) and they brought them to your garage?
A. yes
Q. And they took a fee?
A. yes…
Q. Were these Inghams' customers or your customers?
A. Inghams."
- It is also to be noted in this context that the Defendant's Reps Manual Winter 06/07 contains detailed instructions as to the handling of payments for "ski packs and excursions", and requires their representatives to make weekly reports setting out inter alia the details of sales of excursions. The manual also contains the following section 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.
You may sell skidoo-snowmobiles only if :
1. You are satisfied that the equipment and instruction are of an adequate standard.
2. Your paying guest's signature beforehand on a disclaimer, absolving the company of third party liability. These disclaimers must be enclosed with your sales reports"
- The opposite page of the manual contains a sample Inghams disclaimer, which was no doubt the disclaimer that Ms Hodges would have used that evening if she had had it with her.
- It is submitted on behalf of the claimant that the defendant is liable to her under the terms of the holiday contract, alternatively if the skidoo excursion was the subject of a separate contract, that the defendant is liable to her under that contract, either as principal or as agent for an undisclosed principal. It is the defendant's case that the holiday contract does not give rise to any liability in relation to the skidoo excursion, and that the claimant and fellow members of her group contracted with Mr Tantera, albeit through the agency of Ms Hodges.
- The first question is therefore whether the defendant is liable to the claimant under the terms of the holiday contract. A skidoo trip was identified by the defendant in the Early Bird Brochure as one of the resort activities available at Passo Tonale, and at page 304 under the heading 'Resort Activities' the brochure said –
"We are informed that the activities referred to on the resort pages are available. However they are not organised by us nor can we guarantee that they will be available. Furthermore we consider some of these activities to be hazardous and unless they are organised or booked by us we can take no responsibility in respect of them."
- Mr McParland argued that the skidoo trip was organised or booked by Ms Hodges as the defendant's resort representative, that Mr Tantera was one of the defendant's suppliers within the meaning of the 'Our Liability' clause in the booking conditions, and that in consequence the defendant is liable to the claimant for the acts or omissions of Mr Tantera by virtue of their acceptance of 'responsibility…for what our employees, agents and suppliers do or do not do' under that clause.
- The difficulty with that argument is that the holiday contract entered into by Mr Warner, on his own behalf and on behalf of the remainder of the party, related solely to the services set out in the invoice issued by the defendant, namely flights, accommodation and other related items. It did not include the skidoo trip, and under the "Our Liability" clause, liability was expressly limited to "all parts of the holiday we have agreed to arrange as part of our contract".
- But the question then arises as to whether the arrangements made at the resort between the party and Ms Hodges amounted to a contract with the defendant, and if so, what were the terms of that contract.
- The arrangements were made in the following context. The defendant's information pack had informed the claimant and other members of the party that the resort representative would provide 'full details of all available excursions and resort activities including 'snowmobiling', all being '…events we ...the defendants) can offer.' Secondly, I am satisfied on the balance of probabilities that the event list that I have described at paragraph 11 above, was distributed to the members of the group by Ms Hodges. It was an Inghams document; and it was clearly to be inferred both from its content, and from the fact that it was distributed by the defendant's resort representative, that arrangements for such events or excursions were to be made by her.
- That proved to be the case as the trip was arranged with Ms Hodges. She took the payment, and gave the receipt bearing the Inghams logo. There was no suggestion by her that she was acting as agent for Mr Tantera. As she said in evidence it would normally have been her practice to ask those signing up for the skidoo excursion to sign an Inghams disclaimer. That could only be consistent with her contracting with the customers for the supply of the skidoo excursion on behalf of Inghams.
- Furthermore, the evidence from Ms Hodges as to her practice in relation to the Inghams disclaimer, see paragraph 14 above, affords strong support for the existence of a contract between the group and Inghams. So too does the evidence from Mr Tantera, see paragraph 16 above, that he was in a contractual relationship with Inghams, and that the members of the party were Inghams' customers.
- I am satisfied that the arrangements made between the members of the party and Ms Hodges amounted to a contract for the supply of the skidoo excursion. I am reinforced in that conclusion by the position taken by the defendant in relation to the third party as set out in the Part 20 Particulars of Claim, a pleading endorsed with a statement of truth. It states that "on a date on or before August 2002 the defendant contracted with the third party for the provision of the said excursion". That is the basis upon which it claims an indemnity from the third party, and is an assertion which is entirely consistent with the existence of a contract for the supply of the skidoo excursion between the claimant and the other members of the party and the defendant, but wholly inconsistent with the contention advanced on behalf of the defendant that there was no such contract, and that Ms Hodges was simply acting as agent for the third party.
- It is then necessary to consider the terms of the excursion contract. The holiday contract provided the context within which it was entered into. To view it in isolation from that contract would be wholly artificial. Given the existing contractual relationship between the parties, I am satisfied that the contract for the supply of the skidoo excursion was impliedly subject to the terms of the holiday contract, and in particular to the "Our Liability" clause in the booking conditions. The clause applied to the skidoo excursion as it was a service that Ms Hodges "agreed to provide or arrange", and Mr Tantera was a supplier within the meaning of the clause.
- Accordingly the defendant is liable to the claimant under the terms of the excursion contract for injury and consequent losses "caused by the lack of reasonable care and skill" on the part of Mr Tantera as its supplier, subject to the exclusions set out in the "Our Liability" clause.
What instructions were given to the claimant as to the control of the skidoo?
- The skidoo in question was a Polaris 550 Fun Sport Edge 136 Touring snowmobile, designed to carry a driver and a passenger. It was powered by a two speed, two cylinder endothermic motor generating up to about 100bph and capable of attaining speeds of up to 60mph. Although Mr Tantera had stated in his witness statement that he had added brackets to the accelerator so that the maximum speed of the machine was limited, no such bracket was found when the machine was examined by the claimant's engineer Dr Dolzani, and in cross examination Mr Tantera retracted that assertion.
- The machine was steered and controlled by motor cycle style handlebars. Steering was by means of two runners at the front of the machine. There were three controls fitted to the handlebars. The accelerator was activated by a thumb lever attached to the right handlebar, and projecting towards the driver. To accelerate, the driver would press the lever forward with the thumb. Releasing the accelerator by reducing the thumb pressure, reduced the speed of the machine. Unlike a bicycle or motorcycle, there was no brake lever on the right handlebar. The machine was fitted with hydraulic brakes operated by pulling a conventional brake lever fitted to the left handlebar. Pressing the brake lever activated a pump which increased oil pressure thereby producing expansion in the cylinders of the brake's floating shoe, which then brought the brake pads into contact with the brake disc. The hydraulic brake system is a sealed unit.
- The third control fitted to the handlebar is a red button known as the "engine stop switch" or "emergency cut off button". It is positioned on the top of the right handlebar adjacent to the thumb lever which operates the accelerator. Its operation is described in the Polaris Owner's Manual in the following terms –
"Engine Stop Switch – Push down on the engine stop switch…to stop the engine in an emergency. This will ground out the ignition and bring the engine to a quick stop."
Using the switch is one of the methods Polaris recommend for "…stopping the snowmobile in the event of an emergency".
- When those who had signed up for the skidoo excursion arrived at Mr Tantera's garage on the evening in question, they had to wait for about twenty minutes as the previous skidoo excursion was running late. During that period Ms Hodges handed out helmets, saying that they were not compulsory; but everyone in the group chose to wear them. When Mr Tantera arrived, he instructed each of the drivers as to the use of the machines. The issue between the parties as to the instructions that he gave is narrow. It is common ground that he explained the accelerator and the brake, and instructed the group to stay in line and not to overtake. The question is whether he gave the drivers, and in particular the claimant, instruction as to the cut-off switch.
- When it came to her turn, the claimant told Mr Tantera that she had never ridden a skidoo. Her evidence at trial was that she was then shown the accelerator and the brake but "... at no time was I made aware of the emergency stop button on the handlebar, in fact I do not even remember seeing an additional button on the handlebar as I was driving". Under cross-examination she was adamant that she was not shown the cut-off switch, nor given any other instruction as to how to deal with an emergency, saying inter alia "I was not told about the button and we were only shown how to use the brake and accelerator and had no other knowledge of touching any other button or keys or dials." Her evidence on this issue was consistent with her first witness statement dated 17 March 2007, made less than two months after the accident. She also said that the instructions given by Mr Tantera took no more than about 30 seconds.
- The instructions to her were given when she was sitting astride the skidoo, with her pillion passenger, Carole Osborne, sitting behind her. Mrs Osborne was unable to hear what was said by Mr Tantera over the engine noise as she suffers from tinnitus. But she gave evidence that "There was hardly any training provided by the instructor. All I recall him doing was walking over to each driver and gesturing whilst speaking for approximately 30 seconds maybe not even that long. He barely spent even 30—40 seconds with myself and Emma and before we knew it he had moved on to the next skidoo". She also remembered that after he had given his instructions to the claimant, they had to shout to Ms Hodges to tell them how to turn the lights on, a request that was in fact unnecessary as it appears that the lights go on automatically when the skidoo is in motion.
- A number of others in the group gave evidence on this issue. James Royston, a marine engineer, who had previously driven a skidoo in Lapland, said that he was told about the brake and accelerator, but was definitely not told about the cut-off switch. His evidence was that the instructions took less than a minute. His wife, Laurie, who was his passenger, and who is now a senior watch officer in harbour control on the Isle of Man, said that Mr Tantera went through the controls, how to brake, how to accelerate, and how to steer, but did not mention anything about the cut-off switch. In the course of her cross-examination there was the following exchange –
Q Do you remember if he said anything about the cut off switch? A. I don't believe he said anything about the cut off switch.
Q He may have done, but you do not recall it … A. He may have done, but if I had heard it I would have known myself where it was and I didn't know.
She had also said in her witness statement that Mr Tantera spent no more than 30 seconds with her and her husband before moving on to the next ski-doo.
- John Warner was driving another skidoo with his wife as his passenger. He had also driven a skidoo before, and as a result knew what the cut-out switch was, but didn't recall being told about it by Mr Tantera. Furthermore he gave evidence that at the end of the trip one of the other skidoo drivers, his brother-in-law Neil Dawson, who did not give evidence, did not know how to switch the engine on his machine off. He explained that "as I got off the skidoo I went to run across the car park, my brother in law shouted at me: how do I stop it? I went back to him and I pressed his button as well and that switched his engine off. The ski-doo was stationary, it wasn't moving, but he just didn't know how to switch the engine off. So I switched it off for him". His wife Kathleen Warner was not listening to the instructions given by Mr Tantera.
- A third couple, Mr and Mrs Rimmer, also gave evidence. Neil Rimmer was the driver. He is a team leader in Formula One racing car construction. He said that he was shown the accelerator and brake controls, but that the cut-off button wasn't pointed out to him, saying at one point in his evidence "As to the cut out switch it wasn't pointed out to me and it is not apparent that that is what it is from the information given to me." His recollection was that the instructions took about ten seconds. His wife Lucy said in her first witness statement that –
"The instructor came over to us and the first thing he asked Neil, as he was driving, was had he been on a ski-doo before. Neil said he had not and then the instructor showed him where the brake and the accelerator were he then told us to keep no less than 5 m between the ski-doo in front of us. That was it. It took a matter of seconds for him to explain this to us."
- Under cross-examination she confirmed the evidence contained in her witness statement saying "I can say he definitely did not show us where the emergency cut-off switch was". When challenged as to whether she had heard the instructions she said that she wanted to know how it worked, adding "if you do get into difficulty you'd want to know how to switch the machine off … commonsense would tell you that if you were getting onto a machine, you would want to know how to switch it off."
- Revealing evidence on this issue was also given by Ms Hodges. She exhibited to her witness statement a report that she made on 21 January 2007, three days after the accident. In it she gave an account of the instructions given by Mr Tantera:
"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"
She agreed in cross-examination that such evidence was based upon what Mr Tantera usually said, and that she had not heard his instructions to the claimant or the other drivers. But its significance is that there was no reference to the cut-off switch in her account of the instructions usually given by Mr Tantera, and she could not say that he gave such an instruction on this occasion.
- Mr Tantera's evidence was to the effect that when giving instructions as to the ski-doo controls he always pointed out the cut off switch. He was relying on his usual practice claiming in his first witness statement that it "never ever changes", "I spend approximately 2-3 minutes with each ski-doo". If reliable, that evidence would mean that it would have taken between twelve and fifteen minutes to instruct the six drivers in the party. The claimant and others in the party gave evidence that the time taken with each driver was much shorter; and in my judgment it is overwhelmingly improbable that he spent such a period instructing the party that evening, not least because the party was running late as a result of the late return of the previous excursion.
- Mr Pican Dotan, who worked with Mr Tantera and who was driving the ski-doo that brought up the rear of the column when the party set out, was called to give evidence inter alia on this issue. He had said in his witness statement that he had been watching the talk given by Mr Tantera and that it never changed. But in cross-examination he said that he had no recollection of Mr Tantera giving instructions to the claimant on the use of the red button. It is of note in that regard that in correspondence with the claimant's solicitors, the solicitors acting for the defendant had asserted that they had witnesses "who can confirm that this specific instruction was indeed given". Yet no such witnesses were produced.
- The defendant did however call a number of witnesses who gave evidence as to instructions given by Mr Tantera on other occasions. I accept that on other occasions Mr Tantera probably did follow his usual practice, and gave instructions as to the cut off switch. But such evidence was of minimal value in determining what happened on the evening in question.
- I have no hesitation in accepting the evidence of the claimant and the other members of the party on this issue. I found them to be careful and reliable witnesses; and the evidence from Mr Warner that his brother in law did not know how to switch off his machine, and that he had to do it for him, was particularly telling. At best Mr Tantera could only assert that it was his invariable practice to give such an instruction, and his evidence was undermined by his claim to have spent two to three minutes with each driver, a claim that was manifestly unreliable. The explanation for his failure to give such an instruction on this occasion may well be that he was under pressure of time as the previous trip had overrun by twenty minutes. But be that as it may I find that the claimant was not instructed in the use of the cut-off switch.
- Furthermore I accept the claimant's evidence that she "never really looked at it because I wasn't told about it", and in consequence was unaware that there was such a control on the machine.
What caused the Claimant's loss of control of the skidoo?
- The loss of control happened towards the end of the trip and after they had been travelling for about 45 minutes. Until that point the trip had been uneventful. The party had proceeded at a relatively sedate speed, Mr Tantera leading the column and Mr Dotan bringing up the rear. The intention had been to stop at about the half-way point for a drink at a restaurant, but it was closed, and the party therefore did a 'U' turn, and began the descent. The claimant had not experienced any difficulty in controlling the ski-doo on the ascent. She recalled that when descending "Our group was travelling slowly single file in a line and I had to use the brake a lot of the time because I kept catching up with the rider in front". Mr Warner gave evidence that "…we were on the brakes a lot more going down, obviously". Mr Rimmer, who was immediately behind the claimant in the column, said in his witness statement that his skidoo kept catching up with the claimant's and that he had to use his brakes "a lot more".
- It has always been the claimant's case that her loss of control of the ski-doo was caused by a brake failure. In her first witness statement she said "I remember that I pulled and pulled the brake but nothing happened. We just seemed to get faster and faster" and "The last thing that I can clearly remember was pulling on the brake …"
In her third witness statement dated 29 October 2009, she said:
"I had been using the brake all the way down the mountain, without any problem. … It was only near the bottom of the slope that it suddenly stopped working. When that happened I remember clearly that I was still holding the brake with my left hand. However I do accept that it may have been possible that in this emergency situation I got confused about the throttle and was pulling on this as well as the brakes."
- The claimant also gave evidence that about 5 minutes into the return journey, she felt an uncomfortable heat in her left palm. The left handlebar was "really, really hot". As this only applied to the left handlebar, she "... began to think that there might be something wrong with the brakes". She then shouted to her pillion passenger, Carole Osborne, that she thought something was wrong, but did not think that Mrs Osborne could hear her over the noise of the machines. Seconds later the ski-doo shot forward, and continued to gain speed heading downhill towards the resort. She was able to maintain sufficient control to avoid the ski-doo in front of her, but although she was pulling and pulling on the brake lever, the brakes did not work. Moreover the accelerator appeared to be "full on" or "jammed". She was "still gripping that brake, but obviously the skidoo was still accelerating...".
- The other members of the group saw the claimant's skidoo shoot past them, travelling, per Mr Warner, very fast, and gave evidence as to the distance that the skidoo travelled after passing them but before reaching the first of two snow ridges or banks over which it travelled immediately before entering the car park and colliding with a parked car.
- Mr Royston, who was driving immediately behind Mr Tantera, described what happened in his witness statement in the following terms:
"… I would say that the whole accident took less than 60 seconds in total from the first time that I saw them speed past to the time when I saw the ski-doo resting against the back of a car in the car park. The distance that Carole and Emma covered during this time was approximately 100 metres"
- Cross-examined at trial as to the distance covered by the claimant's ski-doo, he gave an explanation as to how he had estimated the distances involved:
"Mr Janusz: At the end of paragraph 21 you say "The distance was approximately 100 metres? What I am going to suggest to you is that that is perhaps another … of distance?
A Well, if you just add up the distances that we were when it started and the distances between the ski-doos and the number of ski-doos that were behind us it adds up to approximately 100 metres.
Q I am not quite sure how you get to that figure I suppose from what you have told us already.
A I think Emma's ski-doo was the fifth or sixth one back. Each ski-doo is approximately three metres long and they were five to six metres apart. We were 40 to 50 metres from the car park".
Mr Warner, whose ski-doo was two in front of the claimant's, estimated that the first ridge was at least 100 metres ahead of him when she came past him. He was cross-examined on the point –
"Q Do you think it could really be as far as that?
A Yes, because bearing in mind that Emma and Carol were another ski-doo behind us, and we were probably spread out to that point probably 30 metres, then she went past me and she had three other ski-doo to go past, so yes. I would estimate that the rise was at least 100 metres away".
- There are obvious difficulties in an attempt to determine the distance travelled by the claimant's ski-doo when running out of control. It is a point to which I shall return when addressing the issue of whether the accident would have been prevented by operation of the cut-off switch.
- But the claimant's evidence inevitably raised the question of whether there was a mechanical defect in, or malfunction of the hydraulic braking system. In the immediate aftermath of the accident the ski-doo was examined by Mr Warner. He gave evidence that "…we tried the switches on the ski-doo, the brake and the accelerator and both didn't appear to have any resistance. I don't know whether that's normal or not". As to the accelerator Mr Warner also noted that the cable was detached from the thumb lever. That explains the lack of resistance in the accelerator control, and it is clear that the cable must have become detached in the crash and not before. Had it been detached at an earlier stage, the engine would not have been running at high revolutions as described by the witnesses.
- But as to the brakes, there are only two possible explanations for the absence or reduction of resistance on the brake lever, first a maladjustment of the cable activating the brake and secondly a sufficient reduction in the volume of fluid in the hydraulic brake system to affect the functioning of the brake. On 23 October 2007 the skidoo, which had remained in the custody of the police since its seizure shortly after the accident, was examined by Mr Fabio Boscolo, the engineer appointed by the prosecuting authority in Italy, in the presence of Dr Dolzani and a third engineer representing the third party. Mr Boscolo was called by the defendant both to give factual evidence as to the examination of the machine and, with my leave, expert evidence. The brake lever was found to be in working order, and there was no reduction of the volume of fluid in the hydraulic system. Thus there was no defect in the braking system at the time of the accident. If follows that on this aspect of his evidence Mr Warner must be mistaken.
- In the course of his cross-examination Dr Dolzani suggested that brake failure could have been caused by water in the hydraulic system, which subsequently evaporated and was therefore not present at the examination. I did not find that theory convincing. He was not able to advance any satisfactory explanation of how water could get into the sealed system. It was an example of his attempts to find explanations for the accident consistent with the claimant's evidence. A further example was the hypothesis advanced by him at a very late stage in the proceedings that there had been a malfunction of the brakes caused by over-heating. In his supplementary report dated 27 October 2009 he concluded that:
" During the entire descent, which has a gradient of 22% for the most part but at certain points was steeper, the vehicle was 'idle', in other words the engine was totally disconnected from the traction belt and therefore the speed could only be controlled with the exclusive use of the brake. It is therefore very probable that it became overheated, thus considerably reducing the braking capacity, or in any case causing a complete temporary malfunction of the brake.
This may have played a crucial part in causing the accident.
In her statement, the injured party, Mrs Moore, declared that she had used the brake along the entire descent: this undoubtedly caused a reduction of the braking capacity.
…
This deficiency in the brakes could have caused Mrs Moore to panic and take action on the right handle of the controls, in other words, the accelerator. This would have overheated the brakes even more, probably resulting in a total failure."
- He explained at the beginning of the supplementary report that this hypothesis "did not appear" until he received a copy of the Polaris instruction manual which contains the following warning under the heading "Operator Safety – Driving Downhill":
"When driving on long downhill stretches, pump the brakes. Riding the brakes may cause the brake system to overheat which may result in brake failure.
Excessive or repetitive use of the brakes at high speeds would also cause an overheated brake system. This condition may lead to a sudden loss of brakes and/or fire and may result in serious injury or death."
- There are three aspects of the evidence that are relevant to the question of whether the accident was caused, in whole or in part, by a brake failure caused by overheating. First it is necessary to consider whether the topography and the manner in which the snow mobiles were being driven, were likely to have given rise to such a brake failure. As to that, the first point to be made is that the skidoos were being driven in convoy, their speed being controlled by the lead skidoo driven by Mr Tantera. It is clear from the evidence that they were proceeding at a relatively slow speed, of the order of 25 – 30 kph. There was no evidence to suggest excessive or repetitive use of the brakes for high speed stops.
- Secondly whilst the return half of the trip was downhill, the slope was not such as to require the brakes to be 'ridden'. The evidence is to the effect that the drivers had to brake from time to time. Mr Royston agreed in cross-examination that when coming down the mountain they were moving even more slowly than on the way up, that he braked from time to time in response to the instructor's braking, but that "I didn't need to brake very much the skidoo just kept its own speed." Similarly Mr Warner said that on the way down he braked from time to time but was not braking continuously. Mr Rimmer, who was driving immediately behind the claimant until he stalled, agreed that on the descent he was braking occasionally but not continuously, and that the claimant's brake light was not on throughout the descent.
- Thus in my judgment neither the topography nor the manner in which the skidoos were being driven, were likely to give rise to a requirement for braking of such a nature as to give rise to overheating.
- Secondly had the claimant been operating the brake lever when the loss of control occurred in the manner that she described, the rear brake light fitted to the ski-doo would have been operating. There is no suggestion that it was not in working order. But none of the witnesses remember seeing an illuminated brake light.
- Thirdly there is the question of whether a brake failure caused by overheating would have left permanent signs on the brake pads and/or discs, and if so whether there were any such signs. As to the former Mr Boscolo gave evidence that if the braking system had become temporarily overheated, such overheating would have left evidence, specifically that the braking pads would have turned blue. Mr Boscolo was a thoughtful witness of obvious expertise who gave his answers in a careful and considered manner. I found his analysis wholly reliable. I am satisfied that if there had been overheating such as to cause a total brake failure, it would have left signs visible on examination.
- Were there any such signs? The first point to be made is that the brake pads were not removed at the examination. But Mr Boscolo said, and I accept, that the relevant parts were sufficiently exposed for him to see whether or not there was any such damage. He was satisfied that there was not.
- Dr Dolzani's hypothesis does not therefore stand up to close analysis, and must be rejected.
- It follows that a brake failure can be ruled out as a cause of the accident.
- What then caused the claimant to lose control? In my judgment once a mechanical failure is ruled out, the most likely explanation is that, for whatever reason, she drove too close to the ski-doo immediately in front of her, swerved to avoid it and attempted to brake, but in error operated the throttle lever with her right hand instead of the brake lever with her left. The fact that the accelerator was in good working order excludes any explanation for the vehicle's acceleration and the high revs heard by witnesses, other than that she operated the accelerator, and as I have already observed no brake light was seen by witnesses. I am therefore driven to the conclusion that the loss of control was caused by the claimant accidentally operating the accelerator, instead of the brake.
- The question then arises as to whether the accident would have been avoided if the claimant had been instructed in the use of the cut-off button. That raises two discrete issues, would the claimant have used the cut-off button, and secondly if she had, would it have brought the skidoo safely to a stop.
- As to the first it can be argued that in applying the accelerator instead of the brake, the claimant was disregarding the instructions that she had undoubtedly been given as to those controls, and that there is no reason to think that her reaction would have been any different had she been told about the cut-off button. But I do not find that argument persuasive. Mr Tantera gave evidence in his witness statement that he it was his normal practice to –
"… point out the cut-out switch too as this is a failsafe in the unlikely event that there should be any problem with the brake or engine…"
If the cut-out switch had been drawn to her attention in that manner, she would undoubtedly have looked at it, and would have known that it was there as a back up in the event of brake failure. She would have been armed with the knowledge to deal with an emergency. The claimant impressed me as an intelligent, careful and competent woman, who had had no difficulty controlling her machine during 45 minutes leading up to the point at which she lost control. I accept that there must have been an element of panic on her part as the ski-doo accelerated towards the snow ridges and beyond them the car park. That explains why she continued to press the accelerator in the erroneous belief that the brakes had failed. But it does not follow that she would not have used the cut off button if she had been aware of it. I am satisfied that on the balance of probabilities she would have remembered that in the event of a brake failure, which is what she thought that she was experiencing, she simply had to press the cut off button to stop the engine, and would have done so.
- As to the second, the critical evidence was that given by Mr Tantera. He has vast experience in operating ski-doos having been hiring them out on a regular basis for 20 years. Secondly he was extremely familiar with the terrain. In the course of his cross examination by Mr McParland there was the following exchange:
"Q… is it your case, Mr Tantera – you were there – that if she had pushed that red button – Are you saying if Mrs Moore had pushed that red button she would not have crashed the ski-doo?
…
A. If she had pressed the red button, she wouldn't have crashed"
and in re-examination:
"Q You were also asked questions about the stop button. You told us it stops the engine immediately. From your experience of these machines can you tell us the kind of effect that stopping the engine has on the forward motion of the ski-doo?
A It stops the engine, so after fifteen or twenty metres the machine stops, and it would have stopped even at the speed used by the machine of Mrs. Moore while she was overcoming the others".
- Miss Prager sought to dismiss his evidence as a 'throwaway remark'. I do not agree. The answer in cross-examination was given in answer to a specific question, and before the answer was given, Mr Janusz, his counsel, interjected that he was not sure that that was really a question that he could answer, an objection that I overruled. As to the evidence in re-examination, Mr Janusz had been careful not to lead the witness, who gave what in my judgment was a considered response, the significance of which he was fully aware. Neither was a throwaway remark.
- I found this aspect of Mr Tantera's evidence entirely convincing in contrast to his evidence as to the instructions given to the claimant, where he was only able to relate his usual practice. As to this evidence I have little doubt that he had a vivid recollection of this incident involving as it did one of the party that he was leading.
- Counsel for both the defendant and the third party advanced arguments based on thinking distances and stopping distances for motor vehicles, and on analyses of the evidence as to the distance from the claimant's skidoo at the point at which she lost control to the first ridge of snow. But in my judgment such theorising, albeit based in part on evidence from a number of witnesses, is no substitute for first hand judgment of a man with the most intimate knowledge of the control of skidoos and of the location. Such arguments do not persuade me to disregard his evidence on this point.
- Miss Prager made the further point that the whole incident only lasted a matter of seconds and that there would not have been time for the claimant to have activated the cut off button in time to bring the skidoo to a halt before it entered the car park and collided with the stationary car. But that disregards the clear evidence given by Mr Tantera; and furthermore the claimant's skidoo had to travel a substantial distance, namely the length of each of the four skidoos in front of her together with the distances between them, before it could be seen by Mr Tantera, who was leading the column, see also the evidence of others in the party at paragraphs 50 – 52 above. I accept that the incident lasted a matter of seconds, but I am satisfied that there was time within which the claimant could have reacted to the emergency by pressing the cut off button, which would have had the effect of bringing the skidoo to a halt within the distance given by Mr Tantera, fifteen to twenty metres.
- I therefore conclude that on the balance of probabilities the accident would have been avoided had the claimant been instructed in the use of the emergency cut-off switch.
- I should add that this was one of the issues upon which Mr Christopher Exall, the expert called on behalf of the defendant, gave evidence. 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 simply 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.
Conclusions
- It was common ground that failure on the part of Mr Tantera to give the claimant instructions as to the cut off button would amount to a breach of his duty of care to the claimant; and I have found that his failure to do so caused the accident in which the claimant sustained serious injury. The case does not therefore fall within any of the exclusions contained in the "Our Liability" clause.
- It follows that in my judgment the defendant is liable to the claimant for the injuries sustained in the accident under the terms of the excursion contract, subject only to the issue of contributory negligence.
- It is also common ground that as the defendant's liability to the claimant arises in contract, the applicable law is that of England and Wales, and in consequence it is not necessary for me to address the issues of Italian law to which the defendant's contention that it was not contractually liable to the claimant gave rise.
Contributory Negligence
- Mr McParland acknowledged that as a matter of law, the defendant's contractual liability for the negligent acts or omissions of Mr Tantera can be subject to a finding of contributory negligence on the part of the claimant; and it is submitted on behalf of the defendant that the accident was caused in whole or in part by her negligence.
- On the facts as I have found them to be, there were two errors on the part of the claimant, both of which materially contributed to the accident. First, she must have allowed her skidoo to approach too close to the skidoo in front of her in the column. That in turn must have been attributable to a failure on her part to keep a proper look out. Secondly, she was at fault in applying the throttle rather than the brake. But in my judgment that was the result of an instinctive reaction to the situation that she faced. To brake was obviously the correct thing to do in the circumstances, and it is clear on the evidence that she thought that she was braking, but that the brakes had failed. She is not to be judged too harshly for her confusion in the heat of the moment.
- I reject the further argument advanced on behalf of the defendant that the claimant ought to have noticed the cut off switch, and to have realised what it was for, and in consequence was at fault in failing to use it. There were the following exchanges in the claimant's cross-examination by counsel for the defendant –
"Q So when one looks at this button, it does what it says on it. If you push it it switches off, yes?
A I guess so yes, but like I said I never really looked at it because I wasn't told about it."
"Q You knew that there was this button on the handlebar because its obviously there, It's there to be seen.?
A No, because I was not told about the button and we were only shown how to use the brake and the accelerator and had no other knowledge of touching any other button or keys or dials.
Q You see it's quite – again, we have seen the picture, there's quite a straightforward handlebar arrangement. You have got one lever here and one lever here and one big red button across it on here. It was on the handle, of course, and it was there to be seen?
A If I'd known about the button I would most definitely have pressed the button."
- With the benefit of hindsight it can be argued that both the existence and purpose of the cut off button ought to have been obvious. But I am satisfied that the claimant was not aware that it was there, and I do not consider that she can be regarded as being at fault for failing to notice it, and in consequence to appreciate what it was for.
- The situation is therefore 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. I do not consider that the claimant can be absolved from some measure of responsibility; but in apportioning liability the balance is heavily weighted against Mr Tantera. Instruction as to the means of stopping the engine of the skidoo in an emergency was critical to its safe operation, as this case so clearly demonstrates, and without his failure properly to instruct her, her own errors would not have resulted in injury. In my judgment her claim should be reduced by 30% to reflect her degree of culpability.
