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Disabled skier wins compensation
Sunday November 16, 2008 - Email this article to a friend

In an important ruling a British man, paralysed after skiing into a tree, has won a multi-million pound claim for compensation from a French ski school.

Graham Anderson, 46, was injured during a holiday in the French Alps in 2004 with the British ski company, Snowbizz. 

He skied into a tree and injured his spine leaving him severely paralysed and confined to a wheelchair for the rest of his life.

He claimed the company was to blame for allowing a ski instructor to take him down an off-piste run in the resort of Puy St Vincent that was beyond his capabilities.

put_st_vincent_300_01The High Court has cleared Snowbizz of any responsibility and ruled the instructor, Jerome Portejoie, was 2/3rds responsible for the accident and Mr Anderson 1/3rd.

The ruling has important implications for ski and snowboard schools across the Alps and the local school will be paying an undisclosed compensation package.

Other British ski companies were watching the case closely as it could clearly have had important consequences.

PlanetSKI has discovered that some major Tour Operators do not advise people to ski with some ski clubs in resorts because of a fear of legal action should an accident occur and that if Snowbizz had been found guilty then the policies of advising people to go to ski school would have to be reviewed.

The Judge, Mr Justice Foskett, said the instructor "took his eye off the ball on this particular occasion but should look at it as one of those isolated occasions".

snowbizz_brochure_424_02A respected web site has got the story wrong by saying Snowbizz lost the case. After enquiries planetSKI discovered that Snowbizz runs its own ski school in Puy St Vincent, Ecole de Ski International, but it was not this ski school Mr Anderson was with.

"The most important thing to say is that we are desperately sorry that a customer of ours suffered such appalling injuries while on a holiday in Puy St Vincent," says Wendy Lyotier, the joint-owner of Snowbizz.

The Judge urged all skiers to take out adequate insurance cover for a skiing holiday.

 

See below for a summary of The Judges ruling.

DIRECT QUOTES FROM THE JUDGMENT OF MR JUSTICE FOSKETT IN THE HIGH COURT,
QUEEN’S BENCH DIVISION, IN CASE NO HQ07X00932, 14TH NOVEMBER, 2008,
ANDERSON V MICHEL LYOTIER AND WENDY LYOTIER, TRADING AS SNOWBIZZ,
AND JERMOME PORTEJOIE (PART 20 DEFENDANT)
 
In my judgment, it would be wrong to hold that a skier, even in the case of a relatively inexperienced skier who is under the supervision of a ski instructor, abdicates all personal responsibility for deciding whether to do or not to do something the instructor suggests.  The consensus of all the witnesses who spoke on the matter during the trial was that there is a strong element of trust placed by a skier in the instructor.  That is plainly so.  However, it is not the same as a child placing total reliance on his or her parent or teacher.  The process involving adults must be a collaborative one.  I do not think that the law requires (and, if it did, for my part I would say that it would be adopting the wrong policy) that the instructor takes total responsibility in a situation such as that which obtained in this case.  In my judgment, if an instructor does suggest something to a skier under his supervision that the skier believes to be beyond what it is reasonable for him to attempt, there is an onus on the skier to say so.  There may be cases where further discussion will resolve the concerns of the skier – or the instructor will agree that what he has suggested is too risky.  However, I do not consider it is, objectively speaking, reasonable for the skier not to say something in that situation.  The human reaction not to want to appear awkward, difficult or, as Mr Foxon put it, “faint-hearted” is quite understandable from a subjective viewpoint; but objective analysis does suggest that serious concerns must be ventilated.

 

In a sense, this is another example of the judgment of Solomon, but it seems to me that the correct proportion is that Mr Portejoie is two thirds responsible and the Claimant is one third responsible.  Whilst I have not found the issue of apportionment an easy one, this seems to me fairly to reflect the proper balance between a ski instructor in whom his student invests significant trust but who, by failing properly to address the abilities of his student has asked him to do something beyond his abilities in an unsuitable location, and the adult student who recognises that what is being asked of him is either truly beyond his capabilities or is something about which he feels sufficiently concerned for his safety as to warrant making a protest or comment, but who fails to do so.

 

If the decision in this case engages a wider interest than merely for the parties to the case, there are one or two concluding observations of a general nature I would make:
First, this case does not mean that anyone who suffers injury, even a serious injury, following a skiing accident, whether on or off-piste, necessarily wins damages.  Equally, it does not mean that everyone who suffers an injury when under the supervision of an instructor wins damages.  Everyone recognises that skiing is an inherently risky pastime and accidents causing injuries, sometimes very serious, will occur, more often than not without negligence being established on the part of anyone involved.
The result in this case has arisen from the application of well-established legal principles to the particular facts.  Those facts may not be replicated in other cases and the facts of other cases may demonstrate clearly that no-one was to blame.  Whilst I trust that I started hearing this case from a standpoint of neutrality, I was certainly of the view that I would need to be persuaded that a skiing accident was not merely “one of those things” that happens without negligence.  It was only as the evidence emerged during the case that I became satisfied that this accident was foreseeable and avoidable with reasonable care having been exercised by the ski instructor and, to a lesser extent, by the Claimant himself.

 

Second, and arising from the first matter, nothing in the result of this case should be seen as dissuading anyone embarking on a skiing holiday from taking out suitable insurance cover, including, if it can be obtained, cover that provides substantial funds if permanent serious injury, including paralysis, should occur.

 

Finally, I paid tribute to the resilience and cheerfulness of the Claimant at the outset of this judgment and I have referred in the judgment to moments when he has contributed some humour to the proceedings.  Mr Portejoie, who must have found the proceedings a strain himself and who was, I am quite sure, affected by the sight of the Claimant in a wheelchair across the Court, also handled himself with dignity and good humour.  The accident has had very serious consequences for the Claimant and the case has raised serious issues, but it has been conducted throughout in a very good-humoured fashion.  For that I should like to express my appreciation to all concerned, particularly to all Counsel and their respective legal teams.

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