James Evans v Kosmar Villa Holidays plc [2007] EWCA Civ 1003

JUDGMENT

In August 2002, James Evans (then 17 years old) bought a package holiday (subject to the 1992 regulations) at the Marina Beach Apartments in Kavos, Corfu from Kosmar Villa Holidays plc. Towards the end of his stay, at around 03:30 and following a meal and night out, Mr Evans dived into the shallow end of the pool and struck his head on the bottom, sustaining a serious spinal injury and resulting in tetraplegia. 

The pool was 11.2 metres long and 5.8 metres wide. At the deeper end, furthest away from the accommodation block, the maximum water depth was no more than 1.5 metres. At the shallowest end, the water was about 0.8 metres. There was a small depth marker at each end which HHJ found was poorly visible at night. Two no-diving signs were displayed around the pool. 

Despite the existence of those signs, HHJ found that diving was in practice a regular occurrence. The defendant knew that not only was the pool regularly used when the bar was shut, but also that diving did take place, probably on a regular basis, and without any reproof or reprimand. The claimant reported people had dived into the pool on the one occasion he had used the pool during his stay. 

Mr Evans brought a claim for personal injury against Kosmar Villa Holidays plc. 

In the High Court

At first instance, HHJ Thorn QC found Kosmar liable for the accident, subject to a finding of 50% contributory negligence. Kosmar appealed the decision. 

In the Court of Appeal

Richards LJ, giving the unanimous judgment of the court, held that in accordance with Tomlinson v Congleton Borough Council [2004] 1 AC 46, the claimant had to accept responsibility for the risks they chose to run, and there was no duty for the hotel to protect persons against obvious risks where a person is of full capacity and capable of making an informed choice. Kosmar's duty thereby did not extend to a duty to guard against the claimant deciding to dive into the pool. 

It was suggested by the claimant that the decision to dive into a swimming pool was not a matter of guarding against an obvious risk but instead a duty to guard against the mistaken assessment of the risk. The Court rejected this argument on the facts in the case, stating that at the moment the claimant dived, he should have been aware of the risk, albeit, at that moment, he acted thoughtlessly.  

Whilst the court was not required to address causation, the claim has failed to establish a breach of duty, Richards LJ stated the unanimous view of the court that additional signage would not have avoided the accident occurring in the circumstances that it did. The pool area, when closed, remained dark, and signage was difficult to see. The court felt additional signage would not have prevented the claimant from diving into the pool in a moment of carelessness.  

The decision was not subject to appeal. 

References

James Evans v Kosmar Villa Holidays plc [2007] EWCA Civ 1003.

Tomlinson v Congleton Borough Council [2004] 1 AC 46.

Citation: Jacklin, D. 2022. James Evans v Kosmar Villa Holidays plc [2007] EWCA Civ 1003. Water Incident Research Hub, 13th February.