Adults should beware drink and pool danger

The claimant stayed at a holiday complex booked through the defendant package holiday operator. The claimant, who was under the influence of alcohol, climbed onto a broad wall between swimming pools in the complex and fell into the shallow children's pool. He sought damages for personal injury.

Local regulations stipulated that such walls should be coated with non-slip paint but this wall was not. The claimant argued that this breach of obligation had made a material contribution to his fall, rendering the defendant liable under regulation 15 of the Package Travel, Package Holidays and Package Tours Regulations 1992.

The court held that while there had been a breach of duty, the absence of non-slip paint had not materially contributed to the fall. It was as likely the claimant would have slipped on the correctly painted surface as it was that he had slipped because it was not.

Further, the defendant's brochure stated that safety was a "high priority".

The claimant argued this was an implied warranty (as a result of regulation six of the 1992 Regulations) that had been breached by the failure to erect a barrier around the pool. The court held that the statement in the brochure was not an obligation to provide complete safety, particularly for an adult who is to be expected to be looking after himself properly.

COMMENT: This case is a further example of the more restrictive approach to liability post-Tomlinson v Congleton Borough Council (2004). Although it will not always prevent liability, holiday providers and their insurers can expect adults to look after themselves properly. - Shabana Mahmood, BLM London.