Tips and advice for the winter sports season
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With the ski season in full swing it is timely to remember that enjoying snow sports can be highly rewarding, but it can a perilous affair.
For the British it is essentially pursued abroad, which when things go wrong can make for some very interesting legal arguments to ensure anyone is properly compensated following a ski accident. I have referred to skiers throughout this article, but the same rules apply to snowboarders and anyone else using the slopes.
We have dealt with an awful lot of ski claims over the years, acting for both insurers and injured skiers from all around the world but mainly in Europe and North America. The types of accident have ranged from collisions between skiers or snowboarders, dealing with faulty kit or inadequate instruction or ski lifts, road accidents on the way to or from the piste. The injuries have ranged from catastrophic paraplegia or head injuries to lots of broken bones, bumps and bruises. We have run such cases all over the world.
Which law applies?
The slopes are governed variously by a number of codes, that are rather similar. In Europe, the most important code is the European Federation International de Ski (FIS). In the USA and Canada it is the "Your responsibility Code". All skiers are expected to ski within their ability.In addition, the local law is very relevant. In English law it is for the Claimant to show how the accident happened and that it was the other party's fault. In France for example, the French Civil Code shifts the burden of showing that the accident was not the defendant's fault. This can be very important where for example two skiers have simply collided into one another on the piste.
The identity of the defendant is also very important in determining where a claim could be brought. For example a skier from the USA who causes an accident to a British claimant who was skiing in Italy can enable a claim to be made in any one of those jurisdictions. This is very important from an insurer's point of view as the total amount that they may need to pay out on the claim will vary greatly. This is also very important from a Claimant's perspective as the amount of damages that they receive will vary greatly. Any lawyer instructed to pursue or defend such an international case must be conversant with the issues at hand and make sure that their client's best interests are preserved. In England/ Wales, the substantive law of the accident location would be applied by virtue of Part III of the Private International Law (Miscellaneous Provisions) Act 1995.
The skier lower down the slope has right of way
The various codes respect the right of the skier lower down the slope to be able to turn in any direction. This seems straight forward, but evidential difficulties often arise when trying to show which skier was lower down the slope. Additional problems can then arise when one piste is joining another. The FIS rules have a general rule that the skier just needs to check that it is safe to enter the track, both uphill and downhill. In the USA, the skier would simply need to look uphill and give way.
A judge having to decide who was higher or lower down a slope will need to rely on witness evidence. If the matter was reported properly after the accident there should also be a piste report. As a contemporaneous document, that can be very helpful to any judge considering the case.
Badly fitting equipment
Any skier will know how uncomfortable ill fitting equipment can be. Badly fitting equipment can also be very dangerous. We have dealt with cases involving bindings not releasing, inadequate clothing having been provided. If the equipment was booked as part of a package, there may be a claim in England/ Wales against the tour operator under the Package Travel Regulations 1992 or against the retailer/ manufacturer by the Sale of Goods Act.
It is possible to bring a case against the slope operators. Such claims can be rather difficult to bring. In the USA, the Ski Safety Act only allows claims to be successful where the injury has been caused by a hazard that is not integral to the skiing. I have acted for claimants who have become entangled in ski lifts, although they will often need to accept a deduction in their damages for being partially responsible for not using the list properly.
Ski instructor's liability
Ski instructors have a duty to look after their pupils. That is not to say that anyone who falls down during a ski lesson will able to blame the instructor. They should not take pupils on terrain beyond their ability, and should listen to any complaints or problems raised by any pupil. Pupils' competence should be checked. If skiing with a group, the instructor really needs to keep the group together which while frustrating really means only going as fast as the slowest member in the group.
Look after yourself
Before going away it is essential that there is adequate travel insurance. Make sure the cover includes snow sports cover, and that it covers the snow sports that you are participating in. If in doubt, speak to your insurer.
Make sure that you ski within your ability and have good fitting equipment. Take a ski lesson with a reputable ski instructor if you need one.
If the worst happens and you are involved in an accident, make sure that you obtain details of the other party involved, take down details of any witness, take photographic evidence if necessary and report the incident to the local piste authorities. If you have suffered a loss, make sure that whichever lawyer you instruct is conversant with foreign law and how that applies to your case.
BL Claims Solicitors are here to help
If you would like to talk to someone and discuss a potential claim please call us on 0344 620 6600 anytime between 8am and 6pm Monday to Friday, or if you would prefer you can email us at firstname.lastname@example.org