Healy v Cosmosair Plc & Ors [2005] EWHC 1657 (QB)

Case No HQ04X01346[2005] EWHC 1657 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/07/2005
Before
THE HON. MR JUSTICE EADY
Between
Sean HealyClaimantChristopher Wilson Smith QC and Alan Saggerson (instructed by Stewarts Solicitors) for ClaimantJames Dingemans QC and Katherine Deal (instructed by MB Law) for Defendant and Part 20 ClaimantJohn Ross QC and Matthew Chapman (instructed by asb Law) for Part 20 DefendantsHearing Hearing dates: 21st June to 1st July 2005
JudgmentMr Justice Eady :Introduction
[1]The Claimant in these proceedings is Mr Sean Healy who seeks to establish liability against Cosmosair plc in respect of serious injuries he incurred on 11th June 2002 in a swimming pool accident during a holiday at the Colina Da Lapa apartments at Carvoeiro in Portugal. The holiday was supplied by the Defendant, which is a well known tour operator.[2]The incident occurred at about 8 p.m. when the Claimant entered the swimming pool in circumstances which were the principal subject of dispute in the course of the trial. What is agreed between the experts on spinal injury is that as a result of what happened the Claimant sustained fractures to C5 and C6 which rendered him an incomplete tetraplegic. It is uncontroversial that when the fractures occurred the Claimant’s head, neck and thorax must have been in line and that the injuries were caused by an impact at the top of the skull. What is in issue is how this impact came about.[3]There has been no suggestion that the relevant injury was sustained other than by the Claimant’s head coming into contact with the floor of the swimming pool. There is no evidence, for example, of any object in the pool which could have struck his head or that he was swimming horizontally and came into contact with the side of the pool. In those circumstances, as between the Claimant and the Defendant, the issues can be narrowly defined. First, it is necessary to decide whether the Claimant dived into what was a very shallow pool, into which it is agreed that diving was quite inappropriate. The alternative, for which the Claimant contends, is that he slipped and fell. Secondly, if the Claimant’s version is correct, I would need to decide whether the slip was attributable to a slippery pool terrace which did not comply with the relevant Portuguese safety standards. This too is the subject of dispute. Thirdly, if necessary, I shall need to consider the pleaded issue of contributory negligence.

The pleaded basis of the Defendant’s liability

[4]It is the Claimant’s case that the swimming pool terrace was not of a reasonable standard, and that the operators of the hotel were at fault, in that there was inadequate provision for a non-slip surface contrary to the Portuguese regulations. In particular, it is said that the non-slip “Strukturit” border should have extended from the edge of the pool to a distance of two metres (which it did not).[5]The Defendant is a tour operator within the meaning of the Package Travel, Package Holidays and Package Tours Regulations 1992 (“the regulations”). It is bound by these regulations to accept liability for a deficient holiday service and expressly assumed responsibility pursuant to clause 7 of the relevant agreement.[6]The Claimant has pleaded express terms of the contract, to be found in the standard booking conditions (the “Cosmos Fair Trading Charter”), to the effect that the Defendant accepted responsibility in the event: i) that any of the services which it agreed to provide were deficient or not of a reasonable standard; ii) of personal injury caused by any improper performance of the holiday contract by the Defendant, its employees, agents, suppliers or sub-contractors.[7]Reliance is placed upon implied terms to the following effect: i) The facilities … and in particular the swimming pool and its surrounds would comply with Portuguese safety standards; ii) The facilities … would be maintained and cleaned with reasonable skill and care; iii) The facilities … would be of a reasonable standard in that: a) a reasonable and sufficient risk assessment of the pool and the pool terrace would be undertaken by or on behalf of the Defendant; b) the safety of the pool terrace would be reasonably monitored and inspected by experienced and/or qualified personnel; c) the Defendant would not offer holiday properties that failed to comply with the local safety regulations or guidance; d) the cleaning regime used at the pool terrace would be reasonably monitored and assessed.[8]It is pleaded that a failure to exercise reasonable skill and care, or a failure to provide facilities to a reasonable standard, or to local standards, would each constitute an “improper performance” of the holiday contract within the meaning of the 1992 regulations.[9]The Claimant, in particular, relies upon specific Portuguese safety requirements. First, article 13 of regulation 5/97 provided that: “Tank surrounds – The tank surrounds should be paved with a strip [of] no less than 2m [in] width, counted from the sides of the tank, with material that is waterproof, non-slip, easy to clean and with a slight slope to the opposite side [of] the tank”. (This is based on an uncontroversial translation in one of the expert reports, although it is slightly adjusted where indicated to make the language more idiomatic.) Secondly, again in translation, it is provided by the National Council of Quality Directive 23/93 inter alia that: “ … swimming pools shall have areas surrounding the pool built from non-slippery and hygienic materials, and that these areas should be level with the sides of the swimming pool and free from any obstacle. The minimum width for the border is two metres for ordinary swimming pools … ”.[10]The Colina Da Lapa swimming pool is said to have fallen short of these requirements and a description of the pool surround (reflected in photographs) was given: i) Nearest the water there is a border of blue mosaic tiles, mostly submerged, at a gradient of 1 in 29.5 and of approximately 210 mm in width; ii) Next there is a drainage border consisting of a continuous plastic drainage cover of 254 mm in width; iii) Next comes the border of “Strukturit” machined stone of approximately 410 mm; iv) Furthest from the water is the surround of terrace tiles consisting of “pseudo-mosaic” impressed tiles each of 0.334 metres square. These outer “terrace tiles” are said to have been slippery when wet, so that it was not uncommon for people using the terrace to slip and fall.[11]The essence of the Claimant’s case is contained in paragraph 12 of the particulars of claim: “ … the Claimant was at the poolside bar (the shaded area) with his father-in-law and before taking a drink decided to join his son Jack and others in the pool. To this end he walked in the shaded area towards the pool and about a stride away from the edge of the pool one of his feet slipped, he lost his balance and landed head first in the pool … ”.[12]It is said that this accident was caused by improper performance of the holiday contract by the managers, alternatively by the operators, of the Colina Da Lapa for whom the Defendant has accepted contractual responsibility, and for which it is liable by virtue of reg.15 of the 1992 regulations. In the further alternative, it is said that there was a breach of the implied terms of the holiday contract.[13]The Defendant denies liability on the basis that the Claimant was diving contrary to express warnings and, although it is accepted that the terrace tiles became slippery when wet, it is said that this would be obvious to everyone using the swimming pool and the Claimant would have known this. Despite this, it was denied that it was “not uncommon for persons using the terrace to slip and fall”. Even if the terrace was wet and slippery at the material time, it is denied that this factor was causative of the Claimant’s injury; it is pleaded that this was caused by his decision to dive into the pool. It is part of the Defendant’s case that, even though the Strukturit did not extend to two metres, there was still compliance with local requirements because the terrace tiles themselves were marketed as non-slip and should properly be so classified.[14]As to the requirements of local regulations, the Defendant’s case is that the pool was properly constructed in accordance therewith. Reliance is specifically placed on: i) a notice of inspection dated 10th February 2002 confirming compliance; ii) a certificate of 8th March 2002 from the mayor advising of acceptance of the operator’s application for a certificate of completion of the development; iii) a declaration by the architect dated 20th December 2002 confirming compliance with current regulations; iv) a declaration of the same date by a civil engineer confirming compliance with the specification and working drawings and with the construction safety standards applicable; v) inspections of the pool pursuant to local regulations and the award by a Town Hall official (Snr Estorninho) of a blue flag for the pool. It is thus contended on the Defendant’s behalf that there was compliance with all relevant local regulations. It is further submitted by the Defendant that the matter is not to be determined by an independent objective assessment (according to Portuguese requirements) but that the Court must take the local certification as determinative.

The Part 20 claim

[15]It is common ground that if the Claimant dived, as opposed to entering the pool by slipping and falling, he cannot recover. If, contrary to the Defendant’s primary submission, it is held that the Claimant slipped and, what is more, that this gives rise to liability on the Defendant’s part, there was a Part 20 claim over against António Simões Lourenço and Vilar Da Lapa Administracao De Propriedades LDA. The first Part 20 Defendant, António Lourenço, was a director of the second (“Vilar Da Lapa”). That claim was based upon a contract dated 9th May 2001, whereby António Lourenço on behalf of Vilar Da Lapa agreed to supply accommodation at the apartment complex to the Defendant. On 29th June I was informed that the Defendant was content to proceed against Vilar Da Lapa. No claim was to be pursued against Snr Lourenco.[16]The contract contained an indemnity in the Defendant’s favour against all losses, liabilities, claims or expenses for or in respect of injury loss or damage to persons or property which might arise from any cause whatsoever out of or in connection with the supply of services to the Defendant (excluding the negligence or default of the Defendant, its servants or agents but including any failure on the Part 20 Defendants’ part to comply with the laws, decrees or regulations and codes of recommended practice). In the Part 20 proceedings the following issues arose on the pleadings: i) whether the Defendant has waived any contractual right to an indemnity; ii) whether the remaining Part 20 Defendant is liable to make a contribution pursuant to the Civil Liability (Contribution) Act 1978;[17]By the close of the case the argument focussed on the following questions: i) the nature of Vilar da Lapa’s obligation to the Defendant; ii) whether such obligation had been fulfilled; iii) if not, what was the nature and extent of Vilar da Lapa’s liability?

Did the Claimant dive?

[18]I must now turn to the primary issue on liability as to whether the Claimant dived or slipped. It may be said that the evidence on this issue falls into one or other of three categories: i) statements by eye-witnesses; ii) expert evidence derived from the Claimant’s injuries and the bio-mechanical possibilities; iii) evidence of statements or quasi-admissions made in the aftermath of the accident.[19]I should consider first the evidence of those who were present. It is natural to begin with evidence of the Claimant himself. a. The Claimant’s evidence[20]By the evening of 11th June 2002, the Claimant and most of his family party had been in the resort for the best part of two weeks. The holiday had commenced on 30th May and was due to come to an end on 13th June. He was thus well aware of the depth of the pool. It was an irregularly shaped swimming pool of varying depth. At its deepest point it was 1.55 metres (or 5ft 1in). There were depth markings painted around the outside of the pool at regular intervals. He was an experienced swimmer and was well aware that diving was inappropriate.[21]At the time of the accident, Mr Healy was a mature man aged 36 with a family of four children. He had his own carpentry business with an annual turnover of approximately £150,000. There is no suggestion that he was, in general terms, a rash or irresponsible person. On the morning in question he had been looking after his three boys aged between 3 and 11 and had gone into the local town to watch a football match, relayed in a sports bar, between Ireland and Saudi Arabia which began about 12.30 p.m. He was in the company of his father-in-law, Mr Tom Gleeson, and a brother-in-law Mr Paul Kirkwood. Later they were joined by another brother-in-law Mr John Mullins. During the course of the match he drank two “small beers”; that is to say, normal strength lager. Although the beers were referred to as “half pints”, I would assume that the measures would in fact be metric. Two more beers were consumed after the match was over with lunch (somewhere between 2 and 3 p.m.).[22]There is no evidence that any further alcohol was consumed (although the issue was probed in cross-examination), and thereafter time was spent on the beach. The Claimant took a “dip” in the sea and there was general relaxation. Although I bear in mind that the party was generally happy with the result of the football match, since Ireland was the victor, I am also conscious of the fact that the Claimant was responsible for looking after three small boys. I have no reason to suppose that he would allow himself to become drunk in those circumstances. Nor was that actually put to him. Indeed, it was expressly disavowed.[23]The evidence of Mr Tom Gleeson and Mr Paul Kirkwood on the consumption of alcohol was consistent with that of the Claimant. I am naturally aware of the realities of the situation, in that there is a huge incentive for the Claimant and members of his family to downplay the consumption of alcohol. Nevertheless, I have no reason to doubt Mr Healy’s evidence in this respect and there is no other witness who is in a position to contradict him. Also, as I have said, the context of a family day out with young children seems to me to be of significance.[24]At about 4 p.m. the Claimant met up with his wife and she eventually took the children back to the resort. The men followed later. Although it was hinted at in the course of cross-examination, there is no evidence that they then went on, having been relieved of the responsibilities of childcare, to consume further alcohol. They returned to the resort at about 7 p.m. approximately. The plan was that the younger adult members of the party would be going out for supper in the evening. The children would stay under the supervision of their grandparents (Mr and Mrs Gleeson). The Claimant’s middle son, Jack, who was then aged just 9, wanted to go for a swim in the pool. He therefore went down to the pool area with Tom Gleeson, the Claimant, and his uncle Paul Kirkwood. After a few minutes they were joined by his aunt, the Claimant’s sister-in-law, Kellie Gleeson. She was at the time aged 24.[25]Drinks were ordered at the pool bar from the barman Roberto Romao, who gave evidence before me. Beers were ordered for the adults (this time large rather than small). A soft drink was also ordered for Jack. There seemed to be some minor disagreement as to whether it was a “coke” or an orange drink, but it hardly matters. Paul Kirkwood was in the pool swimming about with Jack, and the boy called several times for his father to join them. Although he was at first reluctant, the Claimant decided to go along with the boy’s wishes and to join them in the pool. He took off his Irish team t-shirt and his shoes. He tells me, and I see no reason to disbelieve it, that by this point he had not consumed any of the beer which had been placed on the counter for him. On the evidence, therefore, his last consumption of alcohol was at least four hours earlier and probably no later than 3 p.m. It was certainly not put to him in cross-examination that he was actually drunk. It was put to him that he was happy and “euphoric” because of the general holiday atmosphere and, in particular, the Republic of Ireland victory in the football match some hours before. “Happy” he was prepared to accept. (I should interpose at this point that according to the evidence of a Portuguese doctor, Dr Magarida Valagao, she had enquired of both the hospitals, in Portimao and Lisbon, as to any toxicology test results which might throw light on the Claimant’s alcohol intake, but they had declined to reveal any such information on grounds of patient confidentiality.)[26]Not surprisingly, the Claimant’s memory is somewhat patchy as to the actual events leading to his injuries, although he was not apparently rendered unconscious. He told me that he was intending to jump in the pool, to join his son and Paul Kirkwood, but slipped on the wet tiles, turned in the air and entered the pool head first. He remembered his foot slipping, and the fact that he turned in the air, and thought he was about a stride away from the edge when he slipped. He had marked on a plan roughly where the slip occurred (X) and the point at which he entered the water (Y). These were situated just in front of the pool bar. He was emphatic that he did not dive head first into the pool. I accept that evidence. It would have been an incredibly foolish thing to do and I would take some persuading that he behaved so stupidly. There is no evidence to suggest that he was so drunk as to be disinhibited to that extent.[27]What are the alternatives? It seems to me that there are only really two other explanations, assuming that a head first dive is ruled out. Either there was an attempt at a racing or shallow dive, or there was an attempt to jump feet first which was thrown off course as a result of slipping or otherwise losing balance on the tiled surface.[28]In the course of the evidence, although it was contrary to advice, it was recognised that some people (for example, Mr Martin Howarth) had dived on a shallow trajectory (or “racing” dive) without any mishap. On the facts before me, however, this is a difficult scenario to sustain in the Claimant’s case. As his spinal injuries expert Mr Brian Gardner put it, he would “struggle” to understand how a shallow dive could be converted so dramatically into a head first dive consistent with the injuries actually sustained. He indicated that there was nothing definitive about the injuries which pointed to the mode of entry. Both the spinal injuries experts accepted that the injuries sustained were at least consistent with Mr Healy’s account; they thought that the Court would need to seek assistance from the eye-witnesses (and, of course, the experts in bio-mechanics). Nevertheless, in the light of Mr Gardner’s evidence, I find it improbable that the Claimant actually entered the pool by means of a shallow or racing dive which went wrong.[29]I need, therefore, to focus upon the likelihood, or otherwise, of the Claimant having ended up on his head, with his neck and thorax in line, at the bottom of the swimming pool while having attempted to jump in feet first. I have to accept that it does not seem plausible as a matter of first impression. The evidence of the bio-mechanical experts is likely to be of considerable significance in this context. Before I turn to that, however, I should address the evidence of other persons who were present. b. The Claimant’s eye-witness evidence[30]The Claimant’s son Jack described how he got out of the pool to have a sip of the drink which his father had bought him and then returned to the pool. The only other person in the pool at the time was his uncle Paul Kirkwood. He saw his father fall in. He described his arms being out in front of him “in a Y shape”; that is to say, the arms were not positioned as for a dive. He said there was a big splash and he had fallen in awkwardly. He just “looked awkward”. It did not look like a dive.[31]In cross-examination, Jack explained that he did not see his father’s approach to the pool immediately prior to the fall. When he saw him with his arms up in a Y shape, his head was not tucked between his arms. He also described how the tiles at the side of the pool were “slippier” than in an ordinary swimming pool. He put this down to water overflowing or splashing over the edge. (Another factor on the occasion I am concerned with is that Jack himself will quite possibly have dripped or splashed water on to the surface of the terrace tiles in front of the pool bar when he got out to sip his drink.)[32]He was also referred to his statement which had been made in March 2005 and accepted that he had been asked about these events a couple of months before that; in other words, some two and a half years after the event.[33]The Claimant’s sister-in-law, Kellie Gleeson, explained that although she was present at the pool bar she did not actually see how the Claimant entered the water. She had her back to the pool at the time. She saw the Claimant take his shirt off and trainers and then she heard a very loud splash. She turned round to see his head face down in the water and went off to request an ambulance. She was unclear as to what had actually caused the accident and described how the family members at the time were more concerned about the Claimant’s well-being and did not in the immediate aftermath of his injuries discuss how the accident came about.[34]Her father, Mr Tom Gleeson, was also present. He too heard a splash nearby at the moment of entry but was unable to describe how the Claimant got into the water. The Claimant’s brother-in-law Paul Kirkwood was in the pool at the time and did see how the Claimant entered. He said it was “utter nonsense” to say that he had dived. During the holiday he had not seen any members of their party diving into the swimming pool. He said he came to the edge, lost his balance and twisted into the pool.[35]He also described how the terrace tiles could be slippery when wet and how in fact he himself had slipped in the course of the holiday somewhere in the area of the pool bar.[36]In the course of his cross-examination Mr Kirkwood said again that the Claimant did not dive. He walked towards the edge of the pool and seemed like “he was going to get in” and then “seemed to topple over”. He described him as just “twisting” in a “gangly” way. When he fell he was not sure how far he was from the edge of the water. He was unable to describe where his arms were positioned and just repeated that he “twisted into the pool at an odd angle” and hit the water sideways. c. The Defendant’s eye-witness evidence[37]The first witness called on behalf of the Defendant was Chelsea Fielding, now a self-assured and confident 15 year old, who had been present at the pool three years ago when the accident happened. She made her first statement in November 2004, some two and a half years after the event. She remembered the occasion and realised how serious it must have been when she saw the Claimant pulled out of the swimming pool. At the time she had been standing with her younger sister hoping to go to a disco, which was in fact cancelled. She was waiting at the side and slightly behind the pool bar by some steps which led up to the entertainment and restaurant area. She described how the Claimant had taken a few steps back from the pool (i.e. in the direction of the pool bar) and put his head between his arms before he dived in. She also described how she had slipped on the wet tiles herself on one occasion. She had been running and slipped in a forward direction.[38]There are problems about Chelsea’s evidence. Not only was there a considerable delay before she was asked to give her account, in various meetings with the Defendant’s lawyer, but there are factors which suggest that her recollection is in certain respects inaccurate. I hasten to add no criticism attaches to her. I am quite satisfied that she was doing her best to give an accurate account of what she saw.[39]She said that there was no one else in the pool at the time the Claimant dived in and, what is more, no one at the bar. She is plainly wrong in both respects, since it is quite clear that the Healy party gathered at the bar before the Claimant entered the pool. Drinks were ordered for the Claimant himself, Kellie Gleeson, Tom Gleeson and Jack. Also, Paul Kirkwood was in the pool with Jack at the time the Claimant entered.[40]Another unsatisfactory feature of Chelsea’s evidence was that she described the Claimant as messing about with his son along the poolside edge and tickling him. I am quite satisfied that this did not happen in the light of the other evidence.[41]Another question mark over Chelsea’s evidence is that it seems that she was shown photographs of the “no diving” signs from around the pool. These not surprisingly illustrate a person arched in the process of diving. There is a possibility that this element of (no doubt unintended) “leading” would have affected her own mental image of what she saw and described. Her description included (at paragraph 16 of her witness statement) the words “He arched his body forwards”. This is not entirely satisfactory when the mental image was crystallised nearly two and a half years after the events. At all events, her description was construed by the Defendant’s bio-mechanical expert as describing a shallow dive. That would be very difficult to reconcile with the alignment of the Claimant’s body when the injury was sustained by impact at the bottom of the pool.[42]It is also necessary to bear in mind that the witness statement (at paragraph 15) contained allegations to the effect that Jack and other members of the party were running up and down the side of the pool and that he was being lifted in the air. In the witness box, she agreed that this did not happen.[43]It is interesting to compare Chelsea’s evidence with that of Mrs Carol Fletcher, another eye-witness, who claims to have seen two men get hold of Jack and heave him into the pool, one holding his arm and the other a leg. Chelsea denied that this happened. I am quite satisfied that Mrs Fletcher’s memory in this respect is playing tricks with her. No other eye-witnesses corroborate this aspect of her evidence.[44]Mrs Fletcher (a diver herself) confirmed that she saw the Claimant call to Jack to move out of the way, walk backwards and then dive in with his arms out. She was sitting with her family at a table in the terrace restaurant at the time. She described it as a shallow dive – again something which it is difficult to reconcile with the alignment of the Claimant’s body when he incurred his injuries. This was the scenario which Mr Brian Gardner “struggled” to comprehend.[45]Mrs Fletcher’s daughter Sheridan was sitting next to her mother at the restaurant. She saw a small boy ask one of the adults to come into the pool, whereupon the Claimant walked back, took off his shirt and shoes, and dived in near the boy. She said “He just dived, and his arms were out in front of him”. His hands were described as “down a bit”; in other words, they were pointing downwards as he dived. In so far as Sheridan was confirming her mother’s evidence, it is reasonable to suppose that she too was describing a shallow dive. She rejected the idea in cross-examination that she merely “assumed” that the man she saw was diving. She said that she actually saw it happen.[46]The barman also gave evidence. He was Snr Roberto Romao, who had served the drinks shortly before the mishap occurred. He said that the “kid” insisted on his father coming into the pool, and the father then took off his shirt and shoes. He told his son to stand out of the way and then dived. He confirmed that Jack was not thrown into the pool and gave his recollection that there was no other person in the pool with Jack. He described the three men as being at the bar (i.e. he was inaccurately including Paul Kirkwood as being at the bar rather than in the pool). Jack had only been in the pool for a few minutes before his father dived in to join him.[47]Snr Romao was asked when he was first asked to recall the events of that night. His statement was dated November 2004 and he thought it was probably a couple of months before that. In view of the seriousness of the accident, and Snr Romao’s close involvement with the events of that night and particularly his role in helping to look after the Claimant, it is not unreasonable to suppose that the memories will have stayed fairly clear in his mind. He too, however, described a shallow dive, stating that the Claimant took three steps backwards before diving. Obviously, therefore, his evidence is difficult to reconcile with the 90 degree impact. There are other aspects on which I am quite satisfied that Snr Romao’s recollection is faulty. For example, he thought that the Healy party was at the pool bar some 25 minutes before the accident and that the “girl” (i.e. Kellie Gleeson) had left the bar area 10 minutes before the Claimant entered the pool. In his witness statement the Claimant was described as “running”, rather than merely taking a step or two back from the edge. Because the pool bar itself is situated so close to the edge, it would not have been possible for the Claimant to “run” before diving in at the relevant spot.[48]I have no wish to nit-pick about these various witnesses and their statements. All of them were, I am sure, doing their best to give an accurate account. It is necessary, however, to take account of inconsistencies and inaccuracies when assessing what appear in isolation to be firm and unshakeable descriptions of a voluntary dive. No one among the eye-witnesses, apart from Jack and Paul Kirkwood, speaks of the Claimant “falling” or “slipping” or entering the pool “awkwardly”. The common element among those witnesses, on the other hand, is that they all appear to be describing a shallow dive or, in some cases, possibly a “scoop” dive. That would be unlikely to account for the vertical impact so close to the pool edge. Implausible though it may at first sight seem, therefore, I am driven to the conclusion that these witnesses’ accounts are heavily overlaid by their interpretation or perception of what they actually saw. I have little doubt that they were aware of Mr Healy entering the water, but the shallow dive each of them describes represents an almost instantaneous mental tidying up of what took place. Each is quite convinced that that is what he or she saw, but it is difficult to reconcile with the alignment of the Claimant’s body on impact. That 90 degree angle is the main contribution which the spinal injuries experts make to the evidence on liability. They are unable to offer any opinion on the central issue of a slip versus a dive. I must therefore now turn to the bio-mechanical experts to see what assistance they can offer. d. The bio-mechanical experts[49]The Defendant relied upon the report of Professor James Watkins, of the Department of Sports Science at the University of Wales (Swansea), and the Claimant upon that of Professor Roger Haslam. He is head of the Department of Human Sciences and Director of the Health and Safety Ergonomics Unit at Loughborough University, and has made a special study of the mechanics of falling for more than a decade. Although it may perhaps be contrary to the layman’s expectations, it is necessary to assess this evidence against one particular sentence in Professor Haslam’s report:
“Due to the unpredictable and numerous permutations of body movement and force exertions that occur with a slip and attempts to recover balance, every incident is unique”
. This important proposition was based upon a piece called “Bio-Mechanics of Slips” in Measuring Slipperiness: Human Locomotion and Surface Factors (eds. Chang W-R and Courtney T K), Taylor and Francis (London), at pp 37-65. This is a particularly important factor, bearing in mind that no one is able to give a precise account of the mechanism by which the Claimant entered the pool, or the precise location of entry, or the distance over which he would have travelled between leaving the terrace and entering the water. There is thus opened up a wide range of possible scenarios on which it is impossible to come to a definitive conclusion. One must therefore simply make an assessment of the probabilities.[50]The two experts were unable to agree as to the Claimant’s likely mode of entry into the swimming pool even on the assumption that he was, in accordance with his own case, walking towards it when the mishap occurred. Nor could they agree as to whether the Claimant could have entered the pool head first; nor yet as to a likely manner of contact between his body and the edge of the pool (on the assumption that he slipped) prior to entering the water. It may be useful to begin my discussion by setting out the limited but important areas of agreement: “1. When a person slips while walking, he/she will normally instinctively attempt to recover his/her balance which may involve large unpredictable compensatory movements of the body. 2. Mr Healy could not have slipped at a distance of 1.4 m from the pool and then fallen into the pool head first, 1.0m from the side, without making further contact with the region comprising the terrace tiles, strukturit border, drainage border and mosaic border. 3. As in all movements, the movement (displacement, velocity and acceleration of the body segments and body as a whole) of a person subsequent to a slip while walking is unique due to the unique pattern of the forces acting on the body immediately prior to and during the slipping incident. However, the speed of walking and underfoot conditions would preclude certain outcomes. 4. We agree that the angle of entry into the water would not necessarily be the same as the angle at which Mr Healy’s head struck the bottom of the pool since it is possible that rotation of the body would have occurred as his body passed through the water”.[51]A significant aspect of the evidence adduced from the spinal injury experts is that the Claimant suffered less damage to his spine than in the majority of diving accidents. This may depend on a number of factors. For example, it could be due to the strength of the Claimant’s bones. On the other hand, it might indicate that the impact was less severe than in most instances of diving head first into a pool. It could, of course, be a combination of the two.[52]It is also of importance to note that the alignment of the Claimant’s body at the moment of impact does not necessarily correspond to the alignment at the point of entry into the water. There might have been a change of direction, for example by virtue of continued rotation, while in the water. The depth of the water at the point where the injury occurred appears, according to the evidence, to be approximately 1.2 metres.[53]The Claimant appears to have no recollection of any part of his body coming into contact with the edge of the pool between the slip (as he recalls it) and entering the water. It is necessary to bear in mind, however, the evidence of Professor Haslam to the effect that this could have occurred, perhaps as part of the instinctive reaction of a human being to falling, without his being able to recall it. It is on the other hand fair to have in mind also both that no eye-witness claims to have seen any such contact and that there is no physical evidence of such an impact (e.g. by way of cuts or bruising). If there was in fact no such contact before entry into the water, this would rather suggest that when he “took off” (by whatever means) he was closer to the edge of the pool than he apparently believes.[54]Professor Watkins suggests that the speed and direction of movement required to project the body a horizontal distance of 2.4 metres through the air (i.e. the supposed distance between points X and Y) would be consistent with a run-up followed by a dive from the side of the pool. He draws attention to the fact that three of the four eye-witnesses (Chelsea Fielding, Carol Fletcher and Roberto Romao) spoke of the Claimant running towards the pool and then diving. As Professor Haslam points out, on the other hand, such a dive would have led to an entry into the water at approximately 45 degrees. This suggests that the Claimant would have travelled further than the point at which he was apparently injured and that it would be virtually impossible for him to strike the floor of the pool at that point at 90 degrees (as his injuries would require).[55]Professor Haslam commented in this context as follows:
“I have given some consideration to how an intentional dive could have resulted in a vertical blow to the head. While I can see how this might be possible with a Spring Header dive from a springboard, it would appear to be a remarkable feat from a run up on a poolside level with the water. This would have required Sean Healy to either have slowed his approach at the pool edge and dived very directly at the pool bottom, close to the side of the pool as with a Crouch Dive, or he would have needed to have propelled himself upwards in excess of 1m to gain sufficient height for his body to turn through 180 degrees. I believe that both of these diving actions would have looked strange to anyone observing them. I think it even less likely that an intentional dive, leading to a vertical head strike, would have happened with the commencement of the dive 1.4m from the edge of the pool … ”
. Neither of these hypotheses is, of course, consistent with the interpretation of the eye-witnesses’ evidence to which Professor Watkins attaches such significance. Although Professor Watkins does not accept this proposition, I rather agree with Professor Haslam’s observation that a deliberate dive is unlikely to have commenced as far as 1.4m from the edge. It would be natural to go closer.[56]I am thus left with two particularly significant factors to be weighed when coming to a conclusion as to the most likely scenario prior to the Claimant’s impact. First, a deliberate vertical dive head first is highly unlikely, given the Claimant’s knowledge of the pool depth, his maturity, his experience of swimming, the absence of any significant level of alcohol in his body, and the eye-witness accounts of his supposed “dive”. Secondly, when his head came into contact with the floor of the pool, it is necessary for the angle of impact to have been approximately 90 degrees; otherwise, these particular injuries could not have occurred. It seems to me therefore most likely that, whatever the angle of entry into the water, it came about by some other mechanism than a voluntary dive. The probabilities point to an uncontrolled fall. It will be necessary in due course for me to consider how this fall occurred and, in particular, whether it was due to a slip on wet tiles. Meanwhile, I need to consider how, once he began to fall, the Claimant’s trajectory could take him into the pool in such a way that he came into contact with the bottom at 90 degrees.[57]Professor Haslam made these observations: “The detailed behaviour of a body falling into water and the subsequent energy absorption and damage to the body on impact is a complex problem. This is exacerbated by the uncertainty over the actual conditions of the fall that may have pertained in this instance. However, the following rudimentary analysis, using conservative assumptions, is sufficient to indicate that a head first fall by the Claimant into the pool would have occurred with an impact velocity great enough to cause injury to the cervical spine. Impact velocity, the speed at which Mr Healy’s head would have struck the bottom of the pool, can be estimated as v = √2as, assuming an initial velocity of zero, where: a = acceleration due to gravity (msˉ²) s = fall distance (m) In view of the drag of the water on Mr Healy’s body, a conservative judgment is to use an acceleration of 4.0 instead of the usual 9.81 ms² for acceleration due to gravity. A fall height of 1.2m is assumed, between the height of Mr Healy’s centre of gravity when standing (approx 0.9m) and the height of his centre of gravity at the moment of a head first impact with the bottom of the pool, with a pool depth of 1.2m. Thus, v = √ (2 x 4.0 x 1.2) = 3.1 msˉ¹ This is comparable to the impact velocities from cadaver studies given by Cusick and Yoganandan (2002) as causing various cervical injuries, including burst. This exceeds by a considerable margin the 1.2msˉ¹ sufficient to crush the cervical spine in axial compression (Stone, 1981), as cited by Professor Watkins. These calculations show that a fall into the pool, followed by a head first impact with the pool floor, would have been sufficient to cause injury to the cervical spine. A deliberate dive would be expected to lead to greater impact forces than those arising from an unintentional fall into the water”. a = acceleration due to gravity (msˉ²) s = fall distance (m)

v = √ (2 x 4.0 x 1.2) = 3.1 msˉ¹

[58]This analysis tends to support a fall rather than a dive, although I naturally recognise that there is a good deal of speculation in this scenario. I do not have a precise point at which the Claimant left the terrace: nor do I have a precise point of entry into the water. Nor do I have an angle of entry into the water or a velocity. I need to make, therefore, an assessment of the probabilities in the light of my two data: i) that the Claimant did not voluntarily dive vertically into the pool; ii) that his head came into contact with the bottom of the pool at 90 degrees with sufficient force to cause the injuries at C5 and C6. I am quite satisfied, on the probabilities, that the mechanism of the Claimant’s entry into the water was that of an awkward and uncontrolled fall with the body rotating at the point of entry. Although the angle at entry would have been less than 90 degrees, continued rotation after he entered the water could have led to the undisputed fact that he struck the floor at 90 degrees. I also think it likely that at the point of entry his body was at least partially sideways on, as recalled by Jack Healy and Paul Kirkwood. e. The quasi-admissions[59]I must now consider the third category of evidence which is intended to assist the resolution of the slip/dive controversy. It is based upon certain statements said to have been uttered in the aftermath of the accident, mostly by the Claimant or members of the Healy family, which are relied upon as contemporaneous support for the diving thesis. I was unimpressed by this material, since(a) I would attach very little weight to descriptions of what took place on the evening of 11th June 2002 other than from eye-witnesses, and(b) people at the time were mainly concerned with the devastation of the Claimant’s injuries, and how to repatriate him as soon as possible, rather than with taking words out of their mouths in order to inspect them for potential forensic significance.[60]One of the main witnesses in this context is the former Cosmos representative Tammy Raine who prepared a report in manuscript purporting to record daily events in connection with the accident mainly between 11th and 17th June. There are no corrections or crossings out and inquiry was made in the course of cross-examination as to whether this was a later compilation or fair copy of earlier notes. The witness denied that this was so, and said that she made her entries towards the end of each day from memory.[61]This document is to be contrasted with another hand-written document of Tammy Raine. This was prepared for the purposes of this litigation and summarises the sort of information she would pass on to guests at the traditional “welcome meeting”, which they are invited to attend at the start of their visits. That was not a contemporaneous document or a set text but her best attempt to record what she would normally say. The report, however, was intended to be a more or less contemporaneous record.[62]The report is in my judgment a rather impressionistic summary and I did not find Ms Raine, for present purposes, a completely reliable historian. I do not suggest for one moment that it is other than an honest attempt to summarise events, but she was recording information from memory. Some of it is rather slanted towards giving the impression that Sean Healy’s accident was his own fault, while attributing this largely to what Kellie Gleeson is supposed to have “admitted”. It is an important document nevertheless.[63]It seems that Tammy Raine’s first involvement was when she received a phone call at about 21.05 on 11th June from Jose Matos informing her of the accident. She was unable to attend herself because she was tied up with a cabaret. When she was free she went immediately to the Portimao General Hospital, arriving at about 23.50 and spoke to Mrs Healy. I must record the first information she set down as a result of their conversation: “Mrs Healy was very upset at this time and the story of what happened was a bit jumbled. All I managed to find out was that the party had been out in Portimao watching the football and when they returned Sean had slipped/jumped/fallen into the pool and banged his head. He had no feeling below the waist and was having tests”.[64]Ms Raine later became convinced, as I understand it, that she was being told that the Claimant had “dived” into the pool. It is thus noteworthy that the first information she was given did not include that word in the list of possible explanations. Also, this passage contains the first of a number of factual inaccuracies or assumptions on Ms Raine’s part. As I understand it, the party had been out that day watching football but not in Portimao. They had been in Carvoeiro.[65]Another inaccuracy is that Ms Raine records Mrs Healy and John Mullins speaking to the doctor and later going in to see the Claimant in hospital. In fact, however, on each occasion it was Tom Gleeson who accompanied Mrs Healy and not John Mullins. These inaccuracies do not necessarily matter very much in themselves but they do tend to confirm how impressionistic Ms Raine’s approach is to recording facts. She tends to make assumptions or jump to conclusions and then treat them as cast iron facts. It is not a criticism of her, but it does mean that I need to be cautious about attaching too much weight to her account on matters of greater significance. (I should also record in fairness to Ms Raine that she went, quite rightly, to a great deal of trouble to help the Healy family in their distress and gave practical assistance in the process of repatriating the Claimant.)[66]In the early hours of 12th June Ms Raine faxed the medical report to Cosmos headquarters in the Algarve (just after 01.00). It was picked up next morning when she arrived at her office (in Faro) by Ms Carol Baker (who gave evidence by video link alongside Dr Valagao on 23rd June). She spoke then to Tammy Raine and, probably shortly after 9.00, began a hand written note based on the conversation. She used the word “dived” – which is perhaps curious in view of the fact that, at that stage, Tammy Raine could only have conveyed her own state of knowledge by reference to her initial note (“slipped/jumped/fallen”). It is therefore reasonable to suppose that Carol Baker jotted down “dived” as her own inference.[67]After liaising with her head office Tammy Raine had a meeting at the resort with Mrs Healy and Kellie Gleeson. Her record states that Kellie Gleeson had witnessed the accident which, since she was present with her back turned, is not strictly true. Ms Raine then records what she was told by Mrs Healy and Kellie Gleeson “between them”. This phrase again suggests that she was piecing together the remarks of two people, still in a state of confusion and distress (and possibly mental and physical tiredness), so as to construct a narrative for her employers.[68]She recorded:
“The party had been out all day drinking in Portimao watching the Ireland game”
. They had not been “out all day drinking”, as I have already found, and I accept Kellie Gleeson’s firm denial that she suggested otherwise. That is another inaccuracy.[69]Ms Raine then went on to record how after the return to the resort Kellie, the Claimant “and the other men” went to the pool bar for another drink. There then follows this passage:
“They had a couple more drinks and then Sean took off his shirt and shoes and wearing only his ¾ length trousers, dived into the pool by the pool bar. He was floating just below the surface and the family initially thought he was joking then they realised that something was wrong. Paul, the brother-in-law, jumped in and pulled him out on to the poolside”
. This also contains, as I find, a number of inaccuracies: a). The party did not have “a couple more drinks”. One round had been ordered prior to the accident and the Claimant had consumed none of his beer. Thus Kellie Gleeson would hardly be likely to have given such an account. b). I am quite satisfied that Kellie Gleeson did not tell Tammy Raine that the Claimant had “dived” into the pool. She had her back to what took place and was alerted by the splash. c). There is no evidence that anyone “thought he was joking”. d). The brother-in-law (i.e. Paul Kirkwood) did not “jump in” and pull the Claimant out; he was already in the pool himself. e). Tammy Raine then recorded that Kellie Gleeson had told her that the insurance company had been informed that the Claimant had “dived into the pool and banged his head”. She continued:
“John, at this stage, said it was unclear how Sean got into the pool and no one had seen him dive; but Kellie admitted that she had seen everything”
. This I cannot accept. Kellie Gleeson told me that she had not seen how the Claimant entered the pool and I accept that. Moreover, I am quite satisfied that she had no reason to tell anybody that she had seen the accident. She said that all she would have done would be to list hypotheses as to what have might have happened. She was certainly not positively asserting that he had dived (as opposed, for example, to falling or jumping).[70]In the course of her evidence, Kellie Gleeson told me that she did not know until the Claimant was in hospital in Lisbon how the accident had occurred. Until then all she could do would be to speculate. It was at that stage that she realised that the Claimant was saying that he had actually fallen in. She did not discuss that with Tammy Raine who had by that time left. In cross-examination she was asked why she did not take steps to find out how the accident had occurred, to which she replied that the family was more concerned about the Claimant and his well-being. That is what I would have expected.[71]It is important for me to record that the inevitable inference from the way the Defendant’s case was put at trial is that Kellie Gleeson perjured herself. I am invited to conclude that(a) she saw the Claimant dive,(b) told Tammy Raine this was so, and(c) her denials in court were dishonest. Yet these serious allegations were not put to her fairly and squarely. I wish to make it plain that I regarded her as an honest witness. Moreover, wherever her evidence conflicted with that of Tammy Raine I preferred that of Kellie Gleeson.[72]A telling point made by Mr Wilson Smith QC, for the Claimant, was that if this was indeed a fraudulent claim, and the Claimant’s family were prepared to lie for him, it would have been easy for Kellie and Tom Gleeson to say that they had seen him slip on the wet tiles and that he lost his balance and fell into the pool.[73]Another witness who gave evidence on some of these matters was Julie Mullins, the sister of Lorraine Healy and Kellie Gleeson. She too I found to be straightforward and honest. She was present when the conversation took place with Tammy Raine on 12th June. She confirmed that Kellie Gleeson had told Tammy Raine that she did not know what had happened and that was all she had to tell the insurers. She said she was quite aware that her sister did not know how the Claimant had entered the pool and she did not purport to tell Tammy Raine anything different. She said that the word “dived” might have been mentioned in the context of their telling Tammy Raine that they simply did not know what had happened – it could have been a slip, a dive or a jump. Against this background, I regard Tammy Raine’s entry in her report that “Kellie admitted that she had seen everything” as both inaccurate and slanted.[74]Ms Raine produced a document which she described as her “contemporaneous note which was recorded in the back page of my diary for 2002”. It was not attached to any particular date but was jotted down as a general note in the back of the diary. This purports to record at the meeting on 12th June what she was informed by members of the family. It contains the jotting “jumped into pool & hit head no mention of alcohol – approx 8.15”. The word “jumped” has been crossed out and the word “dived” written in. Tammy Raine explained this on the basis that Kellie had told her that she had informed the insurance company that the Claimant had dived but that she, Tammy Raine, had recorded “jumped” instead. It was Kellie Gleeson who corrected her and caused her to cross out “jumped” and substitute “dived”. The same note includes the words: “Brother-in-law pulled him out by pool bar. Dived”.[75]There were a considerable number of other documentary references to the Claimant’s mode of entry into the pool, some of which suggest that he “dived” and others not. The references to “diving” are relied upon by the Defendant to show that this was how the Claimant and his family were originally describing the accident and, therefore, that the later attribution to a “fall” or “slip” must represent fraudulent revisionism in order to fix the Defendant with liability. In so far as the documents do not refer to “diving”, the Defendant’s advisers seek to explain them away.[76]It was suggested that by the time Lorraine Healy came to use the word “slipped” on the insurance claim form on 3rd July 2002 the period of revisionism was just beginning. In fairness to Mrs Healy, who I also found to be an honest witness, it should be remembered that this account was entirely consistent with Tammy Raine’s first entry in her report (“Sean had slipped/jumped/fallen into the pool and banged his head”). It is also important to have in mind the total picture as it emerges from the earlier documentary records.[77]Dr Magarida Valagao gave evidence on 23rd June by video link from Faro, in which she described how she had gathered evidence for the benefit of Travel Solve Assistance. She understood that Snr Jose Matos (the manager at Colina da Lapa) had informed her that the Claimant had “fallen into the pool”. Snr Matos does not now recall it, but I see no reason to reject Dr Valagao’s evidence. There was a transcript of a conversation on 20th June 2002 between Dr Valagao and Dr Paul Skinner. She passed that information to him. It later emerged that the Portuguese word “saltar” can sometimes refer to a “dive”. It is not necessarily exactly co-extensive in meaning with the word “jump” in English.[78]There is a letter of 18th July 2002 from Scott Harman of Cosmos referring to information he was given in a telephone call from a member of staff at the hotel (“Snr Matos”) on the basis of which he recorded that the guest “fell into the swimming pool”. Mr Harman did not give evidence at the trial, but it was suggested on the Defendant’s behalf that he may have been giving a description slanted in the Claimant’s favour (so as not to prejudice his recovery under the policy of insurance). I am not prepared to make that inference – especially since Mr Harman did not attend to confirm it.[79]In this context, I note that Mr Tom Bishop of the insurers referred on 14th April 2003 to the “gentleman who dived” but he appears to be proceeding on the basis of information from Scott Harman who had used the word “fell”. This may well be another example of someone recording as fact his own interpretation of what he had been told. It is clear from Mr Harman’s letter that he was attributing his information to Snr Matos from Colina da Lapa.[80]There is a reference in some Travelex insurance case notes of 13th June 2002 to sustaining a fracture “after diving into the pool”, but the source appears to have been Dr Sharyn Fryett of Atlas. She explained that there was an error in this respect. She had misinterpreted a conversation of 16th June with a Portuguese doctor (Dr Guaodino). When she listened to the tape, she was able to confirm that he had said “jumped” rather than “dived”.[81]On 20th June in the same series of notes Dr Skinner recorded that the “patient jumped”. That information was noted as having come from “the hotel manager”. Dr Skinner was working for Atlas, who subcontracted the Claimant’s repatriation to CEGA Air Ambulance Ltd.[82]There are undoubtedly a number of references to “diving” in notes recorded by professionals shortly after the event: a) an ambulance record of 11th June; b) the Lisbon hospital record of 12th June; c) an air ambulance record of 23rd June (written by Dr Baskar, who was employed by CEGA Air Ambulance Ltd to escort the Claimant when repatriated, but his information derived in turn from Dr Skinner of Atlas); d) the admission notes at St Helier hospital on 23rd June; e) physiotherapy notes of 24th June; f) a letter of 15th July 2002 to the National Hospital of Neurology from Dr S Majeed (a Senior House Officer) – although the same doctor had stated that “he jumped into a swimming pool” in a letter of 2nd July to the Spinal Rehabilitation Centre; g) various references in case management notes from the Royal National Orthopaedic Hospital in Stanmore to “diving”, “slipping” and “falling”. On the other hand there is a letter from the Stanmore physiotherapist (who had treated the Claimant from 22nd July 2002 to 7th March 2003), stating that he only ever referred to “slipping”. (I note also that when he met his father for the first time after the accident, while still in hospital in Portugal, the account he gave him was “Sorry, Dad. I fell in”.)[83]This jumble of material strongly suggests to me, as one would expect, that the professionals responsible for treating the Claimant were not especially concerned with the precise circumstances which led to his spinal injury and were primarily interested in its nature. This is rather borne out by the contents of a letter to the Claimant of 19th May 2005 from RNOH where Janine Lockwood, the Registration Manager, stated:
“As the information regarding mode of injury is not taken to be a ‘statement of fact’ in these situations it may often be repeated from previous sources without checking.”
[84]The varying descriptions tend to cancel each other out and should be accorded very little weight. There is no consistent pattern. I do not feel able to attach very much significance to the use of the word “dived” in these circumstances. I prefer to concentrate on the eye-witness evidence and the analysis of the experts.

Did the Claimant slip on wet tiles?

[85]There was plenty of evidence from members of the family and other independent witnesses as to the slipperiness of the terrace tiles around the pool. These included Kellie Gleeson, Julie Mullins and Mrs Carol King (who was independent of the family). She described how she found the pool tiles very slippery and noticed how a Cosmos representative had slipped. Her own daughter also slipped over, but when they mentioned it they were greeted with a shrug of the shoulders. Her attention was drawn to correspondence in which a complaint had been recorded at the time. There was a statement to similar effect from Mr Simon Henson who had been at the premises in August 2002 and oral evidence from a Mrs Pat Mortimer who had also holidayed at the resort in August 2002. She herself fell over on the slippery tiles.[86]Mr Martin Howarth had been on holiday in June 2002 and told me how he and his sons had slipped on the tiles. A Civil Evidence Act statement was also produced from Ursel Hulett who described the slippery tiles when she was there in the same month.[87]A year later Mr Alexander Wells was sent by the Claimant’s solicitors to observe the routine. He said that it was not “the same as any other swimming pool”. In his view it was “slipperier”. It felt “more hazardous” and he lost his footing from time to time. This is not, of course, expert evidence and the comparison with “any other swimming pool” seems impressionistic and imprecise.[88]I have already mentioned Tammy Raine’s reconstruction of what she said at the welcome meetings. She emphasised that she always warned about not slipping on the wet tiles. Apparently a favourite phrase of hers was, “Wet feet, wet tiles, sore bum!” It seems curious, however, that this striking aphorism made no impression on any of the witnesses who had attended a welcome meeting. Nobody recalled it. What the document does clearly demonstrate, however, is that she was only too well aware that the terrace tiles presented a hazard. Although in evidence she stated that Colina da Lapa was no different in this respect from any other hotel with a pool, I thought this throwaway line was also impressionistic and unconvincing.[89]There is little room for doubt that the terrace tiles were slippery when wet – or when they came into contact with wet feet. That is in reality part of the Defendant’s own case. The evidence of its expert Mr Nigel Robinson contains the critical sentence: “In the dry condition, it provides a slip resistance at least equal to and perhaps better than the Strukturit, but in the wet it almost equals a smooth glazed tile for slipperiness”.[90]It would be wise for me to bear in mind what was said by Mr D.W. Foskett QC, when sitting as a deputy High Court Judge, in Clough v First Choice Holidays & Flights Ltd [2005] EWHC 80 (QB): “Mr Saggerson [then appearing for the Defendant] made the point … that there is always a risk of slipping around a swimming pool. That, I am sure, is the common experience of everyone who uses a swimming pool, whether at home or abroad. In those circumstances, I find it difficult to draw much from accounts of incidents of slipping such as those to which these witnesses referred”.[91]The Claimant needs to prove that he fell as a result of slipping on wet tiles after he removed his trainers and that the placement of the terrace tiles on which he slipped gives rise to liability on the basis of non-compliance with Portuguese standards. This seems to me to be the most difficult area from the Claimant’s point of view.[92]I was invited to bear in mind the case of James v Preseli District Council [1992] PIQR 114. The Court of Appeal emphasised, in the context of an alleged failure to maintain a highway, that the question in each case is whether the particular spot where the claimant tripped or fell was dangerous. Here, by analogy, it is for the Claimant to prove (assuming that he slipped and lost his footing) that the spot where he slipped was wet at the material time. As Lloyd L J observed in that case:
“… if the particular spot was not dangerous, then it is irrelevant that there were other spots nearby that were dangerous or that the area as a whole was due for resurfacing”
. In this particular set of circumstances, if the Claimant fails to prove where he slipped, and that the tiles were wet at the relevant time, it would become immaterial that other people had slipped on wet tiles in other places and at other times or that the particular terrace tiles in use at the resort were, in general terms, liable to be slippery when wet. It is a matter of causative potency.[93]For a long time, the Claimant’s case was that he had slipped on a wet surface in the vicinity of the pool bar which was shaded (and thus less liable to evaporation). That was the position pleaded in the particulars of claim dated 11th March 2004. In August of that year, the allegation was supplemented in further information served pursuant to CPR Part 18, when it was said that the Claimant was walking briskly “in the shaded area towards the pool and about a stride away from the edge of the pool one of his feet slipped, he lost his balance and landed head first in the pool” without making any further contact with the terrace tiles, the Strukturit border, the drainage border or the mosaic border (largely submerged). The reference to the relevant area being “shaded” was reiterated in supplemental witness statements from Paul Kirkwood and Lorraine Healy dated respectively 23rd January and 9th February 2004. They both say “I also recall that … the bar area was in the shade as it was early evening”.[94]Whether a particular area is, or is not, at a certain time of day within shade is a question of verifiable fact. More recently, on 10th January 2005 it became apparent that the health and safety experts were agreed that this could not be so. Messrs John Boydell and Nigel Robinson stated that “the area of paving between [the Claimant] and the water in front of the bar had been fully exposed at least since about 18.00 hrs”. This means that the point at which the Claimant lost his footing would have been exposed to sunlight and, correspondingly, heat for some two hours.[95]On 7th March 2005 a witness statement was served from the Claimant’s son Jack. He refers in the statement to having got out of the pool shortly before his father entered the water in order to take a sip of a soft drink which was waiting for him near the bar. On this basis, it was suggested that there was an explanation for the tiles between the pool and the bar having become wet despite the exposure to the sun. This had not hitherto been mentioned in any witness statement. Nevertheless, the evidence was supplemented in this respect by the Claimant and Paul Kirkwood while in the witness box. Both referred to Jack having got out of the pool to take a drink. In general, it seems to me that the later details of this kind emerge the less reliable they tend to be.[96]Paul Kirkwood supplemented his evidence in another respect while in the witness box. He spoke of a “wave effect” so that the area of tiles where the Claimant slipped would have been wet for this reason. He referred to the water spilling over from the pool and not all going down the drainage grill. He said (in the course of cross-examination by Mr Dingemans) that he actually saw the wave go over the edge after he got into the pool. He denied, however, that he was “improving” his evidence.[97]Mr Kirkwood was not a witness on whom I could place unqualified reliance. His approach was a little inflexible, and he tended to give answers on a fairly spontaneous basis which he no doubt thought would be of assistance to the Claimant’s case. I need, therefore, to approach the recent introduction in his account of the “wave effect” with some caution. It is right that I should give examples of the kind of evidence I have in mind: i) In the witness box he said for the first time that he had actually seen the Claimant’s legs slip before he entered the water; ii) He stated in evidence that he had never seen the “no diving” signs displayed around the pool but, not content with that, he suggested that they were too high for him to notice; iii) He said that had not seen the pool rules, but rather gilded this evidence by suggesting that they were covered by tree branches and that the family had never been in the vicinity; iv) Despite not having been in the vicinity, he did state that he had seen people slipping in broadly that area; v) When he was being asked about the jollity of the group who had been watching the football match at midday on 11th June, he rather distanced himself from this by saying that he came from Northern Ireland and would not therefore be a natural supporter of the Republic team – yet this is difficult to reconcile with a photograph of him actually wearing an “Eire” t-shirt with a sprig of shamrock underneath; vi) He also tried to distance himself from the local beer (Sagres), because he sought to give the impression that it was stronger than he would normally consume, whereas he appears in another photograph (albeit on a different occasion) with what appears to be a large glass of it in front of him on the table; vii) It appears from the bar record that shortly before the accident whoever placed the order for the round of drinks appeared not to know of his distaste for Sagres because one was ordered for him.[98]Another unsatisfactory aspect of Paul Kirkwood’s evidence is that, despite being one of the principal adult eye-witnesses, he remained silent as to the cause of the Claimant’s fall in the immediate aftermath of the accident. Not only did he not draw the hazard of wet tiles to the attention of Cosmos or the hotel management, but he did not point it out either to members of the family.[99]I need to have in mind also the evidence of Nigel O’Dell who went up to Paul Kirkwood as he was helping the Claimant out of the water. He did not actually see what happened and could not remember whether Mr Kirkwood told him that the Claimant dived or jumped. But he did recall him saying words to the effect, “We’ve been drinking all day with the football”. It is suggested on the Defendant’s behalf that this was Mr Kirkwood’s contemporaneous explanation for how the accident came about – in other words that the Claimant was injured because he was drunk. I think that would be to read too much into a remark made spontaneously in such distressing circumstances.[100]It is, of course, possible that the Claimant slipped on a wet tile less than two metres from the edge of the pool; it is also possible that the area had become wet by reason of Jack getting out of the pool. Nevertheless, in these circumstances it is difficult conscientiously to draw the conclusion that the Claimant has proved on the balance of probabilities that he actually slipped on a wet area of tiling within the relevant margin.[101]It is to be noted also that, if it was the case that the Claimant slipped at or near the point X he marked on the plan attached to his Part 18 further information, it is very difficult to envisage how he could have hurtled straight into the water without further bodily contact with some part of the terrace structure. As I have already made clear, however, I am quite prepared to acknowledge that there may have been further contact of a stumbling or compensatory nature without the Claimant being able to recall it. What caused the loss of balance nonetheless remains unclear.

Was there compliance with Portuguese safety standards?

[102]There was little, if any, dispute between the parties as to the principles to be applied in assessing whether the Defendant can be held liable for improper performance of the holiday contract. It is for the Claimant to demonstrate that the pool surround did not comply with Portuguese laws, regulations or standards. If not, the Defendant would be liable whether the relevant obligations were to be carried out by its own employees or by the resort management and staff. The Defendant’s booking conditions which govern the contract reflect the requirements of Regulation 15 of the 1992 regulations. The primary issue is whether reasonable care and skill has been exercised in rendering the relevant service: see e.g. Hone v Going Places Leisure Travel Ltd [2001] EWCA Civ 947.[103]The resort was opened only in 2001 and was generally of a high standard. It is argued for the Defendant that the swimming pool was constructed in accordance with local requirements. Reliance is placed on a number of documents as evidence of such compliance: a) the architect’s certificate of compliance dated 20th December 2002, in which he wrote inter alia that “… a number of technical and information requirements were observed, the purpose of which is strictly to safeguard users, in particular … 5. Non-slip surface around the pool edge”; b) that of the engineer who also referred to “the application of a non-slip stone surface to the edge”; c) confirmation of compliance following inspection on 10th February 2002 by the Town Council commissioners that the site was “in conformity with the approved projects and rules of proper construction”; d) the certificate of the resort’s completion on 8th March 2002 signed by the President of the Town Council; e) the award of a blue flag to the swimming pool by an inspector from the Lagoa Town Hall.[104]There is a significant issue between the parties as to whether it is open to the court to go behind the local certificates of compliance or whether, on the other hand, an independent assessment should be made according to local standards.[105]The Claimant’s case was characterised by the Defendant, in its closing submissions, as being to the effect that the terrace tiles were insufficiently slip resistant when wet “when judged against British standards”. It is true that the Claimant’s expert, Mr John Boydell, did express the opinion that they were insufficiently resistant when wet, but I do not accept that the Claimant was seeking to apply an inappropriate standard. It was accepted on the Claimant’s behalf that the test to be applied was that of Portuguese standards.[106]It seems to me that the starting point must be to address the current Portuguese regulation 5/97 governing the technical conditions and security of places for aquatic leisure activities. Article 1 declares the purpose to be to limit the risk of accidents.[107]Article 13(i) provides that the tank surrounds should be paved with a strip of no less than 2 metres width and “with a slight slope to the opposite side from the tank”. It should combine the three characteristics of being “waterproof, non-slip, easy to clean”. The Defendant relies upon this as necessarily requiring an element of compromise since the characteristics tend to pull in different directions. In particular, it may be easier to clean a surface which is slippery.[108]It is accepted that the “strip” of Strukturit measures only 410 mm. It is the Defendant’s case that this does not demonstrate non-compliance because the terrace tiles themselves would comply with the requirement, in that they are not only waterproof and easy to clean but also slip resistant – albeit less so than Strukturit. It is said that it must be a matter for local expert judgment as to where and to what extent greater priority should be given to the need for slip resistance over the other characteristics required. The logic of this argument is that the Strukturit strip was unnecessary since the terrace tiles are supposed to be compliant with Article 13(i) in any event. If they are adequate for the distance of 2 metres minus 410 mm, then presumably they would be adequate to the edge of the pool. On the other hand, the Strukturit was put in place at the edge of the pool specifically because of its non-slip quality. The natural interpretation of Article 13 is that a strip is required of two metres round the edge of swimming pools different in character from what lies beyond. The terrace tiles cannot be described as a “strip”, since they extend over the whole terrace from the edge of the Strukturit strip.[109]The Strukturit was described by one of the experts as “pumice like” and is no doubt more absorbent to an extent than the terrace tiles. On the other hand, there is no evidence from the photographs that it presents significant difficulties so far as cleaning is concerned. I cannot accept that the two metre non-slip requirement of Article 13(i) is met where 1590 mm consists of terrace tiles which are, when wet, as slippery as glazed tiles. Obviously wetness is a particular consideration when addressing safety hazards in the immediate surrounding area of a swimming pool. I did not find the argument at all persuasive that it was appropriate for the greater part of the two metre margin to give priority to waterproofing or ease of cleaning over the non-slip requirement. It appears to be an attempt ex post facto to rationalise the non-compliance. There is no reason to suppose that Strukturit was so porous or difficult to clean that a strip of 410mm would meet the two-metre requirement – which was expressly aimed at accident reduction.[110]Nor do I consider that I am absolved, purely because this accident took place in Portugal, from coming to my own decision on compliance with local standards. The local certifications are relevant no doubt as part of the overall evidence, but I cannot accept that they are determinative. I come to the decision, as matter of construction, that the local stipulation for a two-metre strip is not met by the provision of a strip of 410mm.[111]Had the Claimant been able to prove that he slipped on wet terrace tiles within the 1590 mm margin, I should have been inclined to hold that the Defendant was to that extent liable for improper performance. As I have indicated, however, the evidence falls short of establishing that important causative link.

Contributory negligence

[112]In the light of my conclusion on liability, there is obviously no need to consider the arguments on contributory negligence. There would, in any event, be no scope for such a finding since I have found that there was no element of intoxication or any attempt to dive contrary to advice. There is no other basis on which the Claimant’s conduct could be criticised.

The arguments on the Part 20 Claim

[113]Although it is strictly unnecessary for me to do so, I now turn to address the remaining issues in the Part 20 claim. I do this partly in case I should be wrong in my primary findings on liability and partly out of deference to the careful arguments of counsel.[114]The Defendant seeks a remedy over against Vilar Da Lapa (if, of course, found liable to the Claimant). Mr Ross QC for Vilar Da Lapa acknowledged that, in the light of recently carried out research, there could be a primary delictual liability to the Claimant under Portuguese law. It is also necessary to consider the nature of Vilar Da Lapa’s contractual obligation to the Defendant and whether it has been met. Assuming a failure to meet any of its contractual obligations, the question arises as to the nature and extent of the liability on Vilar Da Lapa’s part under the terms of the relevant standard form of contract with the Defendant. The waiver argument was not pursued.[115]Under clause 2 of Cosmos’ standard terms and conditions the Hotelier warrants and guarantees as follows:
“a) that the design, installation, structure and contents of the Hotel … and the services … supplied at the Hotel comply with all applicable national and local laws, decrees, regulations and codes of recommended practice … relating to … general safety of those using the Hotel or any of its amenities.”
Mr Ross made the point that no evidence has been adduced as to any “codes of recommended practice” in Portugal – still less of any non-compliance in that respect. I am thus effectively concerned again with the question of whether there was a breach of the local requirement in Article 13 of 5/97 by reason of the Strukturit not extending for a full two metre width.[116]Mr Ross drew attention to what he considered to be defects in the drafting of the indemnity in clause 2(a), which follows the passage cited above. The terms of the indemnity, which should be construed contra proferentem are, so far as material, as follows:
“The Hotelier shall indemnify and keep indemnified Cosmos against all losses, liabilities, claims or expenses for or in respect of injury … loss or damage to persons … which may arise from any cause whatsoever arising out of or in connection with the supply of services to Cosmos (excluding the negligence or default of Cosmos, its servants or agents but including any failure on the part of the Hotelier to comply with the laws, decrees, regulations … referred to above)”
. Mr Ross submits, first, that the word “default” as a matter or ordinary construction must be taken to convey something beyond “negligence”, since it is separately mentioned. He argued that it would be reasonable in the circumstances to interpret “default” as including a breach by Cosmos of the terms of its contract with its own customer. Thus, it would follow, the indemnity would not bite in circumstances where Cosmos was held to be in breach. The consequence of such a construction would be that the Defendant could never hope to recover under the indemnity against Vilar Da Lapa where it had been successfully sued by one of its customers: unless the Defendant was in breach of its contract, it is difficult to imagine why it should need the indemnity.[117]Mr Dingemans for the Defendant sought to meet this argument by reliance upon the need to give the indemnity clause business efficacy. But, said Mr Ross, indemnities must be judged according to their own rules of construction and not by the criteria applicable to an ordinary commercial contract.[118]It is true that, for reasons of policy, special considerations apply to the construction of indemnity clauses, but it still seems to me to be necessary to construe the language sensibly. By reason of the 1992 regulations a tour operator is required, as the Defendant has done in this case, to accept contractual responsibility in respect of some matters which are not attributable to any “fault” or “default” on its own part in any ordinary sense of the word. The indemnity is clearly intended to be effective where such liability on the part of the Defendant arises through default on the part of the hotelier. It would, however, afford no protection to the Defendant in circumstances where it had, through its servants or agents, failed to comply (say) with an obligation imposed directly upon it by local law or regulations. That would be an example of a situation where the indemnity would not avail the Defendant, through its own “default”, even though not necessarily falling within the notion of “negligence”.[119]Here, what is in issue is whether the hotel was constructed or operated in accordance with Portuguese regulations. Since the Defendant neither constructed nor operated the hotel in question, any breach of the local regulations could not be its direct responsibility. It is true that by reason of clause 2(e) of the agreement between it and Vilar Da Lapa the Defendant had a right at reasonable times to examine the hotel’s structure and all installations in order to check safety standards. What is more, if there was non-compliance on the part of Vilar da Lapa with those safety standards, there might arise a right on the Defendant’s part to cancel.[120]The fact that the Defendant had a right to carry out inspections does not mean that it would necessarily be in “default” if it failed or chose not to do so. Moreover, if the Defendant had seen Vilar Da Lapa’s operating licence, as approved by the local authority and as confirming compliance with local regulations, it would not necessarily follow that the Defendant would be in “default” if it had been misled by such a licence into believing falsely that there had indeed been compliance with local regulations.[121]In the circumstances, it seems to me to be a natural construction of the indemnity that if there has been a failure to comply with local regulations in respect of the construction of the swimming pool, and the Defendant is liable by virtue of its contract with a customer for resulting damage or injury, but without any negligence or default on its own part, then there would arise a prima facie liability on the part of Vilar Da Lapa to indemnify the Defendant in respect of such damage or injury.[122]Mr Ross and Mr Dingemans helpfully sent me a joint note after the submissions were concluded inviting my attention to various authorities from different contexts on the interpretation of the word “default”, for example where it was used in s. 727 of the Companies Act 1985 and the Crown Court Rules 1982. Reference was also made to British Electrical v Patley Pressings [1953] 1 WLR 280, 286; Curragh Investments v Cook [1974] 1 WLR 1559, 1562; Swiss Banking Corporation v Lloyds Bank [1979] Ch. 548, 565; East West Corporation v DKBS [2003] QB 1509, 1553 at [83]. I am grateful for these references, but I rather agree with counsel that they do not assist very much in the present context.[123]I accept that because of the way the clause is drafted the Defendant could not seek thereunder to apportion responsibility between itself and Vilar Da Lapa should an accident occur which is caused partly by the Defendant’s own negligence or default (through its servants or agents). In particular, the draftsman did not include any words in the indemnity which would suggest otherwise (e.g. “… to the extent that …). It is thus an all or nothing matter. The question therefore arises, in my judgment, whether, if there had been non-compliance with the non-slip requirements of the directive 5/97, this could be said in any way to be attributable to “negligence or default” on the part of the Defendant. It is my conclusion that it would not. It would be entitled to place reliance upon local certification and it would not be reasonable to expect Cosmos to take separate Portuguese advice to double check whether local compliance had in fact been achieved.

The decision on liability

[124]Had the Claimant been able to establish that his entry into the pool had been caused by slipping on a wet tile (or tiles) within the first 1590 mm beyond the Strukturit, I would have found the Defendant liable and held that it would be entitled to the benefit of the contractual indemnity against Vilar da Lapa. Since that scenario has not been demonstrated, however, I am bound to treat the matter as a tragic accident and to acquit the Defendant of any liability. I naturally understand how devastating this conclusion will be for the Claimant and his family, but the evidence on the issue of causation admits of no other rational outcome.