The summer holidays are now a distant memory but for a minority they will be remembered because of a tragic accident. Every year approximately 100 people sustain cervical lesions in diving accidents whilst on holiday or engaged in a recreational activity.

The Facts

Guy is sixteen years of age and on 6th August 1999 he was holidaying with his family in Turkey. Guy´s mother had booked an “all inclusive” package holiday at a resort village on the Turkish coast. The resort village was situated close to a beach. On the beach was a pontoon which was used for sunbathing and swimming. A yacht was moored along side the pontoon. The crew members were on board. Guy and some of his friends were sitting on the pontoon and watching children diving into the sea. Some of the children were diving off a tarpaulin which covered the stern of the yacht. Guy asked the captain whether he could dive from the side of the yacht which he did. When Guy got back on the yacht the captain said that Guy could have one more dive. It was then that he dived from the tarpaulin and sustained an incomplete spinal cord lesion at level C5.

The Difficulties

Establishing liability in diving accident cases is not straightforward. As in all sporting/recreational activities participants consent to the usual risks associated with the sport. As lawyers representing victims it is our job to distinguish usual risks from unacceptable risks. Where accidents occur abroad the position is further complicated by the rules which govern the choice of law and the country in which a claim may be made (the jurisdiction).

Overcoming the Difficulties

Unlike my previous case studies I have only just met Guy and taken instructions. On the basis of my initial investigations I feel that there are reasonable prospects of establishing a claim. I consider that the following facts are important:

Guy asked the permission of the captain to dive from the yacht. The yacht was moored on the pontoon which formed part of the resort village. The yacht was used to take the guests out for trips. It is probable that the captain of the yacht is either an employee or an agent of the resort. My preliminary view is that the captain failed adequately to supervise the area. He should have realised that the water was tidal and of insufficient depth. Not only did he fail to warn Guy and his friends of the danger but he actually gave them permission to dive from the yacht.

There were no signs in place warning holidaymakers not to dive from the pontoon. In a popular swimming area where children were diving from the resort appropriate warning signs should have been displayed.

The holiday purchased was a Regulated Package as defined in The Package Travel Regulations of 1992. As the Regulations apply to packages sold or offered for sale in the United Kingdom it follows that UK courts have jurisdiction to deal with breaches of the Regulations. Accordingly in Guy´s case if the claim is made against the tour operator the proceedings can be issued in England.

The next step in Guy´s case is to apply for legal aid to fund his legal costs. Guy is financially eligible and I will be able to certify that the claim has sufficient merit to warrant legal aid being granted albeit limited in the first instance to permit necessary investigations. It should be noted that although Guy´s family have a legal expenses policy (linked to their travel insurance) this excludes claims against tour operators and as a consequence is of no value.

When legal aid is obtained the evidence gathering process will begin. The following investigations will need to be made:

• an expert specialising in water safety will be sent to visit the site in Turkey and report on his or her findings
• we will establish whether the captain was an employee or an agent of the resort
• the resort´s accident report book will be requested as will details of all previous accidents which have occurred at the resort. It may be that similar accidents have occurred in the past
• we will seek to establish whether the resort carried out appropriate risk assessments and minutes of all safety meetings conducted at the resort will be obtained
• we will obtain witness statements from relevant persons present on the day

The Outcome

This is of course unknown at this stage and is not assisted by recent court decisions which have found against claimants in diving claims. In order to succeed it will be important to distinguish the facts of this case from the facts of other reported cases which have not been successful. As with many personal injury cases the merits will need to be reviewed at several crucial stages. The first merits review has taken place and this will enable Guy to obtain legal aid. Once the preliminary investigations have been completed the second review of the merits will be necessary and it is my hope that this will support the formal issue of a claim for compensation against the tour operator.

Postscript

Latest reports suggest that legal aid for personal injury claims will be maintained until March 2000. Thereafter legal aid for personal injury is likely to be restricted to cases involving high investigative costs or public interest cases.