The leaves are turning and there is a nip in the early morning air. For many of us, a frisson of excitement touches us as we know that another skiing season is about to begin. White snow, blue skies, bronzed skiers, the new season's colourful gear and equipment, gluhwein and good companionship enter our thoughts. What we rarely think of is the risk of injury. All skiers ski at their own risk, so if you fall over and break your leg, it's your own fault. If you go into an avalanche area when the danger flags are flying, you have only yourself to blame. But what happens if you are standing drinking in the scenery and are knocked over and injured by a reckless skier? Provided that you can identify him and prove his negligence, then you should succeed in an action against him.
The defence of volenti non fit injuria is not open to the defendant because it does not arise merely where someone participates in skiing which he knows carries a risk. For the defence to succeed, the defendant must show that you voluntarily and freely, with full knowledge of the risk, nevertheless agreed (expressly or impliedly) to run that risk, and this you did not do when you stopped on the side of the run to look at the mountains.
The complication starts if the defendant is not English and not living in England. Suppose he is French and the accident occurred in France. Where would you issue proceedings? The general rule as to jurisdiction gives a choice between where the accident happened and where the defendant lives.
The choice of which law applies is a choice distinct from that of jurisdiction. The general rule is that the applicable law is the law of the country in which the events constituting the tort in question occurred. Hence France becomes the place for the hearing and French law will apply. What follows from this is that the limitation period is that of French law, i.e. ten years, not three years. Quantum is considerably lower than in English courts and the costs awarded are nominal. The hearing is conducted on written evidence with only very short oral argument by a French advocate and generally with neither the claimant nor the defendant being heard at all or even present.
The complexities become more difficult when, for example, the defendant is English, the claimant French and the accident occurred in Austria. To give some examples - the limitation period in Switzerland is one year in most cases, five in Italy, two in Canada, and three in Austria. Quantum varies widely - France has scale damages and minimum costs. Ireland given high damages and Switzerland minimum damages for pain and suffering except in severe cases.
Some years ago I acted in a case in France involving a skiing accident. On 29 January 1991, Michael Hammam, an Englishman, was skiing with his friend on a red piste (groomed run) in Flaine. As it was very icy, mogulled (bumpy) and difficult to ski because of its steepness, they decided to cross an unpisted area so that they could resume their decent. The area between the two pistes had been criss-crossed with innumerable snow tracks as other skiers had also done this. After travelling about a hundred metres, Mr Hammam lost first one ski and then the other and he started to slide down hill. He was unable to stop himself.
Not very far below the place where he fell was a fissure which had been marked at its head by orange warning netting. Across the actual hole, as a partial protection only, wires had been cross-crossed. He continued to slide, missed the protecting wire part, fell into the unprotected lower half and was killed. He left a widow and two children.
Following the accident an Examining Magistrate was appointed who, together with experts, visited the scene of the accident to consider two points - whether the area where the fall had become a de facto piste and whether the protection of the fissure was sufficient. The Examining Magistrate's expert in June 1992 concluded that the area where the accident occurred was an "off-piste" area and that the wires would have stopped a skier sliding into the top part of the fissure which was all that he felt was required. Therefore there was no case to answer.
The distinction between piste and off-piste is important. A skier skis off-piste entirely at his own risk. A piste is a marked and graded run, free of hazards, and its upkeep is the responsibility of the slope owner or the commune.
Under French law, the Examining Magistrate's decision must be sent to the Prosecutor for his view. In this case the Prosecutor entirely disagreed with the Examining Magistrate. He indicted M. Amboise, the Manager of the ski lifts and pistes, on a charge of manslaughter through negligence and sent him for trail before the Criminal Court. Mrs Hammam had a choice of initiating civil proceedings or joining the criminal proceedings. She chose the latter option since the Prosecutor had gathered the evidence for her.
Judgement was given in June 1993 in which M. Amboise was found guilty and fined £1,000. Because the French Criminal Court could deal with the civil element at the same time, Mrs Hammam (who did not attend the court in Albertville) was awarded £46,000 for the equivalent of pain and suffering for herself and her family, and £217,000 for loss of income for herself and her children, both minors.
M. Amboise appealed to the Court of Appeal in Chambery. The conviction was upheld and the award doubled, but for the first time the Court brought in the element of contributory negligence on the part of Mr Hammam. This seemed extraordinary as it had not been raised in issue in the Court of first instance. As the Court then decided that the increased award should be reduced by 50% we were back where we started!
It is important to realise that as the French legal system does not accept the doctrine of precedent every case is heard on its own merits by each individual court. We appealed the decision to the French Supreme Court, which about eighteen months later upheld the decision of the Court of Appeal. Incidentally, all the Supreme Court could have done was to confirm or reject the decision of the Court of Appeal and if it had rejected the decision, then the entire case would have been referred back to another Court of Appeal in a different district for a re-hearing. What other legal surprises might that have produced?
So whilst you daydream about your skiing holiday this winter; do remember before you go to get good insurance cover which includes cover for legal expenses. And never forget that, even with that cover, you cannot mount an action unless you can clearly identify the defendant.