Clough v First Choice Holidays and Flights Ltd. [2006] EWCA Civ. 15Whilst on holiday, C slipped from a wall that divided two swimming pools, fell into a paddling pool and broke his neck. He was under the influence of alcohol at the time. The judge agreed that the tour operator had been negligent in that the wall between the two pools had not been coated with non-stick paint. However, it was for C to establish that that had been the cause of the accident and he had failed to do so and so the claim was dismissed. He appealed on grounds that it was not for him to prove that the use of non-slip paint would have prevented the accident. If its use was likely to have made a difference then failure to use it should have been treated by the judge as having made a material contribution to the accident and thereby establishing liability. His counsel argued that there were two distinct concepts: material contribution to damage and material contribution to the risk of damage. All that he had to establish was that F’s negligence (or that of F’s supplier) had made a contribution to the risk that was more than minimal.The Court of Appeal held that holidaymakers were entitled to a reasonable degree of protection whether they were sober or not. C was owed a duty of care by F. The accident was not an exceptional one. However, the court rejected C’s argument on the distinction between material contribution to damage and material contribution to the risk of damage as irrelevant in a case, such as this, where the injuries arose from a single accident. C was required to show that a breach of duty on the part of F caused or materially contributed to his injury. This had been correctly applied by the judge and he concluded, on the balance of probabilities, that the accident would not have been avoided even if non-stick paint had been used.John J Downes
