Swimming pool tragedy has huge implications for the trade – TravelMole Comment by Jeremy Skidmore

A recent court case in which a holidaymaker failed in an attempt to sue Cosmos for £3.5 million over a swimming pool accident three years ago could have huge implications for tour operators.

As reported by TravelMole earlier this week, father of four Sean Healy was on a Cosmos package to the Algarve when the accident happened. Mr Healy was left paralysed from the waist down after incurring spinal  injuries when his head struck the bottom of the pool.

My immediate reaction  to that story was “there but by the grace of God go I”. Heaven knows, I’ve slipped, dived and larked around in dozens of swimming pools around the world and I have enormous sympathy for Mr Healy. But was the accident really Cosmos’s fault?

In the High Court, Mr Justice Eady concluded that it was not. In his judgment, it was a tragic accident, for which no one was responsible.

The ruling is likely to have huge implications because although it does not set a legal precedent, it does put down a marker in the sand. The courts are now saying that operators cannot be held responsible for everything that happens while people are abroad  on a package holiday.

This was not always the case. In the years after the introduction of the Package Travel Regulations in 1992, it seemed that tour operators could be taken to the cleaners over any mishaps abroad. Many cases were settled out of court, and therefore never reported, but they included successful claims against travel companies by holidaymakers who had injured themselves, often while intoxicated and through reckless behaviour.

There was little sympathy for tour operators, who were often portrayed as cutting corners and making huge profits at the expense of their customers.

I’ve spoken to many travel lawyers who feel that the Cosmos ruling marks a turning of the tide, particularly as courts are now aware that our society seems to be following that of the US, where people always try to find someone else to blame for their misfortune.

ABTA’s head of legal services Simon Bunce said that courts are now carefully considering the contracts that people have with their tour operators, to determine whether there has been any fault in the services provided and whether the claimant has acted responsibly.

Put bluntly, if a facility, such as a swimming pool, does not meet safety standards, then tour operators deserve to be sued by people who are acting sensibly and sustain injuries.

However, if there’s nothing wrong with the facilities and a holidaymaker has an accident or injures him or herself while drunk (Mr Healy was not drunk) then he or she cannot blame the tour operator.

In short, this is simply applying common sense. The extraordinary thing is that little common sense was applied in previous years.

The message is that you have to take responsibility for your own actions, whether you are abroad or in the UK, and you can’t automatically dip into the deep pockets of a tour operator when something goes tragically wrong.

Mr Healy deserves to be cared for by our health system, just as he would do if he’d had a terrible accident in the UK. I sincerely hope that he gets the best care and attention available and can have some quality of life. But that doesn’t mean that Cosmos should be forced to pay for it.

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