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Insurance & Reinsurance
With the high-profile Gwyneth Paltrow skiing case drawing to a close the potential consequences for those involved in skiing incidents have been well-publicised. However, in Europe we are seeing a sharp rise in skiing accidents across the board.
Last year in France alone there were 45,985 injury victims in ski areas, an increase of nearly 10% on the previous year.
In last week's high-profile US court case, the claimant alleged Paltrow had skied into him after being distracted by her children, causing him broken ribs and brain damage. Paltrow denied fault, her case that the claimant had skied into her from behind and they both fell to the ground.
Over six years after the incident occurred the jury found the claimant at fault for the incident and Paltrow was cleared of any liability. Evidence was also brought to court disputing the claimant’s claims regarding his health, showing him having taken long-distance trips after the incident.
Classed as an extreme sport, accidents on skiing slopes have the potential to cause devastating and life-changing injuries. The importance of being prepared and having travel insurance in place before embarking on trips abroad cannot be underestimated. Many insurers offer winter sports travel insurance covering skiing and snowboarding accidents, along with damage to equipment and coverage in the event of piste closure. Insurance can also be purchased for activities such as ice skating, snowshoeing and tobogganing that may take place in resorts. Some policies will also provide cover for search and rescue and helicopter rescue costs.
Claimant firms offer representation to claimants who have sustained injuries in a skiing incident. As well as incidents caused through the actions of other skiers, injuries may be caused by broken equipment or poor instruction/supervision. Claims may also be pursued against ski lift operators if an accident is caused by faulty machinery.
Should the worst happen, Clyde & Co’s international casualty team are experts at defending high-value ski-claims. Initial steps can be taken by resorts and those involved in accidents to assist in defending such claims. These include obtaining footage of the accident from any skiers with cameras, taking photographs of the accident location and any equipment (if applicable), and requesting details of any witnesses who saw the incident and/or its aftermath. In addition, expert evidence will likely be required to assess the parties' version of events and adherence to the FIS code of conduct.
Given the location of skiing incidents, any claim will invariably contain elements of foreign law and/or issues in relation to which jurisdiction the claim can be brought. Our team has unrivalled experience in dealing with cross-border claims involving the application of foreign law and jurisdictional issues that may arise.
Following the case of Brownlie  UKSC 45 the Supreme Court’s interpretation of ‘damage’ expanded the boundaries of the harm required to enable a tortious claim to pass the jurisdictional gateway. The claimant in Brownlie submitted that her pain, suffering and loss of amenity extended to the continuing damage suffered and not just at a single point in time when the injury was initially suffered. This was to satisfy Practice Direction 6B 3.1(9) which requires that “damage was sustained, or will be sustained, within the jurisdiction”.
The decision is beneficial to claimants who have suffered serious injuries skiing. Claimants with high-value serious injuries can argue their pain, suffering and physical injury were suffered first on the skiing slope and then continued in England. A defendant still has the possibility to argue that the country where the incident occurred and not England & Wales is the appropriate forum in a claim and the recent decision of Moore & Anor v MACIF  EW Misc 11 (CC) gives defendants some guidance on how to argue that another jurisdiction would be a more appropriate forum to hear the claim. Given our experience in these claims, we can advise on the costs and benefits of any jurisdictional challenge and their prospects of success alongside the likely impact on total indemnity spend of a claim being heard in one jurisdiction.
Whilst a claimant sustaining an injury on a skiing holiday abroad, and subsequently pursuing a claim, can be successful in applying for permission to serve proceedings outside of the jurisdiction where the accident occurred (i.e in England and Wales) enforcement may not be so straightforward. Since Brexit there has been significant uncertainty regarding the recognition and enforcement of UK judgments abroad and foreign judgments within the UK. With Brexit the application of both the Brussels I (recast) Regulation (1215/2012) and the Lugano Convention of 2007 ended.
The UK government does now propose to ratify the Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (Hague 2019). However, it does have a number of shortcomings for serious injury claimants including the possibility of preventing enforcement of an interim award of damages. Hague 2019 also provides that “the act or omission directly causing such damage [must have] occurred in the state of origin”. This would seemingly make judgments under the Brownlie tort gateway above, to be unenforceable via the Hague 2019 mechanisms.
Clyde & Co’s international team will assess the merits of any skiing claims and where necessary challenge any applications that seek to bring a foreign claim to England and Wales. Should you require any information on cross-border claims or accidents abroad please contact our international casualty team.