Need to claim for an accident on holiday - Who is best?

DrScotsman

kms26 wrote: »

Is there any need for that tone??

I was purely saying by the hotel not dealing with the incident before hand they showed negligence.

Um, and you were "purely saying" something with no basis. You've not substantiated your claim of negligence.

And the fact the laughed when my mum fell was just pure rude. I would love to know your view on that one!!!

It's incredibly rude but also incredibly irrelevant.

And how can you say they didn't breach duty of care when they could have prevented either of the my groups accidents from happening when the lady fell and broke her hand 3 weeks before!!!

I can easily say that because what you've just said (repeated) is factual causation and not breach of duty of care. I think Wikipedia says it best - "The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances."

I would expect a pool to be slippery and for me to have to walk carefully and look where I'm walking. I'd expect to maybe slip even if I were careful!

The fact that other people have hurt themselves there is for the most part irrelevant. A place having a high correlation with accidents doesn't say anything. If a stretch of road has more accidents (per mile) than other roads it doesn't mean the road is at fault, it may mean that drivers can get away with carelessness on other roads but not this one. For all you know the people who hurt themselves were being completely careless and hurt themselves in that place because it is the most dangerous

And surley it is their DUTY to keep their guests safe!!!

I never disagreed that there was a duty of care, only that there was a breach.

And surely them not having any signs up saying slippery surface etc is negligence!! (although it is common sense)

LOL, if it's common sense then how can there be a problem!? If as you say it's common sense that a pool is slippery, then not putting up "slippery" signs can hardly be falling short of any expected standard. Also if it's common sense that the pool is slippery, then putting up the signs shouldn't change anything. Fails breach of duty AND factual causation.

I came on this forum for advice not for you to leave comments in tone you did!!!

I am advising you the requirements for you to establish negligence in law. I'm sorry it's not the advice you want to hear.

Gloomendoom

Who, exactly, does the OP want to claim compensation from?

Quentin

kms26 wrote: »

Also when we came back our flight was delayed 3 and a half hours, the annoying thing was the same company had other flights going out that were scheduled later than ours and had no delays. Can i do anything about it?

Don't be annoyed because other flights were leaving without delays, what has that got to do with your flight?

3/4 hours delay isn't a great hardship, you won't get any legal compensation.

Learn from it and be prepared for delays next time you fly!

apt

Gloomendoom wrote: »

Who, exactly, does the OP want to claim compensation from?

Package tour operators would be legally liable even if it is one of its suppliers that fails to provide a service or is negligent. That is a very sensible law as it would be difficult to take a case against a foreign supplier.

dickydonkin

The fact that other people have hurt themselves there is for the most part irrelevant. A place having a high correlation with accidents doesn't say anything. If a stretch of road has more accidents (per mile) than other roads it doesn't mean the road is at fault, it may mean that drivers can get away with carelessness on other roads but not this one. For all you know the people who hurt themselves were being completely careless and hurt themselves in that place because it is the most dangerous

I disagree.

Using your analogy, you believe that where there is a high occurence of accidents on a particular stretch of road bears no relevance to the location, environment, condition or other factors but is purely driver error that will be the causation.

The reality is that ALL accidents -and that includes a trip on a pavement to a major air crash, have an immediate and underlying cause. Of course there will likely be an element of human error, but it will not be a single factor that will be the sole cause of an accident and to suggest that the incident in question was due to the OP's mother being careless is a stupid comment to make.

Prior to investigating an accident, I was 'informed' that the person who had just lost his finger was 'stupid' and should not have done what he did. He was actually on the verge of being sacked from his job because of his 'stupidity'.

Without going into great detail, it transpired that the immediate cause of the accident was due to the person operating a piece of equipment he should not have been working on.

The underlying causes were organisational and systemic failures on company procedures and working practices and the company narrowly avoided prosecution.

In this situation, there was a degree of human failing, but if reasonable precautions and procedures were put in place by management, this guy would still have his finger.

I suggested recommendations to address the underlying causes and a modification to the equipment to remedy the immediate cause.

Going back to the road analogy, where there are high rates of accidents on a particular stretch, it is likely that there are features of that road that will be significant contributory factors. Those factors will never change (unless remedied or weather related) but add the human element into the equation, then there is potential for accidents. The human factors would involve inexperience, perception, inattentional blindness etc.

Such human factors would obviously be impossible to remedy in everyone using a particular black spot so the other obvious answer to the problem would be a collective resolution by implementing engineering controls such as road improvements that would go some way to resolving the situation.

Actions such as dualling a road, removing bends, improvments to lighting, road markings and signage are all significant methods of reducing accidents in black spots.

Furthermore, you could go deeper and at a national level, improve the standard of driving by improving driving training and/or implementing stricter licensing criteria such as increasing the age for drivers - an obvious solution as young drivers are more likely to be involved in an accident.

I apologise to the OP for drifting off a little - well a lot, but it is wrong to assume that someone who has hurt themselves in an accident has been careless.

Yes, I agree that the perimeter of a swimming pool is an obvious place for a slip to occur, but when incidents are occuring in the same place (black spot?), there is obviously a problem and one that needs to be addressed.

The defendant is in breach of duty towards the claimant if their conduct fell short of the standard expected under the circumstances."

I would expect a pool to be slippery and for me to have to walk carefully and look where I'm walking. I'd expect to maybe slip even if I were careful!

The first quote is very vague as it does not imply what the standards are but lets say for example that the pool was here in the UK, the standard would likely be the Health & Safety at Work Act where there is a duty of care on the duty holder (hotel or tour company?) to his employees and 'others' to ensure their health, safety and welfare. If the tour company was indeed UK based, there is a possibility that they may be required to conform to that legislation.

You are correct in the second part of your statement stating that a pool area is slippery - however, the owners of that pool do have a duty of care to those using that area and as they will (or should) be aware of the possibility of injury is increased due to the very nature of the area.

However, if they do nothing to reduce the risk of an accident or mitigate the consequenses, then they have failed in their duty of care. What compounds this problem is that they were aware of the situation.

Let me use another analogy. Supposing that hotel was serving food in their restaurant and a couple of people developed salmonella poisoning (the accident).

So the hotel is aware of the situation but fail to investigate the cause of the outbreak and continue to sell the contaminated food. Then you and your family go into the restaurant and eat the dodgy food and you all become ill.(the injury). You then find out that the restaurant knew about the problem but failed to act which would have prevented your sickness.

How would you feel then? (apart from very ill obviously).

BTW - Do not believe everything quoted on Wikipedia!

DrScotsman

dpassmore wrote: »

I disagree.

Using your analogy, you believe that where there is a high occurence of accidents on a particular stretch of road bears no relevance to the location, environment, condition or other factors but is purely driver error that will be the causation.

Yes, I agree that the perimeter of a swimming pool is an obvious place for a slip to occur, but when incidents are occuring in the same place (black spot?), there is obviously a problem and one that needs to be addressed.

I guess I wasn't clear. I was not saying that the nature of the road wasn't a contributing factor, indeed the location, environment, condition or other factors are completely relevant. But like in the swimming pool example there may be factual causation but there may not be breach of duty of care.

In the example I was trying to formulate, I gave you the careless driver, who manages to get by (just) on normal roads. However on this bendy, blind-spotty road, he crashes. Now this road isn't too bad so a careful driver would have absolutely no problems on it. Now there are loads of careless drivers, and this is a popular road, so there are many accidents on this road. Is the road at fault? Do we need to redo the road? Of course not, the reasonable driver (the careful one) certainly doesn't think it falls short of any expected standard, so while factual causation may occur, no breach of duty of care as occurred.

By the same virtue, how is there a problem at this black spot? Let's say there 100 people use the pool every day. 99 of them walk slowly and look where they're going. One person is very careless - more careless than the reasonable man, but only careless enough such that they don't slip on the rest of the pool, but this black spot. How is the pool at fault? The reasonable man, who walks carefully, can't see it falling short of the expected standard.

Another thing you're not considering is that even the reasonable man may expect the possibility of slipping in a pool (i.e. it meets the expected standard). A very extreme comparison is a dangerous sport, where there is plenty of factual causation for your injuries but no one has breached any duty of care. This might apply here in a much more minor way (I am saying "might" though)

For the record I wasn't saying the OP's MIL was necessarily careless, but rather if the previous accidents were careless people and the hotel saw them as such, then there wouldn't be any reason to 'fix' the area. If it's now established that the OP's MIL was careful, there might be enough foreseeability for them to fix it now, but that has no bearing on their liability to her.

I completely agree with your assessment of the example you've given but it doesn't apply to this situation. Although you haven't described this equipment, it sounds dangerous enough to warrant training and hence clear breach of duty by the employer.

DrScotsman

Cross [strike]posted[/strike] edited.

dpassmore wrote: »

The first quote is very vague as it does not imply what the standards are but lets say for example that the pool was here in the UK, the standard would likely be the Health & Safety at Work Act

The standards are what the reasonable man expects, they aren't laid out in any statute for your easy reading.

EDIT: Health & Safety at Work Act? Without reading, doesn't that only apply to employees and employers?

where there is a duty of care on the duty holder (hotel or tour company?) to his employees and 'others' to ensure their health, safety and welfare. If the tour company was indeed UK based, there is a possibility that they may be required to conform to that legislation.

You are correct in the second part of your statement stating that a pool area is slippery - however, the owners of that pool do have a duty of care to those using that area and as they will (or should) be aware of the possibility of injury is increased due to the very nature of the area.

However, if they do nothing to reduce the risk of an accident or mitigate the consequenses, then they have failed in their duty of care. What compounds this problem is that they were aware of the situation.

Um, no.

I can't find whichever judge said this, but if all trains ran at 2mph then we would prevent many accidents. That does not mean we should have all trains run at 2mph.

You seem to be letting health and safety myths dictate your understanding of the law. If you look at that page you will see plenty of examples where the myth is that the law reduces risks as much as possible (e.g. banning use of step ladders at work), whereas the reality is that those risks are perfectly legal.

Let me use another analogy. Supposing that hotel was serving food in their restaurant and a couple of people developed salmonella poisoning (the accident).

So the hotel is aware of the situation but fail to investigate the cause of the outbreak and continue to sell the contaminated food. Then you and your family go into the restaurant and eat the dodgy food and you all become ill.(the injury). You then find out that the restaurant knew about the problem but failed to act which would have prevented your sickness.

How would you feel then? (apart from very ill obviously).

Again that's completely different, once they know of the food poisoning it is falling short of the standard the reasonable man expects. There's no way the people who got poisoned in the first place were being careless.

BTW - Do not believe everything quoted on Wikipedia!

I've been to a fair few Tort law lectures thank you very much, I was using Wikipedia for citing, not my understanding.

dickydonkin

By the same virtue, how is there a problem at this black spot? Let's say there 100 people use the pool every day. 99 of them walk slowly and look where they're going. One person is very careless - more careless than the reasonable man, but only careless enough such that they don't slip on the rest of the pool, but this black spot. How is the pool at fault? The reasonable man, who walks carefully, can't see it falling short of the expected standard

It doesn't work that way I'm afraid, but I hear what you say.

You do not assess a risk based on the assumption that EVERYONE is careful but you have to take into consideration that some people have no perception of risk.

What may seem a blatantly obvious hazard to you and I may not be perceived as such by others - that does not suggest that person is stupid or careless, but just a trait of human nature.

You and I know a radiator can get extremely hot - now - ask yourself why radiators, when they are fitted in care homes and nurseries, are enclosed. This is to ensure vulnerable people who inhabit those types of premises are more likely to have unintentional contact with a hot surface that could cause burns.

If we were all robots, we could then be programmed to be aware of risk and avoid danger - unfortunately, we are in a real world but we can do things to prevent accidents by simple and cheap measures.

I am not suggesting that the risk of slipping can be totally eradicated, but the risk can be reduced to an acceptable level.

By the same virtue, how is there a problem at this black spot?

Simply because there have been a repetition of incidents within the area.

Let's say there 100 people use the pool every day. 99 of them walk slowly and look where they're going. One person is very careless - more careless than the reasonable man, but only careless enough such that they don't slip on the rest of the pool, but this black spot. How is the pool at fault? The reasonable man, who walks carefully, can't see it falling short of the expected standard.

This is suggesting that in a potentially risky environment, 99% of the people using the pool on a given day will be unscathed and that is a very likely, but to gauge trends, one needs to examine accidents and incidents over a prolonged period and if there has been accidents in a particular area over a relatively short period of time, that would suggest to me there is a problem.

One person is very careless - more careless than the reasonable man

Now look at the above quote and bear in mind that young children and possibly elderly people use the pool area.

Now how do you define careless in a two year old who certainly has no perception of risk or the elderly person who may be careful and reasonable, but just does not have the agility or steady footing of say a 30 year old?

It is these people who also need to be considered when assessing the risks of a particular area.

The following is a quote from HSE guidance HSG48 (Reducing Error and Influencing Behaviour):

Isn’t it just about people ‘taking more care’?
[FONT=Helvetica 45 Light,Helvetica 45 Light]
[FONT=Helvetica 45 Light,Helvetica 45 Light][FONT=Helvetica 45 Light,Helvetica 45 Light][FONT=Helvetica 45 Light,Helvetica 45 Light]No. It is quite wrong to believe that telling people to take more care is the answer to these problems. While it is reasonable to expect people to pay attention and take care at work, relying on this is not enough to control risks. Box B shows what can happen if complacency about risks is combined with a belief that ‘taking care’ is a suitable control measure. [/FONT]

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DrScotsman

You know what? I'm not really sure how to say this but I must admit my previous posts were wrong. I have indeed been misunderstanding breach of duty. It indeed does not depend on how careful the claimant is, it depends on the probability of harm, the severity of the likely loss, and the burden/cost of eliminating the risk. I appreciate that I ignored you trying to say this, and I hope you understand it was because the extent of your citations was Health and Safety law (for employees) rather than the core principles of negligence. Not that that's an excuse.

This raises one point though: I don't entirely understand the layout of this pool, but if the only way to reduce the risk involved significantly reducing the entertainment value of the pool, that would count as a burden and hence they they probably won't be liable. This stems from case law but is also codified in the Compensation Act 2006

I hope both you and kms26 accept my sincere apologies. kms26, I do hope you succeed in getting compensation (subject to the burden above)

kms26

Thank you for all your replies.

To start with, I came on here to ask advice on which company i should use as we believe we have a case, if we don't then the company we choose would surely tell us.

Gloomendoom wrote: »

Who, exactly, does the OP want to claim compensation from?

Whoever is responsible, presumably the company we choose would be able to decide that.

I don't know if i made this clear or not, but my mum and my mother in law both had shoes on, they both were looking where they were going (being in their 50's i think it is fair to say they don't need telling lol) and neither of them were acting carelessly. My mum was going to get a bottle of water and my mother in law was going to the small pool with my son.

I think as there had been previous accidents, the area in question should have been made safe, but especially after my mum had fallen if they had made the area safe then my mother in law would been less likely to have fallen in the same place. Also i don't know if i mentioned but AFTER my MIL had fallen 2 more people fell that we saw and we were told another 3 had fallen too all in the same place and it was only 3 days before we came home that they put some of this protective matting down in this area.

If someone can tell me how to do it, i will put some photos on to show the area in question.