Wednesday 21 February 2018

Parents of young man injured on holiday not liable

THE parents of a teenager seriously injured in a holiday swimming pool accident are not liable in a claim against a travel company over the incident, the Supreme Court ruled.

Robert O'Byrne junior was 17 when he dived into the shallow end of a pool at night and was injured during a family package holiday to Spain.

Michael Stein Travel Ltd (MST) had sought an indemnity against his parents, Robert O'Byrne senior and his wife Charis, on grounds alleging they were responsible for him at the time of the accident.

It is claimed he had consumed alcohol on the night and the parents were aware of this - but his father said drink was sold indiscriminately to youngsters at the hotel they were staying in.

Due to failure by MST to provide any adequate explanation for its "inordinate delay" in applying to join the parents as third parties to the case, initiated in 2008 by their son, the court would set aside notices to have them joined, the Chief Justice Susan Denham said yesterday.

She said court rules require, unless ordered otherwise, third party notice applications to be made within 28 days from the time for delivering a defence. There was very considerable delay from October

2008 to January 2011 in this case which was not adequately explained, she said.

On those grounds, the three judge court allowed the couple's appeal against the High Court's refusal to set aside the third party notices in which MST sought an indemnity or contribution from the couple against their son's claim.

Ms Justice Denham said the substantive case arose from "unfortunate circumstances" in which Robert Jnr suffered serious injuries after diving into a swimming pool at night in July 2005.

In June 2008, having reached 18, Rober Jnr initiated a personal injuries action against MST alleging negligence, breach of duty and breach of contract. A defence was delivered in December 2008. In January 2011, MST sought leave to issue a third party notice relating to the parents and, in March 2011, sought leave to amend its defence.

In an affidavit, Kevin Mays, solicitor for MST, said he believed Robert Jnr was under the control and supervision of his parents at all times while at the holiday complex in Spain. He believed Robert Jnr had, with knowledge and consent of his parents, consumed alcohol, contrary to Spanish and Irish law.

Mr Mays said he believed the parents were negligent and in breach of their duty of care by allowing their son consume alcohol and in failing to supervise his actions which led to his diving into the shallow end of the swimming pool.

In an opposing affidavit, Robert O'Byrne Snr said, while his son was a minor in 2005, he was old enough at 17 not to be under the continuous supervision of his parents and it was unreasonable to assert otherwise.

Large numbers of teenage children made up about one third of the population of the Spanish hotel involved, he said.

MST's claims about child management were "fundamentally contrary" to the activity of the hotel and all others in which he had ever stayed on a family holiday, he added.

Mr O'Byrne said he understood the sale of alcohol to minors was an offence under Spanish law. While his son drank alcohol from time to time, it was difficult to prevent that absolutely and his son was "a sensible youngster not inclined to abuse alcohol".

Like all parents, he had to rely to a large extent on the good sense and lawfulness of alcohol vendors, he added.

Having asked friends of his son who also stayed at the hotel, Mr O'Byrne said he had established alcohol was "sold indiscriminately" in the hotel bars to "youngsters".

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