Ski At Your Own Risk – If the Slopes are Open
Skiing accidents are common, but rarely do they result from collisions with persons or objects. According to statistics kept by Perisher Blue, there were only 64 collisions per annum on average for the years 2017, 2018 and 2019 at the Perisher Ski Resort, in the Snowy Mountains, Australia.
The Supreme Court of New South Wales recently decided a claim for damages resulting from a collision on a ski slope at Perisher in Castle v Perisher Blue Pty Limited  NSWSC 1652 (20 November 2020) (Cavanagh J).
The skiing accident
On 16 August 2014, Ms Castle was skiing down the Olympic run at Perisher. At the same time, Mr Thoms, a ski instructor employed by Perisher Blue, was skiing down the Quad Face run, which was adjoining. Both were experienced and competent skiers. But even the best skiers have accidents!
A clump of trees separated the two runs just before the two intersected. They did not see each other until the instant they collided. Ms Castle was to the side of, below and in front of Mr Thoms.
Ms. Castle sustained severe injuries to her right hand, left shoulder and left knee as a result of the accident. She claimed damages, which the Court assessed would total $651,801.17 (including substantial economic loss) had she succeeded.
In finding negligence under s 5B of the Civil Liability Act 2002 (NSW), the Court said:
• “there could not be any doubt that the risk of harm (being the risk of collision with another skier), was foreseeable and not insignificant” (at 109)
• Mr. Thoms was negligent because “in turning around [to look behind him] at the place at which he did and at the speed at which he was skiing and in the circumstances of just coming out of a rollover [a dip in the terrain which reduces visibility to the skier temporarily], he failed to take reasonable care in all of the circumstances.” (at 116)
The Court did not find contributory negligence because the same rollover obscured Ms. Castle’s vision of Mr. Thoms.
Was the injury the materialisation of an obvious risk of a dangerous recreational activity? – The section 5L defence
The key issue was whether the risk of injury was obvious – if it was, the negligence claim would fail.
Section 5L of the Civil Liability Act 2002 (NSW) provides:
5L (1) A person (the defendant) is not liable for the harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff.
The first question the Court asked was: “Is skiing a dangerous recreational activity?”
The section 5K definition is:
dangerous recreational activity means a recreational activity [such as a sporting activity or an activity engaged in for enjoyment, relaxation or leisure] that involves a significant risk of physical harm.
The Court said:
“There is no doubt that skiing involves a risk of physical harm. The very nature of the activity involves proceeding down slopes, often steep, often quickly.” (at 152)
But was it a significant risk? The Court said:
“Whilst the defendant’s records might tend to suggest that the risk of an injury is low [at 1 in 200,000 lift rides] … they do not address the problem for the harm to be catastrophic” (at 157)
In concluding that there was a significant risk of physical harm, the Court said:
“Whatever the rate of injury, it could not be said that both the likelihood of the risk of injury materialising and the nature and extent of the likely potential injury would be trivial.” (at 161)
The second question the Court asked was: “Was the harm suffered a result of the materialisation of an obvious risk?”
The section 5F definition of “obvious risk” is:
5F (1) … an obvious risk to a person who suffers harm is a risk that … would have been obvious to a reasonable person in the position of that person.
The Court said that the correct analysis was not what Ms Castle expected to happen, because she would not have expected to collide with another skier while skiing in areas designated for skiing. It was what a reasonable person in her position would have expected. The Court said:
“ … it would have been obvious to a reasonable person in the plaintiff’s position that if another skier lost control or was not doing what she should have been doing on the slopes, a collision might ensue and a significant injury might be suffered.” (at 188)
The court dealt with the argument that it was not an obvious risk because it was rare by pointing to:
5F (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.
Therefore, the s 5L defence was made out. The negligence claim failed.
The Court did consider two other issues raised, and made observations, obiter.
Risk Warning – The section 5M defence
Section 5M of the Civil Liability Act 2002 (NSW) provides a full defence to negligence. It is:
5M (1) A person (the defendant) does not owe a duty of care to another person who engages in a recreational activity (the plaintiff) to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
The risk warning was contained in condition 7 of the Perisher Booking Terms and Conditions:
“RISK WARNING: RECREATIONAL ACTIVITIES (INCLUDING SKIING, SNOWBOARDING AND SNOW TUBING) INVOLVE A SIGNIFICANT RISK OF PHYSICAL HARM OR PERSONAL INJURY INCLUDING PERMANENT DISABILITY AND/OR DEATH TO PARTICIPANTS.”
The Court said:
“In my view, the warning is too general [and does not provide a s.5M defence because] It does not identify any particular risks.” (at 206)
“A collision with another skier is just one of the many risks associated with the activity of skiing. Injury may be sustained as a result of collisions between persons or between a skier and an object, such as a tree. Injury may be received as a result of the skier losing control or falling off a T-Bar or losing control at the end of the chairlift.” (at 205)
The important lesson here is that a risk warning must identify particular risks of a recreational activity, even if the risks are obvious. The risk of collision with persons or objects and losing control are some of the particular risks to be identified in a risk warning.
The statutory guarantee claim under s.60 of the Australian Consumer Law
The Court noted:
“As is often the case in these types of matters, the plaintiff pursues a cause of action under s.60 in an attempt to overcome both the exclusion of liability contained in the contract and the statutory defences relied upon by the defendant.” (at 211)
In the event, the Court found that there was no breach of the guarantee:
“I accept that the defendant provided services to the plaintiff such as the facilities, signs, chairlifts and a right to ski in the area. There is no evidence of any failure to render those services with due care and skill.” (at 238)
The Court found that had there been a breach of the guarantee, then Mr Thoms’ conduct which caused the personal injury was reckless, which means that the liability waiver in the Terms and Conditions (the defence under s 139A of the Australian Consumer Law) would not have protected Perisher Blue.
But as a result of Moore v Scenic Tours Pty Ltd  HCA 17 where the High Court of Australia held that State and Territory laws could limit the extent of recovery for breach of contract, section 5L could and probably would have applied to protect Perisher Blue had it failed to comply with the statutory guarantee under s 60 of the Australian Consumer Law.
The risk of collision with people can be added to the other “obvious risks” of skiing, such as colliding with objects or persons or losing control and falling over. It is very much the case of “ski at your own risk”.
In its conclusion, the Court reflected on how powerful the dangerous recreational activity protections under the Civil Liability Act 2002 were:
“Although I have accepted the plaintiff suffered injury as a result of the negligence of Mr Thoms for whom the defendant is liable, this is another sporting injury case in which the defendant has the benefit of the dangerous recreational provisions of the Civil Liability Act 2002.” (at 329)
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