Australia: Skiing accident on beginners' slope - characterisation of risk
Curwoods Case Note

Perisher Blue Pty Limited v Harris [2013] NSWCA 38

In Brief

• A company conducting ski lessons has a duty to take precautions against exposing a class of beginners to obstacles which their experience would not allow them to negotiate.
• Section 5B of the Civil Liability Act 2002 (NSW) (CLA) requires the characterisation of a risk before the provisions can operate.
• A judge does not need to specifically address the issues contained within s 5B(2) of the CLA in his judgment to demonstrate his or her regard for their principles. A judge's regard for the principles can be taken from that judge's reasoning.
• Skiing is regarded as a dangerous recreational activity under s 5L(1) of the CLA. However, it has to be decided whether the harm resulted in the materialisation of an obvious risk in order for the defence under s 5L(1) to be satisfied

Background

On 29 June 2006, James Harris (Harris) was a student from Penshurst Marist Brothers School (PMBS) attending a school excursion to the Perisher Ski Resort. During the course of a beginners' ski lesson, Harris lost control, veered away from the group, travelled over a mound and ran into a ditch at the base of the beginners' slope. Upon hitting the ditch, Harris somersaulted forward and landed heavily on his back, sustaining crush fractures to his lumbar spine.

District Court

Harris claimed liability on behalf of Perisher Blue Pty Limited (Perisher) for negligence in failing to take adequate precautions to prevent injury to beginner skiers by reason of the difficulty they would confront in negotiating the ditch. Harris also contended that the Trustees of the Roman Catholic Church for the Archdiocese of Sydney (the Trustees), who operated PMBS, had breached their non-delegable duty to ensure care was taken for Harris's safety during his ski lessons. The Trustees subsequently filed a cross-claim seeking indemnity or contribution from Perisher in respect of any damages for which they were found liable to Harris.

On the evidence of a fellow student who witnessed Harris's accident, the primary judge found the ditch was a natural feature rather than a constructed one. The primary judge accepted that the ditch "must have been of some substance" to have caused Harris to fall as he did.

In applying s 5B of the CLA, the primary judge found that it was important to bear in mind that the skiers in a beginners' class were inexperienced. Therefore the area devoted to beginner skiers should not be one where they are likely to encounter obstacles which their experience would not allow them to negotiate. The primary judge found this is all the more so when they are under the tutelage of a ski instructor.

The primary judge noted that ski fields were inspected and prepared on a daily basis, and while he noted there was no evidence that the grounds were not inspected on the day of Harris's accident, he considered that a dangerous ditch and mound did exist and that a proper inspection would have identified them.

The presence of the ditch on a beginners' slope (especially below a mound) was found by the primary judge to create a risk of injury which was foreseeable and not insignificant; particularly as a person falling whilst skiing is always prone to serious injury.

The primary judge rejected Perisher's contention that it should escape liability as the harm suffered by Harris was a result of an obvious risk of a dangerous recreational activity within the meaning of s 5L of the CLA. The primary judge accepted that Harris was engaged in a dangerous recreational activity, however, the harm was not a result of an obvious risk.

According to the primary judge, Perisher could have taken several precautions which he considered a reasonable person would have taken to address the risk posed by the ditch, including placing a barrier around the ditch; filling in the ditch with snow; and/or simply not conducting lessons in an area approximate to the obstacle. The primary judge appreciated that whilst Harris may have skied away from the group (to the right) he nevertheless remained in the area devoted to beginners.

The primary judge considered that Perisher's negligence in failing to take precautions against the risk of harm had caused Harris's injury, as required by s 5D of the CLA, and that had the precautions he suggested been taken, the accident would not have occurred.

In consideration of the above, the primary judge awarded verdict and judgment for Harris against Perisher and the Trustees in the sum of $308,768.94. On the cross-claim, the primary judge made orders that Perisher indemnify the Trustees in respect to the whole of their liability, including costs, to Harris. Perisher was also ordered to pay the Trustee's costs of the cross-claim.

Court of Appeal

Perisher appealed the primary judge's decision on a number of grounds which were each in turn dismissed by the appellate judges. Of particular note was Young AJA's finding that the primary judge was well within his powers to confirm the existence and nature of the ditch, and to find that had there been a proper inspection, such an inspection would have found and identified the danger in the ditch in question. Young AJA considered that a reasonable person would consider the presence of a ditch on a beginners' slope as creating a foreseeable and not insignificant risk of injury. Young AJA considered this was causative of the plaintiff's injury.

Young AJA noted that a court is required to identify the relevant risk before applying the provisions of s 5B of the CLA.

In this instance, Young AJA noted that the primary judge identified the risk as "the presence of the ditch on a beginners' slope" which created the risk of injury; however, Perisher submitted that the risk should have been characterised as either falling over whilst learning to ski or becoming out of control and falling over whilst learning to ski.

Young AJA, however, considered that there was a risk that a novice skier would become out of control and proceed at a pace which made it likely that he or she would not be able to manoeuvre or stop. In considering the primary judge's judgment as a whole, Young AJA concluded that he did have regard to the provisions of s 5B(2) in coming to the conclusion that the appellant was negligent, although he did not specifically refer to the provisions in his judgment.

Causation

Perisher contended there was no evidence to show any of the primary judge's listed precautions were either feasible or would have made any difference to an out-of-control skier. However, Sackville AJA considered that factual causation needed to be determined by the "but for" test: but for the negligent act or omission, would the harm have occurred? Sackville AJA noted that the primary judge made no finding with regards to which of his proposed precautions Perisher should have taken, but instead assumed that Harris needed to demonstrate that any of those precautions proposed by him taken separately and independently, would have avoided the risk of a beginner being injured by skiing into the ditch. Sackville AJA inferred that Harris had done so, and that any of the precautions that Perisher might have taken would probably have assisted Harris to avoid the accident that befell him.

In conclusion Young AJA held:

Damages

Perisher also appealed the primary judge's finding that Harris had a permanent and serious back injury and that even if this were the case, an award of $100 per week was unsupportable. Perisher submitted that the fact that Harris's injury was permanent did not mean damages could be recovered for loss or diminution of earning capacity unless the loss or diminution is or was productive of financial loss. Perisher submitted that the primary judge found Harris was likely to utilise his full capacity in due course and perhaps be able to better his position by entry into a more remunerative trade.

Perisher noted that despite the primary judge's finding, he awarded Harris $100 per week until he attained the age of 67. Young AJA noted that the evidence showed Harris could not ever pursue the career he had planned to pursue. The primary judge accepted Harris had a reduced earning capacity which was permanent, but did not consider Harris had been fully exercising his reduced earning capacity. Young AJA also noted that the work Harris was likely to be able to undertake would not be as remunerative as would the earnings of a plumber.

Implications

Section 5B of the CLA sets out a mandatory process for the courts to follow in determining breach of duty and there are dangers in a primary judge failing to do so, although the failure may be excused if the primary judge's process of reasoning traverses the relevant issues at hand.

Section 5B(1) of the CLA requires the characterisation of a risk before the provisions can operate. Once the risk has been identified and breach of duty established, the plaintiff must then prove that the breach was causative of his or her injuries.

In determining what precautions a reasonable person would have taken against a risk of harm as required by s 5B(1)(c) of the CLA, the question must be answered prospectively and not in hindsight.

Footnotes

¹ BeazleyJA, Sackville and Young AJJA

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