‘Even the best skiers have accidents’: Supreme Court confirms skiing is a dangerous recreational activity

The Supreme Court has ruled in favour of Perisher Blue after a skier was allegedly struck from behind by an instructor.

This decision follows the recent trend of sports and recreational service providers successfully relying on the ‘liability defeating’ defence under Section 5L of the Civil Liability Act 2002 (CLA) and adds skiing to the long list of dangerous recreational activities recognised by the courts.

Collision and allegations

Deborah Castle (Plaintiff) alleges that she was skiing down a slope at Perisher Blue on 16 August 2014 when she was struck from behind a ski instructor, Michael Thoms. She allegedly sustained injuries to her right hand, left shoulder and left knee as a result of the collision.

The Plaintiff argued that Thoms was negligent and Perisher Blue (Defendant), as his employer, was vicariously liable for his conduct.

She also claimed that the Defendant had breached the consumer guarantee to render a service with due care and skill under section 60 of the Australian Consumer Law (ACL).

Findings

Cavanagh J found that the collision was caused by the negligence of the ski instructor, and the Defendant as vicariously liable for his actions.

The Defendant sought to rely on the defence under section 5L of the CLA on the basis that the Plaintiff’s injury was the result of a materialisation of an obvious risk of a dangerous recreational activity.

Was the Plaintiff engaging in a dangerous recreational activity?

• The Plaintiff argued that she was not engaged in a dangerous recreational activity at the time because the Defendant’s own accident and injury statistics suggest the occurrence of injuries on ski slopes was low.
• Adopting the observations of Ipp JA in Fallas^[1], Cavanagh J held that an objective test needed to be applied in determining whether recreational activity was dangerous. It is possible for there to be a ‘significant risk’ of physical harm even if the risk of the harm materialising is low, if the potential harm is catastrophic.
• Cavanagh J noted that skiing involves travelling at speed in close proximity to solid objects such as rocks and trees. It was matter of common knowledge that a person could be killed and suffer catastrophic injuries while skiing, and ‘even the best skiers have accidents’. His Honour concluded that even if the statistical rate of collision per skier is low, the potential harm is high or great. His Honour accepted that skiing was a dangerous recreational activity.

Was the relevant risk of harm obvious?

• The Plaintiff argued that the risk that materialised was the ‘risk of the Plaintiff, an experienced and competent skier, colliding with a ski instructor’, which she contended was not obvious to a reasonable person in her position.
• Following the approaches adopted in recent Court of Appeal decisions^[2], his Honour considered the risk in question should be characterised with a degree of generality but be precise enough to capture the probability that a risk may materialise. There was no need to include personal characteristics of the other skier in the formulation.
• His Honour agreed with the Defendant’s characterisation of the risk being ‘risk of a collision between two skiers’. His Honour considered 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 they should be doing on the slopes, a collision might ensue and significant injury might be suffered.

Section 60 of the ACL

The Plaintiff alleged the Defendant had failed to render services with due care and skill. She submitted that as a paying customer of the Defendant she was ‘entitled to be safe from the ski patrol [and] ski instructors’.

Cavanagh J did not accept that the Defendant was providing a service to the Plaintiff through Thoms at the time of the collision, as the Plaintiff was not receiving any instruction from Thoms. His Honour held that the only service provided by the Defendant at the material time was the use of its facilities, and there was no suggestion that those services had not been rendered with due care and skill.

Other findings

Cavanagh J also made the following observations of note in respect of the operation of the ACL:

• A finding that a defendant has breached a guarantee under the ACL does not defeat a ‘dangerous recreational activity’ defence under section 5L of the CLA; and
• Thoms had acted recklessly at the time of the collision. Therefore if he had been providing a service to the Plaintiff at the relevant time, section 139A(5) of the CCA would have been enlivened and the Defendant would not have been able to rely on the liability waiver signed by the Plaintiff.

Commentary

In addition to adding skiing to the list of dangerous recreational activities, the judgment also provides further helpful clarification as to the interaction between the ACL and the statutory defences under the CLA. It confirms that a defendant will not be able to rely upon a contractual waiver to exclude its liability for breach of a guarantee under the ACL where the defendant’s conduct was reckless.

Castle v Perisher Blue Pty Limited [2020] NSWSC 1652

[1] Fallas v Mourlas [2006] NSWCA 32

[2] Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65, Singh bnhf Ambu Kanwar v Lynch [2020] NSWCA 152 and Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd [2020] NSWCA 263