Skiing in a winter wonderland: A dangerous recreational activity?
Originally Published By Peter Ford, Gerry Tzortzatos, and Anthony Anisseh on Wednesday, December 16, 2020 10:12:35 AM
The NSW Supreme Court has ruled in favour of Perisher Blue, characterising skiing as a 'dangerous recreational activity' for the purposes of section 5L of the Civil Liability Act 2005 (NSW) (CLA). This joins a plethora of recent cases that help define the scope of obvious risks in the context of dangerous recreational activities.
Authors: Gerry Tzortzatos, Anthony Anisseh
Judgment date: 20 November 2020
Citation: Castle v Perisher Blue Pty Limited [2020] NSWSC 1652
Jurisdiction: NSW Supreme Court
Principles
Skiing is now recognised as a dangerous recreational activity
A significant risk of physical harm can be found to arise, even if the risk of that harm materialising is low
An obvious risk defence is more likely to be accepted when the risk is framed generally
Risk warnings that are too broad and generic do not satisfy the section 5M defence.
Background
The plaintiff was skiing down the Olympic Run at Perisher Blue when she collided with another skier coming from the upslope. The other skier was a ski instructor employed by Perisher Blue, who was instructing another skier at the time of the incident.
The plaintiff sustained injury to her right hand, left shoulder and left knee, and alleged ongoing disability in those areas.
Decision
The primary judge1 accepted that the collision was caused by the negligence of the ski instructor and that Perisher Blue was vicariously liable for his actions. He did not consider that there was any contributory negligence on the part of the plaintiff.
Judgment was entered for the defendant because the statutory defence of the materialisation of an obvious risk of a dangerous recreational activity (s 5L of the CLA) was found to apply.
When assessing whether the risk was 'obvious', the primary judge decided the issue ought to be framed generally. Although the plaintiff attempted to specify the risk as a collision of two experienced and competent skiers, his Honour determined the risk was, put generally, the risk of two skiers colliding.
Skiing was found to be a 'dangerous recreational activity' under section 5K of the CLA. In determining this, the primary judge adopted the objective test previously applied by the Court of Appeal2 to assess whether skiing involved a significant risk of physical harm, disregarding the circumstances and experience of the plaintiff and the ski instructor. At the same time, statistics showing that the rate of collisions per skier was minimal were not determinative of the significance of the risk, as the potential for the activity to cause catastrophic harm also had to be considered. The risk was significant because skiing at speed in close proximity to trees and rocks can likely result in catastrophic harm, despite this being an infrequent occurrence.
Perisher Blue argued that it did not owe the plaintiff a duty of care pursuant to section 5M of the CLA as its Terms and Conditions contained the following risk warning:
“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." 3
The primary judge determined that this risk warning was too broad and generic and therefore did not fit within the definition under section 5M of the CLA. Risk warnings must specify the risks involved in the recreational activity in greater detail, even if those risks are obvious.
Finally, the Court dismissed the plaintiff's claim for breach of the statutory guarantee under section 60 of the Australian Consumer Law (ACL), which requires services to be rendered to a consumer with due care and skill. Essentially, his Honour found that the ski instructor was not providing any services to the plaintiff at the time of the accident, and there was no evidence that the services provided by Perisher Blue to the Plaintiff (such as the slopes, chairlifts and other facilities) were not provided with due care and skill.
Why this case is important
This case demonstrates the challenges plaintiffs face in successfully pursuing claims for injuries arising from dangerous recreational activities. Practitioners and insurers are increasingly relying on this statutory defence to dispute liability.
However, it is no slippery slope. The decision reiterates that obvious risk must be carefully approached on a balance of generality – precise enough to capture the harm which resulted from the risk, but not so specific to include the personal characteristics of the persons involved in the incident. An obvious risk defence is more likely to be accepted when the risk can be broadly characterised.
For further reading, see our article on the decision of Menz v Wagga Wagga Show Society Inc [2020] NSWCA 65.4
1 Cavanagh J
2 Fallas v Mourlas (2006) 65 NSWLR 418 per Ipp JA at [13]
3 [195].
4 https://mccabecurwood.com.au/complete-defence-obvious-risk/
Contributors
Gerry Tzortzatos, Special Counsel
Anthony Annisseh, Lawyer