It’s all downhill from here

04 December 2020

Court rules in favour of Perisher Blue and adds skiing to long list of dangerous recreational activities recognised by the courts.

In Issue

  • Whether skiing in a dangerous reactional activity as defined in the Civil Liability Act 2003 (NSW)(CLA).
  • Whether the relevant risk of harm in engaging in a dangerous recreational activity (skiing) was obvious within the meaning of that term.
  • Whether a finding that a defendant has breached the due care and skill guarantee under the ACL will defeat the “dangerous recreational activity” defence under s 5L of the CLA.

The background

On 16 August 2014, two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff; the other was a ski instructor employed by the defendant and acting in the course of his employment. Both were competent and experienced skiers. The plaintiff alleges that the collision was caused by the negligence of the ski instructor for whom the defendant was vicariously liable. The defendant accepted vicarious liability but maintained that the plaintiff caused the collision and that the ski instructor did not fail to take care. Further, the defendant argued that skiing is a “dangerous recreational activity” as defined in s 5K of the CLA and that the risk of a collision between the two skiers was an “obvious risk” within the meaning of that term under the CLA.

The plaintiff alleged that she entered into an agreement with the defendant and that an implied term of the agreement was that due care and skill be exercised by the defendant. In doing so, the plaintiff relied on s 60 of the ACL which provides a statutory guarantee of due care and skill. The defendant did not dispute that an agreement existed; or that they were vicariously liable for the conduct of the ski instructor.

The defendant sought to rely on defences provided by ss 5L and 5M of the Civil Liability Act 2003 (NSW)(CLA). Section 5L states that a person (the defendant) will not be liable in negligence for harm suffered by another person (the plaintiff) as a result of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. Section 5M provides that if a plaintiff engages in a recreational activity where a risk is warned of, the defendant will not owe a duty of care to that person.

The decision at trial

The court held that the ski instructor caused the collision and that the plaintiff was not guilty of contributory negligence. Most importantly, the court held that the defendant established its defence under s 5L of the CLA – that the risk of a collision was an “obvious risk” whilst skiing. The plaintiff’s reliance on s 60 of the ACL did not overcome the defence arising under s 5L of the CLA. This was because the plaintiff did not establish a failure to comply with the consumer guarantee under s 60 of the ACL by the defendant because she could not identify any services that the defendant failed to render with due care and skill.

Implications for you

Keen skiers and snowboarders should be aware of the risks that they passively accept by stepping onto the slopes. Hundreds of collisions and accidents occur on the mountains every year and readers should be mindful of the fact that the courts will err on the side of ski resorts and companies in determining who was at fault. By stepping onto the ski-fields, readers are accepting that the recreational activity they intend to engage in is a dangerous activity that has obvious risks associated with it. The case is another example of how the courts are willing to uphold the CLA defences for obvious risks of dangerous recreational activities, which is comforting for insurers of those companies that offer those activities.

Castle v Perisher Blue Pty Limited [2020] NSWSC 1652

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