In the case of Castle v Perisher Blue Pty Ltd[1], Justice Cavanagh of the New South Wales Supreme Court was tasked with determining whether the statutory defence under section 5(L) of the Civil Liability Act 2002 (NSW) concerning ‘dangerous recreational activity’ applied to snow skiing.
The facts giving rise to the case involved a collision between two ‘competent and experienced skiers’, the Plaintiff being a paying lift ticket holder skiing for recreational purposes and the other person a ski instructor employed by the ski resort.
It was accepted by the court that the Plaintiff sustained injury when the ski instructor failed to keep a proper look out and skied into the path of the Plaintiff causing a collision.
It was accepted by the court that the collision was caused by negligence on the part of the ski instructor and that the ski resort was vicariously liable for the instructor’s negligence.
However, the ski resort and their insurer had pleaded a defence under section 5(L) of the CLA. That provision outlines the following:
‘(1) A person (the Defendant) is not liable in negligence for 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.
- This section applies whether or not the Plaintiff was aware of the risks.’
Section 5(K) of the CLA defines ‘dangerous recreational activity’ as ‘a recreational activity that involves a significant risk of physical harm’.
Section 5(F) of the CLA defines ‘obvious risk’ as:
‘(1) For the purpose of this division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.
(2) Obvious risks include risks that are patent or a matter of common knowledge.
(3) A risk of something occurring can be an obvious risk even though it is a low probability of occurring.
(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.’
As such, the court was tasked with determining whether:
- The activity of skiing was a ‘dangerous recreational activity’; and
- Whether the harm suffered by the Plaintiff occurred as a result of the materialisation of an obvious risk of that activity.
Whilst the evidence adduced demonstrated that of 600,000.00 visitors to Perisher annually, only an average of 64 collisions per annum occurred on the Perisher slopes, the un-commonality of collisions did not alter the fact that the activity of skiing involved the risk of colliding with ‘objects, trees or persons or losing control and falling over’.[2]
The court found that whilst the risk of such events occurring might be low, the potential outcome of such events involves significant injury.
Accordingly, the court determined that skiing did fit within the definition of ‘a dangerous recreational activity’[3].
The question to then be answered was whether the injury suffered by the Plaintiff in this case was a materialisation of an obvious risk of that activity.
The Plaintiff argued that in circumstances where she was an experienced and competent skier, the risk of colliding with a fellow skier was not an ‘obvious risk’.
The court disagreed stating that ‘irrespective of the expertise of an individual skier, not everything that happens on the ski slopes is within the control of the individual skier’. The court found that it would be obvious to a person in the position of the Plaintiff that:
- Other persons using the slopes might not always be in complete control;
- Other persons using the slopes might be going too fast for the conditions;
- Other persons using the slopes might on occasions be distracted and not paying proper attention;
- Visibility might sometimes be reduced for different reasons; and
- There could be hidden imperfections in the snow which might cause even good skiers to lose control.[4]
In making that determination, the court determined that whilst the Defendant was vicariously liable for the negligent actions of the ski instructor, the Defendant had a complete defence to the claim under section 5(L) of the CLA on the basis that the injury sustained by the Plaintiff had been the materialisation of an obvious risk of participating in a dangerous recreational activity.
This is yet another example of injury sustained in sporting activities in which Defendants have been successful in engaging the defence.
Queensland’s Civil Liability Act 2003 contains identical provisions to that of the New South Wales legislation (see section 19).
Those participating in recreational (i.e non work related) activities which come with an inherent risk of injury causing events, need to be aware that compensation claims will frequently be defeated by reliance upon the statutory defences.
[1] [2020] NSWSC 1652
[2] At paragraph 155
[3] At paragraph 162
[4] At paragraph 187
