Carving through the snow and landing in a lawsuit - NSW Supreme court considers skiing a ‘dangerous recreational activity’

Most of us would be aware of at least one or two celebrities killed or seriously injured in skiing accidents, such as Michael Schumacher and Sonny Bono.
 
But how dangerous is skiing really? Are these well known cases mere anomalies in an otherwise safe sport?
 
The Supreme Court recently grappled with a similar question, considering whether skiing is a “dangerous recreational activity” in light of statistical data which, arguably, suggested otherwise.
Facts
Ms Castle was an experienced skier who collided with Mr Thoms, a ski instructor employed by Perisher Blue Pty Limited (“Perisher”), whilst on the slopes.
 
Ms Castle sued Perisher for the negligence of its servant, Mr Thoms, and brought claims pursuant to the Australian Consumer Law (ACL)[1] as well as in negligence. Perisher admitted it was vicariously liable for Mr Thoms, but denied liability.  
Section 5L - Dangerous recreational activity
The Court found that the accident was caused by the negligence of Mr Thoms,[2] and Ms Castle was found not to be contributorily negligent.[3]
 
The Court found skiing was a dangerous recreational activity within the meaning of s5K,[4] and therefore Perisher was able to rely on the defence of s5L, for obvious risks arising from dangerous recreational activities.[5]
 
Interestingly, evidence that the rate of collision was as low as 1 for every 200,000 chair lift rides, was non-determinative in the Court’s assessment of the risk of harm.[6] The Court had regard to the fact that even if the rate of collision is low, the potential harm is high.[7] Accordingly, the Court noted that one cannot merely focus on the rate of collision without considering the potential consequences.[8]
Section 5M - Risk warning
Perisher relied on a risk warning contained within the Booking Terms and Conditions, in support of a defence of s5M.[9]

Noting the decision of Coffs Harbour City Council v Polglase [2020], (Polglase)[10] the risk warning was found to be too general.[11] Polglase found that in order for s5M to be made out, a risk warning needs to specifically identify the nature of the risk that eventuated.[12]

The Court found that merely identifying that persons may be negligent does not sufficiently direct attention to the risks associated with skiing.[13]
Exclusion of liability waiver under ACL
Perisher sought to rely on a liability waiver contained within its Booking Terms and Conditions.
 
The Court considered this in light of s139A of the Competition and Consumer Act (CCA), which provides that in certain circumstances, and where a contract is for the supply of recreational services, the liability waiver will not be void under s64.[14] However, this exception does not apply where the actions of the supplier are found to be reckless.[15]
 
s139A(5) defines conduct as reckless where the supplier:
  1. is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and
  2. engages in the conduct despite the risk and without adequate justification.[16]
The Court found Mr Thoms’ conduct to be reckless within the meaning of s139A(5).[17] Therefore, s139A did not apply and the liability waiver was void under s64.[18] 
Observations
Despite an arguably low likelihood of collision, the potential harm arising from such a collision renders skiing a “dangerous recreational activity”.
 
It has been broadly accepted that a valid s5M risk warning would not operate as a defence to a claim under s60 of the ACL,[19] however, the Court here discussed how more recent authorities have noted that the statutory guarantees contained in the ACL operate differently to the former warranties implied into contract by the former Trade Practices Act (TPA).[20] In particular, s275 of the ACL is designed to ensure the application of state and territory laws which limit the extent of recovery for a breach of contract otherwise governed by the ACL.[21]

Post by Robert Mitas, Senior Associate, and Talia Srage, Graduate.

[1] Competition and Consumer Act 2010 (Cth) sch 2 
[2] [117]
[3] [122]
[4] Civil Liability Act 2002 (NSW)
[5] Civil Liability Act 2002 (NSW)
[6] [142]
[7] [161]
[8] [161]
[9] Civil Liability Act 2002 (NSW)
[10] Coffs Harbour City Council v Polglase [2020] NSWCA 265 
[11] [206]
[12] [198]
[13] [206]
[14] Competition and Consumer Act 2010 (Cth)
[15] s139A(4) Competition and Consumer Act 2010 (Cth)
[16] Competition and Consumer Act 2010 (Cth)
[17] [156]; Competition and Consumer Act 2010 (Cth)
[18] [156]; Competition and Consumer Act 2010 (Cth) sch 2
[19] [212]; s5M Civil Liability Act 2002 (NSW); Competition and Consumer Act 2010 (Cth)
[20] [213]
[21] [214].

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