On 16 August 2014, the plaintiff was skiing the slopes of Perisher Blue when a Perisher Blue ski instructor collided with her. The plaintiff suffered significant injuries as a result. The ski instructor was employed by the defendant, Perisher Blue Pty Limited and was acting in the course of his employment, although he was not providing instruction to the plaintiff at the time.
Despite the Supreme Court of NSW finding that the collision was caused by the negligence of the ski instructor, the Court ruled in favour of the defendant, Perisher Blue Pty Limited.
The Court ruled that skiing is a ‘dangerous recreational activity’ as defined by section 5K of the Civil Liability Act (2002) NSW and as a result Perisher Blue Pty Limited had established its defence under section 5L of the Civil Liability Act.
“Dangerous recreational activity” is defined in the Civil Liability Act to mean “a recreational activity that involves a significant risk of physical harm”.
Justice Cavanagh said “there may be a significant risk of physical harm even if the risk of the harm materialising is low but the potential harm is catastrophic”.
Justice Cavanagh said when assessing whether there was an “obvious risk” in this case, it was to be framed generally as a risk of collision between skiers, rather than a risk of a competent and experienced skier colliding with an instructor.
Justice Cavanagh said if he was wrong about the defence being available to Perisher, he would have awarded the woman $651,801.17.
The decision can be read in full here: https://www.caselaw.nsw.gov.au/decision/175debe1990ff645a9fb70ba
McAuley Hawach Lawyers
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