Nair-Smith v Perisher Blue Pty Limited [2013] NSWSC 727

The Facts

Injuries on the ski field are common place. To the beginner, attempting to stop, turn, or even access the chair lift are activities fraught with danger. For most Queenslanders, the notion of strapping two planks onto their feet, going to the top of a snowy mountain and then attempting to slide back down same is counter-intuitive to say the least.

In the recent decision of Nair-Smith v Perisher Blue Pty Limited [2013] NSWSC 727, His Honour Justice Beech- Jones was asked to consider whether Perisher Blue were liable for unfortunate injuries sustained by a doctor as she attempted to access the ski lift at Perisher.

As anyone who has skied or visited a theme park will know, the chair comes back down the mountain suspended from a wire at a steady pace and in continual motion, turns at a “bull wheel” after which the skier is required to sit down on same as it moves past. Unfortunately, on this occasion, its right hand rail struck the Claimant in the groin area from behind.

The claimant contended that Perisher, as the employer of the lift operator, was negligent and in breach of a term implied into the contract between her and Perisher under the former s 74(1) of the Trade Practices Act 1974 (Cth) (“TPA”), which required that the Perisher provide services with due care and skill.

The Claimant had been a skier for approximately 25 years and considered herself an advanced skier. Her evidence was that she had used the triple chair at Perisher on literally hundred of occasions previously over the years though she had not previously used it that day.

The Plaintiff’s evidence, and that of one of her fellow skiers, was that as the chair came around the bull wheel at the loading area, the safety bar for the chair was not raised up – she and her friend yelled out “the bar” whereupon the lift attendant nearest to her lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back towards him at an angle, flipped or “bumped” the safety bar up with his right hand and then let go of the chair. This caused the chair to come at her at an angle and at a higher speed than normal. She said that she didn’t change her body or ski alignment and that the armrest of the chair came down and impacted her painfully in the groin area.

Perisher disputed the allegations stating that the operator raised the safety bar in a safe and timely manner, but that Dr Nair-Smith and her travelling companions unnecessarily panicked and she moved out of alignment with the designated loading point. It of course also relied on her lift ticket which it said operated to exclude all liability on the part of Perisher.

The Claimant gave evidence that on any occasion where the safety bar had been down in the past, and this only happened on two or three occasions in her entire skiing experience, the lift attendant located near the loading area would simply move across the chair and lift the bar into the upright position several metres before it got to her giving her plenty of time to sit safely.

It was of course the attendant’s evidence that this was exactly what occurred on this occasion but he had to concede in cross examination that he was not entirely sure of events given the passage of time.

After considering various expert engineering evidence the trial judge concluded that while the doctor and her travelling companions had lined up at the loading point in the correct position, by the time the chairs had arrived at least one of her legs had moved off the slightly elevated platform to the right. His Honour said that despite that he was not satisfied that this was a result of any panic by the Claimant and it could have been as a result of panicked reaction by one or more of her travelling companions jostling her out of position.

The Law

Ultimately, the Court concluded that s74(1) of the TPA had the effect of deeming an implied term into Dr Nair- Smith’s contract with Perisher that the latter would provide services with due care and skill to the former, and that neither the implied term or remedies for its breach were excluded, restricted or modified by the waiver written on the lift ticket.

His Honour found that term could be implied by s74 and this was not excluded by sections 68, 68(A) and 68(B) of the TPA. The lift ticket sought to contract out of any warranties to the extent permitted by law but this whole provision was struck out by s68(1). This left the doctor free to pursue both the claim in contract and in negligence against Perisher.

On the issue of negligence His Honour accepted so much of the Plaintiff’s case as that there was a very late reaction by the chair lift attendant to the safety bar being down that necessitated his pulling the chair back just prior to it reaching the loading point.

His Honour said that there was no doubt about the existence of a duty of care owed by Perisher to the Plaintiff – it followed from its occupation and control of the area of the resort and the ski lift in particular.

His Honour then went onto examine the scope and content of that duty of care. His Honour noted that the category of  persons  using  the  chairlift  were  paying  guests  including  persons  of  different  ages  and  ability,  including beginners. That said, they are taken to be exercising a reasonable level of caution for their own safety and have a reasonable level of insight into their own abilities and limitations. The position of the chairlift at the southern end of Perisher Resort serviced only intermediate and expert level ski trails. It could therefore be expected that mostly experienced skiers would use the chairlift.

His Honour noted that it was as a substantial piece of machinery and the chairlift certainly posed a risk to persons who used it. The configuration of the chairlift was such that there was little scope for skiers to protect themselves from any risks that might materialise during the chairlift’s operations, once they had passed through the gates and were positioned at the loading point.

His Honour noted that Perisher’s own lift safety procedures required lift operators to check and watch for safety bars that may be in the down position. This required a second operator to make sure the public were in the correct position to be loaded onto the chair. The risk was therefore foreseeable and not insignificant.

His Honour also had regard to the concession of the lift operator under cross examination that if the chair arrived at the loading point with the bar down, then skiers basically would have no where to go and would simply be knocked over. They could possibly ski out of the way but they would “have to be quick”.

As ever the critical issue was whether “in the circumstances” a reasonable person in the position of Perisher would have taken precautions against that risk.

His Honour found that the “precaution” of having a ski operator near or close to the loading point observing the state of the chair as it exits the bull wheel was not given effect to.  Perisher were negligent in that regard.

The rationale for His Honour’s finding can be found at paragraph 167 where His Honour said:-

I have not found that there was anything negligent per se in the configuration and settings adopted for the chairlift or the number of staff that Perisher stationed at the loading station. However those matters were such that a very significant responsibility was imposed on the lift operator stationed near the loading point, especially from the time that skiers were located there with their skis facing uphill. In dealing with risks posed by chairs that arrived at the loading point in an unfit state for boarding, the configuration and settings of the chairlift were such that the exercise of reasonable care required the lift operator to be stationed just in front of the loading point and, at the latest, to make an observation of the state of the chair at the time of its exit from the bull wheel. Alternatively, if the lift operator was located further forward of the loading point, then the observation of the chair had to be made at an earlier time to enable the safety bar to be lifted in a timely manner. While the very narrow time periods involved are undoubtedly relevant, the fact that the lift operator has only a limited period in which to act is a product of the configuration and settings of the chair as well as the number of staff present and the directions given to skiers. All those matters are within the control of Perisher and they combine to require that the lift operator be in position and make their observation in a timely manner”.

This had not occurred and Perisher were found liable on this basis. Not surprisingly, Perisher ran a “dangerous recreational activity” defence. Perisher submitted that the dangerous recreational activity was snow resort skiing and upon that premise was loaded all the attendant risks of skiing in order to arrive at a conclusion that the activity was dangerous. However, his Honour, having regard to Fallas v Mourlas [2006] NSWCA 32, noted that the recreational activity is to be determined by the activitiy engaged in by the plaintiff at the relevant time. His Honour said that adopting that approach the relevant activity was not snow resort skiing but the process of boarding the triple chair in the presence of lift operators. His Honour questioned whether, assuming without deciding, the activity was recreational, was it dangerous? This he said imposed an objective test (Fallas at [13] per Ipp JA and [136] per Basten JA).

His Honour found at paragraph 180 that:-

Once the activity is identified in the manner [as stated above], I do not consider that it was dangerous. I have already described the characteristics of the chairlift in some detail including the weight of the chair and its speed. That said, its function is purely for transportation and it is not suggested that it was meant to provide skiers with any thrill or excitement or had any significant element of danger. The relatively low incidence of injuries that were suffered confirms this …”

A suggestion of contributory negligence was also rejected.

Implications

The case highlights a number of issues for occupiers or organisers of recreational activities:-

  • Make sure your own safety guidelines have been followed and can’t be used against you.
  • Obtain full signed statements from relevant personnel as soon as possible.
  • Be very careful with the wording of waiver clauses and do not be solely reliant upon same as your defence.
  • The dangerous recreational defence will be construed very narrowly by the courts.