Which case won?

The case for the skier
  • The ski resort was under a duty of care to exercise reasonable care and skill in the provision of its chairlift services to avoid harm to skiers using those services.
  • The ski resort breached this duty of care. The lift attendant should have kept a proper lookout, observing the state of the chairs as they came towards and around the bullwheel. Had he done so, he would have noticed that the safety bar on the chair we were waiting to board was in the down position and he could have raised it in a timely manner. Instead, the lift attendant was facing in the other direction shovelling snow.
  • As my companions and I waited in the correct position on the load line, we had to yell to get the lift attendant’s attention. When he heard us, he had to lunge forward, grab the chair, flick the armrest back and let the chair go. In doing so, he pulled the chair out of alignment with myself and my companions, causing the chair to hit me at an angle on my right buttock. I was impaled on the armrest and seriously injured.
  • The ski resort was negligent and so the court must uphold my damages award.
The case for the ski resort
  • We accept that we owe a duty of care to exercise reasonable care and skill in the provision of our chairlift services, to avoid harm to skiers using those services.
  • However, we did not breach this duty of care. It was entirely reasonable for our lift attendant to engage in other tasks than merely looking out and reacting to “down bar situations”. This included shovelling snow and maintaining the snow path for the safety and access of skiers.
  • Further, our expert evidence establishes that it was highly unlikely that the lift attendant could have applied sufficient force in sufficient time to cause the chair to misalign in the way that it supposedly did.
  • Even if we did breach our duty of care, that breach was not the cause of the skier’s injuries. Since the lift attendant did not move the chair out of alignment with the skier, the skier must have moved out of alignment with the chair. However, the skier has not presented any evidence to show that her misalignment was caused by the lift attendant’s actions. Her misalignment could just as easily have been due to other factors, such as her biomechanics causing her hips to move to the right as she looked over her left shoulder to observe the approaching chair.
  • Since we were not negligent, the court must overturn the award of damages to the skier.

So, which case won?

Cast your judgment below to find out
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Case B won. You were right!

How people voted
case a66%
case b34%

Expert commentary on the court's decision

Sue Owen
Sue OwenLawyer
“This case highlights the importance to a plaintiff of proving causation.

If the plaintiff fails to prove that the breach was a necessary condition of the occurrence of the harm, then, like the skier in this case, they will recover nothing. This is so even if they can establish that there was a duty owed and the other party breached it.”
NSW Court of Appeal finds in favour of ski resort

In Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, the NSW Court of Appeal found in favour of the ski resort, Perisher, overturning the award of damages to the skier, Ms Nair-Smith.  

The court accepted that Perisher had breached its duty of care owed to Ms Nair-Smith, but concluded that this breach did not cause the injuries she sustained.

Skier was out of alignment with properly positioned chair

Both parties accepted that when Ms Nair-Smith and her companions arrived at the loading point, they were correctly aligned.  

Ms Nair-Smith argued that she remained correctly aligned with the load line, and that the chair became misaligned with her due to the actions of the lift attendant. 

However, based on the expert evidence, the primary judge found and the court agreed, that the chair was not out of alignment with Ms Nair-Smith to the left of where it should have been. Rather, at some point after Ms Nair-Smith first positioned herself correctly at the load line, she moved out of alignment to the right. 

Ski resort owed duty of care

The parties agreed that Perisher owed a duty of care, which the court characterised as a duty “to exercise reasonable care and skill in the provision of its lifting services to avoid harm to skiers using those services”.

Risk of injury as result of skier’s reaction to lift attendant’s response

The court emphasised that to properly assess whether Perisher breached its duty of care, depended on “the correct identification of the relevant risk of injury”. The court had to determine “what person, thing or set of circumstances gave rise to the potential for the harm for which [Ms Nair Smith] seeks damages”. 

The court concluded that the relevant risk was that “a skier might sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down-bar situation”. 

The court noted that if a lift attendant gives waiting skiers an impression that he or she will not intervene in time in a down-bar situation, “it is only natural that skiers will… react to the possibility of collision”.  

Ski resort breached duty of care

In order to identify whether Perisher breached its duty of care, it was necessary to identify what a reasonable person in its position would do in response to the foreseeable risk of injury.  

In the court’s view, reasonable care required the lift attendant “to direct his attention to the condition of the chair earlier than he in fact did. His failure to do so constituted a breach of [Perisher’s] duty of care.” 

This was not because had the lift attendant realised sooner that the bar was down, he could have raised it sooner. Nor did the court think that had the bar been raised sooner, it would have been significant. 

Rather, the psychological effect on the skier and her companions of the lift attendant’s delayed realisation may have been significant in that it may have caused them to panic and move out of alignment. 

Ski resort’s breach did not cause skier’s injuries

Ms Nair-Smith bore the onus of proving causation, ie that she had panicked and moved out of alignment with the load line due to the lift attendant’s failure to observe the “down-bar situation” sooner than he did.  

Where direct proof is not available, as in Ms Nair-Smith’s case, it is enough for the evidence to give rise to a reasonable inference of causation.  

The primary judge had attributed Ms Nair-Smith’s misalignment to panic and jostling amongst her and her companions as the chair came close to them with the bar down.  

However, because of the way her primary case was run, Ms Nair-Smith and her companions had been adamant before the Supreme Court that they did not move from the correct position on the load line. They gave no evidence to the contrary, notwithstanding the primary judge’s conclusion.  

In the court’s view, there could have been any number of reasons why Ms Nair-Smith was out of alignment with the chair.  

For example, her ski may have slipped to the right, or her biomechanics may have caused her hips to shift to the right as she looked over her left shoulder to watch the approaching chair. She may have also moved out of panic, but before the time at which the exercise of reasonable care required the lift attendant to act.  

According to the court: 

For the primary judge to conclude that the cause of [the skier’s] misalignment was the consequence of jostling in reaction to the chair coming so close with its safety bar down due to [the lift attendant’s] reaction after the time reasonable care required him to act was a matter of mere conjecture. That being so, it was not open to conclude that the breach of duty found by the primary judge was causative of [the skier’s] move from her original position and therefore was not a necessary condition of the occurrence of the harm for which damages were sought. 

Trade Practices claim for breach of implied warranty

To gain entry to the ski fields Ms Nair-Smith had purchased a lift ticket, the wording on which included an exclusion of liability clause.  

The parties accepted that the contract formed by the lift ticket included the implied warranty under section 74(1) of the Commonwealth Trade Practices Act that the ski lift services provided would be “rendered with due care and skill”. 

They also accepted that any term of that contract that purported to qualify the application of section 74 would be void unless the exception in section 68B of the Act applied. 

Section 68B of the Act states that “a term of a contract for the supply by a corporation of recreational services is not void… by reason only that the term excludes, restricts or modifies… the application of section 74 to the supply… so long as the exclusion, restriction or modification… is limited to liability for death or personal injury…” 

Ms Nair-Smith argued that the exclusion of liability clause was void. Perisher argued that it was not void under section 68B. 

The court stated that because of its conclusions in relation to the negligence claim, there was no breach of any implied warranty as to due care and skill, and therefore no need to consider this issue.  

However, for the sake of completeness it did, and concluded that Perisher’s attempt to exclude the implied warranty was void. In particular, Perisher’s exclusion clause was too broad, going beyond liability for death or personal injury. 

Importance of proving causation

This case highlights the importance to a plaintiff of proving causation.  

If the plaintiff fails to prove that the breach was a necessary condition of the occurrence of the harm, then, like Ms Nair-Smith in this case, they will recover nothing. This is so even if they can establish that there was a duty owed and the other party breached it. 

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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