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The Facts
Skier and ski instructor collide on ski field
In August 2014, a ski instructor employed at a NSW ski resort
collided with another skier on the ski field.
Although the ski instructor was not instructing this particular
skier, he was acting in the course of his employment.
Both the skier and the ski instructor were competent and
experienced skiers, but neither saw the other until the moment
before the collision.
Skier injured in collision
The skier suffered injuries to her right hand, left shoulder and
left knee.
The injury to her right hand was the most serious of the three,
involving a fracture that entailed ligament damage and required
surgery for the insertion of hardware.
The skier, who was a hairdresser, was severely impaired in her
ability to use both arms.
Skier sues ski instructor's employer for negligence
The skier sued the ski resort that employed the ski instructor,
alleging that the collision was caused by the ski instructor's
negligence and that the ski resort was vicariously liable.
The ski resort accepted that if the ski instructor was
negligent, then it was vicariously liable for that negligence.
However, the ski resort argued that because the skier had caused
the collision, there was no negligence.
It also argued that even if the ski instructor was negligent,
the resort was not liable, because it had the benefit of a
statutory defence under the NSW Civil Liability Act 2002 ("the
Act").
case a - The case for the skier
case b - The case for the ski resort
The ski instructor was negligent, causing me harm. As my
witness testifies, I was skiing in an open space when the
instructor skied into me at excessive speed while looking behind
him instead of where he was going.
The ski resort is vicariously liable for the ski
instructor's negligence.
The ski resort claims that it has a defence on the basis that
the harm I suffered was caused by an obvious risk of a dangerous
recreational activity. However, skiing is not a dangerous
recreational activity within the meaning of the relevant law. In
fact, the ski resort's own statistical analysis establishes
that the incidence of accidents and injuries on its ski slopes is
so low, that the activity does not involve a significant risk of
physical harm. Nor was it an obvious risk that someone as
experienced and competent as this ski instructor would ski right
into me.
Since the ski instructor was negligent and the ski resort has
no defence, the court must rule in my favour.
The skier's claim that she was skiing in an open space is
false. As our witness testifies, she actually skied through the
trees and appeared unexpectedly in front of the ski instructor,
leaving him neither time nor space to avoid her. Therefore, the ski
instructor was not negligent.
Even if the ski instructor was negligent, we are not liable,
because the harm the skier suffered was caused by an obvious risk
of a dangerous recreational activity. The skier's use of
statistics to argue otherwise is misplaced. In assessing whether
skiing is a dangerous activity, the low probability of accidents
occurring must be balanced against the catastrophic degree of harm
that may eventuate if an accident does occur. In addition, it was
an obvious risk that someone might ski into her while skiing in an
area designated for skiing.
Since there was no negligence on the ski instructor's part,
and even if there was, we are not liable for it, the court must
dismiss the skier's claim for compensation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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