Castle v Perisher Blue Pty Limited

Castle v Perisher Blue Pty Limited - [2020] NSWSC 1652 - NSWSC 2020 case summary — Zoe

[3]

Judgment

On 16 August 2014, two skiers collided while skiing down the slopes of Perisher Blue. One was the plaintiff. The other was a ski instructor employed by the defendant and acting in the course of his employment, although he was not providing instruction to the plaintiff at the time.
Both were competent and experienced skiers. Surprisingly, neither saw the other until the moment before the collision.
The plaintiff alleges that the collision was caused by the negligence of the ski instructor for whom the defendant is vicariously liable. The defendant accepts that it is vicariously liable for the ski instructor but maintains that the plaintiff caused the collision and that the ski instructor did not fail to take care.
As a result of the accident, the plaintiff sustained a number of injuries and maintains continuing disabilities for which she seeks damages.
The hearing of the matter was conducted over six days. Mr Wheelahan QC (with Mr Smith of Counsel) appeared for the plaintiff. Mr Sexton SC (with Mr Dodd of Counsel) appeared for the defendant.
Whilst there was no agreement on damages, liability issues were the focus of the evidence and debate. Leaving aside the dispute as to the circumstances of the collision and who might have been at fault, the defendant raises a number of statutory defences available under the Civil Liability Act 2002 (NSW) ("the CLA").
The case is another example of how recollections as to a single event can differ, not only between the actors in the event, but also between seemingly independent witnesses. It is also another example of the difficulties faced by injured persons in pursuing tortious claims arising out of participation in sporting and recreational activities.
I set out a summary of my findings as follows: 1. The collision between the ski instructor and the plaintiff was caused by the negligence of the ski instructor. 2. The plaintiff is not guilty of contributory negligence. 3. Skiing is a "dangerous recreational activity" as defined in s 5K of the CLA. 4. The relevant risk was the risk of a collision between two skiers. That was an "obvious risk" within the meaning of that term under the CLA. 5. In the circumstances, the defendant has established its defence under s 5L of the CLA. 6. The relevant risk warning is not a risk warning within the meaning of s 5M of the CLA. 7. The plaintiff's reliance on s 60 of the Competition and Consumer Act 2010 (Cth), Sch 2 - Australian Consumer Law ("the ACL") does not overcome the defence arising under s 5L of the CLA. 8. The plaintiff has not established a failure to comply with the consumer guarantee under s 60 of the ACL because she has not identified any services that the defendant failed to render with due care and skill. 9. If the defendant had otherwise been entitled to rely on an exclusion of liability in the contract and if the plaintiff had established a failure to comply with s 60 of the ACL, the exception set out in s 139A(5) of the Competition and Consumer Act ("the CCA") would have applied for the benefit of the plaintiff.

[4]

The plaintiff's case

The plaintiff alleges that she was skiing down the Olympic Run in Perisher Blue when she was struck from behind or from the upslope by the ski instructor, Michael Thoms.
As set out in the amended statement of claim filed on 28 May 2020, the plaintiff alleges that Mr Thoms failed to take care in a number of different ways which, as might be expected, includes failing to keep a proper lookout; failing to observe the plaintiff; failing to give way to the plaintiff; skiing across the path of the plaintiff; failing to comply with the Alpine Responsibility Code; skiing at a speed that was excessive; and failing to take evasive action.
The plaintiff also pleads that on 28 September 2013, she entered into an agreement with the defendant and that it was an implied term of the agreement that the defendant would provide its services with due care and skill. She relies on the consumer guarantee set out in s 60 of the ACL. She pleads a breach of the guarantee, being that the services were not rendered with due care and skill.
The plaintiff admits that she did not see Mr Thoms until the instant before the collision despite, on her case, the collision having occurred in an open area of snow. Her view of him was obscured as they both passed a clump of trees, with the trees on the right of Mr Thoms and on the left of the plaintiff. The plaintiff was heading towards the Happy Valley T-Bar and Mr Thoms was heading towards the Sun Valley T-Bar.
On the plaintiff's case, their paths intersected at the point where the trails on which they were skiing intersected, albeit the plaintiff maintains that the point of the collision was not actually on an identified ski run or trail but on an area known as "New Territories". She distinguishes this area from the ski run or trail known as Quad Face.
In response to the defendant's reliance on ss 5L and 5M of the CLA, the plaintiff says that: 1. skiing is not a dangerous recreational activity; 2. a collision of the type that happened is not an obvious risk of skiing; 3. the defendant is precluded from relying on s 5M of the CLA and the exclusion of liability in the contract, having regard to its failure to comply with the ACL; and 4. in the event that s 139A of the CCA is applicable, the conduct of Mr Thoms was reckless within the meaning of s 139A(5) of the CCA.

[7]

The plaintiff's evidence

At the time of the accident, the plaintiff was 53 years of age. She was a competent skier, having skied for many years. She would describe herself as having a competence level of intermediate to advanced.
According to the plaintiff, she and Mr Evans had commenced skiing at approximately 8.30am that morning. Shortly prior to the accident, they were heading to the Mid Station Restaurant. They decided to utilise the Happy Valley T-Bar. To get to that T-Bar, they had to ski down what is known as the Olympic Ski Run. She said they had skied from the top of Mt Perisher towards the Olympic T-Bar. Mr Evans was skiing ahead of her and she saw Mr Evans go past the Olympic T-Bar and traverse high across the face of the mountain. She shouted at him that they had to go to Happy Valley.
She said she turned down to face the mountain and assess the area in front of her. There were only three to five people skiing that she could see. She looked up the mountain to the left in the direction of Olympic. The area was clear of any skiers. She says she was skiing between Olympic and lower Olympic and there was no one in her path or on her side.
In her evidentiary statement, she says: "I was skiing down the hill, carving to the left and right as was my usual skiing practice. I was carving to the left when in my peripheral I saw a skier uphill from me who then immediately collided with me on my left side causing me to be thrown some way down the mountain. The impact was significant causing me to lay stunned for a short amount of time before I felt immediate pain in my right hand, elbow, fingers and shoulder. I also immediately felt pain in my left knee."
As she said in her evidentiary statement, Mr Evans then skied to her and asked if she was okay. He assisted her. She heard Mr Evans speaking to the person who had hit her, who she recognised as a ski instructor. She told the ski instructor that her hand was broken. The ski instructor said to her (indicating to a man who he was with), "He's a doctor. He's a hand surgeon. Let him have a look at it".
After that occurred, the doctor said, "It's not broken. Put ice on it." She heard the ski instructor say it was an accident and Mr Evans asked whether he was going to call ski patrol. Thereafter, she believed that Mr Evans was standing by himself. The ski instructor and the other person had left.
She recalled that Mr Wynn, who she knew was one of the leaders of the ski patrol, attended. She was asked to fill out an incident report. As she could not write, she asked Mr Evans to do it on her behalf. Mr Evans asked her questions about weight, address and other details. Mr Wynn completed the rest of the details.
She identified the point of impact on several photographs during her evidence. She also identified what she believed to be Mr Thoms's path of travel and her path of travel.
It was put to her during cross-examination that when she attended the scene with the expert for the purposes of this case, she identified the point of impact as further down the slope. She agreed but said that only on looking at the photographs did she realise where she had fallen.
She was shown photographs that identified the point of impact through the positioning of two skis. These photographs were taken by Mr Milford on 18 and 21 September 2014 during his investigations into the accident.
It was put to her that to get to the point shown in Mr Milford's photos as the point of the collision, she could ski through a gap in trees. She said she would not go through the trees like that. They looked too low and it was not in her direction of travel.
She agreed that if she had skied through the gap, she could have ended up at the point indicated in Mr Milford's photos.
It was not positively suggested to the plaintiff that she had skied through the gap under the trees but it was suggested that she had skied very close to the end of the clump of trees, thereby appearing in front of Mr Thoms without warning. She disagreed that she had taken the route suggested to her (either route). She maintained that she had skied some distance out into the open before the impact occurred.
She also agreed that the place where the impact occurred was a place where the trails merged and that the Alpine Code of Responsibility required her to keep a proper lookout before coming to that point.
However, she said she did look up the hill as she was coming into the area. She said she saw Mr Thoms immediately before the impact.
It was put to her that she did not pause as she went past the trees. She said she had slowed and was not travelling fast. It was put to her that she suggested in her evidentiary statement that she was carving, which is apparently a manoeuvre for very proficient skiers. She said she was not carving in accordance with the literal meaning of carving but she was carving to her left and right. She agreed she would have to be travelling at some speed, because otherwise the skis could not carve.
In re-examination, she confirmed that she did not ski through and under the trees to get to the point indicated in Mr Milford's photos. She also said that other than skiing through the trees, she could only have got to the point, in Mr Milford's photos, by going around the clump of trees and then skiing uphill. She was unable to say what Mr Thoms was doing immediately before the collision.

[8]

Paul Evans's evidence

Mr Evans gave evidence. He is a very experienced skier who had been a member of the ski patrol at Perisher at some stage. Mr Evans said that he had stopped some way up the hill at a point identified in the plans and photographs as a large boulder. He says that as he was in that position, he was watching the plaintiff ahead of him. From his position, he could see Olympic and at least a part of the Quad Face run. He says that he noticed a skier skiing down Quad Face, although he lost sight of him as he went past the trees. He saw the plaintiff skiing down Olympic and, as she skied in an open area past the trees, he saw Mr Thoms who was, according to Mr Evans, skiing very quickly and looking back over his right shoulder, collide with the plaintiff.
On his version of events, the collision happened further away from the trees than suggested by the defendant and more in an open area. On his version of events, Mr Thoms was skiing very quickly and was not looking where he was going immediately before the collision. He seemed to be looking back in the direction of Dr Antippa who was some distance behind him.
Mr Sexton put to Mr Evans that the collision did not occur at the point identified by him, that Mr Thoms was not skiing excessively quickly and that he was not looking back immediately before the collision. Mr Evans rejected these propositions. Further, he also said that he had seen the plaintiff look to her left as she came past the trees just before the point of impact.
Mr Sexton suggested that Mr Evans had been continuously improving his evidence in support of the plaintiff since the accident. This proposition was based on alleged differences between the incident report, partially completed by Mr Evans, and his evidentiary statement.
The incident report is a critical document, it having been completed contemporaneously with the accident. Two parts of the document were completed by Mr Evans. He wrote a description of the accident as follows: "(TREE'S BLOCKED VIEW) DEB WAS SKIING OFF OLYMPIC COLLIDED FULL FORCE WITH SKI INSTRUCTOR MICHAEL THOMS"
It was put to Mr Evans in cross-examination that he had not mentioned the details relating to the way in which the other skier was skiing. However, Mr Evans rejected suggestions of recent elaboration or improvement and identified that he had prepared notes or a statement shortly after the accident. Those notes were produced. They had seemingly not been produced or asked for previously. They tend to support his evidence.
Mr Evans is no longer employed by the defendant. He has spent many years travelling the world acting as a ski instructor and has vast experience. Although it was suggested that he had been improving his evidence, it was not suggested to Mr Evans that he could not see the point that he identified as the point of collision. He said that it happened 20 metres or so after the plaintiff had cleared the trees (meaning the tree line).
One of the difficulties in this matter is that the contemporaneous incident report does not identify the precise point of the collision. It is described as happening at "Bottom New Territories". These words were written in the incident report by Mr Wynn, a head ski instructor, who attended at the scene whilst the plaintiff was still there. This was also how it was identified when called in.
However, New Territories is not an identified ski trail or run and there is no marking on any ski map which refers to New Territories. Apparently there is a sign somewhere near the T-Bar but that does not really help in the circumstances of this case. The plaintiff asserts that the description in the incident report is only consistent with the point of collision that she identifies.
Mr Evans, who has many years' experience as a ski instructor in the area, stated that New Territories commenced at the end of the Quad Face run as shown on the ski plan. He says that the description in the incident report of the incident happening in New Territories is consistent with his understanding of where the collision occurred - that is, in a relatively open area, where the Olympic and Quad Face runs either end or intersect.
This view was supported by the plaintiff's expert, Mr Feakes.
The defendant suggests that New Territories covers a wide area, encompassing the point where the defendant says the collision occurred, meaning encompassing the area close to the end of the Quad Face run. The defendant says that there is nothing inconsistent about the description of the collision occurring at the bottom of New Territories, as it is just a general term used by ski instructors and "lifties" to describe the area. However, Mr Thoms specifically did not agree that the point identified on behalf of the defendant as the point of collision was in New Territories.
It is again surprising that persons such as Mr Evans and Mr Thoms, who apparently performed the same job in the same area for many years, would disagree as to where New Territories starts and ends. From a lay person's perspective, it is surprising that the accident was not called in and identified as happening on the Quad Face run (which is a marked run on the ski map) if it occurred where Mr Milford identified but perhaps persons working on the ski slopes do not refer to areas with reference to identified ski runs.
I do not accept that the more extensive detail in the evidentiary statement, when compared to the incident report, leads to the conclusion that Mr Evans was consciously improving his evidence for the benefit of the plaintiff. His evidentiary statement is generally consistent with the notes or statement he prepared in 2014, which did not come to light until cross-examination. He was quite definite in his views as to the conduct of Mr Thoms and who should be responsible but I do not accept that this diminishes his overall credibility. Clearly, his evidence supports the plaintiff's version of events but that does not of itself diminish his credibility.

[9]

Mr Thoms's evidence

Mr Thoms gave evidence. His recollection of the collision was set out in his statement as follows: "31. When we were about three quarters of the way down Quad Face, I skied over a rollover as I have described. As I approached the edge of the rollover, I was acutely aware that I was momentarily unsighted over the edge. As [a] result, I made sure that my speed was appropriate for this terrain by slowing slightly, so that […] I would be able to stop or take evasive action in the event there was anything or anyone in front of me when I came over the edge. Once I got to this point, I had an unobstructed view of the run immediately ahead and as there was nothing in front of me, I kept skiing over the crest and down the run. 32. When I was approximately 30 metres or more past the bottom of the rollover, I suddenly became aware of someone or something to my right side which collided with me. At the time I didn't really know what had happened, as I was completely taken by surprise. I now know this was Deborah Castle who had skied on to Quad Face from the right side of the run. She was not in front of me or in my path at any stage and I did not collide with her. I am confident of this because I was able to remain on my feet after the collision, whereas Deborah Castle fell to the ground to her right side."
He later said: "36. As a ski instructor of many years' experience, I am trained to give maximum regard to safety on the hill, which includes always being aware of my surroundings and other skiers who may be in the vicinity. As a ski instructor, I am acutely aware that safety is key. This always includes not only keeping a proper lookout, but also skiing in control and at an appropriate speed for the terrain. "Expect the unexpected" is a saying in the ski industry and as a highly qualified ski instructor, I am always alert to my surroundings and other skiers near me. 37. In conclusion, I am adamant that I did not collide with Deborah Castle on Quad Face, or anywhere for that matter, on 16 August 2014. It was Deborah Castle who skied onto Quad Face from my right and collided with me. Had I collided with her at the speed and in the manner she alleges, my experience both as a ski instructor and as an emergency nurse tells me that she would have sustained much more severe injuries than she in fact did, as the impact would have been much more severe."
Mr Thoms thus said in his evidentiary statement that the point of impact was on Quad Face and that the plaintiff was not below him but rather she skied into him from the right side of the Quad Face run. This description might be consistent with the plaintiff coming through the trees onto Quad Face. It is not consistent with any other version of events.
In his oral evidence, Mr Thoms said that he was skiing with Dr Antippa, providing a lesson to him, although it was more like skiing together, as they were both very good skiers. He was ahead of Dr Antippa. He says that as he was skiing down Quad Face he went through what is termed a "rollover" which is a dip in the terrain which reduces visibility to the skier temporarily. He said that as he came out of the rollover, he saw the plaintiff just as she was emerging from the trees, that is, in the instant before the collision happened. He was skiing quickly but not too quickly. He denied that he was skiing at a dangerous speed.
Immediately after the collision, he left the scene and left the plaintiff with Dr Antippa so as to call in the collision. He returned to the scene thereafter.
I should say that there are again differing recollections as to what happened immediately after the collision. I find it difficult to believe that Mr Thoms would have simply skied off and not returned, although again, there is differing evidence as to precisely what was said about the extent of the injuries immediately after the collision.
Mr Thoms was cross-examined. He was asked questions about a rollover which may have momentarily unsighted him. He suggested that was at least 100 metres before the impact but then agreed that the incident was about 20 to 30 metres after the end of another rollover. He said that as he went through the crest of the rollover he did not see the plaintiff at all.
It was put to him that as he went over the rollover, he turned to his right to check on the location of his client, Dr Antippa. He disagreed with that but was then asked whether he rejected the proposition.
The following cross examination took place: "Q. You say that as you crested the roll-over that you did not see her on the run ahead of you, correct? A. Well yeah, as I approached, when I went - of the crest of the roll-over I didn't see her at all, no. Q. Nor immediately prior to the moment of the collision? A. That's right, yes. Q. As you approached or went over that roll-over do you recall turning to your right to check on the location of your client Dr Antippa? A. No. Q. I suggest to you that that's exactly what you did, you checked on him to make a mental inquiry as to his location and well-being, what do you say to that? A. No, no I can't recall doing that at all. Q. Do you reject the proposition that you did? A. Well I can explain it in this way. Q. No I don't want you to explain it, I'd like you to tell us whether you reject that proposition or simply don't know? A. I would - it's difficult for me to say because it's not something I would normally do. Q. Yes and? A. I had no reason to turn around to, to look at Dr Antippa because he's an - he's actually - he's a ski instructor himself, he's an expert skier, so when we..(not transcribable)..that, it's not appropriate for me to, to turn and look at people skiing-- Q. Why not? A. --for a couple of reasons, I think-- Q. Why not? A. Because it's not safe. Q. No, precisely. But you don't-- A. That's right and-- Q. --but you don't-- A. --and also-- Q. Please Mr [Thoms]-- A. Sure. Q. --if we go one at a time, we'll get along swimmingly. But there was no reason for you not to on this occasion, was there? A. There was no reason for me not to turn around? Q. Look back and check? A. No, there was no reason for me to look around and check. Q. And no reason for you not to, correct? A. Well I usually wouldn't turn around and I wouldn't look behind me if I wasn't in any danger. Q. I suggest to you that that's exactly what you did on this day as you approached and crested the roll-over? A. Well I cannot be - all I can say is that I don't know at that second but I can - because it's not something that I would normally do and there was no - "
He was then asked about whether he had discussed matters with Mr Wynn. It was further put to him that he was skiing in New Territories when the accident occurred. He rejected that, saying it was the bottom of Quad Face.
He said: "Q. Did you have a discussion with Mr Wynn about the collision in which you had recently been involved? A. Yes, I would've had a discussion, yes. Q. Did you tell him that you were skiing down New Territories? A. Not that I recall, no. Q. It was the fact that you were skiing in new territories when the accident happened, was it not? A. Well, no. I think that's the bottom of Quad Face. Q. Quad Face is a blue diamond run, is it not? A. Yes. Q. New territories is green? A. Yes. Q. Indicating the gentlest slope other than for beginners? A. It means the easiest in a ski resort. Q. You told him that the lady with whom you collided came from the Dogleg side of new territories, correct? A. I can't recall saying that, no. Q. Well, the fact of the matter was, when the collision occurred you were well into new territories, were you not? A. No, I believed I was at the bottom of Quad Face."
I understand that the effect of this evidence is that he did not agree that the collision occurred in New Territories and would describe the point identified in Mr Milford's photos as the bottom of Quad Face. He would describe New Territories as a different area and not encompassing the point identified in Mr Milford's photos.
The question remains as to why the point of collision was described in the defendant's contemporaneous document as "Bottom New Territories", in circumstances in which Mr Thoms says it did not occur in New Territories but further up the hill in the area he describes as Quad Face.

[11]

Steve Wynn's evidence

Mr Wynn gave evidence. He recalled finding the plaintiff in the shadows (shown on the photos) near the trees (that is, not at the point identified in Mr Milford's photos but also not in the open where the plaintiff suggests).
He completed a file note or memo on 18 September 2014. I am not sure why he felt it necessary to complete such a document at that time. The only inference I would draw is that he was requested to do so as part of the defendant's investigation into the accident, which took place around a month after the accident.
In these notes, he describes the incident as having been "called in at New Territories" and recounts that Mr Thoms said he was "skiing down New Territories and Deb came from Dog Leg side of New Territories".
Mr Wynn agreed that he had completed parts of the incident report. He had no doubt that the incident occurred at the bottom of New Territories, although he said that when the Quad Face run is completed, a skier comes to the bottom of New Territories. He agreed that the incident was called in as being at New Territories and that Mr Thoms had told him at the time that it was in New Territories. Mr Wynn's evidence on this topic cannot be reconciled with that of Mr Thoms.
In his evidentiary statement, he explained that whilst he referred to the area as New Territories, other might refer to the same area as Quad Face or Sun Valley. He said there were no precise boundaries between ski runs and they commonly merge together as they converge towards the bottom of the hill. This commentary does not explain the inconsistency between Mr Thoms maintaining in evidence that the collision did not occur in New Territories when Mr Wynn said in evidence that Mr Thoms had told him at the time that it did. Mr Wynn was cross-examined as follows: "Q. In paragraph 17, you described the area in which this incident occurred as the area that you would describe as "new territories," do you see that? A. Yes. Q. More particularly, you described it as the bottom of new territories, correct? A. Yes, yes. Q. As one proceeds down the face of the mountain on Quad Face, one then enters the new territories, is that correct? A. New territories is more on the Happy, Happy Valley side. Q. You see, you said that this incident occurred, to your observation, in the bottom of new territories, correct? A. That's correct, when you ski down, you get - you come to the bottom of new territories. Q. When you get to the bottom of the Quad Face, you merge into new territories, do you not? A. That joins in. It - new territories is a big area. Q. I understand that, but to reach it on the route that Mr [Thoms] was taking, you progressed through Quad Face into new territories, correct? A. Yeah, you come to the bottom of new territories. You don't go through the top of it. Q. It doesn't go from top to bottom in what would perhaps be described as a regular fashion. You come from Quad Face into the bottom of new territories, is that what you say? A. You can come from that direction. It depends which direction you come from. Q. What about down Quad Face. What do you encounter when you complete the Quad Face run? A. You come to the bottom of new territories. Q. You had no doubt when you wrote that statement, which I assume you did on the day, that it was in new territories, correct? A. Yeah, the bottom of new territories. Q. Yes, we understand that, but new territories, nevertheless? A. Yep, yep."
It seems clear that Mr Wynn considered that a skier would enter the bottom of New Territories after completing the Quad Face run but that the collision did not occur on the Quad Face run.

[13]

Conclusion

It is difficult to understand how these two highly competent skiers failed to see each other at all at any time before it was too late to protect themselves (or even slow down at all) or change course.
No photos were taken of the scene on the day of the accident. There was no possibility of experts examining the scene after the event and drawing conclusions as to the point of collision, although it must be said that both experts considered that they were able to form an opinion as to where the accident happened.
Assuming that the skis and poles positioned by Mr Milford and then photographed by him do represent the point of impact, then the most likely explanation for a collision occurring at that point is that the plaintiff skied through and under the clump of trees from the Olympic ski run onto the Quad Face run and emerged from the trees just as Mr Thoms was skiing with pace in that area. Mr Thoms's assertion that the plaintiff skied into him from his right whilst he was on Quad Face and not in New Territories could only be consistent with the plaintiff skiing through and under the trees.
The only other explanation for an impact occurring at the point identified in Mr Milford's photographs is that the plaintiff skied very close to the end of the line of trees and then skied for a short distance uphill to the point of impact.
She denied taking either route.
Whilst she agreed that she could have skied along the first route to reach the defendant's asserted point of impact, she specifically said she did not and would not have. It is difficult to understand why she would have. She was simply skiing down the mountain towards the T-Bar. She was ahead of Mr Evans. No reason was proffered why she would be skiing through the trees at that point. She would have needed to slow down to do so and it was not in any way a quicker route or to her advantage to do so. I assume this is why it was not really suggested that she did so.
Similarly, as emphasised on behalf of the plaintiff, it is perhaps difficult to understand why she might have chosen the second route, that is, skiing close to the end of the clump of trees and then proceeding uphill for a short way. I suppose she may have been waiting for Mr Evans but I am not sure why she would have been waiting at that point or why she would not simply have proceeded down to where they were going to meet to go back up to mid-station.
Even Mr Thoms did not agree entirely with Mr Milford's positioning of the skis for the purposes of photographs. Similarly, Dr Antippa suggested the point of impact was further to the right down the hill a little bit, towards the trees.
The point of impact was not marked, that is, marked in any way, on the day of the incident. It is really only identified by the defendant through the investigations subsequently conducted as part of the process undertaken by the defendant, presumably for the purposes of litigation such as this.
In the end, it is likely that the line of trees may have obscured the vision of both skiers as they were coming down the adjoining runs. The collision did occur somewhere around the point where the runs intersected.
I accept the plaintiff's evidence that she did not ski through and under the line of trees to get to that point of impact. Similarly, I doubt that she would have skied so close to the end of the line of trees as to have to ski uphill to get to a point of impact even close to where the defendant identified the impact.
Whilst I accept that the witnesses were doing their best to identify a point of impact, bearing in mind the length of time that passed between there being any real attempt to precisely identify the point of impact, and the absence of any markings on the snow where the collision actually occurred, it may be that the differing recollections as to the point of impact merely reflect the difficulties in trying to place a marker on wide expanse of snow.
Despite the defendant's attempt at portraying Mr Evans as an advocate for the plaintiff, I do not consider that his evidence was embellished for the purposes of this case.
Whatever might be said about the "improvement" is in his evidence as emerged during cross-examination, he prepared a contemporaneous statement in which he documented what he saw from his position up the hill.
In that statement he said: "I looked above her up Quad face, and observed a skier in a Blue jacket who had just come into view skiing fast, just on the other side of the trees, coming down the Quad face run in [Deb's] general direction. This skier caught my eye as he/she was moving at speed. From my position and at that moment in time, the skier looked to have plenty of room ahead in terms of the direction being travelled, and possibly set to pass directly to the left of Deborah if he'd kept that particular line. But then appeared to be looking over his right shoulder and veered to the right directly towards Deborah. (I instantly and later regrettably held back my desire to call "Watch out" still thinking they would miss each other) Deb was into the run and about midway into an open area of the run and what I believe was in clear view of the approaching skier. She was skiing and facing down the slope which was where she was going. She was now my primary focus and would have been a good 10M into the run, skis in the direction of travel (down the slope and slightly and across the run in a mild traverse) and was the downhill skier when the collision happened. I noticed that Deborah had momentarily turned her head to the left, facing the approaching skier over her left shoulder just before she was hit. From where I stood, the impact appeared at full speed on the part of the Skier in the Blue jacket and with full body contact. The approaching skier had made no attempt to change direction. In fact, as stated earlier, [he] appeared to be looking over his right shoulder and veering in [Deb's] path. The impact caused Deborah to fly (literally) in a path across and down the slope and away from the point of impact about 3-4M. The other skier flew on impact in a straight direction and continued down Quad face. He stopped a good 20M+ further down the slope having lost his skis and other gear. I didn't take much further notice as I was now quickly skiing down to assist Deb, except to note he had got back up and was gathering himself and his skis, while I skied down. He didn't arrive back up at the incident scene until after he'd gathered all of his gear and after I'd arrived on the scene. I realised at this time that the other skier was in fact a Perisher instructor as he was wearing the Perisher Instructors jacket."
The defendant's complaints about some of the comments made by Mr Evans in the documents being self-serving should be viewed in the same way as some of the self-serving commentary in the defendant's evidence. For example, Mr Thoms's general description of the accident to the effect that the plaintiff collided with him, rather than he colliding with the plaintiff, appears to be an attempt to summarise the collision in an advantageous way.
Another example is Mr Thoms's statement that, apparently, if he had been doing what the plaintiff maintains, the plaintiff would have sustained more significant injuries. I am not sure why Mr Thoms felt it necessary to add that type of commentary.
I do not accept that the point of impact was where Mr Milford positioned the skis for the purposes of his photographs and investigation in September 2014. The impact was further down the hill. I am not certain as to whether it was precisely where the plaintiff maintains but I accept the plaintiff's evidence that she did not ski through and under the trees and nor did she ski so close to the end of the tree line that she was required to ski uphill immediately before the impact.
In my view, the explanation for the accident is that which Mr Evans said he saw happen. By that, I mean that Mr Thoms was skiing quickly and that as he came through the rollover (which had temporarily obscured his vision), he turned around, probably to see where Dr Antippa was.
He veered to the right just as he was looking around. It was just at this point that he was about to intersect the plaintiff's path. It may be that his general view earlier on had been obscured by the trees between the two ski runs. He did not know that the plaintiff was there.
Absent the plaintiff emerging from the obscurity of the trees immediately before the point of impact, there is really no other explanation for the collision. I might add that my impression of Mr Thoms's evidence about what he was doing immediately before the impact was that he was really giving evidence of what he would normally do or normally not do. That is best illustrated by the following questions and answers: "Q. … But there was no reason for you not to on this occasion, was there? A. There was no reason for me not to turn around? Q. Look back and check? A. No, there was no reason for me to look around and check. Q. And no reason for you not to, correct? A. Well I usually wouldn't turn around and I wouldn't look behind me if I wasn't in any danger. Q. I suggest to you that that's exactly what you did on this day as you approached and crested the roll-over? A. Well I cannot be - all I can say is that I don't know at that second but I can - because it's not something that I would normally do and there was no - "
Mr Thoms was a very good skier. As skiers of his ability often do, he was entitled to ski quickly. In the context of a recreational sport such as skiing, whether a person is skiing too quickly might be difficult to determine, particularly when there are few people around and there is little prospect of Mr Thoms losing control on his skis.
Whilst I accept that Mr Thoms considers that he would not normally have looked around at that particular point, the fact is that the eyewitness says that he did.
As part of his explanation as to why he would not normally do it, he says that it would be unsafe to do so. He was not asked why he thought it would be unsafe to do so. It could not always be unsafe for a ski instructor to look behind him as he is skiing, as that must be an integral part of his or her job. I can only infer that he admitted it was unsafe to do so because of the speed at which he was travelling and the position at which he was skiing, being as he was coming out of a rollover towards a point where Quad Face intersected with the Olympic run.

[14]

Negligence

As observed by Beazley P in Goode v Angland, [1] when s 5L of the CLA may operate as a complete defence to a claim in negligence it is normally the logical starting point for consideration of the plaintiff's claim. However, that is not always so and it is convenient to consider the issue of negligence at this stage.
My findings as to the circumstances of the collision lead to the conclusion that the collision was caused by the failure of Mr Thoms to take reasonable care. Of course, I must assess whether he was negligent, having regard to the principles set out in s 5B of the CLA, but there could not be any doubt that the risk of harm (being the risk of a collision with another skier), was foreseeable and not insignificant within the meaning of ss 5B(1)(a) and (b). It was not submitted otherwise.
The question is whether, in the circumstances, a reasonable person in the person's position, being the position of Mr Thoms, would have taken the precautions identified by the plaintiff.
I must have regard to the matters set out in ss 5B(2)(a)-(d) in considering whether a reasonable person would have taken those precautions.
Of course, the Alpine Responsibility Code specifically states that skiers must give way to people below and beside them on the hill and it is their responsibility to avoid them.
On my findings as to the circumstances of the collision, the plaintiff was to the side of and below Mr Thoms. I have not accepted his suggestion in his evidentiary statement that the plaintiff skied into him from his right as if to suggest that she was somehow above him.
It is not necessary for me to make a finding about the speed at which Mr Thoms was skiing. He was skiing quickly but quickly is a relative term when it comes to a ski instructor. Mr Thoms accepted that if he did what I have now found he did, it would have been unsafe.
No submissions were made to the effect that there should be no finding of a failure to take care if I preferred the plaintiff's version of events.
In my view, in turning around at the place at which he did and at the speed at which he was skiing and in the circumstances of just coming out of a rollover, he failed to exercise reasonable care in all of the circumstances.
I would thus find that Mr Thoms was negligent and that the defendant is vicariously liable for his conduct.

[16]

Section 5L defence - dangerous recreational activity

The defendant relies on s 5L of the CLA as a defence to the claim in negligence against it.
The defence operates if the harm suffered is as a result of the materialisation of an obvious risk of a dangerous recreational activity. In such circumstances, the defendant is not liable in negligence for the harm.
The dangerous recreational activity provisions of the CLA as set out in Part 1A Division 5 have been the subject of considerable judicial consideration since the provisions were first introduced in December 2002. [3]
Even this year, the provisions have been subject to consideration by the Court of Appeal in four cases: Menz v Wagga Wagga Show Society Inc; [4] Singh bhnf Ambu Kanwar v Lynch; [5] Carter v Hastings River Greyhound Racing Club; [6] and Tapp v Australian Bushmen's Campdraft & Rodeo Association Ltd. [7]
Section 5L of the CLA is in the following terms: 5L No liability for harm suffered from obvious risks of dangerous recreational activities (1) A person (the defendant) is not liable in negligence for harm suffered by another person (the plaintiff) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. (2) This section applies whether or not the plaintiff was aware of the risk.
Dangerous recreational activity is defined in s 5K of the CLA to mean a recreational activity that involves a significant risk of physical harm.
Obvious risk, when referred to in s 5L, has the same meaning as in Division 4 of the CLA. The meaning of obvious risk is set out in s 5F as follows: 5F Meaning of "obvious risk" (1) For the purposes of this Division, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. (2) Obvious risks include risks that are patent or a matter of common knowledge. (3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. (4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.
Like in many cases, there are two essential issues for determination being: 1. Was the plaintiff engaged in a dangerous recreational activity at the time that she suffered harm? 2. Was the harm suffered by the plaintiff a result of the materialisation of an obvious risk of that activity?
As described by Leeming JA in Menz at [43], the questions I have identified are not issues of primary fact but of the appropriate legal characterisation of what may be disputed or undisputed primary facts.
The plaintiff submits that she was not engaged in a dangerous recreational activity and that the harm suffered by her was not a result of the materialisation of obvious risk of that activity. The defendant submits to the contrary on both questions. There was some overlap on the parties' submissions on these issues. I will consider both issues.

[17]

Is skiing a dangerous recreational activity?

The plaintiff focused on the reports produced by the defendant as to the incidence of accidents and different types of accidents at Perisher. The plaintiff submits that the defendant's own records establish that the incidence of accidents and injuries on the Perisher ski slopes is so low that the activity does not involve a significant risk of physical harm.
The plaintiff submits that this case is different from many other cases because the defendant has put forward a statistical analysis of accidents and injuries occurring at the defendant's resort at Perisher, which detracts from the proposition that skiing is a dangerous recreational activity.
The defendant submits that the use of statistics or records is misplaced. It suggests that that the correct question is whether the risk (being the risk of physical harm) was more than trivial, pointing out that even competent skiers could fall over and that they might fall and hit somebody or something.
The plaintiff had been hit by a snowboarder on an earlier occasion and a skier on another occasion. There is no suggestion that she was skiing on the beginner slopes when this occurred. Further, there are many risks associated with skiing.
Mr Sexton submits that the Court would take a purposive approach to the construction of the legislation. That is, the legislature has deliberately inserted a limiting provision in the statute for the purposes of removing ordinary common law rights and the section should not be read down in order to avoid its effect.
He compares activities such as surfboard riding and the dangers which might happen only rarely and playing cricket and being hit in the head with a cricket ball.
The answer to the competing submissions lies in the proper construction and application of s 5L of the CLA. Surprisingly, there has not been any higher authority on the proposition that skiing is a dangerous recreational activity.
In Perisher Blue Pty Limited v Harris, [8] the issue was raised but not further considered by the Court of Appeal (it having been accepted at first instance that skiing was a dangerous recreational activity). [9] The other well known cases involving the defendant did not involve consideration of injury arising out of the ordinary activities of skiing. [10]
The evidence adduced by the defendant (as accepted by Mr Milford) suggests that: 1. there were approximately 600,000 visits to Perisher annually; 2. the ski lifts at Perisher have a collective capacity of 50,000 patrons per hour; 3. even if the lifts were operating at 50 per cent capacity, the lifts could transport 25,000 patrons per hour or 900,000 per week, or 6 million per year, assuming a 6 day week; and 4. for the years 2017 to 2019, the defendant has a record of an average 64 collisions per annum (this would include person-to-person collisions and collisions with objects).
As put to Mr Milford in cross-examination (and accepted), if half of those collisions were person-to-person, that would mean that the effective rate of person-to-person collisions per use of the ski lift would be 1 in 200,000 lift rides (as reported to the defendant).
It is submitted that, on a proper consideration of these statistics, then the likelihood of collision is extremely low. That analysis is certainly relevant in considering obvious risk but for the purposes of considering whether skiing is a dangerous recreational activity it is necessary to have regard to all potential risks associated with skiing.
Skiing is a well-known and popular outdoor activity undertaken by persons of all ages and levels of competence. The plaintiff's reliance on the defendant's statistics might be viewed as an attempt to establish that common perception about risks associated with some activities such as skiing is not always accurate.
It must also be said that it might be somewhat unusual in cases of this nature that a party has available to it statistics as to the actual occurrence of accidents and the circumstances in which accidents occur, particularly having regard to the popularity of the activity.
Having said that, I adopt the observations of Ipp JA in Fallas v Mourlas [11] about the use of statistics in cases such as this (that is, they are not determinative).
It is necessary to further consider the meaning of "significant risk of physical harm".
In Campbell v Hay, [12] Ward JA observed: "Consideration was given to the meaning of 'significant risk of physical harm' in Falvo v Australian Oztag Sports Association [2006] NSWCA 17 and Fallas, from which a number of propositions can be drawn. The definition of 'dangerous recreational activity' must be read as a whole (Ipp JA, with whom Hunt AJA and Adams J agreed, at [28] in Falvo). Regard must be had both as to the nature and degree of harm that might be suffered, on the one hand, and the likelihood of the risk materialising on the other (Falvo per Ipp JA at [28]). The expression constitutes one concept with the risk and harm mutually informing each other (such that the risk of physical harm may be significant if the risk is low but the potential harm is catastrophic or if the likelihood of both the occurrence and the harm is more than trivial; but the risk of physical harm may not be significant if, despite the potentially catastrophic nature of the harm, the risk is very slight) (Falvo per Ipp JA at [31]). 'Significant risk' has been said to mean more than trivial and does not import an 'undemanding' test of foreseeability (Fallas per Ipp JA at [14]); it does not mean a risk that is likely to occur (Fallas per Ipp JA at [16]) but lays down a standard lying somewhere between a trivial risk and a risk likely to materialise (Fallas per Ipp JA at [18]); and as a general guide, it means a risk that is 'not merely trivial, but generally speaking, one which has a real chance of materialising' (Tobias JA at [90]-[91], this being the test his Honour applied later in Jaber v Rockdale City Council [2008] NSWCA 98 at [54]). An objective test is required in determining whether a recreational activity was dangerous (Fallas per Ipp JA at [13]; Basten JA at [136])."
As identified by her Honour, an objective test is required in determining whether a recreational activity is dangerous. I am not now considering the personal circumstances of the plaintiff or Mr Thoms.
Further, in determining whether there is a significant risk of physical harm, I must have regard to both the potential nature and degree of harm as well as the likelihood of harm materialising. 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.
Risk is a term used in a number of sections of the CLA. As observed by Leeming JA in Uniting Church in Australia Property Trust (NSW) v Miller; Miller v Lithgow City Council, [13] it might have different meanings, depending on the context in which it is used. For the purposes of considering whether skiing is a dangerous recreational activity, I am not identifying the risk of harm. Nor am I considering whether a risk might be obvious. I am considering whether the activity is dangerous, having regard to the definition.
There could be no doubt that skiing involves a risk of physical harm. The very nature of the activity involves proceeding down slopes, often steep, often quickly. One of the thrills of the activity is to go fast or as fast as one's level of competence might allow. It might also be said that one of the risks associated with the activity arises because skiers may ski at a speed beyond their level of competence.
The risks associated with skiing are sometimes increased by the conditions such as the presence of ice which may not be observable.
The Alpine Responsibility Code commences with the following statement: "Regardless of how you enjoy your snow sport, always show courtesy to others and be aware that there are inherent risks in all snow recreational activities that common sense, protective equipment and personal awareness can reduce. These risks include rapid changes in the weather, visibility and surface conditions, as well as natural and artificial hazards such as rocks, trees, stumps, vehicles, lift towers, snow fences and snowmaking equipment."
Unfortunately, even the best skiers have accidents. Accidents might involve colliding with objects, trees or persons or losing control and falling over. That is a matter of common knowledge. It may be because, irrespective of the expertise of an individual skier, not everything that happens on the ski slopes is within the control of the individual skier. Mr Thoms might say that the accident involving the plaintiff is a good example of that. Similarly, on the plaintiff's own case, her accident is a good example of that. She says there was nothing she could have done to prevent the collision.
Whilst the defendant's records might tend to suggest that the risk of an injury is low having regard to the number of persons using the facility, it does not seem to me that the records provide an answer to the defence raised by s 5L of the CLA.
Firstly, the records only show the number of incidents reported to and recorded by the defendant. They do not identify every collision that occurred on the mountains. Secondly, the statistics do not address the potential for the harm to be catastrophic.
I must take into account that which is common knowledge, being that persons have been killed and suffered catastrophic injuries whilst skiing. Persons participate in the activity often in close proximity to solid objects such as rocks and trees, often travelling at speeds which are very fast for non-mechanically propelled human movement.
In considering whether skiing is a dangerous recreational activity, I am not limiting the consideration to particular classes of persons, such as expert skiers, involved in the activity. I am not considering only the risk of person-to-person collisions.
I am considering whether the recreational activity, which is skiing, involves a significant risk of harm.
In my view, it does. Even if the rate of collision per skier is low, the potential harm is high or great. It is not permissible to focus merely on the rate of collisions/accidents or injuries without having regard to the potential consequences. Whatever the rate of injury, it could not be said that both the likelihood of the risk of injury materialising and the nature and extent of the likely potential injury would be trivial.
In the circumstances, I consider that skiing is a dangerous recreational activity.

[18]

Obvious risk

The remaining question is whether the harm suffered by the plaintiff was a result of the materialisation of an obvious risk of the activity in which she was engaged.
As often happens, the plaintiff sought to identify the risk for the purposes of considering whether it was obvious more specifically, precisely or narrowly, whereas the defendant adopted a more general description of the risk.
The plaintiff submits that the risk was the risk of the plaintiff, an experienced and competent skier, colliding with a ski instructor. The plaintiff submits that it would not have been obvious to a reasonable person in the position of the plaintiff that she might collide with a ski instructor.
The plaintiff submits that there was nothing in the plaintiff's personal circumstances which would indicate that she was at risk of harm, much less, an obvious risk.
Mr Wheelahan QC pointed to the observations of Ipp JA in Fallas v Mourlas at [76] that the risk attendant upon the activity of hunting must depend on the circumstances. For example, if skilled and experienced hunters undertake the shooting, the risk may be relatively low but if hunters are novices, the converse might be the case.
I understand that the effect of the submission is that in circumstances in which the plaintiff was a very experienced skier, the risk of colliding with a ski instructor would not be obvious compared to the risk that might be associated with skiing by an inexperienced skier. That may be so.
The defendant identifies a more general risk being that the risk was the risk of a collision between two skiers. It says that even allowing for the personal circumstances of the plaintiff it would have been obvious to a reasonable person in her position that there might be a collision with another skier. It points to s 5F(3) of the CLA and says the risk can still be obvious even if the probability of its occurrence is low.
In my view, the outcome on this issue does depend on whether the risk is described narrowly or more generally.
The proper approach to the determination of whether the risk was an obvious risk has been the subject of consideration in four decisions of the Court of Appeal just this year. [14]
In Carter at [113], Simpson JA observed: "[113] Identification of the risk asserted to be an obvious risk is an essential preliminary task in the determination of a defence under s 5L. The degree of particularity or generality with which the risk is defined may dictate the outcome of the defence."
Her Honour's observations are particularly apposite in this matter. Similar observations were made most recently in Tapp at [4] (Basten JA) and [147] (McCallum JA).
Further reference should again be made to the observations of Ipp JA in Fallas, where his Honour said at [55]: "[55] … the question is not whether it was obvious that there was a risk that the very facts that did in fact materialise could materialise. Rather, it is whether there was an obvious risk that that kind of thing might materialise." [15]
In Menz, Leeming JA undertook an extensive analysis of the problems that arise in determining whether to adopt a more general or specific characterisation of the risk. [16] At the conclusion of that analysis, his Honour said: "[70] What follows from the considerations mentioned above is the following. First, the obvious risk is in principle to be specified with a degree of generality. There may well be no single 'correct' specification of the obvious risk, and the statute proceeds on the basis that a greater level of generality is sufficient. [71] Secondly, the specification of the obvious risk must be sufficiently precise as to capture the harm which resulted from its materialisation on the facts of the particular case. If it is too generally expressed, such that the nature of what occurred is mischaracterised, then a greater degree of specificity is required. [72] Thirdly, a combination of foresight and hindsight is in play here. The obviousness of the risk is to be considered from the perspective of the plaintiff, prior to the incident occurring. However, the causal connection can only be satisfied after the risk has materialised and the resulting harm has been suffered, and determining the appropriate level of particularity in the formulation of the risk of harm requires looking at the position with the benefit of hindsight. [73] Fourthly, I think there is much to be said for the view that 'as a result of' in s 5L, in a context which speaks of harm materialising from an obvious risk, requires a close causal connection between the harm and the risk which materialises. The section is directed to harm which materialises as a result of a risk of which the plaintiff ought reasonably to have known. If the risk is obvious, it may be expected that there is a close causal connection between the risk which materialises and the harm. [74] Fifthly, the proper characterisation is fact-dependent, and will turn on the evidence in any particular case of what occurred, and why the risk is one that is obvious." (Emphasis in original.)
I must apply those principles to the underlying facts in this matter.
It is important to emphasise that the definition of obvious risk refers only to a risk that in the circumstances would have been obvious to a reasonable person in the position of the person suffering harm, that is, the plaintiff. It is thus relevant to consider the plaintiff's personal circumstances, specifically, that she was a very confident skier.
Plainly, colliding with another skier would not have been something that she would have expected to happen and would not have been something which was likely to happen. In that sense, her position might be contrasted with that of a beginner traversing the front slopes with other beginners.
Further, it would not have been obvious to a person in the position of the plaintiff at the time that she was skiing down the mountain that there was any real risk of colliding with a ski instructor.
Of course, as set out in s 5F(3), the risk of something occurring can be an obvious risk even though it has a low probability of occurring but the probability of a collision between a ski instructor and another very competent skier would not merely be low, it might be described as negligible.
A negligible or trivial risk would not be a risk that would fall within the definition of obvious risk set out in s 5F.
However, the difficulty with the plaintiff's characterisation of the risk for the purposes of s 5L is that: 1. It focuses on the personal characteristics of Mr Thoms, rather than those of the plaintiff. That is, the risk is said not to be obvious because Mr Thoms was a ski instructor. 2. In focusing on the personal characteristics of the other skier, the exercise is one entirely of hindsight rather than part foresight and part hindsight (having regard to what actually happened).
Whatever arguments may have been available in the particular circumstances of this case, I must follow the approach set out by Leeming JA in Menz (with whom Payne and White JJA agreed), which I have extracted at [175] above and which was followed in Singh [17] and recently confirmed in Tapp. [18]
As his Honour says, the obvious risk is in principle specified with a degree of generality. Of course, the specification must be sufficiently precise to capture the harm which resulted from the materialisation of the risk but it would hardly be necessary to be so specific as to include the personal characteristics, not of the plaintiff, but of the person with whom she collided.
The harm suffered by the plaintiff resulted from a collision between the plaintiff and another skier, whilst both were engaged in the activity of skiing in areas designated for skiing.
Adding into the characterisation the fact that the other skier was a ski instructor for the purposes of reducing the probability of such a collision occurring is unnecessary and would be contrary to the approach that I must follow, having regard to that which has emanated from the Court of Appeal in Menz, Singh, Carter and Tapp (subject to the views of McCallum JA in dissent in that most recent decision).
The fact that the plaintiff was a good skier does not detract from that proposition because it would be obvious to a person in the position of the plaintiff that: 1. other persons using the slopes might not always be in complete control; 2. other persons using the slopes might be going too fast for the conditions; 3. other persons using the slopes might on occasions be distracted and not paying proper attention; 4. visibility might sometimes be reduced for differing reasons; and 5. there could be hidden imperfections in the snow which might cause even good skiers to lose control.
By analogy, it would have been obvious to a reasonable person in the plaintiff's position that if another skier lost control or was not doing what he or she should be doing on the slopes, a collision might ensue and significant injury might be suffered.
In my view, it is not permissible or necessary to characterise the risk in the way suggested by the plaintiff. That leaves the more general characterisation and leads to the conclusion that the harm suffered by the plaintiff was a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by her.
As such, the defendant has made out its defence to the claim in negligence under s 5L CLA.

[19]

Section 5M defence - risk warning

As set out in s 5M(1) of the CLA, the defendant does not owe a duty of care to another person who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning to the plaintiff.
The effect of s 5M is thus that if there was a risk warning within the meaning of the section, the defendant did not owe a duty of care to the plaintiff and thus could not be liable in negligence.
The issue in this matter is not whether a risk warning was given, but whether the content of the risk warning was such so as to satisfy s 5M.
Condition 7 of the Perisher Booking Terms and Conditions included the following acknowledgment: "Lift and Skitube Tickets, Snowports School Lessons and Snowsports Hire 7. Where you seek or do book Lift and Skitube Tickets, Snowsports Lessons and Snowsports Hire products via the Website (whether as part of a package or otherwise), then you acknowledge the following risk warning and agree to the following terms: a) You engage in any recreational activity at your own risk. b) You acknowledge the risk warning set out in bold and capitals below and that the warning constitutes a risk warning pursuant to the Civil Liability Act 2002 (NSW). c) You acknowledge that you will observe the Alpine Responsibility Code (copies are available upon request) and that you will conduct yourself in a safe and controlled manner at all times. Failure to do so may result in us deactivating the ski lift access component of your ticket. d) You must read all signs and follow all directions given by us, our employees or agents. e) To the maximum extent permitted by law we exclude all liability to you, including for negligence and whether the loss or damage has occurred to person or property. Where that liability cannot be excluded, we limit our liability to you to the maximum extent that we are permitted by law to do so. f) You acknowledge that we provide 'recreational services' as defined in the Competition and Consumer Act 2010 (Cth). To the maximum extent permitted by this Act, we exclude liability to you for: i. death; ii. personal injury; iii. the contraction, aggravation or acceleration of a disease; and iv. the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual: (i) that is or may be harmful or disadvantageous to an individual or community; or (ii) that may result in harm or disadvantage to an individual or community, arising out of any failure by us, our employees or agents to comply with any consumer guarantees applying to the services."
The actual risk warning which is referred to in condition 7 as being in bold and capitals is as follows: "RISK WARNING: RECREATIONAL ACTIVITIES (INCLUDING SKIING, SNOWBOARDING AND SNOW TUBING) INVOLVE A SIGNIFICANT RISK OF PHYSICAL HARM OR PERSONAL INJURY INCLUDING PERMANENT DISABILITY AND/OR DEATH TO PARTICIPANTS. ANY SUCH INJURY OR LOSS MAY RESULT NOT ONLY FROM YOUR ACTIONS BUT FROM THE ACTION, OMISSION OR NEGLIGENCE OF OTHERS. PLEASE READ AND OBEY ALL SIGNS."
In its defence, the defendant pleads voluntary assumption of risk. Although it did not specifically refer to s 5M of the CLA, the case was run on the basis that the defendant was relying on s 5M.
The defendant pleads that the terms and conditions of the agreement between the plaintiff and the defendant (specifically the ticket purchased by her) contained specific risk warnings. It also relies on the various risk warning signage located at numerous locations throughout the resort.
The plaintiff submits that the risk warning would not satisfy s 5M because it is too generic. There needs to be specific identification of at least the general nature of the risk that eventuated. The plaintiff adopts what I said in Polglase by his tutor Jeffrey Polglase v Coffs Harbour City Council (No 2), [19] distinguishing Sharp v Parramatta City Council [20] on the basis that the only activity that could be undertaken from the diving board in Sharp was diving and that is the reason that the general risk warning was found to satisfy s 5M in Sharp. Subsequent to the hearing in this matter, the Court of Appeal rejected an appeal on the s 5M point in Polglase. [21]
It is necessary to consider the words of ss 5M(1), (3) and (5) and make factual findings as to the warning and then determine whether, in the particular circumstances of the matter, the risk was subject to a risk warning to the plaintiff within the meaning of s 5M.
It does not matter whether the plaintiff actually believed that there were risks associated with the activity in which she was engaged. The analysis is objective rather than subjective.
As was held in Action Paintball Games Pty Ltd (In liquidation) v Barker, [22] it is possible to warn of a risk without instructing a recipient as to all the steps necessary to avoid the risk.
Further, an adequate warning can be given in some circumstances by reference to the general kind of risk involved without precise delineation of each obstacle or hazard which may be encountered.
Section 5M(5) makes it clear that a risk warning may not be specific to the particular risk and can be a general warning of risks that include the particular risk concerned.
In this matter, the risk warning directs attention to the activities of skiing, snowboarding and snow tubing. Further, the warning makes reference to injury or loss which may result not only from the skier's own actions, but from the action, omission or negligence of others.
A collision with another skier is just one of the many risks associated with the activity of skiing. Injury may be sustained as a result of collisions between persons or between a skier and an object, such as a tree. Injury may be received as a result of the skier losing control or falling off a T-Bar or losing control at the end of the chairlift.
In my view, the warning is too general. It does not identify any particular risks. It merely identifies that there are risks associated with skiing. Identifying that other persons may be negligent does not direct attention to any risks associated with skiing.
The warning is somewhat similar to that considered in Menz at [121]. Leeming JA doubted that it would satisfy s 5M.
In my view, a risk warning within the meaning of s 5M was not provided to the plaintiff by the defendant.

[20]

The claim under the Australian Consumer Law

The defendant also relies on the exclusion of liability contained in the contract, although it is not expressly pleaded. The exclusion is contained in condition 7 of the Perisher Booking Terms and Condition, which is set out above at [194]. There was no objection to the point being pursued in the submissions of the defendant. The issue as identified by the parties is not whether the terms of the exclusion would be sufficient to exclude liability in the circumstances of this matter but rather whether it is rendered void by s 64 of the ACL having regard to s 139A of the CCA.
The plaintiff says that the defendant failed to comply with the consumer guarantee as to due care and skill, set out in s 60 of the ACL. Section 60 provides, "If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill."
As is often the case in these types of matters, the plaintiff pursues a cause of action under s 60 in an attempt to overcome both the exclusion of liability contained in the contract and the statutory defences relied upon by the defendant.
It has been accepted that s 5M of the CLA does not operate as a defence to an action for damages under s 74(1) of the Trade Practices Act 1974 (Cth) ("the TPA"), pursuant to which there was an implied warranty that services would be rendered with due care and skill, [23] and does not defeat a claim under s 60 of the ACL. [24]
However, as has been said recently in Menz at [28] and in Tapp at [101], the consumer guarantees differ from warranties implied under ss 74(1) and (2) of the TPA in that the protection is afforded by statutory guarantees rather than warranties implied into the contract. Further, there was no provision in the TPA equivalent to s 275 of the ACL.
In Moore v Scenic Tours Pty Ltd, [25] the High Court observed that the purpose of the enactment of s 275 of the ACL was to ensure the application of State and Territory laws that limit the extent of recovery for a breach of a contract otherwise governed by that law.
Section 74 of the TPA could be relied upon to render void and inoperative a State law limiting liability. Section 275 of the ACL does not have the same effect.
Leeming JA summarised the position in Menz as follows: "[29]. Evidently, there was a contract between Ms Menz and the respondent, pursuant to which she was permitted to enter onto the land and compete in certain events (for which she paid a nominal entry fee). Pursuant to that contract, the respondent supplied and Ms Menz received services including those relating to the organisation of the equestrian events in which she competed. The proper law of the contract was the law of New South Wales. Accordingly, if, as Ms Menz alleged, the services of running the equestrian events at the Wagga Wagga Show had not been rendered with due care and skill, the preconditions to s 275 were established. Further, s 5L of the Civil Liability Act applied, bearing in mind that s 5A makes Part 1A of the Act applicable to 'any claim for damages for harm resulting from negligence, regardless of whether the claim is brought in tort, in contract, under statute or otherwise', and 'negligence' is defined in s 5 to mean 'failure to exercise reasonable care and skill'."
Section 5L is a law that applies to limit or preclude liability within the meaning of s 275 of the ACL and thus, even if there was a failure to comply with the guarantee under s 60 of the ACL, such a failure would not have the effect of defeating the defendant's reliance on s 5L.
However, a failure to comply with the guarantee set out under s 60 of the ACL may render an exclusion of liability contained in the contract inoperative.
As set out in s 64 of the ACL, a term of a contract is void to the extent that the term purports to have the effect of excluding, restricting or modifying any liability of a person for a failure to comply with the guarantee that applies under the division.
Section 64 of the ACL is subject to s 139A(1) of the CCA. Section 139A has the effect of removing from the ambit of s 64 of the ACL exclusions or limitations of liability contained in contracts for the supply of recreational services to a consumer.
Having said that, the operation of s 139A(1) is then subject to the exception contained in s 139A(4).
The issues raised by the parties on the interplay between ss 60 and 64 of the ACL and s 139A of the CCA are: 1. What were the services which the defendant did not render with due care and skill, if any? 2. Is the plaintiff's reliance on s 64 of the ACL defeated by the operation of s 139A(1) of the CCA? 3. Does s 139A(4) apply (the effect of which would be that the defendant could not rely on the exclusion of liability contained in its contract, despite s 139A(1))?

[21]

Did the defendant fail to render services with due care and skill?

In her pleadings, the plaintiff does not identify which services the defendant failed to provide with due care and skill.
Mr Sexton invited Mr Wheelahan to identify the services which the defendant failed to render with due care and skill. Mr Wheelahan identified the services as follows: "Part of the services provided by the defendant is therefore the policing and implementation of the alpine code which must include, we submit, its observation by its employees, that is Mr [Thoms]. The defendant's opening suggests that the defendant provides services such as uphill transportation and slope grooming and whilst I paraphrase my learned friend's submission, that's it. They must also provide as part of the provision of recreational services ski patrol, medical services, and transportation. We submit that by providing transportation to the ski slopes that it is implied that the defendant must also provide a safe means of employing the recreational activities that it provides as a ski resort. We say that all the services provided by the resort to permit the resort to function efficiently and profitably include the provision of instruction and instructors. If one goes to this facility where recreational activities are for sale, the fee is paid to the facility. The facility engages the instructor, and pays to the instructor a portion of the fee paid to the facility. We submit, your Honour, that the customer is entitled to be safe from the ski patrol, ski instructors, the banana boats used to transport injured skiers down the mountain, skidoos, snow-making machinery, and heavy machinery found on the slopes. We submit it really is illogical to attempt to limit services in the way in which the defendant proposes. To cherry pick as we respectfully suggest that they have done here an activity or activities from the overall experience provided by the resort is unnatural and impermissible. It follows, your Honour, that Mr [Thoms], for whom the defendant properly concedes it is vicariously liable with regard to his conduct and behaviour, constitutes part of the service offered by a facility such as a ski resort."
Section 2 of the ACL provides that "services" includes: (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under: (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; … but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.
The definition of services is inclusive. It is not intended to be exhaustive. In Obeid v Australian Competition and Consumer Commission, [26] the Court considered the definition of services in s 4 of the TPA following the Trade Practices Amendment Act 1977 (Cth), which is in the same terms as the definition provided in s 4 of the CCA and resembles that provided by s 2 of the ACL. The Court observed: "[52] Looking at the text of the definition 'services' there is no reason to conclude the term 'includes' is exhaustive. Whilst it includes services that would come within the ordinary meaning of that word, it also includes services not within the ordinary meaning (eg rights or interests in relation to real or personal property). The historical context described by the primary judge confirms that the term 'includes' is not meant to be exhaustive. [53] Therefore, in interpreting the term 'services', unless a contrary intention appears in the substantive provisions being applied, the ordinary meaning of the term 'services' is to be adopted along with the specified services in the definition itself." [27]
In Adamson v New South Wales Rugby League Limited, [28] Wilcox J observed that: "As a reference to any standard dictionary will show, although the word 'services' has a wide application, it imports always the notion of some assistance or accommodation being made available by one person to another."
The contract between the plaintiff and the defendant was a contract for or in relation to the provision of or the use of enjoyment of facilities for amusement, entertainment, recreation or instruction. As such, services includes any rights, benefits, privileges or facilities that are or are to be provided, granted or conferred under that contract.
It follows that when considering whether the defendant failed to provide services with due care and skill, it is necessary to consider what aspect of any right, benefit, privilege or facility (or any other service) that was provided, granted or conferred was not provided with due care and skill.
There is no doubt that the defendant provided services to the plaintiff which conferred a right to ski. She was provided with facilities to enable her to ski. She was given benefits which came with the right to ski. No doubt the defendant provided services to the plaintiff associated with those rights, benefits and participation, such as chairlifts and lift operators, smooth snow, signs and barriers. They are all things necessary for the purposes of allowing a person to ski and having regard to the definition of services might be considered part of the services provided to the plaintiff.
The difficulty for the plaintiff is that it is not suggested that the defendant failed to render any of those services with due care and skill. If Mr Thoms had been providing a service to the plaintiff for which the defendant was vicariously liable, then the defendant would have been providing services to the plaintiff. If he had been providing instructions to the plaintiff at the time he was negligent, then the loss and damage would arise out of the provision of services to her. However, he was not providing any services to her at the time.
Whilst the defendant undoubtedly provided services to the plaintiff of the type to which I have already referred, the only failure to take care which is either asserted in the pleadings or established by the evidence, is a failure to take care by Mr Thoms having regard to the way in which he was skiing at the time of his collision with the plaintiff.
Even if it might be said that, as part of the services provided by the defendant, it provided ski instructors, it is difficult to understand how the defendant could have failed to provide its facilities with due, care and skill because Mr Thoms engaged in a casual act of negligence as he was performing work within the facility.
The fact that Mr Thoms may have failed to comply with the Alpine Code of Conduct does not lead to the conclusion that the defendant failed to comply with the Alpine Code of Conduct in the way in which it was providing its services to the plaintiff. Further, there is no evidence that Mr Thoms was not properly trained, instructed or supervised. He was allowed to work on the ski fields that formed part of the facilities.
All duties may be discharged by the exercise of reasonable care. The obligation arising under s 60 of the ACL is to render services with due care and skill. The plaintiff has not identified anything that the defendant did or did not do which constituted a failure to take care in any service it was providing to the plaintiff.
Further, I do not accept that the defendant was providing a service to the plaintiff through Mr Thoms at the time of the collision.
The plaintiff has established that the defendant is liable for the conduct of Mr Thoms but vicarious liability is only a mechanism for shifting liability from one person to another or allowing an injured person to recover from the party vicariously liable.
I accept that the defendant provided services to the plaintiff such as the facilities, signs, chairlifts and a right to ski in the area. There is no evidence of any failure to render those services with due care and skill.
The plaintiff must identify what aspect of the services provided her were rendered without due care and skill. She has not done so and, in the circumstances, she has not established a failure to comply with the consumer guarantee set out in s 60 of the ACL.

[22]

Section 139A of the CCA

I will consider s 139A of the CCA in the event that my finding about s 60 of the ACL is in error.
Section 139A provides that a term of a contract for the supply of recreational services to a consumer by a person is not void under s 64 of the ACL only because the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying any liability of the person for a failure to comply with a guarantee under s 60 of the ACL (among other guarantees) that applies to the supply.
If the defendant supplied services, the services it provided were recreational services. The effect of s 139A is to exclude from the operation of s 64 of the ACL such terms in contracts for the supply of recreational services that fall within the description in s 139A(3) (which the relevant exclusion does).
Section 139A is subject to the qualification provided by sub-ss (4) and (5), which are in the following terms: 139A Terms excluding consumer guarantees from supplies of recreational services … (4) This section does not apply if the exclusion, restriction or modification would apply to significant personal injury suffered by a person that is caused by the reckless conduct of the supplier of the recreational services. (5) The supplier's conduct is reckless conduct if the supplier: (a) is aware, or should reasonably have been aware, of a significant risk that the conduct could result in personal injury to another person; and (b) engages in the conduct despite the risk and without adequate justification.
The plaintiff says s 139A does not apply because of s 139A(4).
Assuming that the defendant failed to render services with due care and skill because of the conduct of Mr Thoms, his conduct and his state of mind is deemed to be the state of mind and conduct of the defendant, having regard to s 139B of the CCA.
Recklessness has been considered in different contexts and different areas of law. It is a familiar term in both the areas of criminal and insurance law.
In the well known case of Fraser v BN Furman (Productions) Ltd, [29] Diplock LJ referred to the distinction between negligence and reckless conduct. His Honour referred to reckless conduct as conduct undertaken with actual recognition by the person that a danger existed not caring whether or not it is averted.
It is important to construe the definition set out in s 139A(5) in the context in which it appears. Reckless conduct operates as an exception to the protection offered to the supplier of recreational services by virtue of s 139A. As s 139A(1) directly includes a liability for failure to comply with a guarantee (being a guarantee as to exercising due care and skill) then reckless conduct should mean something more than mere negligence.
However, I am not considering whether Mr Thoms was reckless, having regard to the distinction between a failure to take care and acting recklessly in other contexts. I must only consider whether his conduct falls within the definition of reckless conduct in s 139A(5). The context in which s 139A(4) appears is as an exception to the general exception created by s 139A.
The definition of reckless conduct tends to suggest that the term has a somewhat wider meaning than when used in other areas of law. That is because: 1. Firstly, there is an alternative to establishing actual knowledge. It is only necessary to establish that the supplier should reasonably have been aware. 2. Secondly, it is not necessary to establish that the supplier was aware or should have reasonably been aware that the conduct would result in personal injury to another person. The words are "of a significant risk that the conduct could result…" (emphasis added).
The questions are thus: 1. whether Mr Thoms was aware or should have reasonably been aware of a significant risk that the conduct could result in personal injury to another person; and 2. whether Mr Thoms engaged in the conduct despite the risk and without adequate justification.
In my view, the "conduct" is the causally relevant conduct. It is only necessary to consider what Mr Thoms did which caused the collision. The conduct is the conduct of Mr Thoms in skiing at the speed at which he was skiing in the position where he was skiing and then looking around to his right and over his shoulder and then veering to the right just at the point before the collision.
I have referred to the relevant cross-examination above at [65].
Adopting the same meaning of significant risk as has been adopted in the context of the CLA, the risk of a collision with another skier may have been low but the consequences may have been catastrophic, such that the risk of a collision with a skier might be considered a significant risk.
Further, it is plain that Mr Thoms engaged in the conduct despite that risk. He was specifically asked whether there was any reason for him to look around and check and he said there was no reason. On the evidence, he engaged in the conduct without adequate justification.
It follows that s 139A(5) would have applied and the defendant could not have relied on the exclusion in the contract as a means of avoiding a liability for a failure to comply with the guarantee set out in s 60 of the ACL.

[23]

Damages

The damages issues are of relatively narrow compass. Again, I will deal with them lest my earlier findings might be shown to be in error at some later time.
At the time of hearing, the plaintiff was 59 years of age. She was 53 as at the date of the accident. After leaving school she undertook a hairdressing apprenticeship and most of her career appears to have been in that industry.
Prior to her accident on 16 August 2014, she had suffered from a number of other injuries and illnesses. In particular, she had suffered from chronic fatigue syndrome for a short period commencing in 1989. She had also been injured in an earlier skiing accident on 6 July 2008 as a result of which she suffered injuries to her right shoulder and right leg and ceased skiing for a period of four years. She suffered a rotator cuff injury for which she required surgical treatment and continued to suffer ongoing disability for a number of years.
Then, in 2009, she was diagnosed with cervical facet joint arthropathy from which she suffered during the period 2010 to 2014.
In November 2012, she felt well enough to return to work and opened her own hairdressing salon in Jindabyne known as the Encore Hair Studio.
Despite her earlier injuries and illness, it is clear that she was working full-time as a hairdresser at the time of the accident and continued to engage in recreational activities such as skiing. Whatever the significance of her earlier illnesses and injuries, they were not preventing her from either working or skiing at the time of the accident.
The plaintiff alleges that she sustained a number of injuries as a result of the accident, including injuries to her right hand, left shoulder and left knee. In particular, she suffered a comminuted fracture of the right hamate bone leading to open reduction and internal fixation as well as ulna collateral ligament instability of the metacarpophalangeal joint of the right thumb.
She says she continues to suffer from pain and discomfort in those areas and indeed that she suffers from bilateral shoulder dysfunction. She says she suffers from swelling and sweating of the right hand and has limited pinch and grip strength in the right hand.
She has undergone surgical treatment and had extensive treatment for a period of 12 months following the accident, including treatment from orthopaedic specialists, physiotherapy, hand therapy and chiropractic treatment. She also commenced acupuncture treatment in September 2015.
As at the time of completion of her evidentiary statement on 8 February 2018, she said that she: 1. was having massage therapy treatment on a monthly basis at a cost of $80 per session; 2. was having chiropractic treatment on a fortnightly basis at a cost of $55 per session; 3. was having acupuncture treatment on a monthly basis at a cost of $80 per session; and 4. took medication, including Lyrica, Fluoxetine, Panadol Osteo and Nurofen and Naproxen.
She says that for the six months following her accident she was severely impaired in terms of her ability to use both arms. Further, the injury to her left knee hindered her mobility. For the first eight weeks following the accident, she could not cut up food, feed herself, brush her hair, wash her hair or do anything that required the use of her hands. She regained some mobility at the six-month mark following her shoulder surgery.
She lived with her parents until April 2015 when she returned to her home in Jindabyne. She lived alone but she was provided with domestic assistance by her friends. By July 2015, she realised that she could not cope domestically and she employed a cleaner for a period of two hours per fortnight at a cost of $50. She continues to engage the same cleaner.
She says she has difficulty lifting any heavy items around the house and difficulty making beds, vacuuming, washing, mopping, cleaning windows, cleaning the bathroom and undertaking other heavy domestic tasks.
She says she experiences pain in her right and left hand, right and left wrist and right and left shoulder, particularly after extended periods of driving. She complains of weakness in grip and limitation in the use of her right hand. She also says that as a result of the accident she developed post-traumatic stress disorder and that she suffers from ongoing depression and anxiety. She has suffered from a regional pain syndrome.
In terms of work, as she says in her evidentiary statement, she had commenced her business in Jindabyne 20 months before the accident. She says that she was working 50 hours per week earning approximately $55,000 net per year.
She maintains that she was intending to expand the business. She felt it was growing quickly and she expected to earn significantly more in the future, if not for the accident. She says due to her inability to work in the period following the accident (she did not return to Jindabyne for a period of eight months), she was forced to close the business until 1 June 2015. At that time, she returned to work three days per week, two hours per day.
On 1 July 2015, she commenced an additional business known as Silk Oil of Morocco selling hair and beauty products. She estimates that she spends three hours per week at home working on online orders, marketing and developing the website.
During the period 1 July 2015 until 2018, she continued to increase her work hours. By 1 March 2016, she was working approximately 30 hours per week over 5 days. She then needed surgery on her left knee which caused a further reduction in her working capacity down to 15 hours per week. However, by approximately September 2017, she had returned to work for approximately 21 to 28 hours per week.
As she says in her statement, she intends to continue working as a hairdresser until the age of 67.
There was limited cross-examination of the plaintiff on damages issues. It was put to her that could undertake clerical or administrative work and that she could do some retail work. The fact that she had travelled overseas to the United States in May 2015 and then to Vanuatu in December 2015 was raised with her. It was suggested that she had not mentioned these trips to Dr Peter Klug when she was emphasising her inability to socialise. It was put to her that her PTSD was not such that it would prevent her from going overseas. She said she went overseas despite her PTSD. It was put to her that she had exaggerated her psychiatric symptoms. She disagreed.
The plaintiff relies on expert reports from Dr Klug, Forensic Psychiatrist, Dr John Bentivoglio, Orthopaedic Surgeon, Associate Professor Graham Gumley, Hand Surgeon and Jasmine Grey, Occupational Therapist.
I am also in receipt of extensive medical records from the plaintiff's general practitioner, other treating doctors and St Luke's Hospital and the National Capital Private Hospital.
The defendant relies on reports from Dr Doron Samuell, Clinical and Forensic Psychiatrist, Dr David Maxwell, Orthopaedic and Spinal Surgeon and Associate Professor Allan Meares, Hand Surgeon.
Dr Samuell and Dr Klug met in conclave and prepared a joint report. They gave evidence concurrently. There was some dispute between the doctors relating to some amendments or additions to the joint report by Dr Samuell (followed by a further addendum by Dr Klug). It is unnecessary to comment further on that issue. It seems not to impact upon the plaintiff's entitlement to damages.
Dr Samuell did not consider that the plaintiff suffered from any psychiatric condition. Dr Klug diagnosed post-traumatic stress disorder, recurrent panic attacks and a chronic major depressive disorder.
Having regard to the plaintiff's evidence, as contained in her evidentiary statement, it is difficult to accept the opinion of Dr Samuell. To do so I would need to generally reject the plaintiff's evidence on her psychiatric symptoms. Whilst the fact that she has travelled overseas on holidays might suggest that she is not socially isolated, I do not agree with any proposition (not that it was put in these general terms by Mr Sexton) that the fact of going on holidays is inconsistent with a diagnosis of PTSD or depression.
There may be many reasons why a person suffering from such mental health issues may still feel able to travel or go on holidays, the least of which is a hope of some improvement or need to break the cycle or a determination to find some enjoyment despite the mental health problems.
Further, the plaintiff was first diagnosed with depression in January 2015 and she has received treatment from a psychologist. She has taken Lyrica. There are numerous references to her depressed state in the medical notes and records of the treating doctors.
The conflict does not fall to be determined merely with reference to the reports of the medico-legal experts. Whilst there may be some doubt about the extent of any PTSD, I accept that the plaintiff has suffered from depression and anxiety as a result of her accident. She will need ongoing treatment for those conditions.
Dr Bentivoglio and Dr Maxwell also met in conclave and provided a joint report. They also gave evidence concurrently.
Both Dr Maxwell and Dr Bentivoglio agree that the plaintiff sustained a fractured right hamate, dislocation of the joint between the hamate and the fifth metacarpal and a tear of the ulna collateral ligament of her right first metacarpophalangeal joint. She also sustained a tear of the anterior portion of the left supraspinatus tendon.
Dr Maxwell does not consider that the subsequent development of problems in her left knee is related to the accident, although he accepted that she probably sustained some soft tissue bruising in the left knee.
Dr Bentivoglio acknowledges that the plaintiff had pre-existing chondromalacia patella grade 4 but considers that it became symptomatic upon injury. He also considers the degenerative tear of the medial meniscus may have occurred as a result of the injury.
In terms of her pre-existing conditions, the doctors were in general agreement that she probably did not exacerbate those conditions as a result of the accident.
Further, the doctors agreed that the prognosis for the wrist and hand was good and that the prognosis for the shoulder was reasonable. The major issue related to the treatment for the left knee with only Dr Bentivoglio considering it related to the accident.
Although Dr Maxwell and Dr Bentivoglio gave evidence concurrently, they were not asked any questions on behalf of the defendant. The focus of the questioning on behalf of the plaintiff related to the plaintiff's left knee, her ongoing disability in her right hand and the likelihood of improvement generally and her ability to work longer hours than she is now working.
In my view, Dr Maxwell has an optimistic view of the plaintiff's prognosis, as well as her capacity for work.
Further, having regard to the unchallenged evidence of the plaintiff regarding the history of her left knee problems and her symptoms, I prefer to the opinion of Dr Bentivoglio on the relationship between the left knee problems and the accident.
Associate Professor Gumley and Associate Professor Meares also met in conclave and prepared a joint report. They were not required for any cross-examination. There was really no dispute between them as to the nature of the hand injury suffered by the plaintiff. Their prognosis was guarded. They did not consider that she required any further treatment. They did not consider that her hand injury would itself give rise to a need for domestic assistance.
However, both doctors agreed that her injuries have led to a reduced capacity for work as a hairdresser to 50% of her normal workload and that this would be permanent. Because of her symptoms, she may also have some difficulty in the open labour market.
Their view is contrary to the view of Dr Maxwell who considered that the plaintiff could work at full capacity as a hairdresser. Again, having regard to the evidence of the plaintiff as to her ongoing disabilities and the views of the hand specialist, as well as the opinion of Dr Bentivoglio, I accept that the plaintiff has an ongoing restriction in her capacity to work as a hairdresser.
Further, her capacity to work must be impacted by her ongoing psychiatric issues, albeit I have some reservations about the severity of her PTSD symptoms.
The plaintiff does not pursue a claim that she cannot work. On her own case, she is currently working more hours than the hand specialist suggested she would be capable of.
I accept that as a result of a combination of her orthopaedic and psychiatric conditions, she continues to suffer from a diminution in her capacity to work. I accept that she is doing her best to work the hours she is capable of working at the present time. I do not accept Dr Maxwell's opinion that she suffers from no loss of earning capacity. I do not accept that she will further improve throughout her sixties.
The plaintiff has provided a schedule of damages. For the purposes of narrowing the issues, the defendant has added its own comments to that schedule of damages, setting out the amounts it suggests should be allowed. As I have said, this rather narrows the issues on damages.
I make the following assessment.

[27]

Economic loss

At the time of the accident, the plaintiff was working in her own business as a hairdresser. She had intended to further develop it. She says she would have continued to work as a hairdresser until the age of 67 if not for the accident. There is no suggestion to the contrary.
As I have already identified, the plaintiff returned to work on 1 June 2015. I accept that she was totally incapacitated for work for the period from 16 August 2014 to 31 May 2015. That loss should be calculated on the figure of $867.17 net per week which amounts to $35,553.97.
The plaintiff claims a total amount of $153,627.85 for past economic loss (including the amount above).
I accept that the plaintiff has done her best to work and that she has suffered loss which is difficult to quantify. She has developed a new business selling products online. She has not established that she would have or would be earning any more in that business but for her disabilities.
The tax and other documents produced by the plaintiff allows a comparison of her net earnings from the hair dressing salon with her pre-accident earnings for the years 2016-2019. That comparison does not support the plaintiff's claim for past loss. Her loss compared against a figure of $867 per week would be closer to an average of $10,000-$15,000 per annum.
There is merit in the approach of assessing loss from 2016 on the basis of a percentage reduction of her potential income (as the defendant suggests). However, the defendant's analysis assumes no increase in her likely earnings but for the accident over the past six years. The plaintiff had only commenced her business 20 months earlier. The period of her claim commences at a low base.
I accept her evidence that she had expected to develop the business and this would have involved taking on staff and working longer hours. Further, there must be difficulties for a self-employed person in developing and maintaining a personal service oriented small business when, because of a disability, it is necessary to take time off regularly and not work a full week.
The defendant suggests a figure $346.80 per week (40% of potential earning based $867 per week) for the past but then discounts further on the basis that she could do retail or other administrative work. The defendant thus suggests a figure of $250 per week from 2016 and into the future.
I accept the defendant's methodology but do not accept its figures. In Rabay v Bristow, [30] McColl JA set out the principles which must be applied in assessing loss of earning capacity: "[73] Compensation for loss earning capacity is awarded because of the diminution in an injured plaintiff's earning capacity 'is or may be productive of financial loss': Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 at 347. It is incumbent upon the plaintiff to prove the loss for which compensation is claimed (Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412) but, conversely, it is not incumbent upon the injured plaintiff to prove what employment he or she 'is not incapacitated from performing'. It is for a defendant which contends that the plaintiff has a residual earning capacity to adduce evidence of what the plaintiff is capable of doing and what jobs are open to such a person: H Luntz, Assessment of Damages for Personal Injury and Death (4th Ed) at 118 [1.9.20]."
The defendant has not adduced any evidence that would support its assertion of a residual earning capacity based on the plaintiff's ability to obtain other employment.
On the basis that I accept that the plaintiff would increase her earnings by at least 10% and that her claim should not be further discounted in the manner suggested by the defendant, I allow a figure of $420 a week by way of diminution of earning capacity from 2016 onwards.
Allowing 4 years for the past amounts to $87,360.
Applying a multiplier of 345.6 (8 years) with a 15% discount on account of vicissitudes amounts to $123,379 for the future.

[31]

Endnotes

(2017) 96 NSWLR 503; [2017] NSWCA 311 at [5].
Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208 at [107] (Basten JA).
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW) Sch 1.
[2020] NSWCA 65.
[2020] NSWCA 152.
[2020] NSWCA 185.
[2020] NSWCA 263.
[2013] NSWCA 38.
Harris v Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2011] NSWDC 172 at [139].
See, for example, Perisher Blue Pty Ltd v Nair-Smith (2015) 90 NSWLR 1; [2015] NSWCA 90; Perisher Blue Pty Ltd v Vidakovic [2006] NSWCA 234; Day v Perisher Blue Pty Ltd [2005] NSWCA 110.
(2006) 65 NSWLR 418; [2006] NSWCA 32 at [73].
[2014] NSWCA 129 at [116].
(2015) 91 NSWLR 752; [2015] NSWCA 320 at [119].
Menz at [48], Singh at [211]; Carter at [98]-[99]; Tapp at [61]-[81].
See also Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263 at [143].
Menz at [42]-[79].
At [49] (Basten JA, Payne JA agreeing), [136] (Leeming JA, Payne JA agreeing), [150] (Payne JA), [195] (McCallum JA and Simpson AJA).
At [74] (Payne JA, Basten JA agreeing), [151] (McCallum JA).
[2019] NSWSC 1848.
[2015] NSWCA 260; 209 LGERA 220.
Coffs Harbour City Council v Polglase [2020] NSWCA 265 (Leeming JA, Basten and Macfarlan JJA agreeing).
[2013] NSWCA 128 at [27] (Basten JA, Hoeben and Ward JJA agreeing).
Motorcycling Events Group Australia Pty Ltd v Kelly (2013) 86 NSWLR 55; [2013] NSWCA 361 at [29].
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355.
[2020] HCA 17; 377 ALR 209 at [38].
(2014) 226 FCR 471; [2014] FCAFC 155 at [52]-[53] (Allsop CJ, Mansfield and Middleton JJ).
See also Tapp at [121]-[122] (Payne JA); Scenic Tours Pty Ltd v Moore [2018] NSWCA 238; 361 ALR 456 at [168] (Sackville AJA).
(1991) 31 FCR 242 at 262.
[1967] 3 All ER 57; [1967] 1 WLR 898.
[2005] NSWCA 199 at [73]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 November 2020

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