Perisher Blue Pty Limited v Harris

Judgment 1BEAZLEY JA: I agree with Young AJA. 2SACKVILLE AJA: I have had the advantage of reading the judgment of Young AJA in draft. I agree with the orders proposed by his Honour. 3Mr Maconachie QC, who appeared with Mr Montgomery for the appellant, identified what he submitted were two "fundamental" errors made by the primary Judge on the question of liability. 4Mr Maconachie's first contention was that the primary Judge had worked backwards from the "dramatic nature" of the event and impermissibly inferred that the Plaintiff's injuries must have been caused by the appellant's failure to take reasonable measures to negate the danger created by the ditch located in the possible path of beginner skiers. This contention was said to be supported by his Honour's finding (at [127]) that there was a ditch of sufficient depth and width to cause the Plaintiff to be thrown into the air. 5It is not entirely clear whether the argument was that the primary Judge had impermissibly reasoned "backwards" in order to make a finding of negligence or had done so in order to find that the appellant's negligence caused the injuries sustained by the Plaintiff. Whatever was intended, I agree with Young AJA that the submission was largely based on a misreading of the judgment and, in particular, of the paragraph at [127]. 6In that paragraph, the primary Judge was answering the question he had posed earlier in the judgment (at [126]), namely whether there was indeed an obstacle on the beginners' slope of the kind alleged by the Plaintiff. His Honour answered the question in the affirmative and that finding was not in dispute on the appeal. He dealt separately with the questions of whether the appellant had been negligent (at [129]-[135]) and, if so, whether the negligence had caused the Plaintiff's injuries (at [136]-[137]). 7I do not think it is correct to say, as Mr Maconachie submitted, that the primary Judge simply assumed that because the Plaintiff was injured by coming to grief at the ditch, the appellant must have been negligent in failing to obviate the risk created by the ditch. There was evidence, for example from Mr Feakes, a ski instructor who gave expert evidence, to the effect that a ditch of the kind encountered by the Plaintiff presented a hazard to beginners and that a ski operator should have taken precautions against the risk of harm it presented. Mr Maconachie pointed out, no doubt correctly, that ski fields can present all manner of hazards to skiers, particularly beginners. Nonetheless, there was evidence supporting the primary Judge's finding that a reasonable person in the appellant's position would have taken precautions against the particular risk created by a hazard of this kind on the Green slope. 8In finding that the appellant had been negligent, in my opinion his Honour adequately addressed the issues identified by s 5B of the Civil Liability Act 2002 ("CL Act"). In determining what precautions a reasonable person would have taken against a risk of harm, his Honour did not commit the error of undertaking the inquiry in hindsight: cf Neindorf v Junkovic [2005] HCA 75; 80 ALJR 341, at [93] per Hayne J. He addressed the question independently of his knowledge of the fact that the Plaintiff had been injured when he came in contact with the ditch: cf Neindorf v Junkovic, at [97]. Similarly, the primary Judge's analysis of causation, whatever other issues it raises, did not proceed from the fact of injury and reason "backwards" in the manner attributed to him by Mr Maconachie. 9The second "fundamental" error identified by Mr Maconachie was that the primary Judge incorrectly analysed the question of causation. Mr Maconachie submitted that his Honour failed to consider whether the Plaintiff would have avoided injury even if the appellant had implemented the measures his Honour thought should have been taken to avoid or minimise the risk. 10In this connection, it is necessary to bear in mind ss 5D and 5E of the CL Act. They provide as follows: "5D General principles (1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability). (2) In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. (3) If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent: (a) the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and (b) any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest. (4) For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party. 5E Onus of proof In proceedings relating to liability for negligence, the Plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 11As the High Court explained in Adeels Palace Pty Ltd v Moubarak [2009] HCA 48; 239 CLR 420, at [42], per curiam, s 5D(1) divides the determination of whether negligence caused particular harm into two elements: factual causation and scope of liability: see also Strong v Woolworths Ltd [2012] HCA 5; 285 ALR 420 at [18]-[19], per French CJ, Gummow, Crennan and Bell JJ. Factual causation is to be determined by the "but for" test: but for the negligent act or omission, would the harm have occurred? Subject to the "exceptional case" provided for in s 5D(2), factual causation is a necessary element of a determination that negligence caused a particular harm. In other words, unless s 5D(2) applies, a plaintiff must establish, on the balance of probabilities, that but for the defendant's negligence, the harm would not have occurred: Adeels Palace, at [45], [53]. 12In this case, as in Adeels Palace (at [46]), the primary Judge's reasoning on the question of causation was not fully articulated. His Honour found that in view of the foreseeable risk of harm created by the existence of the ditch on the Green slope, a reasonable person would have taken precautions to guard against the risk. He said (at [134]) that the "precautions available here could reasonably include" any one of three available steps. These were: (a) placing a barrier around the ditch; (b) filling in the ditch with snow; and (c) relocating the lesson to a different part of the Green slope. 13The primary Judge made no finding (and apparently was not asked to make any finding) as to what the appellant in fact would have done had it properly carried out an inspection of the beginners' area before the day's lessons commenced. He appears to have proceeded on the basis that a reasonable person in the position of the appellant would have guarded against the risk by taking any one or more of the three steps he identified. 14In Bolitho v City and Hackney Health Authority [1998] AC 232, the House of Lords held that a plaintiff establishes that a breach of duty has caused harm by showing on the balance of probabilities that the defendant, had it not breached its duty of care: (a) as a matter of fact would have taken a particular step that would have avoided the harm; or (b) should have taken a particular step that would have avoided the harm. 15The facts in Bolitho were that a hospital doctor was negligent because she failed to attend a critically ill child when called by nurses. The child's life could have been saved had the doctor attended and performed a particular procedure (intubation). The doctor concerned gave evidence, which the trial Judge accepted, that had she attended the child she would not have performed an intubation. The trial Judge also found that it would not have been unreasonable for an attending doctor not to have performed an intubation notwithstanding that, as events transpired, the procedure would probably have saved the child's life. 16The House of Lords held that the plaintiff would have established causation if: (a) the doctor concerned in fact would have performed an intubation (even though she would not have been negligent had she elected not to do so); or (b) the proper discharge of the attending doctor's duty would have required her to perform an intubation. See [1998] AC 232, at 239-240, per Lord Browne Wilkinson (with whom Lords Slynn, Nolan, Hoffman and Clyde agreed). Since the plaintiff had not shown either (a) or (b), she failed to establish causation. 17In South Eastern Sydney Area Health Service v King [2006] NSWCA 2, the Court approved what it described as the "first alternative accepted in Bolitho", while expressing no opinion as to whether the second alternative is part of the law of causation in Australia: at [51], per Hunt AJA (with whom Mason P and McColl JA agreed). 18In New South Wales, the question of causation is now governed by ss 5D and 5E of the CL Act: Adeels Palace at [41]. In both High Court cases that have considered the question of causation under s 5D(1)(a) of the CL Act, the approach has been to inquire what probably would have occurred had the negligent party taken the action a reasonable person would have taken to avoid or minimise the risk. In Adeels Palace, the question was whether, had a function centre engaged security staff (the failure to do so constituting the breach of duty found by the trial Judge), the plaintiffs would not have been shot by an enraged participant in a violent fight that took place on the premises. In Strong v Woolworths, the plaintiff was injured when she slipped on a potato chip left on the floor near a food court. The negligence consisted of the failure to institute a proper system of periodic inspection of the premises. According to the High Court, the question on the issue of causation was whether, if the occupier had such a system in place on the day of the accident, it was likely that the errant chip would have been detected and removed before the plaintiff slipped on it and injured herself. 19In each of Adeels Palace and Strong v Woolworths, the action required to avoid a relevant breach of duty was clearly identified and provided the basis for a factual determination as to whether the plaintiff had discharged the burden of proving that, but for the breach, the plaintiff would not have suffered the harm. In the present case, the primary Judge appears to have found that appellant would have avoided breaching its duty of care by taking any one of three identified steps. As I have noted, no finding was made as to which of the three alternative steps the appellant would have actually selected had it carried out a proper inspection of the beginners' slope. Nor was this Court asked to make such a finding. 20In these circumstances, there is a question as to whether or not the Plaintiff had to show that the accident would have been avoided regardless of which of the three measures identified by the primary Judge the appellant (hypothetically) would have taken, had it acted reasonably. As the issue was not debated, I propose to assume, without deciding, that the Plaintiff must show that each of the three measures, if taken separately and independently of the others, would have avoided the risk that a beginner on the Green slope would be injured by skiing into the ditch. 21Had the group that included the Plaintiff been taken to a different part of the Green slope, the likelihood is that the Plaintiff would not have encountered the ditch. The primary Judge so found (at [137]) and no basis has been shown for challenging that finding. It is true that the Plaintiff might still have lost control on his downhill run. But since (on the hypothesis I am now considering) the group would have been taken to a different part of the slope precisely to avoid the ditch, the likelihood is that, even if the Plaintiff lost control, he would not have traversed the mound or the ditch. Whether the Plaintiff would have encountered an entirely different obstacle while out of control on the Green slope had he started further away from the ditch is purely a matter of conjecture. 22The primary Judge did not make an express finding as to the likely effect had the appellant "groomed" the slope by filling in the ditch with snow before the lesson commenced. However, there is little reason to doubt that if that precaution had been taken, the Plaintiff would not have come to grief when he reached the ditch. The two metre patch would have been smoothed over and the strong likelihood is that he would not have encountered any particular difficulty at this point. 23The third alternative found by the primary Judge - the erection of a barrier - is not quite so straightforward. The primary Judge found (at [136]) that if a "barrier" had been placed around the ditch, the Plaintiff: "may have suffered injury going into material used to fence off the obstacle but this is unlikely to have resulted in the severe injury that he suffered as a result of going into the ditch." His Honour did not elaborate on the nature of the (hypothetical) barrier or its precise location in relation to the ditch. 24The primary Judge's finding that one way for the appellant to have satisfied its duty of care was to erect a barrier seems to have been based on the evidence of Mr Milford and Mr Feakes. Mr Milford, a safety compliance manager for the appellant, said that the task of the ski patrol each morning was to check the area over. If there were any "issues", they would "mark them, fence off, put out slow signs, put out warning signage, such like". Mr Feakes stated that a ditch of the dimensions of the one present on the day of the accident, would be a hazard for an inexperienced skier. He said that if a hazard was sufficient: "to present a problem for anybody using that slope, then it should be marked as a hazard, and there are people and procedures to do that." 25Although the issue was not explored further with these witnesses, both seemed to assume that barriers or warning signage clearly indicating a hazard such as a ditch, were likely to be effective in preventing even beginners coming to grief. Mr Maconachie countered this by submitting that, since the Plaintiff was out of control, even a barrier or warning signs visible from some distance would not have prevented him from careering at speed into the ditch. 26However, as Mr Seton SC pointed out in his submissions in behalf of the Plaintiff, the dimensions of the ditch were relatively small and there was evidence that the existence of a barrier or warning signage would have allowed the Plaintiff to avoid the particular danger it constituted. The Plaintiff said in his evidence that the only time he attempted to turn was when he noticed the ditch in front of him, but by then it was too late to avoid the hazard. Prior to that time he had not endeavoured to turn because, although he was travelling at speed, he felt that he was "quite steady". The obvious inference from the Plaintiff's evidence is that had he realised earlier that he was approaching a hazard, he would have attempted to execute his "understanding of a turn" and probably would have avoided the hazard. That he would have taken some sort of evasive action as soon as he realised he was approaching a hazard is supported by his evidence that, as he came over the mound and saw the ditch, he thought his best chance of avoiding a fall was simply to sit down and halt his momentum. 27Although the evidence is sketchy, I think it supports the inference that had a barrier or clear warning signs been erected around the ditch, the likelihood is that the Plaintiff would have been able to avoid it, notwithstanding his loss of control over the speed of his descent. To comply with its duty of care, any barrier or warning sign erected by the appellant would have had to be of sufficient dimensions to be observable by a beginner well before he or she arrived at the mound in front of the ditch. Had these actions been taken, the Plaintiff would probably have been able to avoid the accident that befell him. 28For these reasons I do not accept that the primary Judge erred in finding that the appellant's negligence caused the injuries sustained by the Plaintiff. 29The other issues addressed by Mr Maconachie in his oral submissions were damages and costs. In substance I agree with Young AJA regarding the arguments advanced by the appellant on these issues, and by the Trustees in relation to costs. 30YOUNG AJA: This is an appeal from a decision of the District Court of New South Wales (Elkaim SC DCJ) awarding the first respondent ("the Plaintiff") damages for personal injuries. 31The proceedings arose out of a skiing accident which occurred at the Perisher Ski resort in the Snowy Mountains on 29 July 2006. The Plaintiff was a school student on an excursion to the resort. He sustained serious injuries when, in the course of a beginners' skiing lesson, he failed to negotiate a "ditch" located towards the bottom of the beginners' slope. He somersaulted forward and was injured when he landed heavily on his back. 32The Plaintiff sued the appellant, the second defendant below, the operator of the ski resort. He also sued the second respondents ("the Trustees"), the first defendants below, who conducted the school at which the Plaintiff was a Year 10 student at the time of the accident. The school, Penshurst Marist Brothers School ("PMBS"), organised the three day excursion to the ski resort in which the Plaintiff participated. 33The Plaintiff relied on a number of causes of action, some of which were abandoned in the course of the nine day hearing before the primary Judge. As reformulated during the trial, the Plaintiff's claim against the appellant rested on its alleged negligence in failing to take adequate precautions to prevent injury to beginner skiers by reason of the difficulty they would confront in negotiating the ditch. 34The Plaintiff abandoned all allegations of primary negligence against the Trustees. However, the Plaintiff contended that the Trustees were nonetheless liable because they breached their non-delegable duty to the Plaintiff to ensure that reasonable care was taken for his safety during his ski lessons. 35The Trustees filed a cross-claim in which they sought an indemnity or a contribution from the appellant in respect of any damages for which they were found liable to the Plaintiff. 36The primary Judge upheld the Plaintiff's damages claim in negligence against the appellant. He also held the Trustees liable to the Plaintiff by reason of the breach of their non-delegable duty of care. 37His Honour gave verdict and judgment for the Plaintiff against the appellant and the Trustees in the sum of $308,768.94. On the cross-claim, the appellant was ordered to indemnify the Trustees in respect of the whole of their liability, including costs, to the Plaintiff. The appellant was also ordered to pay the Trustees' costs of the cross-claim. 38After receiving further submissions, the primary Judge made the following orders as to the costs of the principal proceedings: (1) Subject to Order 2, the appellant and the Trustees pay the Plaintiff's costs of the proceedings, such costs to be assessed on an indemnity basis from 21 October 2011. (2) Each party pay his, its or their own costs in respect of the first four days of the hearing (9-12 August 2011). (3) The appellant pay the Trustees' costs of the proceedings from the date of the Trustees' joinder (14 April 2010), such costs to be assessed on an indemnity basis from 26 July 2011.