//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2013] NSWCA 38
Court of Appeal (NSW)
2012-11-07
Beazley JA
Original judgment source is linked above.
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.
Background Facts 39The Plaintiff was born in 1990. In 2006, he was a year 10 student at PMBS. At the time of the injury, he intended to complete years 11 and 12 and thereafter to qualify as a plumber. 40In early 2006, the parents of students at PMBS were invited to pay a deposit to reserve a place for their children to participate in a three day excursion to the snowfields to take place from 28 to 30 July 2006. Ultimately, the Plaintiff was one of about 50 students who enrolled for the excursion. They were accompanied by nine teachers. 41On 29 July 2006, the students arrived at the Perisher Resort and went to an area known as Smiggin Holes. The area is commonly used for skiing lessons, as it has gentle slopes and an open apron. Although there are specific "runs" graded for difficulty, they tend to merge towards the bottom of the slope. 42The Plaintiff was one of a group of ten students assigned to an instructor. The lesson took place on a slope graded as "Green", the most benign classification for a ski slope in the area. His Honour accepted (at [89]) evidence that the Green classification took into account both the gradient of the slope and the absence of any obstacles in the path of skiers. According to Mr Feakes, who gave expert evidence, the run was about half a half a kilometre long. It varied in width, being about 40 metres at the top, but widening considerably towards the bottom of the slope. 43The group was given instructions on the "basics" of skiing for about half an hour. The instructor then took the group about 50 metres up the slope, using a T-bar to ascend. At that time, as the primary Judge found (at [94]), the snow depth was shallow and the terrain was covered mostly with man-made snow. 44Once the students gathered on the slope, the instructor asked them to ski down the hill. Their descent, at about 10am, was to be the first of the day on that slope. 45The Plaintiff set off down the slope with the instructor behind him. According to the Plaintiff, he made some turns and then found himself going straight and picking up speed. He tried to slow himself down but could not do so. As his speed increased, he apparently veered to the right. 46The Plaintiff saw a mound ahead of him, about half a metre high and two to three metres wide. He went over the mound and then saw a ditch about 20 metres ahead. He realised he could not negotiate the ditch and so sat back on his skis. This made him go even faster and he caught one of his legs in the ditch and "flipped" over, landing on his back. 47The Plaintiff sustained crush fractures involving the upper aspect of the L1 and L2 vertebral bodies. He spent a total of 26 days in hospital. 48The Plaintiff returned to school in mid-October 2006 and sat the final examinations. However, he did not do well and decided to leave school after Year 10. 49At the date of the trial the Plaintiff was working approximately 20 hours per week as a barman, earning about $400 net per week.
The Ditch 50The primary Judge found (at [37]) that Mr Morris, a fellow student who witnessed the incident, was a very impressive witness. His Honour accepted Mr Morris' evidence that the Plaintiff had gone into the ditch and had been propelled forward, in effect performing a forward somersault and landing on his back. 51Mr Morris described the ditch as "circular and environmental", with a diameter of two metres. His Honour took (at [39]) the reference to an environmental ditch to mean that it was a natural feature of the slope, as opposed to a constructed depression. His Honour accepted (at [40]) that the ditch "must have been of some substance" to have caused the Plaintiff to fall as he did.
The Primary Judgment 52The primary Judge rejected the Plaintiff's claim insofar as it was based on an alleged failure of the ski instructor to give the Plaintiff adequate instructions. His Honour concluded (at [125]) that if there was an act of negligence, it had to arise from the appellant allowing a ski class to be conducted in an area in which there was a dangerous obstacle. 53The primary Judge was satisfied (at [127]) that there was a ditch of sufficient depth and width to cause the Plaintiff to be thrown into the air and land on his back. His Honour was also satisfied (at [128]) that some metres in front of the ditch (when proceeding downhill) there was a mound created not by snow but by the underlying terrain. 54The primary Judge stated (at [129]) that in applying s 5B of the Civil Liability Act 2002 ("CL Act") it was important to bear in mind that the skiers in the beginners class were inexperienced. The area devoted to skiers should not be one: "where they are likely to encounter obstacles which their experience would not allow them to negotiate. This is all the more so when they are under the tutelage of a ski instructor..." 55His Honour observed (at [130]) that the fact that the area had long been used for beginners without any accidents might have carried a great deal of weight in some circumstances. However, the surface of a ski slope was different (at [131]-[132]): "Firstly, it changes every day depending on the snow conditions. Secondly, it is subject to preparation by grooming machines which, amongst other effects, tend to even out the surface. The fact that there is a pronounced mound and then a ditch on one day does not necessarily mean that it was present the day before or even the day after. This is, no doubt, the very reason why the ski fields were inspected on a daily basis. There is no evidence, however, that this occurred on the day of the Plaintiff's accident other than that it was the normal course. The absence of this evidence is important...I could not, of course, conclude that there had been no inspection on that day. I do, however, think it is open for me to find that a dangerous ditch and mound existed, which a proper inspection would have identified. ... [T]he Area Manager and the ski patrol apparently did not see the ditch earlier in the day. If they did see it then clearly nothing was done about it." 56The primary Judge found (at [133]) that the presence of a ditch on a beginners' slope (especially below a mound) created a risk of injury. That risk was foreseeable and not insignificant, particularly as a person falling while skiing is always prone to serious injury. 57In his Honour's view (at [134]), identification of the risk would have led a reasonable person to take precautions: "The precautions available here could reasonably include the following: (a) Placing a barrier around the ditch. (b) Filling in the ditch with snow so as to even out its effect. (c) Simply not conducting lessons in an area proximate to the obstacle. I appreciate that the Plaintiff may have skied away from the group (to the right) but nevertheless he remained in the area devoted to beginners." 58His Honour then said (at [135]): "Lest there be any doubt, the negligence I have identified is the carrying out of a lesson in an area in which there was an obstacle beyond the capacity of a beginner to deal with. The negligence includes both the failure to identify the obstacle, or, if it was identified, to not take action to negate the possible danger created by the obstacle." 59Having found the appellant to have been negligent in failing to take precautions against the risk of harm, the primary Judge considered whether the appellant's negligence had caused the Plaintiff's injury, as required by s 5D of the CL Act. His Honour accepted (at [136]) that had there simply been a marker on the obstacle, it would have made no difference to the Plaintiff because he was out of control at the time he encountered the ditch. Nonetheless, the Plaintiff had established causation (at [136]-[137]): "...had the precautions I have suggested above been taken then the accident would not have occurred. 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. More particularly, had he not been skiing in the area he would not have been in the position to encounter the ditch. I am therefore satisfied that but for the presence of the ditch, which was or ought to have been known to the [appellant], the Plaintiff's injury would not have occurred. I am further satisfied that the Plaintiff encountering the ditch was caused by the failure of the [appellant] to identify the ditch and to take precautions to prevent the Plaintiff from being in a position to come across the ditch in the course of his lesson." 60The primary Judge rejected the appellant's contention that it should escape liability on the ground that harm suffered by the Plaintiff was from "obvious risks of dangerous recreational activities" within the meaning of s 5L of the CL Act. His Honour accepted (at [139]) that the Plaintiff was engaged in a dangerous recreational activity. However, he found (at [144]) that the harm was not "a result of the materialisation of an obvious risk of a dangerous recreational activity" and thus s 5L(1) of the CL Act was not satisfied. His Honour found (at [143]) that the ditch was "more than an undulation" and, more importantly, that a reasonable person in the Plaintiff's position would not regard the presence of the ditch in an area devoted to beginners as "obvious". His Honour's finding, in summary, was (at [145]) that: "if the Plaintiff had lost control and fallen over, or fallen due to an undulation in the surface, or even simply fallen over, and been injured, that would have been the materialisation of an obvious risk. But skiing into a ditch on a beginners' slope is quite different. This is the materialisation of a risk that is far from obvious." 61For these reasons, his Honour concluded (at [150]) that the appellant was liable in damages to the Plaintiff. The Trustees were also liable because of the breach of their non-delegable duty of care to the Plaintiff. Since the negligence was entirely the responsibility of the appellant, the Trustees were entitled (at [153]) to a full indemnity from the appellant in respect of their liability to the Plaintiff. 62The principal components of the primary Judge's award of damages of $309,768.94 were non-economic loss ($171,500) and future economic loss ($81,268.50). The latter award was based on a loss of earnings of $100 per week to age 67, subject to applying the five per cent tables and allowing 15 per cent for the vissicitudes of life.
Grounds of Appeal 63The appellant appealed from the whole of this decision on 11 grounds pursuant to s 101(1) of the Supreme Court Act 1970. The grounds of appeal in its Further Amended Notice of Appeal can be summarised as follows:
Appeal Grounds 1 and 2 - The Ditch 64The appellant contends that it is speculative to attempt to deduce the dimensions of the ditch from the fleeting observations of an out-of-control skier. His Honour, according to the appellant, came to conclusions unsupported by the evidence.
Appeal Grounds 3 and 4 - The Morning Inspection 65At trial the appellant claimed that it had a practice of inspecting the ski runs every morning. Evidence was led from a Mr Milford to this effect. The primary Judge found that the appellant, with proper inspection, would have identified the ditch. However, the appellant contends on the appeal that this conclusion is not supported by particulars or evidence. Essentially, the appellant says that his Honour relied on inferences unsupported by the evidence in coming to this conclusion.
Appeal Grounds 5 and 6 - Characterisation of Risk and the Application of s 5B Civil Liability Act 66Section 5B of the CL Act requires characterisation of a risk before the provisions can operate. The appellant claims that the relevant risk was either falling over or getting out of control and falling over. The primary Judge, however, found that the relevant risk was the presence of a ditch on a beginners' slope and that the risk was both reasonably foreseeable and not insignificant. The appellant disputes this finding on the ground that there was no evidence to suggest that the risk was reasonably foreseeable. 67The appellant also claims that the learned trial judge failed to consider the provisions of s 5B(2) of the CL Act as he was required to do.
Appeal Ground 7 - Causation 68The appellant contends that the primary Judge's reasoning was not fully articulated in respect of causation and that, in any event, his Honour's conclusions were not supported by the evidence. The appellant submits that for the Plaintiff to have succeeded, he had to establish on the balance that more probably than not, but for the failure to take precautions identified by the trial judge, the harm suffered would not have occurred. Those precautions are erecting a barrier around the ditch, filling in the ditch with snow and not conducting lessons in an area in which there was such an obstacle.
Appeal Ground 8 - ss 5F and 5L Civil Liability Act - Obvious Risk 69The appellant's primary defence at trial relied on s 5L of the Act, there is no liability for harm suffered which materialises from obvious risks of a dangerous recreational activity. The appellant contends that the learned trial judge erred by over-intensifying the character of the relevant risk.
Appeal Ground 9 - Adequacy of Reasons Regarding Breach, Causation and the Applicability of s 5L Civil Liability Act 70The appellant contends that the primary Judge failed to give sufficient reasons for his conclusions in relation to breach, causation and the applicability of s 5L of the CL Act.
Appeal Ground 10 - Damages 71On this point the appellant's main conclusion is that the sum awarded in respect of future economic loss is not consistent with the findings of fact.
Appeal Ground 11 - Costs 72The appellant submits that the Plaintiff should have been ordered to pay the appellant's costs of the trial as he failed to comply with the dictates of s 56 of the Civil Procedure Act 2005.
Notice of Contention 73The Plaintiff filed a notice of contention. He contends that the primary Judge should have found that the specific recreational activity in which the Plaintiff was engaged on the beginners' slope was not a "dangerous recreational activity" within the meaning of s 5K of the CL Act.
Cross-appeal 74The Plaintiff filed a cross-appeal challenging the costs orders insofar as they required each party to pay his, its or their own costs of the first four days of the hearing.
Reasoning 75The appeal was heard on 7 November 2012. Mr J Maconochie QC and Mr R Montgomery of counsel appeared for the appellant, Mr R W Seton SC and Mr M Maxwell of counsel appeared for the first respondent and Mr J Keesing of counsel appeared for the second respondent. 76Mr Maconochie's oral address put that the issues on the appeal could be considered under three heads, viz, (1) Causation; (2) Damages; and (3) Costs. 77I believe that the grounds of appeal can be dealt with under these three heads and will consider them in that way. 78As to causation, Mr Maconochie submitted that the primary Judge had erroneously reasoned backwards from event to cause. 79He pointed to [127] of the judgment where the primary Judge said that he was satisfied that there was a ditch of sufficient depth and width to cause the Plaintiff injury. 80However, when one reads the judgment as a whole, [127] was not an ultimate finding. The primary Judge at [125] identified the area he needed to examine in order to find negligence if there was any. The first step in that process was to consider as a matter of fact whether there was a ditch. That was what he was dealing with at [127]. 81Properly read in context, I can see no force in the proposition that the primary Judge was reasoning backwards. 82Then Mr Maconochie says that the simple facts were that the Plaintiff was out of control coming down a slope and hit a natural piece of ground that was slightly depressed and fell. The depression was not any different to any other slight hazard one might find on a ski field. After all, the ski field is just snow overlaying natural ground which of its very nature is uneven. 83The mound and the so-called ditch were not of such dimensions that they ought not reasonably be on a ski field and there was nothing unreasonable about them being left on the field. 84With respect, this oversimplifies the position. 85As noted earlier, the primary Judge found that if there was a proper inspection it should have found and identified the danger in the ditch in question. A reasonable person would consider the presence of a ditch on a beginners' slope as creating a foreseeable and not insignificant risk of injury. Despite arguments that could be put against that proposition, it was one which was well within the primary Judge's mandate to make. 86Then Mr Maconochie puts that the primary Judge erred in [137] where he said that had the Plaintiff not been skiing in the particular area and encountered the ditch, the accident would not have occurred. The primary Judge held that the Plaintiff's encountering the ditch was caused by the appellant's failure to identify the ditch and to take proper precautions to prevent the Plaintiff from coming across it. 87Mr Maconochie puts that there was no evidence to show that there was any place for beginners on the ski field that was safer than where he was. He expanded this to put that wherever the Plaintiff had skied, there would have been some natural obstacle which an out-of-control skier would have hit. 88That is pure supposition. Of course, there are natural hazards (and some artificial hazards) on a ski field. However, that is why the inspection system is in place to at least warn skiers of any such hazards which are foreseeably likely to bring about injury. 89Again, with respect, this is too negative a way of looking at the case. The appellant was in the business of providing facilities for skiing including beginners. It instituted a system of inspecting the ski field for hazards each morning before any skiing was permitted. There was in fact a hazard (whether naturally occurring or artificial appears to be of no moment) which the primary Judge within his mandate found that a reasonable person would foresee could cause not insubstantial injury and nothing was done about it. This was causative of the Plaintiff's injury. Alternatively the inspection process was faulty and one gets to the same result. 90This proposition is not answered by saying that the Plaintiff needed to show that there was in fact some other place on the ski field which was safer for beginner skiers or that there was no evidence that there was no safer place.
Was the failure noted above causative of the accident? 91The primary Judge said that the appellant could have (a) placed a barrier around the ditch, (b) filled in the ditch with snow or (c) not conducted lessons in the area. 92Probably (a) should be expanded to say that the appellant alternatively should have put some marker warning of the hazard. 93Mr Maconochie puts that no marker or barrier would have made any difference to a skier who was out of control. That may be so, but is not necessarily so. 94Indeed the Plaintiff's evidence at Black 230-1 suggests that there would have been some value even in a marker. He said that even though he was out of control he was steady and going straight. He felt he would have made it to the bottom of the slope though at an incredibly fast speed. Had he had an earlier awareness of the hazard he would have made the choice to sit down and lessened the risk of serious injury. 95Again, as Mr Seton submitted, a warning marker or pitchforks embedded in the snow with tape would also have alerted the instructor to the danger. 96As to filling the ditch with snow, Mr Maconochie says that there was no evidence to show that this was feasible and, indeed, there was no substantial evidence as to the depth of the ditch. 97There is some force in this submission, but it does not overcome the real possibility of a reasonable person at least asking himself or herself whether, if it were not possible to fill the ditch, there should be no skiing near it. 98The basic problem for the appellant is that it put a novice skier in an area where there was the ditch and it either failed to conduct a proper pre-ski inspection or else failed to take note of the findings of the inspection team by doing one of or more of (a)-(c) above. In either case, it is not what a reasonable person would have done in the circumstances. 99Although Mr Maconochie made much of it, I do not consider that it is a vital matter that either the Plaintiff was out of control or that by veering to the right the Plaintiff was perhaps 150 yards from where he was expected to be (neither would be considered to be a unique experience). 100The appellant cavils with his Honour's characterisation of the relevant risk. Under s 5B of the Civil Liability Act 2002 the Court is required to identify the relevant risk before applying the provisions of that section: Novakovic v Stekovic [2012] NSWCA 54 at [37]. 101Section 5B reads as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm. 102The learned trial judge identified this risk as "the presence of a ditch on a beginners' slope (especially below a mound) [which] creates a risk of injury". Whilst the appellant submits that the risk should be characterised as either falling over whilst learning to ski or getting out of control and falling over learning to ski, I do not think that the trial judge erred in characterising the risk in such a manner, for the following reasons. 103There is a risk that a novice skier will get out of control and proceed at a pace which makes it likely that he or she will not be able to manoeuvre or stop. One must ask whether it was reasonable to foresee that that situation could lead to not insignificant injury unless precautions were taken and that it was reasonable to take those precautions. 104I was at first slightly troubled by the trial Judge's apparent oversight regarding s 5B(2). The appellant contends that the trial Judge erred in not considering the provisions of this sub-section. The first respondent submits that his Honour had regard to them sub silentio. 105The statute sets out a mandatory process for the courts to follow. First, the court must find that a person did not take precautions. Secondly, the Court must determine whether a reasonable person would have taken precautions in those circumstances. In order to make a conclusion on this point the Court must have regard to the items in s 5B(2). This is not an exhaustive list, as shown by the words in parentheses; however, the Court must have regard to them. 106Whether or not the learned trial Judge considered the issues contained in s 5B(2) is not explicitly stated in his Honour's judgment. However, in considering his Honour's judgment as a whole I have concluded that his Honour did have regard to the provisions of s 5B(2) in coming to the conclusion that the appellant was negligent. 107This is apparent from the trial judge's reasons concerning the morning inspection. Clearly the appellant had a system of inspecting the beginners' slope in place. No evidence was led of an actual inspection being undertaken on the day of the incident; only evidence that a system was in place was presented to the Court below. I find it difficult to cavil, therefore, with his Honour's view that a proper inspection on the morning of the incident would have revealed a ditch, which would have proved a risk to the safety of beginner skiers. 108The one area in which the legislative requirements and his Honour's judgment may be at odds is where the trial judge considered that a precaution that a reasonable person would have taken in the position of the appellant would be to move the beginners' lesson away from that area. There is no material to support such a conclusion made after consideration of the provisions in s 5B(2). However, this is not fatal to the trial Judge's reasons and the appeal would still fail. 109Accordingly, the appeal fails on the causation/liability aspect. 110Turning now to damages, the short point is that Mr Maconochie says that the evidence does not support the finding that the Plaintiff had a permanent serious back injury. Further, even if that was the case, an award of $100 per week was unsupportable. 111The appellant says that the mere fact that the injury is permanent cannot assist the Plaintiff as no damages may be recovered for loss or diminution of earning capacity unless the loss or diminution is or may be productive of financial loss. The general proposition is accepted but the fact that an injury is permanent means that there needs to be compensation for its long-term effect if it is likely to continue to produce loss. 112Mr Maconochie points out that at [171] the primary Judge found that the Plaintiff was likely to utilize his full capacity in due course and perhaps also better his position by entry into a more remunerative trade. Yet, despite this, he awarded $100 per week until the Plaintiff attained 67. 113Mr Seton says that the award was fully justified. The evidence showed that the Plaintiff could not ever be a plumber as he had planned. The primary judge accepted that the Plaintiff had a reduced earning capacity which was permanent but did not consider that to date the Plaintiff had been fully exercising his reduced earning capacity. However, the sort of work the Plaintiff was likely to be able to take would not be as remunerative as would be the earnings of a plumber. There was evidence as to the remuneration of plumbers and that of bar persons, the Plaintiff's present occupation. 114I would accept Mr Seton's submissions. Although the reasoning behind the award could have been more explicit, in my view what the primary Judge said in the light of the evidence was adequate to justify the award he made. 115The matter of costs is troublesome. The primary Judge was clearly peeved that the case had started in a most unsatisfactory way and that it was only when Mr Maxwell took over the running of the Plaintiff's case on the fifth day (after a break between 12 August 2011 and 26 October 2011) that it was put in order. 116However, it is clear from the transcript that although the Plaintiff was recalled to give further evidence on the resumption, quite a considerable amount of evidence was given during the first four days of the hearing which was valuable and indeed used in the final determination. 117The gist of the order that the primary Judge made was that generally the defendants were to pay the Plaintiff's costs of the proceedings but each party was to pay its own costs of the first four days of the trial. 118The appellant and the Trustees say that even if the Plaintiff was to be deprived of his costs for the first four days of the trial that constituted no reason why the defendants should be deprived of their costs: the Plaintiff should be ordered to pay them. 119It was acknowledged that those seeking a different costs order had to justify the appeal court making the substitution under the principles laid down in House v The King (1936) 55 CLR 499. They put that the order was so unreasonable that no reasonable judge could have arrived at it. 120It does not seem to me that the transcript supports any inference that the first four days were wasted. The defendants were able to cross examine the Plaintiff and other witnesses called by the Plaintiff which other witnesses were not recalled during the second tranche of the proceedings. 121Unless the defendants could show that their time was wasted by the Plaintiff's conduct, there does not seem to be any reason why the Plaintiff should pay any of their costs. I should note that no argument was presented by any party that costs should be determined on an issues basis. 122Thus, although the primary judge's order was unusual, I do not consider that it was so unreasonable that no reasonable judge could make it. 123It follows that, in my view, the appeal and the cross appeal must be dismissed with costs.
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: 27 February 2013
Perisher Blue Pty Limited
Harris