Perisher Blue Pty Ltd v Nair-Smith

ry Legislative Amendment (Professional Standards) Act 2004 (Cth), Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 Wilson v Peisley (1976) 50 ALJR 207 Category: Principal judgment Parties: Perisher Blue Pty Ltd (Appellant) Ghita Nair-Smith (Respondent) Representation: Counsel: Mr J E Sexton SC/Mr R E Montgomery (Appellant) Mr B M J Toomey QC/Mr G J Smith (Respondent) Solicitors: HBA Legal (Appellant) Lough & Wells Lawyers (Respondent) File Number(s): CA 2013/381571 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2013] NSWSC 727 [2013] NSWSC 1463 [2013] NSWSC1736 Date of Decision: 7 June 2013 4 October 2013 27 November 2013 Before: Beech-Jones J File Number(s): SC2006/294818

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant operates ski fields at Perisher. The respondent was skiing there on 18 July 2003 with her family and some friends. On boarding a moving chair forming part of the appellant's triple chairlift, the respondent was struck from behind by the armrest of the chair. The respondent brought proceedings against the appellant in the Common Law Division of the Supreme Court for damages in negligence and for breach of contract. Beech-Jones J upheld her claim and awarded damages of $1,368,700. On the day in question, the respondent boarded the chairlift with two friends, Mr Nowland and Mrs Nowland. All three were wearing skis. Having made their way to the boarding point, they positioned themselves on the load line. They were correctly positioned and aligned upon arrival at the loading point. An employee of the appellant, Mr Lofberg, was in attendance. His precise position and actions were the subject of dispute. As the respondent and her companions waited to board the chairlift they noticed that the chair that they were to board had its safety bar down. Their awareness came from looking to their left and observing the chair before it reached and went around the bullwheel. Mr Lofberg was not paying attention to the incoming chair on the opposite side of bullwheel. The respondent and her companions called out to attract his attention. He raised the bar of the chair. The three skiers then mounted the chair. At some point after the respondent first positioned herself correctly at the load line, she moved out of alignment to the right causing the right armrest of the chair to strike her from behind as the chair came past the load line and into contact with the skiers. The respondent's primary case was that Mr Lofberg moved the chair out alignment when he raised the safety bar. In the alternative, the respondent submitted that she had been moved out of alignment by jostling at the load line in response to Mr Lofberg's inattention and delayed reaction to the down-bar situation. The primary judge rejected the respondent's primary case. His Honour held that the appellant breached its duty of care owing to the respondent by failing to take the precaution of having a lift operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel. The failure to take this precaution meant that Mr Lofberg was unable to raise the bar in a timely manner which gave rise to panic and jostling amongst the respondent and her companions which caused her to be out of alignment with the chair. His Honour delivered three judgments. In the first (Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727, 7 June 2013), he recorded his conclusion that the respondent was entitled to a verdict and gave detailed reasons for that conclusion. Certain matters required further argument before the amount of the verdict could be determined. Following a further hearing on those matters, the primary judge delivered the second judgment (Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463, 4 October 2013) in which his Honour dealt with a constitutional law question concerning the statutory regime for the assessment of damages and set out conclusions as to amounts applicable to several heads of damages. The third judgment concerned interest and costs (Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736, 27 November 2013). The appellant appealed. On appeal, the principal issues that arose for were: (1) The nature and scope of the appellant's duty of care (2) The identification of the relevant risk of harm (3) Whether the appellant breached the duty of care it owed to the respondent. (4) Whether the appellant's breach was causative of the injuries for which the respondent sought damages. (5) Whether the respondent's injuries were the materialisation of an inherent risk involved in the act of boarding a chairlift. (6) Whether Part 2 of the Civil Liability Act was inconsistent with s 74 of the Trade Practices Act so as to render it invalid according to s 109 of the Constitution. (7) The efficacy of the appellant's contractual exclusion clauses in light of ss 4L, 68, 68B and 74 of the Trade Practices Act. In allowing the appeal, the Court held: In relation to (1):

Judgment

1. THE COURT: Perisher Blue Pty Ltd ("the appellant") operates ski fields at Perisher. Dr Ghita Nair-Smith ("the respondent") was skiing there on 18 July 2003 with her family and some friends. On boarding a moving chair forming part of the appellant's triple chairlift, the respondent was struck in the groin area from behind by the armrest of the chair.
2. The respondent claimed that the appellant was guilty of negligence in and about the operation of the chairlift and that that negligence of an employee of the appellant was causative of bodily injury sustained by her. She brought proceedings against the appellant in the Common Law Division of the Supreme Court and, after a trial that occupied eleven hearing days in August and September 2012, Beech-Jones J upheld her claim and awarded her damages of $1,368,700.
3. His Honour delivered three judgments. In the first (Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727, 7 June 2013), he recorded his conclusion that the respondent was entitled to a verdict and gave detailed reasons for that conclusion. Certain matters required further argument before the amount of the verdict could be determined. The judge identified those matters and stood the proceedings over for directions.
4. The second judgment (Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463, 4 October 2013) followed a further hearing on 9 September 2013. In that judgment, his Honour dealt with a constitutional law question concerning the statutory regime for the assessment of damages and set out conclusions as to amounts applicable to several heads of damages. The proceedings were further stood over for submissions on the calculation of interest and on costs.
5. These remaining matters were determined by a judgment delivered on 27 November 2013 following the filing of written submissions: Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736.
6. The appellant appealed. It contends that the primary judge made a number of factual errors and that he erred in both the formulation of the scope and content of the duty of care owed by the appellant to the respondent and in finding that negligence of one of its employees was a necessary condition of the state of affairs said by the respondent to have caused her injury. There are also challenges to elements of the assessment of damages. In addition, the appellant says that the judge erred in finding non-applicability of certain sections of the Civil Liability Act 2002 (NSW) by virtue of an implied contractual term under s 74 of the Trade Practices Act 1974 (Cth).

Proceedings below

1. The respondent brought proceedings for damages against the appellant in tort and contract in respect of the injuries she suffered. In her amended statement of claim dated 13 February 2009, the respondent particularised the appellant's alleged negligence as follows: 1. The appellant failed to keep a proper lookout sufficient to allow it to detect that the safety bar was down before it entered the loading area. 2. The appellant's servant failed to raise the safety bar in a timely manner. 3. The appellant's servant handled the chair in such a way that he pulled it out of alignment with the respondent and her companions. 4. The appellant's servant failed to stop or slow the lift so as to prevent it from impacting with the respondent and her companions or to give the appellant's servant sufficient time to raise the safety bar. 5. The appellant's servant allowed the respondent to proceed through the entry gate to the loading point even though he knew or ought to have known that the safety bar was down and that it was not safe for her to so enter. 6. The appellant's servant: 1. had his back to the chair as it approached the loading station; 2. failed to ensure the safety of the passengers boarding the triple chair; 3. failed to raise the safety bar so as to ensure the safety of passengers; 4. failed to watch for safety bars being down and to put the safety bar up; 5. failed to stop the lift when appropriate; 6. failed to stop the lift and/or lift the safety bar well before the chair had moved into the bullwheel area; 7. failed to position himself in relation to the stop button to be able to stop the progress of the chair in a timely manner so as to avoid injury to the respondent. 1. The appellant's servant, through his conduct enumerated at (6) above, failed to properly implement the appellant's lift procedures.
2. The respondent's claim in contract alleged that the appellant was under an express contractual obligation to provide uphill transportation to her with reasonable care and skill. The obligation was said to be incorporated into the contract between the appellant and respondent by virtue of the writing on the respondent's lift pass and the signage displayed in the vicinity of the point at which the respondent purchased her pass. The respondent submitted that her contract with the appellant also contained an implied term to the effect that the appellant was to provide transportation services to her with due care and skill by virtue of s 74 of the Trade Practices Act 1974 (Cth) as in force before the amendments made by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth). The respondent relied on the particulars detailed above in respect of her claim in contract.

Issues before the primary judge

1. The following issue arose for determination before the primary judge for the purposes of his first judgment: 1. The manner in which the accident happened. 2. The nature and extent of the appellant's contractual obligations; to what extent, if any, the appellant breached any of those obligations and to what extent, if any, was the appellant indemnified under the contract in respect of any such breaches. 3. The nature and extent of the appellant's duty of care in tort, whether the appellant breached that duty, whether any potential breaches were causative of the respondent's loss for which she was seeking damages, whether the manner in which Mr Lofberg comported himself constituted a materialisation of an inherent risk involved in the activity of loading onto chairlifts, whether the accident constituted an obvious risk involved in a dangerous recreational activity, the sufficiency of the appellant's risk warnings and whether the respondent was contributorily negligent in respect of the injuries she sustained. 4. Whether s 74 of the Trade Practices Act was applicable to the contract between the appellant and the respondent in light of ss 68A and 68B and, if applicable, whether the appellant breached the term it implied into the contract to render lifting services with due care and skill. 5. The factual issues relating to the respondent's claim in damages.

Findings of the primary judge

1. The primary judge made the following findings in relation to the manner in which the accident happened. The respondent and her companions were properly aligned immediately after arrival at the loading point. Mr Lofberg was positioned "no closer to the loading point than the exit point of the bull wheel", when the skiers assembled at the loading point. He noticed the state of the bar (that is that it was down) "late" when his attention was drawn to that fact by the calls of the respondent and her companions. By the time Mr Lofberg raised the bar, the front edge of the chair was within 300mm of the skiers. When he raised the bar, he acted in a hurried way but did not push the chair. His manner of raising the bar caused the skiers to panic and shuffle, which in turn caused the respondent to move out of correct alignment. The misalignment resulted in the respondent being struck by the chair's armrest as it came past the loading point. The expert evidence established that the dynamics of the chair were such that it could not have been pulled out of alignment by Mr Lofberg to the skiers' right and then swung back to the left of the skiers in the time available, as alleged by the respondent.
2. In relation to the appellant's contractual liability, the primary judge made the following findings. The contract between the appellant and respondent did not incorporate any of the terms printed on the respondent's lift pass or on the signs located at the point at which the respondent purchased her lift pass. The contract contained a term implied by s 74 of the Trade Practices Act that the respondent would provide its transportation services with due care and skill, which term the appellant breached by failing to have a lift operator near the loading point observing chairs as they left the bullwheel so as to enable him to raise any safety bars that were down in a timely manner. The primary judge arrived at this conclusion on the basis of the reasoning he applied to the respondent's claim in negligence. He added that, even if certain sections of the Civil Liability Act relied on in relation to the respondent's claim in negligence did not apply to the respondent's claim in contract by virtue of being inconsistent with the Trade Practices Act, the respondent's Trade Practices Act claim would nevertheless succeed.
3. With respect to the respondent's negligence claim, the primary judge found (at [129]-[130]) that the appellant owed the respondent a duty of care to exercise "reasonable care and skill in respect of the her [sic] safety and in operating the chair and to allow her to safely utilize the chair". He identified the relevant risk as "the risk of physical harm resulting from a chair arriving at the loading station in a state not suitable for boarding". There was a foreseeable and not insignificant risk that a chair would arrive at the loading station with its safety bar in the down position. In the circumstances, a reasonable person in the position of the appellant would have taken the precaution, not taken in the present case, of "having a ski operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel". The taking of this precaution would have "enabled Mr Lofberg to raise the bar in a 'timely manner'". In light of the probability and likely seriousness of the harm that may result from failing to take this precaution, the burden of taking it and the social utility of having lifting services provided to skiers, the primary judge held that the appellant's failure to take the identified precaution constituted a breach of the duty of care it owed to the respondent.

1. The primary judge did not make final orders on 4 October 2013 as the question of interest remained undetermined. He directed the parties to calculate interest and to make submissions as to costs. The parties agreed upon pre-judgment interest in the sum of $175,482.00 and on 27 November 2013 the primary judge entered judgment in the respondent's favour in the amount of $1,368,700.00, being the rounded sum of $1,192,597.50 and $176,114.24.
2. The primary judge made the following orders as to costs: "(2) The Plaintiff pay the Defendant's costs thrown away on vacation of the hearing fixed in the District Court of New South Wales on 2 to 6 February 2009 including costs of the Plaintiff's Notice of Motion dated 21 and 29 January 2009 heard before Toner DCJ commencing 2 February 2009. (3) The Plaintiff pay the Defendant's costs on the ordinary basis thrown away by reason of the amendment the subject of the grant of leave to amend on 5 February 2009. (4) Each party pay their own costs of the Directions Hearing in the District Court of New South Wales on 22 October 2009. (5) The Plaintiff pay the Defendant's costs on the ordinary basis of and incidental to obtaining reports from Mr Charles Needham. (6) Otherwise the Defendant pay the Plaintiff's costs of the proceedings on the ordinary basis."

Issues on appeal

1. The following issues arose on appeal: 1. The manner in which the accident happened. 2. The nature and scope of the appellant's duty of care. 3. The identification of the relevant risk of harm. 4. Whether the appellant breached the duty of care it owed to the respondent. 5. Whether the appellant's breach of duty was causative of the injuries for which the respondent sought damages. 6. Whether the respondent's injuries were the result of the materialisation of an inherent risk involved in the act of boarding a chairlift. 7. Whether s 74 of the Trade Practices Act operated on the contract between the appellant and the respondent so as to imply a term into it to the effect that the appellant would render its services to the respondent with due care and skill. 8. Whether Parts 1A and 2 of the Civil Liability Act were inconsistent with s 74 of the Trade Practices Act so as to render them invalid according to s 109 of the Constitution. 9. The efficacy of the appellant's contractual exclusion clauses in light of ss 4L, 68, 68B and 74 of the Trade Practices Act. 10. The quantification of damages.

Issue 1: How did the accident occur

1. There were no other skiers at the loading station when the respondent and her companions arrived at the chairlift for their final run of the day at about 3.45pm. There were two lift attendants on duty. The respondent and her companions arrived at the loading gate and waited for it to open before proceeding to the loading point, the distance between the gate and the loading point being 5.6 metres. It takes approximately 9 seconds for a chair to arrive at the loading point from the moment the entry gate opens. Skiers have less time than this to get from the entry gate to the loading point as they must be aligned properly at the loading point before the chair arrives. When the respondent and her companions arrived at the loading point, they were correctly aligned. This is not disputed. When the chair on to which the respondent and her companions were to load entered the loading station, its safety bar was down. Before the chair reached the respondent and her companions, Mr Lofberg raised the safety bar. The factual issues in contention in this part of the appeal concern where Mr Lofberg was situated when he noticed that the safety bar was down, how he acted after coming to that realisation and how he handled the chair in the process of rectifying the down-bar situation.

Position of Mr Lofberg

1. The primary judge found that "Mr Lofberg was at a point no closer to the loading point than the exit point of the bullwheel when he was made aware that the safety bar was down".
2. In the respondent's affidavit dated 13 December 2009, she deposed that Mr Lofberg was "standing near the loading position, about two metres to the side of the loading run and a similar distance back from the loading position … facing away from the loading point". In cross-examination, she gave evidence to the effect that Mr Lofberg was about a metre away from the load point, facing the other way shovelling snow and positioned closer to the bullwheel than he was to the load point. The following exchanges took place between Dr Nair-Smith and counsel during cross-examination: "Q: How far away from the load point [was Mr Lofberg]? A: About a metre away, about a metre, and he was facing the other direction as well"
3. And: "Q: You describe him [Mr Lofberg] as being about 2 metres to the side of the loading run and a similar distance back from the loading position? A: Yes Q: If he were 2 metres back from the loading position he would be very much closer, would he not, to the chair with the arm down than if he was standing at the loading point? A: Yes"
4. In her affidavit dated 10 July 2009, Mrs Nowland, one of the respondent's companions, deposed that Mr Lofberg was situated "up near the control booth, near the loading point and to the side of the loading point for the chair lift", whereas in her affidavit dated 15 February 2009, she describes his position as being "up near the booth, a couple of metres back and to the side of the loading point for the chairlift". In cross-examination, Mrs Nowland stated that he was "in front of the building" and "a couple of metres back".
5. In his affidavit dated 16 December 2009, Mr Nowland (the respondent's other companion) deposed that Mr Lofberg was "taking down the ropes that form part of the queue line" when they arrived at the entrance to the chairlift and that he was "within a few metres, back and to the side of the correct loading position" and was "also facing away from the chairlift". According to one of the expert witnesses, Mr Gow: "Mr Nowland positions the lift operator in what I would believe to be the correct area in order to supervise the loading of a chair… There is no necessity for the operator to stand in immediate proximity to the load point at all times in the load process, as the operator will move back to a position to bump the chair once the passengers are in the loading position."

Mr Lofberg's conduct after becoming aware that the bar was down

1. The primary judge found (at [69]) that: "[Mr Lofberg] ran, dived or lunged at the chair from behind, catching it just prior to it colliding with Dr Nair-Smith and her travelling companions. He was able to pull the chair back on its axis at that point and bump the safety bar, presumably with his right hand. I think it likely he pulled with some force out of alignment to the right ... that did not result in the chair swinging to such a degree that it was aligned to the left of the raised platform at the loading point."
2. According to Dr Nair-Smith's affidavit, when the chair was about one metre away Mr Lofberg "lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him at an angle, flipped the safety bar back up with his right hand, then let go of the chair". In cross- examination, Dr Nair-Smith stated: "It happened with me watching him do it, yelling at him to notice that it was down, to get his attention, and, when I finally did get his attention, he had to lunge forward, grab the chair, flick the armrest back and let the chair go and, in doing so, the chair hit me at an angle, hit me on my right buttock, impaled me on the armrest."
3. And later: "[Mr Lofberg] was not looking to see the position of the chair as it came down so he wasn't observing the chair as it came down. He was facing the other direction shovelling snow, looking away from the riders going to the loading point and from the chair coming down. When he was called, he jumped forward, he turned around and jumped forward pulling out with his left-hand and he flicked the armrest back. Because he was behind the chair and off to the right he had to lunge forward to pull at it to get to the armrest in time."
4. According to Mrs Nowland's affidavit, Mr Lofberg: "[G]rabbed the chair's closest corner with his left hand, then with his right hand, grabbed the safety bar and flung it up, wrenching it. As he did so he also pulled the chair toward him, off the chair's normal alignment".
5. In his statement made after the incident on 18 July 2003, Mr Lofberg said that "when the chair came around [the bullwheel] I noticed safety bar was down but I got it up in time". In response to a question regarding what he did during the incident he responded: "I noticed the safety bar was down. Took a couple of steps towards the chair from the load, flipped the bar up. Then I pulled the chair back not to the side. The chair was ready for a load. They seemed to panic but also seemed to be loaded properly."

Mr Lofberg's actions in relation to the chair

1. There are competing accounts of what caused the respondent to be misaligned with the chair. According to the respondent and her companions, Mr Lofberg was the effective cause of the misalignment because he pulled the chair in his hurried attempt to raise the safety bar while they remained in what otherwise would have been the correct loading position. Mr Lofberg, by contrast, gave evidence that the chair was travelling in its normal alignment when it arrived at the loading point and that he did not apply any extraordinary force to it such as would cause it to move out of the correct alignment. The expert evidence suggested that it was highly unlikely that Mr Lofberg could have applied sufficient force in sufficient time to cause the chair to misalign in the way that it supposedly did. The primary judge preferred the evidence of the experts and found that the panic induced by Mr Lofberg's delay in raising the down-bar caused the respondent to move out of alignment with the chair.
2. The primary judge found that Mr Lofberg did not apply sufficient force to the chair, either by pulling it or by subsequently pushing it, to cause it to move to the left before it struck the respondent. His Honour found (at [126]: "At the time impact occurred Dr Nair-Smith was out of alignment to the right of the chair and it had not swung back to the left. I have accepted that contention. However I have also accepted so much of Dr Nair-Smith's case that alleged a very late reaction by Mr Lofberg to the safety bar being down, and his pulling the chair back and to the left just prior to it reaching the loading point."
3. According to his Honour, "the axis point at the top of the chair enabled Mr Lofberg to pull the chair back with his left hand while he lifted the safety bar with his right. The subsequent behaviour of the chair under that scenario would account for the acceleration of the chair that the skiers observed".
4. It is necessary to further analyse the evidence on this issue.
5. The respondent deposed that "[a]t no stage during this process [ie, the loading process] did I change the alignment of my body or my skis". She also said: "When the chair was about one metre away from me, the lift attendant nearest to me lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him at an angle, flipped the safety bar back up with his right hand, then let go of the chair. The chair then came at us at an angle. By this I mean ordinarily the chair simply comes up directly behind you whilst you stand at the loading position and it is simply a matter of sitting back onto the chair when it arrives. On this occasion the chair did not come straight up behind us, it came at us at an angle due to it being pulled back and to the side by the lift attendant".

Mr Lofberg's actions and the respondent's position - conclusions

1. The respondent and her companions, wearing skis, correctly positioned and aligned themselves upon arrival at the load line. While waiting for their chair to arrive, they noticed, as that chair came downhill towards the bullwheel, that its safety bar was down. Their awareness came from looking to their left and observing the chair before it reached the bullwheel. Mr Lofberg was not paying attention to the incoming chair on the opposite side of bullwheel and it was not suggested that he should have done so. However, calls of the respondent and her companions drew his attention to the fact that the safety bar was down. At that time, Mr Lofberg was positioned approximately one metre from the load line.
2. Once Mr Lofberg heard the calls and realised the bar was down, it was necessary for him to take a few hurried steps towards the chair in order to raise the bar. He moved quickly to the chair and raised the bar from behind it with a lunging movement. He was able to raise the bar before the chair reached the waiting skiers but not before it was between 300 millimetres and one metre behind them.
3. At some point after the respondent first positioned herself correctly at the load line, she moved out of alignment to the right causing the right armrest of the chair to strike her in the groin area from behind as the chair came past the load line and into contact with the skiers.

Issue 2: Duty of care

1. The primary judge articulated the duty of care owed by the appellant to the respondent as the duty to exercise "reasonable care and skill in respect of the her [sic] safety and in operating the chair and to allow her to safely utilize the chair". The appellant did not challenge this formulation of its duty. It may readily be accepted that the appellant was under a duty of care to exercise reasonable care and skill in the provision of its lifting services to avoid harm to skiers using those services.

Issue 3: Risk of harm

1. The proper assessment of the appellant's alleged breach depends on "the correct identification of the relevant risk of injury": Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [338] per Gummow J. The primary judge characterised the relevant risk (at [138]) (Civil Liability Act, s 5B(1)) as the risk of physical harm resulting "from a chair arriving at the loading station [as distinct from at the loading point] in a state not suitable for boarding". According to the primary judge, "This would address the possibility of a broken chair arriving at the loading station, which may not be something that can be corrected by the lift operator with the chair still in motion and which, if it continued, could cause harm to skiers in a number of different ways (see Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [24] to [25] per Meagher JA and at [123] per Tobias AJA)."
2. However, when determining whether this risk was foreseeable for the purposes of s 5B(1)(a), the primary judge appears to have found (at [148]) that the risk was that of "physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position". This is how the respondent characterised the risk of harm at trial. At [138], the primary judge stated that it did not matter in which of these two ways the risk was characterised. The distinction is, however, important.
3. With respect to the first description of the relevant risk - the broken chair risk - the primary judge should not have characterised the risk at the level of generality he adopted. At trial neither party submitted that this was the relevant risk of harm. The chair that struck the respondent was not broken. No party or witness suggested that the respondent was injured because the chair was broken. The chair functioned as it was designed to function. There was no evidence as to the how frequently broken chairs arrived at the loading station, whether skiers can safely be conveyed by broken chairs or what procedures a lift operator can or should take in response to the arrival of a broken chair. It may not be possible for a lift operator to rectify a broken chair situation, whereas it is possible for a lift operator to rectify a down bar situation before the chair reaches the load point. The precautions a reasonable person may take in response to the possibility of the arrival of a broken chair as compared with a chair with its bar down may be entirely different. No evidence was adduced on this. The risk of physical harm resulting from a broken chair arriving at the loading station was neither relevant nor a source of the respondent's injuries. Consideration of the broken chair possibility introduced an irrelevant consideration.

Issue 4: Breach

1. The principles governing whether the appellant breached its duty of care are governed by s 5B of the Civil Liability Act: "(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."
2. Section 5C is also relevant: "In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk."
3. The appellant was only under a duty to exercise reasonable care: Derrick v Cheung [2001] HCA 48; 181 ALR 301 (at [13]). In order to identify whether a breach of duty has occurred one has to identity, "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 (at [192]) per Gummow and Hayne JJ. Breach must be assessed prospectively not retrospectively: Dederer at [338].
4. According to the primary judge (at [153]), "[t]he critical question in terms of what precautions, if any, were required concerns the interrelated questions of when an observation of the state of the incoming chair should be made, and what position the lift operator should be in when it is made". The primary judge found (at [157]) that taking the precaution of "having a ski [sic: scil: lift] operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel… would have enabled Mr Lofberg to raise the bar in a 'timely manner'". Accordingly, the primary judge held (at [166]) that the appellant's negligence consisted of "Mr Lofberg placing himself in the position that he was in and only noticing that the bar was down so late." Mr Lofberg's duty to exercise reasonable care required him to keep a proper lookout for chairs that might not be in a safe condition for boarding passengers. The point in time at which Mr Lofberg was required to make that observation was contingent on where he was situated.

Issue 5: Causation

1. With respect to the principles applicable to causation under s 5D(1)(a) of the Civil Liability Act concerning factual causation, the primary judge made the following findings (at [169]): "[H]ad Mr Lofberg located himself just forward of the loading point and observed the chair with the safety bar down at the point where the chair was exiting the bullwheel, then he would not have needed to lunge or dive, or grab the chair from behind (or pull it out of its alignment). Instead he could and would have addressed the chair in a manner consistent with that shown in the Second Video such that he would not have exhibited late or rushed movements and would have intervened at least a metre prior to the loading point. Dr Nair-Smith and Mr and Mrs Nowland were reasonably experienced skiers. They were used to the operation of the triple chair and others like it. Dr Nair-Smith had previously experienced the circumstance of the safety bar being down and bumped back up in time by the lift operator (see [36]). If Mr Lofberg had intervened in the correct manner then they may either have not noticed but, even if they did, I am satisfied that on the balance of probabilities it would not have resulted in a degree of panic or jostling that would have moved Dr Nair-Smith significantly out of alignment as she must have been in the events that happened. I am satisfied that the condition set out in s 5D(1)(a) has been satisfied."
2. The primary judge thus found, in effect, that Mr Lofberg's failure to observe the down-bar situation when the chair was exiting the bullwheel caused him to dive or lunge at the chair, grab it from behind, make rushed movements and not intervene and raise the bar until the leading edge of the chair was "within less than half a metre and probably less than 300mm of contact with the skiers" (see [70]); and that this, in turn, caused the respondent and her companions to panic and jostle, which resulted in the respondent's right leg being out of alignment with the oncoming chair. With respect to the respondent's misalignment, the primary judge found (at [65]) that at the point of collision "Dr Nair-Smith's pelvic area was at some point to the right of the designated loading point on the raised area" and that "at least one of her legs had moved off the slightly elevated platform to the right." The critical finding of his Honour was that "[t]he misalignment of Dr Nair-Smith was the consequence of jostling in reaction to the chair coming so close with a [sic: scil: its] safety bar down, although not necessarily by her": [72]. By this his Honour meant that "it could have been a result of a panicked reaction by her or one or more of her travelling companions (or all three) and their jostling her": [66].

Issue 6: Materialisation of an inherent risk

1. The appellant submitted that no liability can flow from the respondent's breach of its duty of care because the respondent's injury was the consequence of "the materialisation of the small chance of harm necessarily inherent in the interaction between persons taking their seat and the mechanical limitations of the chair within the meaning of s 5I of the CLA". Section 5I is in the following terms: "No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk."
2. The primary judge dealt with this issue below as follows: "Perisher contended that the fact that 'the safety bar was down, and that it had to be rectified in 0.8 of a second ... [meant] that urgent remedial action, and the spectacle of that action being taken by the load lift attendant, was an inherent risk of the loading procedure in which [Dr Nair-Smith] was engaged' within the meaning of s 5I. However the findings that I have made to this point are to the effect that the risk that was presented by the safety bar being down was one that could have been avoided by the exercise of reasonable care and skill on the part of the lift operator. I reject Perisher's defence under s 5I."
3. In order for there to be no liability for the materialisation of an inherent risk it must be proven, inter alia, that the risk "cannot be avoided by the exercise of reasonable care and skill". The relevant risk in this case is that a skier may sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down bar situation. As stated at [137] above, this risk could have been avoided had Mr Lofberg observed the state of chair as it left the bullwheel. The relevant risk is therefore not of the character described in s 5I. We agree with the primary judge.

Conclusions on negligence

1. For the reasons stated, the primary judge was correct to have found that the appellant breached its duty of care in negligence owed to the respondent. However, he should have found that the negligence of the appellant was not causative of the injury suffered by the respondent.
2. The action for damages for negligence should have been dismissed.

Issue 7: The Trade Practices Act claim

1. The statutory warranty that, on the respondent's case, was incorporated into her contract with the appellant was an implied warranty that the ski lift services provided by the appellant would be "rendered with due care and skill".
2. The conclusions in relation to the negligence claim mean that there was no breach of such an implied warranty.

Remaining matters

1. The conclusions just stated with respect to negligence and the statutory warranty mean that the outcome of the appeal does not turn upon any of the other matters raised by the grounds of appeal and canvassed in submissions.
2. For the sake of completeness, however, we proceed to deal with those other matters.

Issue 8: Section 109 inconsistency

1. The primary judge held that the appellant breached its implied contractual obligation to render its services with "due care and skill" pursuant to s 74(1) of the Trade Practices Act as it stood at the relevant time. Section 74(1) relevantly provided: "In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill …"
2. His Honour held that the quantum of damages recoverable for the breach of the implied warranty was not limited by Part 2 of the Civil Liability Act. He considered himself bound by Wallis to find that the Part 2 limitations were inconsistent with the right to "full contractual liability" conferred by s 74 of the Trade Practices Act. Under s 109 of the Constitution, s 74(1) of the Trade Practices Act prevailed and Part 2 of the Civil Liability Act was invalid to the extent of the inconsistency.
3. The appellant submits that the primary judge erred in finding that the right to "full contractual liability" found in Wallis to be conferred by s 74(1) was inconsistent with the operation of the limit created by Part 2 of the Civil Liability Act. The essence of the appellant's submission is that Part 2 of the Civil Liability Act regulates the quantification and measure of damages whereas s 74(1) does not. According to the appellant, "there is nothing in the Trade Practices Act or any other Federal legislation which regulates the measure of damages for breach of contract [with] which the CLA can 'impair' or conflict".
4. In his first judgment, the primary judge expressed the tentative view (at [123]-[124]) that the respondent's claim in contract for breach of the warranty implied by s 74(1) of the Trade Practices Act was not subject to Parts 1A and 2 of the Civil Liability Act. However, as the matter raised constitutional issues of some significance, he considered it appropriate to stand the matter over until further submissions could be made. Those submissions were heard on 9 September 2013. His Honour delivered a judgment on 4 October 2013 in which, after summarising the applicable principles in Wallis (at [7]-[10]), he made the following observations: "Senior Counsel for Perisher, Mr Sexton SC, noted that the operation of former s 74(1) of the Trade Practices Act was different to that of a number of other provisions in former Part V of the Trade Practices Act (eg s 52) in that s 74(1) did not create a cause of action the remedies for which were to be found in the Trade Practices Act. Instead the only cause of action is for breach of the term implied into the contract by s 74(1) (Arturi v Zupps Motors Pty Ltd [1980] FCA 164; 49 FLR 283, cited in Wallis at 398). Mr Sexton SC submitted that the regulation of the means of proving a breach of contract and the remedies for such a breach was generally a matter of state law subject to any express provision made to the contrary by Commonwealth law. Thus he contended that the source of law for a demonstrated breach of the term implied by s 74(1) was State law, which in this case included the restrictions on damages found within Part 2 of the CLA. Unconstrained by authority there is force in this argument. However it is directly inconsistent with the judgment of Toohey and Gaudron JJ in Wallis and, in particular, the reference by their Honours to 'full contractual liability for breach' in the passage extracted above. Their Honours accepted the submission that the implication by federal law of the term provided for in s 74(1) necessarily carried with it a remedy of damages assessed at common law and that any attempt to limit that remedy created a 'direct inconsistency' for the purposes of s 109 of the Constitution. I was not referred to any subsequent discussion of Wallis that affects this analysis. In the Court of Appeal in Insight Basten JA and Sackville AJA discussed Wallis in these terms at [98] and [143] respectively. Spigelman CJ cited the supplementary explanatory memorandum to the legislation that introduced s 74(2A) which recorded an understanding on the part of the Commonwealth that Wallis had this effect. Even if it was thought that the approach to s 109 of the Constitution in the above passage from Wallis was reconsidered or superseded by that adopted in Momcilovic v R [2011] HCA 34; 245 CLR 1, and I doubt that it was, it would not affect the outcome of Wallis. In any event, this Court is still bound by Wallis. I am unable to discern any relevant distinction between s 6(1) of the Carriers' Liabilities Act and the restrictions found within Part 2 of the CLA. I am bound by the decision in Wallis to find that the damages that Dr Nair-Smith can recover for breach of the term implied by s 74(1) of the Trade Practices Act are not subject to the limitations found within Part 2 of the CLA."

Issue 9: Efficacy of Perisher's contractual exclusion clauses

1. The primary judge found that the terms of the ticket contract excluding the appellant's liability for breach of the term implied by s 74(1) of the Trade Practices Act were rendered void by s 68. The appellant submits that the primary judge ought to have found that the warranty implied by s 74(1) was excluded from the contract by the application of s 68B and s 4L of that Act. A term of a contract will be rendered void by s 68 if it purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying the warranty implied by s 74. Section 68 is in the following terms: "(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; (b) the exercise of a right conferred by such a provision; (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or (d) the application of section 75A; is void. (2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section."
2. Both parties accept that the term implied by s 74 forms part of the contract between them and that s 68 will operate to render void any term of that contract that purports to qualify the application of s 74 unless the exception in s 68B applies. Section 68B relevantly provides that: "(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of section 74 to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or (c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract; so long as: (d) the exclusion, restriction or modification is limited to liability for death or personal injury; and (e) the contract was entered into after the commencement of this section. (2) In this section: disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin. injury means any physical or mental injury. personal injury means: (a) an injury of an individual (including the aggravation, acceleration or recurrence of an injury of the individual); or (b) the contraction, aggravation, acceleration, or recurrence of a disease of an individual; or (c) 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 that is or may be harmful or disadvantageous to, or result in harm or disadvantage to: (i) the individual; or (ii) the community. recreational services means services that consist of participation in: (a) a sporting activity or a similar leisure‑time pursuit; or (b) any other activity that: (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (3) The definition of injury in subsection (2) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section."

Issue 10: Quantum of damages

1. The appellant makes two challenges to the primary judge's findings in relation to the respondent's post-accident functional work capacity. First, the appellant submits that the primary judge erred in finding that the respondent experienced any diminution in her earning capacity after she returned to work on 8 July 2003. Second, the appellant submits that the primary judge erred in finding that any diminution in the respondent's functional work capacity following her injury on 18 July 2003 was attributable to that injury.
2. The primary judge made several findings about the respondent's functional work capacity following the injury. He found that she was unable to return to work from the date of injury until 8 August 2003; that from that date until December 2008 she reduced her working hours by half a day per week; and that she reduced her work hours by a full further day per week from December 2008.
3. The appellant does not challenge the primary judge's finding that the respondent was unable to return to work from the date of injury until 8 August 2003. The appellant also accepts that the respondent stopped working half a day on Fridays from 8 August until December 2003 and further reduced her working days thereafter. However, it submits that the respondent's overall working hours did not decrease after she returned to work following her accident notwithstanding that she was only working half a day on Friday and that any decrease in her working hours ought to have been attributed to a natural deterioration of the respondent's pre-existing lumbosacral condition.
4. The appellant relied on the following evidence in support of its submission that the respondent did not experience any reduction in earning capacity after she returned to work on 8 August 2003: 1. The respondent accepted in cross-examination that she "returned to full-time work duties on 28 August 2003" and was working "50-60 hours per week" between "February and August 2004". 2. A letter from Jeremy Wright, a financial consultant to the respondent, dated 8 September 2005 to an insurer stating that "Dr Nair-Smith has been back to work for 2 years without any time off". 3. In insurance claim documents signed and dated 9 November 2005, the respondent stated that she normally worked 55 hours per week before the incident and worked the "same" during the 12 months prior to November 2005. 4. The respondent had 10 days off work in October 2004 because her condition deteriorated during a period in which she was "undertaking" pilates. 5. The respondent accepted in cross-examination that on 29 October 2008 she informed her physiotherapist, Ms Harkin, that she was working 12 hours per day, 4 days per week. 6. Medicare records show that the fluctuations in the respondent's client servicing rates in the years after the incident were comparable to other doctors at the practice at which she worked. 7. The respondent's earnings from personal exertion increased by 33% in the financial year 2009. 8. In her amended statement of particulars dated 3 May 2007, the respondent claimed damages for the time she spent off work from 18 July 2003 to 31 August 2003 and for past and future loss of earning capacity as a medical practitioner.

Cause of diminution in work capacity

1. In any event, the appellant submits that the primary judge erred in finding that the respondent's diminished work capacity was attributable to the injuries that she sustained on 18 July 2003 and that his Honour should have found that any of respondent's diminished work capacity after she returned to work was a product of a natural deterioration of her pre-existing lumbosacral condition. Accordingly, the relevant issue is whether the respondent's diminished work capacity is attributable to a natural deterioration in her pre-existing lumbosacral condition or an exacerbation of that condition caused by her injury on the ski fields. The primary judge concluded: "In the end result, I am satisfied that Dr Nair-Smith suffered a significant soft tissue injury to her lumbar spine as a result of the accident as stated by Dr Giblin. Over time she has developed a pain disorder as referred to by Drs Clarke and McClure. The effect of the soft tissue injury was to aggravate a pre-existing level of discomfort in the lower lumbo-sacral region. Her further deterioration over the last few years is a result of the combination of the effect of the accident and degenerative changes in the lumbosacral region, however the accident remains an operative cause of that deterioration."
2. The appellant submits that that finding is against the weight of the evidence and that the primary judge failed to address the critical issue of reliability in his reasoning. The crux of the appellant's submission is that the respondent's evidence is unreliable because her attribution of the pain she was experiencing to the chairlift incident was a product of her "psychological obsession" with her injuries and that insofar as the evidence of the respondent's family, those close to her and certain doctors was based upon her opinion regarding the cause of her injuries, it too is unreliable. In particular, the appellant submits that the respondent's narration of her medical history to Dr Giblin was so inadequate that his subsequent diagnosis based upon it cannot be relied on.
3. The appellant took the Court to the joint opinion of Dr Clark and Dr McClure that the respondent was "overly preoccupied with her accident, injury and disabilities to the point where psychological intervention was justified". This opinion was given in the course of an advice concerning whether the respondent required psychological treatment following her accident. When their opinion is read in context, it is clear that it has nothing to do with whether the respondent was capable of reliably accounting for the cause of her pain. Under a heading that reads "Issues on which the Experts agree", the report records the following: "● The Plaintiff, Dr Nair-Smith, sustained a physical injury in the accident on 18 July 2003. ● As a result, Dr Nair-Smith has ongoing physical symptoms, which have caused her to give up a number of recreational activities and to reduce her working hours."

Domestic Assistance

1. The appellant submits that the primary judge should have awarded no damages for domestic assistance, paid or gratuitous, following the respondent's return to work for the same reasons it submits the primary judge should not have awarded damages for diminution of functional work capacity. It follows that this submission should be rejected for the reasons given above.
2. Alternatively, the appellant submits that the primary judge erred in awarding damages for paid domestic assistance at a rate of $30 rather than adopting the rate of $14.58 that the respondent was paying a certain Ms Callas. The primary judge determined that $30 was the appropriate market rate for the domestic services required by the respondent by taking the rate opined by Ms Walters, an occupational therapist, to be the current home care rate and discounting it in light of the rate at which Ms Callas was willing to work and the level of average earnings. The appellant submits that the primary judge should have calculated the market rate for the services required by the respondent by reference to the rate she was actually paying for those services and not the hypothetical rate opined by Ms Walters for specialised medical care the respondent did not need. Ms Walters described the assistance the respondent would require as follows: "Given Mrs Nair-Smith's ongoing difficulty with the tasks requiring bending and stooping, manual handling, heavy bilateral upper limb activity and working above shoulder level, she will continue to experience difficulty with tasks such as vacuuming, moving furniture to clean under and heavy scrubbing required cleaning bathrooms. It is also not recommended that she climb ladders to clean windows and curtain/blinds etc. as she could re-injure her shoulders or spine if she were to fall and as she is trying to stretch and reach. It is estimated that 5 hours per week would continue to be required to provide assistance with the large number of cleaning tasks that were her pre-injury responsibility, which she can no longer complete safely. On this basis, ongoing professional assistance is recommended. At current Home Care rates of $35 per hour (GST free) for domestic assistance, this would equate to $175.00 per week."
3. The rate proposed by Ms Walters was for the provision of assistance with ordinary domestic tasks and not for the provision of specialised medical care. The respondent is entitled to be compensated for her future paid domestic assistance requirements at the market rate. In Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Mason J stated (at 192-193) that: "The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the service. It is now recognized that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration. Furthermore, the old view, by insisting upon the existence of a legal liability to pay as a condition of recovery in respect of the provision of the service, threw up issues of fact which were not susceptible of accurate determination. In relation to the provision of voluntary services there is the inevitable and intractable question: For how long will the voluntary service be provided? Although the new approach does not entirely eliminate this question, it descends to the level of a less critical consideration.… In general the value or cost of providing voluntary services will be the standard or market cost of the services."

Conclusion

1. Since, for the reasons stated, breach of a duty of care owed by the appellant, although it occurred, was not causative of the injury sustained by the respondent on 18 July 2003, the award of damages made by the primary judge cannot stand. Had the conclusion on causation been otherwise, the appropriate course would have been to dismiss the appeal, since all other bases of challenge advanced by the appellant are unsustainable.
2. Because the appellant has been successful on the issue of causation only, there is a question as to the appropriate costs order. Argument on the several matters on which the appellant failed represented the major part of the submissions as a whole. In those circumstances, the simple proposition that costs should follow the event requires re-evaluation. The success achieved by the appellant on the single (but decisive) issue of causation and the success achieved by the respondent in resisting all other grounds of appeal will best be reflected by an order that the respondent pay one-half of the appellant's costs of the appeal.
3. The orders are:
4. Appeal allowed.
5. Set aside orders (1) and (6) made by Beech-Jones J on 27 November 2013 and substitute the following orders: "(1) Verdict and judgment for the Defendant against the Plaintiff." "(6) Otherwise, the Plaintiff pay the Defendant's costs of the proceedings on the ordinary basis."
6. The respondent pay one-half of the appellant's costs of the appeal.
7. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

Amendments 10 April 2015 - Solicitor for appellant amended 10 June 2015 - removed text "Click here to enter text." from Legislation Cited and Cases Cited coversheet fields 15 April 2016 - 1. At [55] - quotation of [126] second sentence should read "I have accepted that contention. However I have also …. very late reaction by Mr Lofberg to the safety bar being down" 2. At [60] - quotation of Mrs Nowland first sentence should read "Leichhardt" 3. At [65] - quotation of Mr Lofberg second sentence should read "… sat on the chair, it was in normal alignment with the snow path." 4. At [67] - quotation of Mr Lofberg should read "[t]hey got on the chair, so they must have been pretty close …" 5. At [73] - quotation of Mr Gow should read "….all of this occurs in the space of a few seconds." 6. At [77] - quotation of Mr Needham should read "… magnitude of the force is 200 N;" 7. At [78] - quotation of Mr Needham should read "…accelerated by the time it reached the load line …" 8. At [92] - quotation of [138] should read "…This would address the possibility …" 9. At [97] - quotation of [142] should read "the fact of a safety bar being down" 10. At [104] - sixth sentence should read "As the primary judge found at [145] …" 11. At [136] - second sentence should read "… delayed realisation…" 12. At [139] - first sentence should read "… the leading edge of the chair…" 13. At [161] - first sentence should read "… inattention and failure to act were a necessary condition …" 14. At [178] - second sentence should read "Wallis' goods were damaged …" 15. At [178] - fifth sentence should read "…s 6(1) of the Carriage of Goods By Land (Carriers' Liabilities) Act 1967 (Qd) …" 16. At [181] - quotation of Toohey and Gaudron JJ should read "… full contractual liability for breach": at 393." 17. At [185] - first sentence should read "… Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), which ..." 18. At [198] - quotation of reverse side of ticket should read "…UNDERTAKE SUCH ACTIVITIES AT YOUR OWN RISK" 19. At [199] - first sentence should read "… definition of s 68B(2), but rather …." 20. At [202] - first sentence should read "… is not participating in a sporting activity". 21. At [204] - first sentence should read "the definition of s 68B(2), the primary judge …" 22. At [206] - quotation of primary judge should read "… conditions relating to the services we provide …" 23. At [212] - first sentence should read "… so as to sever the words "or to property" (or perhaps …" 24. At [217] - first sentence should read "It remains to be determined whether s 4L of the Trade Practices Act has any …" 25. At [219] - quotation of [117] should read "consequence of the above conclusions is that Dr Nair-Smith is not …" 26. At [230] - first sentence should read "the evidence of Dr Maxwell, Associate Professor Jones and Dr Giblin …"; second sentence should read "… the evidence of Dr Maxwell, Dr Stening and Associate Professor Jones and gave his reasons …" 27. At [232] - first sentence should read "… stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207 …" 28. At [233] - quotation from Dr Giblin's report first sentence should read "… she has the provisional diagnosis of a soft tissue injury to the lumbar spine, reasonably causally related to the subject accident." 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: 15 April 2016