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Castle v Perisher Blue Pty Limited

Castle v Perisher Blue Pty Limited

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Case Copied 20 November 2020 76 min read

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Supreme Court

New South Wales

Medium Neutral Citation: Castle v Perisher Blue Pty Limited [2020] NSWSC 1652
Hearing dates: 15–22 June 2020
Date of orders: 20 November 2020
Decision date: 20 November 2020
Jurisdiction: Common Law
Before: Cavanagh J
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs.

Catchwords:
NEGLIGENCE — Skiing accident — Collision on slope between plaintiff and ski instructor who was employee of defendant — Vicarious liability — Whether ski instructor was negligent — Circumstances of the collision — Reasonable precautions — Whether contributory negligence
NEGLIGENCE — Dangerous recreational activity — Whether skiing is a dangerous recreational activity — Whether skiing involves a significant risk of harm — Application of statistics on incidence and nature of accidents at resort — Whether harm suffered was a result of the materialisation of an obvious risk — Characterisation of the risk asserted to be an obvious risk — Relevance of personal characteristics of plaintiff and of ski instructor
NEGLIGENCE — Risk warning — Content of the risk warning — Whether risk warning sufficiently identified the risk that eventuated
CONSUMER LAW — Consumer guarantees — Supply of services — Guarantee as to due care and skill — Effect of statutory defences under the Civil Liability Act 2002 (NSW) — Identification of services supplied to plaintiff — Whether those services not rendered with due care and skill — Where ski instructor was not providing instruction to plaintiff at time of collision — Whether s 139A of the Competition and Consumer Act 2010 (Cth) would otherwise apply to prevent voiding by s 64 of the Australian Consumer Law of the contract's exclusion of liability — Whether plaintiff suffered significant personal injury caused by reckless conduct of supplier — Meaning of "reckless conduct"

Legislation Cited:
Civil Liability Act 2002 (NSW), ss 5B, 5F, 5K, 5L, 5M, 5R
Civil Liability Amendment (Personal Responsibility) Act 2002 (NSW), Sch 1
Competition and Consumer Act 2010 (Cth), ss 4, 139A, 139B; Sch 2 — Australian Consumer Law, ss 2, 60, 64, 275
Trade Practices Act 1974 (Cth), ss 4, 74
Trade Practices Amendment Act 1977 (Cth)

Cases Cited:
Action Paintball Games Pty Ltd (In liquidation) v Barker [2013] NSWCA 128
Adamson v New South Wales Rugby League Limited (1991) 31 FCR 242
Alameddine v Glenworth Valley Horse Riding Pty Ltd [2015] NSWCA 219; 324 ALR 355
Campbell v Hay [2014] NSWCA 129
Carter v Hastings River Greyhound Racing Club [2020] NSWCA 185
Coffs Harbour City Council v Polglase [2020] NSWCA 265
Collins v Clarence Valley Council (2015) 91 NSWLR 128; [2015] NSWCA 263
Council of the City of Greater Taree v Wells [2010] NSWCA 147; 174 LGERA 208
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110
Fallas v Mourlas (2006) 65 NSWLR 418; [2006] NSWCA 32
Fraser v BN Furman (Productions) Ltd [1967] 3 All ER 57; [1967] 1 WLR 898
Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWSC 1652
Decision Date: 20 November 2020

CaseChat Overview and Summary

In the case of Castle v Perisher Blue Pty Limited, the plaintiff, Castle, alleged that she was injured while skiing on a slope at the Perisher Blue ski resort, which is operated by the defendant, Perisher Blue Pty Limited. Castle claimed that she collided with a ski instructor who was an employee of the defendant and sought damages for the injuries she sustained. The legal issues at the heart of the case involved the determination of whether the ski instructor was negligent, whether skiing is a dangerous recreational activity, and whether the risk warning provided by the resort was sufficient to protect the defendant from liability. Additionally, the court had to consider whether the statutory defences under the Civil Liability Act 2002 (NSW) and the Competition and Consumer Act 2010 (Cth) applied to the case.

The court examined the circumstances of the collision to determine if the ski instructor was negligent and if the defendant could be held vicariously liable for the actions of their employee. The court considered the reasonable precautions that should have been taken in the context of skiing, a sport known for its inherent risks, and whether Castle's own actions contributed to the accident. The court also assessed the adequacy of the risk warning provided by the resort and whether it sufficiently identified the risks associated with skiing. Furthermore, the court delved into the application of statutory defences and the effect of these defences on the exclusion of liability clauses in the contract between Castle and Perisher Blue Pty Limited.

In its decision, the court found that the ski instructor was not negligent in the circumstances of the collision, and therefore, Perisher Blue Pty Limited could not be held vicariously liable. The court also determined that skiing is indeed a dangerous recreational activity, and the risk warning provided by the resort adequately identified the obvious risks associated with the sport. The court further found that the statutory defences under the Civil Liability Act 2002 (NSW) and the Competition and Consumer Act 2010 (Cth) did not apply in this case, as Castle did not suffer significant personal injury caused by the reckless conduct of the supplier. Consequently, the exclusion of liability clauses in the contract remained valid, and Perisher Blue Pty Limited was not liable for the injuries sustained by Castle.

The court ordered that Perisher Blue Pty Limited was not liable for the injuries sustained by Castle, and her claim for damages was dismissed.

Orders