Greenwood v Charlotte Pass Village Pty Ltd; Keir v Charlotte Pass Village Pty Ltd

[2016] NSWSC 1743

Supreme Court

New South Wales

Medium Neutral Citation:	Greenwood v Charlotte Pass Village Pty Ltd;; Keir v Charlotte Pass Village Pty Ltd [2016] NSWSC 1743
Hearing dates:	23 September 2016
Date of orders:	09 December 2016
Decision date:	09 December 2016
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1)   Order that a view of the Charlotte Pass Ski Resort take place on 26 August 2017. (2)   Order that each party pay their own costs of the plaintiffs’ Notice of Motion filed 19 August 2016.
Catchwords:	EVIDENCE – application for a view – Evidence Act 1995, s 53 – where plaintiff seeks view of ski resort in Kosciusko National Park – whether it is in the interests of justice for a view to be ordered
Legislation Cited:	Civil Liability Act 2002 Civil Procedure Act 2005 Evidence Act 1995 Trade Practices Act 1974
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural and other rulings
Parties:	Wayne Greenwood (P) Brian Greenwood (P) Keith Greenwood (P) Jeanette Keir (P) Charlotte Pass Village (D – all matters)
Representation:	Counsel: B Dooley SC / A C Casseldon (P – all matters) J Dodd (D – all matters)     Solicitors: Matthews Folbigg Pty Ltd (P – all matters) HBA Legal (D – all matters)
File Number(s):	2013/265585 (Wayne Greenwood)2015/113264 (Brian Greenwood)2015/113261 (Keith Greenwood)2013/265575 (Jeannette Keir)
Publication restriction:	Not applicable

Judgment

1. On 6 September 2010, the Greenwood family – consisting of Mr Wayne Greenwood, his wife Dr Jeanette Keir, and their sons Evan, Keith and Brian – were enjoying a skiing holiday at Charlotte Pass Ski Resort in the Kosciusko National Park (“the Ski Resort”).

2. During the course of the morning of 6 September 2010, Evan Greenwood, who was then 15 years old, skied beyond the boundaries of the Ski Resort and down to the vicinity of the Snowy River. Visibility was said to be poor at the time. Evan did not return to the Ski Resort and, due to hypothermia and exposure, died in the vicinity of the Snowy River.

3. Each member of Evan’s family has commenced proceedings claiming damages for personal injury by way of mental harm. In each case, the sole defendant is Charlotte Pass Village Pty Ltd, which occupied the Ski Resort and operated the ski area within the Kosciusko National Park pursuant to the terms of a lease.

4. The defendant admits that its staff maintained visible markings “along parts of the perimeter of the ski area within the Kosciusko National Park using orange poles, orange rope and discs marked ‘Ski Area Boundary’ as markers”.

5. In identical pleadings, each plaintiff claims that the defendant was negligent because, in general terms, it failed adequately to mark the boundaries of the ski area, with the consequence that skiers, particularly in poor weather, would be able to ski outside the boundaries without noticing that they had done so. As well, the plaintiffs claim that the defendant was in breach of the warranty which then existed under s 74(1) of the Trade Practices Act 1974 to render its services with due care and skill.

6. The defendant denies that it is liable for Evan’s death, and denies liability to any of the plaintiffs. The defendant pleads that anybody skiing in the Ski Resort was doing so subject to various terms, conditions, warnings and waivers to be found on the ski lift ticket. It also pleaded that Evan was negligent and that any damages able to be recovered by the plaintiffs ought be reduced so as to reflect his negligence.

7. The defendant denies that it owed a duty of care to each plaintiff to take reasonable precautions against the risk that a person might suffer mental harm in consequence of negligence of the kind pleaded. It pleads in answer to the whole of each Statement of Claim that if each of the plaintiff’s did suffer injury, loss and damage as alleged, then that risk of harm was an “obvious risk” within the meaning of s 5F of the Civil Liability Act 2002. It also relied upon the provisions of s 5I of the Civil Liability Act to contend that Evan’s death was the result of an inherent risk. It said in its defence:

“The defendant states that if the plaintiff suffered injury, loss and damage as alleged (which is not admitted) the risks of harm associated with the sport of skiing, including skiing or continuing to ski terrain, the hazardous features of which and/or in a direction or at a location which the skier is unable to discern, and in particular the risk of harm pleaded in the Amended Statement of Claim consequent of skiing across the resort boundary and into Kosciusko National Park, were inherent risks.”

8. The defendant also pleaded that skiing is a “dangerous recreational activity” within the meaning of s 5K of the Civil Liability Act and, accordingly, that it is not liable in negligence for the materialisation of any obvious risk to the deceased. As well, the defendant relied upon the provisions of s 5M of the Civil Liability Act to plead that it did not owe a duty to the deceased or the plaintiffs.

9. Each of the proceedings is to be heard together. The proceedings have been fixed for hearing on 24 August 2017.

Notice of Motion

10. On 19 August 2016, the solicitor for each plaintiff filed a Notice of Motion seeking an order from the Court that a view be conducted of the Ski Resort, the Charlotte Pass area, and the adjoining parts of the Kosciusko National Park.

11. The Notice of Motion also sought an order that the defendant be prohibited from relying upon a second expert report.

12. These orders were opposed by the defendant. The Court heard evidence and submissions relating to the issues on 23 September 2016. This judgment relates to that Notice of Motion.

Relevant Legislation

13. Section 53 of the Evidence Act 1995 permits a court, on application, to order that a view be held. Section 53(2) provides that the Court cannot make such an order unless it is satisfied that the parties will be given a reasonable opportunity to be present with the Court.

14. Section 53(3) of the Evidence Act is in the following form:

“Without limiting the matters that the judge may take into account in deciding whether to make an order, the judge is to take into account the following:

(a) whether the parties will be present;

(b) whether the demonstration, experiment or inspection will, in the court’s opinion assist the Court in resolving issues of fact or understanding the evidence;

(c) the danger that the demonstration, experiment or inspection might be unfairly prejudicial, might be misleading or confusing or might cause or result in undue waste of time;

(d) …

(e) in the case of an inspection – the extent to which the place or thing to be inspected has materially altered.”

15. The order sought is an interlocutory one, and is sought at this early point in time to enable the litigation to be managed efficiently. In making any such order, the Court is obliged to give effect to the overriding purpose in s 56(1) of the Civil Procedure Act 2005 (“the CP Act”) “… to facilitate the just, quick and cheap resolution of the real issues in the proceedings”.

16. The Court is also obliged to have regard to the objects of case management set out in s 57 of the CP Act, namely: the just determination of the proceedings; the efficient disposal of the business of the Court; the efficient use of available judicial and administrative resources; and the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties.

17. Also, s 58 of the CP Act requires the Court to follow the dictates of justice. Relevantly for the present case, those dictates of justice include the degree of difficulty or complexity to which the issues in the proceedings give rise, and the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction.

The Plaintiffs’ Case

18. The case for each of the plaintiffs was that the weather conditions on the morning when Evan left the confines of the Ski Resort were extreme. It was snowing heavily and the conditions could probably be described as a ‘whiteout’. The plaintiffs claimed that the level of visibility in such conditions, particularly at the high points of the Ski Resort, could be quite poor and could deteriorate quite quickly. The plaintiffs point to a statement from Senior Constable Stephen Hopkins, made on 17 December 2010, and extracts from that statement which are recorded in an expert report of Mr J Mark Woods dated 8 April 2015. According to that statement, Senior Constable Hopkins said:

“I noted that the boundary ropes along the western side of the resort from the top of the chairlift to a point near the turning circle. However in some locations the rope was high off the ground mainly in areas where the ground dipped. In some areas the rope was tied to trees with some distance between fastening points. I formed the opinion that in adverse conditions a person who had become disoriented could pass under the rope without being aware.”

19. Senior Constable Hopkins also formed the opinion that if a person was disoriented they could leave the Ski Resort and ski in a generally westerly direction down a slope and into the vicinity of the Snowy River.

20. Mr Woods expressed the view that there were a number of points at which one could leave the Ski Resort and enter into “the back country”, being the area to the west of the Ski Resort which formed part of the Kosciusko National Park. Two of those points were located at the top of the Kosciusko Triple Chair lift and the Guthrie’s High Speed Poma lift. Mr Woods described a third such point as the “turning circle”. The significance of these three points is that they are all at the top of the Ski Resort, at the high point of a ridge which generally runs north/south. In particular, if one was to cross over the ridgeline to the west and start to ski down to the Snowy River, one would not be able to continue to ski downhill to the Ski Resort. On the contrary, one would need to walk back up the hill towards the ridge to return to the Ski Resort. Mr Woods noted that this was not necessarily an easy thing to do.

21. Because no one saw Evan ski out of the Ski Resort, the plaintiffs’ case as to where this occurred depends upon the drawing of an inference based upon the topography, the ropes and fences, the prevailing weather conditions, and the level of visibility at the Ski Resort. A significant number of police photographs were taken at, on in the few days after, the commencement of the search for Evan. The photographs depict from a range of viewpoints the topography of the Ski Resort as well as various landmarks, including fencing, tree clumps and buildings.

22. In part, the plaintiffs’ case is that there is nothing about the features visible from the top of the ridge looking east, into the Ski Resort, or looking west, towards the Snowy River which would, particularly in conditions of poor visibility, provide a guide to the skier as to where they should ski.

23. Mr Woods, in his expert report, also recorded in some detail what he observed at the time when he visited the site, and how he would have expected an individual skier to be able to see and understand how to make their way around the Ski Resort’s boundaries.

24. The plaintiffs submitted that the crucial issue in the determination of their case was the nature of the topography, and the way in which the topography would have appeared to a skier in Evan’s position or, alternatively, the way in which the topography would have appeared to a person who was responsible for adequately marking the Ski Resort’s boundaries. As well, the plaintiffs submitted that the nature of the grooming of the runs in the Ski Resort meant that there were sizeable areas that were ungroomed and, accordingly, it would not be readily apparent to a skier that the ungroomed snow existing to the west of the ridgeline leading down to the Snowy River was not part of the Ski Resort.

25. Senior counsel for the plaintiffs put this submission orally:

“We believe it is critical the judge be able to see, and there is not left an argument between photographs, and what is to be understood and discerned from them, and to be able to properly interpret them so we see it as essential that it [the view] be evidence in the case.”

26. The plaintiffs pointed out that each of the parties had determined that it was necessary for the experts upon whose opinion each would rely to visit the site and to get a sense, in winter after the snowfall, of the topography of the Ski Resort, the need for proper and appropriate boundary markers, and generally, all of the features which would confront a skier at the top of the Ski Resort.

27. The plaintiffs submitted that, having regard to the significance of the case, the length of time it was likely to occupy, and the costs generally involved in the preparation for and the conduct of the case, the additional time and costs which would be occasioned by a view of the Ski Resort were not sufficient to weigh against the making of such an order. The plaintiffs submitted that the additional costs occasioned by the view would be relatively modest.

The Defendant’s Case

28. The defendant submitted that the Court ought decline to order a view. It relied upon a number of submissions including:

1. that whilst it was open to the Court to order a view well in advance of a hearing, the view in this case ought only be ordered by the trial Judge, if that Judge thought, having regard to all of the evidence put before the Court, that a view would be of assistance in understanding the evidence;

2. the Ski Resort is located within a national park in an extremely remote area which is inaccessible by road during the winter months. The defendant submitted that significant difficulties with access during winter meant that a view was not justified;

3. the plaintiffs’ expert did not express an opinion that a view would be either necessary or appropriate;

4. the time which the view would take, and the cost involved, were excessive and would cause severe prejudice to both parties in having to fund the expense;

5. because it is likely that the weather and snow conditions at the time of the view will be different to those which prevailed at the time of the relevant events, the view will be of little or no assistance to the Court in understanding the evidence; and

6. the undertaking of a view in a small ski resort in the middle of a peak winter season, in circumstances where pedestrian access is not permitted throughout the Ski Resort, would create significant disruption to the defendant’s ordinary, everyday commercial activities, and would create safety issues for skiers using the Ski Resort.

Discernment

29. Counsel for the defendant accepted that it was open to the Court to make an order for a view, at a time before a trial Judge was allocated, but he submitted that in the particular circumstances of this case, such a course would be inappropriate.

30. If a view were to take place, it would need to occur in winter when the snow conditions were such as to give the Court a reasonable sense of the topography, layout, distances and visibility involved. Necessarily, some adjustment would need to be made for conditions that differed from those existing on the day that Evan died. The snow season is a time of peak activity for the defendant. It seems to me that, given the distance and cost involved, and in particular the need to secure accommodation at or near the Ski Resort during its peak season, the parties would need to know whether or not a view was to take place well in advance of the trial, and when it was to take place. As well, having regard to the potential disruption to the defendant’s operations, it is only fair and just that the defendant knows well in advance of the Court’s visit so that it can make such arrangements as it thinks fit.

31. Accordingly, I do not accept the defendant’s principal submission that it is too early for the Court to make a decision about whether a view should take place or not, and that the decision ought be left to the trial Judge. However, it is appropriate to point out at this stage that even if the Court makes an order that a view is to take place, it would be open to a trial Judge, on application, to vacate that order if, having regard to the evidence placed before him or her, the trial Judge did not think that a view was warranted.

32. I am persuaded by the plaintiffs’ submissions that if a trial Judge determined in the course of hearing the proceedings that a view was necessary, it would be logistically and practically impossible to arrange a view on short notice.

33. Accordingly, it is appropriate that I proceed to determine, at this point, whether or not the Court should schedule a view to take place, even though the decision is being made well before the trial takes place.

34. I accept the argument for the plaintiffs that, notwithstanding the passage of time, the Court would be likely to be assisted by a view. I have carefully examined the maps and diagrams of the area in question, and the many photographs that were either included in expert reports or otherwise tendered. Whilst one obtains a reasonable sense of the topography of the Ski Resort from this material, it is hard to get a full and complete understanding of the relationship between the Ski Resort and the relevant areas of the Kosciusko National Park. It is also hard to make sense of the different descriptions of what the experts saw when they visited the Ski Resort, about two weeks apart, in circumstances where one is not well familiar with the area. Whilst I accept that the snow conditions which the Court will observe on the view may well be different to those which prevailed on the day of Evan’s death, I am satisfied that, by reference to the photographs, the Court can adequately account for those differing snow conditions.

35. To my mind, the fundamental need for a view in this case arises from the difficulty in getting an adequate sense from the photographs, diagrams and maps of the height differentials in the topography of the Ski Resort and the difficulties likely to be encountered by a person when skiing off the groomed piste of the Ski Resort, which may alert a skier that they had skied outside the Ski Resort’s boundaries. As well, a view would enable the trial Judge to gain a real understanding of the adequacy of the markings used by the Ski Resort to define its boundaries.

36. Accordingly, I am satisfied that a view would be both relevant and of assistance to the trial Judge in the hearing and disposition of the plaintiffs’ claims.

37. But against that and before any order is made, the Court needs to consider the time and cost of the view. In the first place it is not unrealistic to conclude that, in light of the travel involved, and the nature of the transport needed to visit the Ski Resort, it would take a minimum of two days, and more likely three days, for a view to take place. However, whilst a view would obviously take time, I am satisfied that it would also save time that would otherwise be spent during the proceedings by experts and other witnesses explaining the topography, the maps, diagrams and photographs, and the different accounts of the area by various witnesses. Accordingly, I am not persuaded by the defendant that the extra time occasioned by the view would be excessive.

38. Secondly, there are necessarily costs additional to transport costs, such as barristers’ and solicitors’ fees, that are associated with a view. The evidence from the defendant’s solicitor suggested that the total cost would be in the order of $125,000 for a three day view. In an affidavit of 8 September 2016, Ms Bonner, the plaintiff’s solicitor, suggested that costs could be significantly less, and that it would be practical to undertake the view in two days.

39. I am not satisfied that the estimate of costs given by the defendant’s solicitor is a reasonable one. For example, the defendant’s solicitor has included three days’ fees for senior and junior counsel and solicitors. These fees total $95,000. It is a decision for each party as to whether they send senior and junior counsel and a solicitor to attend the view. The Court does not require parties to do so. The parties may elect, having regard to their financial resources, how they will be represented at the view. If they elect, for example, to be represented by junior counsel only, or perhaps junior counsel and a solicitor, then these costs would be considerably lower.

29. Concentrating on travel costs, and reducing the number of legal representatives attending on both sides, the view would undoubtedly be costly, but could be achieved at a relatively reasonable cost, probably in the order of $20,000 to $30,000.

30. I am not satisfied that an expense of this order outweighs the benefits which are to be obtained from such a view.

31. I have had regard to the balance of the submissions of the defendant. However, it seems to me that the interests of justice warrant an order for a view.

32. In my opinion, the view should take place after the opening of the proceedings, the tendering of expert reports and written evidence, and before any of the witnesses are cross-examined. In that way, the Court will undertake the view with the benefit of a broad understanding of the evidence to be led, and will be able to satisfy itself in advance of that evidence what the real issues in the proceedings are.

33. I also conclude that in order to enable arrangements to be made for accommodation, and for the defendant to be in a position to ensure that the view can occur without disruption to its orderly operations and the safety of its patrons, it is proper that the Court give as much notice as possible of when the view is to take place.

34. As I have earlier indicated, it remains open to either party, if further evidence comes to light or the complexion of the evidence changes significantly, to make application to the Court to vacate the order.

35. Accordingly, there will be an order that a view is to take place.

Expert Reports

47. The second matter raised by the plaintiffs in their Notice of Motion was that the defendant should not be permitted to rely upon a second expert report prepared by Mr Petrozzi.

48. It became apparent in the course of submissions that the plaintiffs’ case relied not only on one retained and qualified expert, but on the views expressed by experienced experts involved in the search and rescue operation for Evan. These experts included a number of police officers.

49. As well, it seems to me that evidence of the adequacy or inadequacy of the search and rescue operations available at the Ski Resort, whilst not the subject of a pleaded count in negligence, is nevertheless relevant to the context in which the Court is to make findings on the need for, and the appropriate type of, boundary fences, markers or delineations.

50. In those circumstances, I am not satisfied that I should make an order which precludes the defendant relying upon two expert reports.

Costs

51. The plaintiffs have enjoyed success in part of the Motion, namely in obtaining an early order for a view. The plaintiffs, however, did not succeed with respect to prohibiting the defendant from relying on more than one qualified expert.

52. In all of the circumstances, the appropriate order is that each party pay their own costs of the Motion.

Orders

53. I make the following orders:

1. Order that a view of the Charlotte Pass Ski Resort take place on 26 August 2017.

2. Order that each party pay their own costs of the plaintiffs’ Notice of Motion filed 19 August 2016.

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Decision last updated: 12 December 2016