Kosciusko Thredbo Pty Ltd v Smith

NEW SOUTH WALES COURT OF APPEAL

CITATION: Kosciusko Thredbo Pty Ltd v Smith [2001] NSWCA 355

FILE NUMBER(S):
41024/00

HEARING DATE(S): 11 September 2001

JUDGMENT DATE: 05/10/2001

PARTIES:
Kosciusko Thredbo Pty Ltd
(Appellant)
v
Edward Bennett Smith
(Respondent)

JUDGMENT OF: Stein JA Hodgson JA Davies AJA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 3423/00

LOWER COURT JUDICIAL OFFICER: Balla DCJ

COUNSEL:
A: Mr J L Glissan QC, Mr Clyne
R: Mr F Curran

SOLICITORS:
A: Michael Samios, Lawyer
R: Hosie & Partners, Solicitors

CATCHWORDS:
Negligence
whether skiing instructor failed to allow a sufficient runout area when teaching beginners to snowplough
whether skiing instructor had duty of care to those he was instructing
whether skiing instructor's misjudgment amounted to a mere error of judgment or negligence
significance of factor that skiing is a hazardous sport discussed.

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 41024/00
DC 3423/00
STEIN JA
HODGSON JA
DAVIES AJA
FRIDAY 5 OCTOBER 2001

KOSCIUSKO THREDBO PTY LTD v Edward Bennett SMITH
JUDGMENT

STEIN JA: I agree with Davies AJA.
HODGSON JA: I agree with Davies AJA.
DAVIES AJA: This is an appeal from the judgment of her Honour Judge A S Balla, a Judge of the District Court of New South Wales. Her Honour awarded damages for negligence in favour of the present respondent, Edward Bennett Smith, against the present appellant, Kosciusko Thredbo Pty Ltd, in respect of an accident which had occurred on Friday Flat, the beginners' area in the Thredbo Ski Resort, on Saturday, 15 August 1998. In the appeal, Mr J L Glissan QC and Mr J B Clyne of counsel appeared for the appellant. Mr F D Curran of counsel appeared for the respondent.
It is unnecessary to discuss all the relevant facts for, in the course of his address, Mr Glissan abandoned a contention that the appellant owed no duty of care to the respondent as skiing is a hazardous sport and those who partake in the sport accept the dangers that are inherent in it. Mr Curran did not pursue any allegation of negligence founded on liability of the appellant as occupier of the Thredbo Ski Resort.
The appeal thus proceeded with an acceptance that, whilst the dangers which are inherent in skiing on poor snow, which was the circumstance prevailing on 15 August 1998, must be taken into account, there nevertheless remained on the instructor, an employee of the appellant who was instructing a group of beginners including the respondent, a duty to take reasonable care for the safety of those whom he was instructing.
On 15 August 1998, there were sixty to seventy groups taught during the day and between 900 and 1,000 people were instructed. The snow was poor. Overnight, snow-making machines had been used to increase the snow cover and a grooming machine had worked the area. This machine had numerous attachments which groomed the slope, broke up the ice and fluffed up the snow. Nevertheless, the snow tended to be hard and/or icy, although useable.
The skiing conditions were difficult for beginners. The respondent's daughter had attempted to ski shortly before the respondent's lesson but had given up because she found the conditions too slippery and dangerous. Mr D C Burtenshaw, one of the experts called for the appellant, expressed the view that the snow was "hard packed". Mr Burtenshaw gave, inter alia, this evidence:-
"Q. Do we take it from that, that you are reasonably satisfied from all of your inquiries that it was the type of snow that you refer to as hard packed?
A. Yes."
The respondent, who was 48 years of age and weighed about 85kg at the relevant time, was a beginner. He had skied the previous day and had had a beginner's lesson. On 15 August 1998, he was placed in the Level 6 lesson which was the next level up, appropriate to persons who were "sometimes able to turn and stop". The lesson was to "Ski in snowplough position". This was the appropriate lesson for the respondent to take.
The instructor took his students on the chairlift to the top of Friday Flat. He then took them a little down the slope to a position which he considered appropriate for the lesson. He took the stocks and put them to one side. He told his students how to snowplough without using stocks. He then skied down to a position six or twelve metres below the students. The instructor called for the first student to snowplough down to him. The respondent was probably the first to go.
The respondent saw that there was a group of people standing about six metres beyond the instructor. They were stationary looking down the slope. When asked by the instructor to go, the respondent set off in the snowplough position. He found that, although he adopted the snowplough position, his skis kept moving with a grating sound over the snow. He passed the instructor. He tried to dig in his skis in an attempt to stop but he continued on until he collided with a person in the group beyond the instructor. He fell and the person whom he struck also fell, falling on the respondent's left leg. The respondent suffered injury to his left leg which has had long-term consequences.
As the trial Judge did not accept the evidence of an expert called on behalf of the respondent, the expert evidence to which attention must be given is that of Mr K A Clifford, the General Manager of the appellant, of Mr D C Burtenshaw, who had had many years' experience as a ski instructor and had been a supervisor at the Friday Flat Ski School from 1989 to 1993, and of Mr J R Gow, who had a 34 year career in the ski industry.
All these witnesses accepted that an instructor of a beginner's snowplough class should ensure that there is adequate runout space in case a student is unable to stop near the instructor. The principal issue in this case was whether the instructor had allowed an adequate runout and, if not, whether the failure to do so was due to a mere error of judgment or negligence on his part. The instructor involved was not identified by either party and did not give evidence.
The trial Judge found against the appellant and stated:-
"I accept that the weight of the evidence establishes that the presence of the other unidentified skier [the skier with whom the respondent collided] presented a foreseeable risk of injury to the plaintiff. In making this finding I have taken into account the evidence of Mr Clifford. I have also taken into account the evidence of Mr Burtenshaw to the effect that he would have made sure that the area was clear, that if he had been the instructor he would have looked, that the first thing he would have done was look for obstacles and that people 6 metres away were a hazard. I have also taken into account the evidence of Mr Gow who said that depending on the terrain an adequate run out area should be allowed, if he had been the instructor he would have expected the pupil to stop immediately below him or within 4 - 5 metres and that it was incumbent on the instructor to clear a run off path for the distance it takes a person to stop. I accept the submission made by counsel for the plaintiff that in the circumstances of the plaintiff's injury there is very little real difference between the 4 - 5 metres estimated by Mr Gow and the 6 metres estimated by the plaintiff.
…
… I am satisfied that the weight of the expert evidence establishes that the icy surface affected the plaintiff's ability to stop. For example Mr Burtenshaw conceded that the stopping length is longer on ice.
I do not consider that this aspect can be divorced from the preceding issue, that is the proximity of the other skier.
Taking both of these factors into account I am satisfied that the defendant should reasonably have foreseen that the instructor's conduct involved a risk of injury to the plaintiff.
It is then necessary to determine what a reasonable man would do by way of response to the risks. The evidence establishes that the instructor could either have asked the person to leave or waited until the person had left before allowing the plaintiff to begin his snow plough. I am satisfied that a reasonable instructor would have taken one of these two steps and that neither would have involved any significant expense, difficulty or inconvenience."
There are matters which can be put to the contrary of her Honour's findings. For example, her Honour mentioned that Mr Burtenshaw had said that people six metres away were a hazard. However, the relevant answer of Mr Burtenshaw was, "If the facts are true yes". It is not clear what facts Mr Burtenshaw was accepting. Mr Gow, when describing what he would have done in like circumstances, said, inter alia:-
"A. … if I was instructing I would position myself in a place where I was expecting the students to stop immediately below me and I would be looking for them to stop immediately below me or within 5 metres, 4 or 5 metres of where I am. So if that area was fair I think I'd be satisfied."
Mr Gow also pointed out that the accident could have been occasioned by a number of factors. Mr Gow said:-
"A. Well again you're dealing with a sport that involves a slippery surface, gravity and speed and there are no guarantees. The reason Mr Smith continued his progress in a straight line could have been the snow conditions, it could have been his position on the skis, it could have been what he was doing that the skis were not responding properly, so that there would be a number of variables which I have no hint as to which they may have been."
There were many such passages in the evidence favourable to the appellant's case. I need not set them out.
However, it was not in doubt that the length of the runout allowed by the instructor was inadequate to allow the inexperienced respondent to stop in the conditions which existed. Mr Clifford and Mr Burtenshaw both expressed the view that care should be taken. Mr Clifford appeared to concede that insufficient run off room had been allowed. He gave this evidence:-
"Q.         Now if that were in fact the case, as an experienced Olympian and very, very experienced skier, you would presume would you not that insufficient run off room had been allowed for this trainee, this novice to do his snowplough manoeuvre would you not?
A.           If the circumstances had happened then.
…
Q.           There would be insufficient run off room allowed?
A.           If he was skiing uncontrolled yes."
Those answers were given in response to questions which fairly put the facts of the case to Mr Clifford.
Mr Clifford went on to agree that there were steps that the instructor could have taken. Mr Clifford agreed as follows:-
"Q. And on the assumed facts that I have asked you to assume there would have been nothing to stop this ski instructor putting up his hand, pausing and turning around and asking the people behind, by yelling to them to attract attention, to move to one side. You would agree with that?
A. He could have done that."
Mr Burtenshaw gave evidence that, if he were instructing, he would check the runout area. Mr Burtenshaw gave this evidence, inter alia:-
"Q.         … you would be at pains to make sure that that area was clear and that no person was likely to ski or walk or stand in the run out area?
A.           I would try to my best ability which is sometimes near impossible in Australian situations.
Q.           Well I take it Mr Burtenshaw that you would firstly look would you?
A.           Yes, I would actually look while I was skiing from the group to where I was going to finish, and then I would check the area.
…
Q.           But the first thing you would do I suggest is have a look to see if there were such persons present?
A.           Yes and I would have done it while I was skiing to the position where I could turn back and talk to the class.
…
A.           … you are taught to continually, visually assess while you are moving, while you are talking to your group and while you are conducting your class.
…
Q.           On a reasonably congested slope it therefore is quite important that a supervising instructor has to be constantly vigilant of such rapid movements?
A.           Correct."
Mr Burtenshaw also said:-
"A. … May be he [the instructor] has asked for the first skier to come down, perhaps then he would look around to make sure at that point, then may be he realised at that point. If it was me and I realised at that point, I would have taken appropriate precautions."
Mr Burtenshaw also gave this evidence in relation to the snow, which he had earlier said was hard packed:-
"Q.         The proposition simply is this, that if you have got a tender novice, who on his first day ever on skis, skis in slush conditions at 11.30 or thereabouts, and then the following morning skis for the very first time in hard packed snow conditions, without a warning about the difference in those conditions, that could be a trap?
A.           It could be yes.
…
Q.           What happens here then is that the ski moves over the hard packed ice much quicker than it does over the slush conditions, is that so?
A.           Correct yes.
Q.           Therefore the stopping distance has to be greater when there is ice or hard packed snow on the surface?
A.           Yes.
Q.           I am suggesting to you that an obstacle, such as another human standing, or a group of six standing six metres behind the instructor constitutes a significant hazard in those circumstances. Do you agree with that if those facts are true?
A.           If the facts are true yes."
Even Mr Gow moved away from his earlier evidence as to four to five metres. Mr Gow gave this evidence:-
"HER HONOUR: Q. What did you say, there's a limit to the amount of space?
A. The amount of space that the instructor could expect to provide for his class at a given time.
CURRAN: Q. What is that limit?
A. Well that's impossible for me to sit here and quantify, it would depend on every situation, but certainly in a case of a relatively flat novice slope, and that is, no matter the fact that it was the steepest part of it, it is a very flat novice slope overall, I would think that being whatever it was, 6 or 7 metres above another party, was adequate in my opinion."
The trial Judge was correct in concluding that the appellant had a duty of care and was entitled to conclude that the instructor misjudged the length of the runout area which was necessary having regard to the snow conditions prevailing on the day.
Her Honour then had to consider whether the instructor's mistake amounted to a mere error of judgment or to negligence, that is, a failure to take reasonable care for the safety of his students. This was a difficult issue to determine, particularly as the instructor did not give evidence. It may be surmised that the instructor considered that the runout area allowed was sufficient but it is impossible to say whether he gave any attention to the people behind him, for he did not call out any warning to them or give any warning to his students. The evidence does not show whether he took into account the snow conditions on the day. Nor does the evidence show whether the respondent did something that the instructor did not expect him to do or failed to do something that the instructor expected him to do.
On the whole of the evidence, the trial Judge concluded that the instructor was negligent in that he failed to take reasonable care to ensure that the runout area was of an adequate length. It seems to me that, in coming to this conclusion, the trial Judge was particularly influenced by the evidence of Mr Clifford and of Mr Burtenshaw, both of whom accepted the need for care and vigilance on an instructor's part. Mr Burtenshaw, in particular, was persuasive when he was speaking of the precautions he would have taken.
This was a difficult case. Another judge may have taken a different view. However, I am satisfied that there was adequate material before the trial Judge to warrant the conclusion which she drew and I am not satisfied that she erred in her conclusion. In particular, I agree with the trial Judge that there was little difference between the four to five metres which was spoken of in some of the evidence and the six metres which the respondent estimated as the distance between the instructor and the group with whom the respondent collided. I am satisfied that the group behind the instructor was present when he called for the respondent to come down. I am not satisfied that the trial Judge erred in concluding that the instructor failed to exercise reasonable care and vigilance having regard to the conditions on the day.
The written submissions of the appellant raised issues of contributory negligence and volenti. These issues were not referred to by Mr Glissan in his address to this Court, although they were discussed in the written submissions. It is sufficient for me to say that I agree with the trial Judge's view that neither defence was established. On these issues, the trial Judge was clearly correct.
For these reasons, I would dismiss the appeal with costs.

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LAST UPDATED: 05/10/2001

[2001] NSWCA 355

5 October 2001

Key Legal Topics

Areas of Law

Negligence & Tort

Employment Law

Legal Concepts

Duty of Care

Negligence

Appeal

Costs