Perisher Blue Pty Ltd v Nair-Smith

[2015] NSWCA 90

Court of Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:	Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90
Hearing dates:	16, 17, 18 September 2014
Decision date:	09 April 2015
Before:	Barrett JA; Gleeson JA; Tobias AJA
Decision:	1. Appeal allowed. 2. 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.” 3. The respondent pay one-half of the appellant’s costs of the appeal. 4. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).
Catchwords:	TORTS - negligence – accident boarding chairlift – chair approached with safety bar down – lift operator raised bar - duty of care - nature and scope of duty - relevant risk – breach of duty of care – causation - whether breach causative of damage suffered – materialisation of inherent risk – quantification of damages CONTRACTS – terms – implied terms – s 74(1) of the Trade Practices Act – duty to render services with “due care and skill” – breach of implied term – assessment of damages – quantification of damages – ss 4L, 68, 68B, 74(1) of the Trade Practices Act – contract for the provision of “recreational services” – effect exclusion clauses relating to more than personal injury or death – s 4L – “contravention” of the act CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) – s 74(1) of the Trade Practices Act – Part 2 of the Civil Liability Act – direct inconsistency – quantification of damages – “full contractual liability” DAMAGES – appellate review – applicable principles – diminution in work capacity – cause of diminution – calculation of rate for domestic assistance
Legislation Cited:	Carriage of Goods by Land (Carrier’s Liability) Act 1967 (Qld) Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) The Commonwealth Constitution Act 1901 (Cth)
Cases Cited:	Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951) Davis v Bunn [1936] HCA 44; 56 CLR 246 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Insight Vacations v Young [2010] NSWCA 137 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 Manley v Alexander [2005] HCA 79; 80 ALJR 413 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463 Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Shaw v Thomas [2010] NSWCA 169 Treasury 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

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):

1. 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: [91].

In relation to (2):

1.    The identification of the relevant risk under the Civil Liability Act is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm which the plaintiff seeks damages: [98].

Civil Liability Act 2002 (NSW) s 5B. Roads and Traffic Authority of New South Wales v DedererRoads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 applied. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 considered.

2. It is unnecessary to determine the precise source of the plaintiff’s potential injuries when identifying the relevant risk under Part 1A of the Civil Liability Act: [101].

Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, Shaw v Thomas [2010] NSWCA 169 applied; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 considered.

3. The relevant risk in present case was the risk that a skier might 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: [104].

In relation to (3):

1. Reasonable care in the circumstances required Mr Lofberg to observe the condition of the chair as it exited the bullwheel. His failure to do so constituted a breach of the appellant’s duty of care: [137].

Civil Liability Act 2002 (NSW) ss 5B, 5C. Derrick v Cheung [2001] HCA 48; 181 ALR 301, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 applied. Davis v Bunn [1936] HCA 44; 56 CLR 246 referred to.

In relation to (4):

1. The evidence does not allow a finding that the respondent would not have been out of alignment with the chair but for any apprehension produced by Mr Lofberg’s inattention at a point at which reasonable care required him to act, but did not: [161]-[164].

Civil Liability Act 2002 (NSW) ss 5D, 5E. Jones v Dunkel [1959] HCA 8; 101 CLR 298, Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951), Luxton v Vines [1952] HCA 19; 85 CLR 352 applied.

In relation to (5):

1. The respondent’s injuries were not the materialisation of an inherent risk because they could have been avoided by the exercise of reasonable care and skill: [167].

Civil Liability Act 2002 (NSW) s 5I.

In relation to (6):

1. The limitations on damages imposed by Part 2 of the Civil Liability Act are invalid according to s 109 of the Constitution because they are directly inconsistent with the right to “full contractual liability” conferred by s 74(1) of the Trade Practices Act 1975 (NSW). “Full contractual liability” refers to an entitlement to recover the full amount of damages recoverable at common law undiminished by any State’s or Territory’s legislation and free from any intrusion by such legislation for any breach of s 74: [194]-[195].

Commonwealth of Australia Constitution Act 1901 (Cth) s 109, Trade Practices Act 1975 (Cth) ss 74, 742A, Civil Liability Act 2002 (NSW) Part 2, s 5N. Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388, Insight Vacations v Young [2010] NSWCA 137 applied.

In relation to (7):

1. The ticket contract was for the supply of “recreational services” within the meaning of s 68(2) of the Trade Practices Act because the common intended purpose and object of the transaction was to facilitate resort skiing which included, but was not limited to, the provision of lifting services: [201].

Trade Practices Act 1975 (Cth) ss 68, 68B, 74. Civil Liability Act 2002 (NSW). Part 1A, s 5N.

2.    The term of the ticket contract that purports to exclude liability for more than personal injury or death does not answer the description in s 68B(1)(d) of the Trade Practices Act and is, by force of s 68, void in its entirety and not just to the extent that it purports to exclude, restrict or modify liability for anything beyond personal injury or death: [216].

Trade Practices Act 1975 (Cth) ss 4L, 68, 68B. Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 applied.

3.   Section 4L of the Trade Practices Act was not engaged in the present case because the inclusion of a term in the contract which purports to avoid the application of the warranty implied by s 74 will no constitutes a contravention of the Act: [218].

Trade Practices Act 1975 (Cth) ss 4L, 74, 68.

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).

7. Because much depends on matters of fact, it is necessary to deal in some detail with the judge’s factual findings and the challenges to them.

8. The triple chairlift, as its name implies, consists of a series of chairs each of which is suspended from an overhead cable and can accommodate three persons sitting side by side. The chairs carry skiers from a loading station at a lower point on the mountain to a disembarkation station at a higher point on the mountain. The cable runs around large wheels called “bullwheels” at the top station and the bottom station and is constantly moving.

9. The space between chairs rounding the bullwheel and approaching the loading point is such that, immediately after one loaded chair has departed, up to three skiers can position themselves at the loading point in a way that enables them to sit down on to the next chair after it has passed around the bullwheel and reached the loading point.

10. If, as on the occasion in question, three skiers are to board, they stand on a transverse line marked on the snow at the loading point with their skis pointing in the uphill direction that the chair will follow. This line is known as the “load line”. They look behind for the approaching empty chair and, when it arrives, sit down on to it. They must, of course, be close enough together that all three are collected by the seat of the chair when it reaches them. The person on the right must be not too far to the right and the person on the left must be not too far to the left.

11. Each chair has a rail in the nature of an armrest at each end. A safety bar, hinged at each side of the chair and running from one side to the other, is raised before persons mount a chair and is lowered by them after they are in position. It serves a safety purpose related to the possibility that persons seated in the chair may fall forward. When lowered, the safety bar is at roughly the height of the waists of the seated passengers and in front of them so that their hands may rest on it and, in due course, raise it immediately before they disembark. Persons waiting at the loading point cannot board a chair if its bar is down. This is because it is across the front of the seat and prevents anyone placing their body on it.

12. On the day in question, the respondent boarded the chairlift with two friends, Mr Nowland and Mrs Nowland. All three were wearing skis. They made their way to the boarding point and positioned themselves on the load line. As they faced uphill, the respondent was on the right, Mrs Nowland was on the left and Mr Nowland was between them. An employee of the appellant, Mr Lofberg, was in attendance. His precise position and actions were the subject of dispute.

13. Persons standing on skis at the boarding point waiting for a chair can, by looking to their left and slightly ahead, see empty chairs as they come downhill on the cable before turning 180 degrees on the bullwheel behind them and commencing the approach to the loading point for the next uphill journey.

14. The respondent and her companions, having assembled on the load line, became aware that an empty chair to their left was approaching at the end of its downhill journey with its safety bar down – that is, in the position it would normally occupy in front of passengers who had boarded the chair and lowered the bar in front of them.

15. Seeing that the bar of the approaching chair was down, the respondent and her companions called out to attract the attention of Mr Lofberg. He raised the bar of the chair. The three skiers then mounted the chair but the respondent did so in such a way that the armrest at the right hand end of the chair came between her legs and she was injured by its contact with her groin area.

Proceedings below

16. 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.

1. 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.

2. 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.

7. The appellant’s servant, through his conduct enumerated at (6) above, failed to properly implement the appellant’s lift procedures.

17. 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.

18. The amended statement of claim set out particulars of the respondent’s injuries allegedly occasioned by the incident. The respondent alleged that she suffered injury to her left vulva, back, right hip and right thigh; abrasion to the left portion of her left labium majus, bruising, anxiety, humiliation, shock and sequelae for which she sought damages for out of pocket expenses, domestic assistance or attendant care, loss of income and loss of earning capacity, and future economic loss.

19. The appellant accepted that a duty of care was owed to the respondent but denied any tortious liability arising out of the incident. In the alternative, it submitted that the respondent was guilty of contributory negligence. Similarly, the appellant accepted that it was under a contractual obligation to provide its transportation services to the respondent with due care and skill but denied any breach of that obligation and argued that any liability was nevertheless excluded by virtue of indemnities appearing on the lift pass and on the signage located at the point of sale of the pass which it alleged were incorporated into the contract. The appellant denied that it was under an implied obligation to render its services with due care and skill by virtue of s 74 of the Trade Practices Act because that section was rendered inapplicable by ss 68A and 68B. In any event, the appellant argued that the means of establishing a breach of the term implied by s 74 and of calculating the respondent’s damages in respect of any such breach were governed by Parts 1A and 2 of the Civil Liability Act 2002 (NSW). The respondent alleged that the Civil Liability Act did not apply because it was inconsistent with s 74 of the Trade Practices Act and was accordingly (and to the extent of the inconsistency) invalid by virtue of s 109 of the Constitution.

Issues before the primary judge

20. 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

21. 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.

22. 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.

23. 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.

24. The primary judge found that the failure to take this precaution resulted in Mr Lofberg having to lunge or dive at the chair in a rushed manner, which caused the respondent and her companions to panic and jostle so that the respondent was displaced from her original position of alignment with the chair. It was in this way that the appellant’s negligence was found to have been causative of the injuries for which the respondent sought damages.

25. The primary judge rejected the appellant’s submissions that the risk of a lift operator having to take urgent remedial action to raise a down-bar was an inherent risk involved in boarding a chairlift and that such boarding was a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act. These findings made it unnecessary to consider whether the respondent’s accident was the materialisation of an obvious risk.

26. Finally, the primary judge held that the respondent was not contributorily negligent for the injuries she sustained. This was because the appellant failed to discharge its onus of proving that the respondent moved out of alignment with the chair as a result of her panicking as opposed to the panicking of her companions.

27. In the first judgment, the primary judge discussed in detail the evidence concerning the extent of damages recoverable but did not make final orders. As a number of issues going to the quantification of damages had not been addressed fully, the primary judge deferred consideration of the issue to the hearing of 9 September 2013. He also deferred consideration of the statutory inconsistency issue to that date. The decision on those matters was announced on 4 October 2013. The primary judge found that the Parts 1A and 2 of the Civil Liability Act were directly inconsistent with s 74 of the Trade Practices Act on the basis of the High Court’s reasoning in Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 (“Wallis”) and were thereby invalid to the extent of that inconsistency in accordance with s 109 of the Commonwealth Constitution. Parts 1A and 2 neither applied to regulate the means of establishing a breach of s 74 of the Trade Practices Act nor to limit the amount of damages recoverable in respect of such a breach.

28. In relation to damages, the primary judge tabulated his findings as follows:

Civil Liability Act	Common Law
General damages	34,775.00	135,000.00 (80,000 for the future and 55,000 for the past period)
Past economic loss	61,701.62	314,458.18
Future economic loss	nil	325,000.00
Domestic assistance – past	87,638.30	114,112.50
Domestic assistance - future	127,820.68 (159,775.86 x 0.8)	188,025.60 (235,032.00 x 0.8)
Past paid assistance - cleaner	26,312.50	26,312.50
Future paid assistance - cleaner	34,636.00 (43,295.00 x 0.8)	44,768.00 (55,960.00 x 0.8)
Past out of pocket expenses (other than paid care)	8,000.00	8,000.00
Future out of pocket expenses (other than paid care)	19,550.26 (24,437.82 x 0.8)	23,344.17 (29,180.21 x 0.8)
Equipment needs	11,522.45	13,576.71
(Provisional) Total	$411,956.81	$1,192,597.50

29. 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.

30. 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

31. 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

32. 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

33. 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”.

34. 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”

35. 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"

36. 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”.

37. 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."

38. In his affidavit dated 19 May 2010, Mr Lofberg deposed that he was “standing probably 2 metres from the load point with [his] back to the lift hut”, that he did not “recall the exact distance” and that, although it had been some time since the incident, he “was fairly confident that [he] was not shovelling snow and was just watching passengers shuffle through to the load point.” He deposed that he was “bumping chairs, getting the people in position at the load line when just before the chair got to them I realised the safety bar was down" - “bumping” being a process of taking hold of the back of a chair and moving it slightly backwards to facilitate passengers sitting back on to the chair. He recalled having to take a “couple of steps” (although he could not remember precisely how many) in order to reach the chair with the bar down.

39. The primary judge found that Mr Lofberg “noticed that the bar was down late” that is, after the chair had left the bullwheel; that the chair with its bar down “came within less than half a metre and probably less than 300mm” of the skiers before the bar was raised; and that the respondent, Mrs Nowland and Mr Nowland drew Mr Lofberg’s attention to the fact that the bar was down “by yelling at him words to that effect”. The primary judge found that Mr Lofberg accepted “that he noticed [the down-bar] late (the ‘last minute’)” and “did not deny that his attention was directed to it by people yelling that the bar was down”.

40. According to Mr Lofberg’s affidavit, “the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions” and when he “met the chair” and “flicked the safety bar up” he “was approximately 1.5-2 metres from where Dr Nair-Smith and her friends were standing on the load line”. In cross-examination, Mr Lofberg stated that he had "seen the bar at the last minute" but could not say whether the chair was one or three metres from the skiers when he noticed that the safety bar was down. Later he recalled that he realised the safety bar was down “just before the chair got to them” and that “the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions”.

38. The respondent’s evidence was that the chair was “about one metre” from her and her companions when Mr Lofberg flipped the safety bar back. Mrs Nowland described the distance as “probably a foot".

39. The primary judge concluded that:

"The combination of Mr Lofberg's acceptance that he only noticed the down safety bar late, and his estimate of where he was located at that time, make it very likely that he grabbed the chair from behind, and when it was very close to colliding with the skiers [and thus] ‘that the “precaution” 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 was not given effect to. Taking this precaution would have enabled Mr Lofberg to raise the bar in a ‘timely manner’.”

43. The primary judge expressly recorded that he “did not form an adverse view of the honesty of any of the witnesses” but at the same time noted the “obvious potential for the witnesses to have been mistaken in their recollection”. There is accordingly no reason to think that any of the witnesses attempted to give anything other than an accurate recollection of events as they perceived them. It is worth recalling, however, that the events occurred over the space of only a few seconds in circumstances that involved stress for those at risk of being struck by the chair with its bar down and that much of the evidence was given many years after the event occurred.

44. The distance at which Mr Lofberg was standing from the load line is variously described as “a metre”, “about a metre”, “approximately 1.5-2 metres”, “near the control booth”, “about 2 metres ”, “probably 2 metres ”, “closer to the bullwheel than he was to the load point”, “a few metres ” and “a couple of metres”. The evidence in this regard is unspecific. As has been noted, the primary judge found (at [69] and [157]) that Mr Lofberg was positioned “no closer to the loading point than the exit point of the bullwheel”. It is not clear what the primary judge meant by this. It may be a finding that Mr Lofberg was located at or in close proximity to the exit from the bullwheel or that he was positioned closer to the exit from the bullwheel than to the loading point. If the former interpretation is correct, the primary judge found that Mr Lofberg was approximately 1.8 meters from the load line. If the latter is correct, the primary judge positioned Mr Lofberg over half way between the load line and the exit from the bullwheel, that is, at least 0.9 metres from the load line. On the basis of the evidence to which reference has been made, it seems, that Mr Lofberg was located about a metre from and behind the load point when he realised that the safety bar was down. That distance accords with the evidence of the respondent.

45. Mr Lofberg accepted that he only realised the bar was down “late” and that his attention was drawn to that fact by the yelling of the respondent and her companions. The distance between the skiers and the chair at the time at which the bar was raised is variously described in the evidence as “about 1.5 metres”, “between 1 and 3 metres”, “about a metre” and “probably a foot”. Only Mrs Nowland put the distance at 300mm (“a foot”). However that is the distance at which the primary judge found the chair to be from the skiers when the safety bar was raised. This was against the weight of the evidence.

46. His Honour gave no reasons for preferring the evidence of Mrs Nowland as compared with that of her companions and Mr Lofberg. There is no reason why her evidence should be given particular weight. With respect, the primary judge was not justified in finding that the chair was only 300 millimetres from the skiers by the time Mr Lofberg raised the safety bar. The weight of the evidence supports a finding that the distance was closer to 1 metre. Given the vagaries inevitably involved in such evidence, it is as impracticable as it is undesirable to attempt any precise finding as to the distance between the skiers and the front edge of the chair when the bar was raised. However, in light of the finding as to the positioning of Mr Lofberg and the evidence of all the witnesses, it should be accepted, on the balance of probabilities, that the front edge of the chair was at least 300 millimetres and more like one metre behind the skiers when Mr Lofberg raised the safety bar.

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

47. 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."

48. 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."

49. 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."

50. 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".

51. 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.”

52. In his affidavit dated 19 May 2010, Mr Lofberg deposed:

“I saw that the bar was down as the chair was coming around the bullwheel. I recall that I stepped forward and, as I met the chair, flicked the safety bar up. At that time, it was approximately 1.5-2 metres from where Dr Nair-Smith and her friends were standing on the load line. I do not recall precisely how many steps I took toward the approaching chair. I clearly recall seeing the safety bar was down before the chair arrived where I was standing beside the snow path. I quickly moved to the chair and as it reached me I flicked up the bar.

I recall the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions. I still had time to bump the chair in the normal way. Because of where I was standing, I recall that I did not need to, nor did I, lunge for the approaching chair.

Bumping a chair does not take much effort. It requires only slowing the chair momentarily in relation to the cable. I would recall if I had struggled to pull the chair or had to apply any significant force.”

53. It may be accepted that Mr Lofberg had to move toward the chair in order to be close enough to raise the down-bar. He came at the chair from behind. Given the timeframes and distances involved, it may also be accepted that Mr Lofberg had to move quickly such that his movements could aptly be described as a “lunge” and his manner as “hurried”.

Mr Lofberg’s actions in relation to the chair

54. 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.

55. 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.”

56. 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".

57. It is necessary to further analyse the evidence on this issue.

58. 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".

59. According to the respondent, Mr Lofberg’s action caused the chair to come at her and her companions “at a much higher speed than normal". In cross-examination, she stated that Mr Lofberg pulled the chair back "inches, feet - perhaps a foot. It would have been in the inches”.

60. Mrs Nowland also gave evidence that her “skis and feet had remained in the correct front alignment throughout the whole process”. In her witness statement dated 18 July 2003, Mrs Nowland stated:

"We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the Leichhardt lift side [ie, to the right looking up the hill]. We [ie., Mrs Nowland and her husband] managed to sit sideways and our friend was hit by the chair about twice full force because the chair had been held.”

61. In her affidavit dated 15 February 2009, Mrs Nowland added to the end of the foregoing statement that Mr Lofberg “let go of the chair and it came at us at an angle and faster than expected”.

62. In her affidavit dated 10 July 2009, she added that “as [Mr Lofberg] lunged he held the chair, which effected to push the chair down with his body weight”.

63. Mr Nowland said in his affidavit of 10 December 2009, that “[d]uring this whole procedure I had not changed the alignment of my skis. They were still facing forward” and that:

"Whilst the lifty had grabbed the chair and pulled up the safety bar, I was looking at [Mr Lofberg] over my right shoulder. Ghita [Dr Nair Smith] was in my vision the whole time. I did not observe her to change her alignment in any way."

64. In his affidavit dated 16 December 2009, Mr Nowland deposed that:

"As the chair approached us I saw the lifty closest to us grab the chair. He was on the right side of the chair. I believe that he grabbed the back of the chair with his left hand and at the same time pulled the chair towards him and back, and lifted the safety bar with his right hand.

After pulling the safety bar he then let go of the chair. The chair came at us very quickly, swaying and at an angle."

65. Mr Lofberg deposed in his affidavit of 19 May 2010 that:

"I recall that the chair was travelling in normal alignment to the load point, in particular, it was not swinging before the load point. When Dr Nair-Smith and her companions sat on the chair, it was in normal alignment with the snow path. If Dr Nair-Smith had remained in the correct position at the load point, she would not have straddled the side rail and would have sat down on the chair normally."

66. In cross-examination Mr Lofberg gave evidence that he never saw Dr Nair-Smith and her companions out of alignment. The following exchange took place:

"Q: You never saw any of them, any of the three move from the correct position for loading, did you?

A: I never saw any of them move?

Q: From the correct position for loading, did you?

A: From what I remember they were standing in the position, yeah.”

67. He later stated that “[t]hey got on the chair, so they must have been pretty close to where they had to be, otherwise they would not get seated".

68. In relation to the way in which he handled the chair, Mr Lofberg deposed that he “had time to bump the chair in the normal way. Because of where [he] was standing” and that:

“I recall that I did not need to, nor did I, lunge for the approaching chair… Bumping a chair does not take much effort. It requires only slowing the chair momentarily in relation to the cable. I would recall if I had struggled to pull the chair or had to apply any significant force".

69. He later stated that "just before the chair got to them, I realised the safety bar was down. I quickly flicked it up and bumped the chair back, it appeared the people got on the chair without incident". He maintained this position in cross-examination:

"Q: I suggest to you that you came from behind the chair?

A: Yeah, I don't believe that was true.

Q: Why not?

A: From the memory of the time, I think I flicked it up coming towards me. I don't remember walking around and flicking it up."

70. Expert evidence was provided by Mr Mark Dohrmann, a qualified engineer and ergonomics expert retained by the respondent, Mr Charles Needham, an engineer retained by the appellant, and Mr John Gow, who has extensive experience in the conduct of ski resorts and the operation of chairlifts, who was also retained by the appellant. The experts provided individual reports and participated in a joint expert conclave, the minutes of which were in evidence.

71. In his report dated 24 October 2007, Mr Dohrmann assumed that Mr Lofberg had pulled the chair causing it “to be held back well off the vertical and also obliquely to the forward line of movement of the cable”. He concluded that it was likely that the respondent’s injuries were a result of a lift operator electing “to pull a heavy triple chair back (presumably to try and gain a moment’s time) when the chair, with safety bar in the incorrect ‘down’ position, had approached too close, instead of stopping the lift”.

72. Mr Dohrmann abandoned the above assumption in his report dated 26 August 2008 after he had inspected the lift. He no longer considered the chair to be capable of moving in this way. Nevertheless, on the information available to him, he concluded that:

“it appears that the tow operator (apparently to raise the safety bar) has taken hold of the chair and pulled it back out of position. This would not be difficult, given the freedom of the chair to swing forwards, backwards and side to side, and the fact that the cable is being dragged forwards by the uphill station. On release, it has swung forward in a direction which allowed it to strike Dr Nair-Smith.”

73. In Mr Gow’s report dated 9 October 2008, he states that:

“There is, however, little that the operator can do should the passengers suddenly move out of position in the moments before the arrival of the chair. Stopping the lift will not be effective in this situation due to the stopping distance of the chair, thus the operator is obliged to load out of position passengers as best he or she can, then stop the lift if it is apparent that passengers are not properly loaded as they leave the station. It must be emphasised that all of this occurs in the space of a few seconds.

…

Based on Mr Nowland’s statement that they all tried to leap out of the way, it appears to me that it was Mrs Nair-Smith and not the chair that was in the wrong position for loading. In other words, Ms Nair-Smith deliberately moved herself out of the correct load position. Her move to the right almost certainly positioned her directly in front of the armrest of the approaching chair. Had she simply remained in the correct load position this accident would not have happened.

…

It is alleged that the plaintiff’s injuries were caused or exacerbated by the operator allegedly holding the chair back and then releasing it and allowing it to swing forward. In my opinion and based on my experience, I do not believe that it would have been possible for the operator to have a) raised the restraining device, b) pulled the chair back momentarily to reduce impact and speed and c) let the chair go allowing it to swing forward as described, all in the course of less than three quarters of one second.”

74. It should be noted that there was no evidence that the respondent “deliberately moved herself out of the correct load position”. However, this does not exclude the possibility that the respondent may have moved unconsciously.

75. In Mr Gow’s supplementary report dated 28 May 2010, he stated that “even if the operator did attempt to hold or pull the chair back, there is simply not enough time for it to roll back toward them”.

76. In his report dated 6 April 2010, Mr Needham provided a series of calculations designed to show the potential chair misalignment at the load line allowing for certain variables including the amount of force applied to the chair by the lift operator, the angle at which that force was applied, the time for which that force was applied, the distance from the skiers at which the force was applied and, as a correlate, the time between when the force was applied and when the chair would reach the skiers. Mr Needham concluded that:

“The dynamic response of the chair is such that it would have remained to the right under all likely circumstances.”

77. Mr Needham provided the following examples:

“Load Case 1:

This load case is a possible representation of the event as indicated in Section 5.2 below as follows:

●   The operator-imposed force starts to be applied when the chair rope clamp has travelled 0.5 metres from the bull-wheel exit point – its rope clamp is 1.3 metres from the load line (shorter distances making it less likely that chair misalignment contributed to the event);

●   The force is applied for ¼ second (longer durations making it less likely that chair misalignment contributed to the event);

●   The magnitude of the force is 200 N;

●   The direction of the force is 135° to the direction of the chair motion (see Figure 5 above);

●   The resulting misalignment of the chair at the load line is 0.05 metres to the right. The maximum misalignment to the left is 0.04 metres when the chair is 4.2 metres past the load line.

Load Case 2:

This load-case is another typical representation of the event as indicated in Section 5.2 below.

●   The load-case conditions are the same as Load-case 1except that the magnitude of the force is 400 N 45instead [sic] of 200 N;

●   The resulting misalignment of the chair at the load line is 0.11 metres to the right. The maximum misalignment to the left of 0.24 metres occurs when the chair is 4 metres past the load line.”

78. Mr Needham’s considered opinion was, in effect, that even if the misalignment of the chair was calculated on the basis of variables most favourable to the respondent, it was unlikely that the chair would have deviated to the left as she and her companions stated it did. In the course of cross-examination, the following exchange took place between the primary judge and Mr Needham:

"HIS HONOUR: Do I interpret your answer as saying it is not physically possible for a chair to have rolled to the left and accelerated by the time it reached the load line, to do both?

NEEDHAM: Your, Honour, I would say it is not physically possible for a chair to have rolled to the left. It is physically possible for it to have accelerated by the time it reached the load line but seeing one part of that, the answer is no."

79. In his report dated 30 June 2010, Mr Dohrmann stated:

“I remain of the view that the account given by Ms Nair-Smith - that the chair did swing to a position which caught her from behind between the legs, and that she had not moved from the ‘correct’ loading position when this did so, is consistent with the evidence and also possible. I do not believe the analysis (including that of Sinclair Knight-Merz [ie., Mr Needham’s report]) eliminates that possibility, since it has assumed simple harmonic motion of the chair in either of two planes, without including the possibility of the application of any other forces as described above.”

80. The “other forces as described above” is a reference to the possibility that Mr Lofberg might have pushed the chair forwards and to the side as he “bumped” it. In cross-examination, Mr Dohrmann stated that it would have been possible for the chair to swing to the left had Mr Lofberg pushed the chair.

81. In the minutes of the expert witnesses’ conclave, it is recorded that Mr Dohrmann responded “Yes” to the question whether it was “physically possible for the chair to have rolled to the left and to have accelerated by the time it reached the load line?” By contrast, Messrs Baugher, Gow and Needham jointly responded "No". According to these experts, “in the <1 sec of travel time that the chair has between exiting the bullwheel and arriving at the load point there was not physically enough time for this to have occurred”.

82. In his report dated 24 October 2007, Mr Dohrmann had assumed that Mr Lofberg had pulled the chair causing it “to be held back well off the vertical and also obliquely to the forward line of movement of the cable”. However, as was stated at [72] above, Mr Dohrmann ultimately abandoned this assumption.

83. The primary judge made the following findings (at [59]):

"As there was no capacity for the chair to twist, this means that she could only have been struck either because she was no longer aligned in the proper loading position for the skier on the right hand side of a group of three but had instead moved to the right or, after the intervention of Mr Lofberg, the chair had swung to the left behind her."

84. There is no acceptable evidentiary basis on which it can be found that Mr Lofberg pushed the chair when he was either bumping the chair or raising the down-bar. The respondent bore the onus of proving this circumstance on the balance of probabilities and it cannot be accepted that she has done so. The expert evidence was unanimous that, if Mr Lofberg did not push the chair, it was not physically possible, in the time available, for the chair to be pulled to the right and then to swing back out of alignment to the respondent’s left. Mr Dohrmann’s evidence to the contrary was predicated on the assumption that Mr Lofberg had pushed the chair. We accept the expert evidence and the primary judge’s finding that the chair was not out of alignment with the respondent to her left and to the left of where it should have been – and that it was the respondent who was out of alignment to the chair’s right.

85. The primary judge concluded (at [66]) that the respondent’s misalignment resulted from the panic and jostling of her companions and herself. He found that on the evidence he could not determine which of the three persons precisely was responsible for causing the respondent to move out of alignment. Nevertheless, his Honour found that he was not satisfied that the misalignment of the respondent was a result of a panicked reaction by her alone: see [72].

86. Mr Nowland gave evidence in cross-examination that when the chair was approaching with its bar in the down position he was in “a state of concern”. Mr Lofberg recalled that the respondent and her companions “panicked” and “seemed to panic”, albeit that he could not recall precisely what caused him to have that impression. Mrs Nowland gave evidence that “[w]e all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way". On the basis of this, Mr Gow formed the opinion that “the description provided by Mrs Nowland conveys a degree of panic on the part of Ms Nair-Smith and her companions that appears to have influenced their response to what should have been a routine operating event”. It is not clear what weight, if any, should be given to Mr Gow’s opinion in this regard.

87. The regular speed of the chair lift is 2.3 metres per second. The following table records the distance and travel time between relevant points:

From	To	Distance	Time
Entry to lift station	Entry to bullwheel	7.1m	3.08 secs
Entry to bullwheel	Exit from bullwheel	5.6m	2.43 secs
Exit from bullwheel	Load point	1.8m	0.78 secs
Load point	Exit from lift station	5.3m	2.30 secs

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

88. 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.

89. 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.

90. 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

91. 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

92. 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).”

93. 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.

94. 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.

95. However, even if the second description (that is, the description at [148]) is preferred, such a characterisation of the risk does not identify the “true source of potential injury”: Dederer at [60] per Gummow J. This characterisation refers to the risk that a skier waiting at the load point might be struck by a chair with its safety bar down and the risk that injury might be sustained as a consequence of the skier’s response to the potential for collision even if collision does not eventuate. The former risk did not materialise in the present case. The right armrest of the chair came into contact with the respondent with its bar up. Mr Lofberg raised it before it reached her. It is the latter risk that presents itself for consideration. By failing to distinguish between these two risks the primary judge erred in his assessment of the probability of the relevant risk occurring and the control that the appellant had over it.

96. First, the primary judge’s characterisation led him to focus on the frequency of an antecedent event, namely the arrival of chairs at the load station with the safety bar down, rather than on the probability of injury occurring as a result of a skier’s reaction to a lift operator’s late response to a chair continuing around and exiting from the bullwheel with its bar down. We accept the primary judge’s findings (at [141]) that “there is a foreseeable and not insignificant risk of chairs arriving at the loading station with the safety bar in a down position” and that the possibility, referred to by Mr Gow in cross examination, of experienced skiers either raising the bar themselves or allowing the chair to “push them down the ramp” does not “detract from the significant possibility or even likelihood that skiers may be injured from a collision, especially if they move, scramble or fall to the side”: at [145]. Nevertheless, the reaction of skiers to a late response by a lift operator to a down-bar situation is an important contingency that needs to be factored into the assessment of whether the relevant risk was foreseeable and not insignificant. The primary judge appears to have taken account of this contingency: see at [145]. However, by eliding the risk “of chairs arriving at the loading station with the safety bar in a down position” and the risk that skiers may react and injure themselves as a consequence of a lift operator’s late reaction to such a situation, the primary judge’s analysis suggests that the probability of this risk occurring was higher than it in fact was.

97. Second, the primary judge found (at [142]) that “whether the fact of a safety bar being down (or of some other defect) would or might result in injury to a skier who was already at the load point was very much in the control of Perisher”. However, “the fact of a safety bar being down” is an incomplete description of the relevant risk. The risk arose in this case because of the conjunction of the bar being down, Mr Lofberg’s late response to it and the appellant and her companions’ reaction to that response. The appellant had control over the first two factors but only limited control over the third. When the risk is stated with the necessary particularity, it becomes clear that it is not something that was “very much in the control” of the appellant. The elision of the two risks stated (in [95]) above led the primary judge to attribute to the appellant a greater degree of control over the risk than it possessed.

98. In Dederer, Gummow J suggested (at [60]) that identification of the relevant risk is concerned with determining the “source” of the potential injury. In McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Garling J (at [266]), although in dissent, describes this as “general causal mechanism of the injury sustained”. In essence, the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages.

99. In Dederer, Gummow J found that the relevant risk (identified at [60]) arose from a conjunction of factors, namely, the bridge’s location, Mr Dederer diving from the bridge and the natural variations of the estuary bed, which gave rise to the potential for shallow water: see at [62]. In so finding, he rejected the Court of Appeal’s finding that the risk was “one created by the RTA through the erection of the bridge by its predecessor”: [60].

100. In the present case, the source of the respondent’s injuries was the impact of the chair’s right armrest with her groin. In Shaw v Thomas [2010] NSWCA 169 at [43] Macfarlan JA said:

“Under the general law relating to the tort of negligence it is well established that it is unnecessary ‘for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable’ (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be “not insignificant” (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]).

101. It is equally unnecessary to determine the precise source of the plaintiff’s potential injuries when identifying the relevant risk for the purposes determining negligence under Part 1A of the Civil Liability Act. For example, in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [123]) Tobias AJA (with the concurrence of Meagher JA) identified the relevant risk as “that of a person slipping on the painted surface of the crossing and thereby suffering an injury.” Importantly, his Honour found that it was unnecessary to articulate the risk “in any greater detail than that.”

102. Accordingly, it would be inapt in the present case to characterise the relevant risk as the risk of physical harm through collision of a chair’s armrest with a passenger’s groin. Such a formulation would be too narrow. Similarly, the risk cannot simply be characterised as the risk of being struck by a chair and thereby sustaining physical injury. This would be too broad. Contact between chairs and skiers is a routine and necessary part of boarding a chairlift. It is an everyday innocuous event, from which injury may be taken to be rare. The respondent’s injuries arose not from the state of the chair, but from her misalignment with it.

103. The essence of the risk formulated by the appellant was the risk “that the conduct of the Appellant’s employees might cause a skier to be misaligned, even if a ‘bar down situation’ was rectified”. At trial the respondent submitted that “the inattention and delayed response to the down bar situation by the [appellant’s] lift operator” caused her to be out of alignment. Ultimately, this is what the primary judge found: see, for example, at [72].

104. The relevant risk is that a skier might 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. There is a foreseeable and not insignificant risk of chairs arriving at the loading station with their safety bars down. This presents a risk of physical injury because of the potential for such chairs to collide with skiers waiting at the load point. As the primary judge correctly observed (at [145]), “[t]here is a significant possibility or even likelihood that skiers may be injured from a collision, especially if they move, scramble or fall to the side”. This risk was both foreseeable and foreseen by the appellant. As the primary judge found at [145], “[i]f that was not the case then there would be little point in Perisher giving instructions to its lift operator to be on guard for a safety bar being down.” However, the relevant risk in this case involves something more than this. Skiers waiting at the load point to board a chair are in a vulnerable position. It is helpful to recall the primary judge's finding (at [133]) in this connection:

“[T]he nature of the equipment used in skiing and the configuration of the chairlift was such that there was little scope for skiers to protect themselves from any risks that might materialise during the chairlift's operations, once they had passed through the gates and were positioned at the loading point. In the ordinary course, by the time skiers have reached the loading point the next chair is adjacent to them on its downward journey and is about to enter the bull wheel. They have about 3 seconds before the chair reaches them. At the loading point they are on a raised platform of ice and must have the skis facing uphill and their poles in their hands. Thus the position of their skis and poles is such that they have little means to manoeuvre out of the way of an approaching chair. Further, at the loading point there are few places they could move to. The skiers on the side could attempt to move off to the side but that carries risks. The skier in the middle could only attempt to move forward.”

200. Section 68B relevantly defines “recreational services” as “a sporting activity or a similar leisure‑time pursuit”. While riding on chairlifts may aptly be characterised as a “leisure time pursuit” it is in no way similar to “a sporting activity” and therefore falls outside the relevant definition.

201. Even if it is accepted that the ticket contract was for the supply of “recreational services” within the definition of s 68B(2), the primary judge found that there is a “further obstacle in the face of Perisher's attempt to invoke s 68B”. According to his Honour (at [107]):

“The section provides that the term that purports to exclude, restrict or modify the implied term or Perisher's liability for a breach of it will not be void ‘by reason only’ that it excludes, restricts or modifies the application of s 74 to the supply of recreational services under the contract or the liability of Perisher for a breach of the warranty implied by s 74 in relation to that supply. More significantly the narrow excision from the operation of s 68(1) which s 68B creates will only operate ‘so long as ... the exclusion, restriction or modification is limited to liability for death or personal injury’ (emphasis added). The exclusion, restriction or modification referred to is that sought to be given effect to by the term in question that otherwise falls foul of s 68(1). To be saved by s 68B, the term cannot by its terms purport to exclude, restrict or modify other forms of liability, e.g. for property damage. If it did, then the exclusion, restriction or modification is not limited to liability for death or personal injury and s 68B will not prevent it being rendered void under s 68(1). Section 68B could have been expressed to avoid the operation of s 68(1) ‘to the extent’ that the exclusion, modification or restriction applied to death or personal injury, but it was not.”

205. At [93] and [95] the primary judge stated:

“Subsection 68(1) operates upon particular ‘terms’ of a contract. I address the potentially relevant terms below at [109] to [116]. At present it should be noted that the effect of this provision is to render the entire term ‘void’ and not just void ‘to the extent’ that it purports to have the effect referred to in any of paragraphs (a) to (d) of s 68(1) (see Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths at [1745]). Thus, for example, if the one term sought to exclude liability for negligence and breach of a condition or warranty implied by the TPA then the effect of s 68 is that it would not be effective to do either.

…

The proper operation of this provision was explained by the High Court in SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516 (‘SST Consulting’) at [40]:

‘Much more often than not the definition of the extent of severance will be revealed by the way in which the condition for engagement of s 4L operates. That condition requires the identification of a provision whose inclusion in the contract brings about the result that making the contract contravened the Act. It is that provision which is unenforceable and void and it is that provision which is to be severed from the other provisions of the contract. Subject to any order made under s 87 or s 87A, nothing in the Act affects the validity or enforceability of those other provisions.’” (emphasis in original)

206. The primary judge applied those principles to what he considered to be the three “potentially relevant” exclusion “terms” in the ticket contract. The first term read as follows:

“All warranties, representations or conditions relating to the services we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded.”

207. The primary judge found that this term did not purport to exclude or modify the appellant’s liability in negligence (at [110]). Further, his Honour did not consider that it operated to exclude the term implied by s 74(1) of the Trade Practices Act because its operation is limited by the words "permitted by law" and the Act does not anywhere provide such permission. The appellant did not challenge these findings.

208. The second potentially relevant term considered by the primary judge provided that:

“You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again.”

209. The primary judge found that this term neither purported to exclude the appellant’s liability in negligence nor fell within the exception to s 68 of the Trade Practices Act contained in s 68A for reasons set out at [98] of the first judgment. These findings are not challenged. However, the primary judge also found that s 68B could not be invoked for the reason set out at [199] above and because the restriction or modification sought to be made by the term is not limited to liability for death or personal injury, for that further reason, s 68B(1) was not engaged. While the first of these reasons cannot be accepted (see [201] above), the second reason is valid. It follows that this term was rendered void by s 68(1). We agree with the primary judge’s reasoning in this regard.

210. The third potentially relevant term was as follows:

“You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims.” (emphasis added)

211. The primary judge held (at [115]) that this clause purports to exclude the liability of Perisher for negligence and breach of the term implied by s 74; that s 68A did not apply for reasons that are not in issue in this appeal; that s 68B did not apply for the reason extracted at [199], which cannot be accepted (see [201] above); and, that even if s 68B could be invoked, the exclusion sought to be given effect to by this term is not limited to liability for death or personal injury so that for that additional reason s 68B(1) was not engaged. Consequently, the effect of s 68 was to render the entire “term” void.

212. The appellant submits that the primary judge erred in failing to apply s 4L of the Trade Practices Act so as to sever the words “or to property” (or perhaps “whether… or to property”). Section 4L is as follows:

“If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87 or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable.”

213. In Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 at [116]-[120] Gleeson JA said:

“The manner in which s 68B is to operate in relation to a term of a contract which excludes, restricts or modifies, or has that effect in relation to the application of s 74 to the contract, is expressed to be ‘so long as’ the exclusion, restriction or modification is ‘limited to liability for death or personal injury’. The words ‘so long as’ are words of limitation which impose a requirement that the relevant term of the contract ‘is limited to’, that is, do no more than exclude, restrict or modify liability for death or personal injury.

If the qualification of the general avoiding effect of s 68(1) which s 68B(1) provides for was intended to have a broader operation such that a term excluding, restricting or modifying the application of s 74 to the contract was void only to the extent that the exclusion, restriction or modification related to liability otherwise than for death or personal injury, then the words ‘so long as’ would be most inappropriate to achieve that result. The language appropriate to achieve such a wider excision from the operation of s 68(1) would have been words such as ‘insofar as’ or ‘to the extent that’ in place of the words ‘so long as’.

The construction of s 68B outlined above may be contrasted with the construction given to the operation of s 68(1) of the Trade Practices Act: see Ruaro v Ferrari [2007] FCA 2022 at [52] and [85] per Emmett J; Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83 at [81]; Qantas Airways Ltd v Aravco Ltd [1996] HCA 12; (1996) 185 CLR 43. Those cases hold that s 68(1) has the effect to render a term of a contract void only to the extent that it modifies the operation of, relevantly, s 74. The reasoning given in these authorities is that s 68(1) does not strike down valid contractual arrangements except insofar as the arrangements purport to or have the effect of excluding, restricting or modifying the benefits intended to be conferred by provisions such as s 74. These authorities were referred to by the High Court, without disapproval, in Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd [2009] HCA 50; (2009) 240 CLR 391 at 405 [30], in relation to the meaning of the word ‘provision’ in s 45(1) of the Insurance Contracts Act 1984 (Cth).

It is unnecessary for this appeal to express a view concerning this difference of opinion in relation to s 68(1) and the effect of its operation. It is sufficient to note that the approach taken to s 68(1) in the authorities referred to above, which renders a ‘term’ of a contract void only to the extent that it modifies the operation of, relevantly, s 74 is not open in relation to s 68B. This is because the language of the latter provision imposes a requirement that the relevant term does no more than exclude, restrict or modify liability for death or personal injury.”

214. Basten JA said (at [15]-[16]):

“The condition in paragraph (d) requires that the exclusion be ‘limited to’ liability for death or personal injury. It is this aspect of the provision which causes difficulty for the appellant in the present case. The exclusion clause was not so limited: it extended to liability for ‘death, personal injury or property damage’. In order for the provision to have effect in the present case, it would be necessary to read s 68B(1) as applying to the exclusion clause ‘to the extent that it operates to exclude, restrict or modify liability for death or personal injury’.

That reading involves radical surgery: it is not the language adopted by the legislature. Nor can the statutory language be described as ambiguous or uncertain. Indeed, the only reason to look for an alternative to the natural meaning of the words used is that the purpose of the restriction is unclear. In addition, the language of s 68B, involving the exclusion, restriction or modification of ‘liability’ appears to pick up the kind of exclusion referred to in paragraph (c), rather than either of paragraphs (a) or (b). It would therefore appear not to save a clause which purported to deny the application of any statutory implied warranty effected by s 74(1), unless it was qualified by reference to liability for death or personal injury, and similarly would not be engaged where the contract purported to exclude the exercise of a right ‘conferred by’ s 74 except to the extent that the right involved a liability to sue for damages for death or personal injury. Applying the same reasoning to paragraph (c), it would appear to be engaged only where the exclusion clause, in its terms, referred only to liability for death or personal injury arising from a breach of the implied warranty.”

215. Meagher JA agreed with Basten JA (at [41]) and stated:

“The critical condition in the present case is that ‘the exclusion, restriction or modification is limited to liability for death or personal injury’. I agree with Basten JA that the words ‘so long as’ are to be construed as meaning ‘provided that’. The ‘exclusion, restriction or modification’ referred to in paragraph (d) is that which the relevant term in fact achieves or effects. It follows that s 68B only excludes the operation of s 68 in respect of a term which answers the description in s 68B(1)(a), (b) or (c) if the exclusion, restriction or modification made or effected by that term is limited to liability for death or personal injury. The exclusion, restriction or modification made or effected by cll 10 and 12 is not so limited because it extends to liability for property damage. The primary judge was right to conclude that the appellant could not rely upon the terms in those clauses, assuming they formed part of the contract, to limit or exclude its liability for breach of the term implied by s 74.”

216. The effect of the similar approaches taken by Gleeson JA and by Basten JA and Meagher JA is that any provision that purports to exclude liability for more than personal injury or death will not answer the description in s 68B(1)(d) of the Trade Practices Act and will be, by force of s 68, void in its entirety and not just to the extent that it purports to exclude, restrict or modify liability for anything beyond personal injury or death. The third “potentially relevant” exclusion clause purports to exclude liability for more than personal injury and death as it extends to liability for “property”. The term is void in its entirety and those parts of it which extend the scope of its exclusion cannot be severed so that it meets the description in s 68B(1)(d).

217. It remains to be determined whether s 4L of the Trade Practices Act has any effect on the conclusion just stated. At [96] the primary judge said:

“Reliance on s 4L will not avoid the consequence identified in [93]. The inclusion in a contract of a particular term which falls foul of s 68 does not of itself have the effect that the making of the contract contravenes the TPA. Even if that were so, s 4L merely enables the excision of the relevant term with the assistance of the metaphorical ‘blue pencil’ (SST Consulting at [52]). It does not authorise the rewriting of a particular term.”

218. Section 4L is only engaged if the inclusion of a particular provision in a contract contravenes a particular provision of the Trade Practices Act. The appellant has not identified a relevant contravention of the Act that would trigger the application of s 4L. The inclusion of a term which purports to avoid the application of the warranty implied by s 74 is rendered void by s 68 and is therefore of no effect. It is unnecessary in this appeal to express a view concerning the effect of s 4L as it has no application to the issues under consideration.

219. As we have reached the same conclusion as the primary judge regarding the validity of the purported exclusion clauses in the ticket contract, albeit, to some extent, by a different route, the primary judge’s conclusion (at [117]) that the “consequence of the above conclusions is that Dr Nair-Smith is not contractually excluded from suing for negligence at common law and Perisher’s attempt to rely on s 5N of the CLA fails” must stand. Even though we differ from his Honour on the question of whether the contract was for supply of “recreational services” within the meaning of s 68B(2), there is nevertheless no valid contractual waiver of liability to which s 5N could apply. It is therefore not necessary to decide whether s 5N of the Civil Liability Act is rendered void by s 68.

Issue 10: Quantum of damages

220. 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.

221. 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.

222. 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.

223. 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.

224. The appellant also placed reliance on the lack of documentary evidence adduced by the respondent to corroborate her assertion that she was working fewer overall weekly hours after the incident and not just fewer days. The appellant submits the respondent maintained her full-time pre-injury working hours of 50-60 hours per week after her return to work on 8 August 2003 without a reduction in patient servicing even though she was only working half a day on Friday.

225. The primary judge addressed much of this evidence and the lack of corroborating documentary evidence in his reasoning: [247]-[279]. He found that the respondent reduced her working hours by half a day on Friday after her accident and further reduced her hours after 1 December 2008. The primary judge recognised that there was evidence given in cross-examination by the respondent and contained within insurance claim documents that was inconsistent with these findings. He dealt with these inconsistencies in his reasoning: [268]-[271]. The appellant did not take issue with the primary judge’s reasoning in this regard. His Honour based his finding on a considerable body of affidavit and testimonial evidence that supported his finding. While the primary judge expressed certain reservations about the credibility of the respondent, for the most part he found her to be intelligent and honest. His Honour had the advantage of seeing the demeanour of the respondent at trial to assist his assessment of the credibility and reliability of her evidence. The evidence to which the appellant took this Court does not justify appellate intervention in what is in essence an evaluative exercise.

Cause of diminution in work capacity

226. 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.”

227. 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.

228. 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.”

229. This suggests that it was the joint expert opinion of Dr Clark and Dr McClure that the respondent was suffering “ongoing physical symptoms” as a result of her accident on 18 July 2003 and not that she was imagining a connection between the pain she was experiencing and subject accident. Further, the appellant submits that the primary judge erred (at [288]) in rejecting the evidence of Dr Clark and Dr McClure “solely on the basis of the primary judge’s observation of the respondent in Court that she ‘did not appear to be obsessed or pre-occupied with the circumstances of the incidence’”. In the judgment at [288], his Honour stated that he rejected “Dr Clark’s diagnosis of a post-traumatic stress disorder for the reasons given by Dr McClure”. He extracted those reasons at [286]. Dr McClure rejected Dr Clark’s diagnosis because, in his opinion, the respondent’s symptoms were not consistent with those of a post-traumatic stress disorder. That is good reason for rejecting a diagnosis. The primary judge was entitled to prefer the evidence of Dr McClure over Dr Clark on that basis. He also considered the evidence of Dr Clark and Dr McClure that the respondent was “continuing to experience significant pain even though other branches of medicine cannot identify a precise organic cause”.

230. The appellant then took the Court to the evidence of Dr Maxwell, Associate Professor Jones and Dr Giblin that the respondent faked a Trendelenberg’s sign; the respondent’s concession that she wrongly denied her history of paralysis, migraine and joint pain, arthritis, bone and spine trouble in an insurance proposal dated 30 June 1990; the respondent’s failure to disclose to Dr Clarke and Dr McClure that she had previously seen medical specialists to treat and investigate the cause of her lumbosacral pain over the 14 years prior to her injury and had supposedly exaggerated her skiing ability to them; and the respondent’s supposed admission in cross-examination that she advised Dr Lee that the X-ray had revealed a separation of the pubis in circumstances where Dr O’Connor had advised her to the contrary. The primary judge considered the evidence of Dr Maxwell, Dr Stening and Associate Professor Jones and gave his reasons for not accepting it at [295]-[311] and dismissed this supposed admission as “an instance of [the respondent] falling into difficulties in the face of a skilful cross-examiner, and does not reveal dishonest conduct on her part”. The fact that the respondent misrepresented her medical history in 1990 and to Dr Clarke and Dr McClure does not suggest that she was under some sort of misapprehension about the cause of her injuries. Rather, it suggests that she was knowingly dishonest as she must have known that she had been experiencing pain and would have had detailed knowledge of her medical history. This evidence goes to credibility and not reliability.

231. Finally, the appellant submits that the primary judge’s evidence was against the weight of the contemporaneous medical and financial records. Most notably, the appellant drew the Court’s attention to the fact that the respondent underwent far less medical treatment in the areas supposedly affected by her accident after it occurred than before. The primary judge dealt with the evidence going to the respondent’s pre- and post- injury medical treatment at [204]-[218] and [219]-[246] respectively. Although he did not engage in the kind of comparative analysis proposed by the appellant, it is nevertheless clear from the primary judge’s reasoning that he considered this evidence in detail and makes it plain that he was under no misapprehension about this evidence and the weight to be given to it.

232. The principle applicable to appellate review of damages awards was stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207:

"The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered."

233. When one examines the medical evidence there is a sufficient basis upon which the primary judge’s findings can be supported. In his report dated 4 December 2006, Dr Giblin provided the following diagnosis and prognosis:

“Based on her history and examination, she has the provisional diagnosis of a soft tissue injury to the lumbar spine, reasonably causally related to the subject accident.

It is likely that her symptoms will persist in an episodic fashion for the foreseeable future, being present in terms of exacerbations and remissions, and associated with permanent physical restriction.

Specifically, I see her as being permanently unfit for prolonged and uninterrupted periods of standing and sitting, or for heavy bending, lifting and twisting. These work related physical restrictions will also apply indefinitely to her domestic and recreational activities.

In addition, there is a probability, as distinct from a possibility, that her back will undergo post traumatic degenerative change and be more susceptible to further soft tissue injury from relatively minor events.

While she remains fit for her current work environment, it is a reasonable supposition, that there will be some gradual diminution in hours worked, as her symptoms slowly deteriorate over time.”

234. As the primary judge stated (at [293]), Dr Giblin’s subsequent reports dated 27 April 2009 and 3 August 2010 confirm this provisional diagnosis.

235. The appellant has failed to demonstrate relevant error by the primary judge in assessing the evidence regarding the cause of the respondent’s pain and, therefore, diminution of functional work capacity.

Domestic Assistance

236. 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.

237. 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.”

238. 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.”

239. There is no principled basis for not extending this principle to the provision of services provided at less than a market rate. A sample size of one is generally a poor indicator of what the market is willing to pay for the provision of a particular service. The primary judge was entitled to prefer the professional opinion of Ms Walters, subject to certain qualifications, over the rate that the respondent happened to be paying Ms Callas when determining the market value of paid domestic assistance, especially as it is not certain whether and for how long Ms Callas will continue to provide her services at that rate, if at all. The appellant has provided no sound basis for overturning the primary judge’s findings with respect to domestic assistance.

Conclusion

240. 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.

241. 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.

242. The orders are:

1.   Appeal allowed.

2.   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.”

3.   The respondent pay one-half of the appellant’s costs of the appeal.

4.   The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

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Amendments

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.”

10 June 2015 - removed text "Click here to enter text." from Legislation Cited and Cases Cited coversheet fields

10 April 2015 - Solicitor for appellant amended

Decision last updated: 15 April 2016