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Oh the pain, the pain...

Discussion in 'Snow Talk' started by Annabuzzy, Nov 25, 2020.

  1. Annabuzzy

    Annabuzzy Part of the Furniture Ski Pass: Gold

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    My bad.
     
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  2. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    It would appear her counsel argued the wrong argument in going after PB instead of the person who mowed her down on Olympic .... how does that even happen?
     
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  3. Jasper Schwarz

    Jasper Schwarz One of Us Ski Pass: Silver

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    Yeah, this was my point. Going after Perisher ain't achieving much. Going after the person, may get a different outcome
     
  4. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Perhaps, ruling now implies it is okay to run over the downhill skier.
     
  5. Annabuzzy

    Annabuzzy Part of the Furniture Ski Pass: Gold

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    I’m not sure ski instructors are notoriously awash with $$$$ ( and I doubt it would lead to a different outcome).
     
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  6. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    On the contrary, Perisher accepted that they were vicariously liable for his actions. That means that they accepted responsibility for what he did. Which is perfectly normal where an employee does something in the course of their employment.
     
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  7. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Indeed so won on a wording and technicality ??
     
  8. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    Please identify the wording and/or technicality.
     
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  9. nezumi

    nezumi One of Us Ski Pass: Silver

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    I'd say that the categorisation of contact with another skier being part of the assumed risk of participation in resort skiing, and that by extension skiing is a "dangerous recreational activity".

    This is especially interesting given the pursuit of recreational sporting leagues like rugby (league and union) over concussion risk, when those head injuries come in the usual course of the sport (I would content that being taken out by an out of control skier is not part of the usual course of the sport for skiing).
     
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  10. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    This forum is full of people complaining about collisions and near misses. I thought the lawyers were the ones divorced from reality.
     
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  11. robbo mcs

    robbo mcs One of Us Ski Pass: Gold

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    Not many sports have dedicated patrollers trained in first aid and retrieval scattered all over the place, and a purpose built medical centre onsite with multiple medical staff to treat injured participants. That didn't happen by accident, clearly it is a dangerous activity. The statistics back that up as well.
     
  12. nezumi

    nezumi One of Us Ski Pass: Silver

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    I'd love to see the statistics on single-party vs multiple-party injuries. My wife dislocated her elbow while coming down the run at Blue Cow to the Terminal Quad, but that was because she caught an edge in powder and fell forward. She was spooked by other participants going past her, but none of them made her crash, and none actually collided with her.
     
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  13. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    Yue question is whether the sport has the potential for danger, not the nature of the danger.
     
  14. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    I will defer to my learned college
     
  15. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    You mean you were talking out of your arse?
     
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  16. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    The learned counsel appears to have missed the question marks in my original post, perhaps he would like to review his statement.
     
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  17. DPS Driver

    DPS Driver A Local

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    Below is my post from yesterday re this in the other thread. I'm not a solicitor but to my way of thinking this sets a dangerous precedent. I honestly don't know how to process it because I agree with the judges call but I've always felt and thought if one party was skiing recklessly and not abiding my the rule of the mountain and they are to blame for the accident, then you should be Ok and compensated, if required.
    -------------------
    I've edited this post several times as I keep changing my mind over whether this is right or not.
    Is this judgement a fair assessment of the situation.

    Skiing is a dangerous activity, particularly within the resort boundary. Collisions and accidents do happen regularly. If witnesses confirm that both parties were skiing in control and not being reckless and it was an accident then, it is what it is. So from that perspective I agree with the judgement, provided neither party was proved to be negligent.

    But if one party was skiing way too fast and / or out of control and endangering others then it may be a different story. The onus of proof would need to be considerable I would imagine.

    This would be an interesting discussion with the legal eagles we have on the forum.

    How far would someone have to go to clearly prove the other party was being recklessly negligent???? Would witnesses alone suffice??? In this case where the instructor was found to be negligent, one can only assume suing a ski instructor isn't going to be worthwhile, whereas going after the resort far more potential.

    I was of the belief that the resorts insurance covered any accidents involving staff. Not sure, is this a claim over and above an insurance payout??? Has this woman received any reparation for her injuries???
     
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  18. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    It's a pretty simple proposition. If you choose to engage in a risky recreational activity you accept the consequences of your choice.
     
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  19. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Perhaps resorts should now be rated on a danger factor rating based on collisions resulting in injury?

    Kinda like avalanche ratings based on environmental factors such as snow type, crowding, visibility.

    Why insist on a customer or employee signing the Skiers Code on ticket purchase or hiring given the only due care factor that appears to be in play is "its dangerous".
     
    #21 dawooduck, Nov 26, 2020
    Last edited: Nov 26, 2020
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  20. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    If you want to.
     
  21. DPS Driver

    DPS Driver A Local

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    Granted, but in other risky pursuits, if someone is clearly at fault through their reckless behaviour there are repercussions.

    Is the issue here, they went after the resort as opposed to the perpetrator?

    This effectively sends a message that one can ski as fast as they want to and mow anyone down and get off scot-free. Or does it? I'm not a lawyer. Are you a lawyer @Legs Akimbo?
     
  22. currawong

    currawong Old but not so Crusty Ski Pass: Gold

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    he is
     
  23. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    Bloody nanny staters. You know there's a risk. You choose to accept the risk. It's not always someone else's fault. Volenti non fit injuria.
     
  24. currawong

    currawong Old but not so Crusty Ski Pass: Gold

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    i agree that it's not always someone else's fault. but sometimes it is.

    it would be easier to accept a decision like this if we had universal injury insurance.
     
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  25. DPS Driver

    DPS Driver A Local

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    Yeah that was my first response. I'm a great one for take the risk and wear the consequences.

    Then I started to think about my kids being taken out by out of control idiots. Which they have, luckily not too badly damaged. My youngest was 3 when he got collected by a clown gunning it through the Ace Family Quad area in Hirafu. We've all seen the kind and I suppose in the back of my mind, I always thought that someone would have your back. I clearly accept if a mountainside falls on you etc then shit happens and if two skiers accidently come together then it shared responsibility but if a f'ckwit takes you out and causes considerable damage then apart from beating the shit out of them, you have no recourse.

    ...or do you but it has to be against the individual. Which leads one to believe that this ruling would somehow render any such case invalid as well. Yes / No? Who cares? Depends on how good your lawyer is?
     
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  26. DPS Driver

    DPS Driver A Local

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    On the flip side, the judge now has free skiing for life at Perisher;)

    Although, he did say he preferred skiing Thredbo with all the other judges and even a couple of lowly barristers, or was that baristas.
     
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  27. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    If people are so gosh darned worried they should get their own insurance. Leaving the issue dependent on the solvency of some random is irresponsible.
     
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  28. Jacko4650

    Jacko4650 One of Us Ski Pass: Gold

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    Like if we go overseas to go skiing? We have to take out special insurance and it costs more (as a rule) than standard travel insurance. Perhaps it's got something to do with the fact that skiing is dangerous?
    Let's hope pay outs don't cause insurance companies to remove the choice of insurance cover for those that want it?
     
  29. Legs Akimbo

    Legs Akimbo Grumblebum Ski Pass: Gold

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    By George!! He's got it!!!
     
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  30. currawong

    currawong Old but not so Crusty Ski Pass: Gold

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    it's not just the money, it's also the dilution of the code of conduct. why should anybody selfish arseholes obey it if it is generally believed there are no consequences for recklessly crashing into people?

    if I get injured because I am run into by a reckless jetski, surfer between the flags, in-line skater, mobility scooter ... is it the same principle?
     
  31. Annabuzzy

    Annabuzzy Part of the Furniture Ski Pass: Gold

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    Most of us don’t do the right thing because of fear of punishment, or being sued. We do it because we believe it’s the right thing to do.

    This legislation has been around for a while. I personally don’t think it’s controversial

    on this case the whole liability issue was hotly contested. The judge on my cursory reading didn’t think the instructor was skiing recklessly. There’s nothing to say he was skiing “too” fast. On the evidence the judge accepted the instructor turned to momentarily check his student and in that moment the plaintiff merged through or next to trees onto what was before then an open run. They appear to have crashed side by side, or near enough. The factual decision could easily have been much different. Be that as it may there was no recklessness found, on my very cursory reading of it
     
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  32. currawong

    currawong Old but not so Crusty Ski Pass: Gold

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    if it's as you say then I'm reasonably ok with it. If reckless skiing could have resulted in compensation then it sounds reasonable. I think there should be a fair buffer for "shit happens", but recklessness should be held to account
     
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  33. derider

    derider Hard Yards

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    My reading was cursory as well, but my understanding seems completely different to yours.

    The judge clearly concluded the instructor was negligent and caused the accident. He ruled that the victim did nothing wrong, and would have been seen by the instructor in plenty of time had he been paying attention. He also ruled that that the instructor struck the woman from behind and that he was skiing "fast". He rightly pointed out that "too fast" is subjective, but that speed definitively contributed to the severity of the crash. He also said that the woman was well away from the trees when struck. He dismissed the instructor's account of the accident as misleading.

    But none of that mattered, because she should have known that skiing is risky. Which is a pretty damn ridiculous conclusion any way I look at it.
     
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  34. DPS Driver

    DPS Driver A Local

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    If that's the case then in my eyes she's being more reckless than the instructor. Always gotta look uphill when joining a run.
     
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  35. DPS Driver

    DPS Driver A Local

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    Yep! fair call.
     
  36. derider

    derider Hard Yards

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    Stop blaming the victim! What the hell is wrong with you people?
     
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  37. Budgiesmuggler

    Budgiesmuggler A Local Ski Pass: Gold

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    My understanding is that the law has been specifically amended to state that a party is not negligent if the harm arose during a dangerous sport. The judge found that skiing is dangerous and that it was foreseeable that someone would run into you, therefore he had to apply that law.

    The judge also stated that, but for that law and if he applied the common law, then Perisher would be negligent.
     
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  38. Sage Oya

    Sage Oya Like the herb, cup ramen devotee Ski Pass: Gold

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    It certainly is an interesting case and while a great number of issues are considered, the salient point in my mind is that the injured party sought to obtain damages from Perisher in relation to a collision with a ski instructor who was employed by the ski resort but not providing any service to her at the time (or to which she was entitled).

    The court considered contractually what rights (benefits) the plaintiff was entitled to in relation to the lift ticket she had purchased and found that it did not extend to, or include the provision of ski instruction by the instructor with whom she collided. As such she was unable to establish that Perisher had failed to render the services to her to which she was entitled (through the purchase of a lift ticket) with due care and skill and thus Perisher was not vicariously liable for the injury resulting from the collision with the instructor.

    Hence liability wise the collision with the instructor was treated as if the collision had been between two random punters.

    As set out by Cavanagh J at 223 to 239:

    Did the defendant fail to render services with due care and skill?

    223.In her pleadings, the plaintiff does not identify which services the defendant failed to provide with due care and skill.

    224.Mr Sexton invited Mr Wheelahan to identify the services which the defendant failed to render with due care and skill. Mr Wheelahan identified the services as follows:

    “Part of the services provided by the defendant is therefore the policing and implementation of the alpine code which must include, we submit, its observation by its employees, that is Mr [Thoms]. The defendant’s opening suggests that the defendant provides services such as uphill transportation and slope grooming and whilst I paraphrase my learned friend’s submission, that’s it. They must also provide as part of the provision of recreational services ski patrol, medical services, and transportation.

    We submit that by providing transportation to the ski slopes that it is implied that the defendant must also provide a safe means of employing the recreational activities that it provides as a ski resort. We say that all the services provided by the resort to permit the resort to function efficiently and profitably include the provision of instruction and instructors. If one goes to this facility where recreational activities are for sale, the fee is paid to the facility. The facility engages the instructor, and pays to the instructor a portion of the fee paid to the facility. We submit, your Honour, that the customer is entitled to be safe from the ski patrol, ski instructors, the banana boats used to transport injured skiers down the mountain, skidoos, snow-making machinery, and heavy machinery found on the slopes.

    We submit it really is illogical to attempt to limit services in the way in which the defendant proposes. To cherry pick as we respectfully suggest that they have done here an activity or activities from the overall experience provided by the resort is unnatural and impermissible. It follows, your Honour, that Mr [Thoms], for whom the defendant properly concedes it is vicariously liable with regard to his conduct and behaviour, constitutes part of the service offered by a facility such as a ski resort.”

    225.Section 2 of the ACL provides that “services” includes:

    (a) any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges or facilities that are, or are to be, provided, granted or conferred in trade or commerce; and

    (b) without limiting paragraph (a), the rights, benefits, privileges or facilities that are, or are to be, provided, granted or conferred under:

    (i) a contract for or in relation to the performance of work (including work of a professional nature), whether with or without the supply of goods; or

    (ii) a contract for or in relation to the provision of, or the use or enjoyment of facilities for, amusement, entertainment, recreation or instruction; or

    (iii) a contract for or in relation to the conferring of rights, benefits or privileges for which remuneration is payable in the form of a royalty, tribute, levy or similar exaction; …

    but does not include rights or benefits being the supply of goods or the performance of work under a contract of service.

    226.The definition of services is inclusive. It is not intended to be exhaustive. In Obeid v Australian Competition and Consumer Commission, [26] the Court considered the definition of services in s 4 of the TPA following the Trade Practices Amendment Act 1977 (Cth), which is in the same terms as the definition provided in s 4 of the CCA and resembles that provided by s 2 of the ACL. The Court observed:

    “[52] Looking at the text of the definition ‘services’ there is no reason to conclude the term ‘includes’ is exhaustive. Whilst it includes services that would come within the ordinary meaning of that word, it also includes services not within the ordinary meaning (eg rights or interests in relation to real or personal property). The historical context described by the primary judge confirms that the term ‘includes’ is not meant to be exhaustive.

    [53] Therefore, in interpreting the term ‘services’, unless a contrary intention appears in the substantive provisions being applied, the ordinary meaning of the term ‘services’ is to be adopted along with the specified services in the definition itself.” [27]

    227.In Adamson v New South Wales Rugby League Limited, [28] Wilcox J observed that:

    “As a reference to any standard dictionary will show, although the word ‘services’ has a wide application, it imports always the notion of some assistance or accommodation being made available by one person to another.”

    228.The contract between the plaintiff and the defendant was a contract for or in relation to the provision of or the use of enjoyment of facilities for amusement, entertainment, recreation or instruction. As such, services includes any rights, benefits, privileges or facilities that are or are to be provided, granted or conferred under that contract.

    229.It follows that when considering whether the defendant failed to provide services with due care and skill, it is necessary to consider what aspect of any right, benefit, privilege or facility (or any other service) that was provided, granted or conferred was not provided with due care and skill.

    230.There is no doubt that the defendant provided services to the plaintiff which conferred a right to ski. She was provided with facilities to enable her to ski. She was given benefits which came with the right to ski. No doubt the defendant provided services to the plaintiff associated with those rights, benefits and participation, such as chairlifts and lift operators, smooth snow, signs and barriers. They are all things necessary for the purposes of allowing a person to ski and having regard to the definition of services might be considered part of the services provided to the plaintiff.

    231.The difficulty for the plaintiff is that it is not suggested that the defendant failed to render any of those services with due care and skill. If Mr Thoms had been providing a service to the plaintiff for which the defendant was vicariously liable, then the defendant would have been providing services to the plaintiff. If he had been providing instructions to the plaintiff at the time he was negligent, then the loss and damage would arise out of the provision of services to her. However, he was not providing any services to her at the time.

    232.Whilst the defendant undoubtedly provided services to the plaintiff of the type to which I have already referred, the only failure to take care which is either asserted in the pleadings or established by the evidence, is a failure to take care by Mr Thoms having regard to the way in which he was skiing at the time of his collision with the plaintiff.

    233.Even if it might be said that, as part of the services provided by the defendant, it provided ski instructors, it is difficult to understand how the defendant could have failed to provide its facilities with due, care and skill because Mr Thoms engaged in a casual act of negligence as he was performing work within the facility.

    234.The fact that Mr Thoms may have failed to comply with the Alpine Code of Conduct does not lead to the conclusion that the defendant failed to comply with the Alpine Code of Conduct in the way in which it was providing its services to the plaintiff. Further, there is no evidence that Mr Thoms was not properly trained, instructed or supervised. He was allowed to work on the ski fields that formed part of the facilities.

    235.All duties may be discharged by the exercise of reasonable care. The obligation arising under s 60 of the ACL is to render services with due care and skill. The plaintiff has not identified anything that the defendant did or did not do which constituted a failure to take care in any service it was providing to the plaintiff.

    236.Further, I do not accept that the defendant was providing a service to the plaintiff through Mr Thoms at the time of the collision.

    237.The plaintiff has established that the defendant is liable for the conduct of Mr Thoms but vicarious liability is only a mechanism for shifting liability from one person to another or allowing an injured person to recover from the party vicariously liable.

    238.I accept that the defendant provided services to the plaintiff such as the facilities, signs, chairlifts and a right to ski in the area. There is no evidence of any failure to render those services with due care and skill.

    239.The plaintiff must identify what aspect of the services provided her were rendered without due care and skill. She has not done so and, in the circumstances, she has not established a failure to comply with the consumer guarantee set out in s 60 of the ACL.
     
    #40 Sage Oya, Nov 26, 2020
    Last edited: Nov 26, 2020
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  39. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    The above is a totally false narrative, why the constant need to just make shit up or is this yet another plea for relevance? You seem to have an entrenched habit of posting dialogue that protects "authority" and denigrates the innocent and/or the facts.

    The judge concluded the instructor was negligent and caused the accident. He ruled that the victim did nothing wrong, and would have been seen by the instructor in plenty of time had he been paying attention. He also ruled that that the instructor struck the woman from behind and that he was skiing "fast". He rightly pointed out that "too fast" is subjective, but that speed definitively contributed to the severity of the crash. He also said that the woman was well away from the trees when struck. He dismissed the instructor's account of the accident as misleading.
     
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  40. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    It's a sickness.
     
  41. cold wombat

    cold wombat Twitter Contributer Moderator

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    Negligent and reckless are not the same.
     
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  42. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    It's not the case, it's utter bullshit
     
  43. Sage Oya

    Sage Oya Like the herb, cup ramen devotee Ski Pass: Gold

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    In addition to my post above at #40, this case differs from that of Kosciusko Thredbo Pty Ltd v Smith [2001] NSWCA 355 in which Thredbo was found liable for injury sustained by a punter who at the time was taking a ski lesson. In that case the court found that the ski instructor failed to allow a sufficient runout area when teaching beginners to snowplough and that the ski instructor had a duty of care to those he was instructing. Hence Thredbo was vicariously liable.
     
    #45 Sage Oya, Nov 26, 2020
    Last edited: Nov 26, 2020
    nezumi likes this.
  44. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Our crowded ski slopes are not getting any safer.

    Next winter when Covid is something we just all live with its gonna be a zoo of pent up demand.

    Stay safe people, you are on your own
     
  45. Annabuzzy

    Annabuzzy Part of the Furniture Ski Pass: Gold

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    Crazy man. That’s you
     
  46. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Not me projecting all the fantasy dialogue.
     
  47. Annabuzzy

    Annabuzzy Part of the Furniture Ski Pass: Gold

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    You totally sure on that? You should check
     
  48. dawooduck

    dawooduck relaxed and comfortable Ski Pass: Gold

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    Gas lights are lit