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Discussion in 'Perisher' started by SMSkier, Jan 5, 2020.
Today 2 years ago........raining up there today.
And the day before
Charlotte Pass turning circle with @Ozgirl remembering Jack
Winter challenge, ski towers following the curve of the road
Might have to do a GPS plot for that one....
That would be a sure way to get cleaned up by all the super quick but technically challenged skiiers and boarders ripping a straight line down the hill
You’ve just described skiing Towers _every_day_ (other than for the first 20 minutes or so each day)
Saturday morning 6am
Oh Deer.......off the cam this evening.
More Bucks to be on the mountain!
Anyone notice / see the white boy at the back driving?
Here’s one for the legal eagles......Woman sued Perisher after an instructor collided with her causing injury.
Court rules in favour of the resort despite the instructor being at fault.
Pretty cut and dry to me.
When you sign the release of liability, it clears Perisher of all responsibility of access and more or less says "its not our fault", including getting hit by chairlifts, T bars etc.
Its unlucky that it was a ski instructor, but they arent perfect, and fall over like everyone else.
Im suprised a lawyer even took up that case tbh. Feels like it was a loosing battle from the get go
The tort of negligence disagrees
As I read the case there is a statutory defence which applied as skiing was found to be a dangerous recreational activity and displaced the common law (the tort of negligence as above). Only remedy is to change the statute.
The judgement is an interesting read for those who have the time .
To be read with the full judgement obvi, but I found the comments at para 185 onwards of interest as I'm always wondering how litigation would play out in the case of skiing collisions.
The harm suffered by the plaintiff resulted from a collision between the plaintiff and another skier, whilst both were engaged in the activity of skiing in areas designated for skiing.
Adding into the characterisation the fact that the other skier was a ski instructor for the purposes of reducing the probability of such a collision occurring is unnecessary and would be contrary to the approach that I must follow, having regard to that which has emanated from the Court of Appeal in Menz, Singh, Carter and Tapp (subject to the views of McCallum JA in dissent in that most recent decision).
The fact that the plaintiff was a good skier does not detract from that proposition because it would be obvious to a person in the position of the plaintiff that:
other persons using the slopes might not always be in complete control;
other persons using the slopes might be going too fast for the conditions;
other persons using the slopes might on occasions be distracted and not paying proper attention;
visibility might sometimes be reduced for differing reasons; and
there could be hidden imperfections in the snow which might cause even good skiers to lose control.
By analogy, it would have been obvious to a reasonable person in the plaintiff’s position that if another skier lost control or was not doing what he or she should be doing on the slopes, a collision might ensue and significant injury might be suffered.
In my view, it is not permissible or necessary to characterise the risk in the way suggested by the plaintiff. That leaves the more general characterisation and leads to the conclusion that the harm suffered by the plaintiff was a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by her.
As such, the defendant has made out its defence to the claim in negligence under s 5L CLA.
Oh this sucks As you probably know a well known and loved local who has suffered terribly. Heartbreaking.
Something for everyone to be aware of. Get wiped out and you are on your own.
I ponder that a civil case may be the next move.
A really bad judgement that appears to judge both as equally negligent due to their mutual but unrelated participation in skiing.
She has to pay costs. I doubt she’ll have the financial capacity to take it further. Bloody hell, this makes me and
Hmmm the age old question, did it really happen that way, or did the court "find" it happened that way very different things.
The court appears to have found no fault and ruled "shit happens when skiing".
I feel like my statement may have come across as being really aggressive.
Don’t get me wrong. I feel really sorry for the person who was taken out, and I will always stop to help people that have a fall and check they are ok, and if I cause an accident stand my grand until the ski patrol arrive. I’ve been lucky enough to never have an accident when I’ve been skiing, or been taken out badly.
But I know the risks when I step out on the slopes. Everyone does. If you are in an accident you are on your own. Everyone knows that when you get on a chairlift. There was a court case a few years ago that where a lady was hit by a chairlift on the double or triple and she hurt herself. Nothing happened there either so I don’t really know why it would change
If we take away the fact that it’s a ski instructor, does it change anything? Do they still sue Perisher? Unlikely right because that’s how getting on the snow works.
I don’t know the laws well enough, but if you get out on the road, and a driving instructor runs into you, are they going to be responsible for paying your medical fees? I feel like they don’t have to but not 100% sure.
All that being said, after reading the court, it sounds like the ski instructor was not a really nice person. Maybe if she sues him instead of Perisher?
I just read what this was. Seems fair enough tbh and seems like it could be a fair argument so can now see why she decided to proceed.
All good. I was just pointing out that even though Perisher (or any other recreational service provider) will have some blanket exclusion clauses on their tickets, these terms will not contractually excluded you (or any other ticket holder for that matter) from suing for negligence at common law.
Whether you are successful in obtaining a judgement in your favour is another matter though.
If you're interested @Jasper Schwarz , have a read of the appeal judgement in
Perisher Blue Pty Ltd v Nair-Smith  NSWCA 90
Looked up the case
Nair-Smith 2013 vs Perisher. They were hit by a closed safety bar and still got nothing. It’s such a sucky, sad and angry line to walk, but these are the Ts and Cs and they are very much written to favour Perisher.
IMO (and this is very uneducated so take it with a grain of salt) that you would need very very convincing circumstances to get them. Short of being collected by a mountain ops skidoo in broad daylight, I’m not sure what else you could get them for
Yeah, Had a read.
If this doesn’t get you money, I seriously don’t know what will.
This is why I’m doing science.
Law is too complicated and technical and it’s so hard to keep emotion out of it
I reckon this type of scenario would be close:
Might be being thick here but
Are you suggesting that you wouldn’t get any more if you are hit by a skidoo, or that you just won’t ever be hit by a skidoo
Sorry, but if some instructor in uniform who is skiing so fast that his client cannot see him, doesn’t follow the skiers code and runs into someone below him, and injures her so badly that she should have be compensated $650,000, is basically exonerated in law, then the law is totally unfair.
I have no legal training but I would have thought an employer has a responsibility to ensure their employees act safely and follow the accepted protocols. If the employee has not had sufficient training to ensure that this happens then the employer should be responsible.
There seemed to be weight given to the fact that the instructor was not providing instruction to the poor lady who was injured with regards to the contention around Perisher’s duty of care.
Edit on re reading the Judge’s rationale is set out at para 223 to 239.
At common law the employer would be vicariously liable for their employee and if negligence is found damages may follow depending on various factors. However, in NSW the Civil Liabilities Act 2002 (a NSW Statute) appears to alter the situation to give a statutory defence in section 5L as skiing is a dangerous recreational activity. Statutes can be changed by later statutes (but usually not retrospectively) but there are probably policy reasons for the provision. There could be a different approach in other States. Road accidents are a different category as most states have statutory schemes for compensation. The NDIS is meant to deal with some of this issue.
By this latest argument both the ski doo and the skier are in a no fault situation.
The ruling appears to turn the whole hill into one big no due care shit show.
Might as well take down the Skiers rules signs and any references to give way to downhill skiers because now you can just get cleaned up and told "suck it you bought a ticket get over yourself".
But I thought that we all knew that anyway?
It has always been my impression that if you have an accident, you are on your own, hence my earlier reaction.
Based on this holistic "skiing is dangerous" ruling would the outcome have been different if the skier sued the individual and not the company?
If so would the company back the employee if they where sued individually?
If hit and injured by another you are on your own to sue for injury costs.
This ruling appears to basically rule that by simply being on the hill there is no responsibility for any duty of care for another by anyone. Skiers code is basically ruled out as superfluous fluff.
Case by case and case structure not withstanding.
"Ski instructors" in uniform working and mowing people down is gross negligence.
Which comes back to my question last night:
Does the situation change if they weren’t a ski instructor?
They sue the person not the company right, but Perisher probably jumps in to defend him, or maybe they don’t. I know almost nothing about this.
My thinking is that you get further that way than by trying to go at Perisher cause I was always under the impression that they are cleared of all responsibility once you get on a chairlift.
Maybe my expectations are way off, but that has always been my mentality which is why this ruling is not surprising to me.
The zoo is a dangerous place.
An interesting aside is they make you sign a copy of the Skiers code when you buy a ticket or get employed.
Window dressing, sharpen your stocks and buy a sumo suit.
from the cam....
This also poses the question of what the outcome would be if the injured parties were reversed? i.e. that the instructor needed ongoing medical attention. Would Perisher (or their insurer) be trying to sue the recreational skier for compensation? Does this ruling set a precedent and does that adversely affect employees of Perisher if injured in collisions with recreational skiers in the future?
Now in the SMH
He noted it was surprising there "has not been any higher authority on the proposition that skiing is a dangerous recreational activity", such as a decision of the NSW Court of Appeal or High Court.
Justice Cavanagh said when assessing whether there was an "obvious risk" in this case, it was to be framed generally as a risk of collision between skiers, rather than a risk of a competent and experienced skier colliding with an instructor. When the risk was framed in this way, he said the risk was obvious.
"It would have been obvious to a reasonable person in the plaintiff’s position that if another skier lost control or was not doing what he or she should be doing on the slopes, a collision might ensue and significant injury might be suffered," he said.
I think the long and the short of it is that sking is considered a high risk activity and that Perisher is not reliable for any damages because it is considered a high risk activity. In other words, if you have an accident, don't expect any money from them, regardless of whether or not they "were at fault" or not.
Sets a very big precedent about accidents on the snow now
Not sure if its still a rule, but in sailing there was the concept of "Room and Time" in the rules when dealing with collisions.
There are plenty of muppets who ski blindly on to busy runs and expect not to get hit. Or worse duck the rope on hypertrail when training is on and expect not to get hit.
Chances are you will get hit, and it will hurt.
Reading the facts of the case, it seems there is disagreement about where she emerged from, on to the main trail. In fact she may not have given the instructor "Room or Time" to avoid a collision.
I don't imagine ski instructors run around looking for accidents, and for the most part are a little more skilled than your average punter at avoiding them. Whilst the court may have found differently, from my reading of what happened this seems like the more likely scenario. Personally I think its unreasonable to ski across in front of someone and expect them to avoid you without giving room or time for them to do so.
this is seriously crap reasoning.
I know there is statute to cover it, but it would be "obvious to a reasonable person ... that if another driver lost control or was not doing what he or she should be doing on the roads, a collision might ensue and significant injury might be suffered"
there is a code of conduct which skiers/boarders are expected to adhere to. it is advertised on tickets and prominent signage. shit happens still in some situations, but most collisions happen when someone is not adhering to the code
agree with much of this. I know nothing about this particular event other than what is posted here. if she entered a trail without due care, it's not the instructor's fault.
however we have all seen some instructors skiing/boarding dangerously. not everyone in a red (or substitute the colour at your resort) suit is an amazingly skilled skier either
From the same team that bring you take responsibility for yourself.
@currawong That's the exact scenario I posited in a FB thread about the judgement.
Given the comments around the instructor's client not having the instructor in sight, it seems to me to be entirely possible that the instructor was looking back to check for them and may not have been exercising due care when the collision occurred.
Had not looked at the full court documents till today.
Pretty surprised at the instructor involved, having had a lesson with them once or twice and seeing them around the hill did not seem like the sort of person who would be caught up in this incident, they seemed pretty cautious.
Taking nothing away for the injured person, who as called out above is well loved respected community member who has suffered significantly as a result of this incident.
It’s an awful situation, I often wonder why I continue this sport, disappears when I am out there though returned when I got cleaned up this year, but vanished again.