GRAY v KOSCIUSKO THREDBO PTY LTD t/as KOSCIUSKO THREDBO ALPINE RESORT [1998] NSWCA 98

GRAY v KOSCIUSKO THREDBO PTY LID t/as KOSCIUSKO THREDBO ALPINE RESORT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, BEAZLEY JA and FITZGERALD AJA 30 July 1998, 30 September 1998

[1998] NSWCA 98

TORT — NEGLIGENCE — personal injury — duty of care — reasonable measures to prevent injury.

TORT — PERSONAL INJURY — defence — voluntary assumption of risk — inherent risk.

The appellant appeals from a decision of Garling J dismissing the plaintiff's personal injury claim. The plaintiff was injured in a skiing accident at a ski resort operated by the respondent when a snowboarder hit her from behind after performing a manoeuvre on a mound of snow. Before Garling J, the plaintiff argued that there were four reasonable measures which the respondent could have taken to prevent her injury: (a) erecting a barricade around the mound; (b) erecting a warning sign; (c) providing separate areas for snowboarding and skiing; (d) providing adequate supervision. The respondent also argued that the appellant had voluntarily assumed risks associated with skiing.

The trial judge found that it was reasonable for a barricade to have been erected around the mound but that the respondent was not negligent because it had no obligation to barricade all mounds.

Held, allowing the appeal:

(i) The question for the trial judge was whether, within the tests postulated in The Council of the Shire of Wyong v Shirt, the respondent was negligent. That involved consideration of the question whether the mound used by the negligent snow boarder should have been barricaded and not whether the many mounds on the mountain should have been barricaded.

(ii) That the accident was reasonably able to be prevented by the respondent by barricading the mound. The respondent breached its duty of care in failing to barricade the mound.