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. (iii) The respondent was not obliged to take the other measures which the appellant proposed as reasonable. (iv) The acceptance of risks inherent in a particular activity does not exclude the duty of care. It is for the court to determine which risks are accepted and which are not: Rootes v Shelton (1967) 116 CLR 383. The respondent did not establish that the injury suffered by the appellant was caused by a risk voluntarily assumed by her. Mason P I agree with Beazley JA. Beazley JA This is a plaintiffs appeal from a decision of Garling J given on 31 May 1996 in which his Honour dismissed the plaintiff's claim that the injuries she suffered in a skiing accident on 3 July 1994 were caused by the negligence of the respondent. The respondent operates the Kosciusko Thredbo Alpine Resort. The resort comprises about a thousand hectares under the control of the respondent, of which about three hundred hectares are normally used for skiing. The ski runs are used by alpine skiers, cross-country skiers and snow boarders, as well as by ski patrol personnel. 2 UNREPORTED JUDGMENTS At about 2pm on Sunday, 3 July 1994, while skiing down a run known as High Noon Supertrail the appellant was hit from behind by a snow boarder. She had entered the beginning of the High Noon run which is a reasonably narrow gutter of about 10 metres, and at the point where the gutter opens out onto the southern end of the ridge, there was a large mound of snow, about 3.5 metres high which snow boarders were using as a "launching pad" onto the trail immediately below. Thredbo Ski Resort is made up of four major areas interconnected by traverse and road style runs making for easy access to all parts of the mountain by most levels of skiers and boarders. The four major areas are as follows: 1. Crackenback is the main skiing area with access to the village. It has terrain suitable for lower intermediate to advanced skiers and boarders, being criss-crossed with a road style green run from top to bottom. 2. Middle Spur also has suitable terrain for lower intermediate to advanced skiers and boarders. Access from here to the valley is via summer road to Crackenback or down High Noon run. 3. Merritts Spur is a larger cruising area for mainly low to upper intermediate skiers and boarders, however there are a couple of advanced runs. When bad weather prevails, Merritts Spur is used by all level of skiers and boarders as it is largely protected by the trees. 4. Friday Flat is purely an area where terrain is suitable for beginner and lower intermediates. There are two major routes from the mountain to the valley, village or car park. Relevantly for present purposes, from the Middle Spur/Merritts area, High Noon is the only accessible trail to the bottom. This leads to high density skier and snow boarder traffic, especially during certain times of the day, such as end of lessons, lunch time and the end of the day. A few interconnecting runs funnel into Dream Run, which then funnels into lower High Noon approximately 200-250 metres up from the bottom. The gutter entrance into High Noon from Merritts Spur and Gunbarrel Express Chairlift is considered to be a dangerous area. The particular part of the mountain where the accident occurred is a reasonably narrow gutter of about 10 metres wide by 40 metres long which is the main access to High Noon from the Merritts Spur area and the Gunbarrel Express Chairlift. On the uphill side of this gutter there is always a large bank of snow. This bank, being on the downhill side of trees, is prone to formation of snow waves and rolls from the wind. The trial judge made the following findings on the evidence: "T am satisfied that the [respondent] knew that snowboard riders rode up on to mounds of snow of this type, and that they turned and came back across the slope. I am also satisfied that the mound had been there for some time, in other words it just did not suddenly appear. I am satisfied that employees of the defendant constantly ski in this area and would have been aware that the mound was there." There was no dispute that the unidentified snow boarder was negligent. The matter for determination is whether the respondent ski resort breached its duty of care, if any, to the appellant. The appellant's case was that the respondent, as the operator of the ski resort was under a duty to her to take reasonable steps to prevent foreseeable accidents. There was no real issue that the accident was foreseeable: The Council of the Shire of Wyong v Shirt (1979) 146 CLR 40. The real issue was whether the respondent failed to take reasonable steps to prevent the injury. The appellant submitted that there were four "reasonable measures" which the respondent could have taken to prevent her injury: UGRIY v KOSCIUSKO THREDBO PTY LTD tas KOSCIUSKO THREDBO ALPINE RESORB (Beazley JA) 1. erecting a barricade around the mound; 2. erecting a sign warning that snow boarders might cut across the path of skiers travelling down the High Noon Trail; 3. providing separate areas for snow boarding and skiing; and 4. providing adequate supervision. Erection of a Barricade Around the Mound Mr David Burtenshaw, a former assistant director of the ski school at the respondent's ski resort, gave evidence that a professional ski patrol inspected the whole mountain each morning. Dangerous areas, such as exposed rocks, dangerous drop offs and ridges, are marked with yellow and black bamboo poles. Larger areas, creek beds and rock fields, are roped off. Roped off areas are prohibited to all mountain users. Mr Burtenshaw said that there was a danger in skiers and snow boarders both using confined heavy traffic areas. The area where the accident occurred was such an area. The danger was exacerbated by the fact that snow boarders tend to use the higher areas of the mountain whilst still inexperienced. Mr Burtenshaw also said that the level of supervision provided by the Ski Patrol, which was comprised of voluntary members, was not satisfactory, because the patrols: "are enjoying the skiing and making the most of a free ski pass instead of continual daily slope inspection." Dr Coyle, an occupational health and safety consultant, gave evidence that: "Tt is a well established principle in safety management, that when an individual's attention is focused upon a particular task, that their response to peripheral factors in the visual and auditory environment is compromised." (sic) He stated that where competing demands are placed on safe access through a particular area, the prospect of injury occurring had to be recognised and dealt with. He suggested a simple barricade around the mound, such as the orange plastic netting commonly seen in ski resorts would have been a sufficient safety precaution in this case. The trial judge found the mound could have been cheaply barricaded and that such a barricade would have stopped the snow boarder from riding up the mound. It followed from that finding that there was a reasonably available method of preventing the appellant's injury. However, his Honour found that the respondent was not negligent. His reasons were: "There is no evidence that the defendant was aware of the behaviour of this particular snowboard rider or his group of colleagues immediately before this accident. I cannot see how the defendant could have taken any action to prevent the plaintiff's injuries. The defendant cannot be expected to fence off each mound of snow which may be able to be used by skiers or snowboarders. There is no evidence that the defendant knew or should have known that this mound was being used for dangerous manoeuvres by snowboarders. The snowboarder chose to select this method of coming across the snowfield, and this negligent manoeuvre. But the defendant could do nothing about it and in my view had no obligation to barricade all these mounds." His Honour had earlier found that * there was no evidence that this particular mound was generally used by snow boarders for the manoeuvre which caused the accident; and * there was no evidence that it was being constantly so used just before the appellant was struck; although 4 UNREPORTED JUDGMENTS * there was evidence that some snow boarders were so using it. In my opinion, his Honour's focus on the lack of evidence of general use or constant use just prior to the accident and his finding that there was no obligation to barricade "all these mounds" led him into error. The question for his Honour's determination was whether, within the tests postulated in The Council of the Shire of Wyong v Shirt the respondent was negligent. That involved a consideration of the question whether the mound used by the negligent snow boarder should have been barricaded. (I leave aside for the moment the other suggested methods of avoiding the accident.) The question was not whether the hundreds and possibly thousands of mounds on the mountain should have been barricaded. The relevance of there being many such mounds was whether it was impractical to have any system of inspection or checking areas on the mountain, including formations such as mounds, or alternatively, having regard to the various and variable features of the mountain, what level of inspection was adequate. This mound, which had been in existence for some time and was known to the respondent, was located in an area, properly described as a narrow tunnel on one of only two major routes down from the mountain. Snow boarders were generally known to perform the manoeuvre which caused this accident. Such a manoeuvre performed on an existing mound in a highly trafficked access area was a known danger which was reasonably preventable. Leaving aside the issue whether the appellant voluntarily assumed all risks, including known preventable risks, the respondent, in my opinion, breached its duty of care by failing to barricade this mound. Other 'Reasonable Measures' The appellant also submitted that there were other "reasonable measures" which could have been taken by the respondent. Strictly, it is not necessary to deal with them, but I should make some brief comments on each. The appellant submitted that separate areas should be designated for skiers and snow boarders. The difficulty with that proposal in this case was that the accident occurred in one of only two access routes to the bottom of the mountain. Even if separate ski and board areas were allocated there was no evidence to suggest that it was feasible to separate these particular areas. The next suggested method was that warning signs should have been erected. The suggested warning was: "WARNING: SNOWBOARDERS MAY CUT ACROSS THE PATH OF HIGH NOON PASS, EXECUTE TURNS AND DIVE BACK INTO TILE PATH OF SKIERS COMING DOWN THE MOUNTAIN." Such a warning is far too complex, given that skiers would be in motion at the point they came into viewing distance of the sign, and would be required at that point to be "multi focussed" - that is, on their own manoeuvres, and on the existence of other skiers and obstacles. Indeed, a sign at such a location could be a distraction and thus a source of danger itself. To the extent there was evidence on this point, the sign suggested was far more simple, for example, "slow", "no jumping", and it seems would only be effective if there was sufficient supervision for there to be enforcement of the conduct directed by the sign. I have already referred to the inadequate supervision provided by the Ski Patrol. This criticism is not directed specifically at the Patrol, given its voluntary nature. However, there was no evidence as to how practical or cost effective it would have been to provide adequate supervision, for example by placing a ski UGRIY v KOSCIUSKO THREDBO PTY LTD tas KOSCIUSKO THREDBO ALPINE RESOR®S (Beazley JA) patroller on permanent duty in this area. Accordingly, I am not convinced that the appellant has established that the respondent breached its duty of care in these three respects. Voluntary Assumption of Risk It was contended on behalf of the respondent that the appellant had, in any event, voluntarily assumed the risks inherent in skiing. Those risks are well known. It was submitted that the inherent risks of the sport include being injured by another skier or snow boarder, an occurrence which might occur with or without negligence on the part of the other skier. However, a clear distinction must be drawn between the risks inherent in a particular activity and all the possibilities of injuries which might be encountered in undertaking such an activity. As Barwick CJ said in Rootes v Shelton (1967) 116 CLR 383 at 385: "By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances." His Honour continued at 386, having stated that there were undoubtedly risks inherent in the sport of water skiing which were voluntarily assumed, (such as colliding with a submerged log): "In my opinion, the appellant was entitled to have the respondent exercise reasonable care in carrying out his part of the operation in which they were co-operating: failure to signal the presence of the stationary launch and towing the appellant dangerously close to it, particularly if it was thought that the driver ought to have realized that the appellant might well be temporarily blinded at times by the spray from the wash of the boat during his manoeuvres, could clearly be regarded as breaches of that duty." See also Owen J at 396, who stated: "To say that a participant in a sporting activity has voluntarily assumed the risk of injury from another participant's act or omission is to say that, with knowledge of the risk involved, he has impliedly consented to relieve that other participant of the legal consequences that would ordinarily follow should the latter, by some act or omission which no reasonable man would do or omit to do, cause injury to the former." In my opinion, the respondent has not established that the injury suffered by the appellant was caused by a risk voluntarily assumed by her. Orders Accordingly, I propose orders that. 1. The appeal be allowed. 2. The verdict of the trial judge be set aside. 3. There be verdict for the appellant in the sum of $34,658. 4. That interest be awarded on the amount of $17,500 at the rate of 2% from the date of injury. 5. Judgment to date from the date of the judgment below. 6. The respondent pay the costs of the hearing at first instance and of the appeal. 7. The respondent have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled in respect of the costs of the appeal. 6 UNREPORTED JUDGMENTS Fitzgerald AJA I agree with Beazley JA. Appeal allowed. Verdict of the trial judge set aside. Verdict for the appellant in the sum of $34,658. Interest awarded on the amount of $17,500 at the rate of 2% from the date of injury to the date of payment. Judgment accordingly. Respondent to pay the costs of the hearing at first instance and of the 10 appeal. 7. Respondent to have a certificate under the Suitors Fund Act 1951 (NSW) if so entitled in respect of the costs of the appeal. oa RYNP aun Counsel for the appellant: R Colquhoun/J Singh 15 Solicitors for the appellant: Lyons & Lyons Counsel for the respondent: A C Bredge Solicitors for the respondent: McCabe Brown