Kosciusko Thredbo Pty Ltd v Smith [2001] NSWCA 355

New South Wales Court of Appeal

CITATION : Kosciusko Thredbo Pty Ltd v Smith [2001] NSWCA 355 FILE NUMBER(S) : CA 41024/00 HEARING DATE(S) : 11 September 2001 JUDGMENT DATE : 5 October 2001

Kosciusko Thredbo Pty Ltd (Appellant) PARTIES : v Edward Bennett Smith (Respondent) JUDGMENT OF : Stein JA at 1; Hodgson JA at 2; Davies AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT 3423/00 FILE NUMBER(S) : LOWER COURT Balla DCJ JUDICIAL OFFICER :

COUNSEL : A: Mr J L Glissan QC, Mr Clyne R: Mr F Curran SOLICITORS : A: Michael Samios, Lawyer R: Hosie & Partners, Solicitors CATCHWORDS : Negligence - whether skiing instructor failed to allow a sufficient runout area when teaching beginners to snowplough - whether skiing instructor had duty of care to those he was instructing - whether skiing instructor's misjudgment amounted to a mere error of judgment or negligence - significance of factor that skiing is a hazardous sport discussed. CASES CITED: No cases cited. DECISION : Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41024/00 DC 3423/00

STEIN JA HODGSON JA DAVIES AJA

FRIDAY 5 OCTOBER 2001 KOSCIUSKO THREDBO PTY LTD v Edward Bennett SMITH

JUDGMENT 1 STEIN JA: I agree with Davies AJA. 2 HODGSON JA: I agree with Davies AJA. 3 DAVIES AJA: This is an appeal from the judgment of her Honour Judge A S Balla, a Judge of the District Court of New South Wales. Her Honour awarded damages for negligence in favour of the present respondent, Edward Bennett Smith, against the present appellant, Kosciusko Thredbo Pty Ltd, in respect of an accident which had occurred on Friday Flat, the beginners' area in the Thredbo Ski Resort, on Saturday, 15 August 1998. In the appeal, Mr J L Glissan QC and Mr J B Clyne of counsel appeared for the appellant. Mr F D Curran of counsel appeared for the respondent. 4 It is unnecessary to discuss all the relevant facts for, in the course of his address, Mr Glissan abandoned a contention that the appellant owed no duty of care to the respondent as skiing is a hazardous sport and those who partake in the sport accept the dangers that are inherent in it. Mr Curran did not pursue any allegation of negligence founded on liability of the appellant as occupier of the Thredbo Ski Resort. 5 The appeal thus proceeded with an acceptance that, whilst the dangers which are inherent in skiing on poor snow, which was the circumstance prevailing on 15 August 1998, must be taken into account, there nevertheless remained on the instructor, an employee of the appellant who was instructing a group of beginners including the respondent, a duty to take reasonable care for the safety of those whom he was instructing. 6 On 15 August 1998, there were sixty to seventy groups taught during the day and between 900 and 1,000 people were instructed. The snow was poor. Overnight, snow-making machines had been used to increase the snow cover and a grooming machine had worked the area. This machine had numerous attachments which groomed the slope, broke up the ice and fluffed up the snow. Nevertheless, the snow tended to be hard and/or icy, although useable. 7 The skiing conditions were difficult for beginners. The respondent's daughter had attempted to ski shortly before the respondent's lesson but had given up because she found the conditions too slippery and dangerous. Mr D C Burtenshaw, one of the experts called for the appellant, expressed the view that the snow was "hard packed". Mr Burtenshaw gave, inter alia, this evidence:- "Q. Do we take it from that, that you are reasonably satisfied from all of your inquiries that it was the type of snow that you refer to as hard packed? A. Yes." 8 The respondent, who was 48 years of age and weighed about 85kg at the relevant time, was a beginner. He had skied the previous day and had had a beginner's lesson. On 15 August 1998, he was placed in the Level 6 lesson which was the next level up, appropriate to persons who were "sometimes able to turn and stop". The lesson was to "Ski in snowplough position". This was the appropriate lesson for the respondent to take. 9 The instructor took his students on the chairlift to the top of Friday Flat. He then took them a little down the slope to a position which he considered appropriate for the lesson. He took the stocks and put them to one side. He told his students how to snowplough without using stocks. He then skied down to a position six or twelve metres below the students. The instructor called for the first student to snowplough down to him. The respondent was probably the first to go. 10 The respondent saw that there was a group of people standing about six metres beyond the instructor. They were stationary looking down the slope. When asked by the instructor to go, the respondent set off in the snowplough position. He found that, although he adopted the snowplough position, his skis kept moving with a grating sound over the snow. He passed the instructor. He tried to dig in his skis in an attempt to stop but he continued on until he collided with a person in the group beyond the instructor. He fell and the person whom he struck also fell, falling on the respondent's left leg. The respondent suffered injury to his left leg which has had long-term consequences. 11 As the trial Judge did not accept the evidence of an expert called on behalf of the respondent, the expert evidence to which attention must be given is that of Mr K A Clifford, the General Manager of the appellant, of Mr D C Burtenshaw, who had had many years' experience as a ski instructor and had been a supervisor at the Friday Flat Ski School from 1989 to 1993, and of Mr J R Gow, who had a 34 year career in the ski industry. 12 All these witnesses accepted that an instructor of a beginner's snowplough class should ensure that there is adequate runout space in case a student is unable to stop near the instructor. The principal issue in this case was whether the instructor had allowed an adequate runout and, if not, whether the failure to do so was due to a mere error of judgment or negligence on his part. The instructor involved was not identified by either party and did not give evidence. 13 The trial Judge found against the appellant and stated:- "I accept that the weight of the evidence establishes that the presence of the other unidentified skier [the skier with whom the respondent collided] presented a foreseeable risk of injury to the plaintiff. In making this finding I have taken into account the evidence of Mr Clifford. I have also taken into account the evidence of Mr Burtenshaw to the effect that he would have made sure that the area was clear, that if he had been the instructor he would have looked, that the first thing he would have done was look for obstacles and that people 6 metres away were a hazard. I have also taken into account the evidence of Mr Gow who said that depending on the terrain an adequate run out area should be allowed, if he had been the instructor he would have expected the pupil to stop immediately below him or within 4 - 5 metres and that it was incumbent on the instructor to clear a run off path for the distance it takes a person to stop. I accept the submission made by counsel for the plaintiff that in the circumstances of the plaintiff's injury there is very little real difference between the 4 - 5 metres estimated by Mr Gow and the 6 metres estimated by the plaintiff. … … I am satisfied that the weight of the expert evidence establishes that the icy surface affected the plaintiff's ability to stop. For example Mr Burtenshaw conceded that the stopping length is longer on ice. I do not consider that this aspect can be divorced from the preceding issue, that is the proximity of the other skier. Taking both of these factors into account I am satisfied that the defendant should reasonably have foreseen that the instructor's conduct involved a risk of injury to the plaintiff. It is then necessary to determine what a reasonable man would do by way of response to the risks. The evidence establishes that the instructor could either have asked the person to leave or waited until the person had left before allowing the plaintiff to begin his snow plough. I am satisfied that a reasonable instructor would have taken one of these two steps and that neither would have involved any significant expense, difficulty or inconvenience." 14 There are matters which can be put to the contrary of her Honour's findings. For example, her Honour mentioned that Mr Burtenshaw had said that people six metres away were a hazard. However, the relevant answer of Mr Burtenshaw was, "If the facts are true yes". It is not clear what facts Mr Burtenshaw was accepting. Mr Gow, when describing what he would have done in like circumstances, said, inter alia:- "A. … if I was instructing I would position myself in a place where I was expecting the students to stop immediately below me and I would be looking for them to stop immediately below me or within 5 metres, 4 or 5 metres of where I am. So if that area was fair I think I'd be satisfied."