On 20 November 2020, His Honour Justice Cavanagh of the Supreme Court of NSW found that while a ski instructor was wholly negligent in causing injuries to a plaintiff, the plaintiff’s claim for compensation could not succeed because skiing is a dangerous recreational activity involving obvious risks.
This case is a stark reminder that even in cases where there is negligence, an injured person will not necessarily receive compensation for the damage and loss arising from their injuries. This is so, even if they have in no way contributed to their injuries, like the plaintiff in this case.
The plaintiff, Ms Deborah Castle, was injured on 16 August 2014. Ms Castle and Mr Michael Thoms, a ski instructor for Perisher Blue Pty Ltd, collided while skiing at Perisher Blue.
His Honour waded through competing accounts and concluded that Mr Thoms caused the accident when he turned “around at the place in which he did and at the speed at which he was skiing and in circumstances of just coming out of a rollover, he failed to exercise reasonable care in all of the circumstances.”
Despite this, the provisions of the Civil Liability Act 2002 (NSW) (‘the Act’) mean that Mr Thoms’ negligence is not the only factor in determining whether Ms Castle is entitled to compensation.
Section 5L of the Act says there is no liability for harm suffered as a result of the materialisation of an obvious risk of a dangerous recreational activity. Section 5K defines such an activity as one that involves a significant risk of harm.