Castle v Perisher Blue Pty Limited  NSWSC 1652
In the latest recent development involving the Dangerous Recreational Activity Defence, the Supreme Court of New South Wales has handed down judgment confirming that the defence applies even to experienced recreational sport participants. The Court’s application of the defence to snow skiing – where it found person-to-person collisions occurred in only 1 in 200,000 ski runs – will have important implications for similar recreational sports, especially in the marine sector, such as wakeboarding and water skiing.
The plaintiff, Ms Castle, was an experienced skier visiting Perisher. As she was coming down the slopes on 16 August 2014 she collided with Mr Thoms who was a ski instructor for Perisher Blue. Ms Castle was thrown down the mountain by the impact and sustained serious injuries.
Both parties said they failed to see each other right up until the point of collision.
Perisher Blue sought to rely on the Dangerous Recreational Activity Defence in the Civil Liability Act 2002 (NSW). The Court had to decide whether snow skiing was a dangerous recreational activity and, if so, whether the collision was a materialisation of an obvious risk of such an activity.
Justice Cavanagh found that the collision was caused by the negligence of the ski instructor and that Perisher Blue was vicariously liable for that negligence. His Honour also found that the plaintiff was not guilty of contributory negligence. Ordinarily, Ms Castle would therefore have been entitled to damages.
However, the Judge went on to hold that Perisher Blue had successfully proved the elements of the Dangerous Recreational Activity Defence. His Honour said “even the best skiers have accidents”, and that those accidents could include colliding with objects, trees or other skiers or snow boarders.
This was despite the plaintiff leading statistical evidence that, she said, proved the risk of collision at Perisher was so low it could not be considered significant. An accident at Perisher was said to occur only once for every 200,000 times that a person skied down the slopes. While accepting those statistics, his Honour held that although the likelihood of a collision materialising is extremely low, the potential for harm is catastrophic. Therefore, snow skiing passed the test to be a dangerous recreational activity.
The Judge then considered whether the risk of collision between two skiers was an “obvious risk” within the meaning of section 5L of the statute. His Honour accepted the defendant’s formulation that the risk should be defined broadly as the risk of collision between two skiers, irrespective of their experience or skill, rather than the plaintiff’s narrower conception of the relevant risk, being the risk of colliding with a ski instructor specifically. The risk of colliding with another skier generally was, his Honour said, obvious.
This decision echoes the recent decision of the New South Wales Court of Appeal in Singh Bhnf Kanwar v Lynch, which we reported on in August 2020.
For insurers of recreational activities such as water sports, this decision reflects the welcome news that Courts are continuing to interpret the Dangerous Recreational Activity Defence in a broad way, which includes those at an experienced or professional level, even when the statistical chance of injury is low.
This is especially important in water sports, such was water skiing and wakeboarding. Although there may be few serious injuries on the water, which much like snow can provide a cushion in the event of falls, any experienced water skier will have stories of extremely serious injuries from submerged objects or collisions with other water users or banks. It is a matter of time before a case tests exactly how far the defence will go in water sports.
This article was written by Joe Hurley, Partner and Ryan Hunter, Associate.