A skier injured by their ski instructor at Perisher Blue has been denied compensation by the New South Wales District Court. This was despite the Court finding that the collision was caused by the negligence of the ski instructor. The Judge stated said if he was wrong about the defence argued by Perisher, he would have awarded the plaintiff $651,801.17.
The plaintiff was skiing the slopes of Perisher Blue when a Perisher Blue ski instructor collided with her. The plaintiff suffered significant injuries as a result. The ski instructor was employed by the defendant, Perisher Blue Pty Limited and was acting in the course of his employment, although he was not supervising to the plaintiff at the time.
Interestingly, despite the Supreme Court of NSW finding that the collision was caused by the negligence of the ski instructor, the Court ruled in favour of the defendant, Perisher Blue Pty Limited.
Justice Cavanagh ruled that skiing is a ‘dangerous recreational activity’ that falls within the scope of section 5K of the Civil Liability Act (2002) NSW. Accordingly, Perisher Blue Pty Limited had established a full defence under section 5L of the Civil Liability Act. His Honour found “there may be a significant risk of physical harm even if the risk of the harm materialising is low but the potential harm is catastrophic”.
Further, the Court found when assessing whether there was an “obvious risk” in this case, it was to be framed generally as a risk of collision between skiers, rather than a risk of a competent and experienced skier colliding with an instructor.