OPINION – The litigious nature of Skiing in Australia
A simple rope and caution sign would have been all it took to obviate the risk in this case Image:: Wikimedia Commons
Mountainwatch | Chris Booth
Earlier this year, a school student successfully sued Perisher Blue (judgement) after getting injured during the course of a beginner lesson. The young skier failed to negotiate a “ditch” near the bottom of a green run at Smiggins Hole.
Apparently there wasn’t much snow at the time, and the runs were mostly covered by man-made snow. The ‘ditch’ was a ‘circular and environmental’ depression about 2 m wide that was found to be more than just an undulation in the snowpack.
The plaintiff sued both his school and Perisher Blue, for (amongst other things) a failure to take adequate caution to prevent injury to skiers in circumstances where falling into the ditch was a foreseeable risk (ED: for the non-lawyers foreseeability of risk is the key to determining fault in a claim such as this).
Perisher said that the ditch was an obvious risk of a dangerous recreational activity and that the ditch was just a natural undulation no different to any other slight hazard one might find on a ski field – snow being nothing more than an overlay on uneven ground.
The court said that the harm was not “a result of the materialisation of an obvious risk of a dangerous recreational activity”, and that the ditch was “more than an undulation” and, more importantly, that a reasonable person in the plaintiff’s position would not regard the presence of the ditch in an area devoted to beginners as “obvious”. The court put it this way:
“…if the Plaintiff had lost control and fallen over, or fallen due to an undulation in the surface, or even simply fallen over, and been injured, that would have been the materialisation of an obvious risk. But skiing into a ditch on a beginners’ slope is quite different. This is the materialisation of a risk that is far from obvious.”
The court said that ski resorts are in the business of providing ski facilities, including to beginners. It had instituted a system of inspection before allowing skiers onto the slopes. The ditch was a hazard which could reasonably and foreseeably cause an injury and nothing was done about it, when it could reasonably have either, placed a barrier around the ditch, filled in the ditch with snow or simply not conduct lessons in the area.
Powder days are great, and impeccable groomed runs are fantastic too – but what have our expectations come to? Since when did a ditch in an Australian ski resort stop being an obvious risk? This isn’t Austria!
Our snowy mountains are amazing and beautiful and scarce. The snow melts and freezes and melts, rivers flow underneath… the mountain is always changing. Ditches, holes, undulations, depressions – whatever you call them, are part of skiing in Australia. Nay, they are part of the joy of skiing in Australia. We don’t just tolerate these imperfections, we revel in them. Every passionate skier I know owns a pair of rock-hoppers. And we love them, because they remind us of what an absolute privilege it is to slide down mountains in Australia, even if conditions aren’t perfect.
As a lawyer I can easily come to terms with the Supreme Court of Appeal’s decision – this poor young man put himself in the hands of a qualified instructor in an environment that he expected himself to be safe in. He did not expect to end up head over heels in a ditch in a beginners area. But as a skier I am concerned.
We haven’t been overly blessed with snow so far this winter. But unlike years gone by, the resorts can now do amazing things with snowmaking. Ungodly things. Now, you can ski Supertrail and High Noon at Thredbo, or Towers in Perisher. But still, rivers flow beneath, ditches and undulations appear and there are rocks about. Its not practical to signpost and fence off every single potential hazard that arises as a result of low snowpack, and I think it can be easy to forget that when the resorts put on a product that is otherwise so unnaturally good. We need to remember that skiing is inherently a dangerous sport, and we need to respect, but also learn to appreciate the hazards that make skiing in Australia a little bit risky.
Perisher forecasts,
snow reports and
live snow cams.
