I deserve compensation for my skiing injuries, because the other skier was negligent. Which case won?

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Interesting case between injured skier and NSW ski resort. Was the ski instructor negligent? Did the skier cause the accident?

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The Facts

Skier and ski instructor collide on ski field

In August 2014, a ski instructor employed at a NSW ski resort collided with another skier on the ski field.

Although the ski instructor was not instructing this particular skier, he was acting in the course of his employment.

Both the skier and the ski instructor were competent and experienced skiers, but neither saw the other until the moment before the collision.

Skier injured in collision

The skier suffered injuries to her right hand, left shoulder and left knee.

The injury to her right hand was the most serious of the three, involving a fracture that entailed ligament damage and required surgery for the insertion of hardware.

The skier, who was a hairdresser, was severely impaired in her ability to use both arms.

Skier sues ski instructor's employer for negligence

The skier sued the ski resort that employed the ski instructor, alleging that the collision was caused by the ski instructor's negligence and that the ski resort was vicariously liable.

The ski resort accepted that if the ski instructor was negligent, then it was vicariously liable for that negligence.

However, the ski resort argued that because the skier had caused the collision, there was no negligence.

It also argued that even if the ski instructor was negligent, the resort was not liable, because it had the benefit of a statutory defence under the NSW Civil Liability Act 2002 ("the Act").

case a - The case for the skier

case b - The case for the ski resort

The ski instructor was negligent, causing me harm. As my witness testifies, I was skiing in an open space when the instructor skied into me at excessive speed while looking behind him instead of where he was going.
The ski resort is vicariously liable for the ski instructor's negligence.
The ski resort claims that it has a defence on the basis that the harm I suffered was caused by an obvious risk of a dangerous recreational activity. However, skiing is not a dangerous recreational activity within the meaning of the relevant law. In fact, the ski resort's own statistical analysis establishes that the incidence of accidents and injuries on its ski slopes is so low, that the activity does not involve a significant risk of physical harm. Nor was it an obvious risk that someone as experienced and competent as this ski instructor would ski right into me.
Since the ski instructor was negligent and the ski resort has no defence, the court must rule in my favour.

The skier's claim that she was skiing in an open space is false. As our witness testifies, she actually skied through the trees and appeared unexpectedly in front of the ski instructor, leaving him neither time nor space to avoid her. Therefore, the ski instructor was not negligent.
Even if the ski instructor was negligent, we are not liable, because the harm the skier suffered was caused by an obvious risk of a dangerous recreational activity. The skier's use of statistics to argue otherwise is misplaced. In assessing whether skiing is a dangerous activity, the low probability of accidents occurring must be balanced against the catastrophic degree of harm that may eventuate if an accident does occur. In addition, it was an obvious risk that someone might ski into her while skiing in an area designated for skiing.
Since there was no negligence on the ski instructor's part, and even if there was, we are not liable for it, the court must dismiss the skier's claim for compensation.

So, which case won?

Cast your judgment below to find out

Rita Yousef
Personal injury
Stacks Goudkamp

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