Perisher Blue escapes liability for skier’s injury this time, but needs to use a new disclaimer next time
It’s a wonder that there are not more skiing injuries when boarding chairlifts, given the split second timing necessary to board a chair moving at 2.3 metres per second, from a standing position. When an accident does happen, the ski lift operator needs a good disclaimer for protection from liability for injury.
In Perisher Blue Pty Ltd v Nair-Smith  NSWCA 90, the Court of Appeal of the Supreme Court of New South Wales has shed light on a ski chairlift operator’s liability for injury in ski chairlift accidents.
The Court of Appeal dismissed a negligence claim and breach of contract claim made by the skier, Dr Nair-Smith, for personal injuries suffered when boarding a chairlift.
The Court decided that Perisher Blue was not liable because there was insufficient evidence that the lift attendant’s actions had caused the injury. Significantly, the Court also decided that had it found Perisher Blue liable, then the disclaimer on the ‘ticket’ for the ride would not have protected Perisher Blue from liability.
The Perisher chairlift was a triple chairlift which was suspended from an overhead cable which looped around a “bullwheel” (a large wheel). The chairlift circulated continuously.
Dr Nair-Smith positioned herself at the “load line” with her skis pointing uphill. She was distracted momentarily by watching the chairlift attendant rush to raise the safety bar on the chairlift when it was about one metre away. She must have moved out of alignment to her right because a split second later, the right armrest of the chair struck her from behind between her legs in the groin area, causing injury to her right buttock and lower back.
At the trial before a single judge (Beech-Jones J), Dr Nair-Smith was awarded damages for negligence in the sum of $1,368,700 ( NSWSC 727,  NSWSC 1463,  NSWSC 1736]). Perisher Blue overturned this award on appeal.
Why did the Court of Appeal decide that Perisher Blue was not liable?
The Court of Appeal closely examined the evidence and gave these reasons for decision:
- Perisher Blue was under a duty of care to exercise reasonable care and skill in the provision of its lifting services to avoid harm to skiers using those services.
- The reasonable care that Perisher Blue had to exercise was that the lift attendant needed to observe the condition of the chair as it came around the bullwheel.
- The relevant risk was the risk of physical injury if the skier reacted because the lift attendant did not raise the safety bar on the chair until it was almost at the “load line”.
- There was no causation – the lift attendant’s late response in raising the safety bar had not caused the skier to be out of alignment with the chair.
- The injuries were not inevitable – they were not the materialisation of an inherent risk.
The decision could have gone either way, but the fact there was no causation meant that the Court of Appeal decided that Perisher Blue was not liable.
Was the liability disclaimer for personal injuries in the chairlift ticket valid?
Smart businesses don’t leave it to chance – to a court’s interpretation of what happened – to limit their exposure to customer claims for personal injuries. Smart businesses like Perisher Blue use a disclaimer to limit their liability in all situations.
Therefore we fortunate that the Court of Appeal went on to give guidance upon this liability disclaimer used by Perisher Blue in the Terms and Conditions on the reverse side of the ski pass ticket, even though it was not necessary for its decision:
By purchasing or using this ticket, YOU ACKNOWLEDGE THAT ALPINE ACTIVITIES (INCLUDING SKIING & SMOWBOARDING) ARE RISKY AND DANGEROUS AND THAT YOU WILL UNDERTAKE SUCH ACTIVITIES AT YOUR OWN RISK. … You also acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage … whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents …
This is the traditional liability disclaimer for personal injuries. It is a ‘catch all’ used by leisure activity providers, tour operators, and carriers.
But has the Australian Consumer Law (the “ACL”) made the traditional form of disclaimer obsolete?
The ACL implies a guarantee into contracts for the supply of services that the services will be rendered with due care and skill (section 60 ACL).
The traditional disclaimer purports to exclude this guarantee which is contrary to the ACL which states that normally, this guarantee cannot be excluded (section 64 ACL).
The exception is if recreational services are supplied, and the disclaimer is limited to death or a physical or mental injury. If so, the law permits this guarantee to be excluded (section 139A Competition and Consumer Act 2010).
The Court of Appeal’s guidance on disclaimers for recreational services
What are recreational services? The definition of recreational services covers: a sporting activity or a similar leisure time pursuit; or any other activity that involves a significant degree of physical exertion or physical risk; and is undertaken for the purposes of recreation, enjoyment or leisure (sub-section 139A (2) Competition and Consumer Act 2010 – “the Act”).
In this case, Dr Nair-Smith argued that the chairlift service up the ski slope was a transportation service, not a recreational service.
But the Court of Appeal preferred Perisher Blue’s argument that “Lifting services form a central aspect of alpine skiing in its modern form”, and so the chairlift service was a recreational service.
Was the disclaimer ineffective because it was not limited to death or a physical or mental injury? The disclaimer was drafted to cover a wide variety of events – loss, damage, injury, etc. arising from a breach of the duty of care / guarantee of due care and skill.
The Court of Appeal decided the disclaimer was not valid because it excluded liability for more than death or personal injury. Therefore it did not comply with section 139A of the Act. It was therefore void in its entirety.
As a consequence, Perisher Blue could not have relied upon the liability disclaimer to protect itself from Dr Nair-Smith suing for negligence at common law or for breach of contract.
The traditional liability disclaimer is obsolete!
Perisher Blue has re-drafted its disclaimer to comply with section 139A of the Act.
Not only ski chairlift operators, but all providers of recreational services need to review their terms and conditions to ensure that their disclaimer for death or a physical or mental injury is compliant with section 139A of the Act. This applies to recreational services provided in Australia, and to legal proceedings in Australia.
Contact Cordato Partners to update your T & Cs.
Anthony J Cordato, Travel Lawyer