The importance of determining the relevant risk of harm

The NSW Appeal Court decision in Perisher Blue Pty Ltd v Nair-Smith demonstrates the importance of parties correctly identifying the relevant risk of harm.

On July 18, 2003, Dr Ghita Nair-Smith was skiing at skifields operated by Perisher Blue Pty Ltd.

As Dr Nair-Smith attempted to board a triple chairlift with two friends they noticed the chair’s safety bar was down and alerted the lift operator, a Mr Lofberg. He raised the bar but Dr Nair-Smith was struck from behind by the chair’s armrest. She suffered damage to her pelvis and on-going pain.

Dr Nair-Smith sued Perisher in the Supreme Court for damages in negligence and breach of contract.

The Supreme Court found Perisher liable to Dr Nair-Smith and awarded her $1,368,700 in damages.

The court held Perisher breached the duty of care it owed to Dr Nair-Smith by failing to have a lift operator observe the state of each chair as it exited the bullwheel. That failure meant the lift operator was unable to raise the bar in a timely manner, causing Dr Nair-Smith to panic and move out of alignment with the chair.

Perisher appealed against the decision.

The following issues arose on appeal:

The manner in which the accident happened

Dr Nair-Smith said Mr Lofberg caused the chair’s misalignment because he pulled it in a hurried attempt to raise the bar while she remained in the correct loading position.

However, the Supreme Court and the Appeal Court preferred expert evidence it was highly unlikely Mr Lofberg could have applied sufficient force in time to cause the chair to misalign; and accepted the chair was not out of alignment with Dr Nair-Smith; she had moved out of alignment having panicked when she saw the bar was still down.

The nature and scope of Perisher’s duty of care

The Appeal Court held Perisher was under a duty of care to exercise reasonable care and skill in providing lift services to avoid harm to skiers.

The relevant risk of harm

The primary judge characterised the relevant risk as “the risk of physical harm resulting from a chair arriving at the loading station in a state not suitable for boarding”.

The Appeal Court held the primary judge did not particularise the relevant risk with sufficient precision because the risk did not materialise as the chair was suitable for boarding when it reached Dr Nair-Smith.

The incomplete description of the relevant risk caused the judge to focus on the arrival of a chair at the loading station with the safety bar down, rather than on the probability of injury occurring because of a skier’s reaction to a lift operator’s late response to a chair with its bar down.

The risk arose because of a combination of:

• the bar being down;
• Mr Lofberg’s late response to it; and
• Dr Nair-Smith’s reaction to that response.

The Appeal Court held the relevant risk was therefore “the risk a skier might sustain physical injury [because] of his or her reaction to the manner in which a lift operator responds to a down-bar situation”.

The court noted generally it is unnecessary and undesirable to define the relevant risk with this level of particularity. However, particularity was required because boarding a chairlift involves several risks and “unless the relevant risk is identified with sufficient precision one cannot determine what reasonable precautions ought to have been taken to avert it”.

Whether Perisher breached the duty of care it owed to Dr Nair-Smith

The primary judge held:

• It was a foreseeable and not insignificant risk chairs could arrive at the loading station with the safety bar down; and
• Perisher breached its duty to take reasonable care because Mr Lofberg failed to observe the chair’s condition as it exited the bullwheel.

The Appeal Court held the closer a skier is when an operator responds, the greater a skier’s propensity to panic or react such that physical injury may result.

Reasonable care required Mr Lofberg to observe the chair’s condition earlier than he did. His failure to do so was a breach of Perisher’s duty of care.

Whether Perisher’s breach of duty caused the injuries for which Dr Nair-Smith sought damages

Causation is concerned with whether a plaintiff’s injuries are referable to a defendant’s breach of duty of care.

The primary judge found Mr Lofberg’s late observation of the bar down caused him to lunge at the chair, causing Dr Nair-Smith to panic and move out of alignment with the approaching chair. Perisher’s negligence caused Dr Nair-Smith’s injuries.

The Appeal Court held the Civil Liability Act (NSW) 2002 required Dr Nair-Smith to prove Mr Lofberg’s delayed observation of the bar produced panic that caused her to move out of alignment with the chair.

However, Dr Nair-Smith’s primary case was that she was properly aligned when the chair reached her.

Based on the evidence, the Appeal Court inferred Dr Nair-Smith’s:

• Concern began when she noticed the bar was down as the chair approached the bullwheel;
• Apprehension continued when the chair exited the bullwheel; and
• Apprehension was not caused by Mr Lofberg’s inattention.

While Mr Lofberg’s inattention may have caused her apprehension to continue or increase, the Appeal Court held his inattention was not a condition of Dr Nair-Smith moving out of alignment; she could have moved before it was reasonable for Mr Lofberg to act.

The Appeal Court found it was not open to the primary judge to conclude Perisher’s negligence caused Dr Nair-Smith’s injuries.

The Appeal Court allowed the appeal and held:

• The primary judge was correct to have found Perisher breached its duty of care in negligence owed to Dr Nair-Smith;
• The Supreme Court should have found Perisher’s negligence was not causative of the injury she suffered; and
• The action for damages in negligence should have been dismissed, as should the action for damages for breach of contract.

Implications

The case is a reminder of how important it is for parties to correctly identify the relevant risk of harm.

When an activity involves many risks, relevant risk will be identified with a higher degree of particularity.

(Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90, 09/04/15)