Australia: Expert skier fails in claim against employer
Curwoods Case Note

Wilkinson v Perisher Blue Pty Ltd [2012] NSWCA 250

Judgment date: 14 August 2012

Jurisdiction: NSW Court of Appeal¹

In Brief

• An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.
• If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.

Background

The plaintiff was employed by Perisher Blue Pty Ltd (Perisher) as a Mountain Awareness Officer (MAO) in the ski patrol department. The plaintiff was a very experienced skier and was responsible for safety on the mountain and the behaviour of skiers in respect of the resort's codes and rules.

The plaintiff was given free reign to carry out his duties apart from periods in the morning and afternoon during which he would engage in "Speed Control" in the Front Valley. The plaintiff would stand in the vicinity of a "slow" sign, approximately midway down the Front Valley slope, with another officer at the bottom. The plaintiff would identify skiers or snowboarders who were moving too fast on the slopes and attempt to attract their attention and ask them to slow down.

On 15 July 2007, the plaintiff took up position on the mountain in the usual position to undertake Speed Control. The plaintiff was looking up the hill and identified a snowboarder coming down the mountain too quickly. The plaintiff was able to attract the snowboarder's attention and asked him to slow down as the snowboarder was approximately 10-12 m away. Shortly thereafter the snowboarder lost control and collided with the plaintiff.

District Court

The matter was heard by Robinson DCJ.

In the plaintiff's case, evidence was given by Ms Armour, an expert in risk management in the workplace. In her report, Ms Armour was critical of the system of work utilised by Perisher. She said that the work of an MAO exposed that person to risk of injury when trying to slow skiers and snowboarders down when there were more appropriate options available. The options identified by her were the use of CCTV cameras, a loudspeaker system, a safe haven and positioning MAOs at the bottom of the slope to speak to offenders identified earlier by the camera system.

Mr Fearnside gave evidence in Perisher's case. He had worked full-time for Perisher since 1995 and had performed many jobs at the resort, including that of an MAO.

He stated that MAOs were positioned on the slopes in the slow zones, near the "slow" signs, so that when they had attracted the attention of a skier or snowboarder, they could point to the "slow" sign with their stock to indicate a need to reduce speed.

Although his Honour accepted that a collision between two skiers, or a skier and a snowboarder, on the slopes was always foreseeable, he considered it significant that there was no evidence of any injury having been suffered by a MAO as a result of such a collision until this incident. His Honour accepted that the system of placing an MAO in a visible location near a "slow" sign on a slope was one which worked and had stood the test of time without previous accidents. He noted that sometimes accidents could occur for reasons which went beyond the scope of the responsibility of an employer.

His Honour found in favour of Perisher, concluding that Perisher effectively did all that it could do given the circumstances of the nature of the employment of this particular employee.

In reaching his conclusion, his Honour made particular reference to the principle enunciated by Windeyer J in Vozza v Tooth & Co Ltd ²:

Appeal

The decision was appealed on the basis of what the appellant submitted should have been the response to the foreseeable risk of injury. It was submitted that an MAO should not have been placed on a ski slope, but at the top of the slope where people exited from a chairlift and approached the slope. Another MAO should have been placed at the bottom. This was because positioning an MAO mid-slope was not only dangerous but it was ineffective.

Hoeben JA delivered a detailed judgment in a unanimous decision by the Court of Appeal. After finding that it was open to the District Court Judge to accept that positioning an MAO on a slope was more effective than having him at the top or bottom of a slope with no one in between, Hoeben JA noted a more fundamental conceptual difficulty with the appellant's submission.

The appellant's submission moved immediately from the premise of the occurrence of an accident to the concept of how the accident could have been avoided. There was no analysis of the nature of the foreseeable risk of injury and whether a response was required and, if so, what kind of response was required in relation to that foreseeable risk.

The error in such an approach has been pointed out by Windeyer J in Vozza ³:

Reference was also made to Bankstown Foundry Pty Ltd v Braistina ⁴ which made it clear that a court should not approach the issue of negligence on the part of an employer on the basis of some principle that there was a heavy obligation on the part of the employer to protect the worker. The employer's duty was to take reasonable care for the safety of its employee and that what is reasonable is a question of fact to be judged according to the standards of the time.

In turning to the plaintiff's case, Hoeben J queried: what response to the foreseeable risk of injury was required of a reasonable employer? In his Honour's opinion, no response was required. By using the plaintiff with his special skills in the way in which it did, the employer was not unreasonably exposing him to a risk of harm. Breach of duty was therefore not established.

Implications

The issue in assessing negligence is always whether reasonable care required the elimination of the risk having regard to the consequences of the risk, the probability of its occurrence and the cost, expense and inconvenience of eliminating it.

The courts will continue to apply the principles enunciated by the High Court in Bankstown Foundry Pty Ltd v Braistina ⁵

Footnotes

¹ Campbell, Barrett and Hoeben JJA
² [1964] HCA 29; 112 CLR 316 at 319
³ Ibid at 318
⁴ [1986] HCA 20; 160 CLR 301
⁵ Ibid

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