Ski accident shows even blame-free schools can be liable

A New South Wales court case has highlighted both the importance of thoroughness when students engage in activities like skiing, particularly as beginners, and also of the principle of the school’s liability in such circumstances, even without fault by the school or its staff.

In Harris vs Trustees of the Roman Catholic Church for the Archdiocese of Sydney & Anor [2011] NSWDC 172 (10 November 2011), a district court in New South Wales held that both the ski operator and the school were liable FOR the injuries sustained by a student.

The student was injured on a school-organised ski excursion at Perisher in the Snowy Mountains, where the ski activities were conducted by the operator of the resort.

The judgment begins: “The plaintiff is a part-time bartender. He would rather be a plumber. The reason he is not a plumber is because he injured his back on 29 July 2006. He was then a school student on an excursion to the New South Wales snowfields. The injury occurred during a beginners’ lesson. The plaintiff says that the defendants are responsible for his injury.”

Liability of the ski resort operator

If the ski resort operator was to be liable, it would be on the basis of its failure to discharge its duty of care to the student.

The alleged acts of negligence included allowing “the class to ski in an area in which there was a ditch in close proximity to a mogul”.

The judge noted that although undulation is common in ski fields, “a ditch” is more than an undulation, and held that it was particularly important that the ditch was located in the beginner’s slope.

The judge’s finding was that had the plaintiff lost control and fallen over, or fallen over 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 added that “skiing into a ditch on a beginner’s slope is quite different” and is “the materialisation of a risk that is far from obvious”.

The judge held that had the ditch been identified “as it should have been during the early morning inspections” then reasonable precautions could have been taken to have it filled in or isolated and then the injury would have been prevented.

Accordingly, the ski operator was found liable for its negligence in relation to the ditch.

Liability of the school

The school was held to be liable on the basis of the (somewhat confusingly entitled) principle commonly referred to as the “non-delegable duty”.

The rationale of this principle is that in some circumstances, a person or an organisation can be found liable for the negligence of another (without fault itself). This particularly applies to schools, hospitals, disability and other cases where organisations have in their care people who are vulnerable, whether because of youth, immaturity, injury, illness or disability, and have “contracted out” part of their duty.

Damages

A total of approximately $310,000 in damages was awarded against both defendants, with the ski operator ordered to indemnify the first defendant (the school) in respect of the whole of its liability, including costs.

It was open to the former student to enforce the judgment against either of the defendants, or each in part. To the extent to which judgment was enforced against the school, it had a right to seek to enforce the indemnity against the ski operator.

Andrew Knott
Macrossans

Queensland Teachers' Journal, Vol 117 No 3, 20 April 2012, p27