Successful defence of ski resort

This case ended up in the NSW Supreme Court in 2020.

HBA successfully defended an Australian ski resort in a claim arising from a high impact skiing accident where the plaintiff suffered a range of life changing orthopaedic and psychological injuries.

The claim was initially pleaded in negligence and concurrently under the Competition & Consumer Act (Cth) 2010 (CCA) for the alleged breach of implied guarantees for consumer services. As such the Civil Liability Act (NSW) 2002 (CLA) was also enlivened as the Court was called upon to consider the law as it applied to dangerous recreational activities, the risk of harm, the content of obvious risk and the content of any duty of care arising.

The case was also one of the first cases where the Court was required to consider the import and utility of online transactions in connection with dangerous recreational activities, including contract terms and associated waivers of liability – rather than discrete “hard” signage.

The Supreme Court accepted our primary defence for the ski resort under Section 5L of the CLA and upheld the content and viability of the resort’s online transaction system. The Court also rejected the plaintiff’s claim under the CCA and the associated claim under the Australian Consumer Law, accepting the resort’s analysis of factual causation to establish that the plaintiff was not being provided with a service when the accident occurred. The saving on potential damages and costs was in excess of $850,000 for our client.