TORTS 2015/Legal Problem Solving Question

Task

Maria has commenced an action against Skiski Pty Ltd in negligence. Assuming that Skiski Pty Ltd owes a duty of care to Maria, discuss whether there has been a breach of this duty of care. (For the purposes of this question, you only need to consider the element of breach.)

Factual Scenario

Due to extreme changes in weather patterns over the last few decades, snow now regularly falls in the South West of Western Australia. Skiski Pty Ltd (Skiski) has taken advantage of these snow falls and has built a ski resort in the South West of Western Australia. The ski resort has been in operation for five years now. Skiski has twenty years of experience running various ski resorts in the Eastern States of Australia. Skiski operates and manages all of the facilities within the ski resort which includes accommodation for guests wishing to access the ski fields, restaurants and shopping areas, maintenance and the running of the snow fields and ski runs, hire of snow and ski equipment and the provision of lessons for recreational snow activities such as skiing and snowboarding.

Belmont Senior High School (BSHS) in Western Australia decides to run a five day school excursion in July for their Year 10 students to the snow fields, staying at the Skiski resort. BSHS took 30 of their Year 10 students and five teachers to Skiski’s resort. On the second day of the excursion a group of eight BSHS students took their first beginners’ skiing lesson – none of the eight students had any experience skiing and they were not accompanied by a teacher. The lesson ran for an hour and students were shown the basics of skiing by their instructor, Jim, an employee of SkiSki. Jim then took the eight BSHS students to the top of a ‘green’ ski run. (Green ski runs are the easiest ski runs and are often used by beginner skiers. For a ski run to be classified as green it must have a gentle slope and have few to no obstacles in the path of skiers.)

When at the top of the slope Jim said ‘right, let’s go kids!’ Maria, a BSHS student, said ‘Wait! How do we slow down? I can’t remember and I don’t want to hit anything.’ Jim said ‘don’t worry, this is the beginners’ slope – there’s nothing to hit!’ The group set off down the slope at 10am and were the first skiers to use the slope that day.

Maria skied down the slope as she had been shown by Jim, but about halfway down she felt herself picking up speed and she could not slow herself down. Maria then saw a small mound ahead of her. While she could not remember how to slow down, she could still change directions. However, she felt that she was going so fast that if she changed directions, in an attempt to miss the mound, she would definitely fall over. Instead of changing directions she instinctively sat back on her skis; however, this made her go faster. As she was almost upon the mound she saw a ditch in front of it. By this stage it was too late to divert her course. She went over the mound and caught one of her legs in the ditch. She flipped over and landed hard on her back. The accident resulted in Maria suffering crush fractures to her spine.

Evidence established that the ditch was a natural formation in the land and on the morning of the accident the ditch was about two metres wide and half a metre deep. The mound also was created by underlining terrain. The size of both the mound and the ditch would vary from day to day depending upon snow fall and other weather conditions.

It was an established maintenance practice at the Skiski resort that ski runs were regularly inspected and groomed by grooming machines when required. Grooming machines tend to even out the surface of the snow and minimise the presence of natural hazards. The Area Manager, who was responsible for inspecting and ordering maintenance and grooming of the ski runs, knew about the existence of the mound and ditch on the green run. However, the evidence established that the ditch was usually significantly smaller than it was on the day of Maria’s accident and that there was not usually a mound in front of it. Although, the Area Manager was aware that the mound and the ditch were known to occasionally be of the size that they were on the day of the accident. On the morning of the accident the Area Manager had decided not to undertake an inspection of the green ski run before it opened and had not ordered the green ski run be groomed due to minimal snow fall during the night. The Area Manager did not see the ditch as a hazard to beginners because it was often not very large and did not usually have a mound in front of it. As a result the Area Manager had not installed any signs to warn of the possible existence of the mound and ditch nor had a barrier been installed around the mound and ditch. Further, until this accident, there had been no other accidents on this green run involving the mound and ditch.

Parties
Maria (Plaintiff)     v   Skiski Pty Ltd (Defendant)

Maria, the plaintiff sustained serious injuries to her body while using a ski slope owned and operated by Skiski Pty Ltd, the defendant.
Maria is claiming is that the Defendant breached their duty of care when they failed to foresee a hazardous and a potentially dangerous section of a ski slope which Maria maintains should have been checked and given proper consideration prior to allowing any inexperienced skiers to use. We are told that Maria has commenced a claim against the defendant in a tortuous claim of negligence for her injuries.