Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Perisher Blue Pty Ltd v Nair-Smith [2015] NSWCA 90 Hearing dates: 16, 17, 18 September 2014 Decision date: 09 April 2015 Before: Barrett JA; Gleeson JA; Tobias AJA Decision: 1. Appeal allowed. 2. Set aside orders (1) and (6) made by Beech-Jones J on 27 November 2013 and substitute the following orders: "(1)Verdict and judgment for the Defendant against the Plaintiff." "(6)Otherwise, the Plaintiff pay the Defendant's costs of the proceedings on the ordinary basis." 3. The respondent pay one-half of the appellant's costs of the appeal. 4. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW). Catchwords: TORTS - negligence – accident boarding chairlift – chair approached with safety bar down – lift operator raised bar - duty of care - nature and scope of duty - relevant risk – breach of duty of care – causation - whether breach causative of damage suffered – materialisation of inherent risk – quantification of damages CONTRACTS – terms – implied terms – s 74(1) of the Trade Practices Act – duty to render services with "due care and skill" – breach of implied term – assessment of damages – quantification of damages – ss 4L, 68, 68B, 74(1) of the Trade Practices Act – contract for the provision of "recreational services" – effect exclusion clauses relating to more than personal injury or death – s 4L – "contravention" of the act CONSTITUTIONAL LAW - operation and effect of the Commonwealth Constitution - inconsistency of laws (Constitution, s 109) – s 74(1) of the Trade Practices Act – Part 2 of the Civil Liability Act – direct inconsistency – quantification of damages – "full contractual liability" DAMAGES – appellate review – applicable principles – diminution in work capacity – cause of diminution – calculation of rate for domestic assistance Legislation Cited: Carriage of Goods by Land (Carrier's Liability) Act 1967 (Qld) Civil Liability Act 2002 (NSW) Trade Practices Act 1974 (Cth) Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth) The Commonwealth Constitution Act 1901 (Cth) Cases Cited: Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951) Davis v Bunn [1936] HCA 44; 56 CLR 246 Derrick v Cheung [2001] HCA 48; 181 ALR 301 Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Insight Vacations v Young [2010] NSWCA 137 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358 Manley v Alexander [2005] HCA 79; 80 ALJR 413 McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727 Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463 Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736 Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 Shaw v Thomas [2010] NSWCA 169 Treasury Legislative Amendment (Professional Standards) Act 2004 (Cth), Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 Wilson v Peisley (1976) 50 ALJR 207 Category: Principal judgment Parties: Perisher Blue Pty Ltd (Appellant) Ghita Nair-Smith (Respondent) Representation: Counsel: Mr J E Sexton SC/Mr R E Montgomery (Appellant) Mr B M J Toomey QC/Mr G J Smith (Respondent) Solicitors: HBA Legal (Appellant) Lough & Wells Lawyers (Respondent) File Number(s): CA 2013/381571 Decision under appeal Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Division Citation: [2013] NSWSC 727 [2013] NSWSC 1463 [2013] NSWSC1736 Date of Decision: 7 June 2013 4 October 2013 27 November 2013 Before: Beech-Jones J File Number(s): SC2006/294818

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

HEADNOTE [This headnote is not to be read as part of the judgment] The appellant operates ski fields at Perisher. The respondent was skiing there on 18 July 2003 with her family and some friends. On boarding a moving chair forming part of the appellant's triple chairlift, the respondent was struck from behind by the armrest of the chair. The respondent brought proceedings against the appellant in the Common Law Division of the Supreme Court for damages in negligence and for breach of contract. Beech-Jones J upheld her claim and awarded damages of $1,368,700. On the day in question, the respondent boarded the chairlift with two friends, Mr Nowland and Mrs Nowland. All three were wearing skis. Having made their way to the boarding point, they positioned themselves on the load line. They were correctly positioned and aligned upon arrival at the loading point. An employee of the appellant, Mr Lofberg, was in attendance. His precise position and actions were the subject of dispute. As the respondent and her companions waited to board the chairlift they noticed that the chair that they were to board had its safety bar down. Their awareness came from looking to their left and observing the chair before it reached and went around the bullwheel. Mr Lofberg was not paying attention to the incoming chair on the opposite side of bullwheel. The respondent and her companions called out to attract his attention. He raised the bar of the chair. The three skiers then mounted the chair. At some point after the respondent first positioned herself correctly at the load line, she moved out of alignment to the right causing the right armrest of the chair to strike her from behind as the chair came past the load line and into contact with the skiers. The respondent's primary case was that Mr Lofberg moved the chair out alignment when he raised the safety bar. In the alternative, the respondent submitted that she had been moved out of alignment by jostling at the load line in response to Mr Lofberg's inattention and delayed reaction to the down-bar situation. The primary judge rejected the respondent's primary case. His Honour held that the appellant breached its duty of care owing to the respondent by failing to take the precaution of having a lift operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel. The failure to take this precaution meant that Mr Lofberg was unable to raise the bar in a timely manner which gave rise to panic and jostling amongst the respondent and her companions which caused her to be out of alignment with the chair. His Honour delivered three judgments. In the first (Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727, 7 June 2013), he recorded his conclusion that the respondent was entitled to a verdict and gave detailed reasons for that conclusion. Certain matters required further argument before the amount of the verdict could be determined. Following a further hearing on those matters, the primary judge delivered the second judgment (Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463, 4 October 2013) in which his Honour dealt with a constitutional law question concerning the statutory regime for the assessment of damages and set out conclusions as to amounts applicable to several heads of damages. The third judgment concerned interest and costs (Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736, 27 November 2013). The appellant appealed. On appeal, the principal issues that arose for were: (1) The nature and scope of the appellant's duty of care (2) The identification of the relevant risk of harm (3) Whether the appellant breached the duty of care it owed to the respondent. (4) Whether the appellant's breach was causative of the injuries for which the respondent sought damages. (5) Whether the respondent's injuries were the materialisation of an inherent risk involved in the act of boarding a chairlift. (6) Whether Part 2 of the Civil Liability Act was inconsistent with s 74 of the Trade Practices Act so as to render it invalid according to s 109 of the Constitution. (7) The efficacy of the appellant's contractual exclusion clauses in light of ss 4L, 68, 68B and 74 of the Trade Practices Act. In allowing the appeal, the Court held: In relation to (1): 1. The appellant was under a duty of care to exercise reasonable care and skill in the provision of its lifting services to avoid harm to skiers using those services: [91]. In relation to (2): 1. The identification of the relevant risk under the Civil Liability Act is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm which the plaintiff seeks damages: [98]. Civil Liability Act 2002 (NSW) s 5B. Roads and Traffic Authority of New South Wales v Dederer Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 applied. McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 considered. 2. It is unnecessary to determine the precise source of the plaintiff's potential injuries when identifying the relevant risk under Part 1A of the Civil Liability Act: [101]. Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151, Shaw v Thomas [2010] NSWCA 169 applied; Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 considered. 3. The relevant risk in present case was the risk that a skier might sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down-bar situation: [104]. In relation to (3): 1. Reasonable care in the circumstances required Mr Lofberg to observe the condition of the chair as it exited the bullwheel. His failure to do so constituted a breach of the appellant's duty of care: [137]. Civil Liability Act 2002 (NSW) ss 5B, 5C. Derrick v Cheung [2001] HCA 48; 181 ALR 301, Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540, Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 applied. Davis v Bunn [1936] HCA 44; 56 CLR 246 referred to. In relation to (4): 1. The evidence does not allow a finding that the respondent would not have been out of alignment with the chair but for any apprehension produced by Mr Lofberg's inattention at a point at which reasonable care required him to act, but did not: [161]-[164]. Civil Liability Act 2002 (NSW) ss 5D, 5E. Jones v Dunkel [1959] HCA 8; 101 CLR 298, Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951), Luxton v Vines [1952] HCA 19; 85 CLR 352 applied. In relation to (5): 1. The respondent's injuries were not the materialisation of an inherent risk because they could have been avoided by the exercise of reasonable care and skill: [167]. Civil Liability Act 2002 (NSW) s 5I. In relation to (6): 1. The limitations on damages imposed by Part 2 of the Civil Liability Act are invalid according to s 109 of the Constitution because they are directly inconsistent with the right to "full contractual liability" conferred by s 74(1) of the Trade Practices Act 1975 (NSW). "Full contractual liability" refers to an entitlement to recover the full amount of damages recoverable at common law undiminished by any State's or Territory's legislation and free from any intrusion by such legislation for any breach of s 74: [194]-[195]. Commonwealth of Australia Constitution Act 1901 (Cth) s 109, Trade Practices Act 1975 (Cth) ss 74, 742A, Civil Liability Act 2002 (NSW) Part 2, s 5N. Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388, Insight Vacations v Young [2010] NSWCA 137 applied. In relation to (7): 1. The ticket contract was for the supply of "recreational services" within the meaning of s 68(2) of the Trade Practices Act because the common intended purpose and object of the transaction was to facilitate resort skiing which included, but was not limited to, the provision of lifting services: [201]. Trade Practices Act 1975 (Cth) ss 68, 68B, 74. Civil Liability Act 2002 (NSW). Part 1A, s 5N. 2. The term of the ticket contract that purports to exclude liability for more than personal injury or death does not answer the description in s 68B(1)(d) of the Trade Practices Act and is, by force of s 68, void in its entirety and not just to the extent that it purports to exclude, restrict or modify liability for anything beyond personal injury or death: [216]. Trade Practices Act 1975 (Cth) ss 4L, 68, 68B. Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 applied. 3. Section 4L of the Trade Practices Act was not engaged in the present case because the inclusion of a term in the contract which purports to avoid the application of the warranty implied by s 74 will no constitutes a contravention of the Act: [218]. Trade Practices Act 1975 (Cth) ss 4L, 74, 68.

Judgment 1. THE COURT: Perisher Blue Pty Ltd ("the appellant") operates ski fields at Perisher. Dr Ghita Nair-Smith ("the respondent") was skiing there on 18 July 2003 with her family and some friends. On boarding a moving chair forming part of the appellant's triple chairlift, the respondent was struck in the groin area from behind by the armrest of the chair. 2. The respondent claimed that the appellant was guilty of negligence in and about the operation of the chairlift and that that negligence of an employee of the appellant was causative of bodily injury sustained by her. She brought proceedings against the appellant in the Common Law Division of the Supreme Court and, after a trial that occupied eleven hearing days in August and September 2012, Beech-Jones J upheld her claim and awarded her damages of $1,368,700. 3. His Honour delivered three judgments. In the first (Nair-Smith v Perisher Blue Pty Ltd [2013] NSWSC 727, 7 June 2013), he recorded his conclusion that the respondent was entitled to a verdict and gave detailed reasons for that conclusion. Certain matters required further argument before the amount of the verdict could be determined. The judge identified those matters and stood the proceedings over for directions. 4. The second judgment (Nair-Smith v Perisher Blue Pty Ltd (No 2) [2013] NSWSC 1463, 4 October 2013) followed a further hearing on 9 September 2013. In that judgment, his Honour dealt with a constitutional law question concerning the statutory regime for the assessment of damages and set out conclusions as to amounts applicable to several heads of damages. The proceedings were further stood over for submissions on the calculation of interest and on costs. 5. These remaining matters were determined by a judgment delivered on 27 November 2013 following the filing of written submissions: Nair-Smith v Perisher Blue Pty Ltd (No 3) [2013] NSWSC 1736. 6. The appellant appealed. It contends that the primary judge made a number of factual errors and that he erred in both the formulation of the scope and content of the duty of care owed by the appellant to the respondent and in finding that negligence of one of its employees was a necessary condition of the state of affairs said by the respondent to have caused her injury. There are also challenges to elements of the assessment of damages. In addition, the appellant says that the judge erred in finding non-applicability of certain sections of the Civil Liability Act 2002 (NSW) by virtue of an implied contractual term under s 74 of the Trade Practices Act 1974 (Cth). 7. Because much depends on matters of fact, it is necessary to deal in some detail with the judge's factual findings and the challenges to them. 8. The triple chairlift, as its name implies, consists of a series of chairs each of which is suspended from an overhead cable and can accommodate three persons sitting side by side. The chairs carry skiers from a loading station at a lower point on the mountain to a disembarkation station at a higher point on the mountain. The cable runs around large wheels called "bullwheels" at the top station and the bottom station and is constantly moving. 9. The space between chairs rounding the bullwheel and approaching the loading point is such that, immediately after one loaded chair has departed, up to three skiers can position themselves at the loading point in a way that enables them to sit down on to the next chair after it has passed around the bullwheel and reached the loading point. 10. If, as on the occasion in question, three skiers are to board, they stand on a transverse line marked on the snow at the loading point with their skis pointing in the uphill direction that the chair will follow. This line is known as the "load line". They look behind for the approaching empty chair and, when it arrives, sit down on to it. They must, of course, be close enough together that all three are collected by the seat of the chair when it reaches them. The person on the right must be not too far to the right and the person on the left must be not too far to the left. 11. Each chair has a rail in the nature of an armrest at each end. A safety bar, hinged at each side of the chair and running from one side to the other, is raised before persons mount a chair and is lowered by them after they are in position. It serves a safety purpose related to the possibility that persons seated in the chair may fall forward. When lowered, the safety bar is at roughly the height of the waists of the seated passengers and in front of them so that their hands may rest on it and, in due course, raise it immediately before they disembark. Persons waiting at the loading point cannot board a chair if its bar is down. This is because it is across the front of the seat and prevents anyone placing their body on it. 12. On the day in question, the respondent boarded the chairlift with two friends, Mr Nowland and Mrs Nowland. All three were wearing skis. They made their way to the boarding point and positioned themselves on the load line. As they faced uphill, the respondent was on the right, Mrs Nowland was on the left and Mr Nowland was between them. An employee of the appellant, Mr Lofberg, was in attendance. His precise position and actions were the subject of dispute. 13. Persons standing on skis at the boarding point waiting for a chair can, by looking to their left and slightly ahead, see empty chairs as they come downhill on the cable before turning 180 degrees on the bullwheel behind them and commencing the approach to the loading point for the next uphill journey. 14. The respondent and her companions, having assembled on the load line, became aware that an empty chair to their left was approaching at the end of its downhill journey with its safety bar down – that is, in the position it would normally occupy in front of passengers who had boarded the chair and lowered the bar in front of them. 15. Seeing that the bar of the approaching chair was down, the respondent and her companions called out to attract the attention of Mr Lofberg. He raised the bar of the chair. The three skiers then mounted the chair but the respondent did so in such a way that the armrest at the right hand end of the chair came between her legs and she was injured by its contact with her groin area.

Proceedings below 1. The respondent brought proceedings for damages against the appellant in tort and contract in respect of the injuries she suffered. In her amended statement of claim dated 13 February 2009, the respondent particularised the appellant's alleged negligence as follows: 1. The appellant failed to keep a proper lookout sufficient to allow it to detect that the safety bar was down before it entered the loading area. 2. The appellant's servant failed to raise the safety bar in a timely manner. 3. The appellant's servant handled the chair in such a way that he pulled it out of alignment with the respondent and her companions. 4. The appellant's servant failed to stop or slow the lift so as to prevent it from impacting with the respondent and her companions or to give the appellant's servant sufficient time to raise the safety bar. 5. The appellant's servant allowed the respondent to proceed through the entry gate to the loading point even though he knew or ought to have known that the safety bar was down and that it was not safe for her to so enter. 6. The appellant's servant: 1. had his back to the chair as it approached the loading station; 2. failed to ensure the safety of the passengers boarding the triple chair; 3. failed to raise the safety bar so as to ensure the safety of passengers; 4. failed to watch for safety bars being down and to put the safety bar up; 5. failed to stop the lift when appropriate; 6. failed to stop the lift and/or lift the safety bar well before the chair had moved into the bullwheel area; 7. failed to position himself in relation to the stop button to be able to stop the progress of the chair in a timely manner so as to avoid injury to the respondent. 1. The appellant's servant, through his conduct enumerated at (6) above, failed to properly implement the appellant's lift procedures. 1. The respondent's claim in contract alleged that the appellant was under an express contractual obligation to provide uphill transportation to her with reasonable care and skill. The obligation was said to be incorporated into the contract between the appellant and respondent by virtue of the writing on the respondent's lift pass and the signage displayed in the vicinity of the point at which the respondent purchased her pass. The respondent submitted that her contract with the appellant also contained an implied term to the effect that the appellant was to provide transportation services to her with due care and skill by virtue of s 74 of the Trade Practices Act 1974 (Cth) as in force before the amendments made by the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010 (Cth). The respondent relied on the particulars detailed above in respect of her claim in contract. 2. The amended statement of claim set out particulars of the respondent's injuries allegedly occasioned by the incident. The respondent alleged that she suffered injury to her left vulva, back, right hip and right thigh; abrasion to the left portion of her left labium majus, bruising, anxiety, humiliation, shock and sequelae for which she sought damages for out of pocket expenses, domestic assistance or attendant care, loss of income and loss of earning capacity, and future economic loss. 3. The appellant accepted that a duty of care was owed to the respondent but denied any tortious liability arising out of the incident. In the alternative, it submitted that the respondent was guilty of contributory negligence. Similarly, the appellant accepted that it was under a contractual obligation to provide its transportation services to the respondent with due care and skill but denied any breach of that obligation and argued that any liability was nevertheless excluded by virtue of indemnities appearing on the lift pass and on the signage located at the point of sale of the pass which it alleged were incorporated into the contract. The appellant denied that it was under an implied obligation to render its services with due care and skill by virtue of s 74 of the Trade Practices Act because that section was rendered inapplicable by ss 68A and 68B. In any event, the appellant argued that the means of establishing a breach of the term implied by s 74 and of calculating the respondent's damages in respect of any such breach were governed by Parts 1A and 2 of the Civil Liability Act 2002 (NSW). The respondent alleged that the Civil Liability Act did not apply because it was inconsistent with s 74 of the Trade Practices Act and was accordingly (and to the extent of the inconsistency) invalid by virtue of s 109 of the Constitution.

Issues before the primary judge 1. The following issue arose for determination before the primary judge for the purposes of his first judgment: 1. The manner in which the accident happened. 2. The nature and extent of the appellant's contractual obligations; to what extent, if any, the appellant breached any of those obligations and to what extent, if any, was the appellant indemnified under the contract in respect of any such breaches. 3. The nature and extent of the appellant's duty of care in tort, whether the appellant breached that duty, whether any potential breaches were causative of the respondent's loss for which she was seeking damages, whether the manner in which Mr Lofberg comported himself constituted a materialisation of an inherent risk involved in the activity of loading onto chairlifts, whether the accident constituted an obvious risk involved in a dangerous recreational activity, the sufficiency of the appellant's risk warnings and whether the respondent was contributorily negligent in respect of the injuries she sustained. 4. Whether s 74 of the Trade Practices Act was applicable to the contract between the appellant and the respondent in light of ss 68A and 68B and, if applicable, whether the appellant breached the term it implied into the contract to render lifting services with due care and skill. 5. The factual issues relating to the respondent's claim in damages.

Findings of the primary judge 1. The primary judge made the following findings in relation to the manner in which the accident happened. The respondent and her companions were properly aligned immediately after arrival at the loading point. Mr Lofberg was positioned "no closer to the loading point than the exit point of the bull wheel", when the skiers assembled at the loading point. He noticed the state of the bar (that is that it was down) "late" when his attention was drawn to that fact by the calls of the respondent and her companions. By the time Mr Lofberg raised the bar, the front edge of the chair was within 300mm of the skiers. When he raised the bar, he acted in a hurried way but did not push the chair. His manner of raising the bar caused the skiers to panic and shuffle, which in turn caused the respondent to move out of correct alignment. The misalignment resulted in the respondent being struck by the chair's armrest as it came past the loading point. The expert evidence established that the dynamics of the chair were such that it could not have been pulled out of alignment by Mr Lofberg to the skiers' right and then swung back to the left of the skiers in the time available, as alleged by the respondent. 2. In relation to the appellant's contractual liability, the primary judge made the following findings. The contract between the appellant and respondent did not incorporate any of the terms printed on the respondent's lift pass or on the signs located at the point at which the respondent purchased her lift pass. The contract contained a term implied by s 74 of the Trade Practices Act that the respondent would provide its transportation services with due care and skill, which term the appellant breached by failing to have a lift operator near the loading point observing chairs as they left the bullwheel so as to enable him to raise any safety bars that were down in a timely manner. The primary judge arrived at this conclusion on the basis of the reasoning he applied to the respondent's claim in negligence. He added that, even if certain sections of the Civil Liability Act relied on in relation to the respondent's claim in negligence did not apply to the respondent's claim in contract by virtue of being inconsistent with the Trade Practices Act, the respondent's Trade Practices Act claim would nevertheless succeed. 3. With respect to the respondent's negligence claim, the primary judge found (at [129]-[130]) that the appellant owed the respondent a duty of care to exercise "reasonable care and skill in respect of the her [sic] safety and in operating the chair and to allow her to safely utilize the chair". He identified 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". There was a foreseeable and not insignificant risk that a chair would arrive at the loading station with its safety bar in the down position. In the circumstances, a reasonable person in the position of the appellant would have taken the precaution, not taken in the present case, of "having a ski operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel". The taking of this precaution would have "enabled Mr Lofberg to raise the bar in a 'timely manner'". In light of the probability and likely seriousness of the harm that may result from failing to take this precaution, the burden of taking it and the social utility of having lifting services provided to skiers, the primary judge held that the appellant's failure to take the identified precaution constituted a breach of the duty of care it owed to the respondent. 4. The primary judge found that the failure to take this precaution resulted in Mr Lofberg having to lunge or dive at the chair in a rushed manner, which caused the respondent and her companions to panic and jostle so that the respondent was displaced from her original position of alignment with the chair. It was in this way that the appellant's negligence was found to have been causative of the injuries for which the respondent sought damages. 5. The primary judge rejected the appellant's submissions that the risk of a lift operator having to take urgent remedial action to raise a down-bar was an inherent risk involved in boarding a chairlift and that such boarding was a dangerous recreational activity for the purposes of s 5L of the Civil Liability Act. These findings made it unnecessary to consider whether the respondent's accident was the materialisation of an obvious risk. 6. Finally, the primary judge held that the respondent was not contributorily negligent for the injuries she sustained. This was because the appellant failed to discharge its onus of proving that the respondent moved out of alignment with the chair as a result of her panicking as opposed to the panicking of her companions. 7. In the first judgment, the primary judge discussed in detail the evidence concerning the extent of damages recoverable but did not make final orders. As a number of issues going to the quantification of damages had not been addressed fully, the primary judge deferred consideration of the issue to the hearing of 9 September 2013. He also deferred consideration of the statutory inconsistency issue to that date. The decision on those matters was announced on 4 October 2013. The primary judge found that the Parts 1A and 2 of the Civil Liability Act were directly inconsistent with s 74 of the Trade Practices Act on the basis of the High Court's reasoning in Wallis v Downard-Pickford (North Queensland) Pty Ltd [1994] HCA 17; 179 CLR 388 ("Wallis") and were thereby invalid to the extent of that inconsistency in accordance with s 109 of the Commonwealth Constitution. Parts 1A and 2 neither applied to regulate the means of establishing a breach of s 74 of the Trade Practices Act nor to limit the amount of damages recoverable in respect of such a breach. 8. In relation to damages, the primary judge tabulated his findings as follows: Civil Liability Act Common Law 135,000.00 (80,000 for General damages 34,775.00 the future and 55,000 for the past period) Past economic loss 61,701.62 314,458.18 Future economic loss nil 325,000.00 Domestic assistance – past 87,638.30 114,112.50 Domestic assistance - future 127,820.68 188,025.60 (159,775.86 x 0.8) (235,032.00 x 0.8) Past paid assistance - cleaner 26,312.50 26,312.50 Future paid assistance - cleaner 34,636.00 44,768.00 (43,295.00 x 0.8) (55,960.00 x 0.8) Past out of pocket expenses (other than paid care) 8,000.00 8,000.00 Future out of pocket expenses (other than paid care) 19,550.26 23,344.17 (24,437.82 x 0.8) (29,180.21 x 0.8) Equipment needs 11,522.45 13,576.71 (Provisional) Total $411,956.81 $1,192,597.50

1. The primary judge did not make final orders on 4 October 2013 as the question of interest remained undetermined. He directed the parties to calculate interest and to make submissions as to costs. The parties agreed upon pre-judgment interest in the sum of $175,482.00 and on 27 November 2013 the primary judge entered judgment in the respondent's favour in the amount of $1,368,700.00, being the rounded sum of $1,192,597.50 and $176,114.24. 2. The primary judge made the following orders as to costs: "(2) The Plaintiff pay the Defendant's costs thrown away on vacation of the hearing fixed in the District Court of New South Wales on 2 to 6 February 2009 including costs of the Plaintiff's Notice of Motion dated 21 and 29 January 2009 heard before Toner DCJ commencing 2 February 2009. (3) The Plaintiff pay the Defendant's costs on the ordinary basis thrown away by reason of the amendment the subject of the grant of leave to amend on 5 February 2009. (4) Each party pay their own costs of the Directions Hearing in the District Court of New South Wales on 22 October 2009. (5) The Plaintiff pay the Defendant's costs on the ordinary basis of and incidental to obtaining reports from Mr Charles Needham. (6) Otherwise the Defendant pay the Plaintiff's costs of the proceedings on the ordinary basis."

Issues on appeal 1. The following issues arose on appeal: 1. The manner in which the accident happened. 2. The nature and scope of the appellant's duty of care. 3. The identification of the relevant risk of harm. 4. Whether the appellant breached the duty of care it owed to the respondent. 5. Whether the appellant's breach of duty was causative of the injuries for which the respondent sought damages. 6. Whether the respondent's injuries were the result of the materialisation of an inherent risk involved in the act of boarding a chairlift. 7. Whether s 74 of the Trade Practices Act operated on the contract between the appellant and the respondent so as to imply a term into it to the effect that the appellant would render its services to the respondent with due care and skill. 8. Whether Parts 1A and 2 of the Civil Liability Act were inconsistent with s 74 of the Trade Practices Act so as to render them invalid according to s 109 of the Constitution. 9. The efficacy of the appellant's contractual exclusion clauses in light of ss 4L, 68, 68B and 74 of the Trade Practices Act. 10. The quantification of damages.

Issue 1: How did the accident occur 1. There were no other skiers at the loading station when the respondent and her companions arrived at the chairlift for their final run of the day at about 3.45pm. There were two lift attendants on duty. The respondent and her companions arrived at the loading gate and waited for it to open before proceeding to the loading point, the distance between the gate and the loading point being 5.6 metres. It takes approximately 9 seconds for a chair to arrive at the loading point from the moment the entry gate opens. Skiers have less time than this to get from the entry gate to the loading point as they must be aligned properly at the loading point before the chair arrives. When the respondent and her companions arrived at the loading point, they were correctly aligned. This is not disputed. When the chair on to which the respondent and her companions were to load entered the loading station, its safety bar was down. Before the chair reached the respondent and her companions, Mr Lofberg raised the safety bar. The factual issues in contention in this part of the appeal concern where Mr Lofberg was situated when he noticed that the safety bar was down, how he acted after coming to that realisation and how he handled the chair in the process of rectifying the down-bar situation.

Position of Mr Lofberg 1. The primary judge found that "Mr Lofberg was at a point no closer to the loading point than the exit point of the bullwheel when he was made aware that the safety bar was down". 2. In the respondent's affidavit dated 13 December 2009, she deposed that Mr Lofberg was "standing near the loading position, about two metres to the side of the loading run and a similar distance back from the loading position … facing away from the loading point". In cross-examination, she gave evidence to the effect that Mr Lofberg was about a metre away from the load point, facing the other way shovelling snow and positioned closer to the bullwheel than he was to the load point. The following exchanges took place between Dr Nair-Smith and counsel during cross-examination: "Q: How far away from the load point [was Mr Lofberg]? A: About a metre away, about a metre, and he was facing the other direction as well" 1. And: "Q: You describe him [Mr Lofberg] as being about 2 metres to the side of the loading run and a similar distance back from the loading position? A: Yes Q: If he were 2 metres back from the loading position he would be very much closer, would he not, to the chair with the arm down than if he was standing at the loading point? A: Yes" 1. In her affidavit dated 10 July 2009, Mrs Nowland, one of the respondent's companions, deposed that Mr Lofberg was situated "up near the control booth, near the loading point and to the side of the loading point for the chair lift", whereas in her affidavit dated 15 February 2009, she describes his position as being "up near the booth, a couple of metres back and to the side of the loading point for the chairlift". In cross-examination, Mrs Nowland stated that he was "in front of the building" and "a couple of metres back". 2. In his affidavit dated 16 December 2009, Mr Nowland (the respondent's other companion) deposed that Mr Lofberg was "taking down the ropes that form part of the queue line" when they arrived at the entrance to the chairlift and that he was "within a few metres, back and to the side of the correct loading position" and was "also facing away from the chairlift". According to one of the expert witnesses, Mr Gow: "Mr Nowland positions the lift operator in what I would believe to be the correct area in order to supervise the loading of a chair… There is no necessity for the operator to stand in immediate proximity to the load point at all times in the load process, as the operator will move back to a position to bump the chair once the passengers are in the loading position." 1. In his affidavit dated 19 May 2010, Mr Lofberg deposed that he was "standing probably 2 metres from the load point with [his] back to the lift hut", that he did not "recall the exact distance" and that, although it had been some time since the incident, he "was fairly confident that [he] was not shovelling snow and was just watching passengers shuffle through to the load point." He deposed that he was "bumping chairs, getting the people in position at the load line when just before the chair got to them I realised the safety bar was down" - "bumping" being a process of taking hold of the back of a chair and moving it slightly backwards to facilitate passengers sitting back on to the chair. He recalled having to take a "couple of steps" (although he could not remember precisely how many) in order to reach the chair with the bar down. 2. The primary judge found that Mr Lofberg "noticed that the bar was down late" that is, after the chair had left the bullwheel; that the chair with its bar down "came within less than half a metre and probably less than 300mm" of the skiers before the bar was raised; and that the respondent, Mrs Nowland and Mr Nowland drew Mr Lofberg's attention to the fact that the bar was down "by yelling at him words to that effect". The primary judge found that Mr Lofberg accepted "that he noticed [the down-bar] late (the 'last minute')" and "did not deny that his attention was directed to it by people yelling that the bar was down". 3. According to Mr Lofberg's affidavit, "the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions" and when he "met the chair" and "flicked the safety bar up" he "was approximately 1.5-2 metres from where Dr Nair-Smith and her friends were standing on the load line". In cross-examination, Mr Lofberg stated that he had "seen the bar at the last minute" but could not say whether the chair was one or three metres from the skiers when he noticed that the safety bar was down. Later he recalled that he realised the safety bar was down "just before the chair got to them" and that "the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions". 4. The respondent's evidence was that the chair was "about one metre" from her and her companions when Mr Lofberg flipped the safety bar back. Mrs Nowland described the distance as "probably a foot". 5. The primary judge concluded that: "The combination of Mr Lofberg's acceptance that he only noticed the down safety bar late, and his estimate of where he was located at that time, make it very likely that he grabbed the chair from behind, and when it was very close to colliding with the skiers [and thus] 'that the "precaution" of having a ski operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel was not given effect to. Taking this precaution would have enabled Mr Lofberg to raise the bar in a 'timely manner'." 1. The primary judge expressly recorded that he "did not form an adverse view of the honesty of any of the witnesses" but at the same time noted the "obvious potential for the witnesses to have been mistaken in their recollection". There is accordingly no reason to think that any of the witnesses attempted to give anything other than an accurate recollection of events as they perceived them. It is worth recalling, however, that the events occurred over the space of only a few seconds in circumstances that involved stress for those at risk of being struck by the chair with its bar down and that much of the evidence was given many years after the event occurred. 2. The distance at which Mr Lofberg was standing from the load line is variously described as "a metre", "about a metre", "approximately 1.5-2 metres", "near the control booth", "about 2 metres ", "probably 2 metres ", "closer to the bullwheel than he was to the load point", "a few metres " and "a couple of metres". The evidence in this regard is unspecific. As has been noted, the primary judge found (at [69] and [157]) that Mr Lofberg was positioned "no closer to the loading point than the exit point of the bullwheel". It is not clear what the primary judge meant by this. It may be a finding that Mr Lofberg was located at or in close proximity to the exit from the bullwheel or that he was positioned closer to the exit from the bullwheel than to the loading point. If the former interpretation is correct, the primary judge found that Mr Lofberg was approximately 1.8 meters from the load line. If the latter is correct, the primary judge positioned Mr Lofberg over half way between the load line and the exit from the bullwheel, that is, at least 0.9 metres from the load line. On the basis of the evidence to which reference has been made, it seems, that Mr Lofberg was located about a metre from and behind the load point when he realised that the safety bar was down. That distance accords with the evidence of the respondent. 3. Mr Lofberg accepted that he only realised the bar was down "late" and that his attention was drawn to that fact by the yelling of the respondent and her companions. The distance between the skiers and the chair at the time at which the bar was raised is variously described in the evidence as "about 1.5 metres", "between 1 and 3 metres", "about a metre" and "probably a foot". Only Mrs Nowland put the distance at 300mm ("a foot"). However that is the distance at which the primary judge found the chair to be from the skiers when the safety bar was raised. This was against the weight of the evidence. 4. His Honour gave no reasons for preferring the evidence of Mrs Nowland as compared with that of her companions and Mr Lofberg. There is no reason why her evidence should be given particular weight. With respect, the primary judge was not justified in finding that the chair was only 300 millimetres from the skiers by the time Mr Lofberg raised the safety bar. The weight of the evidence supports a finding that the distance was closer to 1 metre. Given the vagaries inevitably involved in such evidence, it is as impracticable as it is undesirable to attempt any precise finding as to the distance between the skiers and the front edge of the chair when the bar was raised. However, in light of the finding as to the positioning of Mr Lofberg and the evidence of all the witnesses, it should be accepted, on the balance of probabilities, that the front edge of the chair was at least 300 millimetres and more like one metre behind the skiers when Mr Lofberg raised the safety bar.

Mr Lofberg's conduct after becoming aware that the bar was down 1. The primary judge found (at [69]) that: "[Mr Lofberg] ran, dived or lunged at the chair from behind, catching it just prior to it colliding with Dr Nair-Smith and her travelling companions. He was able to pull the chair back on its axis at that point and bump the safety bar, presumably with his right hand. I think it likely he pulled with some force out of alignment to the right ... that did not result in the chair swinging to such a degree that it was aligned to the left of the raised platform at the loading point." 1. According to Dr Nair-Smith's affidavit, when the chair was about one metre away Mr Lofberg "lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him at an angle, flipped the safety bar back up with his right hand, then let go of the chair". In cross- examination, Dr Nair-Smith stated: "It happened with me watching him do it, yelling at him to notice that it was down, to get his attention, and, when I finally did get his attention, he had to lunge forward, grab the chair, flick the armrest back and let the chair go and, in doing so, the chair hit me at an angle, hit me on my right buttock, impaled me on the armrest." 1. And later: "[Mr Lofberg] was not looking to see the position of the chair as it came down so he wasn't observing the chair as it came down. He was facing the other direction shovelling snow, looking away from the riders going to the loading point and from the chair coming down. When he was called, he jumped forward, he turned around and jumped forward pulling out with his left-hand and he flicked the armrest back. Because he was behind the chair and off to the right he had to lunge forward to pull at it to get to the armrest in time." 1. According to Mrs Nowland's affidavit, Mr Lofberg: "[G]rabbed the chair's closest corner with his left hand, then with his right hand, grabbed the safety bar and flung it up, wrenching it. As he did so he also pulled the chair toward him, off the chair's normal alignment". 1. In his statement made after the incident on 18 July 2003, Mr Lofberg said that "when the chair came around [the bullwheel] I noticed safety bar was down but I got it up in time". In response to a question regarding what he did during the incident he responded: "I noticed the safety bar was down. Took a couple of steps towards the chair from the load, flipped the bar up. Then I pulled the chair back not to the side. The chair was ready for a load. They seemed to panic but also seemed to be loaded properly." 1. In his affidavit dated 19 May 2010, Mr Lofberg deposed: "I saw that the bar was down as the chair was coming around the bullwheel. I recall that I stepped forward and, as I met the chair, flicked the safety bar up. At that time, it was approximately 1.5-2 metres from where Dr Nair-Smith and her friends were standing on the load line. I do not recall precisely how many steps I took toward the approaching chair. I clearly recall seeing the safety bar was down before the chair arrived where I was standing beside the snow path. I quickly moved to the chair and as it reached me I flicked up the bar. I recall the bar was up for about 1.5 metres before the chair reached Dr Nair-Smith and her companions. I still had time to bump the chair in the normal way. Because of where I was standing, I recall that I did not need to, nor did I, lunge for the approaching chair. Bumping a chair does not take much effort. It requires only slowing the chair momentarily in relation to the cable. I would recall if I had struggled to pull the chair or had to apply any significant force." 1. It may be accepted that Mr Lofberg had to move toward the chair in order to be close enough to raise the down-bar. He came at the chair from behind. Given the timeframes and distances involved, it may also be accepted that Mr Lofberg had to move quickly such that his movements could aptly be described as a "lunge" and his manner as "hurried".

Mr Lofberg's actions in relation to the chair 1. There are competing accounts of what caused the respondent to be misaligned with the chair. According to the respondent and her companions, Mr Lofberg was the effective cause of the misalignment because he pulled the chair in his hurried attempt to raise the safety bar while they remained in what otherwise would have been the correct loading position. Mr Lofberg, by contrast, gave evidence that the chair was travelling in its normal alignment when it arrived at the loading point and that he did not apply any extraordinary force to it such as would cause it to move out of the correct alignment. The expert evidence suggested that it was highly unlikely that Mr Lofberg could have applied sufficient force in sufficient time to cause the chair to misalign in the way that it supposedly did. The primary judge preferred the evidence of the experts and found that the panic induced by Mr Lofberg's delay in raising the down-bar caused the respondent to move out of alignment with the chair. 2. The primary judge found that Mr Lofberg did not apply sufficient force to the chair, either by pulling it or by subsequently pushing it, to cause it to move to the left before it struck the respondent. His Honour found (at [126]: "At the time impact occurred Dr Nair-Smith was out of alignment to the right of the chair and it had not swung back to the left. I have accepted that contention. However I have also accepted so much of Dr Nair-Smith's case that alleged a very late reaction by Mr Lofberg to the safety bar being down, and his pulling the chair back and to the left just prior to it reaching the loading point." 1. According to his Honour, "the axis point at the top of the chair enabled Mr Lofberg to pull the chair back with his left hand while he lifted the safety bar with his right. The subsequent behaviour of the chair under that scenario would account for the acceleration of the chair that the skiers observed". 2. It is necessary to further analyse the evidence on this issue. 3. The respondent deposed that "[a]t no stage during this process [ie, the loading process] did I change the alignment of my body or my skis". She also said: "When the chair was about one metre away from me, the lift attendant nearest to me lunged forward, grabbed the back corner of the chair with his left hand, pulled the chair back toward him at an angle, flipped the safety bar back up with his right hand, then let go of the chair. The chair then came at us at an angle. By this I mean ordinarily the chair simply comes up directly behind you whilst you stand at the loading position and it is simply a matter of sitting back onto the chair when it arrives. On this occasion the chair did not come straight up behind us, it came at us at an angle due to it being pulled back and to the side by the lift attendant". 1. According to the respondent, Mr Lofberg's action caused the chair to come at her and her companions "at a much higher speed than normal". In cross-examination, she stated that Mr Lofberg pulled the chair back "inches, feet - perhaps a foot. It would have been in the inches". 2. Mrs Nowland also gave evidence that her "skis and feet had remained in the correct front alignment throughout the whole process". In her witness statement dated 18 July 2003, Mrs Nowland stated: "We all tried to leap out of the way as the liftie dived and raised the bar and pulled the chair sideways towards the Leichhardt lift side [ie, to the right looking up the hill]. We [ie., Mrs Nowland and her husband] managed to sit sideways and our friend was hit by the chair about twice full force because the chair had been held." 1. In her affidavit dated 15 February 2009, Mrs Nowland added to the end of the foregoing statement that Mr Lofberg "let go of the chair and it came at us at an angle and faster than expected". 2. In her affidavit dated 10 July 2009, she added that "as [Mr Lofberg] lunged he held the chair, which effected to push the chair down with his body weight". 3. Mr Nowland said in his affidavit of 10 December 2009, that "[d]uring this whole procedure I had not changed the alignment of my skis. They were still facing forward" and that: "Whilst the lifty had grabbed the chair and pulled up the safety bar, I was looking at [Mr Lofberg] over my right shoulder. Ghita [Dr Nair Smith] was in my vision the whole time. I did not observe her to change her alignment in any way." 1. In his affidavit dated 16 December 2009, Mr Nowland deposed that: "As the chair approached us I saw the lifty closest to us grab the chair. He was on the right side of the chair. I believe that he grabbed the back of the chair with his left hand and at the same time pulled the chair towards him and back, and lifted the safety bar with his right hand. After pulling the safety bar he then let go of the chair. The chair came at us very quickly, swaying and at an angle." 1. Mr Lofberg deposed in his affidavit of 19 May 2010 that: "I recall that the chair was travelling in normal alignment to the load point, in particular, it was not swinging before the load point. When Dr Nair-Smith and her companions sat on the chair, it was in normal alignment with the snow path. If Dr Nair-Smith had remained in the correct position at the load point, she would not have straddled the side rail and would have sat down on the chair normally." 1. In cross-examination Mr Lofberg gave evidence that he never saw Dr Nair-Smith and her companions out of alignment. The following exchange took place: "Q: You never saw any of them, any of the three move from the correct position for loading, did you? A: I never saw any of them move? Q: From the correct position for loading, did you? A: From what I remember they were standing in the position, yeah." 1. He later stated that "[t]hey got on the chair, so they must have been pretty close to where they had to be, otherwise they would not get seated". 2. In relation to the way in which he handled the chair, Mr Lofberg deposed that he "had time to bump the chair in the normal way. Because of where [he] was standing" and that: "I recall that I did not need to, nor did I, lunge for the approaching chair… Bumping a chair does not take much effort. It requires only slowing the chair momentarily in relation to the cable. I would recall if I had struggled to pull the chair or had to apply any significant force". 1. He later stated that "just before the chair got to them, I realised the safety bar was down. I quickly flicked it up and bumped the chair back, it appeared the people got on the chair without incident". He maintained this position in cross-examination: "Q: I suggest to you that you came from behind the chair? A: Yeah, I don't believe that was true. Q: Why not? A: From the memory of the time, I think I flicked it up coming towards me. I don't remember walking around and flicking it up." 1. Expert evidence was provided by Mr Mark Dohrmann, a qualified engineer and ergonomics expert retained by the respondent, Mr Charles Needham, an engineer retained by the appellant, and Mr John Gow, who has extensive experience in the conduct of ski resorts and the operation of chairlifts, who was also retained by the appellant. The experts provided individual reports and participated in a joint expert conclave, the minutes of which were in evidence. 2. In his report dated 24 October 2007, Mr Dohrmann assumed that Mr Lofberg had pulled the chair causing it "to be held back well off the vertical and also obliquely to the forward line of movement of the cable". He concluded that it was likely that the respondent's injuries were a result of a lift operator electing "to pull a heavy triple chair back (presumably to try and gain a moment's time) when the chair, with safety bar in the incorrect 'down' position, had approached too close, instead of stopping the lift". 3. Mr Dohrmann abandoned the above assumption in his report dated 26 August 2008 after he had inspected the lift. He no longer considered the chair to be capable of moving in this way. Nevertheless, on the information available to him, he concluded that: "it appears that the tow operator (apparently to raise the safety bar) has taken hold of the chair and pulled it back out of position. This would not be difficult, given the freedom of the chair to swing forwards, backwards and side to side, and the fact that the cable is being dragged forwards by the uphill station. On release, it has swung forward in a direction which allowed it to strike Dr Nair-Smith." 1. In Mr Gow's report dated 9 October 2008, he states that: "There is, however, little that the operator can do should the passengers suddenly move out of position in the moments before the arrival of the chair. Stopping the lift will not be effective in this situation due to the stopping distance of the chair, thus the operator is obliged to load out of position passengers as best he or she can, then stop the lift if it is apparent that passengers are not properly loaded as they leave the station. It must be emphasised that all of this occurs in the space of a few seconds. … Based on Mr Nowland's statement that they all tried to leap out of the way, it appears to me that it was Mrs Nair-Smith and not the chair that was in the wrong position for loading. In other words, Ms Nair-Smith deliberately moved herself out of the correct load position. Her move to the right almost certainly positioned her directly in front of the armrest of the approaching chair. Had she simply remained in the correct load position this accident would not have happened. … It is alleged that the plaintiff's injuries were caused or exacerbated by the operator allegedly holding the chair back and then releasing it and allowing it to swing forward. In my opinion and based on my experience, I do not believe that it would have been possible for the operator to have a) raised the restraining device, b) pulled the chair back momentarily to reduce impact and speed and c) let the chair go allowing it to swing forward as described, all in the course of less than three quarters of one second." 1. It should be noted that there was no evidence that the respondent "deliberately moved herself out of the correct load position". However, this does not exclude the possibility that the respondent may have moved unconsciously. 2. In Mr Gow's supplementary report dated 28 May 2010, he stated that "even if the operator did attempt to hold or pull the chair back, there is simply not enough time for it to roll back toward them". 3. In his report dated 6 April 2010, Mr Needham provided a series of calculations designed to show the potential chair misalignment at the load line allowing for certain variables including the amount of force applied to the chair by the lift operator, the angle at which that force was applied, the time for which that force was applied, the distance from the skiers at which the force was applied and, as a correlate, the time between when the force was applied and when the chair would reach the skiers. Mr Needham concluded that: "The dynamic response of the chair is such that it would have remained to the right under all likely circumstances." 1. Mr Needham provided the following examples: "Load Case 1: This load case is a possible representation of the event as indicated in Section 5.2 below as follows: ● The operator-imposed force starts to be applied when the chair rope clamp has travelled 0.5 metres from the bull-wheel exit point – its rope clamp is 1.3 metres from the load line (shorter distances making it less likely that chair misalignment contributed to the event); ● The force is applied for ¼ second (longer durations making it less likely that chair misalignment contributed to the event); ● The magnitude of the force is 200 N; ● The direction of the force is 135° to the direction of the chair motion (see Figure 5 above); ● The resulting misalignment of the chair at the load line is 0.05 metres to the right. The maximum misalignment to the left is 0.04 metres when the chair is 4.2 metres past the load line. Load Case 2: This load-case is another typical representation of the event as indicated in Section 5.2 below. ● The load-case conditions are the same as Load-case 1except that the magnitude of the force is 400 N 45instead [sic] of 200 N; ● The resulting misalignment of the chair at the load line is 0.11 metres to the right. The maximum misalignment to the left of 0.24 metres occurs when the chair is 4 metres past the load line." 1. Mr Needham's considered opinion was, in effect, that even if the misalignment of the chair was calculated on the basis of variables most favourable to the respondent, it was unlikely that the chair would have deviated to the left as she and her companions stated it did. In the course of cross-examination, the following exchange took place between the primary judge and Mr Needham: "HIS HONOUR: Do I interpret your answer as saying it is not physically possible for a chair to have rolled to the left and accelerated by the time it reached the load line, to do both? NEEDHAM: Your, Honour, I would say it is not physically possible for a chair to have rolled to the left. It is physically possible for it to have accelerated by the time it reached the load line but seeing one part of that, the answer is no." 1. In his report dated 30 June 2010, Mr Dohrmann stated: "I remain of the view that the account given by Ms Nair-Smith - that the chair did swing to a position which caught her from behind between the legs, and that she had not moved from the 'correct' loading position when this did so, is consistent with the evidence and also possible. I do not believe the analysis (including that of Sinclair Knight-Merz [ie., Mr Needham's report]) eliminates that possibility, since it has assumed simple harmonic motion of the chair in either of two planes, without including the possibility of the application of any other forces as described above." 1. The "other forces as described above" is a reference to the possibility that Mr Lofberg might have pushed the chair forwards and to the side as he "bumped" it. In cross-examination, Mr Dohrmann stated that it would have been possible for the chair to swing to the left had Mr Lofberg pushed the chair. 2. In the minutes of the expert witnesses' conclave, it is recorded that Mr Dohrmann responded "Yes" to the question whether it was "physically possible for the chair to have rolled to the left and to have accelerated by the time it reached the load line?" By contrast, Messrs Baugher, Gow and Needham jointly responded "No". According to these experts, "in the <1 sec of travel time that the chair has between exiting the bullwheel and arriving at the load point there was not physically enough time for this to have occurred". 3. In his report dated 24 October 2007, Mr Dohrmann had assumed that Mr Lofberg had pulled the chair causing it "to be held back well off the vertical and also obliquely to the forward line of movement of the cable". However, as was stated at [72] above, Mr Dohrmann ultimately abandoned this assumption. 4. The primary judge made the following findings (at [59]): "As there was no capacity for the chair to twist, this means that she could only have been struck either because she was no longer aligned in the proper loading position for the skier on the right hand side of a group of three but had instead moved to the right or, after the intervention of Mr Lofberg, the chair had swung to the left behind her." 1. There is no acceptable evidentiary basis on which it can be found that Mr Lofberg pushed the chair when he was either bumping the chair or raising the down-bar. The respondent bore the onus of proving this circumstance on the balance of probabilities and it cannot be accepted that she has done so. The expert evidence was unanimous that, if Mr Lofberg did not push the chair, it was not physically possible, in the time available, for the chair to be pulled to the right and then to swing back out of alignment to the respondent's left. Mr Dohrmann's evidence to the contrary was predicated on the assumption that Mr Lofberg had pushed the chair. We accept the expert evidence and the primary judge's finding that the chair was not out of alignment with the respondent to her left and to the left of where it should have been – and that it was the respondent who was out of alignment to the chair's right. 2. The primary judge concluded (at [66]) that the respondent's misalignment resulted from the panic and jostling of her companions and herself. He found that on the evidence he could not determine which of the three persons precisely was responsible for causing the respondent to move out of alignment. Nevertheless, his Honour found that he was not satisfied that the misalignment of the respondent was a result of a panicked reaction by her alone: see [72]. 3. Mr Nowland gave evidence in cross-examination that when the chair was approaching with its bar in the down position he was in "a state of concern". Mr Lofberg recalled that the respondent and her companions "panicked" and "seemed to panic", albeit that he could not recall precisely what caused him to have that impression. Mrs Nowland gave evidence that "[w]e all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way". On the basis of this, Mr Gow formed the opinion that "the description provided by Mrs Nowland conveys a degree of panic on the part of Ms Nair-Smith and her companions that appears to have influenced their response to what should have been a routine operating event". It is not clear what weight, if any, should be given to Mr Gow's opinion in this regard. 4. The regular speed of the chair lift is 2.3 metres per second. The following table records the distance and travel time between relevant points: From To Distance Time Entry to lift station Entry to bullwheel 7.1m 3.08 secs Entry to bullwheel Exit from bullwheel 5.6m 2.43 secs Exit from bullwheel Load point 1.8m 0.78 secs Load point Exit from lift station 5.3m 2.30 secs

Mr Lofberg's actions and the respondent's position - conclusions 1. The respondent and her companions, wearing skis, correctly positioned and aligned themselves upon arrival at the load line. While waiting for their chair to arrive, they noticed, as that chair came downhill towards the bullwheel, that its safety bar was down. Their awareness came from looking to their left and observing the chair before it reached the bullwheel. Mr Lofberg was not paying attention to the incoming chair on the opposite side of bullwheel and it was not suggested that he should have done so. However, calls of the respondent and her companions drew his attention to the fact that the safety bar was down. At that time, Mr Lofberg was positioned approximately one metre from the load line. 2. Once Mr Lofberg heard the calls and realised the bar was down, it was necessary for him to take a few hurried steps towards the chair in order to raise the bar. He moved quickly to the chair and raised the bar from behind it with a lunging movement. He was able to raise the bar before the chair reached the waiting skiers but not before it was between 300 millimetres and one metre behind them. 3. At some point after the respondent first positioned herself correctly at the load line, she moved out of alignment to the right causing the right armrest of the chair to strike her in the groin area from behind as the chair came past the load line and into contact with the skiers.

Issue 2: Duty of care 1. The primary judge articulated the duty of care owed by the appellant to the respondent as the duty to exercise "reasonable care and skill in respect of the her [sic] safety and in operating the chair and to allow her to safely utilize the chair". The appellant did not challenge this formulation of its duty. It may readily be accepted that the appellant was under a duty of care to exercise reasonable care and skill in the provision of its lifting services to avoid harm to skiers using those services.

Issue 3: Risk of harm 1. The proper assessment of the appellant's alleged breach depends on "the correct identification of the relevant risk of injury": Roads and Traffic Authority of New South Wales v Dederer [2007] HCA 42; 234 CLR 330 at [338] per Gummow J. The primary judge characterised the relevant risk (at [138]) (Civil Liability Act, s 5B(1)) as the risk of physical harm resulting "from a chair arriving at the loading station [as distinct from at the loading point] in a state not suitable for boarding". According to the primary judge, "This would address the possibility of a broken chair arriving at the loading station, which may not be something that can be corrected by the lift operator with the chair still in motion and which, if it continued, could cause harm to skiers in a number of different ways (see Garzo v Liverpool/ Campbelltown Christian School [2012] NSWCA 151 at [24] to [25] per Meagher JA and at [123] per Tobias AJA)." 1. However, when determining whether this risk was foreseeable for the purposes of s 5B(1)(a), the primary judge appears to have found (at [148]) that the risk was that of "physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position". This is how the respondent characterised the risk of harm at trial. At [138], the primary judge stated that it did not matter in which of these two ways the risk was characterised. The distinction is, however, important. 2. With respect to the first description of the relevant risk – the broken chair risk – the primary judge should not have characterised the risk at the level of generality he adopted. At trial neither party submitted that this was the relevant risk of harm. The chair that struck the respondent was not broken. No party or witness suggested that the respondent was injured because the chair was broken. The chair functioned as it was designed to function. There was no evidence as to the how frequently broken chairs arrived at the loading station, whether skiers can safely be conveyed by broken chairs or what procedures a lift operator can or should take in response to the arrival of a broken chair. It may not be possible for a lift operator to rectify a broken chair situation, whereas it is possible for a lift operator to rectify a down bar situation before the chair reaches the load point. The precautions a reasonable person may take in response to the possibility of the arrival of a broken chair as compared with a chair with its bar down may be entirely different. No evidence was adduced on this. The risk of physical harm resulting from a broken chair arriving at the loading station was neither relevant nor a source of the respondent's injuries. Consideration of the broken chair possibility introduced an irrelevant consideration. 3. However, even if the second description (that is, the description at [148]) is preferred, such a characterisation of the risk does not identify the "true source of potential injury": Dederer at [60] per Gummow J. This characterisation refers to the risk that a skier waiting at the load point might be struck by a chair with its safety bar down and the risk that injury might be sustained as a consequence of the skier's response to the potential for collision even if collision does not eventuate. The former risk did not materialise in the present case. The right armrest of the chair came into contact with the respondent with its bar up. Mr Lofberg raised it before it reached her. It is the latter risk that presents itself for consideration. By failing to distinguish between these two risks the primary judge erred in his assessment of the probability of the relevant risk occurring and the control that the appellant had over it. 4. First, the primary judge's characterisation led him to focus on the frequency of an antecedent event, namely the arrival of chairs at the load station with the safety bar down, rather than on the probability of injury occurring as a result of a skier's reaction to a lift operator's late response to a chair continuing around and exiting from the bullwheel with its bar down. We accept the primary judge's findings (at [141]) that "there is a foreseeable and not insignificant risk of chairs arriving at the loading station with the safety bar in a down position" and that the possibility, referred to by Mr Gow in cross examination, of experienced skiers either raising the bar themselves or allowing the chair to "push them down the ramp" does not "detract from the significant possibility or even likelihood that skiers may be injured from a collision, especially if they move, scramble or fall to the side": at [145]. Nevertheless, the reaction of skiers to a late response by a lift operator to a down-bar situation is an important contingency that needs to be factored into the assessment of whether the relevant risk was foreseeable and not insignificant. The primary judge appears to have taken account of this contingency: see at [145]. However, by eliding the risk "of chairs arriving at the loading station with the safety bar in a down position" and the risk that skiers may react and injure themselves as a consequence of a lift operator's late reaction to such a situation, the primary judge's analysis suggests that the probability of this risk occurring was higher than it in fact was. 5. Second, the primary judge found (at [142]) that "whether the fact of a safety bar being down (or of some other defect) would or might result in injury to a skier who was already at the load point was very much in the control of Perisher". However, "the fact of a safety bar being down" is an incomplete description of the relevant risk. The risk arose in this case because of the conjunction of the bar being down, Mr Lofberg's late response to it and the appellant and her companions' reaction to that response. The appellant had control over the first two factors but only limited control over the third. When the risk is stated with the necessary particularity, it becomes clear that it is not something that was "very much in the control" of the appellant. The elision of the two risks stated (in [95]) above led the primary judge to attribute to the appellant a greater degree of control over the risk than it possessed. 6. In Dederer, Gummow J suggested (at [60]) that identification of the relevant risk is concerned with determining the "source" of the potential injury. In McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476 Garling J (at [266]), although in dissent, describes this as "general causal mechanism of the injury sustained". In essence, the enquiry is concerned with determining what person, thing or set of circumstances gave rise to the potential for the harm for which the plaintiff seeks damages. 7. In Dederer, Gummow J found that the relevant risk (identified at [60]) arose from a conjunction of factors, namely, the bridge's location, Mr Dederer diving from the bridge and the natural variations of the estuary bed, which gave rise to the potential for shallow water: see at [62]. In so finding, he rejected the Court of Appeal's finding that the risk was "one created by the RTA through the erection of the bridge by its predecessor": [60]. 8. In the present case, the source of the respondent's injuries was the impact of the chair's right armrest with her groin. In Shaw v Thomas [2010] NSWCA 169 at [43] Macfarlan JA said: "Under the general law relating to the tort of negligence it is well established that it is unnecessary 'for the plaintiff to show that the precise manner in which his injuries were sustained was reasonably foreseeable' (See Chapman v Hearse [1961] HCA 46; (1961) 106 CLR 112 at 120 – 121; Rosenberg v Percival [2001] HCA 18; (2001) 205 CLR 434 at [64]). Nothing in the Act dictates any different approach when considering the requirement of s 5B(1)(b) that the risk be "not insignificant" (compare Doubleday v Kelly [2005] NSWCA 151 at [11]; Waverley Council v Ferreira [2005] NSWCA 418; (2005) Aust Torts Reports 81-818 at [42] – [43]). 1. It is equally unnecessary to determine the precise source of the plaintiff's potential injuries when identifying the relevant risk for the purposes determining negligence under Part 1A of the Civil Liability Act. For example, in Garzo v Liverpool/Campbelltown Christian School [2012] NSWCA 151 at [123]) Tobias AJA (with the concurrence of Meagher JA) identified the relevant risk as "that of a person slipping on the painted surface of the crossing and thereby suffering an injury." Importantly, his Honour found that it was unnecessary to articulate the risk "in any greater detail than that." 2. Accordingly, it would be inapt in the present case to characterise the relevant risk as the risk of physical harm through collision of a chair's armrest with a passenger's groin. Such a formulation would be too narrow. Similarly, the risk cannot simply be characterised as the risk of being struck by a chair and thereby sustaining physical injury. This would be too broad. Contact between chairs and skiers is a routine and necessary part of boarding a chairlift. It is an everyday innocuous event, from which injury may be taken to be rare. The respondent's injuries arose not from the state of the chair, but from her misalignment with it. 3. The essence of the risk formulated by the appellant was the risk "that the conduct of the Appellant's employees might cause a skier to be misaligned, even if a 'bar down situation' was rectified". At trial the respondent submitted that "the inattention and delayed response to the down bar situation by the [appellant's] lift operator" caused her to be out of alignment. Ultimately, this is what the primary judge found: see, for example, at [72]. 4. The relevant risk is that a skier might sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down-bar situation. There is a foreseeable and not insignificant risk of chairs arriving at the loading station with their safety bars down. This presents a risk of physical injury because of the potential for such chairs to collide with skiers waiting at the load point. As the primary judge correctly observed (at [145]), "[t]here is a significant possibility or even likelihood that skiers may be injured from a collision, especially if they move, scramble or fall to the side". This risk was both foreseeable and foreseen by the appellant. As the primary judge found at [145], "[i]f that was not the case then there would be little point in Perisher giving instructions to its lift operator to be on guard for a safety bar being down." However, the relevant risk in this case involves something more than this. Skiers waiting at the load point to board a chair are in a vulnerable position. It is helpful to recall the primary judge's finding (at [133]) in this connection: "[T]he nature of the equipment used in skiing and the configuration of the chairlift was such that there was little scope for skiers to protect themselves from any risks that might materialise during the chairlift's operations, once they had passed through the gates and were positioned at the loading point. In the ordinary course, by the time skiers have reached the loading point the next chair is adjacent to them on its downward journey and is about to enter the bull wheel. They have about 3 seconds before the chair reaches them. At the loading point they are on a raised platform of ice and must have the skis facing uphill and their poles in their hands. Thus the position of their skis and poles is such that they have little means to manoeuvre out of the way of an approaching chair. Further, at the loading point there are few places they could move to. The skiers on the side could attempt to move off to the side but that carries risks. The skier in the middle could only attempt to move forward." 1. Skiers rely on lift operators to rectify down-bar situations in order to avoid such a collision. If a lift operator does not intervene, or gives the waiting skiers an impression that they will not intervene in time, it is only natural that skiers will react. The risk of injury is a product of a combination of factors, namely, the approach of the chair with its bar down, a response of a lift operator that has the potential to convey to waiting skiers a fear that the situation will not be rectified in time and the likelihood that skiers will react to the possibility of collision. One does not need the benefit of hindsight to appreciate the potential for harm that a skier's reaction may involve in such a situation. Given the characteristics of the chairlift and the vulnerability of skiers waiting to board it, there is both a foreseeable and not insignificant risk that physical injury may result from a skier's reaction, whatever form it may take. 2. Generally, it is as unnecessary as it is undesirable to define the relevant risk with this level of particularity. Particularity is called for in the present case because several risks attend the process of boarding a chairlift and unless the relevant risk is identified with sufficient precision one cannot determine what, if any, reasonable precautions ought to have been taken in order to avert it.

Issue 4: Breach 1. The principles governing whether the appellant breached its duty of care are governed by s 5B of the Civil Liability Act: "(1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm." 1. Section 5C is also relevant: "In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk." 1. The appellant was only under a duty to exercise reasonable care: Derrick v Cheung [2001] HCA 48; 181 ALR 301 (at [13]). In order to identify whether a breach of duty has occurred one has to identity, "with some precision, what a reasonable person in the position of the defendant would do by way of response to the reasonably foreseeable risk": Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54; 211 CLR 540 (at [192]) per Gummow and Hayne JJ. Breach must be assessed prospectively not retrospectively: Dederer at [338]. 2. According to the primary judge (at [153]), "[t]he critical question in terms of what precautions, if any, were required concerns the interrelated questions of when an observation of the state of the incoming chair should be made, and what position the lift operator should be in when it is made". The primary judge found (at [157]) that taking the precaution of "having a ski [sic: scil: lift] operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel… would have enabled Mr Lofberg to raise the bar in a 'timely manner'". Accordingly, the primary judge held (at [166]) that the appellant's negligence consisted of "Mr Lofberg placing himself in the position that he was in and only noticing that the bar was down so late." Mr Lofberg's duty to exercise reasonable care required him to keep a proper lookout for chairs that might not be in a safe condition for boarding passengers. The point in time at which Mr Lofberg was required to make that observation was contingent on where he was situated. 3. The primary judge had to identify the point at which reasonable care required Mr Lofberg to observe the condition of the chair. His Honour's critical finding was that Mr Lofberg was required to observe the condition of the incoming chair as it exited the bullwheel on its approach to the waiting passengers because he was situated "closer to the bullwheel than the load line": [156]. Mr Lofberg's failure to direct his attention to the chair at that point was seen by the primary judge as negligent. 4. The primary judge referred to the following expert evidence of Mr Gow regarding the propensity of chairs to arrive at the loading station with the safety bar down: "While the incidence of a restraining device in the 'down' position is very uncommon, it is an unavoidable possibility owing to the requirement to provide a balanced restraining device which requires minimal force by passengers for raising and lowering. I am instructed that the incidence of a chair arriving at the lower station with the restraining device in the down position occurs approximately once per week, or once in approximately twenty thousand chair rotations." 1. On the basis of this evidence his Honour concluded (at [141]-[142]) that there was "a foreseeable and not insignificant risk of the chairs arriving at the loading station with the safety bar in a down position". He also noted that there was a very low rate of recorded injuries involving chairs notwithstanding the high frequency of use but attributed the low rates of injury to the control exercised by the appellant over the lifting process: [142]. The primary judge dealt with the evidence concerning the appellant's safety procedures. At [143] he quoted from a document entitled "Lift Safety Procedures" dated 13 November 2002. Under the heading "Lift Safety" it states that lift operators are to "[n]ever have your back to the public whilst loading or unloading guests". Under the heading "Chairs" it states: "1 Watch for seats that may not be down (especially on windy days). Put the seats down. 2 Watch for safety bars that may be in the down position (especially on windy days). Put the bar back up. ... 4 Check for broken chair seats. If found, note the chair number and report to your Manager/Supervisor immediately." 1. His Honour then quoted from the cross-examination of Mr Lofberg in which he accepted that a failure to observe a down-bar would result in the skiers being unable to board the chair properly. He referred (at [145]) to Mr Gow's evidence as to the possibility that experienced skiers would be able to rectify a down-bar situation themselves but concluded that this does not "detract from the significant possibility or even likelihood that skiers may be injured from a collision" with a down-bar or as a consequence of trying to avoid such a collision. His Honour also noted that the appellant's document requires chairlift operators located at the top station to "keep an eye out for bail arms that have been blown down" in windy conditions, in which case they are to telephone the bottom station. His Honour concluded (at [148]): "I consider that the risk of physical harm being occasioned to a skier from a chair arriving at the loading station with its safety bar in the down position was foreseen and foreseeable by Perisher. Any reasonable person familiar with the operation and layout of the chairlift would realise that, absent precautions the nature of which I will address, the arrival of chair in that state would be likely to result in injury to some of the skiers who are at the loading point facing uphill. The answers given by Mr Lofberg noted above only confirm the obvious and Mr Gow's evidence does not detract from that. Perisher's instructions to its lift operators to watch for that very contingency confirm that it appreciated that. The low level of reported incidents merely indicates that its procedures were being given effect to and were generally effective." 1. His Honour continued (at [150]) that "[t]he considerations that lead me to conclude that the identified risk of harm was foreseeable also lead me to conclude that it was 'not insignificant' notwithstanding the differences between the two tests". 2. At trial, the respondent particularised the relevant duty of care as follows: "(a) Station a lift operator at the loading point; (b) Advise that lift operator to pay attention and be on the lookout for chairs that are not in an appropriate state for the loading of passengers; (c) If the chair approaches with the safety bar in the down position, have the operator grasp the chair by the frame and raise the safety bar into the up position in a timely manner; (d) 'Bump' the chair to slow the chair momentarily at the load point; (e) Observe the passengers as they sit down in the chair safely." 1. These matters were addressed by Mr Gow in his report. The primary judge considered that his evidence provided useful guidance as to what could reasonably be expected of a lift operator. Mr Gow stated that during the interval between the departure of one chair and the arrival of another the safety procedures required the operator to do the following: "1 Observe the departing chair to ensure that its passengers were properly seated; 2 Watch passengers approaching the load point from the automatic gates; 3 Ensure that passengers are positioned at the load point; 4 Provide verbal directions and assistance to passengers as appropriate; 5 Turn to observe the next chair as it rounds the bullwheel to determine that it is in an appropriate state for the loading of passengers; 6 Grasp chair by bail (frame) both to steady and to 'bump' the chair (briefly hold back the chair to slow it momentarily at the load point); 7 Observe the passengers as they sit down in the chair; 8 Repeat the above cycle." 1. Mr Gow explained the point at which an observation of the incoming chair should be made: "In my opinion, the appropriate time for the operator to check the approaching chair to check that the restraining bar is in the correct position is when that chair is rounding the bullwheel. He is then properly positioned and easily able to raise any restraining bar that might approach in the 'down' position. A lift operator should not leave his station (in close proximity to [the] load point) in an attempt to raise a restraining bar at an earlier [point] in its progress through the station." 1. Mr Gow's evidence was predicated on the lift operator being located at, or close to, the load line. According to the primary judge, "[i]f the lift operator was located further forward of [sic: scil: behind] the loading point then the observation needed to be much earlier". This was because he found (at [156]) that: "[I]f a difficulty with a chair, such as a safety bar being down, is only noticed after this point and the lift operator is located further away from the loading point such as near the exit point of the bullwheel, then their ability to deal with it is significantly compromised. They may either miss the chair or cause panic to the stranded skier at the loading point in attempting to deal with the chair. They are out of arm's reach of the stop button. In my view an observation at the exit point of the bullwheel by a lift operator at or close to the loading point must be the very last possible point that the observation can be made." 1. The primary judge found (at [157]) that: "Mr Lofberg was standing no closer to the loading point than the exit point of the bullwheel and only made his 'observation' after being told by Dr Nair-Smith and Mr Nowland to do so and only as the chair passed him such that he had to pull it from behind just prior to it colliding with the assembled skiers." 1. This finding was consistent with Mr Lofberg's evidence referred to at [38] above that he was standing about 2 metres from the load point. The effect of the primary judge's finding was that "the 'precaution' of having a ski operator near or close to the loading point observing, at the very latest, the state of the chair as it exits the bullwheel was not given effect to". 2. Having regard to the relevant matters in ss 5B(2) and 5C of the Civil Liability Act, the primary judge found (at [158]-[161]) that a reasonable person would have taken this precaution because there was a "realistic prospect of physical harm being occasioned" were it not taken (s 5B(2)(a)) from which "considerable damage" could "obviously" result (s 5B(2)(b)) and the burden of taking the precaution was not significant (s 5B(2)(c)). 3. In addressing the question of breach, the primary judge dealt with certain passages from Davis v Bunn [1936] HCA 44; 56 CLR 246. After distinguishing that case, he went on to make the following findings (at [167]): "It must be remembered that the accident did not occur in an area of the natural environment over which Perisher only had limited control. I have not found that there was anything negligent per se in the configuration and settings adopted for the chairlift or the number of staff that Perisher stationed at the loading station. However those matters were such that a very significant responsibility was imposed on the lift operator stationed near the loading point, especially from the time that skiers were located there with their skis facing uphill. In dealing with risks posed by chairs that arrived at the loading point in an unfit state for boarding, the configuration and settings of the chairlift were such that the exercise of reasonable care required the lift operator to be stationed just in front of the loading point and, at the latest, to make an observation of the state of the chair at the time of its exit from the bullwheel. Alternatively, if the lift operator was located further forward of the loading point, then the observation of the chair had to be made at an earlier time to enable the safety bar to be lifted in a timely manner. While the very narrow time periods involved are undoubtedly relevant, the fact that the lift operator has only a limited period in which to act is a product of the configuration and settings of the chair as well as the number of staff present and the directions given to skiers. All those matters are within the control of Perisher and they combine to require that the lift operator be in position and make their observation in a timely manner. Mr Lofberg's failure did not occur in the split second period that Mr Maconachie QC referred to, but before then. As the Second Video indicates, provided the lift operator is appropriately located and makes an observation sufficiently early then the contingency of a bar being down can easily be dealt with in a safe and timely manner." 1. The appellant's submissions on breach were directed substantially to the proposition that Mr Lofberg was not out of position. It was accepted by both parties that the earliest a lift operator could intervene to rectify a down-bar situation was after the chair had left the bullwheel. It is the practice of lift operators to move away from the load line toward the bullwheel and an incoming chair in order to "bump" the chair before it reaches skiers waiting at the load line. The practical exigencies involved in bumping chairs require that lift operators move away from the load line in this way. According to the expert evidence, this procedure, including moving away from the load line towards incoming chairs, accords with international industry practice. According to one of the experts, Mr Gow, "[t]here is no necessity for the operator to stand in immediate proximity to the load point at all times in the load process, as the operator will move back to a position to bump the chair once the passengers are in the loading position". Video of a lift operator performing this procedure shown to the Court confirmed that the lift operator had to take a few steps towards the incoming chair in order to bump it before it reached skiers waiting to load. 2. In the circumstances that prevailed, the finding must be that, Mr Lofberg was not out of position. However, this is only one component of the negligence as found by the primary judge. His Honour found (at [166]) that "[t]he negligence arises from Mr Lofberg placing himself in the position he was in and only noticing the bar was down so late." Therefore, the primary judge found that the appellant's negligence comprised the combination of where he was located and when he noticed that the bar was down. 3. The appellant also submitted that it was reasonable for Mr Lofberg to "engage in other tasks than merely looking out and reacting to 'down bar situations'". For instance, a lift operator may shovel snow and maintain the snow path. This submission must be accepted. Reasonable care does not require that a lift operator give undivided attention to ensuring that chairs are in a safe condition for loading, yet he must be vigilant to see that they are, especially given the short distance between the load point and the bullwheel (1.8 metres), the time it takes for the chair to cover that distance (0.78 seconds) and the vulnerable position of the waiting skiers. A lift operator does have to keep a look out for down-bar situations or other problems with chairs that may imperil the safety of skiers attempting to use the lift. A lift operator may attend to other duties provided he or she can still keep such a proper look out. 4. Further, the appellant submitted that the fundamental error in the primary judge's ultimate conclusion was that his Honor's finding of negligence depends upon: "imprecise findings, in the context of very short distances and very short timeframes, to the effect that Mr Lofberg was 'out of position', had to 'move some distance', that his conduct was 'late', 'rushed', 'just prior', not 'in a timely manner', 'too close', but without identifying what distance was not 'too close', what time was not 'too late' and, in particular, what degree of urgent movement, given the constraints of time and distance, was reasonable for a competent lift load operator... In short the Appellant submits that in the absence of precise findings about what constituted reasonable conduct in terms of time and distance, the primary judge could not find, in the circumstances of this case, because there was panic, that Mr Lofberg's conduct was 'late' or not 'timely' or that it was reasonable for the Respondent's party to 'panic.'" 1. The primary judge's findings as to when Mr Lofberg should have observed the down-bar state of the chair were not imprecise. He found (at [169]) that had Mr Lofberg been located at or close to the load line (which is 1.8 metres from the bullwheel), he should have observed the chair as it left the bullwheel 0.78 seconds before it reached the load line. The closer he was to the bullwheel, the sooner he should have made this observation. Instead, Mr Lofberg realised the bar was down when the chair had less than 1.8 metres (and 0.78 seconds) to travel. There is nothing imprecise about this. Furthermore, it is difficult to see how the primary judge could have been any more precise, given that the incident occurred in dynamic circumstances over no more than a few seconds and was recounted in evidence that was very largely impressionistic. The primary judge could not reasonably have attempted any more precise findings in the circumstances. 2. It was also submitted by the appellant that it is "to be reasonably expected that a lift load operator might move quickly and urgently in the short time available before a chair with a 'down bar' reached the waiting skiers". It may be accepted that a lift operator would have to rush or hurry to rectify a down-bar situation. But this does not mean that Mr Lofberg was not required to observe the condition of the chair earlier than he did. 3. A related issue on appeal was whether Mr Lofberg raised the bar in a "timely" manner. At [166] the primary judge held that: "[T]he negligence in this case is not any tardiness on the part of Mr Lofberg in responding as he did when he realised the bar was down. To the contrary, his reactions were very quick. The negligence arises from Mr Lofberg placing himself in the position he was in and only noticing the bar was down so late." 1. The primary judge's finding of breach of duty centred on a requirement of reasonable care that a lift operator be positioned and paying attention in such a way that the state of each approaching chair can be appreciated, at the latest, when the chair exits the bullwheel. Mr Lofberg was found not to be so positioned. This prevented him from observing the down bar earlier. In the view his Honour took, that failure meant that there was lack of reasonable care. 2. The appellant challenges both the proposition that the exercise of reasonable care required that a lift operator be positioned in any particular place and the judge's conclusion that negligence arose from Mr Lofberg placing himself in the position he in fact occupied and "only noticing the bar was down so late". There is merit in that submission. Implicit in the judge's conclusion is the proposition that, had Mr Lofberg noticed the down-bar situation earlier than he did, he would have raised the bar at an earlier point. 3. The earliest point at which Mr Lofberg could possibly have intervened to rectify a down-bar situation was at the point the chair exited the bullwheel and thus 0.78 seconds before the chair reached the waiting skiers. At that point, the chair would still have had 1.8 metres to travel. It could not reasonably be expected that Mr Lofberg would raise the bar at that point because his duties generally required him to be located near the load line in order to bump incoming chairs. The primary judge found that Mr Lofberg raised the bar when the approaching chair was between 500 and 300 millimetres from the respondent and her companions. The chair still had to travel between 0.22 and 0.13 seconds before reaching the skiers. This means that Mr Lofberg raised the bar 0.56 to 0.65 seconds after the chair exited the bullwheel. However, the finding (at [46] above) that the front edge of the chair was at least 300 millimetres and more like one metre behind the skiers when Mr Lofberg raised the safety bar means that Mr Lofberg raised the bar within some 0.39 to 0.65 seconds of it leaving the bullwheel. 4. The respondent bore the onus of proving that Mr Lofberg could have raised the bar earlier had he noticed it sooner. Given the tight timeframes involved and the speed with which he in fact raised the bar, it should not be found he could have done so. Further, it should not be found that any extent to which he may have been able to lift the bar sooner could be sufficiently significant for the purposes of assessing breach. The difference could only be a small fraction of a second. What is not explained is how action earlier than that in fact taken would have avoided some risk that was presented by the circumstances that in fact pertained – or, to put this another way, how some reasonable precaution that was not operative in the events that happened would have been operative if Mr Lofberg had realised at an earlier time that the bar was down. Mr Lofberg did not breach his duty of care by failing to raise the bar sooner than he did. Further, we agree with the primary judge that Mr Lofberg's reaction to the down-bar situation, once he realised that it existed, did not bespeak negligence. 5. However, when the relevant risk is properly characterised as the risk a skier might sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down bar situation (see [104] above), paying attention to the condition of incoming chairs earlier may have avoided this risk. The implicit proposition in the primary judge's reasoning on causation is not only that had Mr Lofberg directed his attention to the condition of the chair sooner he may have been able to rectify the down-bar situation more quickly but that if he had directed his attention to the chair sooner, the skiers may not have panicked because they would have had greater confidence in his ability to rectify the situation or would have observed that he had done so sufficiently before the chair reached them rather than when it was only 300-500mm from them. 6. The time at which a lift operator realises that a chair is not in a condition fit for boarding may affect the confidence that skiers waiting to board the chair may have in the operator's capacity to rectify the situation and therefore may affect how they are likely to react to that circumstance. This applies whether or not the lift operator's delayed realisation has any actual effect on when he or she is able to rectify the situation. We are not persuaded that Mr Lofberg's delayed realisation of the chair's condition materially affected the point at which he was able to raise the bar. However, we are prepared to accept that the psychological effect of his delayed realisation may have been significant. That is a pertinent consideration when the relevant risk is that people may injure themselves through their reaction to how a lift operator responds to a down-bar situation. In this context it must also be remembered, first, that the respondent and her companions were conscious that the safety bar was down and that that was the only obstacle to a safe boarding of the chair; second, the skiers were waiting on a platform raised above its surrounds at a height which appears to be about 5cm; and third, with a chair approaching with its bar down, it is not clear where they could go to get out of its way or what avoiding action they could take. If Mr Lofberg did not get to the bar in time, they either had to raise the bar themselves or be struck by the chair with its bar down. As the primary judge found at [134]: "While collision and injury are not inevitable, they were to my view a reasonably strong possibility if no precautions were taken. These considerations emphasise the vulnerability of a skier once they move through the gates and arrive at the loading point, and the responsibility imposed on Perisher in its operation of the chairlift especially from that time." 1. The reasonable care requirement demanded that Mr Lofberg pay reasonable attention to the condition of chairs arriving to load skiers: Manley v Alexander [2005] HCA 79; 80 ALJR 413. His attention did not focus on the condition of the chair that struck the respondent until after it left the bullwheel. Because the chair has only a short distance to travel after leaving the bullwheel and before reaching the load line, a lift operator has only a limited time within which to respond to and deal with a down-bar situation. If the bar is down after the chair leaves the bullwheel, skiers waiting at the load line are in a vulnerable position and may well panic unless the lift operator responds very promptly to such a situation. The closer the chair is to them when the operator responds, the greater will be their propensity to panic or react in such a way that physical injury may result. Reasonable care required Mr Lofberg to direct his attention to the condition of the chair earlier than he in fact did. His failure to do so constituted a breach of the appellant's duty of care.

Issue 5: Causation 1. With respect to the principles applicable to causation under s 5D(1)(a) of the Civil Liability Act concerning factual causation, the primary judge made the following findings (at [169]): "[H]ad Mr Lofberg located himself just forward of the loading point and observed the chair with the safety bar down at the point where the chair was exiting the bullwheel, then he would not have needed to lunge or dive, or grab the chair from behind (or pull it out of its alignment). Instead he could and would have addressed the chair in a manner consistent with that shown in the Second Video such that he would not have exhibited late or rushed movements and would have intervened at least a metre prior to the loading point. Dr Nair-Smith and Mr and Mrs Nowland were reasonably experienced skiers. They were used to the operation of the triple chair and others like it. Dr Nair-Smith had previously experienced the circumstance of the safety bar being down and bumped back up in time by the lift operator (see [36]). If Mr Lofberg had intervened in the correct manner then they may either have not noticed but, even if they did, I am satisfied that on the balance of probabilities it would not have resulted in a degree of panic or jostling that would have moved Dr Nair-Smith significantly out of alignment as she must have been in the events that happened. I am satisfied that the condition set out in s 5D(1)(a) has been satisfied." 1. The primary judge thus found, in effect, that Mr Lofberg's failure to observe the down-bar situation when the chair was exiting the bullwheel caused him to dive or lunge at the chair, grab it from behind, make rushed movements and not intervene and raise the bar until the leading edge of the chair was "within less than half a metre and probably less than 300mm of contact with the skiers" (see [70]); and that this, in turn, caused the respondent and her companions to panic and jostle, which resulted in the respondent's right leg being out of alignment with the oncoming chair. With respect to the respondent's misalignment, the primary judge found (at [65]) that at the point of collision "Dr Nair-Smith's pelvic area was at some point to the right of the designated loading point on the raised area" and that "at least one of her legs had moved off the slightly elevated platform to the right." The critical finding of his Honour was that "[t]he misalignment of Dr Nair-Smith was the consequence of jostling in reaction to the chair coming so close with a [sic: scil: its] safety bar down, although not necessarily by her": [72]. By this his Honour meant that "it could have been a result of a panicked reaction by her or one or more of her travelling companions (or all three) and their jostling her": [66]. 2. The appellant submitted that, in the absence of any finding or evidence of the movement, position or degree of misalignment that caused the respondent to be struck by the armrest (and given the respondent's denials that anything caused her to be misaligned), the primary judge could not properly find that whatever movement resulted in misalignment was caused by the "late" conduct of Mr Lofberg as distinct from, for example, jostling before the chair had even commenced to go around the bullwheel. Furthermore, there was a lack of evidence to support a finding that there was anything extraordinary about the respondent's misalignment and, in any event, it appears that the respondent and her companions panicked well before Mr Lofberg could reasonably be expected to have responded to the down-bar situation so that panic on their part cannot be attributed to any "delayed" reaction or realisation by Mr Lofberg. 3. It is necessary here to say something about how the proceedings were conducted below. The primary case of the respondent was that she and her companions were all properly aligned at the load point throughout the loading process, including when the chair reached them. She submitted that the misalignment that caused the right armrest of the chair to come between her legs occurred because Mr Lofberg either pulled or pushed the chair when he raised the bar so that it moved to the left of where it should have been when it reached her at the load line. The respondent and her companions all gave evidence to this effect. 4. Expert evidence was adduced that contradicted the respondent's primary case. The weight of the expert evidence denied the possibility that the chair was out of alignment to the respondent's left. The primary judge accepted that expert evidence and found that the chair could not have been to the left of where it should have been in the circumstances. That finding is not challenged on appeal. A finding that the respondent was out of alignment to the right of the chair was therefore the only available explanation of how she came to sustain the injuries she in fact sustained. Contrary to the evidence of the respondent, her companions and Mr Lofberg but consistently with the expert evidence, the primary judge found that it was the respondent who was out of alignment, not the chair. The primary judge recognised this at [65]: "I note that this finding is contrary to the evidence of Dr Nair-Smith, Mrs Nowland, Mr Nowland and it seems Mr Lofberg. However, for the reasons I have already indicated, I give primacy to the material concerning the characteristics and operation of the triple chair [i.e., the expert evidence]." 1. However, the respondent also submitted in the alternative in final written submissions that: "If the Court is not satisfied that the accident could have occurred as stated by the plaintiff and her companions, it is open to find that there may have been some slight movement on the part of the plaintiff's companions that caused her to move slightly out of alignment, and that the chair was also pulled out of normal alignment by the lift operator. That movement on the part of the plaintiff or her companions would, it is submitted, be found to have been a reasonable response on the part of either the plaintiff or her companions to the emergency situation confronting them. That situation was caused solely by the inattention and delayed response to the bar situation by the defendant's lift operator." 1. The primary judge attributed the respondent's misalignment to panic and jostling amongst the respondent and her companions occasioned by the chair coming so close to them with its bar down: see [72]. However, the respondent and her companions did not give evidence to this effect. They were all adamant that they did not move from the correct position. They did not give evidence that they were jostling. Further, they did not give any direct evidence that they were panicking, albeit that a certain state of concern can be inferred from their evidence. They neither gave reasons why they moved out of alignment (if they did) nor were they examined or cross-examined on this. This is unsurprising given the way in which the respondent's primary case was run. 2. In his affidavit dated 19 May 2010, Mr Lofberg deposed that the chair was travelling in its normal alignment and that "[i]f Dr Nair-Smith had remained in the correct position at the load point, she would not have straddled the side rail and would have sat down on the chair normally". However, in cross examination he conceded that he did not see the respondent or her companions move from the correct position for loading and stated that "[t]hey got the on chair, so they must have been pretty close to where they had to be, otherwise they would not get seated". 3. In effect, although the primary judge's finding that panic and jostling amongst the respondent and/or her companions caused the respondent to be out of alignment was partially consistent with how respondent's secondary case was articulated, it was contrary to the respondent's primary case and the evidence of each of the witnesses. 4. The respondent submitted that the primary judge's inference that the respondent moved out of alignment because of panic induced by Mr Lofberg's delayed observation of the chair was justified by findings that: 1. the respondent and her companions were correctly aligned upon arrival at the loading point; 2. the respondent and her companions were experienced skiers, used to the operation of the triple chair and others like it; and 3. the respondent had experienced down-bar situations before and had been able to board the chair without incident as the lift operator had been able to raise the bar in a timely manner. 1. These findings do not support the conclusion for which the respondent contends. It does not follow from the fact the respondent had, without incident, used many chairlifts in the past, including those which had their bars down, that the fact that she was injured on this occasion means that the conduct of Mr Lofberg or the appellant was somehow a cause of her injuries. Also, the findings do not mean that the reason for the respondent's alleged panic was induced by her perception as to Mr Lofberg's late realisation that the bar was down. 2. Causation is concerned with whether the injuries for which a plaintiff seeks damages are referable to the breach of the defendant's duty of care. The primary judge found that the relevant breach was Mr Lofberg's failure to observe the condition of the incoming chair at the point where it exited the bullwheel and his failure to position himself such that had he made the observation at this time he would have been able to raise the down bar before the chair came within half a metre of the skiers. The principles applicable to causation are governed by s 5D of the Civil Liability Act: "(1) A determination that negligence caused particular harm comprises the following elements: (a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and (b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused (scope of liability)." 1. Section 5E then provides: "In proceedings relating to liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation." 1. The effect of these provisions is that respondent bore the onus of proving that Mr Lofberg's delayed observation of the down bar condition of the oncoming chair produced panic or apprehension that caused the respondent to move out of the correct position and alignment that she had adopted on her arrival at the loading point. 2. There was no direct evidence that either the respondent or either of her companions panicked because of Mr Lofberg's delayed observation of or reaction to the down-bar condition of the chair. It is accepted that the respondent and her companions were correctly aligned immediately after they arrived at the loading point and that the respondent was out of alignment by the time the chair arrived at the loading point. Essential to her case in negligence was proof that she moved out of alignment because of apprehension and that that apprehension was induced by her realisation of Mr Lofberg's failure to observe the state of the chair sooner than he did, so that it continued to approach them with the bar still down. She was required to establish that as a matter of inference. 3. The relevant standard for determining when such inferences can be drawn is stated in Jones v Dunkel [1959] HCA 8; 101 CLR 298 at 305, Dixon CJ quoted the following passage in the judgment of the High Court in Bradshaw v McEwans Pty Ltd (HCA, unreported, 27th April 1951): "All that is necessary is that according to the course of common experience the more probable inference from the circumstances that sufficiently appear by evidence or admission, left unexplained, should be that the injury arose from the defendant's negligence. By more probable is meant no more than that upon a balance of probabilities such an inference might reasonably be considered to have some greater degree of likelihood." 1. To like effect is the statement by Dixon, Fullagar and Kitto JJ in Luxton v Vines [1952] HCA 19; 85 CLR 352 at 358: "In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture: see per Lord Robson, Richard Evans & Co Ltd v Astley (1911) AC 674, at p 687. But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise: cf per Lord Loreburn (1911) AC, at p 678." 1. Mr Nowland gave evidence that: "When I arrived at the loading point I hear Alison [Mrs Nowland] yell out 'The bar's down'. I immediately looked around over my left shoulder and saw that the safety bar was down on a chair that was just entering the bullwheel. When I saw the safety bar I immediately yelled out 'The bar's down' I heard both Alison and Ghita also yell out 'The bar's down' I then looked over my right shoulder as the chair exited the bullwheel. The safety bar was still down. At that point, I began to consider what possible options I had. I realised that I could not go to my left or my right and I anticipated that I would simply have to try to heave myself over the top of the chair." 1. To similar effect, Mrs Nowland gave evidence that: "At that time I saw that the safety bar was in the down position. I immediately yelled out 'The bar's down. The bar's down'. I continued to watch the chair over my left shoulder until it was obscured by the bullwheel. I was aware that Peter and Ghita were also calling out, but I cannot recall what they were saying. The chair then came out the other side of the bullwheel behind us. At this time I was looking over my right shoulder. I could see the chair approaching us and the safety bar was still in the down position. The three of us were calling out. I was yelling, words to the effect 'The bar's down'." 1. Further, Mrs Nowland said "[w]e all realised in horror the safety bar was down and we had nowhere to go. We all tried to leap out of the way". The primary found (at [66] and [72]) that he was "prepared to accept that as a description of her reaction and not necessarily that of her husband or Dr Nair-Smith." There was thus some evidence that at least one of the skiers attempted unsuccessfully to move out of the path of the chair. 2. The respondent gave evidence that: "Almost as soon as we reached the correct loading position, I heard Alison yell out 'The bar's down'… The chair then came out from behind the bullwheel and approached us on its track. I could see the safety bar was in the down position. I yelled out 'The Bar'. Alison was also yelling, however I cannot recall specifically what she was saying." 1. The respondent and her companions did not give evidence that they were in a state of panic. However, it can be inferred from the evidence above that they were in a state of apprehension as the chair with its bar down approached them. Their evidence was corroborated by Mr Lofberg who gave evidence that they "seemed to panic" and who stated in cross examination that "I just remember vaguely, them sort of shuffling for position. Maybe they were panicking because the bar was down, worried that they weren't going to get on the lift properly". It may well be that their apprehension did not rise to the level of panic. However, the problem for the respondent concerns the onus she bore of proving that that apprehension was a product of Mr Lofberg's delayed observation of the down-bar situation and that that apprehension caused her to move out of alignment, that being the breach of duty that was alleged and that the primary judge found. More precisely, the respondent's problem concerns the source of the apprehension and the time at which it began. The respondent needs to prove that but for the inattention and delayed reaction of Mr Lofberg, she would not have moved out of alignment. 2. The evidence shows that the respondent and her companions adopted the correct position and alignment upon reaching the load line and came to be concerned about the condition of the approaching chair very soon afterwards. Mr Nowland and Mrs Nowland both saw the down-bar state of the chair to their left as the chair approached the bullwheel at the final stage of its downhill journey. They immediately called out. The respondent was thereby alerted. All three of them were aware of the down-bar state of the chair before it completed its downhill journey and entered the bullwheel and, therefore, before there was either any occasion for Mr Lofberg to attend to the bar or any ability on his part to do so. They saw that the bar was still down when the chair exited the bullwheel (there was, of course, no way of raising it while the chair was passing around the bullwheel). The unavoidable inference is that the respondent and her companions began to be concerned because the bar was down as the chair approached the bullwheel; that their apprehension continued upon the chair's exit from the bullwheel with the bar still down; and that that apprehension was not occasioned by inattention on Mr Lofberg's part at any point at which he could, by exercise of reasonable care, have rectified the situation. 3. Mr Lofberg's continuing inattention at and after the point at which the exercise of reasonable care required him to act no doubt caused the already existing apprehension to continue and may have caused it to increase but it does not follow that his continuing inattention and failure to act were a necessary condition of the respondent moving out of alignment. The evidence does not allow a finding that the respondent moved because of apprehension produced by Mr Lofberg's inattention at a point at which he could and should have acted (but did not) rather than because of apprehension that began before the chair entered the bullwheel and persisted thereafter. It was for the respondent to prove when and why she came to move out of alignment. The obvious difficulty for the respondent is that she did not provide reasons or adduce evidence as to why she moved out of alignment. To do so would have been contrary to the primary case that she sought to make. 4. There could be any number of reasons why the respondent was out of alignment with the chair. Her ski may have slipped to the right at some point during the loading process. Her misalignment may have been caused by simple inadvertence on her part. Her biomechanics may have meant that her hips shifted to the right as she looked over her left shoulder to observe the approaching chair. There is also, of course, the possibility that she moved after the time at which the exercise of reasonable care required Mr Lofberg to act and that the more probable cause of the movement was his failure to exercise reasonable care at that time. However, it is equally likely she moved before the time at which the exercise of reasonable care required Mr Lofberg to act. 5. The course of common experience does not establish why any one of these explanations is the more probable inference that ought to be drawn in the circumstances. The various explanations do no more than suggest competing inferences of equal degrees of probability so that any choice among them is no more than speculation. For the primary judge to conclude that the cause of the respondent's misalignment was the consequence of jostling in reaction to the chair coming so close with its safety bar down due to Mr Lofberg's reaction after the time reasonable care required him to act was a matter of mere conjecture. The evidence does not allow a finding that the events that in fact happened accorded, as a matter of probability, with this possibility. 6. That being so, it was not open to conclude that the breach of duty found by the primary judge was causative of the respondent's move from her original position. For that reason, it was not open to his Honour to conclude that the appellant's breach was a necessary condition of the occurrence of the harm for which the respondent sought damages.

Issue 6: Materialisation of an inherent risk 1. The appellant submitted that no liability can flow from the respondent's breach of its duty of care because the respondent's injury was the consequence of "the materialisation of the small chance of harm necessarily inherent in the interaction between persons taking their seat and the mechanical limitations of the chair within the meaning of s 5I of the CLA". Section 5I is in the following terms: "No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. (2) An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk." 1. The primary judge dealt with this issue below as follows: "Perisher contended that the fact that 'the safety bar was down, and that it had to be rectified in 0.8 of a second ... [meant] that urgent remedial action, and the spectacle of that action being taken by the load lift attendant, was an inherent risk of the loading procedure in which [Dr Nair-Smith] was engaged' within the meaning of s 5I. However the findings that I have made to this point are to the effect that the risk that was presented by the safety bar being down was one that could have been avoided by the exercise of reasonable care and skill on the part of the lift operator. I reject Perisher's defence under s 5I." 1. In order for there to be no liability for the materialisation of an inherent risk it must be proven, inter alia, that the risk "cannot be avoided by the exercise of reasonable care and skill". The relevant risk in this case is that a skier may sustain physical injury as a result of his or her reaction to the manner in which a lift operator responds to a down bar situation. As stated at [137] above, this risk could have been avoided had Mr Lofberg observed the state of chair as it left the bullwheel. The relevant risk is therefore not of the character described in s 5I. We agree with the primary judge.

Conclusions on negligence 1. For the reasons stated, the primary judge was correct to have found that the appellant breached its duty of care in negligence owed to the respondent. However, he should have found that the negligence of the appellant was not causative of the injury suffered by the respondent. 2. The action for damages for negligence should have been dismissed.

Issue 7: The Trade Practices Act claim 1. The statutory warranty that, on the respondent's case, was incorporated into her contract with the appellant was an implied warranty that the ski lift services provided by the appellant would be "rendered with due care and skill". 2. The conclusions in relation to the negligence claim mean that there was no breach of such an implied warranty.

Remaining matters 1. The conclusions just stated with respect to negligence and the statutory warranty mean that the outcome of the appeal does not turn upon any of the other matters raised by the grounds of appeal and canvassed in submissions. 2. For the sake of completeness, however, we proceed to deal with those other matters.

Issue 8: Section 109 inconsistency 1. The primary judge held that the appellant breached its implied contractual obligation to render its services with "due care and skill" pursuant to s 74(1) of the Trade Practices Act as it stood at the relevant time. Section 74(1) relevantly provided: "In every contract for the supply by a corporation in the course of a business of services to a consumer there is an implied warranty that the services will be rendered with due care and skill …" 1. His Honour held that the quantum of damages recoverable for the breach of the implied warranty was not limited by Part 2 of the Civil Liability Act. He considered himself bound by Wallis to find that the Part 2 limitations were inconsistent with the right to "full contractual liability" conferred by s 74 of the Trade Practices Act. Under s 109 of the Constitution, s 74(1) of the Trade Practices Act prevailed and Part 2 of the Civil Liability Act was invalid to the extent of the inconsistency. 2. The appellant submits that the primary judge erred in finding that the right to "full contractual liability" found in Wallis to be conferred by s 74(1) was inconsistent with the operation of the limit created by Part 2 of the Civil Liability Act. The essence of the appellant's submission is that Part 2 of the Civil Liability Act regulates the quantification and measure of damages whereas s 74(1) does not. According to the appellant, "there is nothing in the Trade Practices Act or any other Federal legislation which regulates the measure of damages for breach of contract [with] which the CLA can 'impair' or conflict". 3. In his first judgment, the primary judge expressed the tentative view (at [123]-[124]) that the respondent's claim in contract for breach of the warranty implied by s 74(1) of the Trade Practices Act was not subject to Parts 1A and 2 of the Civil Liability Act. However, as the matter raised constitutional issues of some significance, he considered it appropriate to stand the matter over until further submissions could be made. Those submissions were heard on 9 September 2013. His Honour delivered a judgment on 4 October 2013 in which, after summarising the applicable principles in Wallis (at [7]-[10]), he made the following observations: "Senior Counsel for Perisher, Mr Sexton SC, noted that the operation of former s 74(1) of the Trade Practices Act was different to that of a number of other provisions in former Part V of the Trade Practices Act (eg s 52) in that s 74(1) did not create a cause of action the remedies for which were to be found in the Trade Practices Act. Instead the only cause of action is for breach of the term implied into the contract by s 74(1) (Arturi v Zupps Motors Pty Ltd [1980] FCA 164; 49 FLR 283, cited in Wallis at 398). Mr Sexton SC submitted that the regulation of the means of proving a breach of contract and the remedies for such a breach was generally a matter of state law subject to any express provision made to the contrary by Commonwealth law. Thus he contended that the source of law for a demonstrated breach of the term implied by s 74(1) was State law, which in this case included the restrictions on damages found within Part 2 of the CLA. Unconstrained by authority there is force in this argument. However it is directly inconsistent with the judgment of Toohey and Gaudron JJ in Wallis and, in particular, the reference by their Honours to 'full contractual liability for breach' in the passage extracted above. Their Honours accepted the submission that the implication by federal law of the term provided for in s 74(1) necessarily carried with it a remedy of damages assessed at common law and that any attempt to limit that remedy created a 'direct inconsistency' for the purposes of s 109 of the Constitution. I was not referred to any subsequent discussion of Wallis that affects this analysis. In the Court of Appeal in Insight Basten JA and Sackville AJA discussed Wallis in these terms at [98] and [143] respectively. Spigelman CJ cited the supplementary explanatory memorandum to the legislation that introduced s 74(2A) which recorded an understanding on the part of the Commonwealth that Wallis had this effect. Even if it was thought that the approach to s 109 of the Constitution in the above passage from Wallis was reconsidered or superseded by that adopted in Momcilovic v R [2011] HCA 34; 245 CLR 1, and I doubt that it was, it would not affect the outcome of Wallis. In any event, this Court is still bound by Wallis. I am unable to discern any relevant distinction between s 6(1) of the Carriers' Liabilities Act and the restrictions found within Part 2 of the CLA. I am bound by the decision in Wallis to find that the damages that Dr Nair-Smith can recover for breach of the term implied by s 74(1) of the Trade Practices Act are not subject to the limitations found within Part 2 of the CLA." 1. In Wallis, the Queensland Commissioner of Police entered into a contract with Downard-Pickford for the carriage of the goods of one Wallis from Ayr to Derby. The contract contained an implied obligation on Downard-Pickford to render its services with due care and skill by virtue of s 74(1) of the Trade Practices Act. Wallis' goods were damaged in transit through Downard-Pickford's failure to exercise due care and skill. The damage was quantified at $1,663.47. The issue was whether Downard-Pickford could rely on the limits on liability imposed by s 6(1) of the Carriage of Goods By Land (Carriers' Liability) Act 1967 (Qd) ("Carriers Act") in answer to Wallis' claim for breach of the term implied by s 74(1). Section 6(1) provided: "A carrier shall not be liable for loss or injury to any goods entrusted to him under a contract of carriage … in an amount greater than twenty dollars per package or, in the case of unpackaged goods, per item of goods consigned or two hundred dollars per consignment, whichever is the less, [unless the true value of the goods is disclosed in advance]." 1. Section 6(1) was deemed to be incorporated into any such contracts of carriage by s 9(1). Section 9 was as follows: "Provisions of Act incorporated in contracts. There shall be deemed to be incorporated in every contract of carriage and in other contract under which is to be a carriage of goods to which this Act applies the provisions of sections four, five and eight and of subsections (1) and (3) of section six of this Act." 1. In Wallis, the appellant submitted that s 74(1) creates a contractual liability and a correlative contractual right to a "full contractual remedy". As the appellant did in these proceedings, the respondent in Wallis submitted that s 74(1) says nothing about the measure or quantification of damages that may be recovered for breach of the implied warranty and does not impliedly make provision for the quantum of damages. Toohey and Gaudron JJ (with whom Deane, Dawson and McHugh JJ relevantly agreed) impliedly rejected the respondent's submission in holding (at 396-397) that: "the warranty created by s 74 carries with it full contractual liability for breach. Section 6(1) of the Queensland Act purports to limit that liability. The consequence is that there is a conflict between the two statutes, a conflict which amounts to a direct inconsistency in the sense that the Queensland Act detracts from the full operation of a right granted by the Trade Practices Act (Clyde Engineering Co. Ltd. v. Cowburn [1926] HCA 6; (1926) 37 CLR 466 at 478 per Knox CJ and Gavan Duffy J; Victoria v. The Commonwealth [1937] HCA 82; (1937) 58 CLR 618 at 630 per Dixon J; Ansett Transport Industries (Operations) Pty. Ltd. v. Wardley [1980] HCA 8; (1980) 142 CLR 237 at 259-260 per Mason J). The limitation is therefore, to that extent, invalid by reason of s 109 of the Constitution." 1. In obiter, Toohey and Gaudron JJ discussed whether s 6(1) could operate independently of s 9(1) and expressed the tentative view that it could not. The critical finding by their Honours was that "the warranty created by s 74(1) carries with it full contractual liability for breach". 2. Wallis was referred to by this Court in Insight Vacations v Young [2010] NSWCA 137 ("Insight"). An issue there was whether s 74(2A) of the Trade Practices Act picked up and applied s 5N of the Civil Liability Act. Section 74(2A) provides: "If: (a) there is a breach of an implied warranty that exists because of this section in a contract made after the commencement of this subsection; and (b) the law of a State or Territory is the proper law of the contract; the law of the State or Territory applies to limit or preclude liability for the breach, and recovery of that liability (if any), in the same way as it applies to limit or preclude liability, and recovery of a liability, for breach of another term of the contract." 1. The primary judge referred to three passages in Insight. In the first (at [98]) Basten JA said: "[Wallis] involved a claim for damages for goods damaged in transit as a result of the carrier's failure to use due care and skill. The claim relied upon a breach of the implied warranty in s 74(1) of the Trade Practices Act. The question was whether the damages were limited by a cap imposed on such claims by a Queensland Act. The High Court held that the Queensland legislative provision was inoperative because inconsistent with the scope of liability arising under the Trade Practices Act. The corrective amendment, now found in s 74(2A), was intended to avoid that consequence." 1. Sackville AJA said (at [143]): "In Wallis, it was held that s 74(1) of the TP Act, by implying a warranty into certain contracts, created not merely contractual rights, but 'full contractual liability for breach': 179 CLR at 396, per Toohey and Gaudron JJ. The Queensland legislation at issue in Wallis provided that a carrier was not to be liable under a contract for loss of or injury to goods entrusted to the carrier in an amount greater than $20 per package, unless disclosure of true value was made in advance. The legislation therefore took effect once the carrier was liable for loss and limited that liability to a fixed dollar amount. Since the Queensland Act purported to limit the liability of the carrier for breach of the contractual warranty implied by statute, there was a direct inconsistency between it and s 74(1), in the sense that the Queensland Act detracted from the full operation of a right granted by the TP Act. The limitation of liability in the Queensland Act was therefore rendered invalid by reason of s 109 of the Constitution. The drafter of s 74(2A) of the TP Act appears to have accepted that s 74(1) creates both a contractual right and 'full contractual liability for breach'." 1. The third passage referred to the Second Reading Speech, Consideration in Detail Speech and Explanatory Memorandum for the Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), which introduced s 74(2A): see Spigelman CJ at [43]-[45]. The extracts from those documents suggest that parliament's intention in enacting the legislative amendment was to ensure, among other things, that damages for breach of the implied warranty be subjected to any State and Territorial statutory regimes that limit or regulate the quantification of damages in contract. The Parliamentary Secretary moving the legislative amendment made the following statement in the Consideration in Detail Speech: "Based on legal advice, the Commonwealth has concerns that some actions in contracts based on a breach of the condition that services be provided with due care and skill may not be subject to any limitations which might be applied by a state or territory contractual remedy. To this end, the Commonwealth has decided to make a minor amendment to clarify this issue. The proposed amendments will seek to ensure that state and territory reforms of the law of contract are not undermined." 1. The Supplementary Explanatory Memorandum issued with respect to the legislative amendment enacting s 74(2A) stated that: "1.4 While contract law is ordinarily dealt with by the State and Territories, the Commonwealth has been provided with legal advice that the effect of the High Court's decision in Wallis v Downard-Pickford (North Queensland) Pty Ltd is that actions in contract based on a breach of the condition that services be provided with 'due care and skill' would not be subject to any limitations which might be applied by a State and Territory to contractual remedies. 1.5 The amendments will seek to ensure that State and Territory reforms of the law of contract are not undermined." 1. This Court's reasoning in Insight suggests that the legislature's purpose in introducing s 74(2A) was to address a concern that any attempt by State or Territory legislatures to regulate quantum or measure of damages recoverable for a breach of the term implied by s 74(1) would be inconsistent with s 74(1) because of the High Court's decision in Wallis. The Court found that s 74(2A) picked up and applied s 5N and therefore that no inconsistency arose. Section 74(2A) came into effect on 13 July 2004. It did not purport to have a retrospective effect. Section 74(2A) only applies to contracts entered into after it came into effect. The contract between the respondent and the appellant was entered into on 17 July 2003. Section 74(2A) therefore has no effect on the contract presently under consideration. 2. According to the primary judge, "full contractual liability" means "damages assessed at common law". Thus, the right granted by the Commonwealth Act is the right to have one's damages assessed according to common law. As Part 2 of the Civil Liability Act purports to limit the amount of damages recoverable for breach of the implied warranty to something less than the full amount that would be available at common law, it is inconsistent with s 74(1) and invalid accordingly. The primary judge's interpretation of Wallis is consistent with the Court of Appeal's remarks in Insight. 3. The appellant submits that Wallis is distinguishable from the present case because, in Wallis, s 6(1) of the Carriers Act was incorporated into the contract of carriage pursuant to s 9(1) of the Act so that both s 6(1) and s 74(1) formed part of the same contract and it would have been impossible to obey both terms and thus both laws. The impossibility of performing both contractual obligations therefore gave rise to direct inconsistency. 4. That characterisation of the decision in Wallis cannot be accepted. Toohey and Gaudron JJ addressed the issue of whether s 6(1) could have effect and operate independently. They said (398-399): "[I]t is not clear whether they operate together only or whether each has independent standing. Because of the way in which the appeal was conducted this issue does not arise for decision. Nonetheless it may well be that to divorce s 6(1) from the operation of ss 5 and 9 in the context of an Act designed to regulate contracts of carriage (including contracts with consumers) would be to prefer form over substance in a way that undermines the operation of the Trade Practices Act." 1. Thus Toohey and Gaudron JJ did not express a concluded view on whether s 6(1) only had force and effect by virtue of s 9(1) but they did find that s 9(1) was invalid to the extent that it incorporated s 6(1) into contracts for carriage to which s 74(1) applied. It is clear that the High Court considered that s 6(1) was inconsistent with s 74(1) irrespective of whether it was incorporated into the contract or had independent statutory force. What was material in Wallis was that s 74(1) conferred a right that s 6(1) purportedly qualified. It was this that constituted the inconsistency. The means by which the attempted qualification by State law is effected does not matter. The fact s 6(1) was incorporated into the contract for carriage, whereas the Civil Liability Act provisions are not is not a sufficient basis for distinguishing Wallis from the present case. 2. It is not immediately obvious how s 74(1) regulates the measure and quantification of damages, even in light of the High Court's decision in Wallis and its subsequent interpretation by the Court of Appeal in Insight. The High Court held that a right to "full contractual liability" inhered within the creation of the implied warranty by s 74(1). The Court did not elaborate on what was meant by that expression. The summaries of Wallis in Insight suggest that the phrase concerns the amount of damages that are recoverable for a breach of the implied warranty. This reading of Wallis seems to follow inexorably from the fact that s 6(1) purported to limit the amount of damages recoverable for a breach of the implied warranty and that was said to be the source of the inconsistency. If s 6(1) regulates the amount of damages recoverable for a breach of 74(1) and s 74(1) is inconsistent with s 6(1), s 74(1) must regulate the measure of damages recoverable for breaches of the term implied by it otherwise no inconsistency would arise. 3. Once it is accepted that s 74(1) regulates the quantification of damages, the question becomes how, precisely, does it do that. On its face, s 74(1) says nothing about how damages are to be assessed and quantified. Recourse must be had to the statement in Wallis that it confers entitlement to "full contractual liability". 4. The phrase "full contractual liability" must be understood as a reference to the full amount of damages recoverable at common law undiminished by any State's or Territory's legislation and free from any intrusion by such legislation. 5. The primary judge correctly held that Part 2 of the Civil Liability Act is directly inconsistent with s 74(1) of the Trade Practices Act and invalid to that extent. The damages the respondent can recover for breach of s 74(1) are to be determined in accordance with the principles applicable at common law and are not subject to the limitations contained within Part 2 of the Civil Liability Act.

Issue 9: Efficacy of Perisher's contractual exclusion clauses 1. The primary judge found that the terms of the ticket contract excluding the appellant's liability for breach of the term implied by s 74(1) of the Trade Practices Act were rendered void by s 68. The appellant submits that the primary judge ought to have found that the warranty implied by s 74(1) was excluded from the contract by the application of s 68B and s 4L of that Act. A term of a contract will be rendered void by s 68 if it purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying the warranty implied by s 74. Section 68 is in the following terms: "(1) Any term of a contract (including a term that is not set out in the contract but is incorporated in the contract by another term of the contract) that purports to exclude, restrict or modify or has the effect of excluding, restricting or modifying: (a) the application of all or any of the provisions of this Division; (b) the exercise of a right conferred by such a provision; (c) any liability of the corporation for breach of a condition or warranty implied by such a provision; or (d) the application of section 75A; is void. (2) A term of a contract shall not be taken to exclude, restrict or modify the application of a provision of this Division or the application of section 75A unless the term does so expressly or is inconsistent with that provision or section." 1. Both parties accept that the term implied by s 74 forms part of the contract between them and that s 68 will operate to render void any term of that contract that purports to qualify the application of s 74 unless the exception in s 68B applies. Section 68B relevantly provides that: "(1) A term of a contract for the supply by a corporation of recreational services is not void under section 68 by reason only that the term excludes, restricts or modifies, or has the effect of excluding, restricting or modifying: (a) the application of section 74 to the supply of the recreational services under the contract; or (b) the exercise of a right conferred by section 74 in relation to the supply of the recreational services under the contract; or (c) any liability of the corporation for a breach of a warranty implied by section 74 in relation to the supply of the recreational services under the contract; so long as: (d) the exclusion, restriction or modification is limited to liability for death or personal injury; and (e) the contract was entered into after the commencement of this section. (2) In this section: disease includes any physical or mental ailment, disorder, defect or morbid condition, whether of sudden onset or gradual development and whether of genetic or other origin. injury means any physical or mental injury. personal injury means: (a) an injury of an individual (including the aggravation, acceleration or recurrence of an injury of the individual); or (b) the contraction, aggravation, acceleration, or recurrence of a disease of an individual; or (c) the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs in relation to an individual that is or may be harmful or disadvantageous to, or result in harm or disadvantage to: (i) the individual; or (ii) the community. recreational services means services that consist of participation in: (a) a sporting activity or a similar leisure‑time pursuit; or (b) any other activity that: (i) involves a significant degree of physical exertion or physical risk; and (ii) is undertaken for the purposes of recreation, enjoyment or leisure. (3) The definition of injury in subsection (2) does not, by implication, affect the meaning of the expression injury when used in a provision of this Act other than this section." 1. At trial, the appellant contended that it excluded the operation of s 74(1) and also any liability under Part 1A of the Civil Liability Act by reason of the written terms on the reverse side of the ticket and the operation of s 5N(1) of the Civil Liability Act. The terms on the reverse side of the ticket relevantly stated: "Extract of terms and conditions: ALL SIGNS MUST BE READ. By purchasing or using this ticket, YOU ACKNOWLEDGE THAT ALPINE ACTIVITIES (INCLUDING SKIING & SNOWBOARDING) ARE RISKY AND DANGEROUS AND THAT YOU WILL UNDERTAKE SUCH ACTIVITIES AT YOUR OWN RISK. You also acknowledge that you will observe the Alpine Responsibility Code (copy available on request) and conduct yourself in a safe and controlled manner at all times. You must follow directions given by us, our employees and agents. We make no express warranties in relation to the service we provide. All warranties, representations or conditions relating to the services we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded. You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act, 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again. You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims. This ticket 1/ Is valid for the day or period of issue only as displayed on this ticket. 2/ Remains our property at all times and must not be resold, transferred or altered in any way and a breach of this condition may result in confiscation of your ticket and may invoke police action; 3/ Must be permanently attached to clothing on upper torso as displayed on the ticket backing so as to be visible at all times; invalid if ticket wire is cut. 4/ Will not be refunded or replaced if lost or stolen or if any facilities are not operating for any reason or if any portion of ticket is unused. 5/ Does not entitle you to use the "tom thumb" j-bar unless directed by one of our authorised employees; 6/ entitle you to unlimited use of the Skitube between Perisher and Blue Cow for the day or period of issue only; 7/ does not entitle you to use of the resort facilities for any commercial purpose - except with our prior written consent; and 8/ does not entitle you to provide or receive skis or snowboard instruction except where provided by us, our employees or our agents. If You Breach Any Of The Conditions You Will Lose All Privileges Associated With This Ticket. SKIING/SNOWBOARDING IS A HAZARDOUS ACTIVITY AND THE HOLDER SKIS/RIDES AT HIS/HER OWN RISK. skiers/snowboarders must observe the Alpine Responsibility Code and ski/ride in a safe manner at all times. Failure to do so may result in forfeiture of skiing/riding privileges…." 1. The primary judge found that the wording of the liability of the exclusion did not fall within s 68B because the ticket contract was not for the supply of "recreational services" within the definition of s 68B(2), but rather was only for the provision of "transportation services up the ski slopes and between some ski slopes". The primary judge's reasoning proceeded as follows (at [105]-[106]): "A critical aspect of the definition of 'recreational services' in s 68B is the focus on 'participation' in one of the specified activities. This is clearly a reference to participation by the customer. However, this part of the section is awkward in that it refers to 'contracts for the supply of ... services that consist of participation', but the entity undertaking that supply is the corporation, not the participating customer. Thus, the corporation must supply services that consist of participation by the customer. At its most favourable to Perisher, this definition could extend to contracts for the supply of services that immediately and directly facilitate participation, such as ski school training, tuition and supervision, etc. Although it is a difficult use of the language, the supply of, say, instruction and diving assistance to recreational scuba divers could be characterised as a service that consists of participation by those divers. Difficult questions could arise with contracts for the supply of a number of services that include services that directly facilitate participation and some which are only ancillary, e.g. transport. However, in this case the agreement between Dr Nair-Smith and Perisher was not a contract for the supply of services consisting of 'participation' in a 'sporting activity or a similar leisure-time pursuit'. The only service that Perisher contracted to provide was transport up a ski slope and possibly between slopes. Skiing is undoubtedly a sporting activity, but being transported up a ski slope and between ski slopes is not participating in a sporting activity. Nor does such transportation constitute 'participation in ... any other activity that ... is undertaken for the purposes of recreation, enjoyment or leisure'. Perisher only contracted to provide transport services and those services did not involve the relevant form of participation by the customer. For this reason I reject Perisher's reliance on s 68B as a potential means of avoiding the operation of s 68(1)." 1. The appellant submits that this is too narrow a characterisation of the purpose for which the contract was entered into and of the services for which it provided. In addition to providing a purchaser of a ticket with a means of being transported up the mountain in order to ski, the appellant also provided that purchaser with slope grooming services, pistes, snow making facilities, ski patrol services and a whole array of other ski resort facilities that could be enjoyed once the carriage had been completed. The ticket contract was not only for the transportation of skiers up and between ski slopes but for the full array of skiing facilities that the appellant provided. 2. The primary judge drew a distinction between "services that directly facilitate participation and some which are only ancillary, e.g. transport". But, "transportation" in the form of conveyance by chairlift to a point from which skiing and use of skiing facilities can be undertaken should not be regarded as merely "ancillary". Lifting services form a central aspect of alpine skiing in its modern form. There are, of course, other means of being conveyed up a ski slope. Some skiers prefer hiking while others, particularly intrepid skiers, use helicopters and skidoos to access ski terrain. However, for most skiers at established resorts such as Perisher, the use of lifting services is essential to their participation and enjoyment of the particular form of recreation. The common intended purpose and object of the transaction was to facilitate resort skiing which included, but was not limited to, the provision of lifting services. The primary judge was in error in finding that the ski lifting services provided by the appellant did not fall within the definition of "recreational services". 3. The appellant also submitted that even if the purpose of the contract was only transportation services, the primary judge erred in finding that "being transported up a ski slope and between ski slopes is not participating in a sporting activity". 4. Section 68B relevantly defines "recreational services" as "a sporting activity or a similar leisure‑time pursuit". While riding on chairlifts may aptly be characterised as a "leisure time pursuit" it is in no way similar to "a sporting activity" and therefore falls outside the relevant definition. 5. Even if it is accepted that the ticket contract was for the supply of "recreational services" within the definition of s 68B(2), the primary judge found that there is a "further obstacle in the face of Perisher's attempt to invoke s 68B". According to his Honour (at [107]): "The section provides that the term that purports to exclude, restrict or modify the implied term or Perisher's liability for a breach of it will not be void 'by reason only' that it excludes, restricts or modifies the application of s 74 to the supply of recreational services under the contract or the liability of Perisher for a breach of the warranty implied by s 74 in relation to that supply. More significantly the narrow excision from the operation of s 68(1) which s 68B creates will only operate 'so long as ... the exclusion, restriction or modification is limited to liability for death or personal injury' (emphasis added). The exclusion, restriction or modification referred to is that sought to be given effect to by the term in question that otherwise falls foul of s 68(1). To be saved by s 68B, the term cannot by its terms purport to exclude, restrict or modify other forms of liability, e.g. for property damage. If it did, then the exclusion, restriction or modification is not limited to liability for death or personal injury and s 68B will not prevent it being rendered void under s 68(1). Section 68B could have been expressed to avoid the operation of s 68(1) 'to the extent' that the exclusion, modification or restriction applied to death or personal injury, but it was not." 1. At [93] and [95] the primary judge stated: "Subsection 68(1) operates upon particular 'terms' of a contract. I address the potentially relevant terms below at [109] to [116]. At present it should be noted that the effect of this provision is to render the entire term 'void' and not just void 'to the extent' that it purports to have the effect referred to in any of paragraphs (a) to (d) of s 68(1) (see Taperell, Vermeesch and Harland, Trade Practices and Consumer Protection, 3rd edition, Butterworths at [1745]). Thus, for example, if the one term sought to exclude liability for negligence and breach of a condition or warranty implied by the TPA then the effect of s 68 is that it would not be effective to do either. … The proper operation of this provision was explained by the High Court in SST Consulting Services Pty Ltd v Rieson [2006] HCA 31; 225 CLR 516 ('SST Consulting') at [40]: 'Much more often than not the definition of the extent of severance will be revealed by the way in which the condition for engagement of s 4L operates. That condition requires the identification of a provision whose inclusion in the contract brings about the result that making the contract contravened the Act. It is that provision which is unenforceable and void and it is that provision which is to be severed from the other provisions of the contract. Subject to any order made under s 87 or s 87A, nothing in the Act affects the validity or enforceability of those other provisions.'" (emphasis in original) 1. The primary judge applied those principles to what he considered to be the three "potentially relevant" exclusion "terms" in the ticket contract. The first term read as follows: "All warranties, representations or conditions relating to the services we provide (whether express or implied and whether arising in contract at common law or under statue [sic]) are to the maximum extent permitted by law expressly excluded." 1. The primary judge found that this term did not purport to exclude or modify the appellant's liability in negligence (at [110]). Further, his Honour did not consider that it operated to exclude the term implied by s 74(1) of the Trade Practices Act because its operation is limited by the words "permitted by law" and the Act does not anywhere provide such permission. The appellant did not challenge these findings. 2. The second potentially relevant term considered by the primary judge provided that: "You acknowledge that our liability under any statutory right or any condition or warranty implied by the Trade Practices Act 1974 which cannot be excluded is limited at our option to the resupply of the services or the payment of the cost of having the services supplied again." 1. The primary judge found that this term neither purported to exclude the appellant's liability in negligence nor fell within the exception to s 68 of the Trade Practices Act contained in s 68A for reasons set out at [98] of the first judgment. These findings are not challenged. However, the primary judge also found that s 68B could not be invoked for the reason set out at [199] above and because the restriction or modification sought to be made by the term is not limited to liability for death or personal injury, for that further reason, s 68B(1) was not engaged. While the first of these reasons cannot be accepted (see [201] above), the second reason is valid. It follows that this term was rendered void by s 68(1). We agree with the primary judge's reasoning in this regard. 2. The third potentially relevant term was as follows: "You acknowledge that we are not liable to you for any loss, damage, injury or any incidental, indirect, special, consequential or economic loss or damage (including loss of opportunities, exemplary or punitive damages) whether to person or to property and whether arising from default, negligence, misconduct or otherwise by us, our employees or our agents and you indemnify us against all claims." (emphasis added) 1. The primary judge held (at [115]) that this clause purports to exclude the liability of Perisher for negligence and breach of the term implied by s 74; that s 68A did not apply for reasons that are not in issue in this appeal; that s 68B did not apply for the reason extracted at [199], which cannot be accepted (see [201] above); and, that even if s 68B could be invoked, the exclusion sought to be given effect to by this term is not limited to liability for death or personal injury so that for that additional reason s 68B(1) was not engaged. Consequently, the effect of s 68 was to render the entire "term" void. 2. The appellant submits that the primary judge erred in failing to apply s 4L of the Trade Practices Act so as to sever the words "or to property" (or perhaps "whether… or to property"). Section 4L is as follows: "If the making of a contract after the commencement of this section contravenes this Act by reason of the inclusion of a particular provision in the contract, then, subject to any order made under section 87 or 87A, nothing in this Act affects the validity or enforceability of the contract otherwise than in relation to that provision in so far as that provision is severable." 1. In Motorcycling Events Group Australia Pty Ltd v Kelly [2013] NSWCA 361; 86 NSWLR 55 at [116]-[120] Gleeson JA said: "The manner in which s 68B is to operate in relation to a term of a contract which excludes, restricts or modifies, or has that effect in relation to the application of s 74 to the contract, is expressed to be 'so long as' the exclusion, restriction or modification is 'limited to liability for death or personal injury'. The words 'so long as' are words of limitation which impose a requirement that the relevant term of the contract 'is limited to', that is, do no more than exclude, restrict or modify liability for death or personal injury. If the qualification of the general avoiding effect of s 68(1) which s 68B(1) provides for was intended to have a broader operation such that a term excluding, restricting or modifying the application of s 74 to the contract was void only to the extent that the exclusion, restriction or modification related to liability otherwise than for death or personal injury, then the words 'so long as' would be most inappropriate to achieve that result. The language appropriate to achieve such a wider excision from the operation of s 68(1) would have been words such as 'insofar as' or 'to the extent that' in place of the words 'so long as'. The construction of s 68B outlined above may be contrasted with the construction given to the operation of s 68(1) of the Trade Practices Act: see Ruaro v Ferrari [2007] FCA 2022 at [52] and [85] per Emmett J; Renehan v Leeuwin Ocean Adventure Foundation Ltd [2006] NTSC 4; (2006) 17 NTLR 83 at [81]; Qantas Airways Ltd v Aravco Ltd [1996] HCA 12; (1996) 185 CLR 43. Those cases hold that s 68(1) has the effect to render a term of a contract void only to the extent that it modifies the operation of, relevantly, s 74. The reasoning given in these authorities is that s 68(1) does not strike down valid contractual arrangements except insofar as the arrangements purport to or have the effect of excluding, restricting or modifying the benefits intended to be conferred by provisions such as s 74. These authorities were referred to by the High Court, without disapproval, in Zurich Australian Insurance Ltd v Metals & Minerals Insurance Pte Ltd [2009] HCA 50; (2009) 240 CLR 391 at 405 [30], in relation to the meaning of the word 'provision' in s 45(1) of the Insurance Contracts Act 1984 (Cth). It is unnecessary for this appeal to express a view concerning this difference of opinion in relation to s 68(1) and the effect of its operation. It is sufficient to note that the approach taken to s 68(1) in the authorities referred to above, which renders a 'term' of a contract void only to the extent that it modifies the operation of, relevantly, s 74 is not open in relation to s 68B. This is because the language of the latter provision imposes a requirement that the relevant term does no more than exclude, restrict or modify liability for death or personal injury." 1. Basten JA said (at [15]-[16]): "The condition in paragraph (d) requires that the exclusion be 'limited to' liability for death or personal injury. It is this aspect of the provision which causes difficulty for the appellant in the present case. The exclusion clause was not so limited: it extended to liability for 'death, personal injury or property damage'. In order for the provision to have effect in the present case, it would be necessary to read s 68B(1) as applying to the exclusion clause 'to the extent that it operates to exclude, restrict or modify liability for death or personal injury'. That reading involves radical surgery: it is not the language adopted by the legislature. Nor can the statutory language be described as ambiguous or uncertain. Indeed, the only reason to look for an alternative to the natural meaning of the words used is that the purpose of the restriction is unclear. In addition, the language of s 68B, involving the exclusion, restriction or modification of 'liability' appears to pick up the kind of exclusion referred to in paragraph (c), rather than either of paragraphs (a) or (b). It would therefore appear not to save a clause which purported to deny the application of any statutory implied warranty effected by s 74(1), unless it was qualified by reference to liability for death or personal injury, and similarly would not be engaged where the contract purported to exclude the exercise of a right 'conferred by' s 74 except to the extent that the right involved a liability to sue for damages for death or personal injury. Applying the same reasoning to paragraph (c), it would appear to be engaged only where the exclusion clause, in its terms, referred only to liability for death or personal injury arising from a breach of the implied warranty." 1. Meagher JA agreed with Basten JA (at [41]) and stated: "The critical condition in the present case is that 'the exclusion, restriction or modification is limited to liability for death or personal injury'. I agree with Basten JA that the words 'so long as' are to be construed as meaning 'provided that'. The 'exclusion, restriction or modification' referred to in paragraph (d) is that which the relevant term in fact achieves or effects. It follows that s 68B only excludes the operation of s 68 in respect of a term which answers the description in s 68B(1)(a), (b) or (c) if the exclusion, restriction or modification made or effected by that term is limited to liability for death or personal injury. The exclusion, restriction or modification made or effected by cll 10 and 12 is not so limited because it extends to liability for property damage. The primary judge was right to conclude that the appellant could not rely upon the terms in those clauses, assuming they formed part of the contract, to limit or exclude its liability for breach of the term implied by s 74." 1. The effect of the similar approaches taken by Gleeson JA and by Basten JA and Meagher JA is that any provision that purports to exclude liability for more than personal injury or death will not answer the description in s 68B(1)(d) of the Trade Practices Act and will be, by force of s 68, void in its entirety and not just to the extent that it purports to exclude, restrict or modify liability for anything beyond personal injury or death. The third "potentially relevant" exclusion clause purports to exclude liability for more than personal injury and death as it extends to liability for "property". The term is void in its entirety and those parts of it which extend the scope of its exclusion cannot be severed so that it meets the description in s 68B(1)(d). 2. It remains to be determined whether s 4L of the Trade Practices Act has any effect on the conclusion just stated. At [96] the primary judge said: "Reliance on s 4L will not avoid the consequence identified in [93]. The inclusion in a contract of a particular term which falls foul of s 68 does not of itself have the effect that the making of the contract contravenes the TPA. Even if that were so, s 4L merely enables the excision of the relevant term with the assistance of the metaphorical 'blue pencil' (SST Consulting at [52]). It does not authorise the rewriting of a particular term." 1. Section 4L is only engaged if the inclusion of a particular provision in a contract contravenes a particular provision of the Trade Practices Act. The appellant has not identified a relevant contravention of the Act that would trigger the application of s 4L. The inclusion of a term which purports to avoid the application of the warranty implied by s 74 is rendered void by s 68 and is therefore of no effect. It is unnecessary in this appeal to express a view concerning the effect of s 4L as it has no application to the issues under consideration. 2. As we have reached the same conclusion as the primary judge regarding the validity of the purported exclusion clauses in the ticket contract, albeit, to some extent, by a different route, the primary judge's conclusion (at [117]) that the "consequence of the above conclusions is that Dr Nair-Smith is not contractually excluded from suing for negligence at common law and Perisher's attempt to rely on s 5N of the CLA fails" must stand. Even though we differ from his Honour on the question of whether the contract was for supply of "recreational services" within the meaning of s 68B(2), there is nevertheless no valid contractual waiver of liability to which s 5N could apply. It is therefore not necessary to decide whether s 5N of the Civil Liability Act is rendered void by s 68.

Issue 10: Quantum of damages 1. The appellant makes two challenges to the primary judge's findings in relation to the respondent's post-accident functional work capacity. First, the appellant submits that the primary judge erred in finding that the respondent experienced any diminution in her earning capacity after she returned to work on 8 July 2003. Second, the appellant submits that the primary judge erred in finding that any diminution in the respondent's functional work capacity following her injury on 18 July 2003 was attributable to that injury. 2. The primary judge made several findings about the respondent's functional work capacity following the injury. He found that she was unable to return to work from the date of injury until 8 August 2003; that from that date until December 2008 she reduced her working hours by half a day per week; and that she reduced her work hours by a full further day per week from December 2008. 3. The appellant does not challenge the primary judge's finding that the respondent was unable to return to work from the date of injury until 8 August 2003. The appellant also accepts that the respondent stopped working half a day on Fridays from 8 August until December 2003 and further reduced her working days thereafter. However, it submits that the respondent's overall working hours did not decrease after she returned to work following her accident notwithstanding that she was only working half a day on Friday and that any decrease in her working hours ought to have been attributed to a natural deterioration of the respondent's pre-existing lumbosacral condition. 4. The appellant relied on the following evidence in support of its submission that the respondent did not experience any reduction in earning capacity after she returned to work on 8 August 2003: 1. The respondent accepted in cross-examination that she "returned to full-time work duties on 28 August 2003" and was working "50-60 hours per week" between "February and August 2004". 2. A letter from Jeremy Wright, a financial consultant to the respondent, dated 8 September 2005 to an insurer stating that "Dr Nair-Smith has been back to work for 2 years without any time off". 3. In insurance claim documents signed and dated 9 November 2005, the respondent stated that she normally worked 55 hours per week before the incident and worked the "same" during the 12 months prior to November 2005. 4. The respondent had 10 days off work in October 2004 because her condition deteriorated during a period in which she was "undertaking" pilates. 5. The respondent accepted in cross-examination that on 29 October 2008 she informed her physiotherapist, Ms Harkin, that she was working 12 hours per day, 4 days per week. 6. Medicare records show that the fluctuations in the respondent's client servicing rates in the years after the incident were comparable to other doctors at the practice at which she worked. 7. The respondent's earnings from personal exertion increased by 33% in the financial year 2009. 8. In her amended statement of particulars dated 3 May 2007, the respondent claimed damages for the time she spent off work from 18 July 2003 to 31 August 2003 and for past and future loss of earning capacity as a medical practitioner. 1. The appellant also placed reliance on the lack of documentary evidence adduced by the respondent to corroborate her assertion that she was working fewer overall weekly hours after the incident and not just fewer days. The appellant submits the respondent maintained her full-time pre-injury working hours of 50-60 hours per week after her return to work on 8 August 2003 without a reduction in patient servicing even though she was only working half a day on Friday. 2. The primary judge addressed much of this evidence and the lack of corroborating documentary evidence in his reasoning: [247]-[279]. He found that the respondent reduced her working hours by half a day on Friday after her accident and further reduced her hours after 1 December 2008. The primary judge recognised that there was evidence given in cross-examination by the respondent and contained within insurance claim documents that was inconsistent with these findings. He dealt with these inconsistencies in his reasoning: [268]-[271]. The appellant did not take issue with the primary judge's reasoning in this regard. His Honour based his finding on a considerable body of affidavit and testimonial evidence that supported his finding. While the primary judge expressed certain reservations about the credibility of the respondent, for the most part he found her to be intelligent and honest. His Honour had the advantage of seeing the demeanour of the respondent at trial to assist his assessment of the credibility and reliability of her evidence. The evidence to which the appellant took this Court does not justify appellate intervention in what is in essence an evaluative exercise.

Cause of diminution in work capacity 1. In any event, the appellant submits that the primary judge erred in finding that the respondent's diminished work capacity was attributable to the injuries that she sustained on 18 July 2003 and that his Honour should have found that any of respondent's diminished work capacity after she returned to work was a product of a natural deterioration of her pre-existing lumbosacral condition. Accordingly, the relevant issue is whether the respondent's diminished work capacity is attributable to a natural deterioration in her pre-existing lumbosacral condition or an exacerbation of that condition caused by her injury on the ski fields. The primary judge concluded: "In the end result, I am satisfied that Dr Nair-Smith suffered a significant soft tissue injury to her lumbar spine as a result of the accident as stated by Dr Giblin. Over time she has developed a pain disorder as referred to by Drs Clarke and McClure. The effect of the soft tissue injury was to aggravate a pre-existing level of discomfort in the lower lumbo-sacral region. Her further deterioration over the last few years is a result of the combination of the effect of the accident and degenerative changes in the lumbosacral region, however the accident remains an operative cause of that deterioration." 1. The appellant submits that that finding is against the weight of the evidence and that the primary judge failed to address the critical issue of reliability in his reasoning. The crux of the appellant's submission is that the respondent's evidence is unreliable because her attribution of the pain she was experiencing to the chairlift incident was a product of her "psychological obsession" with her injuries and that insofar as the evidence of the respondent's family, those close to her and certain doctors was based upon her opinion regarding the cause of her injuries, it too is unreliable. In particular, the appellant submits that the respondent's narration of her medical history to Dr Giblin was so inadequate that his subsequent diagnosis based upon it cannot be relied on. 2. The appellant took the Court to the joint opinion of Dr Clark and Dr McClure that the respondent was "overly preoccupied with her accident, injury and disabilities to the point where psychological intervention was justified". This opinion was given in the course of an advice concerning whether the respondent required psychological treatment following her accident. When their opinion is read in context, it is clear that it has nothing to do with whether the respondent was capable of reliably accounting for the cause of her pain. Under a heading that reads "Issues on which the Experts agree", the report records the following: "● The Plaintiff, Dr Nair-Smith, sustained a physical injury in the accident on 18 July 2003. ● As a result, Dr Nair-Smith has ongoing physical symptoms, which have caused her to give up a number of recreational activities and to reduce her working hours." 1. This suggests that it was the joint expert opinion of Dr Clark and Dr McClure that the respondent was suffering "ongoing physical symptoms" as a result of her accident on 18 July 2003 and not that she was imagining a connection between the pain she was experiencing and subject accident. Further, the appellant submits that the primary judge erred (at [288]) in rejecting the evidence of Dr Clark and Dr McClure "solely on the basis of the primary judge's observation of the respondent in Court that she 'did not appear to be obsessed or pre-occupied with the circumstances of the incidence'". In the judgment at [288], his Honour stated that he rejected "Dr Clark's diagnosis of a post-traumatic stress disorder for the reasons given by Dr McClure". He extracted those reasons at [286]. Dr McClure rejected Dr Clark's diagnosis because, in his opinion, the respondent's symptoms were not consistent with those of a post-traumatic stress disorder. That is good reason for rejecting a diagnosis. The primary judge was entitled to prefer the evidence of Dr McClure over Dr Clark on that basis. He also considered the evidence of Dr Clark and Dr McClure that the respondent was "continuing to experience significant pain even though other branches of medicine cannot identify a precise organic cause". 2. The appellant then took the Court to the evidence of Dr Maxwell, Associate Professor Jones and Dr Giblin that the respondent faked a Trendelenberg's sign; the respondent's concession that she wrongly denied her history of paralysis, migraine and joint pain, arthritis, bone and spine trouble in an insurance proposal dated 30 June 1990; the respondent's failure to disclose to Dr Clarke and Dr McClure that she had previously seen medical specialists to treat and investigate the cause of her lumbosacral pain over the 14 years prior to her injury and had supposedly exaggerated her skiing ability to them; and the respondent's supposed admission in cross-examination that she advised Dr Lee that the X-ray had revealed a separation of the pubis in circumstances where Dr O'Connor had advised her to the contrary. The primary judge considered the evidence of Dr Maxwell, Dr Stening and Associate Professor Jones and gave his reasons for not accepting it at [295]-[311] and dismissed this supposed admission as "an instance of [the respondent] falling into difficulties in the face of a skilful cross-examiner, and does not reveal dishonest conduct on her part". The fact that the respondent misrepresented her medical history in 1990 and to Dr Clarke and Dr McClure does not suggest that she was under some sort of misapprehension about the cause of her injuries. Rather, it suggests that she was knowingly dishonest as she must have known that she had been experiencing pain and would have had detailed knowledge of her medical history. This evidence goes to credibility and not reliability. 3. Finally, the appellant submits that the primary judge's evidence was against the weight of the contemporaneous medical and financial records. Most notably, the appellant drew the Court's attention to the fact that the respondent underwent far less medical treatment in the areas supposedly affected by her accident after it occurred than before. The primary judge dealt with the evidence going to the respondent's pre- and post- injury medical treatment at [204]-[218] and [219]-[246] respectively. Although he did not engage in the kind of comparative analysis proposed by the appellant, it is nevertheless clear from the primary judge's reasoning that he considered this evidence in detail and makes it plain that he was under no misapprehension about this evidence and the weight to be given to it. 4. The principle applicable to appellate review of damages awards was stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207: "The settled rule, then, is that an appellate court will not disturb a primary judge's award of damages for personal injury unless it is convinced that he has acted on a wrong principle of law or that he has misapprehended the facts or that the amount of damages awarded is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered." 1. When one examines the medical evidence there is a sufficient basis upon which the primary judge's findings can be supported. In his report dated 4 December 2006, Dr Giblin provided the following diagnosis and prognosis: "Based on her history and examination, she has the provisional diagnosis of a soft tissue injury to the lumbar spine, reasonably causally related to the subject accident. It is likely that her symptoms will persist in an episodic fashion for the foreseeable future, being present in terms of exacerbations and remissions, and associated with permanent physical restriction. Specifically, I see her as being permanently unfit for prolonged and uninterrupted periods of standing and sitting, or for heavy bending, lifting and twisting. These work related physical restrictions will also apply indefinitely to her domestic and recreational activities. In addition, there is a probability, as distinct from a possibility, that her back will undergo post traumatic degenerative change and be more susceptible to further soft tissue injury from relatively minor events. While she remains fit for her current work environment, it is a reasonable supposition, that there will be some gradual diminution in hours worked, as her symptoms slowly deteriorate over time." 1. As the primary judge stated (at [293]), Dr Giblin's subsequent reports dated 27 April 2009 and 3 August 2010 confirm this provisional diagnosis. 2. The appellant has failed to demonstrate relevant error by the primary judge in assessing the evidence regarding the cause of the respondent's pain and, therefore, diminution of functional work capacity.

Domestic Assistance 1. The appellant submits that the primary judge should have awarded no damages for domestic assistance, paid or gratuitous, following the respondent's return to work for the same reasons it submits the primary judge should not have awarded damages for diminution of functional work capacity. It follows that this submission should be rejected for the reasons given above. 2. Alternatively, the appellant submits that the primary judge erred in awarding damages for paid domestic assistance at a rate of $30 rather than adopting the rate of $14.58 that the respondent was paying a certain Ms Callas. The primary judge determined that $30 was the appropriate market rate for the domestic services required by the respondent by taking the rate opined by Ms Walters, an occupational therapist, to be the current home care rate and discounting it in light of the rate at which Ms Callas was willing to work and the level of average earnings. The appellant submits that the primary judge should have calculated the market rate for the services required by the respondent by reference to the rate she was actually paying for those services and not the hypothetical rate opined by Ms Walters for specialised medical care the respondent did not need. Ms Walters described the assistance the respondent would require as follows: "Given Mrs Nair-Smith's ongoing difficulty with the tasks requiring bending and stooping, manual handling, heavy bilateral upper limb activity and working above shoulder level, she will continue to experience difficulty with tasks such as vacuuming, moving furniture to clean under and heavy scrubbing required cleaning bathrooms. It is also not recommended that she climb ladders to clean windows and curtain/blinds etc. as she could re-injure her shoulders or spine if she were to fall and as she is trying to stretch and reach. It is estimated that 5 hours per week would continue to be required to provide assistance with the large number of cleaning tasks that were her pre-injury responsibility, which she can no longer complete safely. On this basis, ongoing professional assistance is recommended. At current Home Care rates of $35 per hour (GST free) for domestic assistance, this would equate to $175.00 per week." 1. The rate proposed by Ms Walters was for the provision of assistance with ordinary domestic tasks and not for the provision of specialised medical care. The respondent is entitled to be compensated for her future paid domestic assistance requirements at the market rate. In Griffiths v Kerkemeyer [1977] HCA 45; 139 CLR 161 Mason J stated (at 192-193) that: "The fact that a relative or stranger to the proceedings is or may be prepared to provide the services gratuitously is not a circumstance which accrues to the advantage of the appellant. If a relative or stranger moved by charity or goodwill towards the respondent does him a favour as a disabled person then it is only right that the respondent should reap the benefit rather than the wrongdoer whose negligence has occasioned the need for the nursing service to be provided. Enough has been said in the cases which have been decided more recently to indicate that the old view based on the proposition that a plaintiff is not entitled to recover from the defendant the services provided to him unless he can show that he is under a legal liability to pay for them, is no longer acceptable. That view proceeded upon the footing that the relevant loss was the legal liability to pay for the service. It is now recognized that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration. Furthermore, the old view, by insisting upon the existence of a legal liability to pay as a condition of recovery in respect of the provision of the service, threw up issues of fact which were not susceptible of accurate determination. In relation to the provision of voluntary services there is the inevitable and intractable question: For how long will the voluntary service be provided? Although the new approach does not entirely eliminate this question, it descends to the level of a less critical consideration.… In general the value or cost of providing voluntary services will be the standard or market cost of the services." 1. There is no principled basis for not extending this principle to the provision of services provided at less than a market rate. A sample size of one is generally a poor indicator of what the market is willing to pay for the provision of a particular service. The primary judge was entitled to prefer the professional opinion of Ms Walters, subject to certain qualifications, over the rate that the respondent happened to be paying Ms Callas when determining the market value of paid domestic assistance, especially as it is not certain whether and for how long Ms Callas will continue to provide her services at that rate, if at all. The appellant has provided no sound basis for overturning the primary judge's findings with respect to domestic assistance.

Conclusion 1. Since, for the reasons stated, breach of a duty of care owed by the appellant, although it occurred, was not causative of the injury sustained by the respondent on 18 July 2003, the award of damages made by the primary judge cannot stand. Had the conclusion on causation been otherwise, the appropriate course would have been to dismiss the appeal, since all other bases of challenge advanced by the appellant are unsustainable. 2. Because the appellant has been successful on the issue of causation only, there is a question as to the appropriate costs order. Argument on the several matters on which the appellant failed represented the major part of the submissions as a whole. In those circumstances, the simple proposition that costs should follow the event requires re-evaluation. The success achieved by the appellant on the single (but decisive) issue of causation and the success achieved by the respondent in resisting all other grounds of appeal will best be reflected by an order that the respondent pay one-half of the appellant's costs of the appeal. 3. The orders are: 1. Appeal allowed. 2. Set aside orders (1) and (6) made by Beech-Jones J on 27 November 2013 and substitute the following orders: "(1) Verdict and judgment for the Defendant against the Plaintiff." "(6) Otherwise, the Plaintiff pay the Defendant's costs of the proceedings on the ordinary basis." 3. The respondent pay one-half of the appellant's costs of the appeal. 4. The respondent, if qualified, to have a certificate under the Suitors Fund Act 1951 (NSW).

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Amendments 10 April 2015 - Solicitor for appellant amended 10 June 2015 - removed text "Click here to enter text." from Legislation Cited and Cases Cited coversheet fields 15 April 2016 - 1. At [55] – quotation of [126] second sentence should read "I have accepted that contention. However I have also …. very late reaction by Mr Lofberg to the safety bar being down" 2. At [60] – quotation of Mrs Nowland first sentence should read "Leichhardt" 3. At [65] – quotation of Mr Lofberg second sentence should read "… sat on the chair, it was in normal alignment with the snow path." 4. At [67] – quotation of Mr Lofberg should read "[t]hey got on the chair, so they must have been pretty close …" 5. At [73] – quotation of Mr Gow should read "….all of this occurs in the space of a few seconds." 6. At [77] – quotation of Mr Needham should read "… magnitude of the force is 200 N;" 7. At [78] – quotation of Mr Needham should read "…accelerated by the time it reached the load line …" 8. At [92] – quotation of [138] should read "…This would address the possibility …" 9. At [97] – quotation of [142] should read "the fact of a safety bar being down" 10. At [104] – sixth sentence should read "As the primary judge found at [145] …" 11. At [136] – second sentence should read "… delayed realisation…" 12. At [139] – first sentence should read "… the leading edge of the chair…" 13. At [161] – first sentence should read "… inattention and failure to act were a necessary condition …" 14. At [178] – second sentence should read "Wallis' goods were damaged …" 15. At [178] – fifth sentence should read "…s 6(1) of the Carriage of Goods By Land (Carriers' Liabilities) Act 1967 (Qd) …" 16. At [181] – quotation of Toohey and Gaudron JJ should read "… full contractual liability for breach": at 393." 17. At [185] – first sentence should read "… Treasury Legislation Amendment (Professional Standards) Act 2004 (Cth), which ..." 18. At [198] – quotation of reverse side of ticket should read "…UNDERTAKE SUCH ACTIVITIES AT YOUR OWN RISK" 19. At [199] – first sentence should read "… definition of s 68B(2), but rather …." 20. At [202] – first sentence should read "… is not participating in a sporting activity". 21. At [204] – first sentence should read "the definition of s 68B(2), the primary judge …" 22. At [206] – quotation of primary judge should read "… conditions relating to the services we provide …" 23. At [212] – first sentence should read "… so as to sever the words "or to property" (or perhaps …" 24. At [217] – first sentence should read "It remains to be determined whether s 4L of the Trade Practices Act has any …" 25. At [219] – quotation of [117] should read "consequence of the above conclusions is that Dr Nair-Smith is not …" 26. At [230] – first sentence should read "the evidence of Dr Maxwell, Associate Professor Jones and Dr Giblin …"; second sentence should read "… the evidence of Dr Maxwell, Dr Stening and Associate Professor Jones and gave his reasons …" 27. At [232] – first sentence should read "… stated by Mason J in Wilson v Peisley (1975) 50 ALJR 207 …" 28. At [233] – quotation from Dr Giblin's report first sentence should read "… she has the provisional diagnosis of a soft tissue injury to the lumbar spine, reasonably causally related to the subject accident." DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2016