I love skiing.
While the ski hill is a place of joy for me and many others, it is also a place where a lot of serious injuries occur. Sometimes the injuries are unavoidable. More often, injuries are avoidable so long as everyone is acting responsibly.
If you’re injured at the ski hill, any number of people might be responsible for your injuries (e.g., ski hill, staff, other skiers, supervisors, instructors). Most of these people have insurance, and you may be entitled to compensation from their insurance company. To get compensation, first you must show that someone else was liable for your injuries. This blog post is specifically about the responsibility of other skiers.
When is another skier liable for my injuries on the ski hill?
The law is clear that skiers owe other skiers a duty of care. That is, they have a duty to avoid causing injury to other skiers. However, just because another skier causes your injuries it doesn’t mean that they are automatically liable. The other skier’s conduct must fall below the standard of care expected of them in the circumstances.
What is the standard of care?
It’s hard to define the standard of care expected of a skier with precision. In Gilsenan v Gunning (1982), Justice Galligan held that a skier must try to ski under control at all times. He stated that:
[23] … The standard of care cannot be defined as easily as it is in other activities, such as driving a motor vehicle. A driver has an obvious duty, which he violates at his peril respecting damages, to keep his car under control. It is obvious negligence to fail to do so. On the other hand, a skier simply cannot ensure that he will maintain control at all times. A skier is obviously under a duty to try to ski under control at all times, but unlike the car driver, I think a skier can frequently lose control without being negligent in law.
[24] In my opinion it would be an impossibly high standard, and one incompatible with ordinary pleasure skiing, to require a skier at the risk of liability for damages never to lose control. I do not think it realistic to expect all skiers to ensure that they will never lose control, or for them to expect that other skiers on the hill will never lose control.
[25] It would be in breach of a skier’s duty of care, in my opinion, to fail to try to stay in control, but I do not think that lack of control is necessarily negligence. Loss of control is an inherent part of the sport, and any person who has ever put on a pair of skis knows it.[1]
The Alpine Responsibility Code
In coming to his decision, Justice Galligan noted that “[t]here is no code of conduct that is nationally accepted regulating the conduct of skiers on ski-hills”. Today, the Alpine Responsibility Code is used in all provinces but Québec. Québec has a similar code and has gone one step further by turning it into law.
The Alpine Responsibility Code imposes a stricter responsibility on skiers than Justice Galligan’s standard of care. The code requires that skiers always stay in control, not just that they try to stay in control.
Breaching the Alpine Responsibility Code does not automatically mean a finding of negligence. Justice Galligan’s standard seems to still have some traction. For example, in Lownds v. Sperker, Justice MacAdam of Nova Scotia’s Supreme Court references the Code, but ultimately held that a skier that lost control after hitting a bump was not negligent in the circumstances.[2]
On the other hand, Justice Dunphy of the Ontario Superior Court more recently held that a skier must keep a proper lookout, maintaining a rate of speed and control consistent with his or her actual field of vision and stopping distance. In his view, a skier “must be under sufficient control as to be able to stop or avoid obstacles or dangers as they become visible within the field of vision permitted by conditions at all times.” [emphasis added][3] This standard of care essentially aligns with the Alpine Responsibility Code.
Final Words
While fault is obvious in some cases, it’s not so clear in others. The grey areas are tricky. One only has to read the comments section of a “Who’s at fault” ski accident video on YouTube or TikTok to learn that there are wildly variable ideas about expected conduct on the ski hill.
When injured on the ski hill, it’s important to have an experienced injury lawyer on your side. Ski hill accident cases are fraught with legal issues. Defendants and their insurance companies may try to defeat your claim by relying on the doctrines of waiver and volenti non-fit injuria (i.e., you consented to the risk of injury). Sometimes, there are also problems with the choice of law and jurisdiction, like when two Ontario residents collide on a Quebec ski hill (which was the case in Gilsenan v Gunning). If children are involved in the accident, this adds another layer of complexity as well. I’ll save comments on each of these issues for another blog post.
If you’ve been injured on the ski hill, we can help. Call us today.
[1] Gilsenan v Gunning, 1982 CanLII 3139 (Ont HC)
[2] Lownds v Sperker, 2014 NSSC 405 at paras 81-84
[3] Trimmeliti v Blue Mountain Resorts Limited, 2015 ONSC 2301 at paras 56-64
ROBERT MURPHY
Rob attended law school at Queen’s University and graduated with his Juris Doctor in 2020. He summered at and completed his articles with Weaver, Simmons LLP, a full-service firm in Northern Ontario. During his articles Rob had the opportunity to see personal injury files from both the plaintiff side and the defence side. After articles, Rob practiced injury law and general litigation with Kelly + Kelly Lawyers in Pembroke, until Kelly + Kelly’s civil litigation practice joined Bergeron Clifford in 2023. Know More
