Last month the Quebec Court of Appeal handed down a judgment dealing with the duty of safety of ski resorts that offer skiing lessons to young children. In Les Stations de la vallée de St-Sauveur inc. v. M.A., the Court considered the duty owed by the operators of a downhill ski school in supervising pupils.
The underlying case involves youngsters enrolled in a ski school during January of 2003. M.A. and N.A. took their minor children X and Y to Mont Olympia, a ski resort north of Montreal managed by appellant Mont Saint-Sauveur International (“MSSI”). Both children were registered for group ski lessons under the supervision of appellant Les Stations de la Vallée de Saint-Sauveur inc. (“Stations”), a wholly-owned subsidiary of MSSI. X, who was nine years old at the time, had only started skiing the previous season and had always skied with an adult. Based on representations made by his parents when registering X by telephone, Stations had registered X as a novice skier. The group he joined consisted of eight other children of about the same age and level of proficiency (step 1 and step 2 skiers). The 17-year-old instructor held a Canadian Ski Instructors Alliance certification, but only had a year of instructing experience.
At the end of the day’s lesson, the group and the instructor were at the top of the hill preparing to ski down to meet with the parents at the base of the hill. The run was classified as “easy” and was often used for ski lessons due to its gentle slope; however, one of the children began to cry and refused to ski down. The instructor then told the remaining children to continue down on their own to the meeting point. From where the instructor stayed with the reluctant child, she could not see either the base of the slope or the meeting point.
As he skied down, X lost control of his skis and went off the trail. He was found lying in the woods. The ski patrol rendered immediate first aid and he was rushed to hospital. He had sustained a cranial fracture, swelling and severe brain lesions (his helmet was shattered). Both lungs were punctured. His heart failed for 18 minutes. After he was resuscitated and stabilized, X underwent specialized cranial and neurological surgery, following which he was in a coma for 13 days. As a result of his neurological injuries, X has significant cognitive disabilities that will permanently affect his ability to earn a living.
On their own behalf and on behalf of their two children, X’s parents sued appellants on the ground that, as the manager of the ski hill and the operator of the ski school, they were liable for X’s injuries. In Canada, these matters are tried to a judge and in this case the judge found that appellants, through the instructor, had failed to discharge their obligation to ensure the children’s safety. The court held that this fault was the direct cause of X’s injuries and consequently appellants were liable to make full reparation to both X and his parents. Appellants were ordered to pay X’s parents $2,364,169 in their capacity as tutors to a minor, and damages of $134,162 to the father and $206,835 to the mother in their personal capacity, with interest and the additional indemnity calculated from 2003. The total award, with interest, now amounts to over $4.1 million.
The appellants argued that since the parents chose a group lesson, constant supervision could not be expected. The appeals judge reasoned that even though one would expect that a child would receive less personal attention from the instructor in a group lesson, there was nevertheless an implied agreement in the contract between respondents and appellants that X would not be required to complete an unaccompanied run. To find otherwise would be to deny the expectations of those registering children for ski lessons. Although the respondents had tacitly accepted the inherent risks of downhill skiing by registering their children for the course, their expectation that the instructor would constantly supervise X’s downhill runs was legitimate.
For these reasons, the Court found that the appellants had failed in their duty of safety owed to the respondents due to the instructor’s failure to provide adequate supervision of X. The appeals court also upheld the fining of a causal link between this failure and the injuries sustained by X, since evidence was presented that if the instructor had not stayed behind with the other child, she would have led her pupils down by a safer route, far from the spot where X fell.