Marks v Skydive Holdings Pty Ltd (VSC 2021)

Key Takeaways

This decision, which was handed down last month, highlights the importance of ensuring that waivers are brought to the attention of the customer and that they are read and acknowledged.

This case also illustrates the importance of obtaining consistent and credible lay and expert evidence about the risk of injury, particularly in claims which require specialist knowledge, and confirms that tandem jump skydiving can be an inherently risky activity dependent upon weather conditions that may change without warning.

Brief Facts

On 18 August 2018, Ms Marks and her partner were booked for two tandem jumps with Skydive Holdings Pty Ltd (‘Skydive’). Although her partner completed the skydive without incident, Ms Marks and her tandem skydive instructor (an employee of Skydive), Mr Dale, landed heavily (the ‘Incident’) resulting in injuries to her lumbar spine.

Ms Marks brought proceedings against Skydive in the VSC alleging negligence, breach of contract and breaches of consumer guarantees under the ACL. Ms Marks alleged that the Incident occurred as a result of Mr Dale’s failures to manage and control the parachute on landing and to take appropriate action in response to weather conditions.

Skydive relied upon a waiver, which it submitted was read and signed by Ms Marks prior to her jump. The waiver formed part of an online membership application with the Australian Parachute Federation (‘APF’) and Skydive submitted that all persons completing a skydive were required to become a member. Skydive’s online booking form asked that Ms Marks ‘aim to complete her APF membership before arriving at the jump’ and this form was accessible via hyperlink. The waiver was only electronic and the online membership form required a reader accessing it to scroll through, acknowledge its contents and answer safety questions as part of becoming a member.

Skydive also denied any fault. It contended that the Incident occurred due to an unfortunate, random event in the form of a short-lived and localised downdraft. In doing so, it relied upon a comprehensive panel of expert and lay witnesses that included Mr Dale, another instructor (who was an eye witness), a meteorologist and an independent skydiving expert. Skydive’s evidence supported the view that there was nothing Mr Dale could have done to prevent a slight misalignment of the parachute just before landing and, in any event, this was not causative of the rapid descent already underway as a result of the downdraft.

Judgment

Richards J found that the waiver did not form part of the contract. Her Honour was critical of the metadata and member record relied upon by Skydive stating that ‘merely answering those questions did not signify that Ms Marks accepted the terms of the waiver.’

Richards J also observed that it was ‘unfortunate’ that Skydive had not taken reasonable steps to draw the waiver and its terms to Ms Marks’ attention at the time of booking, or required her to read and acknowledge it prior to her jump, even though it had formed part of a third party (APF) membership application. Her Honour added:

‘Had the document been presented to Ms Marks when she made the booking, or at any time before her jump, she could have made an informed decision whether to assume the risks involved in skydiving.’

However, her Honour ultimately found that Skydive was not liable in negligence, contract or under the ACL.

Her Honour also found that liability in negligence was excluded as the harm occurred as a result of the materialisation of an ‘inherent risk’ pursuant to s55(1) of the Wrongs Act 1958 (Vic), which is a provision also included in the equivalent NSW legislation (s5 I of the Civil Liability Act). Both provisions define ‘inherent risk’ as ‘a risk of something occurring that cannot be avoided by the exercise of reasonable care and skill’.

In reaching her decision, her Honour accepted Skydive’s evidence which, in her view, established that the Incident was caused by an unfortunate, random event and Mr Dale ‘did the only thing he could reasonably have done’ in the circumstances.

Implications

Recreational activity suppliers are able to exclude, limit or modify their liability for personal injury through contractual waivers. This decision emphasises that an effective waiver must (apart from being appropriately drafted):

• form part of the contract for the activity;
• be brought to the attention of the customer; and
• be read and acknowledged by the customer.

This case also illustrates the utility and justifiable expense of carefully preparing lay and expert evidence, particularly where specialist knowledge is central to defining and understanding the risk of injury.