In brief - Expert evidence proves crucial in negligence proceedings, while waiver found to have no effect 

In Marks v Skydive Holdings Pty Ltd [2021] VSC 21, Justice Richards in the Supreme Court of Victoria has dismissed a claim by a young woman who was seriously injured in a tandem skydiving accident, finding that the accident was not the result of negligence on the part of her instructor but the materialisation of an inherent risk that could not be avoided by the exercise of reasonable care. The case also involved consideration of the effect of a waiver document.

Woman injured by heavy landing sues Skydive for damages 

Marks and her partner made an on-line booking for two tandem jumps in the Yarra Valley with Skydive Holdings to celebrate her partner's birthday. Although neither had skydived before, they were given some training before Marks met her tandem instructor and then went up in the plane and jumped with her instructor at about 13,000 feet.

Marks and her instructor landed very heavily and Marks fractured her lumbar spine which required an L1-L3 fusion and an L2 corpectomy. While making a good recovery and now working full time, she lives with constant pain and has become anxious and depressed, and her activities have been limited.

She claimed damages from Skydive in negligence, breach of contract and for breaches of guarantees in the Australian Consumer Law. She alleged her injuries were caused by a lack of skill and care by her tandem instructor. 

Skydive denied fault and relied on a waiver as a complete bar to all claims.

Contract formed at moment of booking for service did not include waiver 

The on-line booking form referred to completion of an application for membership of the Australian Parachute Federation (APF) and terms and conditions but did not include a waiver.

The waiver wording was accessible via the APF hyperlink included in the booking form and must be acknowledged by the applicant in completing the membership form.

Justice Richards found that the waiver was not part of the contract that Marks entered into with Skydive when she booked as the contract was made at that time. The APF membership application was completed subsequently. Neither the booking confirmation nor the terms and conditions mentioned the waiver or required acceptance before performance of the contracted services.

Judge finds despite instructor exercising reasonable care, an inherent risk materialised

There was considerable evidence given, including video footage and from expert witnesses, relating to the circumstances of the accident.

It was clear that although the canopy was fully inflated, and Marks held her legs up in the landing position from about 15 metres above the ground, they descended very rapidly and landed very heavily with the canopy collapsing to the ground.

The judge found that the tandem instructor had aligned the parachute correctly into the wind but that the parachute encountered a downdraft or "sink" that was the cause of the rapid descent and heavy landing.

She was unable to find that the injuries were caused by any failure to exercise reasonable care to avoid a foreseeable risk of injury or to conduct the tandem jump with due care and skill.

Section 55 of the Wrongs Act 1958 (Vic) provides:

(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.

The judge found that the tandem instructor had reacted appropriately to the turbulence that was encountered and that there was nothing else he could have done to slow the descent. Despite the exercise of reasonable care the risk of harm materialised.

Accordingly, the proceeding was dismissed.

Lessons on inherent risk defence and contractual waivers

The case is a good example of the inherent risk defence, as well as the difficulties that can be encountered in seeking to rely upon contractual waivers if they are not adequately brought to the attention of the party providing waiver at the time the contract is entered into so that a fully informed decision can be made by that party before giving the waiver.

It also shows the importance of obtaining expert evidence about inherent risks involved in certain activities, where negligence is in issue.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2021.

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