Waivers, weather and a win for a skydiving company sued when a tandem skydive went wrong

23 February 2021

In Issue

  • Whether the defendant skydiving company could rely on a waiver of liability
  • Whether a heavy landing from a skydive was caused by negligence
  • Whether the injuries sustained were the result of the materialisation of an inherent risk of skydiving

The background

On 1 August 2018, the plaintiff, Ms Hayley Marks, completed an online booking form through the website of the defendant, Skydive Australia (Skydive), which is operated by Skydive Holdings Pty Ltd, for two tandem jumps as a surprise birthday present for her partner Mr Cummins. The online booking form and the terms & conditions attached to it did not include a waiver. The online booking form indicated that a 3 month membership of the Australian Parachute Foundation (APF) was included in the cost, and contained a hyperlink to the APF website with a request to “aim to complete” membership prior to booking. The APF website contained numerous drop down links including to a waiver of liability.

On 18 August 2018, Ms Marks and Mr Cummins went to the Lilydale airfield in the Yarra Valley, where they checked in for their jump. Ms Marks and Mr Cummins were clipped on to the front of their tandem instructors, before each pair jumped out of the plane at an altitude of about 13,000 feet. Mr Cummins completed his jump without incident. A short time later, Ms Marks and her instructor Mr Dale landed very heavily. Ms Marks fractured her lumbar spine at L2, for which she later required surgery. Although she has returned to full-time work, she lives with constant pain and is unable to do many things that she used to do. She has also become anxious and depressed.

Ms Marks commenced proceedings against Skydive claiming damages for breach of contract, and for breaches of guarantees in the Australian Consumer Law (ACL). She alleged that her injuries were caused by a lack of care and skill on the part of Mr Dale. Skydive relied on the waiver, which it claimed was a complete bar to all of Ms Marks’ claims. It denied any fault, and contended that the heavy landing was due to an unfortunate, random event in the form of a short-lived, localised downdraft.

The decision at trial

The plaintiff’s claim was dismissed.

In relation to the waiver, the court noted that neither the booking confirmation nor the terms and conditions mentioned the waiver or required Ms Marks’ acceptance of it before Skydive provided services under the contract. The waiver formed part of the membership records of a separate entity, the APF, which Skydive asked Ms Marks to join before undertaking her jump. The court rejected Skydive’s argument that becoming a member of the APF was a condition precedent to the formation of the contract because that was inconsistent with the words used in the booking confirmation and the terms and conditions. There was no evidence that anyone associated with Skydive checked that Ms Marks had become a member of the APF, or accepted the waiver, before her jump. The booking confirmation presented membership of the APF as an added extra included with the booking. The metadata evidence indicated that the waiver had not been read and agreed to by anyone. In any event, the court was not satisfied that Ms Marks would have understood she was waiving her rights to make any claim against Skydive by completing the APF membership application form, including by answering the safety questions. Skydive and the APF are separate entities, and the relationship between them was not explained by the evidence.

Rather than including the waiver in the contract, Skydive sought to rely on a document that (on its best case) was made available to Ms Marks on a third party’s website after she had made the booking. In those circumstances, Skydive could not rely on the waiver unless it had done what was reasonable to draw the waiver and its terms to Ms Marks’ attention. The evidence did not establish that it did. The waiver therefore did not form part of the contract between Skydive and Ms Marks, and could not be relied upon by Skydive as a bar to Ms Marks’ claims.

As to liability, after considering the lay and expert evidence, the court concluded that there was no failure on the part of the instructor or Skydive to exercise reasonable care to avoid a foreseeable risk of injury. The effect of this finding was that liability for the injuries was excluded by s 55(1) of the Wrongs Act 1958 (Vic) because the injuries were the result of the materialisation of an inherent risk of skydiving, which could not be avoided by the exercise of reasonable care. As explained by the expert evidence, turbulence is invisible and cannot be avoided; all that can be done by a parachutist who encounters turbulence is to react appropriately. Mr Dale reacted to the downdraft by flaring his canopy, which was the correct response in the circumstances. There was no suggestion that he had braked too late or too slowly. There was nothing else he could have done to slow the rate of descent. Although he exercised reasonable care, the risk of harm materialised.

Implications for you

This case illustrates the need to ensure waivers of liability form part of the relevant contract, and that the attention of the contracting party is specifically drawn to them. The case also highlights that a lack of care is necessary for a finding of liability to result from injuries sustained in a high- risk activity. The more appropriately qualified expert evidence called by the defendant, both as to the impact of unforeseen weather conditions, and also as to the techniques used by the instructor, was instrumental in influencing the court to accept that nothing more than what was done by the instructor, could have been done to prevent the plaintiff’s injuries.

Marks v Skydive Holdings Pty Ltd [2021] VSC 21

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