The Queensland Court of Appeal dismissed an appeal brought by a student skydiver who sustained serious leg injuries during a solo jump conducted as part of an accelerated free fall course. The decision provides useful guidance for recreational activity operators (and their insurers) regarding:

• the identification of risk in negligence claims involving high risk sporting activities;
• the significance of a participant’s own actions in establishing causation;
• the scope of the inherent risk defence under s 16 of the Civil Liability Act 2003 (Qld) (CLA); and
• the assessment of economic loss where a claimant has a sporadic employment history.

Facts

The appellant, a parachute packer and member of the Australian Parachute Federation, undertook a solo skydive on 30 October 2016 as part of a course offered by the respondent. He had previously completed two uneventful solo jumps.

On the relevant jump, the appellant landed away from the designated landing zone, touching down on a gravel runway. He suffered spiral fractures to his right tibia and fibula. He alleged that the respondent’s instructors failed to properly direct him during the descent and failed to instruct him to fully flare the parachute at the appropriate time.

The respondent contended that the appellant landed contrary to his training by extending his right leg, rather than landing with legs together and knees bent, and that this action caused the injury.

Primary Decision

The trial judge accepted the instructors’ evidence and video footage showing the appellant reaching out with his right foot immediately before landing. The judge found:

• the appellant had been properly trained in the correct landing technique, including the parachute landing roll;
• the respondent breached its duty by allowing the appellant to fly over the runway contrary to its operations manual; but
• the breach did not cause the injury. The appellant’s incorrect landing technique was the operative cause of his injury.

The trail judge also held that the respondent had established defences under section 16 (inherent risk) and 19 (obvious risk of a dangerous recreational activity) of the Civil Liability Act 2003 (Qld) (CLA) and assessed damages on a contingent basis.

The Appeal

Causation

The appellant argued that the trial judge misidentified the relevant risk and wrongly treated his landing technique as determinative. The Court of Appeal rejected this, holding that:

• the manner of landing was ‘central to the cause of injury’;
• the medical evidence supported the conclusion that the spiral fractures were consistent with a twisting mechanism caused by the appellant extending his right leg; and
• there was no evidence that landing on a different surface would have avoided the injury.

Accordingly, the appellant failed to prove that any breach by the respondent caused his harm.

Australian Consumer Law (ACL)

In light of the Court’s findings on causation, the claims in respect of breaches of guarantees implied by the ACL also failed. The Court held that the injury was not caused by any failure to provide the services with due care and skill (section 60) or that the services were not fit for a disclosed purpose (section 61).

Inherent Risk Defence (CLA Section 16)

The appellant argued that the inherent risk was mischaracterised. The Court rejected this, confirming that:

• an inherent risk is one that cannot be avoided by reasonable care;
• the relevant risk was the risk that a student skydiver might land contrary to training; and
• the respondent could not have prevented the appellant from extending his right leg.

Accordingly, the Court found that the inherent risk defence under section 16 was properly made out.

Obvious Risk of Dangerous Recreational Activity (CLA Section 19)

The appellant argued that the primary judge erred in finding that skydiving was a dangerous recreational activity as he was undertaking the course with a view to obtaining employment as a camera operator in the skydiving industry.

The Court rejected this argument, finding that the appellant undertook the jump partly for enjoyment. Accordingly, the injury had been suffered while the appellant was engaged in a dangerous recreational activity and the obvious risk defence in section 19 had been properly made out.

Assessment of Damages

Although unnecessary to the outcome, the Court addressed the issue of discounting of damages for economic loss for contingencies. The Court held that:

• the 20% discount applied to past economic loss was too low in view of the appellant’s sporadic work history and preexisting issues. A 30% discount was appropriate; and
• the 30% discount applied to future economic loss at trial was upheld, as the appellant had demonstrated an ability to obtain varied employment post injury.

Commentary

This decision is significant for operators of high-risk recreational activities, as it highlights that:

• participant error can break the chain of causation, even if some breach of duty can be established;
• inherent risk defences are available where the harm arises from the injured participant acting contrary to training provided by the operator;
• proper training and clear evidence of instruction (including video footage) are powerful tools in defending liability claims; and
• a discount of 30% for contingencies in respect of economic loss may be appropriate where a plaintiff has a sporadic work history, particularly if there are periods of voluntary unemployment or pre-existing illness.

While this case dealt with a skydiving injury, the Court of Appeal’s decision has a general application to all injury claims as it illustrates the importance of close analysis of the injury mechanism, particularly whether the harm results from the injured participant’s own actions rather than any deficiency in the operator’s conduct.

This article was written by Matthew Brooks, Partner, James McIntyre, Special Counsel and Aaron Lim, Graduate.