Jumping with reasonable care: The inherent risks of skydiving and waivers in Marks v Skydive Holdings Pty Ltd [2021] VSC 21

10 March 2021

A recent decision of the Supreme Court of Victoria raises important lessons for companies in the business of activities presenting inherent risks, particularly when it comes to requesting customers to sign waivers.

Facts

Hayley Marks took her partner skydiving for his 30th birthday. She and her tandem instructor commenced their jump, but they landed very heavily on the ground. Ms Marks suffered a fractured lumbar spine which required a fusion and corpectomy.

She commenced proceedings in negligence, breach of contract, and breaches of guarantees in the Australian Consumer Law (ACL) against the skydiving company, Skydive Holdings Pty Ltd (Skydive), for her injuries.

No liability in negligence: an inherent risk

The Court had to consider whether Ms Marks’ injuries were a result of a materialisation of an ‘inherent risk’ that could not be avoided by exercise of reasonable care. If they were, Skydive would have no liability in negligence by operation of section 55 of the Wrongs Act 1958 (Vic).

An inherent risk was defined in section 55 as a “risk of something occurring that cannot be avoided by the exercise of reasonable care”.

The Court found that there was no liability in negligence for Ms Marks’ injuries – they were a result of the materialisation of an ‘inherent risk’ associated with skydiving, that could not be avoided by the exercise of reasonable care.

Was reasonable care taken?

The Court ultimately found that there was nothing the tandem instructor could do to avoid the unfortunate heavy landing.

Ms Marks’ injuries resulted from the parachute’s “rapid, almost vertical descent“, caused by an “isolated, localised” downdraft (also known as a ‘sink’) that they encountered as they approached the landing zone.

The isolated downdraft was an “unfortunate random event” which produced a lull in the wind, leading to Ms Marks’ injuries.

The evidence did not indicate that the heavy landing or Ms Marks’ injuries were caused by the instructors’ failure to exercise reasonable care for her safety. As was established practice, the instructor aligned his parachute into the wind on his final approach and braked early to slow the parachute’s unusually fast descent. He did the only thing he could reasonably have done, the court said, which was to flare his parachute.

Despite the exercise of reasonable care, a risk materialised – albeit, an inherent one. As the court said, “turbulence is invisible and cannot be avoided; all that can be done by a parachutist who encounters turbulence is to react appropriately“.

Skydive were therefore not liable for Ms Marks’ injuries in negligence, contract or the ACL.

Waivers do not always work

This decision does, however, show that companies relying on waivers will not be protected from liability automatically.

Skydive attempted to use a waiver signed by Ms Marks’ as a complete bar to all of Ms Marks’ claims. It did not succeed on this issue.

This was because the waiver did not form part of the contract which Ms Marks entered into with Skydive on 1 August 2018, when she booked and paid for her and her partners’ respective tandem jumps.

Neither Ms Marks’ booking confirmation nor the terms and conditions she signed mentioned a waiver. The waiver wording was instead part of an application to become a member of the Australian Parachute Federation (APF), which she completed after entering into a contract with Skydive to go skydiving.

Lessons learnt

This decision is welcome news for skydiving companies, other companies that engage in businesses where there is inherent risk, and their insurers. It affirmed that skydiving presents inherent risks that cannot be avoided by the exercise of reasonable care.

Companies engaging in activities with inherent risks will not be liable in negligence if that inherent risk materialises and causes another person harm.

Whilst this decision was made under Victorian legislation, comparable provisions exist in other states in Australia. For example, there is a clause regarding “no liability for the materialisation of an inherent risk” in section 5I of the Civil Liability Act 2002 (NSW).

These concepts are closely interrelated with the notion of a “dangerous recreational activity” in sections 5J to 5N of the Civil Liability Act 2002 (NSW). Broadly, those sections provide that a person is not liable in negligence form harm suffered by another as a result of the materialisation of an obvious risk of a dangerous recreational activity. Whether skydiving is a ‘dangerous recreational activity’ was not considered in the Marks case (as the Victorian Wrongs Act does not have that concept), but we are of the view that a court would treat it as such, should similar facts arise in New South Wales and other States and Territories that have adopted that concept.

Another important issue is the question of waivers. It will be difficult to rely on a waiver if it is not adequately brought to the attention of the customer signing the waiver at the time a contract is entered into.

Please get in contact with our team today if you are (or are not yet) requesting your customers to sign waivers, so you can have comfort that your waiver forms an enforceable part of your contract.

This article was written by Simon Liddy, Partner and Lucas Moctezuma, Law Graduate.

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