Taking a deep dive into waivers and inherent riskFeb 2021 | Insurance
In the recent case of Marks v Skydive Holdings Pty Ltd,1 as a gift to celebrate her partner’s 30th birthday, the plaintiff purchased two tandem jumps for herself and her partner from the defendant. Neither the plaintiff nor her partner had been skydiving before.
On 18 August 2018, the plaintiff and her partner arrived at the defendant’s Yarra Valley drop zone to complete the jumps. Unfortunately, the plaintiff and her tandem instructor landed heavily at the conclusion of the jump. Consequently, the plaintiff suffered a fracture to her lower spine requiring two surgical procedures. Although she made a good recovery, she reported living with constant pain and that she had become depressed and anxious following the incident.
The plaintiff initiated proceedings in the Supreme Court of Victoria against the defendant claiming damages in negligence, for breach of contract and for breaches of the guarantees under the Australian Consumer Law (ACL).
The issues before the Court included whether:
- a waiver formed part of the contract between the plaintiff and defendant (which if it did, would bar the plaintiff from making the claim against the defendant); and
- the defendant failed to exercise reasonable care and skill when performing the final approach to landing.
The defendant accepted that it bore the onus of proving that the waiver formed part of the contract between it and the plaintiff.
The waiver comprised part of an online membership application form with the Australian Parachute Federation (APF). A representative of the APF gave evidence that all persons were required to become a member of the APF through an affiliate club before performing any type of skydive. The defendant argued that the completion of an APF membership application by the plaintiff on 15 August 2018 was a condition precedent to the formation of the contract between it and the plaintiff.
However, it was revealed at trial that the APF and the defendant were separate entities. No evidence was tendered to explain the relationship between these two entities. Moreover, there was no evidence or records tendered by the defendant to show that it had reasonably drawn the plaintiff’s attention to the waiver that formed part of the APF membership application form, such as by including the application in the terms and conditions referred to in the defendant’s booking confirmation.
Accordingly, the Court was not satisfied that the defendant had reasonably drawn the plaintiff’s attention to the waiver and concluded that the waiver did not form part of the contract, especially in circumstances where the trial judge was not satisfied that the plaintiff had read or seen the waiver as part of the membership application process.
The plaintiff alleged that her tandem instructor failed to exercise reasonable care for her safety. She contended that he made an error of judgment in preparing for the final landing by failing to adjust to the prevailing wind conditions, and for failing to align the parachute with the wind. The plaintiff also adduced expert evidence from a skydiving expert, who opined that the instructor had time to alter his final landing approach and that he had failed to adjust to the wind conditions. However, it was revealed during cross-examination of the expert that he had not jumped since 1999 and that he was not a current instructor. Further, he acknowledged that he was not a qualified tandem instructor and that there were extra precautions to consider when performing tandem jumps, such as a higher descent rate with two people instead of solo diving. Ultimately the expert conceded that the instructor had done the best he could on the final approach to landing.
The defendant contended that the heavy landing was due to an isolated and localised downdraft which the instructor could not control, take reasonable measures to prevent, or foresee. The defendant called several witnesses to give evidence, including the plaintiff’s instructor, another tandem instructor employed by the defendant, and its own skydiving expert. In addition, the defendant relied on an expert report from a meteorologist, who confirmed that a localised and isolated downdraft had occurred around the time of incident. This expert explained that wind events of these nature are short-lived and limited in area and therefore are near impossible to forecast. The other instructor and skydiving expert called by the defendant both agreed that the plaintiff’s instructor did the best he could in the situation and that there was nothing else he could have done to minimise the impact of landing.
The Court was satisfied that the instructor performed the landing with due care and skill, including aligning with the wind and braking early to slow down the pair’s unusually fast decent. Moreover, it was found that the plaintiff and her instructor encountered unforeseen turbulence in the form of an isolated and localised downdraft.
In the circumstances, the plaintiff’s injury was found to be the result of the materialisation of an inherent risk in skydiving, which could not be reasonably foreseen, and therefore could not be avoided by the exercise of reasonable care. Section 55(1) of the Wrongs Act 1958 (Vic) was held to bar the plaintiff’s claim in negligence as it relevantly provides that a defendant is not liable in negligence for a plaintiff’s injuries in circumstances where the injuries are caused by the materialisation of an inherent risk, namely, the isolated and localised downdraft.
It was unnecessary for the Court to decide on the claim for liability for alleged breach of the guarantees under the ACL in circumstances where the plaintiff’s claim in negligence failed.
The proceeding was dismissed.
Although the decision in Rakich v Bounce Australia Pty Ltd2 was not considered by the Court, that decision, combined with this one, provide compelling support for the proposition that it is difficult for plaintiffs to establish liability in circumstances where they engaged in a recreational or sporting activity that carries with it an inherent degree of risk, that cannot be readily mitigated.
The decision also serves as a salient reminder to lawyers and insurers of the importance of instructing a suitable expert witness when conducting civil litigation – someone who possesses relevant and current specialist knowledge of the issues in respect of which they are being asked to provide an opinion.
1  VSC 21.
2  VSCA 289. And refer to the case note in our Injury Liability Gazette (9th edition), pages 28 to 29.
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