HOW RISKY IS SKYDIVING? LIABILITY WAIVERS IN HIGH RISK ACTIVITIES: HAYLEY MARKS V SKYDIVE HOLDINGS PTY LTD (2021) VSC 21
A woman who fractured her spine during a heavy landing following a tandem skydive from 13,000 feet, has unsuccessfully sued the skydive operator, Skydive Holdings Pty Ltd in negligence. The decision from the Victorian Supreme Court demonstrates the importance of understanding liability waiver clauses prior to engaging in risky activities. Despite the Plaintiff’s clear injuries, the Judge determined that the Defendant did all things reasonably necessary to avoid injury.
The Plaintiff booked two tandem skydives for $603 with Skydive Australia at Lilydale Airfield in the Yarra Valley to surprise her partner for his 30th birthday. Neither of them had been skydiving before they jumped on 18 August 2018.
The Supreme Court of Victoria heard the Plaintiff’s partner completed his skydive from 13,000 feet “without incident” but the Plaintiff and her instructor landed “very heavily”. The Plaintiff fractured her lumbar spine at the second vertebrae and required surgery to remove L2 and fuse L1 and L3.
The Defendant relied upon a waiver in the online terms as a Defence which argued was a complete bar to the Plaintiff’s claim. Further, the Defendant 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.”
Justice Richards found the waiver did not form part of the contract between Ms Marks and Skydive, and was not a bar to her claims.
Despite the lack of a valid waiver, Her Honour found that the heavy landing and resultant injuries were not the result of a failure by the diving instructor to exercise reasonable care. She found they were caused by an isolated downdraft. This is a risk inherent in the activity of skydiving and which could not have been avoided by the exercise of reasonable care.
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