Court dismisses skydiving claim: no waiver but also no breach Lenon v Australian Skydive Pty Ltd [2023] VCC 1255 (25 July 2023)

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By Stuart Eustice, Partner, Holly White, Associate, and Emily McDougall, Law Graduate

Factual Background

In 2017, the plaintiff, Alexandra Lenon, undertook a skydiving course conducted by the defendant. In signing up she paid a $247 deposit and completed induction paperwork which included acceptance of the defendant’s “terms and conditions”, including a waiver. On 11 February 2017, the plaintiff underwent training and subsequently jumped four times. In March 2017, she jumped for a fifth time during which she landed badly and was injured.

Legal Issue

The plaintiff alleged negligence against the Defendant. The existence of a duty of care was not disputed. Particulars of breach included providing a harness which was too tight, inadequate training, failure to properly pack the pilot chute and providing faulty equipment. As a consequence of which it was alleged, she lost consciousness and landed badly suffering injury.

The Court determined there were three issues of critical importance:

  1. when the contract between the plaintiff and the defendant was formed. This was important as the date of formation determined whether certain waivers had any legal effect.
  2. whether the plaintiff’s pilot parachute deployed because of improper packing or the use of defective equipment.
  3. whether the plaintiff lost consciousness as she descended in her parachute as a result of suspension trauma caused by a tight hardness.

Decision

In considering liability, the Court made the following findings –
  1. a binding contract was formed on 7 January 2017, prior to the plaintiff accepting the terms and conditions. As there was no consideration for the plaintiff accepting the terms and conditions, they had no contractual effect. Therefore the waiver did not form part of the contract and did not prevent the plaintiff maintaining her action;
  2. the uncommanded and premature deployment of the parachute was not due to its inadequate securing within its spandex pouch; and
  3. the plaintiff’s actions during landing were in accordance with normal procedure and the plaintiff could not establish that she lost consciousness prior to landing. The plaintiff performed the manoeuvres expected of a conscious parachutist as she came into land.
The Court dismissed the plaintiff’s claim and held that none of the alleged breaches were established. The Court found that:
  • The plaintiff’s harness was not too tight;
  • The plaintiff’s training was fulsome and not inadequate;
  • The possibility of uncommanded deployment of the parachute only occurs in more dramatic circumstances than those in this matter;
  • The chute was property packed and was not faulty.

Our Comments

The operation of a waiver in such activity is of much interest. The court however considered the waiver did not form part of the initial contract for services entered into on 7 January 2017. Whilst a novel approach to the issue in itself, there will always be difficulty excluding someone’s rights in the performance of known risky sporting activities.
For further information, please do not hesitate to contact us.

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