Lenon v Australian Skydive Pty Ltd

[2023] VCC 1255

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CI-19-01601

ALEXANDRA LENON	Plaintiff
v
AUSTRALIAN SKYDIVE PTY LTD	Defendant

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	15, 16, 17, 18, 21, 22, 23, 24, 25 & 28 February 2022
DATE OF JUDGMENT:	25 July 2023
CASE MAY BE CITED AS:	Lenon v Australian Skydive Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VCC 1255

REASONS FOR JUDGMENT
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Subject:CONTRACT - NEGLIGENCE

Catchwords:               When contract formed – whether parachute deployed due to improper packing or inadequate securing within the pouch – whether Plaintiff lost consciousness before landing – credit and reliability of Plaintiff – voluntary assumption of risk

Legislation Cited:      Evidence Act 2008 (Vic); Wrongs Act 1958 (Vic); Competition and Consumer Act 2010 (Cth); Goods Act 1958 (Vic)

Cases Cited:Pell v R [2019] VSCA 186; Marks v Skydive Holdings Pty Ltd [2021] VSC 21; Pell v R (2020) 376 ALR 478; Jones v Dunkel (1959) 101 CLR 298; Owners Corporation No 1 v LU Simon Builders Pty Ltd [2019] VCAT 286; Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 122; Carey v Lake Macquarie City Council [2007] NSWCA 4; Roggenkamp v Bennett (1950) 80 CLR 292; O’Donnell v Reicard [1975] VR 916; Wyong Shire Council v Shirt (1980) 146 CLR 40

Judgment:                   Plaintiff’s claim is dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J. Simpson with Mr P. Mileto for judgement	Slater & Gordon Lawyers
For the Defendant	Ms R. Annesley QC with Ms L. Glass	Lander & Rogers

HIS HONOUR:

Introduction

1Skydiving is a hazardous sport yet a large number of people engage in it around the country. In 2017, Alexandra Lenon wanted to skydive. She entered a course conducted by the defendant. It comprised instruction and nine jumps. She underwent training and jumped four times. In March 2017, she jumped for a fifth time. Unfortunately, she landed badly and was injured. She seeks damages from the defendant. The vast bulk of the oral evidence given went to the issue of liability. Apart from Ms Lenon’s oral evidence, the evidence concerning her damages was largely in the form of medical and like reports.

2Although the defendant identified various factual issues requiring determination for the purposes of liability, there are really only three issues of critical importance:

(a)   when was contract between Ms Lenon and the defendant formed. This is important for the date of formation determines whether certain waivers have any legal effect.

(b)   whether Ms Lenon’s pilot parachute deployed because of improper packing or the use of defective equipment.

(c)   as she descended in her parachute, whether Ms Lenon lost consciousness before landing on the ground.  

3Each of the issues involve the credit and reliability of witnesses, especially the last two. As often happens in these kinds of cases, the credit of Ms Lenon as a witness was an important issue. 

4Including Ms Lenon, there were seven witnesses who gave evidence. It may be easier for readers of these reasons if I briefly describe each at this early stage:

(a)   Alexandra Lenon is the plaintiff in this proceeding. She is now 28. On the day of the accident, she was 22. As to the events of that day, she was one of three witnesses who told me what occurred.

(b)   Clyde Summers is now retired. Apart from extensive experience in the sports and recreational industries, he has had very extensive experience as a parachutist and in the parachuting industry generally. He gave evidence as an expert witness on behalf of Ms Lenon.

(c)   Alan Garner is an associate professor of medicine. He is an emergency physician with a sub-specialisation in trauma and retrieval. He gave evidence on behalf of Ms Lenon.  

(d)   Bernard Armstrong is now, and was in February and March 2017, the operations manager of Australian Sky Dive, also known as Sky Dive Torquay, as well as a tandem master, a senior accelerated free-fall instructor and a drop zone safety officer. Then, he also taught some of the courses. He has had over 3,000 parachute jumps. He gave evidence on behalf of the defendant. In particular, he was present on the day of the accident and gave evidence of what he saw.  

(e)   Amanda Leckie was employed by the defendant at Torquay as a parachuting instructor. She is an experienced parachutist and instructor. She gave evidence on behalf of the defendant. She was Ms Lenon’s instructor on the day of the accident.  

(f)    Thomas Fletcher is a senior instructor in sky diving. He has extensive experience as a skydiver and as an instructor. He is highly qualified extending to the packing of parachutes (including emergency parachutes) and maintaining equipment. At the request of the defendant, he prepared two reports which were admitted into evidence. His opinions were based on a series of factual assumptions which were set out in a letter from the defendant’s solicitors.[1]

(g)   Alexander Richardson is a consultant intensive care physician. He is an experienced parachutist but not an instructor. He gave expert evidence on behalf of the defendant. 

[1]         Appendix 2 to the report dated 14 October 2020. 

Circumstances  

5Ms Lenon is now 28. She is single. She has an older brother and a younger sister. She now works three days a week as a substitute teacher arranged through an agency, ANZ UK.

6Ms Lenon grew up in Gosford. Her father ran a camper trailer business. Her mother worked in public service administration. The relationship between the parents was not good with her father yelling a lot and was cruel to her mother. The parents separated when Ms Lenon was 17 with the children staying with their mother.

Education  

7During her secondary education, Ms Lenon tried hard and her marks were in the B and C levels. She considered herself as “dumb”. She completed Year 12 in 2012, attaining a mediocre score in her Higher School Certificate. Ms Lenon puts the poverty of her score down to a poor result in the examination for a religious subject.    

Army

8After leaving school, in 2013, Ms Lenon joined the Australian Defence Force. For the first three months, she undertook rigorous basic training at Kapooka. After successfully completing this training, she was posted to Albury/Wodonga to train as an administration clerk. After two months of training, she was posted to Darwin.  

9In Darwin, she was assigned to a mainly female unit. Due to her appearance, she was bullied and found the experience quite traumatic. She no longer wished to remain in the Army. Although her wish was to be discharged honourably, in January 2014, she was dishonourably discharged for failing a drug test.[2] I will return to the circumstances of her discharge from the Army when dealing with the question of her credit. 

[2] I granted Ms Lenon a certificate under s 128 of the Evidence Act 2008.

10Like some of her age, Ms Lenon has a history of using licit and illicit drugs. Her preferred drug is cannabis. She first drank alcohol at 16. She drank a lot in Darwin for there was a “drinking culture” there. She tried LSD at 17. She used “party drugs” while in the Army, being cocaine and MDMA but not cannabis.

11She stopped using cannabis before the accident. She resumed afterwards using it to stop her headaches and also used drugs recreationally with her friends. In July 2017, when she attempted suicide, she was using cannabis.

12While in the Army, she undertook a detoxification programme in a hospital. She was prescribed and took a medicine there.   

After the Army

13After leaving the Army, she applied to join the Australian Federal Police but was told she was too young. She was interested in university but before approaching a university she completed a security guard course and obtained a licence. Despite the licence, she thought herself too smart to be doing that work, but completing the course gave her confidence:[3]

“I can do something with myself. And I came to the idea of becoming a teacher.”

[3]         Transcript (“T”) at p 265.

14Ms Lenon came to Melbourne and enrolled in a diploma of education at the TAFE part of Victoria University, which she completed. She then enrolled in a bachelor of education degree at the Victoria University, specialising in humanities and business. 

15During the first three years of her course, Ms Lenon was physically active and enjoyed an active social life. At the time of the accident, she was in the first semester of her fourth year. She was studying up to 40 hours a week. This included face to face study placements and online assignments.

16Apart from her study, Ms Leno was working in an afterschool programme, four days a week and three hours a day. She was caring for kindergarten and primary school students.  

17At the time of the accident, she was in a relationship with Aaron. The accident led to the end of the relationship six months later because of her mood swings and other symptoms.

Skydiving

18In February 2017, the defendant operated the business called “Sky Dive Torquay”. The business was conducted at the Torquay airport. On 19 March 2017, Mr Armstrong was the operations manager of the business at Torquay and also the “Drop Zone Safety Officer” (DZSO).  

19Ms Lenon was interested in skydiving. Her interest was sparked by watching the remake of the film, “Point Break”:

“I saw all the cool things they were doing and I thought I would love to give that a try”.[4]

[4]         T120.

20Ms Lenon was not entirely new to sky diving. At 17 or 18, she tried tandem jumping once and enjoyed it. Even then, on the basis of what she was told, she realised parachuting was a dangerous sport where a person could be injured or killed. Although Ms Lenon did not want to do all of the things the persons in the film did, she knew what she had in mind was dangerous with the same risk of injury or death. Since the accident she has lost interest in such activities.

7 January 2017

21On 7 January 2017, Ms Lenon googled sky diving courses. She found two courses, one of which was conducted at Torquay. She phoned the Torquay course and was given some information. She then “signed up” for the accelerated free-fall skydiving course online. This involved giving information about herself, making a booking and paying what she believed was a deposit and part payment of $247. Her records show this payment was deducted from her bank account on 11 January 2017. To her, the payment secured her place in the course starting on 11 February 2017. She does not know whether she “signed” any terms and conditions at the time. 

9 February 2017

22On 9 February 2017, Ms Lenon completed a form online. The form was for her membership of the Australian Parachute Federation. It came to be described in the evidence as the “APF application”. To complete this application required completing a series of “drop down screens”. One of those screens was entitled “club waiver”. In order to proceed to the next screen, one had to “tick” or confirm the previous screen. She skimmed through this document. She did not understand all of its contents. However:[5]

“I know I cannot proceed to do the jump without confirming that I understood it. So that’s why I pressed the tick button and then went ‘Next’ because it was a requirement in order to do the jump“.

[5]         T514.

23The form excluded the operation of the Australian consumer law and the exclusion of liability regarding parachuting. This form was described in the evidence as a “waiver” or “club waiver”.

24Before her first jump, Ms Lenon was issued a student licence, dated 11 February 2017 and valid to 30 April 2017. To her, the licence meant she was a member of the Australian Parachute Federation.

11 February 2017

25On Saturday, 11 February 2017, Ms Lenon drove to Torquay, arriving at the airport at about 8.00am. There were six other attendees. By hand, she filled out a form containing largely her personal details.[6] A receptionist directed her to one of two iPads and asked her to compete another lengthy form. She skimmed through the document because there were people waiting behind her. The document contained many terms which she did not understand. Despite not reading the document thoroughly, what she did read left her with the impression:[7]

“I understood as many words as I could understand. I understood that, you know, this was in place so they couldn’t get sued and it protected them with a risky activity. That’s what I understood from signing this waiver”. 

[6]         Exhibit A.

[7]         T515.

26A copy of this document was exhibited.[8] At the top of its first page appears this entry:

“Club Waiver – 09/02/2017  Australian Skydive  (APF Admin Code TORQ)”. 

[8]         Exhibit C.

27Despite the date, Ms Lenon is adamant she signed this document on 11 February. That day, she made a second payment of $277.[9]  To Ms Lenon, the cost of the theoretical training and the first jump was $494. This sum may or may not have included $30 payment for insurance. 

[9]         Exhibit J.

28Also that day, Ms Lenon started her training in a large shed, divided into sections with a section for students. Their main instructor was Mr Armstrong, although others instructed. 

29Ms Lenon was given a booklet entitled “Australian Skydive Accelerated Freefall Jump Course”.[10] It consists of a large number of power point screens. The training was divided into units. At the end of each unit, Ms Lenon was tested. She passed all of the tests. Apart from giving her the skills, the purpose of the training was to gain a class A licence from the Australian Parachute Federation. To Ms Lenon, this would enable her to pack her parachute and jump anywhere in the world.

[10]        Exhibit 3.

30By the end of this instruction, Ms Lenon was prepared to make solo parachute descents and landing unassisted. She did not want more training on that subject.

31In March 2017, Mr Armstrong was a course facilitator or instructor for the accelerated free-fall course. There were no more than eight students. Typically, the course runs for eight or nine hours. It started on  the Saturday, with revision on the Sunday, and the first jump that day.  

12 February 2017

32On Sunday, 12 February, there was revision of what was taught on the first day followed by practical training. Ms Lenon was shown how to put on the parachute and adjust its straps. Each student was suspended in a parachute harness. Although Ms Lenon had hoped to have her first jump that day, she did not through unsuitable weather conditions.

33Before allowing Ms Lenon to jump, she took a test. It is entitled “Appendix C, pre first jump assessment”. It contained a series of questions. Her answers were assessed as satisfactory.   

34In the context of this case, question 18 read: “What do you do if have NO jump masters at your side after exit?”. Her evidence about her answer:[11]

“if you lose them [the instructors] they ask you what would you do. And you’re meant to arch and pull without hesitation I’m assuming is deploy your parachute”.

[11]        T142 and T455.

35Question 19 was answered in a similar way.       

36One of the questions emphasised the need for a student skydiver to know his or her height throughout the fall by constant checking of the altimeter. The altimeter is like a large watch, strapped to the wrist.

37Overall, as far as Ms Lenon could tell, the training was comprehensive:[12]

“And you were particularly confident in dealing, I suggest with emergencies if and as they arose? – Yes, we were taught extensively on what could happen in any situation up there”.

[12]        T459.

38This examination did not have any question about what a parachutist should do if an early deployment occurred. Mr Fletcher noted this examination was based upon the sample assessment published in the APF’s Training Operations Manual, which did not contain any such question. He noted the training manual of the United States Parachute Association contained similar scenarios to those told to Ms Lenon about early deployment (i.e. her parachute inflating within the plane, loss of both jumpmasters). It was not more extensive because he believes early deployment is not viewed as an emergency and a lack of examination questions is “perfectly reasonable and understandable”.[13]

[13]        Report dated 20 October 2020 at [13.9].

39As a student, Ms Lenon trusted her instructors for she was learning a skill in what she knew was a very risky exercise.

40The training occupied eight hours. There was training before and after each jump. She was told early deployment could happen and was told to fly the parachute normally. She was taught the course proposed by the APF and that is reasonable.

Jumps

41The training schedule for Ms Lenon comprised 9 stages. Exhibit 3 describes each stage[14]. She achieved stages 1 to 4. At stage 4, she had one, not two, jumpmasters with her. In stages 1 to 4, she deployed her own parachute. She was taught about her equipment. She was taught how to deploy the main parachute by using the pilot chute:[15]

“Q: And you would do that by pulling a handle which would activate the pilot chute? – Well, you have to throw it out, you can’t just pull it out. There needs to be some force. But yeah, that orange thing there is the throw away”.

[14]        At p 8.

[15]        T434.

42She was taught if she lost one of the two jumpmasters she continued normally obeying the instruction of the remaining person. If she lost both then she was to deploy immediately and descend normally. She was taught how to arch her body after leaving the plane:[16]

“Q: If you’re not arching enough, you’re taught your instructor will shake you twice or more, or shake you; and that tells you to arch harder, correct – Correct.”  

[16]        T448.

43The theoretical instruction was detailed. It included being taught about their equipment, checking the parachute, what could go wrong in the air and the use of the life jacket where you landed in the water. Many scenarios were discussed including if a parachutist was caught in a powerline and the use of the emergency parachute if the main parachute did not open.

44There was instruction about early deployment by the instructor and gave the example:[17]

“…so that if you’re jumping with your instructors and you’re doing something wrong and they need to deploy your parachute. In that sense they spoke about early deployment”.

[17]        At pp 185-186.

45She did not believe there was a discussion about the unexpected deployment at 14,000 feet instead of 4,000 feet. To Ms Lenon, it is unclear whether she was instructed about what to do with an early deployment of the parachute. She did recall it was discussed as to its happening. She does not recall any discussion about an involuntary early deployment.

First jump    

46Before her first jump, Ms Lenon travelled to Torquay to jump but the weather was unfavourable. She was unsure how many times that happened. Her first jump occurred on 23 February 2017. She jumped from a plane, designated 182, and used a main parachute called a Sapphire 230. She jumped from a height of 10,000 feet.

47Before the plane took off for this jump, Ms Lenon waited one or two hours before the wind speed dropped below 20 kilometres per hour. While waiting, an instructor took Ms Lenon through what needed to be done for the jump “…with your first jump there was a lot of time spent on reflecting what you’re meant to do”,[18] including practising the jump on a “flat chair”. The parachute was chosen by her instructor. After putting it on, its fitting was checked by her instructor. 

[18]        T154. 

48Her first jump was not good. She did not arch when she left the plane. She started tumbling. She felt scared but was comforted by the presence of the two instructors, attached on either side of her.  Ultimately, she did arch properly and deployed her parachute without the intervention of her instructors.   

49Ms Lenon kept a log book where she entered details of her jumps.[19]  For this jump, she noted in a series of dot points:

“Good climb out. Need stronger count. Didn’t arch on exit but came out of it shortly after. Good PRP’s. Good height awareness. Need to bring legs closer together. Good deployment. Followed TA well”.      

[19]        Exhibit F.

Second jump 

50Ms Lenon’s second jump occurred on 9 March 2017. Again, she noted in her log book:

“Exit: Climb out good, good count, nice exit. First PRP – good not rushed. Della – good arms, good legs came out 7500 – 8000 ft. Good height awareness. Knees in on deployment. Capony (sic.) control good. Good jump overall but arch harder”. 

51She paid for this jump after she had jumped. The fee was between $250 and $400. To her, this was a much better jump although her instructors advised she should arch her body more.

Third jump  

52The third jump occurred on 18 March 2017. This, and the following two jumps, occurred at 14,000 feet. Her log book entry was more extensive than the first two:

“Good exit and good count. Great arch on exit, very smooth. Found BOC without assistance. Turn to JM ‘how are legs’ adjustments given & …. To, close knees single...and straighten legs, adjusted to both then legs open wide again. Alti check, turn to JM, wm(?) check, good arms, JM2 moved to front offered arch single & bring knees closer. Locked on alti at 6000 ft…5500 ft. lost position body on deployment (must maintain …position & arch on deployment). Good under TA. Safe landing on feet”.    

53There is a further entry: “Try stage (4)” and a drawing of a smiley face.

Fourth jump

54The fourth jump also occurred on Saturday, 18 March. Her entry reads:

“Exit, don’t hold …, but good exit. Good PRP check. Turn to JM ‘how are legs’ adjustments given &…too (knees still too wide). Arms check – good. When JM came to the front had same levels but worked it out good hover control and heading control once realised on deployment …previous problems. Good [canopy] control. Stand up landing by myself. Pass stage 5 next”.

55After this jump, Ms Lenon was asked about how reliant she was on her jump instructors:[20]

“A: Still heavily reliant on them, still training. I am not up to solid jumping yet and I’m still not like a fantastic jumper. Like my knees are still too wide. Like, I’ve got to make all these adjustments. So I still need their help. I’m still relying on them”.

It is noteworthy Ms Lenon landed by herself.

[20]        T166.

56For each of the first four jumps, an instructor has signed her log book entry and put his or her APF number beside the signature.

Fifth jump

57On Sunday, 19 March 2017, Ms Lenon undertook her fifth jump. She was excited. The day was beautiful. The wind speed was low. There were many jumpers that day. There were more than 60 tandem jumpers and a number of “fun” jumpers. She was the only student jumper. Her confidence was such she elected not to have target assistance on this jump. That is, a person on the ground directing her about the landing. She waited one or two hours before entering the plane.

58Despite the promise a trainee sky diver would wear a radio helmet to enable communication between the ground and the sky diver, none was provided for this jump. The promise is contained in the defendant’s pamphlet “Learn to Skydive” and says[21]:

“We provide you with a radio helmet to wear so once you have done your jump and deploy your own canopy, we will give you instructions on how to steer your canopy and land safely. Once you feel confident to fly the canopy without the radio, you need to make 10 stable landings within a 25 metre target to achieve you’re a licence. This is up to the individual student, everybody is different”.    

[21] Exhibit G.

59Mr Armstrong said the defendant had two planes for its courses: a single propeller 182, which held four passengers; and a single propeller 208, which held 16 passengers. Both have carpeted floors. The larger plane has bench seats either side of the carpeted floor.

60On 19 March 2017, Ms Lenon flew in the larger plane. As the drop zone safety officer that day, Mr Armstrong organised the jumpers. With a full load of jumpers, the students and instructors are at the back of the plane near the door. Normally, the instructor is behind the student.     

61From Mr Armstrong’s perspective, the day was busy with people jumping all day. About six plane loads had jumped before Ms Lenon jumped. He allocated Ms Leckie as her sole instructor.  Now retired, most of Ms Leckie’s personal skydiving was undertaken at heights between 12,000 and 14,000 feet where she would deploy immediately. Up to March 2017, she had made 90 to 100 jumps. She held a packer B licence. With it, she could pack student parachutes but not change fittings and anything like that.

62Ms Leckie helped Ms Lenon put on her equipment and checked whether her harness was correctly fitted. Ms Lenon was in the larger of the two planes used for skydiving. The interior was crowded with jumpers. They sat on the floor of the plane in two rows. Ms Leckie sat behind Ms Lenon.

63Ms Lenon and Ms Leckie sat near the rear of the plane. As people ahead jumped, they moved forward. Unlike the smaller plane, this plane did not have a ledge but simply an open door. To Ms Lenon, the role of Ms Leckie was to stay with her during the deployment phase and if anything went wrong she could deploy Ms Lenon’s parachute for her. 

64There were three differences between this jump and the earlier jumps: Ms Lenon jumped from 14,000 feet; she had one, not two, instructors; and she was to deploy her parachute at 4,000 feet, not 5,000 feet. When Ms Lenon exited the plane she was linked to Ms Leckie.

65Ms Lenon described this jump[22]:

“…So we jumped out at 14,000 feet and I had a great exit. I had a good count. I stabilised into my arch and then we proceeded to go into the PRP checks. So the first check is when you move your left hand in front of your face with your alti watch and you move your right hand to check that you have something to throw away. But half-way through this check I started to feel like my arch was unstablising, and I felt like I was starting to shake like I demonstrated before. In the corner of my eye I could see something unravelling, that was my throw away, and immediately after I went into my arch again I deployed at 11,000 feet….So my parachute had come out prematurely at 11,000 feet”.

[22]        T171.

66Ms Lenon is adamant her exit from the plane was good. She knows what a bad exit is like because that happened on her first jump. She rejected the suggestion she tumbled on exit:

“Q: Ms Leckie will give evidence that you tumbled when you came out of the plane because you weren’t arching hard enough, do you disagree? – I disagree with that.

….I have a recollection of my jump and I have tumbled out of the plane on my first jump in stage 1, so I know I did not do that on my fifth jump.” 

67Mr Fletcher described the process of deployment of Ms Lenon’s parachute. To a layperson, it seems unnecessarily complicated. The pilot chute is removed from its pouch by pulling on a handle attached to it out to full arm’s length. This places the pilot chute in the airstream and it inflates. This causes the parachute container to open and releases the parachute.

68The “throw away” leads to the pilot parachute. Its deployment causes the main parachute to deploy. At that stage, Ms Lenon did not know why the parachute deployed.

69Ms Leckie had jumped with Ms Lenon before on jump 3. She could not recall the lead up to the jump but explained her usual practice. The fifth jump is a complex jump.

70M Leckie described Ms Lenon’s fifth jump. First, she described how a “good” exit should proceed:[23]

“Well, in this case when we’ve left the aircraft, what you’re supposed to do is present into the relative wind which is a direction that the propellers blowing air and also the plane is moving. When you present out like that, you sort of have to go out flat, not horizontal but leaning towards the horizontal. So when the wind catches you, it catches your upper body and then sort of flows down and then in theory it should sort of cup you a little bit. And you should come out of the aeroplane relatively flat, and usually do a slight rotation on a good exit, and you will come around and you will be flat and in free-fall belly to earth”.

[23]        T848.

71Then, Ms Leckie described Ms Leon’s exit on this occasion:[24]

“On the occasion with Alex she did have a more of a step off and went off sort of vertical. So instead of launching out and presenting to the relative wind, it was more like is just a step off. So with that step off and me coming out after her, we actually rolled over the top of her and she’s been flat and we’ve come over – I’ve come over the top. And then we’ve come around and then I have shaken her, and as I have shaken her she’s started to arch and we just went back into the normal belly to earth orientation…So we were going over, I noticed her – I could see part of the pilot chute. I was shaking her at which she started to arch. We became stable. And as we became stable I was watching the pilot chute slowly creep out further and further. So I was thinking then to myself – I was waiting for the moment to attempt to push it back in or, if I couldn’t push it back in, I probably would have deployed her anyway. But as I was reaching for it, the wind – it’s just been grabbed and come flying out and she had a normal canopy opening”.

[24]        T848 and T850.

72Ms Leckie disagreed strongly with Ms Lenon’s version of what happened. Her exit was not good or flat. She should not have stepped off as she did but should have presented to the relative wind better.  Despite Ms Lenon’s evidence about manoeuvres, there was no time for travelling in descent or manoeuvres. Ms Leckie let go of Ms Lenon when the main parachute opened. There was no issue with the performance of the canopy, then and afterwards. 

73Generally, for a normal stage 5 jump, Mr Fletcher maintained a student does not do the checks described by Ms Lenon: moving the left hand in front of the face; and moving the right hand to check the student has something to throw away. These actions are normally done on earlier jumps. On a normal stage 5 jump, the students move straight into manoeuvres.  

74As to why the parachute deployed, Ms Leckie said:[25]

“Q: Yes, In any event, the pilot chute became loose from the spandex pouch in some manner? – In some manner.

Q: In some manner that you can’t explain? – Well, it could have been during the rollover, I could have brushed her when I have gone over her, because we are linked together. It is – my own belief on the situation is it’s when we rolled out over the exit that I have brushed the pilot chute – I don’t know whether it’s come out of its own accord or not. I cannot give a definite answer on it because I just don’t really know.”

[25]        T869.

75She agreed ordinarily contact should not deploy but added it depends on the type of contact. 

76After some effort, Ms Lenon located the drop zone and continued descending. She then described how she felt:[26]

“As I’m descending down I’m starting to feel extremely light headed and I remember checking my alti at about 5,000 feet and I feel like – I feel like my stomach’s dropped. I feel extremely nauseous like I’m going to throw up. And my harness was getting really tight around my legs so my thighs were going numb and I was getting pins and needles in my toes and in my feet. And this is where I feel like I’m going to faint…my fear is in overdrive, I’m fearing for my life…Then I got black spots in my vision and that was the last thing I can remember until recounting – to being in hospital three days later.”

[26]        T172-173.

77Under normal circumstances, Ms Leckie had never seen or heard of a student losing consciousness during descent under canopy. The one instance she was aware was a jumper with a heart condition. She had never been told of a student suffering from black spots or visual impairment.

78Once Ms Lenon’s canopy opened, Ms Leckie opened her canopy and put on full brakes. As her canopy is smaller, she descended quicker than Ms Lenon. She circled slowly and watched her all the way to the ground. Ms Leckie landed minutes before Ms Lenon.

79To what extent Ms Lenon was motionless as she descended became an issue for the medical experts, Associate Professor Garner and Dr Richardson. It is clear she was not completely motionless. There were the motions involved in searching for the drop zone, turning with the parachute and even checking her altimeter.

80Mr Armstrong did not see Ms Lenon jump because she was too high up. He did note her parachute had deployed higher than usual. He was unconcerned as the parachute looked it was flying correctly and it was a nice day. He kept watching her. He went to Ms Leckie when she landed. Ms Lenon kept over the drop zone and she was doing nicely. Ms Leckie told him she believed the pilot chute came out prematurely.

81As he watched her, Ms Lenon did everything she was taught. At 1,000 feet, she turned into the wind early and overshot the landing area by a few hundred feet. Her arms were above her head and stayed there. He could not say whether she flared or not. He saw her land feet first and “crumple” to the ground. He was surprised at her lack of effort. When he got to her she was unconscious. While waiting for the ambulance, she went in and out of consciousness. Her parachute was put into a utility and taken to the drop zone. He examined the parachute and saw nothing obviously abnormal. He examined the lines. He looked for tears in the harness. The bridle pilot chute was present. The parachute was packed and put back into service, as was the helmet worn by Ms Lenon, which seemed fine.

82After landing, Ms Leckie looked up periodically to observe Ms Lenon. She was joined by Mr Armstrong. He asked her what happened and she said a premature opening. Ms Lenon was “flying around” and looked in complete control. She turned in different directions.

83Ms Leckie saw Ms Lenon cross the main runway, cross the student area, turn into the wind but still quite high and pass over Ms Leckie’s head. Her arms were up. Her hands were in the toggles but there is a lot of force holding them up. She did not see her slouched or her head relaxed. Ms Leckie walked towards the hanger after Mr Armstrong said he would bring Ms Lenon in. Ms Leckie periodically turned around to watch Ms Lenon. She came in very straight. There were none of the little turns that students often do. To fly straight usually requires very slight corrections. She saw her feet hit the ground, went forward and crashed. She had landed on the edge of the area where she was supposed to land, not on the east/west runway but near to it.

84According to Mr Armstrong, Ms Lenon did not attempt to prevent her fall. Her arms were above her head in the toggles. She did not appear limp or unconscious. These observations were made from a distance of 200 to 300 metres. Despite the distance from which they were made, I accept the accuracy of these observations.

85Her arms were above her head and stayed there. He could not say whether she flared or not. He saw her land feet first and crumple to the ground. He was surprised at her lack of effort

86Ms Leckie and Mr Armstrong ran over to Ms Lenon. She was unconscious, regained consciousness and then went in and out of consciousness. Ms Leckie has not seen or spoken to Ms Lenon since the accident.

87Pausing there. Mr Armstrong and Ms Leckie inspected Ms Lenon’s helmet after she had landed. The helmet was not crushed or significantly damaged.   

88Ms Lenon believes she lost consciousness at about 4,000 feet. Before losing consciousness, she believes she was turning her parachute in order to remain above the drop zone. Each of Mr Armstrong, Mr Fletcher and Dr Richardson considered if she passed out at that height, she would not have landed in the drop zone. The evidence of Mr Armstrong and Ms Leckie of her movements on her landing approach strongly suggest she was conscious.

89There is a clear conflict between the evidence of Ms Lenon and Ms Leckie. I will return to this issue later when discussing the issue of Ms Lenon’s credit generally.

Aftermath

90An ambulance took Ms Lenon to hospital. For the first three days of her admission, she could not recall the events before landing. She believes her landing was “hard and bad”, based on the ]injuries she suffered. The external physical injuries were a black eye and an injury to her lower jaw:[27] “was pushed out all the way to the side and I couldn’t talk properly”.

[27]        T182.

91Mr Armstrong followed the ambulance to the hospital. Ms Lenon’s boyfriend was there. After waiting a while he saw her. She kept asking him what happened. He visited her the next day. She again asked him what happened. He visited her in hospital only twice. He sent her texts enquiring about her health and what was to be done with her vehicle. He and another staff member took her vehicle to Melbourne.

92One aspect of the records of Ms Lenon’s admission became significant. On 20 March 2017 someone has written[28]:

“Spoke to Cardiology Reg. (Robert Anderson).

-- Alex describes vasovagal sx’s at ~ 5000 ft before LOC à nausea, dizziness

-- Has experienced these sx’s followed by fainting previously when in Army (standing for long periods) + post heat exposure.” 

[28]        Exhibit T.

93One view of the entry is the vasovagal symptoms here were nausea and dizziness which led to loss of consciousness.   

94Mr Armstrong inspected the parachute carefully after the accident and found no defect. The pilot chute was repacked and put back into service. The log does not show any repairs undertaken on the casing.

95Where serious injuries are involved, Mr Armstrong phoned a report that day to the an Australian Parachute Federation officer in its safety training office. He completed and submitted an Incident/Accident notification form the next day. Later, he submitted another notification – Supplementary injury notification. It was completed on the same day as the Incident/Accident notification form. 

96In the first notification, Mr Armstrong wrote of the circumstances. It is a clear and concise report:[29]

“At approximately 2.40pm Sunday 18^th March while doing her APF stage 5 jump, Alex experienced a premature pilot chute deployment at about 11,000 feet. Alex flew her chute well keeping over the DZ. At approximately 1500 ft Alex started her landing approach overflying the landing area in a easterly direction into the wind. While she seemed to be going well Alex seemed to flare late and landed very heavily on the end of the east west runway. Alex was knocked unconscious for approximately 2-5 minutes and remained in a semi-conscious state for about 30 minutes till the paramedics arrived.”

[29]        Exhibit H.

97The supplementary notification adds some extra detail: “possible late flare on a hot 31 celsius day”, “concussion and memory losses”  and “neck brace and spinal board used by ambulance officers”.[30] Mr Armstrong was able to insert “concussion and memory losses” after visiting Ms Lenon in hospital.  

[30]        Exhibit H.

98Ms Lenon discharged herself from hospital on the fifth day of her admission. She became very irritated in hospital and wanted to go home. Except for her mother living nearby, she remained at home on her own. She was very sensitive to light and sound and suffered from debilitating headaches.

99She stopped working in the after-school programme. She stopped her studies at Victoria University, not resuming them until 2019. She completed her degree at the end of 2019 after receiving special consideration from the university. 

100She was referred by her general practitioner to Kim Proudlove, whom she saw on 12 April 2017. In the weeks before she saw Dr Proudlove, Ms Lenon was virtually housebound, feeling helpless:[31]

“I couldn’t even walk outside and go for a walk or take my dog for a walk without getting a headache and being blinded from the sun.”    

[31]        T192.

101At the same time, her concentration was poor. She had difficulty focussing her sight. She tired very easily. Her speech could be unrestrained. She would say things which she would not normally say. Even now she cannot comprehend the spelling of a word: it needs to be written down. She slept a lot because activity tired her. Dr Proudlove referred Ms Lenon to the Caulfield Acquired Brain Injury Community Team.

102At the time of the incident, Ms Lenon was enrolled in a bachelor of education course at Victoria University. She made repeated unsuccessful attempts to resume her course each semester in 2017 and 2018.

103Following the incident, she developed depression. Something she says she had not experienced before. She could not find meaning in her life. She did not want to talk to her family or friends. She did not want to leave her bed or home. She lacked motivation.

Relationships

104From the incident until 2020, Ms Lenon’s relationship with her mother deteriorated badly:[32]

“I have been a very horrible person and it has really put a strain on our relationship.”

[32]        T201.

105Nevertheless, her mother persevered. Like her mother, the incident has strained her relationships with her sister and father but unlike her mother, they have not recovered.

106No relationship with a male has lasted longer than two months. Ms Lenon attributes the breakdown of these very short relationships to her mood:[33]

“My mood swings are too erratic. I’m too emotional. My anger is – I’ve got a very short fuse and people can’t handle me. They also can’t handle the past that I’ve had…”

[33]        T208.

107Following the accident, her friendship with her friends, Jess and Amber, faded away[34]:

“Since the accident. We couldn’t really do anything so they kind of just fizzled out. Like, I remember they visited me at home a few times and then that’s was the end of that – those relationships.”

[34]        T502.

108Her friendship with Amber and Jess started in about 2019. It was still strong when Ms Lenon spoke to Dr Entwisle in 2021.

109Her relationship with her brother was affected by the accident. She sees him only at family functions. She was close to her brother before the accident but were not best friends. It is strained with her father; it was so before the accident but more so since. 

110These relationships were affected by her mood after the accident[35]:

“I really pushed everybody’s buttons post accident. So, you know, they walk on a wary line with me because they feel like they can’t talk to me without me snapping, or say something without me snapping. So the relationship has been affected by the accident.”

[35]        T503.

111At 28, it is the sense time is passing her by which is the source of sorrow for her. She has seen her friends enter relationships and have children while she cannot maintain any but the shortest of relationships. 

Medicines

112Ms Lenon has found her general practitioner very kind and caring. Since the incident, she has been prescribed an anti-depressant, Desvenlafaxine. Over the years the daily dosage has reduced. This medicine has been effective in improving her mood and motivation.

113She was prescribed Seroquel while at the ABI Rehabilitation Centre. Its side effects caused her to stop. She resumed taking the drug after attending the Gosford Hospital.

114She was prescribed Amitriptyline for her headaches. The medicine did not stop her headaches but reduced them significantly. She stopped taking this drug in 2020, when she went to one or other of two rehabilitation clinics. She has had other medicines prescribed for her headaches after Amitriptyline lost its effectiveness.

Employment               

115At the time of the incident, Ms Lenon was employed by Extend Australia Pty Ltd. She was paid fortnightly. Between 6 February 2017 and 19 March 2017, she received fortnightly pay of $214, $329 and $115 respectively. No taxation was deducted from these payments.  After many attempts, Ms Lenon completed her Bachelor of Education Degree in 2019. Although a four-year course, it took her six years to complete.

116In about March 2020, she started working as an emergency teacher. She worked up to six and a half hours a day and up to four days a week. Fatigue, headaches and difficulty concentrating prevented her working more hours. She described her role as generally “babysitting” classes. She does not teach as such, plan lessons or do administrative work.    

117Ms Lenon is now employed by a substitute teaching organisation called ANZ UK. Mostly, she works at the same secondary school, the Albert Park College in Port Melbourne. The school is aware of her disability and allows her to work three days a week, usually Monday, Wednesday and Friday. Her hours are from 8.30am to 3.00pm or 3.30pm. She does a lot of team teaching where two classes are combined. Her role is largely to ensure the students are sticking to their tasks. She does not teach in a formal sense. At the end of the day she is extremely fatigued. If she tries any other activity, she develops a headache.

118She is paid by the agency at $330 per day before the deduction of taxation. There is plenty of substitute teaching work available, but Ms Lenon cannot work beyond the three days per week. 

119She is very pessimistic about her future. She does not believe she will be a proper teacher or maintain a proper relationship. Although liking walking and hiking, she has returned to neither since the incident.

120During the COVID-19 restrictions, the schools were closed and she earned nothing. She obtained an Uber licence but only drove during the day, not at night. She is affected by night lights.

Treatment     

121In April 2020, Ms Lenon was admitted to a rehabilitation unit in Toorak. She left the unit early because of her mood swings and went to the Hader Clinic. Since leaving the Hader Clinic in May 2020 she has been drug-free.

122She has not received drug and alcohol treatment, psychological counselling or psychiatric treatment. She has fully recovered from her drug addiction. She has taken Valium since but it was prescribed when she was in rehabilitation. That does not affect her view of herself as having broken her addiction except for one “slip up”. She does not see a neurologist. Her last non-drug rehabilitation attendance was in 2019.   

123Ms Lenon has not seen Dr Silberstein since December 2021 and then only in relation to lesions on her legs and seeking advice about a COVID-19 vaccine. In October 2021, he last prescribed Seroquel and Desvenlafaxine (an anti-depressant).

124To help her memory, she sets alarms and makes reminder notes. The alarms remind her of the need to do something while the notes tell her what it is.

125When she experiences headaches, she is sensitive to light and sound. She has not sought specialist treatment for her eyes.

126Ms Lenon distinguishes between migraines and headaches. With the former, she has to be careful to avoid them. She gave an example:  after giving evidence, if she went out to dinner, with the lights and sounds, she would get a migraine. Since 2019, she has not taken prescribed medicines for her migraines. For really bad headaches, she takes Panadeine Forte, previously prescribed for her migraines. They are left overs. She also takes Panadol and Nurofen in combination and they work well.  

127Ms Lenon now lives alone. She cooks and cleans. She drives a motor vehicle. There are now no restrictions on her ability to drive. For a few years following the accident she could not drive at night. She swims and exercises her dog.

Credit

128As can be seen, what happened on 19 March 2017 is disputed in two critical respects, starting with Ms Lenon’s exit from the plane and ending with whether she was unconscious at any time before landing. The principal witnesses bearing on those events are Ms Lenon on the one hand and Ms Leckie and Mr Armstrong on the other. It is little wonder then the defendant explored Ms Lenon’s truthfulness and reliability.  

129In Pell v R, Weinberg JA said:[36]

“The factors that any trier of fact, whether judge or jury, will ordinarily take into account when deciding whether the evidence of a particular witness is credible and reliable include: the inherent consistency of the witness’ account; the consistency of that account with those of other witnesses; the consistency of that account with undisputed facts; the ‘credit’ of the witness (based upon matters which include, for example, demeanour); any relevant infirmities of the witness; and, importantly, the inherent probability or improbability of the evidence in question”. 

[36] [2019] VSCA 186 at [897].

130That passage applies generally, whether it is a criminal or civil proceeding.  

131The first thing I will comment on is Ms Lenon’s demeanour. She gave evidence over four days. Her evidence was given through an audio-visual link. The quality of the reception was generally good. I had the opportunity of observing her at close quarters. She did not display any apparent cognitive impairment. She did not appear tired although there were many breaks due largely to objections over legal questions. She did not appear to become emotional. She showed considerable stamina.

132She struck me as a reasonable and accommodating witness. I do not consider she prevaricated as submitted by the defendant. She did not quibble. She agreed with many of the propositions put to her. She even agreed with some propositions she did not recall but accepted their existence anyway. Based on her demeanour alone, I considered her a plausible and candid witness. 

133The defendant examined Ms Lenon’s time in the Army. Ms Lenon says she was unhappy in her unit in Darwin. In September 2013, she applied to be discharged due to the state of her back. She said its condition had worsened while she was in the Army. Nevertheless, she exaggerated its state to get out of her unit:[37]

“…my back was never as bad as it was in the army and I did that because I also didn’t want to be in my unit, and you go swimming in a pool at a rehabilitation clinic. So this got me out of my unit. I did anything I could not to be at my place of work.”        

[37]        T288.

134She said she did not want to be in her unit because of the bullying by the women there:[38]

“…and the women didn’t really like me up there. I think it’s because I had, you know, eye lashes and was quite girlie for that unit. So I got bullied a lot in the army, it was quite traumatic. I really did not enjoy it. I’m not really a fit person so I don’t know why I assumed that would be a good career for me. I didn’t want to extend after the gap year or sign up any further.”

[38]        Transcript at p 131.

135One can see the attraction of a swimming pool in Darwin. It seems the exaggerated state of her back was not aimed at a discharge. The purpose was to be removed from her unit.  

136On 1 November 2013, a sample of Ms Lenon’s urine was analysed and revealed the presence of a prohibited substance, amphetamine. On 20 November 2013, she received a notice advising of the result and her discharge from the Army was now being considered.[39] In acknowledging her receipt of the notice, she ticked a box, which said: “I do not wish to provide a statement of reasons why I should not be discharged”. There was another box, which she could have ticked, saying she intended to provide such a statement. 

[39]        Exhibit 1.

137There is a Manunda Ward at Robertson Barracks in Darwin. It provides drug and alcohol services. At least, between 6 and 12 November, Ms Lenon attended this ward. 

138Meanwhile, Ms Lenon was referred by a psychologist to the ADF alcohol, tobacco & other drugs service. Someone at the service interviewed her on 12 November 2013 and completed a document entitled “Client assessment interview pro forma”.[40].The document consists of 13 pages. At the time, Ms Lenon was 19.  

[40]        Exhibit 15.

139Under the heading “Family History – Notes”, it is recorded: “Father AOD dependent cannabis/heroin. Father suffered depression”. Under the heading “Risk-taking behaviours (including sexual and IDU), there appears: “Substance use. Driving under the influence of substances”. Under the “Mental state” heading and the sub-heading “Insight”, it is recorded “Insight demonstrated in regards to escaping emotional difficulties due to substance use”. Under “energy”, there appears – “Improved since detox”.

140Under the heading “AOD Use career”, the document sets out a number of usual substances with a recording of Ms Lenon’s comments beside those relevant to her:

(a)   alcohol – first used at 16 with a note – abstinent alcohol last two months;

(b)   amphetamines – first used at 17. She has used amphetamines 15 out of the last 30 days, “every second evening”. Her average daily use was ½ gram, costing $200 per day with her last use on 31 October 2013;

(c)   cocaine: first used at 19. Again, she used on 15 out of the last 30 days. Her average daily use was ½ gram, costing $200 per day. She snorted the cocaine as well as the amphetamines. She last used on 31 October 2013;

(d)   ecstasy – first use at 19. She used 15 out of the last 30 days or every second evening. She took two or three tablets per day, costing $150, with her last use of 31 October 2013.  

141Under the clinician’s comments, it appears Ms Lenon detoxified between 4 and 11 November 2013 at the Manunda Ward and reported “escaping work place harassment by using illicit drugs”. 

142In her oral evidence, Ms Lenon denied this recorded drug history was true as she had invented it:[41]

“I’m saying that I had an alcohol problem towards the end of the army and I was – I tried drugs two times, and I was saying whatever I could when I was in that hospital giving my statement, to try and get out of the discharge. I didn’t want a dishonourable discharge, it is not something I wanted against my name. It was a very hard situation.”   

[41]        T280.

143She said her drug history was that of a male friend at the time. She was with him nightly and watched his usage. The initial purpose of this charade was:[42]

“…I was trying to get out of my unit. So this person that did all these drugs, that was my friend at the time in that group. He was also in the army and he told me – he had been in for many years and he told me the things to say because I hated the unit that I was in…”

[42]        T283-4.

144This history included spending $2,000 on drugs one weekend. To make her story sound better, Ms Lenon gave accurate information about her father’s addiction.

145Despite the false history, Ms Lenon undertook a detoxification program and took two prescribed medicines, Mirtazapine and Seroquel. She justified taking these medicines:[43]

“Q: And in order to pursue that falsity, you have gone so far to take medication? – Yes. I was being traumatised in my unit. I did not want to be there and I would do anything to get out of there.”

[43]        T293.

146And:[44]

“…I was not on a great head space with the trauma of the bullying. So part of that was I was sad.”

[44]        T296.

147Ms Lenon gave two reasons for giving a false drug history: to get away from her unit where she was bullied; and to avoid a dishonourable discharge. However, the former reason figured more prominently in her oral evidence.

148She did not dispute the presence of amphetamine in the analysis of her sample of urine. To make the situation sound worse, she noted the drug-taking of a male, Army friend and told others of those habits as if they were her own. This was intended to extend her stay in a drug rehabilitation ward and keep her away from her own unit. Apart from the false history, she took prescribed medicines, no doubt believing they were unnecessary for any condition she was suffering.

149Pausing there. If the drug history was false then Ms Lenon has embarked on an elaborate course of deception to keep her away from her unit and, somehow, avoid a dishonourable discharge from the army. If the drug history was true, then she has told a host of falsehoods while giving evidence. I do not need to choose. Assuming Ms Lenon gave a false history to the Army, then she is capable of constructing an elaborately false story to achieve her own ends.

150One must remember she was 19 at the time. The whole episode speaks to her immaturity. To hope to avoid a dishonourable discharge through a false story would appeal to an immature person.   Nevertheless, it is a startling set of circumstances, which raises doubt about her credibility.   

151Ms Lenon did obscure her history of depression. In evidence-in-chief, she said she had not experienced depression before the accident. In cross-examination, she conceded taking anti-depressants in the Army due to the effects of bullying and the role played by her relationship issues with her post-accident depression.

152During cross-examination, it took time to ascertain Ms Lenon worked as a sex worker between 2014 and 2016. The fact she has not completed a tax return since she was in the Army is of little weight. What is of weight is her concession she did not disclose to the relevant authority her earnings as a sex worker while she received some form of government income benefit.

153Ms Lenon worked in a brothel, presumably between 2014 and 2016. Although exposed to illicit drug taking when she worked in a brothel, she maintained not using drugs herself. However, in 2017, she gave a history to the Alfred Hospital of using cannabis for the past three years, although she described her usage “as more of a social thing”. In my experience, people are often imprecise about their periods of illicit drug usage. Nothing much emerges from that evidence.

154Ms Lenon’s denial of keeping a record of the booking on giving evidence one day and then producing evidence the next is of no moment. It is an occurrence in the course of an actual hearing where documents or records are concerned. As it was an issue, she made an effort to search.

155Turning to the events of Ms Lenon’s first day of attendance at the Torquay airport, the defendant pointed to aspects of Ms Lenon’s evidence, describing them as deliberate exaggerations, designed to add colour and movement to her account and strengthen her claim: the number of students present; where she was at the time; the availability of the iPad; the duration of the course – two days versus two and a half days; and her uncertainty about what document or documents she signed at Torquay. 

156Ms Lenon gave different answers as to dates when the course was held. When shown the waiver document, she changed to 9 February. She maintained it was a two-day course held over a Saturday and Sunday. On seeing the date of her pre-first jump assessment, she changed the duration of the course to two and a half days, going into a third day. Although, during cross-examination, she changed back to two days.

157I do not agree these changes represent an attempt by her to mould her evidence to align with whatever document she is looking at the time. She was giving evidence about events occurring five years earlier and after she had sustained a significant injury affecting her cognitive skills. It does reflect on her reliability as a witness but not her truthfulness.

158Nor do I consider she sought to mislead through her initial estimate of the number of students at the course. The fact she altered her estimate attests to her truthfulness. Its significance lies in her reliability.

159Whether Ms Lenon signed the waiver at the first day of the course or at home the previous Thursday is of no moment. It does not even reflect on her reliability as a witness. 

160Ms Lenon’s evidence about Ms Leckie feeling unwell on the day of the fifth jump was denied by Ms Leckie and not put to her in cross-examination. I doubt it was an attempt to paint the defendant in a bad light.

161The defendant points to the inconsistencies in her evidence if there was an early deployment. Initially, she said the students were told of the possibility but were not given any instruction about what to do. Later, in cross-examination, she agreed they were told what to do in certain circumstances. I do not consider her answers go to credit. It is a situation where the initial memory of a witness is shown to be incorrect through the production of contemporaneous documents. It does not reflect on her truthfulness.

162In relation to what she said Mr Armstrong told her in hospital, the defendant submits I should not accept her recall of the conversation because it is inconsistent with her previous histories of not recalling over the three days in hospital and is inconsistent with Armstrong’s evidence and his notes. Relevant to the credit issue, the defendant went further, describing this conversation as a recent invention because it was not mentioned before she gave evidence in court. As will later appear, I deal with the alleged statement of Mr Armstrong to Ms Lenon in a different context.

163The defendant attacked Ms Lenon’s credit inviting the rejection of the symptoms she experienced in her descent, submitting she did not tell various practitioners of most of those symptoms.     

164At the time of the accident, Nicholas Silberstein was Ms Lenon’s general practitioner. His report, dated 5 November 2021, makes no mention of the circumstances of the accident. Given it was written more than four years after the accident, that is unsurprising. When questioned about what she did or did not tell him, her answers are, in part, argumentative and largely unhelpful owing to her inability to recall what she told him.  

165Kim Proudlove is a consultant physician in rehabilitation medicine. Dr Silberstein referred Ms Lenon to him. He saw her on or before 12 April 2017 and reported to Dr Silberstein.[45] Apart from noting the absence of retrograde amnesia, there is no mention of the circumstances of Ms Lenon’s descent. Since he was reporting to another practitioner, that also is unsurprising. Nevertheless, Ms Lenon could not recall what she told Dr Proudlove. 

[45]        Report dated 12 April 2017.

166Robin Stargatt is a clinical neuropsychologist. She interviewed Ms Lenon in May 2018 at the request of her solicitors. She took a brief history of the incident including:

“Someone had packed her parachute incorrectly and it opened at 11,000 feet rather than 4,000 feet. There was much less oxygen at that height and she can recall noting at 5,000 feet she thought she was going to black out. That is the last thing she can remember.”

167Given the brevity of the entry, the absence of further detail is understandable. It may be the entry is selective. As a neuropsychologist, one might expect Dr Stargatt noting the lack of oxygen as a pointer to a possible brain injury. In any event, Ms Lenon could not recall what she told Dr Stargatt. After the passing of years, that too is understandable.   

168John Waterston is a consultant neurologist. On 9 July 2018, he examined Ms Lenon at the request of her solicitors. He recorded premature deployment at height, looking down at her altimeter at about 4,000 feet, starting to see black spots and feeling light headed before losing consciousness. Given the medico-legal purpose of his examination, he has received slightly more information but not of panic attacks, shallow breathing and the tightness of the harness.

169Dr Waterston was exploring the nature of her injuries from the perspective of a neurologist. He was interested in the result of her head injury. One could understand why the story of the descent was lightly touched upon.    

170In November 2018, Ms Lenon was examined by the Medical Panel for its opinion on certain questions. In her cross-examination, there was this question and answer:[46]

“Q: …you again gave no history in relation to panic attack, nausea, pins and needles, shallow breathing or harness, do you accept that? – I accept that I didn’t recount everything then.”

[46]        T479.

171The Medical Panel’s reasons are not in evidence but the accuracy of the assertions in the question was not denied. In my experience, the usual composition of the Medical Panel leads to the taking of detailed histories. Its members usually come from different areas of speciality and the histories become detailed by including information relevant to each. At first sight, these are surprising omissions. The absence of those reasons makes it impossible for me to assess the significance of the omissions. I do not know who formed the Medical Panel and their areas of specialisation.

172In September 2020, Ms Lenon was examined by Dr Slesenger. He did not take a history of a panic attack, nausea, pins and needles and tightness of the harness. Ms Lenon explained those omissions:[47]

“I didn’t feel like any of these things were extremely necessary to mention. But of course all these things are what I felt.”

[47]        T481.

173Timothy Entwistle is a consultant psychiatrist. In February 2021, he interviewed Ms Lenon on the defendant’s behalf. She did not tell him about her panic, pins and needles or the tightness of the harness.      

174What the practitioners have recorded about her descent is patchy. Not giving the full history to treating specialist is understandable. They may not be interested. Giving an abbreviated version to medico-legal practitioners is understandable due to the passage of time. There is nothing in what Ms Lenon told or did not tell the  practitioners which would cause me to doubt her truthfulness.

175Overall, it was the way she gave her evidence which satisfies me she is a truthful witness. Her readiness to concede matters in cross-examination showed the type of witness she is. At the age of 28, she is a different person from the 19 year old telling untruths in an attempt to remain away from her unit and a foolish attempt to avoid a dishonourable discharge.      

Reliability

176Ms Leckie was a plausible witness. The way she gave her evidence inspired confidence in her truthfulness. She was the instructor with a student. One would expect her to watch her student carefully. She was in a good position to see what happened and then recall it. There was ample reason to view her as a reliable witness.  

177Ms Lenon sought to remember the event after sustaining an injury, which rendered her unconscious for a short while and then she went into and out of consciousness afterwards. Mr Armstrong followed her ambulance to hospital. After waiting a while he was allowed to see her:[48]

“Q: How was she? – I would say rattled, wasn’t sure of what had happened. Kept asking me what had happened and within 30 seconds to a minute she would ask me again, like, she had no recollection of asking me…” 

He visited her the next day and she was still “rattled”, asking him what happened and being repeatedly told.

[48]        T750.

178While in hospital, Ms Lenon made log book entries about the fifth jump. She could not remember when exactly. Judging from the records of Barwon Health, on 20 March 2017, she was able to tell a neurological registrar she remembered what happened before losing consciousness in the air.[49] The fourth day of her admission was 20 March.

[49]        Exhibit T.

179Ms Lenon denied the suggestion she did not complete the fifth entry while in hospital[50]:

“Q: And I suggest that simply wasn’t true? – That I didn’t do it in hospital?

Q: Yes? – I was extremely bored in hospital. I didn’t have anything to do and I remember laying in bed with that log book. I didn’t fill that entry out on that day, I would have done it progressively because it took me time.”

[50]        T248.

180Since Ms Lenon cannot recall the first three days of her admission and she discharged herself from hospital on the fifth day, she made the entry on either the fourth or fifth days of her admission or both.  

181She says the incentive to make these entries was the text messages from Mr Armstrong about how much she was missed. The text messages sent by Mr Armstrong to and the responses of Ms Lenon were admitted into evidence.[51] They all occurred after she left the hospital. When shown copies of the messages, she believed the incentive came through Mr Armstrong visiting her in hospital.

[51]        Exhibit I. See CB 694 and ff.

182For the fifth jump, Ms Lenon recorded:[52]

“AFF5. Exit, good, good count & arch. early deployment due to parachute packed not properly. Deployed at 11,000 ft. Felt sick/faint at 5,000 ft. landing was hard and bad. Hospital for 5 days. Memory loss and mild concussion”.

[52]        Exhibit F.

183Dr Richardson is a consultant intensive care physician. He raised the distortion of memory due to post-trauma amnesia and used the expression “confabulation memories” and explained its meaning:[53]

“A: After any traumatic brain injury it is common to get distorted memories, and indeed, in this case it appears that there was a three day period of anterograde amnesia, so a difficulty laying down new memories, despite being reoriented in where the plaintiff was in hospital, there was multiple records of her being confused about what had happened and where she was. The longer that period of anterograde amnesia goes on for, it increases the likelihood of retrograde amnesia, that being recall of events leading up to the traumatic brain injury, and therefore I made a note that three days of anterograde amnesia is quite significant and therefore it is quite possible the events leading up to the accident had been affected by the traumatic brain injury. Now, the mind is – it doesn’t sit well with having blanks in memory, and so the natural reaction of the mind is to fill in those gaps with events, so-called confabulation memories, and it is quite possible that having had previous syncopal events that were recorded in the medical notes, that the patient has taken one of those events and filled it in to fill that gap in memory. I only mention it as a potential cause for why the perception of the events leading up to the accident may have been there”.    

[53]        T961-962.

184The other expert, Associate Professor Garner, was asked about Dr Richardson’s views. He said retrograde amnesia flows from a moderate traumatic brain injury but not always. He does not see confabulation memories consistently in head injury patients, usually they say they remember nothing. It is possible but “pretty unlikely”.

185Although both specialists agreed a confabulation memory was possible, Dr Richardson considered it more likely in this case than Associate Professor Garner.        

186Ms Lenon wrote the packing of the parachute was improper because of what Mr Armstrong said when visiting her in hospital. In his evidence-in-chief, he denied telling Ms Lenon of the improper packing. He also denied the parachute was improperly packed. Yet in cross-examination he agreed with the proposition something had “fundamentally gone wrong” with the equipment for premature deployment. Later in the cross-examination, counsel returned to this issue:[54]

“Q: I’m suggesting to you the only logical answer for how she knew is because you told her, Mr Armstrong? – I have no memory of ever telling her that her parachute was not packed properly.

Q: And that doesn’t mean of course that you did not say that, you just have no memory as you sit there today, is that correct? – Correct, sir.”

[54]        T795.

187The rhetorical question was raised: if Mr Armstrong did not tell her where Ms Lenon would get the idea of improper packing. Following the uncommanded deployment, several thoughts went through her mind. They included there was a fault in her equipment and there was a packing error for it to come out. It was one of several possibilities occurring to her. To choose one must have been prompted by something else.

188Before seeing Ms Lenon in hospital, Mr Armstrong asked Ms Leckie what happened. Her evidence of her response to Mr Armstrong’s question is part of her evidence of what happened. It is part of the evidence I accept:

“I said when we rolled out of the aircraft we rolled over. I saw her pilot chute poking out. And I was going to grab it and I couldn’t and it opened”.   

189At that stage, he was unaware of Ms Leckie’s suspicion the pilot chute deployed because of something she did. The above answer suggests the pilot chute was deploying before Ms Leckie could do anything. Apparently, they did not then discuss her usual safety checks. By the time of his visit, Mr Armstrong was satisfied there was nothing wrong with the parachute including the pilot chute. He inspected Ms Lenon’s equipment carefully after the accident and found no defect. However, his check would not reveal improper packing. 

190He did not mention that reason in the “Incident/Accident Notification” form or the “Supplementary Injury Notification” form for he believed the accident was due to Ms Lenon’s failure to flare properly or at all. Both documents were completed shortly after the accident. This was his view of what happened at the time, a view shared by Ms Leckie.

191Although Mr Armstrong’s notifications do not mention the packing issue, I would not expect them to do so. It is an official document and, in answering Ms Lenon, he would be speculating.

192Mr Armstrong followed the ambulance to the hospital and visited her there. He visited her again during the first three days of her admission. He did not visit her during her fourth and fifth days. During the first three days, Ms Lenon was confused and forgetful.

193Ms Lenon was persistent in asking him what happened and he struck me as someone who would answer. He is not a calculating person. If he needed to give a reason for the deployment, in light of what Ms Leckie told him, the obvious choice was the packing. 

194On balance, Mr Armstrong told Ms Lenon something had gone wrong with the packing of the pilot parachute for there to be a premature deployment. He may have mentioned the pilot chute but she recorded parachute. The distinction could easily be lost on her in the circumstances. His answer of not remembering rather than maintaining his denial introduces an uncertainty which gives Ms Lenon’s evidence credibility.

195The defendant points to the non-disclosure by Ms Lenon of what Mr Armstrong said to her until the hearing as evidence of a recent invention. It is unclear how this would be revealed unless it was part of a pleading as a form of admission. It was not so pleaded. I do not consider this evidence as a recent invention.       

196Ms Lenon differs from Ms Leckie over the circumstances in the plane used for the fifth jump. She did not recall two long bench seats. Ms Leckie disagrees she and Ms Lenon were the second last group to leave the plane, maintaining they were the first or second group. Ms Lenon concedes the unreliability of her memory of the fifth jump as to the existence of bench seats on both sides of the plane and, as a student, she was seated in front of the tandem jumpers and towards the front of the plane rather than towards the rear of the plane. She gives convincing evidence as to why she would get those matters wrong. 

197These are minor matters of difference, especially the first. Of themselves, they have little impact on my assessment of Ms Lenon’s reliability. They are not something one would expect her to remember irrespective of her injuries.

198Returning to the conflicting versions of Ms Lenon’s exit from the plane, I have no doubt about the credibility of Ms Leckie. She is both truthful and reliable. There is no criticism I would make of her evidence on either score. On the other hand, my assessment of Ms Leckie’s evidence is resolved on her reliability.

199It is the cruel irony of this case that the injury Ms Lenon suffered affects her brain and her cognitive abilities. She had no memory of her exit, descent and landing for about three days after the accident. Then she had a memory. More often, people in her position would have no memory at all. However, she does.

200The defendant tested Ms Lenon’s evidence at practically every step from her exit to her landing. It questioned her evidence she felt alone and she could not see any other parachutists. Despite desperately trying to find the “drop zone”, she could not see it. It was hard to breathe. She panicked. Ultimately, she found the “drop zone”. It was directly beneath her. Her feet had been obscuring it.  

201According to Mr Armstrong and Ms Leckie, Ms Lenon was one of the first to leave plane. By then there were other parachutists in the air which should have been visible to Ms Lenon.

202Ms Leckie deployed her parachute at about 10,200 feet. She then braked hard, trying to stay as near as possible to Ms Lenon. Owing to the smaller size of her parachute and despite the braking, Ms Leckie reached ground well before Ms Lenon. The fact Ms Leckie braked her parachute and stayed as near to Ms Lenon as long as she could does not mean Ms Lenon ought to have seen her.

203As one of the first parachutists to leave the plane, it is unlikely there were no other parachutist’s around when Ms Lenon’s parachute deployed. Those parachutists who left before her may have disappeared if they were free falling. Although those who left after her would surely have been visible to her.

204Ms Lenon says she did not see Ms Leckie or any other parachutists as she was preoccupied with trying to find the drop zone. This is plausible: she was an inexperienced parachutist; her parachute deployed far too early and unexpectedly; and she lost her instructor.

205As she descended, Ms Lenon felt “extremely light headed”. At about 5,000 feet, she felt her stomach had dropped. She felt extremely nauseous as though she was about to vomit. The harness of her parachute was getting “really tight” around her legs and her thighs were becoming numb. She felt tingling in her toes and feet like “pins and needles”. She felt she would faint. She feared for her life for many questions went through her mind. At possibly 4,000 feet, she then got black spots in her vision. She wondered whether she was going to die, and after a few seconds, lost consciousness. The next thing she remembered was waking up three days later in hospital. She does not recall landing.

206Ms Lenon sought to link her unconsciousness to a sensory overload. The defendant submitted it is unlikely she suffered a sensory overload or panic episode because of her past military training. I cannot accept the defendant’s submission. It raises a medical issue for which there is no evidence.

406Relying on published cases dealing with motionless suspension, it took 30 minutes to several hours to achieve unconsciousness. However, pre-syncopal symptoms did occur as early as 10 minutes of motionless suspension, but using a different harness. Dr Richardson pointed out parachutists are not motionless when their parachute is deployed. They activate controls and weight shift to adjust the direction of their flight. 

407Dr Richardson could not find any published medical case which described a parachutist suffering from suspension syncope during descent under parachute. More particularly, assuming a descent of about 400 seconds (from 11,000 to 5,000 feet), he could not find a reported case of suspension syncope occurring within that timeframe.   

408Dr Richardson considered suspension syncope to be extremely rare. As I said, over the past 10 years there had been about 30,000 trauma admissions to the Alfred Hospital in Melbourne and none had been diagnosed or coded as suspension syncope or suspension trauma. In the Seddon report, a survey of persons who use ropes and harnesses in their work found no such event reported after five million hours of work.

409Earlier in these reasons I quoted Ms Lenon’s description of the onset of her symptoms. Dr Richardson believed her description is inconsistent with suspension trauma. The symptoms described in the Seddon report are very general symptoms and may be associated with many other physiologies. He agreed Ms Lenon described symptoms of presyncope and emotional distress can increase the risk of vasovagal symptoms.

410In a test environment with absolute motionlessness, Dr Richardson noted presyncopal symptoms can occur in six minutes. Although any movement is a protective measure against suspension syncope.  

411The defendant’s solicitors asked Mr Fletcher about the possibility of Ms Lenon experiencing suspension trauma as a result of the time she spent in the harness. First, he noted it was common for skydivers to deploy their parachutes at the height Ms Lenon experienced early deployment, adding in sky diving, intentional deployment at 11,000 feet or higher is very common. Deployment at 11,000 feet would make no perceivable difference to the deployment sequence or steering or controlling the parachute. Speaking for skydivers, he said it is universally accepted there is no risk in deploying at altitudes of 11,000 feet or higher.   

412Second, studies about suspension trauma have been primarily undertaken in relation to fall-arrest systems. These are primarily used in industries requiring work at height.

413Third, fall-arrest systems are different from parachuting equipment in terms of their structure. A further difference occurs in their use. The skydiver is in a permanent state of descent while a person hangs from a fall-arrest system. The latter experiences a greater compressive weight.

414Fourth, suspension trauma requires a lack of motion in the skydiver. He bases this proposition on two published studies.[123] Interpreting the word “motionless” as meaning just that, Mr Fletcher notes a skydiver is not motionless through a range of movements required to steer the parachute including the effort needed to use of the toggles to steer the parachute.

[123]      See report dated 20 October 2020 at [12.16] and [12.17].

415In answering questions posed by the defendant’s solicitors, Mr Fletcher tended to stray from his area of expertise. Of those four areas, I consider his evidence on the range of movements required to steer the parachute including the effort needed to use the toggles and the universal acceptance there is no risk in deploying at altitudes of 11,000 feet or higher is useful.   

416Although Mr Fletcher was asked to comment on suspension trauma and did so, I consider his views are outside his area of expertise and will ignore them. There were two witnesses capable of expressing legitimate views on the topic, Associate Professor Garner and Dr Richardson.

Conclusion

417To Associate Professor Garner, suspension trauma is an unusual phenomena: less than 10 per cent chance. To Dr Richardson, it is rare or extremely rare. In fact, in 10 years at a major hospital, it is an unheard of event.

418These specialists disagreed over the type of activity a parachutist needed to perform to avoid suspension trauma. To Dr Richardson, the usual movements of a parachutist would avoid the trauma. To Associate Professor Garner, more is required. Mr Fletcher spoke of the small movements of a parachutist’s hips and legs every time he or she turns the parachute.

419Despite the differences in their views, statistically, suspension syncope is an extremely unusual occurrence for parachutists. It depends on three factors: motionlessness (or very limited movement); vertical suspension; and time in those states. Ms Lenon was not motionless. Even on her evidence, she moved about. On the evidence of Mr Armstrong and Ms Leckie there is considerable movement in steering the parachute. To turn the parachute requires movements of the legs. According to Dr Richardson any movement protects against suspension syncope.

420Given its rarity involving parachutists, it seems the movements of a parachutist described by Ms Leckie, Mr Armstrong, Dr Richardson and Mr Fletcher are sufficient to avoid suspension trauma in almost every case. Accordingly, it is most unlikely Ms Lenon suffered suspension syncope. 

Sensory Overload

421Ms Lenon spoke of her emotional reaction after the departure from the expected descent, accompanied by Ms Leckie and deployment at 11,000 feet, not 4,000 feet. She says these events caused her a considerably increased sensory overload involving panic, freaking out, fearing death and unconsciousness.

422It is easy to accept she did panic initially but it was short-lived. She had been taught about early deployment within the plane, after the plane’s door has been opened or after losing jumpmasters or instructors. She was not specifically trained as to how to respond safely to the sensory overload due to the uncommanded deployed in the circumstances she found herself. This possibility was not mentioned in the AFF Jump Course agenda, the Pre-First Jump Assessment, by Mr Armstrong as the AFF course instructor, or Ms Leckie as the stage 5 jump instructor.  

423Ms Lenon followed what she had been taught after deployment. She searched for and found the drop zone. She steered her parachute in the box pattern and came into land. These are not the actions of a person still panicking. She is doing things rather than nothing through paralysis. She is not acting irrationally. She is acting in accordance with correct landing procedure. If there were elements of panic still present, they were not preventing her from acting appropriately.

424Based on her log book entries, Mr Fletcher believed Ms Lenon had gained the skills necessary to progress through each of her stages.[124] Her training was to industry standard.[125] From two of her examination answers (10 and 18), he concluded Ms Lenon knew it was possible she might “encounter scenarios where she could find herself with an open parachute at a higher altitude than the planned deployment height”[126]

[124]8.19.

[125]9.4

[126]9.10.

425As an experienced parachutist and instructor, Mr Fletcher did not expect Ms Lenon’s reaction to early deployment to be more than confusion, which would be brief. This was her fifth jump and although at a higher altitude, it was not a “completely alien experience”. Of her asserted reaction of dizziness, nausea, pins and needles and fainting struck him as extreme. If they did occur, it suggests other issues present as well even though suspecting that suggestion is straying from his area of expertise.

Blood flow disruption due to harness

426To bolster Ms Lenon’s evidence of loss of consciousness during her descent, there was a search for a mechanism to explain it. It was Mr Summers who first raised the issue on the basis of the tightness of harness. It started with Ms Lenon’s entry in her log book about the fifth jump: “Felt sick/faint at 5,000 ft”.

427Assuming the correctness of the entry, Mr Summers explained:[127]

“it is well known descending from a high attitude wearing tightly fitted parachute equipment for a prolonged period of time can result in disruption of blood flow in the lower torso and legs having an effect on consciousness causing the person to faint or feel unwell.”

[127]      At [6.22].

428That explanation was followed by an electronic reference to what was called a Vector 2 Tandem Manual. This is a 1993 manual. This reference was the subject of considerable examination. It contained a diagram.

429Mr Summers was unaware of the type of container and harness used by Ms Lenon on her fifth jump. Like Mr Fletcher, he did not interview her. He relied on a 1993 tandem harness manual despite acknowledging significant changes in harness systems since then, agreeing the tandem harness was likely to have been updated and the leg pads were now twice as wide and probably more padded. 

430Although Ms Lenon wore a different parachute from the one in the diagram, Mr Summers maintained that made no difference because her harness has main lift web and leg straps. Although the type of harness has changed since the 1993 manual, Mr Summers said the main lift web and leg straps have not changed and for student and tandem harnesses, the same forces apply. He conceded the 2001 manual removed the reference but that was for tandem harness, not a student’s harness which are “pretty much” the same as they have been for years.

431Mr Summers was aware of the differences between a student’s harness and the harness of a tandem jumper. The latter does not wear a parachute, which is worn by the instructor. A common feature is both have similar leg straps. While the tandem harness has four “snaps”, the student harness does not. The tandem student is suspended from the four snaps.

432During cross-examination, speaking of student parachutists, Mr Summers said:[128]

“Losing consciousness under parachute is indeed a rare occurrence. Landing injuries are probably the most – the highest rate of injury in the sport is landing injuries”.

[128]      T599.

433He maintained this condition is more common during tandem jumps and training organisations are well aware of the condition for tandem jumpers.

434Ultimately, Mr Summers conceded Ms Lenon’s unconsciousness was possibly, as opposed to probably, due to the lack of blood flow. His original position was expressed in stronger terms.

435Mr Fletcher pointed out the differences between a student harness and a tandem harness. The leg pads of a student harness are sewn onto the harness. They cover the inside of the thighs and cannot be moved around. Unlike the tandem harness, there are no snaps to move around. The tandem parachutist does not have a parachute for he or she is attached to the instructor. The harness is differently constructed and creates different pressure points.

436With the student harness, the parachutist’s weight is distributed around the harness while it is concentrated in four points with the tandem harness. The leg pads on the student harness are sewn into the one place. They cover the inside of the thighs. They are adjustable with the tandem harness.

437Mr Fletcher maintained Mr Summers spoke about a harness which was superseded many years ago. The more modern equipment rectified these issues. The student has more room to move for the tandem harness is attached to the front of the instructor at four attachment points. The student can move more because he or she is flying the parachute, not hanging there.

438Comparing the old tandem harness with Ms Lenon’s student harness, Mr Fletcher said:[129]

“…referring to old and obsolete equipment, as we are. The tandem harness surrounds the body in a different way to the sky diving student. There are for instance, there are extra straps around the belly which can be tightened. With the snaps, there is the potential for the legs to be pulled back because they are on these weight bearing hooks. And that can put pressure by pulling up. So if you have the weight of the person that’s hanging down on these hooks, that can put extra pressure around the groin region because they are hanging off the front of someone. Again, in a student situation, because you’re not hanging off someone because you’re in the equipment, and you and the parachute are all descending at a constant rate, you’re not experiencing that same kind of compressive weight”.   

[129]      T889.

439Mr Fletcher quoted the passages relied upon by Mr Summers from page 59 of the Tandem Vector Manual. Owing to the absence of snaps or their equivalent on the student harness, then their incorrect positioning is immaterial. As to the quoted section concerning the adjustment of leg pads, on the student harness, they cover the inside of the thighs and are immovable because they are stitched into place. Consequently, Mr Fletcher rejected Mr Summers’ view because the tandem and the student harnesses are different.

440Tellingly, Mr Fletcher examined eight user manuals of makers of student parachute equipment used in Australia and five documents published by sky diving federations in relation to student skydiving. None refer to the risk of disruption to blood supply.

441Finally, he noted Mr Summers referred to a manual but later versions of the manual have removed reference to blood flow disruption due to changes in the harness.   

442Clearly, the harness used by Ms Lenon was appropriate for student jumpers. Ms Leckie believes she checked the fitting of Ms Lenon’s harness and found it suitable. For reasons given earlier, I accept Ms Leckie did check the fitting and did find it suitable for Ms Lenon.

443Although Mr Summers found an old reference to the effect of a harness, it could not apply with Ms Lenon for these reasons:

(a)   Ms Lenon used a relevantly different harness to that referred to in the manual;

(b)   subsequent editions of the same manual had removed any reference to a harness causing unconsciousness;

(c)   there are no references to such a problem in a wide selection of publications of parachuting manufacturers or parachuting organisations.    

444In his re-examination, Associate Professor Garner was asked about the effect if a person was jammed in a sit harness. His answer depended on whether the person is sitting back into the harness or is sitting with the pelvis forward. The latter results in the straps being tighter across the groin and can lead to unconsciousness. However, there is no evidence of Ms Lenon sitting in the harness with her pelvis in a forward position. Such evidence as there is, in particular the evidence of Mr Armstrong, suggests she sat back in the harness. 

445Another consideration, according to Mr Fletcher, is due to descent in a parachute, a person does not feel the same gravity or downward force as just hanging there in a harness or being on the ground. Although Mr Fletcher does express opinions beyond his area of expertise, this opinion is within that area. He is an experienced parachutist. He is an experienced instructor. He would know from the experience the forces exerted by these two measures.   

446There is no basis to find the harness became tighter as Ms Lenon descended or it felt tighter due to the swelling of her legs.

447The critical evidence in this regard is that of Ms Leckie and Mr Armstrong. They are both creditable and reliable witnesses. Ms Lenon performed the manoeuvres expected of a conscious parachutist as she came into land. Apart from her actions, there was no indication from the position of head or her hands that she was unconscious. The indications were to the opposite. The straightness of her approach, the lack of flaring and the crash landing suggest unconsciousness. Her actions before those last moments before landing very strongly suggest the opposite.

448The effect of the evidence of Associate Professor Garner and Dr Richardson is suspension syncope is a very unusual occurrence for parachutists generally and similarly unusual in Ms Lenon’s case.

449The other propositions regarding her harness and sensory overlay are either without merit or are inconsistent with the entirety of the evidence.

450My overall conclusion is Ms Lenon has not established she lost consciousness during her descent prior to her landing. Although there is no burden of proof upon the defendant in relation to this issue, the evidence is strong enough for me to find Ms Lenon was conscious during her descent and until the moment of the impact of her helmet with the ground.

451It should be obvious I place great reliance upon the evidence of the eyewitnesses, Mr Armstrong and Ms Leckie, of the actions of Ms Lenon as she came into land. Providing the witness is truthful and reliable, as these witnesses were, in this case, there is no better basis in which to consider what occurred.

452For completeness, Dr Richardson considered as an extremely rare event of loss of consciousness due to increased deceleration forces (G-force). If unconsciousness occurs then it is short-lived (five seconds) and within 15 to 20 seconds the person has regained decision making capacity. However, Ms Lenon does not say she lost consciousness in the period immediately following the uncommanded deployment of her parachute.

Inherent risk         

453The defendant relies upon s55(1) of the Wrongs Act 1958 (Vic). It provides:

(1)A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk.

(2)An inherent risk is a risk of something occurring that cannot be avoided by the exercise of reasonable care.

(3)This section does not operate to exclude liability in connection with a duty to warn of a risk.

454If the premature deployment was due to the improper packing or defective equipment, then it is a risk which can be avoided by the exercise of reasonable care. There is no inherent risk, as defined, in this case because my findings of fact exclude it.     

Obvious risk

455Section 53 of the Wrongs Act 1958 provides:

“(1) For the purposes of section 54, an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person.

(2) Obvious risks include risks that are patent or a matter of common knowledge.

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring.

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

(5) To remove any doubt, it is declared that a risk from a thing, including a living thing, is not an obvious risk if the risk is created because of a failure on the part of a person to properly operate, maintain, replace, prepare or care for the thing, unless the failure itself is an obvious risk.”

456The defendant submits the “obvious risk” is injury from parachuting generally and Ms Lenon knew of that risk. Before her fifth jump she had acknowledged the risk of serious injury or death by reading and accepting the contents of clauses (d), (g), (m) and (r) of the waiver.  The risks of injury or death were discussed in her eight-hour course. There was a question regarding safety in the written examination.  She filled out her emergency details in exhibit E. Generally, it is hard to imagine a riskier sport.

457I do not consider the concept of obvious risk is meant to encompass all risks associated with an activity. The risk must be identified precisely to enable an assessment of its obviousness. Sky diving is one of those recreational activities where the risk of harm is easy to imagine. Jumping out of a plane at height, free falling thousands of feet, parachuting several more thousands of feet and then landing are all individual acts containing patent risks. For the purposes of ss 53 and 54, what needs to be determined is “that the position of the plaintiff comprehended the particular circumstances in which the risk materialised and the harm was suffered”[130]: that is, the improper packing or some defect in the equipment. There was not that degree of specificity in the evidence.  

[130] Carey v Lake Macquarie City Council [2007] NSWCA 4 at [90] – [93].

Voluntary assumption of risk 

458The defendant relies upon s54 of the Wrongs Act, which provides: 

“(1) If, in a proceeding on a claim for damages for negligence, a defence of voluntary assumption of risk (volenti non fit injuria) is raised and the risk of harm is an obvious risk, the person who suffered harm is presumed to have been aware of the risk, unless the person proves on the balance of probabilities that the person was not aware of the risk.

(2) Subsection (1) does not apply to—

(a) a proceeding on a claim for damages relating to the provision of or the failure to provide a professional service or health service; or (b) a proceeding on a claim for damages in respect of risks associated with work done by one person for another.

(3) Without limiting section 47, the common law continues to apply, unaffected by subsection (1), to a proceeding referred to in subsection (2).”

459In relation to the defence of voluntary assumption of risk, the defendant submits since the risk is obvious, Ms Lenon is presumed to be aware of it and she is unable to rebut the presumption for the simple reason she knew of the risk. For the reasons given, the failure to identify the precise risk prevents a finding of an obvious risk.  

460Ms Lenon relies on s54(2)(a), which excludes professional services from the operation of s54(1). She submits the provision of parachute activities is not a professional service. Although the expression “professional services” is not defined, the word “profession” is defined in s57:

“In this Division professional means an individual practising a profession.”

In this context, this definition is unhelpful.

461The Macquarie Dictionary gives several definitions of the word “profession”:

noun 1.  a vocation requiring knowledge of some department of learning or science, especially one of the three vocations of theology, law, and medicine (formerly known specifically as the professions or the learned professions): a lawyer by profession.

2.  any vocation, occupation, etc.

3.  the body of persons engaged in an occupation or calling: to be respected by the medical profession.

4.  the act of professing; avowal; a declaration, whether true or false: professions of love.

5.  the declaration of belief in or acceptance of religion or a faith: the profession of Christianity.

6.  a religion or faith professed.

7.  the declaration made on entering a religious order.

462The definition in (1) is the most appropriate. The definition in (2) strikes me as a colloquial use of the word.

463In a case which was not cited to me, the meaning of “profession” in ss57 and 59 of the Wrongs Act was considered.[131] In another case dealing with a different piece of legislation, its meaning was examined.[132]

[131]      Owners Corporation No 1 v LU Simon Builders Pty Ltd [2019] VCAT 286.

[132]      Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd [1987] FCA 122 at [42] to [54].

464Using the first definition and noting what was said in the other cases, I would consider a sky diving instructor is part of a “profession”. In the narrow sense of the word “profession”, it is not a vocation requiring knowledge of some department of learning or science. It is not an occupation in the same sense as the three examples of “learned professions”. It is a vocation requiring the instruction of others in a serious recreational activity. To be instructors, both Mr Armstrong and Ms Leckie were highly experienced. I consider sky diving instructors are members of a profession in the sense required by the section. They are akin to an ordinary teacher of children at schools. The latter would be considered by the community as part of a profession. 

465The defendant submits sky diving instructors are not part of a profession because Mr Armstrong and Ms Leckie had alternative careers. That submission is incorrect. From experience, there are many instances of person who are part of a “profession” and yet are engaged in other or alternative activities. Being part of a “profession” does not require exclusivity of engagement.

466As to voluntary assumption of risk at common law, Ms Lenon referred to Carey v Lake Macquarie City Council.[133] Section 54(3) permits the continued application of the common law, if unaffected by sub-s(1), to a proceeding referred to in sub-s(2). In view of my above conclusion, the common law of voluntary assumption of risk does apply in this case.

[133] [2007] NSWCA 4.

467In Carey’s case, there are paragraphs in the judgment of McClellan CJ at CL dealing the ingredients of the defence:[134]

“In Roggenkamp v Bennett (1950) 80 CLR 292 at 300, a majority of the High Court (McTiernan and Williams JJ) stated:

‘Taking the defence of volenti non fit injuria, the onus was on the respondent [i.e. the defendant] to prove this defence. The elements of the defence are conveniently stated in Halsbury’s Laws of England , 2nd ed., vol. 23, at pp. 716-718. There it is said that: ‘In order to establish the defence, the plaintiff must be shown not only to have perceived the existence of the danger, for this alone would be insufficient, but also that he fully appreciated it and voluntarily accepted the risk. The question whether the plaintiff’s acceptance of the risk was voluntary is generally a question of fact, and the answer to it may be inferred from his conduct in the circumstances…’”

[134] [73] to [75].

468Generally, Ms Lenon realised and appreciated the danger to her of skydiving and voluntarily accepted the risk. Her reading of the waiver brought it clearly and emphatically to her attention. The most prominent of its passages is (d) which says:

“Risk Warning and Waiver – Your participation in the recreational activities supplied by the Providers and the APF is inherently dangerous and may involve risk. There are risks specifically associated with participation in the recreational activities and accidents can and often do happen which may result in personal injury, death or property damage. Prior to understanding any such recreational activity, you should ensure you are aware of all the risks involved, including those risks associated with any health condition you may have. By accepting this form, you acknowledge, agree, and understand that participation in the recreational services provided by the Providers and APF may involve risk. You agree and undertake any such risk voluntarily and at your own risk. You acknowledge that the assumption of risk and warning above constitutes a ‘risk warning’ in accordance with relevant legislation.”

469However, the law relating to the voluntary assumption of risk has narrowed markedly since the introduction of contributory negligence. As pointed out in a leading text, participating in a dangerous activity does not involve the assumption of risks for all negligent acts.[135] So it is here. The negligent acts relate to the harness, training, packing and equipment. I am not satisfied any of those is established. It is only if they were would one move to the next stage of considering whether Ms Lenon voluntarily assumed those risks.  

[135]      Fleming’s Law of Torts, 10^th edition at [12.290].

Australian consumer law      

470Ms Lenon relies upon ss54, 55, 60 and 61 of Schedule 2 of the Competition and Consumer Act 2010. They provide:

54   Guarantee as to acceptable quality

(1)  If:

(a)a person supplies, in trade or commerce, goods to a consumer; and

(b)the supply does not occur by way of sale by auction;

there is a guarantee that the goods are of acceptable quality.

(2)  Goods are of acceptable quality if they are as:

(a)fit for all the purposes for which goods of that kind are commonly supplied; and

(b)acceptable in appearance and finish; and

(c)free from defects; and

(d)safe; and

(e)durable;

as a reasonable consumer fully acquainted with the state and condition of the goods (including any hidden defects of the goods), would regard as acceptable having regard to the matters in subsection (3).

(3) The matters for the purposes of subsection (2) are:

(a)   the nature of the goods; and

(b)   the price of the goods (if relevant); and

(c)any statements made about the goods on any packaging or label on the goods; and

(d)any representation made about the goods by the supplier or manufacturer of the goods; and

(e)any other relevant circumstances relating to the supply of the goods.

(4)  If:

(a)goods supplied to a consumer are not of acceptable quality; and

(b) the only reason or reasons why they are not of acceptable quality were specifically drawn to the consumer's attention before the consumer agreed to the supply;

the goods are taken to be of acceptable quality.

(5)  If:

(a)   goods are displayed for sale or hire; and

(b)the goods would not be of acceptable quality if they were supplied to a consumer;

the reason or reasons why they are not of acceptable quality are taken, for the purposes of subsection (4), to have been specifically drawn to a consumer's attention if those reasons were disclosed on a written notice that was displayed with the goods and that was transparent.

(6)  Goods do not fail to be of acceptable quality if:

(a)the consumer to whom they are supplied causes them to become of unacceptable quality, or fails to take reasonable steps to prevent them from becoming of unacceptable quality; and

 (b)  they are damaged by abnormal use.

(7)  Goods do not fail to be of acceptable quality if:

(a)the consumer acquiring the goods examines them before the consumer agrees to the supply of the goods; and

(b)the examination ought reasonably to have revealed that the goods were not of acceptable quality.

55   Guarantee as to fitness for any disclosed purpose etc.

(1) If:

(a)a person (the supplier) supplies, in trade or commerce, goods to a consumer; and

(b)  the supply does not occur by way of sale by auction;

there is a guarantee that the goods are reasonably fit for any disclosed purpose, and for any purpose for which the supplier represents that they are reasonably fit.

(2)A disclosed purpose is a particular purpose (whether or not that purpose is a purpose for which the goods are commonly supplied) for which the goods are being acquired by the consumer and that:

(a)the consumer makes known, expressly or by implication, to:

(i)the supplier; or

(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the goods were conducted or made; or

(b)the consumer makes known to the manufacturer of the goods either directly or through the supplier or the person referred to in paragraph (a)(ii).

(3)This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier, the person referred to in subsection (2)(a)(ii) or the manufacturer, as the case may be.

60   Guarantee as to due care and skill

If a person supplies, in trade or commerce, services to a consumer, there is a guarantee that the services will be rendered with due care and skill.

61   Guarantees as to fitness for a particular purpose etc.

(1) If:

(a)   a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)the consumer, expressly or by implication, makes known to the supplier any particular purpose for which the services are being acquired by the consumer;

there is a guarantee that the services, and any product resulting from the services, will be reasonably fit for that purpose.

(2)   If:

(a)a person (the supplier) supplies, in trade or commerce, services to a consumer; and

(b)the consumer makes known, expressly or by implication, to:

(i)the supplier; or

(ii)a person by whom any prior negotiations or arrangements in relation to the acquisition of the services were conducted or made;

the result that the consumer wishes the services to achieve;

There is a guarantee that the services, and any product resulting from the services, will be of such a nature, and quality, state or condition, that they might reasonably be expected to achieve that result.

(3)This section does not apply if the circumstances show that the consumer did not rely on, or that it was unreasonable for the consumer to rely on, the skill or judgment of the supplier.

(4)This section does not apply to a supply of services of a professional nature by a qualified architect or engineer.”

471Ms Lenon relies on ss54 and 55, alleging the pilot chute was defectively packed and was unacceptable as to quality and unfit for the disclosed purpose. For the reasons given earlier, I am not satisfied the pilot chute was defectively packed or unfit for the disclosed purpose. Neither s54 nor s55 applies.

472As to s60, Ms Lenon alleges her training was not rendered with due care and skill so as to enable her to perform safely the fifth jump. Through the same failure, she alleges, under s61, the services were not reasonably fit for the purpose of enabling her to perform the fifth jump.

473I consider her theoretical and practical training was both comprehensive and adequate. Although her theoretical training did not specifically cover the circumstances of this case, it dealt with the somewhat analogous situations of a parachute escaping out the door of the plane and a student not having two jumpmasters at his or her side after exiting the plane on the first jump.

474Mr Fletcher maintained by itself early deployment is not considered an emergency within parachute organisations. As such, practical training cannot cover every conceivable non-emergency occurrence. Such training aims to equip students with the knowledge and skills to make appropriate decisions. Early deployment is not a common occurrence but it is not “so out of the ordinary that it should not be dealt with by the sky diver, or by a trainee”.[136]

[136]      T895.

475I accept those opinions. I would have thought the examples of the escaping parachute and the loss of two jumpmasters on a student’s first jump would be more stressful than the situation Ms Lenon faced. With the first, one might be fearful of entanglement with the fuselage of the plane and, with the second, if one needed two jumpmasters, to lose both on one’s first jump, would be very stressful. At least, when Ms Lenon’s parachute deployed, she was well clear of the plane but lost immediate contact with Ms Leckie. 

476I do not consider the defendant failed to provide training in skydiving services because they were not rendered with due care and skill in order to enable Ms Lenon to perform safely her fifth jump. Nor do I consider her training was not reasonably fit for the purpose of enabling her to perform safely the fifth jump.

477As to s 61, since I am not satisfied the pilot chute was improperly packed, this section has no application here.

Section 19(a)

478Ms Lenon also relies on a breach of s19(a) of the Goods Act 1958, which provides:

“where the buyer expressly or by implication makes known to the seller the particular purpose for which the goods are required so as to show that the buyer relies on the seller's skill or judgment and the goods are of a description which it is in the course of the seller's business to supply (whether he be the manufacturer or not) there is an implied condition that the goods shall be reasonably fit for such purpose: Provided that in the case of a contract for the sale of a specified article under its patent or other trade name there is no implied condition as to its fitness for any particular purpose.”

479The word “goods” is defined. For the reasons given, I am not satisfied there was a contravention of the implied term that the pilot chute was of merchantable quality in order to enable Ms Lenon to perform safely her fifth jump.   

Negligence

480The cause of action for negligence has these elements: a duty of care; a breach of that duty; a causal link between the breach and a plaintiff’s injury; and damage. The existence of a duty of care is not disputed. Ms Lenon alleges these breaches of the duty: providing a harness which was too tight; inadequate training for uncommanded deployment at 11,000 feet; failure to properly pack the pilot chute; and providing faulty equipment.

481For the reasons already given, none of these alleged breaches is established. I have not found her harness was too tight or her training was inadequate. On the contrary, her training was fulsome. The possibility of early, uncommanded deployment was raised but in more dramatic circumstances than those faced by Ms Lenon. I am unable to find the pilot chute was improperly packed. Finally, I could not find Ms Lenon was provided with faulty equipment.

482Although it is unnecessary to determine whether it was reasonably foreseeable for the defendant where there was uncommanded deployment Ms Lenon would suffer disabling effects leading to her heavy landing, as a proposition, I agree it would be reasonably foreseeable under the Shirt calculus[137]. Similarly, I agree if there had been a failure to train her properly, there was reasonable foreseeability.     

[137]      Wyong Shire Council v Shirt (1980) 146 CLR 40 at 47-48.

Damages 

483Since I am dismissing Ms Lenon’s claim on the question of liability. It would be inappropriate for me at this stage to determine the quantum of her damages, assuming the defendant is liable. However, I will make these observations.

484Contrary to the defendant’s submissions, the extent of Ms Lenon’s injuries are not as confined as it submitted. She suffered a significant permanent injury, having profound consequences for her including a significant loss of earning capacity. However, there are problems of proof in relation to her past and future medical and like expenses and past loss of earnings.   

485As often happens in this type of case, one or other or both parties rely on Jones v Dunkel[138]. The defendant did so in relation to a variety of potential witnesses. In none of the instances should an adverse inference should be drawn as I do not consider Ms Lenon would be expected to call a particular person or someone from an entity or provide a report and that includes her mother[139].     

[138](1959) 101 CLR 298.

[139]      O’Donnell v Reicard [1975] VR 916 at 929.

Conclusion

486Ms Lenon’s claim is dismissed. I will hear the parties on the questions of costs.