Marks v Skydive Holdings Pty Ltd

[2021] VSC 21

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PERSONAL INJURIES LIST

S ECI 2019 03847

HAYLEY MARKS	Plaintiff
v
SKYDIVE HOLDINGS PTY LTD (ACN 140 817 063)	Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	19–20, 23–25, 30 November 2020
DATE OF JUDGMENT:	1 February 2021
CASE MAY BE CITED AS:	Marks v Skydive Holdings Pty Ltd
MEDIUM NEUTRAL CITATION:	[2021] VSC 21

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NEGLIGENCE – Personal injury – Plaintiff undertook tandem skydive jump – Plaintiff injured by heavy landing – Whether tandem instructor failed to exercise reasonable care for plaintiff’s safety – Whether heavy landing due to lack of due care and skill – Whether plaintiff’s injuries a result of materialisation of ‘inherent risk’ that could not be avoided by exercise of reasonable care – Wrongs Act 1958 (Vic), s 55.

CONTRACT – Whether waiver relied on by defendant formed part of contract with plaintiff – When contract formed – Claim that waiver accepted when plaintiff joined third party association – Whether defendant did what was reasonably necessary to draw waiver to plaintiff’s attention.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S McCredie with Mr PG Hamilton	Zaparas Lawyers
For the Defendant	Ms R Annesley QC with Mr A Baker	Lander & Rogers

HER HONOUR:

1. Hayley Marks’ partner, Dane Cummins, celebrated his thirtieth birthday in August 2018.  As a birthday surprise, Ms Marks arranged for them to go skydiving together.  On 1 August 2018, she completed an online booking form through the website of Skydive Australia, which is operated by Skydive Holdings Pty Ltd.  She booked and paid for two tandem jumps with Skydive at its Yarra Valley drop zone.  Neither Ms Marks nor Mr Cummins had been skydiving before.

1. On 18 August 2018, Ms Marks and Mr Cummins went to the Lilydale airfield in the Yarra Valley, where they checked in for their jump.  They met Mr Cummins’ tandem instructor, put on their harnesses, and watched an instructional video.  Ms Marks met her tandem instructor, Sam Dale, just before they went up in the plane.  Ms Marks and Mr Cummins were clipped on to the front of their tandem instructors, before each pair jumped out of the plane at an altitude of about 13,000 feet.  Mr Cummins completed his jump without incident.  A short time later, Ms Marks and Mr Dale landed very heavily.  Ms Marks fractured her lumbar spine at L2, for which she required an L1-L3 fusion and an L2 corpectomy.  While she has made a good recovery, and has been able to return to full-time work, she lives with constant pain and is unable to do many things that she used to do.  She has also become anxious and depressed.

1. In this proceeding, Ms Marks claims damages for her injuries from Skydive in negligence, for breach of contract, and for breaches of guarantees in the Australian Consumer Law (ACL).[1]  She alleges that her injuries were caused by a lack of care and skill on the part of Mr Dale.  Skydive relies on a waiver, which it says is a complete bar to all of Ms Marks’ claims.  It denies any fault, and contends that the heavy landing was due to an unfortunate, random event in the form of a short-lived, localised downdraft.

   [1]Competition and Consumer Act 2010 (Cth), Sch 2.

1. For the reasons that follow, I have concluded that the waiver did not form part of the contract between Skydive and Ms Marks, and hence is not a bar to Ms Marks’ claims.  However, I could not find that the heavy landing and Ms Marks’ injuries were the result of any failure by Mr Dale to exercise reasonable care for Ms Marks’ safety.  He performed the landing with due care and skill, aligning the parachute into the wind on his final approach, and braking early to slow the parachute’s unusually fast descent.  The pair’s rapid descent to the ground was due to an isolated, localised downdraft that they encountered as they approached the landing area.  Ms Marks’ injuries were the result of the materialisation of a risk inherent in the activity of skydiving, which could not have been avoided by the exercise of reasonable care.  Skydive is not liable for those injuries in negligence, contract, or under the ACL.

Did the Waiver form part of the contract?

1. The online booking form completed by Ms Marks records her name and contact details, and that the full payment of $602.95 was made by credit card on 1 August 2018.  Under the heading ‘About Your Booking’, the following appeared:

Yarra Valley 15,000ft Tandem Skydive

Skydive the Yarra Valley and marvel at the incredible views of the Yarra Ranges Yarra Valley vineyards, and all the way to the city skyline as you freefall from up to 15,000 feet into one of Australia's favourite tourism destinations.

Inclusions

- Tandem skydive from up to 15,000ft over the Yarra Valley.

- 3 month membership of the Australian Parachute Federation.

- Personalised certificate of achievement, loyalty rewards card and bumper sticker.

- Free return transfers from Melbourne CBD (bookings essential)

1. On the third page of the booking form was some ‘Important Information’:

Yarra Valley

*Please complete the following steps in order to confirm your booking. If you have a group booking, please make sure all group members also complete these steps.

STEP 1: Aim to complete your Australian Parachute Federation Membership prior to arriving for your skydive.

STEP 2: Please print out the following Terms and Conditions, read and sign the document, and bring it along on the day of your skydive.

STEP 3: If you are under the age of 18, please print out the following Indemnity Form. This must be completed by a parent or legal guardian. Please note, that if a parent or legal guardian can not be present on the day of your skydive, you will also need to bring a photocopy of their drivers license along with this completed from.

Where to go: Our drop zone is located at Lilydale Airport, Yering, VIC

The Step 2 information included a hyperlink to Skydive’s Terms and Conditions.

1. An unsigned copy of the Terms and Conditions was in evidence, which did not include any waiver.  Notable terms were:

2. Booking Changes/Cancellation Policy:  Booking payments are per person (individual).  Booking payments are non-refundable but are transferrable.  …  Failure to go through with your skydive will forfeit your jump, no refunds will be given.  All bookings are final, no refunds are given for change of mind or change of experience to lesser value.  If your skydive is cancelled due to weather or other unforeseen circumstances, you will be required to book for another day, for the same experience. …

9. APF Included:  Australian Parachute Federation membership is included in all prices unless otherwise indicated.  No hidden fees or prices.

10. Acceptance of these Terms and Conditions:  Be advised that once received by SA[2] it serves as authorisation of your payment and acceptance of the terms and conditions stated.  You also agree to further indemnify SA, [its] associate companies, directors and associates against any risk or action related to your participation in your skydive.

[2]Skydive Australia.

1. At the bottom of the Terms and Conditions are blank spaces for a name, a signature, and some other details, including an emergency contact name and number.  Skydive did not discover or tender a copy of the Terms and Conditions signed by Ms Marks.  Ms Marks did not recall printing out the Terms and Conditions, or reading or signing the document, but said that usually she would follow instructions to do so.  She did not have a printer at home, but could have printed it at work.  She recalled providing an emergency contact, and it is most likely that she did so when completing and signing the Terms and Conditions.  I am satisfied that, at some stage between making the booking on 1 August and arriving at Lilydale airport on 18 August, Ms Marks printed and signed the Terms and Conditions referred to in the booking form.

1. The third page of the booking form also included a hyperlink to the ‘Australian Parachute Federation’ (APF) and a prompt to complete its membership form before arriving for the jump.  Again, Ms Marks had no memory of completing the membership form, but accepted that she usually would follow instructions of that sort.  The membership form that could be reached through the hyperlink was not in evidence.

1. Skydive tendered a document headed ‘APF Member Details’, which recorded Ms Marks’ name, date of birth, and gender.  It noted the ‘Date Joined’ as ‘18/08/2018’ and the ‘Affiliated Club’ as ‘VPC – Skydive Yarra Valley’.  Below those details is a set of drop down menus, as follows:

+        CONTACT

+        APPLICATIONS

+        MEMBERSHIP

+        INSURANCE

+        HISTORY

+        JUMPS

+        COMMENTS

+        WAIVERS

When the ‘Waivers’ menu is selected, it shows a club code ‘VPC’ and a start date of 15 August 2018. 

1. Evidence about this document was given by Luke Oliver, who is the chair of the APF’s Information and Communications Technology committee.  He is also a self-employed information technology consultant, an APF member, a qualified senior instructor with the APF, and an experienced skydiver.  He was familiar with the APF website and its membership records.  Mr Oliver confirmed that the APF Member Details document tendered by Skydive accorded with the APF’s member record for Ms Marks.  He explained that every person is required to join the APF through an affiliate club before performing any skydive, and that this is usually done by the person concerned completing an online form.  He said that metadata kept by the APF indicates that member records were created for both Ms Marks and Mr Cummins from the same IP address, connected to the Greensborough exchange, and that these were the only two entries in the APF membership database made from that IP address.

1. Mr Oliver’s evidence was that the ‘VPC’ waiver listed in Ms Marks’ APF membership record was the following waiver document:

You, Hayley Marks, hereby agree to be bound by the terms of this contract with SKYDIVE YARRA VALLEY and the persons named, jointly and severally as, the Providers in the definitions at clause (a) below.  The Providers agree to permit you to use their premises, aircraft and facilities for Parachuting Activities and to instruct you in Parachuting Activities upon and subject to the following terms and conditions:

a. Definitions – in these terms and conditions:

i.    “Claim” means and includes any action, suit, proceeding, claim, demand, damage, penalty, cost or expense however arising from or in connection with any Parachuting Activities, but does not include:

a. a claim against the APF by any person expressly entitled to make a claim under an APF insurance policy;

b.a claim against the APF under any right expressly conferred by its constitution or regulations.

ii.   “Parachuting Activities” means performing or participating in any capacity, including as a member, in any authorised or recognised APF activities, including but not limited to parachuting, training to parachute, flying in any aircraft being used for or in connection with parachuting and related activities.

iii. “The Providers” means, jointly and severally, in addition to SKYDIVE YARRA VALLEY, the following providers:

a. Roger Merridew Lilydale Airport; Geelong Surfcoast Airpark Pty Ltd; City of Port Phillip and their officers and employees where any Parachute Activities by SKYDIVE YARRA VALLEY may take place;

b. The staff (whether paid or volunteers), instructors, jumpmasters, coaches, ground control assistants, target or canopy control assistants, safety officers, parachute packers and riggers, and aircraft operators including but not limited to: (i) Australian Parachute Federation Ltd. and its directors, officers, members, servants or agents; (ii) The Victorian Tasmanian Parachute Council Inc. VTPC; (iii) SKYDIVE YARRA VALLEY; (iv) Experience Co Limited (ACN 167 320 470); Frankston City Council; Skydive the Beach and Beyond Melbourne Pty Ltd (ACN 169 446 664); Skydive the Beach and Beyond Yarra Valley Pty Ltd (ACN 167 197 864); Anthony Boucaut; Anthony Ritter; Skydive the Beach and Beyond Great Ocean Road Pty Ltd (ACN 167 042 819); STBAUS Pty Ltd (ACN 169 464 555).

b. Club Fees – …

c. Federation Fees – …

d. 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 undertaking any such recreational activity, you should ensure you are aware of all of 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.

e. Waiver – A supplier of recreational services or recreational activities can ask you to agree that statutory guarantees under the Australian Consumer Law (which is Schedule 2 to the Competition and Consumer Act 2010 (Cth)) do not apply to you (or a person for whom or on whose behalf you are acquiring the services or activities).

If you accept this form, you will be agreeing that your rights (or the rights of a person for whom or on whose behalf you are acquiring the services) to sue the supplier in relation to recreational services or recreational activities that you undertake because the services or recreational activities provided were not in accordance with the guarantees are excluded, restricted or modified as set out below.

f. For recreational services or recreational activities to which the Australian Consumer Law (Commonwealth) applies: By accepting this form, you agree that the liability of the APF and the Providers in relation to recreational services (as that term is defined in the Competition and Consumer Act 2010 (Cth)) for any:

i.    death;

ii.   physical or mental injury (including the aggravation, acceleration or recurrence of such an injury);

iii. the contraction, aggravation or acceleration of a disease;

iv. the coming into existence, the aggravation, acceleration or recurrence of any other condition, circumstance, occurrence, activity, form of behaviour, course of conduct or state of affairs:

a. that is or may be harmful or disadvantageous to you or the community;

b. that may result in harm or disadvantage to you or the community, that may be suffered by you (or a person for whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services or recreational activities;

is excluded and the application of any express or implied term that any services will be provided with due care and skill is hereby excluded.

For recreational services to which the Australian Consumer Law (Victoria) applies: Warning under the Australian Consumer Law and Fair Trading Act 2012: Under the Australian Consumer Law (Victoria), several statutory guarantees apply to the supply of certain goods and services. These guarantees mean that the supplier named on this form, the APF and the Providers, are required to ensure that the recreational services it supplies to you:

a.   are rendered with due care and skill; and

b.   are reasonably fit for any purpose which you either expressly or by implication, make known to the supplier; and

c.    are reasonably fit for any purpose which you either expressly or by implication, make known to the supplier; and

Under section 22 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the supplier is entitled to ask you to agree that these conditions do not apply to you. If you accept this form, you will be agreeing that your rights to sue the supplier under the Australian Consumer Law and Fair Trading Act 2012 if you are killed or injured because the services were not in accordance with these guarantees, are excluded, restricted or modified in the way set out in this form.

Note

: The change to your rights, as set out in this form, does not apply if your death or injury is due to gross negligence on the supplier’s part.

“Gross negligence”

in relation to an act or omission, means doing the act or omitting to do an act with reckless disregard, with or without consciousness, for the consequences of the act or omission.  See regulation 5 of the Australian Consumer Law and Fair Trading Regulations 2012 (Vic) and section 22(3)(b) of the Australian Consumer Law and Fair Trading Act 2012 (Vic).

Exclusion of rights under the Australian Consumer Law (Victoria): By accepting this form, you agree that the liability of the APF and the Providers for any death or personal injury (as defined in the Australian Consumer Law and Fair Trading Act 2012) that may be suffered by you (or a person from whom or on whose behalf you are acquiring the services) resulting from the supply of recreational services is excluded.

g. Release and Indemnity – In consideration of the APF accepting your membership application, you, to the extent permitted by law:

i.    release and forever discharge the APF and the Providers from all Claims that you may have or may have had but for this release arising from or in connection with your membership of the APF and or undertaking the Parachuting Activities; and

ii.   release and indemnify the APF and the Providers against any Claim which may be made by you or on your behalf for or in respect of or arising out of your death whether caused by the negligence or breach of contract by the APF or the Providers or in any other manner whatsoever; and

iii. indemnify and will keep indemnified and hold harmless the APF and the Providers to the extent permitted by law in respect of any Claim by any person:

a. arising as a result of or in connection with your membership or undertaking the Parachuting Activities; and

b. against the APF and the Providers in respect of any injury, loss or damage arising out of or in connection with your failure to comply with the APF’s or the Provider's rules and/or directions,

save that the above releases and indemnities shall not apply to the extent that the loss, damage or injury that is the subject of the Claim is caused or contributed to by the grossly negligent act or omission of the APF and/or the Providers.

h. Insurance – You acknowledge and agree that the fee for undertaking the Parachuting Activities and the fee for becoming a member of the APF does not include personal accident insurance cover. You agree that you are responsible for your own personal accident, medical and/or life insurance and any and all expenses in the event of injury or death. The APF and the Providers do offer personal accident insurance coverage for an additional fee should you choose to take up such limited APF personal accident insurance. If you consider it appropriate to take out such APF personal accident insurance, you acknowledge that before doing so you have taken into account such APF personal accident insurance cover and your own circumstances.

i. Disclosure of Medical Conditions – You warrant that you:

i.    are and must continue to be medically and physically fit and able to undertake and participate in the Parachuting Activities;

ii.   are not a danger to yourself or to the health and safety of others;

iii. have not at any time suffered any blackout, seizure, convulsion, fainting or dizzy spells; and

iv. are not presently receiving treatment for any condition, illness, disorder or injury which would render it unsafe for you to take part in parachuting or flying including undertaking the Parachuting Activities.

You acknowledge that you must, and you agree that you will, disclose any pre-existing medical or other condition that may affect the risk that either you or any other person will suffer injury, loss or damage.  You acknowledge that the APF and the Providers rely on information provided by you and that all such information is accurate and complete. You must inform the Provider if any such medical or other condition arises after you agree to this Parachuting Contract and prior to undertaking the Parachuting Activities. You agree to report any accidents, injuries, loss or damage you suffer during any Parachuting Activities to the APF and the Providers before you leave any relevant venue. You acknowledge that if any of the warranties you make under this clause (i) can no longer be made by you on the date you undertake the Parachuting Activities, you must inform the Provider on arrival and before you participate in any Parachuting Activities.

j. Inherent Physical Contact – You acknowledge and accept that close physical contact with the Providers is inherent in undertaking the Parachuting Activities. You accept such close physical contact is necessary to undertake the Parachuting Activities.

k. Exclusion of Applicant – You warrant that you have not at any time been excluded from parachuting by a medical practitioner or any person or entity including the APF and its constituent Area Councils and Clubs. You acknowledge and agree that the Providers may demand a medical certificate or opinion as to your fitness from a qualified medical practitioner PRIOR to your undertaking the Parachuting Activities. You acknowledge that if the warranty you make under this clause (k) can no longer be made by you on the date you undertake the Parachuting Activities, you must inform the Provider on arrival and before you participate in any Parachuting Activities.

l. Safety – You understand and acknowledge the dangers associated with the consumption of alcohol or any mind-altering substance before or during your involvement in undertaking the Parachuting Activities, and you accept full responsibility for injury, loss or damage associated with the consumption of alcohol or any other mind-altering substance. You agree to follow any rules set by the APF in connection with any Parachuting Activities. If you fail to comply with the APF's rules and/or directions, you will not be permitted to participate or to continue to participate in the Parachuting Activities and no refund will be given. If you suffer any injury or illness, you agree that the APF and/or the Providers may provide evacuation, first aid and/or medical treatment at your expense and that your acceptance of these terms and conditions constitutes your consent to such evacuation, first aid and/or medical treatment.

m. Parachuting done at Parachutist’s own Risk – Any person parachuting, training to parachute, flying in any aircraft being used for or in connection with parachuting or participating in any activity carried on by SKYDIVE YARRA VALLEY may only do so on the distinct understanding that they do so entirely at their own risk.

n. Acceptance – Performance of the Providers’ obligations under the contract may be effected by any one or more of the providers either jointly or severally.

o. Bar to proceedings – The Providers (or any of them including the APF) may plead this contract as a bar to proceedings now or in the future commenced by or on behalf of you or by any person claiming through you. Where you seek to commence proceedings against the Providers or any of them, you:

i.    will commence those proceedings in the courts of the jurisdiction in which any incident occurs;

ii.   waive any right to object to the exercise of such jurisdiction;

iii. will, where you seek to commence proceedings in another jurisdiction from where any incident occurs, consent (if required by the Providers or any of them) to move those proceedings to the jurisdiction in which any incident occurs including consenting to any application made by the Providers of any of them to remove the proceedings to the jurisdiction in which any incident occurs;

iv. will pay the costs of any application made by the APF and/or the Providers or any of them under paragraph (iii) above and will consent to any application for security of costs made at any time by the Providers or any of them; and

v.   consent to paying the Providers' legal defence costs of the proceedings (on a solicitor client basis) where the Providers successfully defend the proceedings.

p.Governing Law – The governing law of this agreement is the law of the state of Victoria ('Jurisdiction'). You irrevocably and unconditionally consent and submit to the Jurisdiction of the courts of the Jurisdiction in which any incident occurs and waive any right to object to the exercise of such Jurisdiction.

q.Statement of Understanding – You have read, or have had read to you the above conditions and having understood the same, you consent to the activities proposed.

r. Prevailing conditions – You acknowledge and agree that:

i.    parachuting and the Parachuting Activities can and will be affected by the weather which may change without warning; and

ii.   there is often an element of the “luck of the prevailing conditions” when undertaking the Parachuting Activities over which the Providers or any of them have no control;

iii. despite careful packing, the parachute may open abruptly (i.e. experience a hard opening) and the parachutist may suffer an injury (including injuries sustained from a hard landing); and

iv. unintended incidents may occur in flight, in the descent or upon landing.

s. Use of Image – …

t. Privacy – …

u. Entire agreement – This agreement (and the documents to which it refers) constitutes the entire agreement between the parties in respect to the Parachuting Activities and supersedes all other agreements, understandings and representations and negotiations with the Providers or any of them in relation to the Parachuting Activities. To the extent that any clause of this agreement is void or unenforceable it is severable and does not affect the remaining provisions of the agreement.

PLEASE NOTE THE FOLLOWING:

If the Competition and Consumer Act 2010 or similar State laws operates so as to prevent the exclusion, restriction or modification of warranties otherwise implied by those laws then the liability of the Provider for breach of warranties is limited to:

i.    the re-supply of the parachuting instruction and related activities; or

ii.   the payment of the cost of having the parachuting and related activities supplied again.

The questions are as follows:

Are you prescribed drugs which may impair reaction time or judgement?	○        Yes	◙        No
What Drugs:
Have you been SCUBA diving in the last 24 hours?	○        Yes	◙        No
Give details of depth and duration of the dive:
Do you have any medical condition which might render it unsafe for you to go flying or parachuting? (Note: You are required to respond “Yes” to this item if you have previously suffered any dislocation, break or fracture to your shoulders, hips, back or legs.)	○        Yes	◙        No
Provide Details:
Have you ever been excluded from parachuting in the past by a medical practitioner or any other person or entity?	○        Yes	◙        No
Provide Details:
Have you ever been excluded from parachuting in the past by a medical practitioner or any other person or entity?	○        Yes	◙        No

1. Mr Oliver said that the waiver document is ‘the thing that you must scroll through and acknowledge prior to becoming a member of the federation’.[3]  The four questions at the bottom of the waiver must be answered by an applicant in order to complete the membership form.  However, Mr Oliver did not describe or demonstrate how the waiver document is presented to an applicant for membership, and did not say whether an applicant is also asked to confirm that they have read the waiver and agree to be bound by it.

   [3]Transcript 457:23–24.

1. Cross-examination of Mr Oliver highlighted that the APF is a separate entity from Skydive.  Mr Oliver was unable to explain the relationship between the two entities.  He believed that the acronym ‘VPC’ stands for Victorian Parachute Council, which is the Victorian branch of the APF.  He also believed that Skydive Yarra Valley was a part of Skydive Australia, which he described as a publicly listed company.

1. Skydive tendered an ASIC extract confirming that ‘Skydive Yarra Valley’ is a registered business name held by Skydive Holdings Pty Ltd.  There was no evidence as to any relationship between Skydive and either the Victorian Parachute Council or the APF.

Submissions

1. Skydive accepted that it bore the onus of proving that the waiver formed part of the contract between it and Ms Marks.[4]  It submitted that the evidence was unambiguous that it did.  It argued that it was clear from the booking confirmation that membership of the APF was required before the booking for 18 August 2018 was confirmed.  Skydive submitted that a completed APF membership application was a condition precedent to the formation of the contract, so that there was no binding and concluded agreement between the parties until the membership application was completed. 

   [4]Transcript 584:4–12.

1. Although Ms Marks had no recollection of completing an APF membership application, it was her usual practice to follow steps she was asked to complete in the booking form.  Skydive submitted that the inescapable inference from the evidence of Mr Oliver, the APF membership record, and the metadata, was that Ms Marks completed her application online on 15 August 2018.  It further submitted that, in doing so, she accepted the waiver.

1. As to the identity of the parties to the waiver, Skydive accepted that it was not specifically mentioned in the waiver.  It relied on the fact that ‘Skydive Yarra Valley’ is a registered business name held by it, to submit that the clear intention of the parties was that Skydive was a party to the waiver.

1. Ms Marks argued that the waiver did not form part of her contract with Skydive because:

(a)        the contract was formed on 1 August 2018 when she made the online booking, paid, and received the booking confirmation, which contained no waiver;

(b)       the waiver was part of an agreement between her and the APF, to which Skydive was not privy;

(c)        there was no consideration for a separate waiver agreement; and

(d)       Skydive failed to draw her attention to the waiver.

1. Ms Marks drew attention to the Terms and Conditions of the online booking, which provided that the booking payment was non-refundable.  Membership of the APF was expressed to be an ‘inclusion’ of the booking, not a precondition to the performance of the contract by Skydive.  On that basis, she submitted that the contract was formed on 1 August 2018, when she booked and paid in full for the two jumps.

1. She submitted that the waiver by its terms was a completely separate contract to the parachuting contract, relying on the entire agreement clause of the waiver.  To the extent that the waiver was part of her membership agreement with the APF, it could only protect the APF; it provided no protection to Skydive, as a third party to the membership agreement.  Further, there was no consideration passing from Skydive to Ms Marks to support a separate waiver agreement between them.

1. Ms Marks also contended that there was insufficient evidence to prove that she accepted the waiver.  She did not recall seeing it, and the APF membership record and metadata did not establish that she had seen the waiver, read it, or accepted its terms.  Further, Skydive could not rely on the waiver because it did not, at the time she made the booking, do what was reasonably necessary to bring the waiver to her attention.[5]

   [5]Relying on Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197, 228–229 (Brennan J) and Baltic Shipping Company v Dillon (1991) 22 NSWLR 1, 25 (Kirby P).

Consideration

1. I find that the waiver was not part of the contract that Ms Marks entered into with Skydive on 1 August 2018, when she booked and paid for two tandem jumps on 18 August 2018.  The contract was formed at that time.  The terms and conditions of the contract stipulated that the payment was not refundable, and that failure to go through with the booking would forfeit the jumps, with no refunds given.

1. The booking confirmation presented membership of the APF as an added extra included with the booking, together with a personalised certificate of achievement, transfers to and from Melbourne, and a bumper sticker.  The confirmation asked Ms Marks to ‘aim to complete’ her APF membership application before arriving for her jump, but did not require her to do so.  The terms and conditions stated only that APF membership was included in all prices unless otherwise stated, with no hidden fees or prices.  Neither the booking confirmation nor the terms and conditions mentioned the waiver, or required Ms Marks’ acceptance of it before Skydive provided services under the contract.

1. I reject the submission made by Skydive that becoming a member of the APF was a condition precedent to the formation of the contract.  The submission was not consistent with the words used in the booking confirmation or the terms and conditions.  There was no evidence that anyone associated with Skydive checked that Ms Marks had become a member of the APF, or accepted the waiver, before her jump.  Notably, Skydive did not call Matthew Gridley, who was the manifester at Yarra Valley on 18 August 2018, and the person most likely to have checked whether Ms Marks had taken the steps set out in the booking confirmation.

1. Based on the metadata evidence, I find that on 15 August 2018, one or both of Ms Marks or Mr Cummins clicked on the link to the APF website and provided the information requested in the APF membership application form.  This information included their names, email addresses, and the answers to the safety questions.  I am unable to determine which of them did so.

1. If it was Ms Marks who completed the membership application, I am not satisfied that she saw or accepted the waiver.  Skydive did not tender a copy of the webpage that was presented to a person who clicked on the link to the APF website, and there was no evidence about the form of the membership application.  The APF member record and the metadata indicate only that certain personal details and safety information were provided on 15 August 2018.  There was no record that the waiver had been read and agreed to by anyone.  If it was necessary to scroll through to the end of the waiver before answering the safety questions, merely answering those questions did not signify that Ms Marks accepted the terms of the waiver.

1. Further, I am not satisfied that Ms Marks would have understood she was waiving her rights to make any claim against Skydive by completing the APF membership application form, including by answering the safety questions.  Skydive and the APF are separate entities, and the relationships between them and their constituent parts were not explained by the evidence at trial.  There was no explanation in the booking confirmation or the terms and conditions of any relationship between the business operated by Skydive and the APF, or the Victorian Parachute Council/VPC, or the skydiving club VPC Skydive Yarra Valley. 

1. If Skydive wished to include the terms of the waiver in its contract with Ms Marks, it could have included them in the terms and conditions referred to in the booking confirmation.  Rather than doing that, Skydive sought to rely on a document that (on its best case) was made available to Ms Marks on a third party’s website after she had made the booking.[6]  In those circumstances, Skydive could not rely on the waiver unless it had done what was reasonable to draw the waiver and its terms to Ms Marks’ attention.[7]  The evidence does not establish that it did.  The waiver instead formed part of the membership records of a separate entity, the APF, which Skydive asked Ms Marks to join before undertaking her jump.  While I find that Ms Marks joined the APF on 15 August 2018, I am not satisfied that she saw or accepted the waiver at any time before her jump on 18 August 2018.  It follows that the waiver did not form part of the contract between Skydive and Ms Marks, and cannot be relied upon by Skydive as a bar to Ms Marks’ claims.

   [6]Noting that the evidence did not satisfy me that the waiver was presented to or accepted by Ms Marks on joining the APF.

   [7]See e.g. Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163; Oceanic Sun Line, 207-208 (Wilson and Toohey JJ), 227–229 (Brennan J), 261 (Gaudron J); and Baltic Shipping, 7–8 (Gleeson CJ), 24–25 (Kirby P).  Unlike these and other ‘ticket cases’ (discussed in JW Carter, Contract Law in Australia, (7th ed, 2018), [10–17]), in this case Skydive neither made an offer to contract with Ms Marks on the terms set out in the waiver, nor provided the waiver to her after the contract was concluded.

1. It is unfortunate that Skydive did not draw the waiver to Ms Marks’ attention, or require her to read and acknowledge that she understood it before her jump.  The risk warning and waiver at clause d, and the explanation of the ‘luck of the prevailing conditions’ at clause r, make it abundantly clear that skydiving is inherently dangerous, involves a risk of personal injury, and may be affected by weather conditions that are beyond anyone’s control and can change without warning.  Had the document been presented to Ms Marks when she made the booking, or at any time before her jump, she could have made an informed decision whether to assume the risks involved in skydiving.

What went wrong?

1. The question of liability turns on what went wrong at the end of the jump on 18 August 2018.  Ms Marks claims that her tandem instructor failed to manage and control the parachute by guiding it into the wind during the landing, and made an error of judgment in preparing for final landing by failing to adjust for the wind conditions.  Skydive contends that neither of these things occurred and that the heavy landing was the result of a downdraft that it could not control, take reasonable measures to prevent, or foresee.

1. Ms Marks recalled ‘just falling’ before the parachute opened.  After that, she and Mr Dale floated downwards and had time to talk.  Ms Marks recalled being very nervous.  As they approached the ground, Mr Dale told her to get into the landing position, which she did.  They then landed, heavily and abruptly.  As Ms Marks put it, they ‘slammed into the ground rather than landed on the ground’.[8]

   [8]Transcript 57:26–27.

1. The final few seconds of the descent and the landing were captured on video.  The video was played a number of times during the trial, and I have watched it many times since.  When the pair first come into view, they look to be about 15 metres (or 50 feet)[9] off the ground.  Ms Marks is holding her legs up in the landing position; Mr Dale’s legs are still vertical and his hands are above his shoulders.  The canopy of the parachute is level and the drogue is trailing behind it, at a right angle to the canopy.  They are descending very rapidly, although the canopy is fully inflated.  When the pair is about 10 metres (or 30 feet) above the ground, the canopy lists to the right.  By then, Mr Dale’s hands are nearly at shoulder level.  The canopy continues to roll to the right, as Mr Dale brings his hands down to hip level and brings his legs under Ms Marks’ legs.  Within another second, they land extremely heavily and roll to the right, with the canopy collapsing to the ground further to their right.  No more than three seconds passes between the first glimpse of the pair on the video and the moment they hit the ground.

   [9]Most witnesses estimated altitude in feet rather than metres.

Barry Cook, meteorologist

1. The wind conditions during the descent and at the time of the landing were the subject of expert evidence.  Skydive relied on a report of Barry Cook, a meteorologist and technical director in the Melbourne office of GHD, prepared at the request of its solicitors.  Mr Cook prepared his report with the benefit of the meteorological data recorded by the Bureau of Meteorology (BoM) automatic weather station at Coldstream, 4.5 kilometres to the south-east of the Lilydale airfield.  He interpreted the BoM wind speed readings at Coldstream up to 1:00 pm on 18 August 2018 as follows:[10]

   [10]Report of Barry Cook dated 31 March 2020, [7.19], [7.21]–[7.23].  Mr Cook explained his calculation of the travel time between Lilydale and Coldstream, of 10 minutes for a 10 knot wind and 7 minutes for a 15 knot wind, in a letter addressed to Ms Marks’ solicitors, dated 23 November 2020.

(a)        the wind directions between 12:00 pm and 1:00 pm were in a narrow band, consistently, from just north of west;

(b)       the wind strength from just after sunrise to shortly after 11:00 am was within the range 5 to 10 knots;

(c)        from about 11:15 am to the time of the incident there was deeper convective activity producing winds in the range of 10 to 18 knots;

(d)       there was a lull in winds occurring at Lilydale at around the time Ms Marks landed, 7 to 10 minutes before the same lull was recorded at Coldstream.

1. Mr Cook’s report summarised his opinion as follows:[11]

I have concluded that the prevailing meteorology of the Incident date resulted in strong west-southwest cyclonic winds, which resulted in regional winds at a range of mostly 10 to 15 knots, from noon to after the incident time, with an approximate 10-minute lull (a period of lighter winds) then occurring at the 12:37 pm Incident time before a few minutes of gusting winds to 25 knots occurring 12:49 to 12:51 pm.

My interpretation of the 1-minute wind records of the nearest BoM Automatic Weather Station (AWS), at Coldstream 4.5 km away, is that by the time of the incident at 12:37 pm AEST, the winds had remained steady in direction but a lull in speeds and a drop in temperature indicated that a downdraft occurred.

My experience with weather forecasting for this district and forensic examination of severe weather events leads to an opinion that during this incident, there was a lack of severe weather elements that would lead to wind strengths or wind shear being above the thresholds of severe weather types. This leads to the deduction that strong wind strength and lightning/thunder associated with deep convection were not involved. However, my interpretation of available data sources suggests that, relatively gentle, gusts and wind shifts, due to weak updraft and downdraft activity, occurred over the incident area at the Incident time.

I conclude that a particular, localised and isolated downdraft produced a lull in the wind and with descending (downdraft) air lasting for no longer than ten minutes around the time of the incident at 12:37 pm AEST 18 August 2018.

As these wind events are short-lived and limited in area (ground footprint) they are difficult to near impossible to forecast. Moreover, previous tandem parachute descents, both a few minutes before and previous ‘loads’ at approximately 40 and 80 minutes beforehand, were successfully executed.

A basic understanding [of] the physics involved leads to a conclusion that the combination of less wind speed (available for the parachute aero-foil) and the downdraft was an unfortunate random event affecting the parachuting instructor and the Claimant.

[11]Report of Barry Cook dated 31 March 2020, [1.3]–[1.8].

1. I accept Mr Cook’s evidence without reservation.  His report was thorough, considered, and based on meteorological data recorded by a BoM automatic weather station not far from Lilydale airfield.  His expertise and his opinions were not challenged by Ms Marks.

Sam Dale, tandem instructor

1. As mentioned, Sam Dale was the tandem instructor for Ms Marks’ jump on 18 August 2018.  He completed a Diploma in Commercial Skydiving in 2015, and since then has worked in skydiving in Australia, New Zealand, and the United States.  In April 2018, he qualified as a tandem instructor, and subsequently worked for Skydive in that role.  As at 18 August 2018, he had completed about 950 jumps; when he gave evidence in November 2020, his total jumps were about 3,000.  At the time of the trial, he was working as a skydiving instructor in Queenstown, New Zealand.

1. Mr Dale gave evidence about the tandem jump with Ms Marks on 18 August 2018.  He said that he had done two jumps earlier that day, and had found the wind conditions to be moderate.  He recalled that the wind conditions on the day were ‘pretty consistent’, and that the jump with Ms Marks was ‘just a regular jump’ until the last 10 seconds.[12]  He opened the canopy at about 4,500 feet, upwind of the landing area.  He then described executing a series of left hand turns as they approached the landing area, until they were just past the spot where he was trying to land.

   [12]Transcript 375:5–16.

1. At about 200 feet, he turned west to face into the wind for their final approach.  He judged his alignment to the wind by reference to windsocks in the landing area, and the fact that three other canopies had just landed to the west.  After he turned onto the final approach, ‘that’s when I felt it’[13] — the canopy was sinking at a massive rate, a lot faster than he had ever experienced before, and it was not responsive or flying as it should.  Pretty quickly he knew that the situation was unusual.  He described what had occurred as encountering ‘sink’.[14]  He told Ms Marks to lift her legs up and started to flare his parachute at about 30 feet from the ground.  He pushed the toggles right down, as far as he could, but unusually this did not slow their acceleration towards the ground.  The canopy did not track in any particular direction; they came straight down and hit the ground.

   [13]Transcript 382:8–9.

   [14]Transcript 381:27–382:18.

1. Shown the video of the landing, Mr Dale confirmed that he was facing straight into the wind as they came down to land.  He noted that the drogue was trailing right behind them, they were coming straight down, and the canopy was not being pushed in any direction, as you would expect with a crosswind.  Mr Dale said that attempting a turn that close to the ground would potentially be fatal.  He explained the process of flaring, pulling the toggles down with his arms until they were just above his waist about 15 feet off the ground.  At that point, the canopy was not responding and he was anticipating a hard landing.  He told Ms Marks to hold her legs up, tried to sit underneath her to take the impact, and completed flaring, before they hit the ground.  He said that there was nothing else he could have done to avoid their hard landing, it was unfortunate turbulence.

1. Mr Dale adopted the contents of the incident report he provided to the APF Safety and Training Officer, in an email dated 29 August 2018:

At the time of the incident i was jumping a 330 Precision Canopie, with a Exit weight of 182kg and a WL of 1.23.  The Meteorological conditions were 20 to 25 knots NW at opening height down to 1000ft and the ground winds were 15 to 18 knots W.

On the morning of the 18th i had completed 1 sporty and 1 tandem prior to the incident and was comfortable with the condition's presenting them-self.

The Tandem de[s]cent with Haley was uneventful and went without any problems. Upon opening i did a full control check and orientated my self in a NW direction and was holding on the other side of the runway. My landing pattern began at 900 ft situated NW of the PLA and over the Taxi way, i crabbed South holding to the West, i made a right hand turn facing North and was pushed further East than i anticipated, so i turned left holding West again. At an appropriate height i made another right turn to the North then Left on to Finals with plenty of height. On the Final leg i encountered some southerly winds and made a slight correction to the left, Upon landing i was coming down straight with no forward drive, The canopie was descending at a fast rate, i started my flair to what i believe was an appropriate height but the canopie was unresponsive, i progressively continued flair input and found no response until we contacted the ground.

1. Mr Dale was cross-examined at some length about his approach to the landing area after the canopy had opened.  Despite the challenges presented by giving evidence over a video link from New Zealand, he was able to draw a diagram of his approach and the direction in which he landed, and later added an arrow indicating the direction of the wind at the time of landing.

1. He was asked a number of questions about the video of the landing.  In answer to those questions he clarified that he initiated the turn into his final approach about 100 feet above the point where the pair appears on the video, 50 to 60 feet above the ground.  He confirmed that he landed facing to the west, into the wind.  Asked about the canopy’s roll to the right after the landing, he said that he did not think it was because of the wind, and suggested that it might have been caused by him letting go of the left hand toggle when he hit the ground.  He did not agree that the wind in the canopy pulled him and Ms Marks along the ground after their impact.

1. Mr Dale did not agree with the proposition that he did his final turn so that his parachute was at 90 degrees to the direction of the wind.  He said:[15]

I turned into the line of flight and I turned into the – into the – to the wind direction, I landed to the west.  The canopy came straight down.  If we – if I wasn’t on wind line the canopy would have been pushing me.  When we were coming straight down like this, if I was – I don't know – you’re trying to say that I was coming from the south is what I’m gathering from you.  If we were coming straight down, it would have been pushing us to the north.  We weren’t going to the north when we landed.  We were going straight down.

[15]Transcript 442:15–24.

1. It was also put to Mr Dale that he should have done a right-hand turn into his final approach, as his colleague Stephen Smedley had done moments before.  He rejected that suggestion:[16]

… it’s not going to change how the canopy flies if I did a left-hand turn or a right-hand turn.  It’s more for traffic.  Everyone wants to be landing in the same direction.  It doesn’t affect – it doesn’t affect how the canopy lands whether I do a left-hand turn or a right-hand turn.  It does the same thing.  I don’t think – whether I turn left or right is irrelevant to that last part of the landing.

[16]Transcript 444:30–445:6.

1. He agreed that nothing like that landing had ever happened to him before.

Stephen Smedley, tandem instructor

1. Stephen Smedley is a senior instructor with the APF, and has a number of endorsements including drop zone safety officer and tandem instructor.  He has been parachuting for 37 years, and has been actively jumping for 34 of those years.  During that time he has made around 13,200 jumps. 

1. On 18 August 2018, Mr Smedley was working for Skydive as the drop zone safety officer at Yarra Valley, and as a tandem instructor.  He and another student went up in the plane at the same time as Ms Marks and Mr Cummins.  It was the third sortie of the day, and the weather conditions were adequate, with moderate winds from the west.  The first two sorties had been uneventful, although after the first skydive Mr Smedley moved the landing area to avoid hazards from buildings, in case the wind swung to the north.

1. Mr Smedley and his student landed second of the three pairs, and he was able to observe Ms Marks and Mr Dale land.  He described the three landings as follows:[17]

   [17]Transcript 521:7–522:4.

On the way down under canopy I did note that the wind had picked up quite considerably at around the, what I call medium to low level, at around 1,000 feet to 1,500 feet.

It picked up to about 20 knots, which simply means that the canopy is holding and I felt because of that strength there of the - that wind, I did - decided to do a right-hand approach for my landing.  I’d normally do a left-hand approach there, it’s just my personal choice, and I ended up landing absolutely fine.  I’ve noted the first person that left the plane also landed where we anticipated and appeared to land well.

After landing I - I did look up to see where Sam was and noted that he was further downwind from us.  I don’t recall exactly the altitude but he was at a - what I would regard as a safe altitude on his final approach to land and couldn’t believe what I saw, his canopy fully inflated and it’s like a big hand from God, just pulling him down to the ground. The canopy didn’t collapse but he was actually just accelerating to the ground.  I noticed him applying brakes.

That would definitely be a higher altitude than what you’d normally do, but under the circumstances that’s exactly what I expected him to do from what I saw, and then he landed very, very heavily on his, um, right-hand … side.  He did instruct the student to lift their legs, as we do for all landings, but landed very, very heavily, coming straight down with no response to the flare from the canopy.

Although he had thought about it a lot, he was not able to say definitively why Mr Dale’s canopy experienced that increased acceleration to the ground.  He thought it might have been because of ‘wind shear’ — a dramatic change of wind direction.

1. In his capacity as drop zone safety officer, Mr Smedley completed an incident report for the APF, in which he summarised the incident as follows:

The Tandem jump was the third dive out of three for the day.  Conditions were noted by all TM’s to be good to jump in.  Winds were quite consistent from the West blowing from 10 to 18 kts over the course of the morning.  Two tandem pairs landed uneventfully only moments before.  On this particular jump TM was set up well into wind at about 10m then experienced a high descent rate.  Attempt was made to arrest this by flaring higher than normal.  This appeared not to have any effect on the descent rate at all.  Canopy did not stall so this was not a factor in this landing.  Both TM and passenger landed very heavily on their right sides.  Both were winded badly and both felt immediate soreness in their sides and mid back.

He also completed a supplementary injury notification form, in which he noted that, during the jump, Ms Marks had performed her tasks very well, was a model student in freefall, and ‘executed a very good legs up position on short finals’ as asked by her instructor.  As to the cause of the incident, he commented:

Sudden low-level wind shear with winds veering 70 degrees while this load of tandems was landing caused a period of high sink for this third and last Tandem pair.

1. Mr Smedley made a more detailed written statement shortly after the incident, which gave more context for his explanation of what had gone wrong:

I was second to land of three Tandem loads.  I did notice at 1000ft I needed to HOLD into wind and the wind had swung a good deal from the South as I was unable to execute my usual Left hand turn on to finals.  As I started my downwind I estimated the wind to have been about 20kts at 300ft.  I turned right onto finals and had a good landing.

While performing a video interview with my student I turned to watch the final TDM landing and saw Sam setting up about 40m further downwind than I expected.  He executed a right turn onto finals to set up at approximately 10m.  At this point it could be seen he was experiencing a very high rate of descent.  He started his flare in an attempt to arrest this rate, but it had no effect.  He did complete his flare fully and in no way induced a canopy stall situation.  His canopy kept wanting to turn to the right without his input.  It looked like he was experiencing low level wind shear.

Reviewing the video later also showed the cloud shadows moving from right to left across the field of view showing that the wind at a couple of hundred feet up had in fact swung about 70 degrees from when we had left the aircraft.  The ground winds were still West.

1. In cross-examination, it was put to Mr Smedley that he could see on the video that Mr Dale’s parachute was not aligned to the wind.  He disagreed, saying that the wind was westerly on the ground, and that Mr Dale was correctly set up according to the ground wind.  He noted cloud movement from the south-west to the north-east at a higher altitude, but was adamant that the ground winds were westerly.

1. Mr Smedley agreed with the cross-examiner that the video appeared to show wind coming across Mr Dale’s left side, and minor dragging to the right, after the landing.  He disagreed that Mr Dale’s alignment to the wind was suboptimal, saying:[18]

In that situation, if Sam experienced or I experienced any strong wind from the left or right quadrant at that low altitude, he’s experiencing it, if he turned the canopy any more to be directly into the wind if he was chasing it, he would give the canopy more reason to collapse on the upwind side.

He reiterated that Mr Dale’s parachute was aligned into the wind on the video, and said that the amount of crosswind was negligible.  He said that in 57 years, he had not seen ‘a situation where a canopy drops vertically out of the sky as that did while every cell remained inflated’.[19]

[18]Transcript 543:29–544:3.

[19]Transcript 544:26–28.

1. Taken to his written statement, in which he noted that Mr Dale’s canopy kept wanting to turn to the right without his input, he said he assumed that was because the wind was pushing him to the right.  He agreed that, at that point, Mr Dale was not aligned directly to the wind, but added that turning left and right continually in turbulent conditions would upset the steady flight of the canopy.[20]

   [20]Transcript 546:29–31.

1. In re-examination, Mr Smedley clarified that the point of time when Mr Dale’s canopy was not aligned to the wind was about one second before the pair landed.[21]  One second before that, he said they were directly aligned to the wind.  He agreed that Mr Dale letting go of the left hand toggle would cause the canopy to spill over to the right.

   [21]Transcript 550:17–26.

Matthew Gridley, manifester

1. Skydive tendered a written statement dated 31 August 2018 provided to the APF’s Safety and Training Officer by Matthew Gridley, who was Skydive’s manifester on 18 August 2018.[22]  I include the relevant parts of that statement for completeness:

Her jump was the final jump of the day.  Sandy was wary of approaching westerlies and we had moved our landing zone to our southern grassy area adjacent the hangar alongside ours.  The winds had been up and down but not above our limits prior to the jump.  Piri jumped first and landed relatively close to the taxiway.  The winds were light enough that he was happy to shut down his canopy without assistance from Sandy, Will and myself.  Steve Smeds landed second in almost no wind with a standard legs-up landing.  Not long after his landing the uppers and ground winds increased sharply.  Sam was still commencing landing approach when the winds arrived.  I signalled to Will that he would be landing considerably more downwind to the others and we began running toward where Sam was being taken by the gusts.  I was accompanied by Sandy and a spectator, the father of Smeds’ passenger.  Sam went over our heads and turned into the wind at considerable height.  He flared but lost all forward movement.  Sam and Haley dropped vertically rather suddenly and both came down hard in a seated position.

[22]Ms Marks objected to the tender of the statement, on the basis that it was hearsay, but I ruled it admissible as a business record, under s 69(2) of the Evidence Act 2008 (Vic): see transcript 554:16–557:11.

1. As mentioned, Mr Gridley was not called as a witness, and Ms Marks had no opportunity to test his account of the landing.  For that reason, the statement carries little weight in isolation.  However, it is notable that Mr Gridley’s account is consistent with the evidence of Mr Dale and Mr Smedley that Mr Dale turned into the wind to land but, despite flaring, dropped rapidly to the ground.  It also supports Mr Smedley’s observation of turbulence around the time of the landing.

Clyde Summers, skydiving expert

1. Ms Marks called Clyde Summers as an expert witness.  Mr Summers is an experienced skydiver, having performed 3,515 jumps since his first jump in 1973.  He won a number of medals in national and international parachuting competitions in the 1980s, and judged parachuting competitions between 1988 and 1994.  He was a member of the United States Parachute Association for more than 30 years, and a member of the APF between 1995 and 1999.  He qualified as a static line and accelerated freefall instructor in both the United States and Australia, holding an APF licence from 1995 to 1999.  He has managed commercial skydiving operations in the United States and Australia, most recently as manager of operations at the Byron Bay Skydiving Centre in 2001 and 2002.

1. Mr Summers was asked to provide an opinion about the cause of the incident, based on his consideration of information including the video footage of the landing, the two incident reports prepared by Mr Smedley, the written statements provided by Mr Smedley, Mr Dale and Mr Gridley, the BoM weather data, and Mr Cook’s report.  His opinion was that the cause of the incident was an error of judgment by Mr Dale in preparing for the final landing approach and failing to adjust for wind conditions.  He explained that conclusion as follows:[23]

   [23]Expert report of Clyde Summers dated 22 June 2020, [6.3]–[6.20].

After viewing the video of the landing and reading the witness reports provided by the staff present during the landing incident, it is clear that the tandem master failed to adjust to the wind conditions in order to provide a safe landing for himself and the passenger.

In the video, upon landing, the tandem master and passenger were moving laterally to the right causing the pair to land on their right sides.

This is one indication that the tandem parachute was not properly aligned with the wind direction and causing both to land with greater force than necessary.

Just after the landing, the tandem master and passenger were briefly dragged laterally along the ground indicating that the tandem parachute was being pushed laterally to their right by the winds.

The tandem parachute was forcefully pushed laterally, indicating that the orientation of the tandem parachute during landing was well to the right of the wind direction.

During the final approach to landing, the tandem master should have recognised that he was not properly aligned into the direction of the wind and made adjustments to realign the tandem parachute to allow a safe landing.

In the video, it is apparent that the still inflated tandem parachute was pushed to the right by the wind.

If the tandem master had been properly aligned in the direction of the wind, the tandem parachute would have deflated and come to rest behind the pair instead of to the right.

The weather station report shows the winds to be favourable for safe landing on the day.

The weather report shows that five minutes before the landing incident and five minutes after the landing incident there were no significant wind speed changes nor significant changes in the wind direction ...

The wind speed for this 10-minute period showed the winds to be well within wind limits and were 12-26 kph.

The wind direction in the weather report for this 10-minute period shows the wind direction varied 18 degrees and not 70 degrees, as asserted by Mr Smedley in the witness reports.

I note the report issued by Mr Smedley observing Mr Dale’s landing approach; he stated, “His (Mr Dale’s) canopy (parachute) kept wanting to turn to the right without his input”.

This indicates that the tandem master failed to recognise that his parachute was tracking laterally to the wind direction and Mr Dale failed to adjust to the wind direction prior to landing.

There is a procedure that any parachutist follows when preparing to land that involves assessing the wind speed and direction and applying that assessment well before the final landing approach.

In Mr Dale’s statement, he indicated that he “encountered some southerly winds and made a slight correction to the left”.

It is clear that Mr Dale failed to properly assess the wind direction and made only a “slight correction” in order to be landing into the wind and continued almost perpendicular to the wind line.

Parachutes will perform much more efficiently when flying into the direction of the wind.

In short, Mr Summers considered that the hard landing, and Ms Marks’ injuries, were due to Mr Dale’s failure to make proper corrections and align the parachute into the direction of wind. 

1. Asked to review the report of Skydive’s expert witness, Brett Newman, Mr Summers disagreed with Mr Newman’s conclusion that the cause of the incident was turbulence.  Mr Summers said that this conclusion ignored the fact that Mr Dale was not properly aligned into the wind prior to landing.  He reiterated that the tandem pair were pushed to the right by winds coming from their left just prior to landing, and opined that Mr Dale would have had time enough to alter his final landing approach, had he recognised the changing weather conditions during the descent.  He also referred to Mr Smedley’s statement that he had noticed at 1,000 feet that the wind had swung a good deal to the south.

1. In cross-examination, Mr Summers clarified that he had not jumped since 1999, and that his instructor licences have not been current since then.  He agreed that he had not qualified as a tandem instructor, in either Australia or the United States.  His experience with tandem parachuting was limited to 5 to 7 jumps as a passenger.  He agreed that tandem instructing is not the same as solo skydiving, and that extra considerations and factors must be taken into account when flying a tandem parachute — such as a higher rate of descent with two people under canopy.

1. Mr Summers agreed that the purpose of landing a parachute into the wind is to slow the parachute down.  He also agreed that you can land a parachute in any direction that you choose, and that you do not have to be directly aligned into the wind — this can be done safely, although it is not the safest method.  He accepted that you would not want to make any turns low to the ground, because that would increase the rate of descent.  He later qualified that by saying it was possible to do a flat turn safely even when low to the ground.

1. It was put to Mr Summers that, even when a parachute is aligned directly into the wind, turbulence could cause it to slide or roll to one side or the other, to rise, or to fall.  He agreed that was possible.  He said that the usual way out of that situation was not to turn, but to pull down on the brake lines to slow the parachute and give it more stability, an operation that would take a couple of seconds to take effect.  He accepted that would be one way to respond to turbulence close to the ground.

1. Mr Summers was asked what were the weather conditions that Mr Dale failed to recognise, and said that it was the wind direction.  He could not say what changes there were to the wind on the final approach, but was sure that Mr Dale did not turn into the wind properly.  He said that, when Mr Dale was pulling down on his brakes, he should have pulled down on the left side more than the right to counteract the wind pushing from the left.  Mr Summers considered that would probably have improved the landing, although the last two or three seconds before landing (shown on the video) was too late for that manoeuvre.

1. Shown the video of the landing, Mr Summers agreed that the parachute first came into view at a little higher than 50 feet off the ground, the canopy was level and was not being affected by wind.  He agreed that the drogue was even with or just below the canopy, but said it was not possible to tell where it was laterally.  He was not able to comment on whether Mr Dale commenced flaring earlier than usual.  He agreed that the canopy’s roll to the right started after Mr Dale had started to flare, and at that point the most important thing for him to do was to apply and maintain full braking power.  Mr Summers agreed that by the time the canopy was fully flared, about 12 feet from the ground, there was no time for a turn, and that there was nothing more that Mr Dale could have done.  He said that Mr Dale did the best he could do on the final approach, after he had made the commitment to land in that direction.

1. In re-examination, Mr Summers clarified that his opinion was that the corrections to the direction of the final approach should have occurred much higher than the last few seconds captured on the video.  He said that Mr Dale should have been facing into the wind at about 500 feet, which would have given him enough time to make corrections to his direction.  He explained that the lower the final turn into the wind, the riskier it becomes to make any adjustments to the wind.

Brett Newman, skydiving expert

1. Brett Newman was the parachuting expert called by Skydive.  He has been skydiving for 28 years, in which time he has completed more than 13,200 jumps, of which more than 10,000 were tandem jumps.  He holds a number of current qualifications awarded by the APF, including senior instructor, drop zone safety officer, and tandem instructor.  He has worked in skydiving in Australia and New Zealand since 1995, and was an APF Safety and Training Officer from 2015 to 2017.

1. Mr Newman prepared his report after considering the video footage of the landing, the two incident reports prepared by Mr Smedley, and the reports of Mr Cook and Mr Summers.  His opinion was, in summary:[24]

From the video evidence provided, I have concluded that Sam Dale experienced Sink (dramatic downdraft) on his final approach prior to landing.  I note that this is the conclusion that was reached by the weather expert.

The reactions demonstrated by Sam Dale were correct and appropriate in the situation of unforeseeable turbulence during his final landing approach.

In my experience with over 10,000 tandems jumps, my actions would have been no different to that of Sam Dale.

I conclude that Sam Dale’s reaction to the rapidly unfolding situation on final landing approach, were timely and correct.

Turbulence is an invisible weather event that cannot be predicted and every occurrence is random.

An understanding of the characteristics of tandem canopy flight and physics will lead you to [conclude] that this was not an error of judgement on the part of the Tandem Instructor, Sam Dale, but an unfortunate weather event that occurred at an inappropriate moment during the landing approach.

[24]Expert report of Brett Newman dated 1 September 2020, [1.3]–[1.8].

1. Mr Newman’s report included a frame-by-frame commentary on the video footage:[25]

   [25]Expert report of Brett Newman dated 1 September 2020, [7.3]–[7.11].

As soon as we see the tandem pair in the first frame of the video evidence, it is clear they are aligned to land in the same direction as the previous tandems.

The tandem pair is already in a rapid descent at approximately 40-50 feet above the ground, but stable into the wind direction, .08 sec on the video.

Approximately 30 feet above the ground the canopy is being dramatically effected by Sink (turbulence) and ¼ brakes has already been applied. 08 sec on the video. This amount of brake application at this height is higher than normal due to the acceleration being experienced.[26]

Approximately 20 feet above the ground, ¾ brakes has been applied.  The canopy is still in a rapid descent and starts a slight right hand roll. 09 sec on the video. The roll to the right is caused by uneven airflow under the canopy, not due to any input from the tandem instructor.

Approximately 12 feet above the ground full brakes have been applied.  The canopy is still experiencing a rapid descent rate and slight roll to the right. 09sec on the video.

Note: Once full brakes have been applied, the only way to correct a right or left roll is to reduce the brake in the direction of the roll. This will in turn reduce the strength of the braking power of the canopy, so it is best to maintain full brakes for maximum effect.

At 3 feet from the ground, full brake has been maintained and the passenger has her feet up as instructed. The canopy is still in a rapid descent and slight right hand roll. 10 sec on the video.

1 foot from the ground there has been no deceleration in the descent rate, full brakes have been applied and maintained, the canopy still has a slight right hand roll and the tandem instructor has his feet on the ground. 10 sec on the video.

Landing impact occurs at 10 sec on the video and the tandem pair are pulled to the right due to the right hand roll experienced during the rapid descent in turbulence.

It must be noted that from the first frame of the video showing the tandem pair in a rapid descent from 40-50 feet above the ground until the time of the heavy landing is less than 2.5 seconds. The reaction time to full brakes by the tandem instructor is less than 1 second.

[26]Emphasis in original.

1. Mr Newman disagreed with Mr Summers’ opinion that Mr Dale failed to adjust to the wind conditions and was not properly aligned to the wind.  He referred to Mr Smedley’s incident report, which stated that Mr Dale was ‘set up well into [the] wind at 10 m’.  Mr Newman added:[27]

Even when aligned directly into the wind, turbulence will cause canopies to slide/roll left and right and cause them to rise and fall without input from the canopy pilot.

Turbulent wind is impossible to see, as it is invisible, so the canopy pilot cannot be proactive in avoiding it, they can only be reactive in dealing with it.  In this case the landing was only 10 to 15 degrees off direct wind line, which is not a contributing factor to the rapid descent experienced during the final approach.

…

The reactions of this tandem instructor are the same as my reactions would have been in the same situation and I have over 10, 000 tandem jumps.

Tandem instructing is not the same as solo skydiving. Extra considerations and factors must be taken into account when flying a tandem parachute.

During turbulence tandem canopies come under physical forces that are not experienced by solo skydivers. Due to the weight of the two people under the tandem parachute, when turbulence is encountered the descent rate accelerates faster due to mass x resistance.

[27]Expert report of Brett Newman dated 1 September 2020, [9.3]–[9.4], [9.6]–[9.8].

1. In cross-examination, it was put to Mr Newman that his use of the words ‘dramatic downdraft’ and ‘extreme weather event’ was not consistent with Mr Cook’s description of relatively gentle updrafts and downdrafts at around the time of the incident.  Mr Newman responded that Mr Cook’s opinion was formulated from data, while he had watched a video of an actual physical event, and formed his opinion based on the video.

1. Mr Newman agreed that he had not seen the written statements of Mr Smedley or Mr Dale before preparing his report.  His opinion was based primarily on the video.

1. He disagreed with the propositions that the final turn into the wind should be taken at about 500 feet, and that taking the last turn at 150 to 160 feet was far too low.  He said that being aligned with the wind on landing promoted the most optimal landing, but was not critical.  Landing directly into the wind is what is taught to tandem instructors, because it reduces ground speed to the minimum possible.

1. Taken to the video footage, Mr Newman said that the parachute became 10 to 15 degrees off wind line a second and a half off the ground.  At that point, Mr Dale was in the fully flared configuration and had no directional control.  The pair were descending straight down; they were not travelling sideways to their right, which would have indicated that they were 45 degrees to the wind line.

1. There was also an attempt to impugn Mr Newman’s impartiality, by reference to his prior associations with two other people linked to the case:

(a)        First, Mr Newman had met Mr Smedley on one occasion, when Mr Smedley was a senior instructor on a course that Mr Newman attended.  It was not suggested they had any closer association.

(b)       Second, Mr Newman became the Safety and Training Officer for the APF in Queensland at the same time that Michael Tibbitts took on that role for Victoria and New South Wales.  Mr Tibbitts awarded Mr Dale his tandem instructor qualification in April 2018 and also made inquiries about the incident on 18 August 2018.  There was no suggestion that the two men had any other association.  Mr Newman finished in the position in September or October 2017 and was unaware of Mr Tibbitts’ involvement in investigating the incident. 

I do not consider either of these matters to be significant, or to detract from the value of Mr Newman’s opinion evidence. 

Submissions

1. Ms Marks’ submission as to what went wrong was as follows:

(a)        All other things being equal, a parachute should be landed into the wind to maximise control on the final descent.  This promotes the most optimal landing, allows a controlled descent, and reduces ground speed to a minimum.

(b)       There was no reason for Mr Dale not to land directly into the wind, and that was his claimed intention.

(c)        Instead of landing into the wind, Mr Dale misaligned the parachute 70 to 90 degrees to the wind.  This was said to be established by Mr Summers’ interpretation of the video, in particular the canopy’s roll to the right in the final second or two of the descent, dragging the pair along the ground to the right after landing.  Ms Marks also relied on the evidence of Mr Dale and Mr Smedley that they encountered southerly winds as they approached the landing area, and the explanation given by Mr Smedley in the incident report that:

Sudden low-level wind shear with winds veering 70 degrees while this load of tandems was landing caused a period of high sink for this third and last Tandem pair.

(d)       Mr Dale set up his final approach so that, after he made his final turn, he was not facing into the wind.  This occurred before the point at which Mr Dale and Ms Marks appear on the video of their landing.

(e)        This error was a failure to take reasonable care, and a cause of the heavy landing in which Ms Marks was injured.

1. Skydive contended that Mr Dale in fact landed the parachute facing into the wind, based on the evidence of Mr Dale and Mr Smedley that on the final approach the parachute was aligned directly into the wind.  It also relied on the video, and Mr Newman’s firm opinion that, when the tandem pair first appear on the video, they were aligned with the wind, and that it was only in the final second or two of their descent that they became misaligned by 10 to 15 degrees.  It argued that the slight misalignment just before landing did not cause the rapid descent, and that there was nothing Mr Dale could or should have done at that point to realign the parachute with the wind.

1. Skydive’s case was that the rapid descent of the parachute, which resulted in the heavy landing, was due to a localised and isolated downdraft — also referred to as ‘sink’, or turbulence.  It relied on Mr Dale’s description of what occurred, Mr Smedley’s eyewitness account of what he saw — the ‘canopy fully inflated and it’s like a big hand from God, just pulling him to the ground’ — as well as the opinions of Mr Cook and Mr Newman.

Consideration

1. It is not controversial that the safest way to land a parachute is to direct it into the wind.  As Mr Newman explained, the reason why tandem instructors are taught to land that way is that it reduces the ground speed to a minimum at the point of landing.  However, the cause of Ms Marks’ injuries was not that the pair landed with excessive ground speed.  Her injuries were caused by the parachute’s rapid, almost vertical descent after the final turn, and the subsequent heavy landing.  Mr Summers did not explain how a failure by Mr Dale to adjust to the wind direction before landing would have caused the parachute to drop to the ground in the way that it did.  There was simply no evidence to support the theory that this was due to the parachute being misaligned to the wind.

1. More fundamentally, I find that Mr Dale aligned the parachute into the wind on his final approach.  I accept the evidence of Mr Dale and Mr Smedley that he did so.  I found them to be credible witnesses who each gave a clear and straightforward account of what occurred.  Their accounts were consistent with my own observations of the video footage, Mr Newman’s interpretation of it, and the written statement made by Mr Gridley soon after the incident.

1. I have considered the submissions made for Ms Marks about Mr Dale’s demeanour when he gave evidence, and the manner in which he kept his logbook.  In my view neither matter affected the reliability of his evidence.  It was the case that, at times during cross-examination, Mr Dale expressed frustration with the questioning and the limitations of the video link over which he was being questioned, and at one or two points his language was quite casual.  However, my overall impression was of a truthful witness who was doing his best to recall events.  I was not troubled by the fact that Mr Dale usually records a jump in his log book the day after the jump, or that he does not always record personal jumps.  He gave a reasonable explanation for both practices.

1. I gave particular weight to the evidence of Mr Smedley, a very experienced skydiver, who I considered to be an impressive witness.  His description of the final moments of the descent was vivid and he was very clear in his evidence that Mr Dale approached the landing into the wind.  Contrary to Ms Marks’ submission, I did not have difficulty distinguishing between what Mr Smedley recalled, and the information he obtained from others in order to complete the incident report forms.  This was in part because, in addition to completing the APF forms shortly after the incident, Mr Smedley prepared his own written statement in which he noted additional points that he considered to be significant.

1. In submissions for Ms Marks, much was made of Mr Smedley’s evidence that he encountered southerly winds at about 1,000 feet on his own descent, and his comment on the injury notification form that low-level wind shear caused a period of ‘sink’.  This was said to be evidence that the wind at ground level was at an angle of 70 degrees to Mr Dale’s final approach.  That was not the effect of Mr Smedley’s evidence.  He encountered southerly winds at about 1,000 feet above the ground during his own descent, and thought that cloud movements showed that ‘the wind at a couple of hundred feet up had in fact swung about 70 degrees’ at the time Mr Dale and Ms Marks landed.  He was adamant that the wind at ground level remained westerly, and that Mr Dale approached his landing in that direction.

1. Mr Summers pointed out the canopy rolling to the right a second or two before landing, and pulling Mr Dale and Ms Marks to the right after they landed.  Mr Smedley and Mr Newman agreed that, at that point, the canopy was not aligned to the wind.  I agree that it appears from the video that the wind veered to the south in the final seconds of the landing.  By that time, the pair were already descending far too fast.  I accept the evidence of Mr Smedley and Mr Newman that Mr Dale did the only thing he could reasonably have done to arrest their descent, which was to flare his parachute.  Any attempt to turn the parachute at that very late stage would have accelerated the descent, increasing the risk of injury to them both.  It is possible that the canopy’s roll to the right became more pronounced after the pair hit the ground, when Mr Dale let go of the left hand toggle.

1. For these reasons, the premise of Mr Summers’ opinion was not made out.  Mr Dale did not fail to align the parachute to the wind in his final approach.

1. I accept Mr Newman’s opinion that Mr Dale and Ms Marks encountered a downdraft or ‘sink’ on landing, a form of turbulence that was the cause of their rapid descent and heavy landing.  Mr Newman’s opinion was supported by Mr Cook’s interpretation of the weather data from the nearby Coldstream automatic weather station, and his opinion that ‘a particular, localised and isolated downdraft produced a lull in the wind and with descending (downdraft) air lasting for no longer than ten minutes at around the time of the incident’.  It was also consistent with turbulence evident on the video in the final seconds of the descent, and Mr Gridley’s report of gusts at ground level just before the landing.  The downdraft was, as Mr Cook described it, an ‘unfortunate random event’ that caused Ms Marks’ injuries, and changed her life. 

1. It follows that I am unable to find that Ms Marks’ injuries were caused by any failure by Mr Dale or Skydive to exercise reasonable care to avoid a foreseeable risk of injury, or to conduct the tandem jump with due care and skill.  There is no basis to find Skydive liable in negligence, contract, or under the ACL.

1. For completeness, I note that the effect of my findings about what went wrong is that liability in negligence for Ms Marks’ injuries is excluded by s 55(1) of the Wrongs Act 1958 (Vic). Section 55 provides:

No liability for materialisation of inherent risk

(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.

1. I find that Ms Marks was injured as a result of the materialisation of an ‘inherent risk’ associated with skydiving, that could not be avoided by the exercise of reasonable care.  As Mr Newman explained, turbulence is invisible and cannot be avoided; all that can be done by a parachutist who encounters turbulence is to react appropriately.  Mr Dale reacted to the downdraft by flaring his canopy, which was the correct response in the circumstances.  There was no suggestion that he had braked too late or too slowly.  There was nothing else he could have done to slow the rate of descent.  Although he exercised reasonable care, the risk of harm materialised.

1. It is unnecessary to decide the remaining issues concerning liability, or to assess damages.

Disposition

1. The proceeding must be dismissed.  I will hear the parties on the question of the costs of the proceeding.