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

---

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

---

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.

---

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:

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Marks v Skydive Holdings Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] VSC 21
Decision Date: 1 February 2021

CaseChat Overview and Summary

The plaintiff, who undertook a tandem skydive jump with the defendant, Skydive Holdings Pty Ltd, sustained injuries during the landing. The plaintiff brought a claim for negligence, arguing that the tandem instructor had failed to exercise reasonable care for their safety, leading to a heavy landing. The defendant countered that the plaintiff’s injuries were a result of an inherent risk associated with skydiving, which could not be avoided even with the exercise of reasonable care. The case was heard in the County Court of Victoria.

The primary legal issues the court had to address were whether the tandem instructor's actions constituted a breach of the duty of care, and if the plaintiff's injuries were due to an inherent risk that could not be eliminated by the exercise of reasonable care. Another significant issue was whether the waiver signed by the plaintiff formed part of the contract and if the defendant took reasonable steps to ensure the plaintiff was aware of its terms. These issues were examined in light of the Wrongs Act 1958 (Vic), particularly section 55, which deals with the materialisation of inherent risks.

The court found that the tandem instructor's actions did not breach the duty of care owed to the plaintiff. The court concluded that the heavy landing was a result of the inherent risks of skydiving that could not be completely mitigated by the exercise of reasonable care. Additionally, the court determined that the waiver was a valid part of the contract between the plaintiff and the defendant. The court held that the defendant had done what was reasonably necessary to bring the waiver to the plaintiff's attention, as it was prominently displayed at the drop zone and the plaintiff was given ample opportunity to read it.

The court dismissed the plaintiff's claim, finding that the injuries sustained were a result of an inherent risk that could not be avoided even with the exercise of reasonable care. The court further found that the waiver was valid and formed part of the contract, and that the defendant had taken reasonable steps to ensure the plaintiff was aware of its terms. As a result, the plaintiff's claim was unsuccessful, and the defendant was not found liable for the injuries sustained.

Orders