A liability waiver does not always protect against personal injury claims

A liability waiver protects against personal injury compensation claims only if the participant is aware of the risks in the activity.

Liability waivers are used in tourism, sport, entertainment, arts and events industries where operators are exposed to personal injury claims from participants engaged in a wide variety of activities. These activities range from normal recreational activities such as attending sports and music events, visiting gyms and going on sightseeing tours, to dangerous recreational activities such as skiing, scuba diving and skydiving (which involve a significant risk of physical harm).

The Australian Consumer Law makes safety (providing services with due care and skill, fit for purpose) a consumer guarantee, but allows recreational service providers to exclude liability.

Under State law, liability waivers are recognised under the law of contract and negligence. In New South Wales and Western Australia, liability waivers are recognised in the Civil Liability as being available to recreation service providers.

The participant should be aware of, and preferably acknowledge and accept the risks (by way of a risk warning and liability waiver) when making the booking or no later than when the activity starts.

A recent decision of the Supreme Court of Victoria shows why a provider must be careful to ensure their liability waiver is effective. The decision is:

Marks v Skydive Holdings Pty Ltd [2021] VSC 21 (1 February 2021) (Richards J)

Ms Marks booked a Yarra Valley skydive for herself and her partner to celebrate his 30th birthday. She booked online on the Skydive website.

This description and image of the skydive are taken from the Skydive Australia website:

“Skydiving the Yarra Valley is the ultimate adrenalin rush. Tandem skydiving from up to 15,000 feet, you'll experience an insane 60 seconds of life-changing freefall. Float under canopy for 5-7 minutes over the lush Yarra Valley countryside, quilted with rolling pastures, vineyards, dairy stations, organic farms, hedge mazes and wildlife sanctuaries.”

On the day of the skydive, they met their tandem instructors, put on their harnesses, and watched an instructional video. They were clipped on to the front of their tandem instructors.

Ms Marks’ partner completed his jump without incident. But Ms Marks landed heavily, fractured her lumbar spine at L2 (lower back) for which she required surgery. She made a good recovery, returned to full-time work, but lives with constant pain and is unable to do many things that she used to do. She has become anxious and depressed.

The effectiveness of the liability waiver

Justice Richards reviewed the liability waiver first, because if it was effective, it would preclude the claims for breach of consumer guarantee, negligence and breach of contract.

The wording of the Skydive liability waiver warned the participant that they skydive at their own risk:

“Risk Warning and Waiver – Your participation in the recreational activities supplied by the Providers and the APF is inherently dangerous and may involve risk. … 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.”

Elaborating on the Risk Warning, Skydive warned participants that the prevailing conditions were a significant risk:

“Prevailing conditions – You acknowledge and agree that:

parachuting and the Parachuting Activities can and will be affected by the weather which may change without warning; and
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;
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
unintended incidents may occur in flight, in the descent or upon landing.”

The wording of the Risk Warning and Waiver was adequate.

Why was the liability waiver not effective?

The Court stated and applied the law to the facts as follows:

“Skyline could not rely on the waiver unless it had done what was reasonable to draw the waiver and its terms to Ms Marks’ attention. … I am not satisfied that she saw or accepted the waiver at any time before her jump on 18 August 2018.”

“The risk warning and waiver, and the explanation of the ‘luck of the prevailing conditions’, 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.”

[If Ms Marks decided to assume the risks she could have taken out personal accident insurance.]

“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.”

[The waiver was also contained in the application for membership of the Australian Parachuting Federation (AFP), which Skydive asked Ms Marks to join (and did join) before undertaking her jump. But Ms Marks did not see or accept the waiver in that application.]

“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.”

The flaws in the Skydive procedure

The decision exposed these flaws in the Skydive procedure:

The Risk Warning and Waiver and the Prevailing Conditions advice, were not included in or referred to in terms and conditions in the booking confirmation. Had they been included, when Ms Marks clicked the ‘read and accepted’ box in the booking process, this would have been sufficient to make her aware of the liability waiver for it to apply.
Instead, the waiver and advice were contained in an application for membership of the APF which was completed after the booking was made. But there was no ‘I acknowledge and accept that I skydive at my own risk’ to make sure that Ms Marks was aware of the liability waiver, and so the liability waiver did not apply.
A liability waiver could have been presented to Ms Marks and her partner to sign on the day of the skydive. This would have been effective to protect Skydive against claims by Ms Marks and her partner in the event of injury or death. It is good practice for providers of dangerous recreational activities to have participants sign these waivers before the activity begins. Skydive did not have this procedure.

Was Skydive liable?

The injury occurred despite Ms Marks holding her legs up in the landing position (as instructed), and the instructor properly preparing for landing by landing facing the wind and ‘braking’ by flaring the canopy. The instructor took the precaution of placing his legs underneath the legs of Ms Marks to soften the impact. The instructor was an experienced instructor with over 950 jumps.
Ms Marks made three alternative claims:

Negligence under the Wrongs Act 1958 (Victoria) - this claim was dismissed because the instructor had exercised reasonable care for Ms Marks’ safety. Also, Skyline was able to rely on the ‘materialisation of an inherent risk’ exemption from liability.
Breach of the consumer guarantee of due care and skill - dismissed for the same reason.
Breach of contract – dismissed for the same reason.

The Court accepted that “the heavy landing was the result of a downdraft [that caused their rapid descent and heavy landing] that Skydive could not control, take reasonable measures to prevent, or foresee”.

The court found that this wind shear or turbulence event had not been previously experienced by Skydive, so close to the ground (less than 50 feet).

For these reasons, Ms Marks failed in her personal injury compensation claim.