The sky is the limit: waivers and compensation claims

Participants in high risk or adventure related activities are often asked to sign a waiver. Personal injury waiver forms generally ask you to acknowledge that you understand the risks associated with the activity and that you waive your right to sue for compensation if you are injured. A common question is, “Do these waivers hold up in court?”

I looked up and watched someone roll out of a small plane. A few seconds later, there came another one; and another, each of them tumbling and falling and spinning before their parachutes blossomed and floated serenely towards the ground.

“You’re up next!” a hand clapped my shoulder, and a moment later, the skydive instructor was hovering, waiting for me to sign the 3-page liability waiver in front of me.

“Sign your life away mate.”

“But what’s with all this fine print?” I asked.

“It just means that you can’t sue us if you get hurt.”

Is that what it means, I wondered? Does signing a waiver prevent me from bringing a compensation claim if something goes wrong?

Recently a claim brought in Victoria’s Supreme Court dealt with this very issue.

On 1 August 2018, Hayley Marks completed an online booking form for a tandem sky dive in the Yarra Valley. Neither Ms Marks nor her companion had been skydiving before.

On 18 August, Ms Marks and her tandem instructor jumped out of the plane at an altitude landing very heavily. Fracturing her spine at L2, she required an L1-L3 fusion and an L2 corpectomy.

Ms Marks brought a claim for compensation which was defended by the skydive operator. The parties were unable to resolve the claim by negotiation, and the matter did not resolve at mediation. In November 2020 the claim was heard in the Supreme Court.

The Court was required to consider two questions:

1. Did the waiver form part of the contract between Ms Marks and Skydive Holdings – therefore barring her from bringing a claim?
2. Were the injuries caused by the negligence of the instructor (as an employee of Skydive Holdings).

The court found that the waiver was not part of the contract between the parties and was not a barrier to a claim for compensation. It did not prevent Ms Marks from suing Skydive Holdings.

The reasons included:

1. There was no record that the waiver had been read and agreed to by anyone.
2. The waiver was not found in the terms and conditions set out by Skydive Holdings and was instead part of a membership application found on the website of another organisation.
3. There was no evidence on the day of the jump that Ms Marks had read the waiver, or agreed to its terms.

Notably, the court stated that:

“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”.

While finding that the waiver did not prevent Ms Marks from bringing a claim for compensation, her claim failed nonetheless.

The court ultimately found that Ms Marks’ claim for compensation could not succeed because her injuries occurred as a result of an inherent risk of the activity. The incident was due to sudden turbulence, and not because of a lack of skill or care by the instructor.

No, and a company can’t design a contract that avoids the need for it to take reasonable care or provide you with consumer protections under the Australian Consumer Law.

Companies have legal responsibilities which aren’t washed away just because you’re involved in a risky activity. Instead, a waiver can have the effect of pointing out the risks inherent in an activity, and having you acknowledge and understand those risks.

In the case of the skydiver, even a legally binding waiver won’t absolve a company from negligence; for example, if the skydive operator packs a faulty parachute, what you signed before the jump won’t protect the company.

To take another example, playing football carries inherent risks of injury.

• A person is tackled and injures their knee.
• They acknowledged the risk of an injury like that by playing the game.
• But if that knee injury was caused by a faulty sprinkler, that’s not a risk that is inherent to the game of football.
• In this example, there is a potential negligence claim against whoever is responsible for groundskeeping.

The key here is to ask: is this the kind of thing that you signed up for?

If you’ve signed a waiver before participating in a risky activity and you suffer injuries during the activity, it can be difficult to determine if the waiver applies and if the company was negligent or not. If you suspect they may have breached their duty of care to you, you should seek advice from a lawyer experienced in personal injury claims like this.