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
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  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
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
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
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
“Prevailing conditions – You acknowledge and agree
- parachuting and the Parachuting Activities can and
will be affected by the weather which may change without
- 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
- 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
“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
“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
[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
The decision exposed these flaws in the Skydive
- 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
- 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