The NSW Supreme Court is currently hearing a public liability case against a skydiving and parachuting company, after one customer was injured while using its services.
The plaintiff signed a contract when he attended the site in Gatton, Queensland back in August 2010. This outlined the company’s exclusion of liability, as well as the bar to proceedings. This essentially prevented any legal action being brought by the parachutist, or anyone working on their behalf.
In instances where the parachutist did decide to start proceedings against the providers, the contract stated that this must be carried out in the Australian Capital Territory. The plaintiff also consented to paying the legal defence costs of the provider where the case was successfully defended.
One of the areas of contention was that the defendant was a registered company. The plaintiff argued that they had been advised by the defendant’s solicitor that this was not the case.
A solicitor acting on behalf of the plaintiff wrote to the defendant’s solicitor in a letter that included a proposed statement of claim. It argued that a cause of action could be pleaded based on warranties suggested by the Trade Practices Act, mainly because the defendant was named as an individual rather than a corporation.
Counsel stated that the personal injury sustained during the jump did not automatically result from the contract. In light of this, the pleading that had been put forward would not be able to survive.
Several considerations should have been made before the individual was allowed to jump. These included making sure that the weather conditions were suitable to his level of skill and experience, and that all commands given were clear.
Analysing the case, the Supreme Court judge ruled that the word “person” as it appears in the necessary legislation can refer to both an individual and a business. As a result, this side of the plaintiff’s argument will not be taken into consideration.
The counsel for the plaintiff also conceded that there was no connection between the facts outlined in the case and the Australian Capital Territory, as indicated in the original contract.
The case will now be listed again on May 15, when both parties are required to provide Short Minutes of Order. These must reflect the conclusions that the judge has so far reached. An absent agreement on costs must also be made, which the judge will also hear on this date.
