Eyles v Sydney Skydivers Pty Ltd [2026] QCA 53

SUPREME COURT OF QUEENSLAND CITATION: Eyles v Sydney Skydivers Pty Ltd [2026] QCA 53 PARTIES: JAMES RICHARD EYLES (appellant) v SYDNEY SKYDIVERS PTY LTD ACN 002 690 235 (respondent) FILE NO/S: Appeal No 4420 of 2025 DC No 1 of 2019 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Bowen – Unreported, 4 September 2025 (Lynham DCJ) DELIVERED ON: 27 March 2026 DELIVERED AT: Brisbane HEARING DATE: 19 February 2026 JUDGES: Mullins P, Boddice JA, Doyle JA ORDERS: 1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal and cross-appeal, assessed on the standard basis. CATCHWORDS: TORTS – NEGLIGENCE – DAMAGE AND CAUSATION – CAUSATION – AT COMMON LAW – GENERALLY – where the appellant sustained injuries in a solo sky diving jump – where the appellant’s landing was central to the cause of injury – whether the appellant put his right leg out upon landing, contrary to the training provided – whether the primary judge erred in identifying the relevant risk of injury and consequently erred in findings of causation TORTS – GENERALLY – VOLUNTARY ASSUMPTION OF RISK – CIVIL LIABILITY LEGISLATION – INHERENT RISK – where the primary judge found that the respondent would not be liable as a result of the materialisation of an inherent risk under s 16 of the Civil Liability Act 2003 (Qld) – whether the primary judge erred in the characterisation of the inherent risk, being the risk the appellant would land contrary to the training provided – whether the defence under s 16 of the Civil Liability Act 2003 (Qld) was properly made out DAMAGES – ASSESSMENT OF DAMAGES IN TORT – -- 1 of 11 -- 2 PERSONAL INJURY – INCOME LOSS AND LOSS OF EARNING CAPACITY – CONTINGENCIES GENERALLY – where the respondent cross appeals the assessment of heads of damages – where the primary judge applied a 20 per cent discount for past loss of income and a 30 per cent discount for future loss of earning capacity – where the primary judge calculated damages for past loss of income on the appellant’s momentary employment – where the appellant’s employment history was limited and sporadic – whether the primary judge erred in assessing past loss of income on that basis Civil Liability Act 2003 (Qld), s 16, s 19 Competition and Consumer Act 2010 (Cth), Sch 2 – (Australian Consumer Law), s 60, s 61 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330; [2007] HCA 42, applied Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454; [2022] HCA 11, cited Wang v Hur [2024] QCA 126, cited COUNSEL: S D Anderson for the appellant A T J Baker for the respondent SOLICITORS: Macrossan & Amiet for the appellant DWF (Australia) for the respondent [1] MULLINS P: I agree with Boddice JA. [2] BODDICE JA: The appellant commenced proceedings claiming damages for personal injuries sustained when he landed whilst participating in a solo parachute jump as a student, undertaking an accelerated free-fall course conducted by the respondent at an aerodrome in North Queensland. [3] The appellant claimed that his personal injuries were caused either by the respondent’s negligence and/or breach of contract. He also alleged a breach of statutory guarantees, pursuant to the Australian Consumer Law (ACL). [4] On 4 September 2025, the primary judge found that the appellant had not established, on the balance of probabilities, that any breach on the part of the respondent caused the personal injuries suffered by him when landing on 30 October 2016. Judgment was given for the respondent, although the primary judge did make an assessment of damages in the event that it became relevant. [5] The appellant appeals, contending that the primary judge erred in finding that his injuries were not caused by the negligence of the respondent and in finding that the respondent did not breach the guarantees in ss 60 and 61 of the ACL. The appellant also contends that the primary judge erred in law in finding that if the respondent was negligent, the respondent would not be liable for the harm suffered as a result of the materialisation of an inherent risk under s 16 of the Civil Liability Act 2003 (Qld) (CLA), or as a result of the materialisation of an obvious risk of a dangerous recreation or activity engaged in by the appellant, under s 19 of the CLA. -- 2 of 11 -- 3 [6] The respondent cross-appeals from the assessment of damages, contending that the primary judge erred in calculating the appellant’s past and future economic loss and in the assessment of future special damages. The respondent also relies on a notice of contention, contending that the decision below should be affirmed on other grounds, namely, that the primary judge erred in the identification in the risk of harm and in finding that the respondent breached its duty of care to the appellant. Incident [7] On 30 October 2016, the appellant was employed as a qualified parachute packer at a small airport in central Queensland. As part of that employment, the appellant became a member of the Australian Parachute Federation. His employment afforded him the opportunity to undertake tandem parachute jumps. Having done so, the appellant enrolled in an accelerated free-fall course offered by the respondent. The appellant gave evidence that he did so as he was wishing to pursue a career as an outside camera operator with a skydiving company. [8] The course undertaken by the appellant consisted of theoretical instruction and a practical solo skydiving component. The appellant undertook two solo skydives at the aerodrome in North Queensland on 1 October 2016. Each jump involved two instructors leaving the plane with the appellant, and after a point, releasing the appellant so that he may parachute to the ground, solo. Both solo skydives went uneventfully with the appellant landing about 10 metres from the target, although on the first occasion, the appellant was recorded to have lost balance and to go down on one knee. During each solo dive the appellant was given instructions, via radio, when to commence the downwind base and final legs of the descent, although the final leg instructions were signalled to the appellant by way of hand signals, using paddles. The appellant was required to operate the toggles of his parachute by mimicking the instructions so conveyed to him. Trial [9] It was not in dispute at trial that on 30 October 2016, the appellant undertook a further solo skydive as part of the course and that upon landing, the appellant suffered injuries to his right leg. It was also not in dispute at trial that the appellant was given a pre-jump briefing, prior to boarding the aircraft on 30 October 2016, and that two instructors participated in the jump with a third remaining on the ground, performing the role of a target assistant. [10] The issue at trial was the circumstances in which the appellant landed, including his actions when landing and whether those actions were causative of the appellant’s injuries, rather than any negligence or breach of contract on the part of the respondent. Pleadings [11] The appellant’s pleaded case was that on 30 October 2016: (a) after a period of dive/freefall, the appellant activated/deployed his parachute whilst the two instructors continued to dive/freefall, causing them to reach the ground well before the appellant; (b) in those circumstances, the appellant was under the direction, instruction and/or supervision of two other persons, one by way of two-way radio and the -- 3 of 11 -- 4 other being the target assistant, each being servants and/or agents of the respondent; (c) the target assistant, by use of paddles, directed and/or instructed the appellant to hold the parachute’s toggles high above his head in preparation for flaring the parachute, but failed/neglected to direct and/or instruct the appellant to fully flare the parachute until he was close to the ground; (d) the appellant, aware that he was nearing the ground, fully flared the parachute by pulling down heavily on the toggles, as a result of which he landed heavily and twisted his right leg suffering a fracture of both the right tibia and fibula. Evidence [12] The appellant gave evidence that he landed off the target area, on the runway which had a loose gravel surface. He had his legs together, knees bent. Upon landing, his right leg slipped from under him on the loose gravel surface and he suffered a broken leg. [13] One of the instructors who jumped with the appellant gave evidence that he observed the appellant reach out with his right foot when landing, which was contrary to the instructed method of landing onto the ground. The instructor maintaining radio contact with the appellant, also gave evidence that the appellant reached out for the ground with his right foot when landing. He said the appellant’s legs were not together on landing. [14] There was a video recording of the landing. Both the appellant and the respondent contended that its contents supported their respective versions of the landing. [15] Evidence was also given by a medical expert, Dr Cook, as to the nature of the appellant’s injury. [16] Dr Cook opined that the appellant had suffered spiral fractures of both the fibula and tibia of his right leg. Those types of fractures are caused by twisting forces being applied to the bone. If a foot hits the ground with the forces stopping it being even on both sides, the fracture is usually a crush-type fracture. [17] Dr Cook further opined, if on landing the ground gives way on one side only, the foot will tip and twist. However, the type of fracture can be affected by factors such as the surface landed upon, whether the foot is supported evenly on both sides, whether the ground was solid, stoney or rocky, and whether the parachute was behind in a direct line or off to one side. [18] Again, the appellant and the respondent each contended that this evidence was supportive of their own version of the landing process. Primary decision [19] The primary judge found that whilst the appellant was an honest witness, his evidence as to the process of landing was inconsistent with the preponderance of evidence, including the evidence of the instructor who left the plane with the appellant, the instructor who was maintaining radio contact with the appellant, the contents of the video and the expert evidence as to his injuries. -- 4 of 11 -- 5 [20] The primary judge found that the appellant did not land with his legs together, knees bent. The appellant reached out with his right foot moments before landing, which resulted in the canopy of his parachute drifting or deviating. [21] The primary judge found that the risk of harm was appropriately identified as the risk that a student skydiver, undertaking a solo skydive, might land and sustain injury by reason of unwittingly landing short of the designated landing zone and encountering an unexpected hazard such as a gravelly surface. [22] The primary judge held that the respondent, by permitting the appellant to fly over the runway before directing him to make his base and final leg turns, failed to comply with its own operations manual and as such, breached the duty of care it owed to the appellant. The primary judge was not satisfied that the respondent breached its duty of care to the appellant by failing to instruct the appellant to fully flare at an appropriate time, or by instructing him to control his parachute in a way that resulted in him landing on the runway short of the designated landing zone, or by allowing the appellant to land short of the designated landing zone, on the gravel runway. [23] Although the primary judge found a breach of duty, the primary judge held that the facts as proved were not sufficiently compelling to permit an inference of causation between those breaches and the appellant’s personal injuries. The clear inference available was that the injury was caused by the appellant using the incorrect landing technique, not the surface that he landed on, namely, the gravelly runway. The primary judge found that the appellant had been taught how to perform a parachute landing roll (PLR) and the circumstances in which it was appropriate to do so, but that the appellant’s adoption of an incorrect landing technique precluded the appellant being able to perform a PLR. [24] In respect of the ACL claim, the primary judge found that the damage suffered by the appellant was not because of a breach of either s 60 or s 61 of the ACL. It was because the appellant adopted an incorrect landing technique. [25] Finally, the primary judge found, in respect of liability, that in any event the respondent had established a defence under s 16 of the CLA. The appellant was undertaking a solo skydive and was solely in control of his parachute. There was nothing more the respondent could have done to prevent the appellant from reaching out with his right foot, with the consequence that the risk of harm materialised. Further, solo skydiving involved an obvious risk of serious injury. Accordingly, the respondent had also established a defence under s 19 of the CLA. [26] In respect of quantum, the primary judge assessed the appellant’s damages at $307,478, including past loss of income of $77,469, future loss of income of $160,000 and future special damages of $28,055. Consideration [27] There is no dispute that the appeal is by way of re-hearing. The relevant principles are summarised in Wang v Hur:1 1 [2024] QCA 126 at [23]–[24] (citations omitted). -- 5 of 11 -- 6 “[23] The principles governing the circumstances in which an appellate court should be prepared to interfere with the fact finding made by a primary judge are settled. The leading High Court authorities are Warren v Coombes; Allesch v Maunz; Fox v Percy; Robinson Helicopter Company Incorporated v McDermott; and Lee v Lee. [24] The relevant passages from those authorities were recently examined at length in this Court in Sutton v Hunter. To summarise further, but retaining the language used by the High Court authorities referred to in the previous paragraph: (a) On an appeal by way of rehearing, it is for the appellant to satisfy the appellate court that the order that is the subject of appeal is the result of some legal, factual or discretionary error. (b) On such an appeal, the appellate court is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether it should be so satisfied. (c) If the appellate court concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. (d) When determining whether a judge has erred in fact, in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. (e) However, in determining whether the judge has erred in fact, an appellate court is required to exercise restraint when invited to interfere with a primary judge’s findings of fact, at least where those findings are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. Such appellate restraint applies not merely to findings of primary facts but also applies to findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. (f) In such cases, a finding of fact is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact. The finding must stand unless it can be shown that the trial judge ‘has failed to use or has palpably misused [his or her] advantage’ or has acted on evidence which was ‘inconsistent with facts incontrovertibly established by the evidence’, or which -- 6 of 11 -- 7 was ‘glaringly improbable’, or which was ‘contrary to compelling inferences’.” [28] The appellant does not challenge the primary judge’s finding of fact as to the circumstances in which the appellant landed at the conclusion of the relevant solo jump. Instead, the appellant contends that the primary judge erred in using the appellant’s method of landing to find there was no causal link between the respondent’s breaches of duty and the appellant’s personal injuries. The appellant submits that the circumstances of the landing were not determinative of any finding as to the cause of his personal injuries. [29] Contrary to the appellant’s contentions, the factual finding as to the circumstances in which the appellant landed at the conclusion of the solo jump, are central to the consideration of the appellant’s appeal. That finding was completely contrary to the appellant’s pleaded case. Viewed against that background, the appellant’s failure at trial was as a direct result of a failure to prove the pleaded case. It is in that context in which the grounds of appeal are properly to be considered by this Court. Ground 1 [30] The appellant submits that the primary judge erred in finding that the appellant’s right leg injury was not caused by the negligence of the respondent, because the proper assessment of breach of duty and causation depended upon “the correct identification of the relevant risk of injury”.2 [31] The primary judge identified the relevant risk of injury as “a student skydiver undertaking a solo skydive might land and sustain injury by reason of unwittingly landing short of the designated landing zone and encountering an unexpected hazard such as a gravelly surface”. [32] The appellant submits that that risk, as formulated, did not make reference to the way that the student landed, such that the method of landing was not relevant to the formulation of the risk or the cause of the appellant’s injury. However, the way in which the appellant landed was central to the cause of his injury. [33] The significance of the uncontested finding of fact was that the appellant landed, not with his legs together, knees bent, but with his right leg reaching out as if to land in a standing position. That finding was significant as Dr Cook’s evidence about medical causation was premised on the appellant’s foot hitting the ground when “the forces that are stopping him is even on both sides”. Whilst Dr Cook agreed that if the appellant hit the ground with equal force on each foot, you would expect a more crush-type injury, Dr Cook opined that would be the case if the appellant was in a perfect straight line “[w]ith equal force on both feet”. [34] In respect of the mechanism of injury, Dr Cook’s evidence was as follows: “… Do you consider it more likely that there was more force through his right leg than his left leg, as in – do you consider it more likely that there was more force through his right leg than his left leg in consideration of his injuries?---If there had been, assuming that the impact for both feet was identical, but more force on the right leg 2 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 at 338–339 [18], as cited in Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 at 489 [106]. -- 7 of 11 -- 8 was – and that extra force on that right leg would have either resulted in a – a fracture in the bones of the foot or the ankle. Or a spiral fracture of the tibia and fibular?---Not if the impact was equal on both sides or the – the support that the feet land on was identical on both sides but more force – he had his, say, right foot out, taking more force on that side, then there would’ve been crush- type fractures of the calcaneum in the foot or the talus.” [35] Whilst Dr Cook, in re-examination, gave evidence that if the right foot hit the gravel and that gravel gave way under the foot causing it to shoot off to the side, that would result in the pattern of fractures sustained by the appellant, that answer was again premised on a contention that the appellant had landed “with both feet together on that surface”. [36] Once the primary judge found that the appellant had not landed in the manner contended for, both in his pleaded case and in his evidence, Dr Cook’s evidence was not inconsistent with a finding that it was the appellant’s manner of landing which caused his injury, not the surface upon which he landed at the conclusion of the solo jump. [37] There was a dearth of evidence that landing with the right foot extended out, as if to land in the standing position, would not have resulted in that injury had the appellant landed on a surface other than a gravelly runway. [38] There was no error in the primary judge’s conclusion as to causation. Ground 2 [39] Although the appellant submitted that the primary judge erred in law by finding that the respondent did not breach the guarantees in ss 60 and 61 of the ACL, the appellant conceded that if the appellant failed with respect to causation, this ground also failed. It is therefore unnecessary to consider it further. Ground 3 [40] The appellant submitted that the primary judge erred in law by finding that the respondent would not be liable for the harm, even if found negligent, as a result of the materialisation of an inherent risk under s 16 of the CLA. The error, it is submitted, arose by reason of the incorrect identification of the inherent risk. [41] It is submitted that the correct identification of the inherent risk was by failing to direct or instruct the appellant during his skydive in accordance with the flight plan, which resulted in the appellant landing on the runway which consisted of loose gravel. [42] Section 16 of the CLA provides: “16 No liability for materialisation of inherent risk (1) A person is not liable in negligence for harm suffered by another person as a result of the materialisation of an inherent risk. -- 8 of 11 -- 9 (2) An inherent risk is a risk of something occurring that can not be avoided by the exercise of reasonable care and skill. (3) This section does not operate to exclude liability in connection with a duty to warn of a risk.” [43] As is apparent by its terms, s 16 of the CLA is dealing with a risk that cannot be avoided by the exercise of reasonable care and skill. That risk was not as proposed by the appellant, which is a risk that could be avoided by the exercise of reasonable care and skill. It was, as the primary judge found, the risk that the appellant would land contrary to the training. [44] The evidence established that the appellant had been trained in the proper landing technique, including using a PLR. The evidence also established that a PLR could be used on any surface. Against that background, the primary judge’s finding that the appellant was precluded from using a PLR because he adopted the wrong landing technique, was consistent with the evidence. [45] Having regard to that evidence, coupled with a lack of evidence that landing on the runway surface was a hazard, there is no basis to conclude that the primary judge’s findings that the appellant did not encounter a hazard, was properly trained, was solely in control of his parachute and had sustained his injury by reason of having adopted an incorrect landing technique, were not glaringly improbable or inconsistent with the evidence. Those conclusions supported the ultimate conclusion that there was nothing that the respondent could have done to prevent the appellant injuring his leg in those circumstances. [46] There was no error in concluding that the defence in s 16 of the CLA was made out. Ground 4 [47] The appellant submits that the primary judge erred in determining that the act of skydiving was “a dangerous recreational activity”, as the appellant’s evidence was that he was undertaking the course so that he may obtain employment in the future as an outside camera operator with a skydiving company and, as such, his solo skydive was not recreational. [48] The appellant also submits that the primary judge erred in identifying the obvious risk. That risk was properly to be identified in the level of generality as the risk of injury when determining the breach of duty.3 [49] However, even if it be accepted that the risk is properly to be identified in the same level of generality as the risk of injury when assessing the breach of duty, the appellant would still fail on this ground as there was no error in the primary judge’s conclusion that the solo jump was at least, in part, engaged in for enjoyment and pleasure. That finding was neither glaringly improbable nor contrary to the evidence. It supported the conclusion that the appellant’s harm was suffered whilst the appellant was engaged in a dangerous recreational activity. 3 Tapp v Australian Bushmen’s Campdraft & Rodeo Association Ltd (2022) 273 CLR 454 at 491 [112] per Gordon, Edelman and Gleeson JJ. -- 9 of 11 -- 10 [50] Having regard to that factual finding, it is unnecessary to determine the scope of the term “a dangerous recreational activity” more generally. Notice of contention [51] As the appellant has failed to establish any of the grounds of appeal, the appeal should be dismissed. That conclusion renders it unnecessary to consider the respondent’s notice of contention. Cross-appeal [52] Whilst the dismissal of the appellant’s appeal renders it strictly unnecessary to consider the cross-appeal, I shall briefly deal with each of its grounds. [53] The respondent submits that the primary judge erred in the contingent assessment of past loss of income, by applying only a 20 per cent discount, and future loss of earning capacity by applying only 30 per cent discount. It is submitted that the error arose from undertaking that assessment on the basis of the appellant’s momentary employment at Club Croc. [54] The primary judge’s contingent assessment of these heads of damages was based on the appellant’s employment history. It included a recognition that the appellant had had a sporadic work history, including reliance from time to time on government benefits. The primary judge also had regard to the appellant’s evidence of previous episodes of anxiety and the need for treatment at a rehabilitation facility. [55] The primary judge’s conclusion that having regard to all of those matters, the appellant’s past loss of income was properly to be calculated on the basis of his somewhat limited employment at Club Croc was open and consistent with the evidence. However, the sporadic nature of past employment and the differences in income earned in various employments in the past support a conclusion that the primary judge erred in applying only a 20 per cent discount. Taking into account the appellant’s pre-existing health issues, propensity for changing jobs and voluntary periods of leaving paid employment, the discount ought to have been 30 per cent. [56] The primary judge’s assessment of future loss of earning capacity was undertaken on the basis that the evidence established that the appellant had, post-injury, been able to find employment in a variety of occupations, consistent with his ability to readily change employment. In assessing that future economic loss, on a global basis, the primary judge assessed the ongoing loss at the modest sum of $300 per week for the remaining 21 years of the appellant’s working life, before applying a discount of 30 per cent to take account of contingencies and vicissitudes of life, including factors specific to the appellant, such as his propensity for changing employment, periods of voluntary unemployment and pre-existing illness. [57] When regard is had to the appellant’s ability to obtain employment post-injury, no error is demonstrated in the primary judge adopting a discount of 30 per cent for such vicissitudes. There was nothing in the appellant’s history which supported a conclusion that there would be a marked change in his pre-accident work/lifestyle decision-making such as to warrant the application of a discount greater than that to be applied to his past loss of income. -- 10 of 11 -- 11 Orders [58] I would order: 1. Appeal dismissed. 2. The appellant pay the respondent’s costs of the appeal and cross-appeal, to be assessed on the standard basis. [59] DOYLE JA: I agree with the orders proposed by Boddice JA and with his Honour’s reasons. -- 11 of 11 --