SCENARIO RELATED TO THE PRINCIPLES OF CONTRIBUTORY NEGLIGENCE

Question

Read the factual scenario below and answer the questions.

An outdoor rock concert is held in Parramatta Park. It is a free event and nearly 20,000 people attend. While the bands play there are between 2,000 and 3,000 people crowding into the area in front of the stage, which is known as the “mosh pit”. In the “mosh” people are jumping up and down and move and sway as one. The organiser set up a steel barrier which separates the ‘mosh pit’ from the stage. In the three metre wide security space, ten security staff are on duty.

Some patrons engage in “crowd surfing” which happens at most concerts. The patrons are lifted onto the top of the crowd and, lying down, are passed forward towards the stage. When they reach the front of the crowd, they are passed over the barrier.  Then, the security staff catch them, and direct them to walk along the barrier and go back into the crowd.

There are a couple of incidents reported in the past where patrons were injured from “crowd surfing”. Accordingly, at the entrance of the concert, a large sign is placed that says: “Crowd surfing is not permitted.” During the course of the day, some surfers are removed for aggressive behaviour. Otherwise, the practice is allowed to continue.

Mike, a seventeen year old boy, is there with his girlfriend, Lisa. Mike has been to many such concerts and always goes to the mosh pit. Late in the afternoon, Mike wants to show Lisa crowd surfing but Lisa points out the sign – “Crowd surfing is not permitted”. Mike laughs and tells Lisa that he likes it and it is safe. Lisa does not say anything further. When Mike is crowd surfing, before he reaches the front of the crowd, the hands passing him along suddenly drop away and he falls into the mosh. He is caught on the ground under the feet of the crowd. As the mosh pit is so crowded it takes the security staff 10 minutes before they can reach Mike and remove him to safety. Mike suffers spinal injuries, broken ribs and concussion and has to stay in hospital for three months.

Mike’s brother, Jason, is a new graduate from University of Eastern Sydney. After seeing the pain and suffering his brother experienced from his injuries and his rehabilitation during his stay in hospital for three months. Jason is very angry with the concert organiser. He believes his brother, Mike, should be compensated for all matters connected to his serious injuries.

1. Explain how this scenario relates to an area of law taught in Introduction to Business Law. (1 marks)
2. If Mike sues the organisers of the concert, what are the legal elements of the action that Mike must prove in order to establish the case? (6 marks)
3. What are the legally important facts that Mike would use to support his legal action in the scenario? (3 marks)
4. What defences might the organisers have available to them in response to Mike’s allegation? (3 marks)
5. What could the organisers do to avoid or minimise liability in similar situations?  (2 marks)

2. Letter instructing a solicitor (15 marks)

The word limit for the letter is 750 words maximum.

Imagine that you are Jason (Mike’s brother). Write a letter to a firm of solicitors seeking their assistance. In your letter you should:

• outline the facts the solicitors need to know and brief legal argument that Mike may have.
• summarise the possible defences and arguments in response to your claim, that can be expected from the organisers.

 Solution

1. ANSWERS

1. Explain how this scenario relates to an area of law taught in Introduction to Business Law.

The scenario in the set of facts relates to the principles of “contributory negligence”, “negligence”, “voluntary assumption of risk” (volenti non fit injuria), and “duty of care”. The application of these principles to the scenario broadly culminates in the area of “occupier’s liability” or “civil liability” as provided in the Civil Liability Act 2002 of New South Wales.

2. If Mike sues the organisers of the concert, what are the legal elements of the action that Mike must prove in order to establish the case?

The legal elements of the action that Mike must prove are:

(i)              Negligence on part of the organisers,

(ii)            Non-observance of statutory duty of care by the organisers, and

(iii)          Occupier’s liability.

The organisers, being the occupiers[1] of Parramatta Park for the purpose of the concert owed a duty of care as in common law and as explained in Section 5B and 5C of the Civil Liability Act 2002 to the spectators to ensure that the premises are not dangerous and care is taken so that no injury is caused to anyone who attends the concert[2]. To determine this, two questions need to be answered:

a)     Whether the organisers could have foreseen the conduct which involved a real risk of injury to the spectators, and

b)     Whether the organisers took adequate steps to nullify the risk. Factors which need to be considered are

• the magnitude of the risk;
• its probability;
• its obviousness[3];

Firstly, it is clear from the set of facts that the organisers must have foreseen the risk of injury to spectators and hence the sign prohibiting crowd surfing was put up.[4] Even then, the organisers failed to take actions to nullify the risk, this being obvious from the fact that instances of crowd surfing were allowed to continue. This proves that the organisers were negligent because even after having foreseen a significant risk, they failed to avert it by taking necessary precautions.[5]

Secondly, the event at Parramatta Park was expected to be attended by nearly 20,000 people, of which 2,000 to 3,000 were expected to be in the front area of stage. Even then, the number of security staff on duty was only ten. There were no crowd controllers and the security staffs were responsible for controlling the crowd, which they clearly were not able to, because instances of ‘crowd surfing’, which are dangerous activities, were allowed to continue. The organisers failed to observe their duty, and hence were negligent in their behaviour.

Thirdly, the security staff took 10 minutes to reach Mike after he fell down to remove him to a safe location. This shows inadequate safety arrangements at the concert location. The organisers being in control of Parramatta Park and thus being its occupiers are liable for any injury caused to the occupants under the principles of occupier’s liability.

3.What are the legally important facts that Mike would use to support his legal action in the scenario?

The legally important facts which Mike would use are:

1. There were nearly 20,000 people attending and 2,000 to 3,000 people crowd in the mosh pit area. Even then, there are only ten numbers of security staff on duty, which is clearly insufficient for handling the crowd. This is relevant to prove the non-observance of duty of care owed by the organisers to the spectators.
2. Even though the organisers had placed a sign prohibiting “crowd surfing” and some surfers were removed, the practice was allowed to continue. Thus the organisers were incapable of containing the risk involved in crowd surfing. This fact is relevant to prove the negligence on part of the organisers.

• There were not enough safety arrangements at the concert location. This is evident from the fact that the security staff took 10 minutes to reach Mike. There should have been security passages to reach the crowd in the event of a mishap. This fact is relevant as evidence for the negligence on part of the organisers to ensure proper safety arrangements.

4. What defences might the organisers have available to them in response to Mike’s allegation?

The defences available to the organisers are as follows:

1. 1.     Voluntary assumption of risk by Mike

The organisers are likely to raise the defence of volenti non fit injuria or voluntary assumption of risk by Mike. It is clear from the set of facts that the organisers had placed a warning sign prohibiting crowd surfing and the same was brought to the notice of Mike by his girlfriend. Even then, Mike did not pay heed to the warning and went ahead with crowd surfing and injured himself.[6]

• 2.     Involvement of Mike in a dangerous recreational activity

Where the injury is caused due to involvement in a dangerous recreational activity[7], the liability of the defendant is nullified by Section 5L of the Civil Liability Act, 2002. This defence is available irrespective of whether or not the plaintiff is aware of the risk.

5. What could the organisers do to avoid or minimise liability in similar situations?

In order to avoid or minimise liability in similar situations, the organisers must strictly prohibit dangerous recreational activity in concerts such as crowd surfing. Strict actions must be taken against offenders. Even individual instances should not be allowed. The number of security staff employed must commensurate the number of spectators. Adequate safety arrangements need to be made, including passages which allow the security staff to reach the location where a mishap has occurred as soon as possible. Also, in addition to security staff, crowd controllers should be employed. Additionally, a number of warning signs should be placed at conspicuous areas so that the spectators are adequately warned. Where the spectators engage in dangerous activity at their own behest, the defence as provided in Section 5L and 5M of the Civil Liability Act may be employed by the organisers.

2. LETTER TO A FIRM OF SOLICITORS

28 September 2011

To,

Mr. Michael Johnson

Senior Partner

Johnson & Co., Solicitors,

Sydney

Sub: Seeking advice on compensation for personal injury

Sir,

This is to seek your advice on a matter relating to claim of compensation for causation of personal injury due to negligence and lack of observation of duty of care. The facts of the matter are as follows.

My brother, Mike, with his girlfriend Lisa, attended an outdoor rock concert which was held at Parramatta Park. The concert was attended by almost 20,000 people of whom almost 2,000 to 3,000 people, including Mike and Lisa, occupied the area in the front of the stage, also known as the “mosh pit”. The organisers of the concert had put up a large sign at the entrance of the concert which said “Crowd surfing is not permitted”. Mike, being unaware of the dangers involved, wanted to show Lisa what crowd surfing was and hence, even after being informed by Lisa that crowd surfing at the concert was not permitted, started crowd surfing. While he was at it, before he could reach the front of the crowd, Mike fell into the mosh and was caught on the ground under the feet of the crowd. It took ten minutes for the security staff to remove Mike to safety but until then, Mike had suffered spinal injuries, broken ribs and a concussion for the treatment of which, he had to stay in the hospital for three months. We now want to sue the organisers of the concert for their negligence due to which Mike suffered the injuries. We seek your advice for the same. A few legal arguments in favour of Mike are presented below. Please give your opinion on the same.

1. The organisers owed a duty of care to the spectators as provided in common law and in Section 5B and 5C of the Civil Liability Act 2002 to ensure that the premises are not dangerous and that care is taken so that no injury is caused to anyone who attends the concert. It is a fact that even when the organisers had put up a sign prohibiting crowd surfing, they were unable to contain the instances of crowd surfing in the concert. While few surfers were removed, others were allowed to continue. Thus there was an implied consent on part of the organisers to the act of crowd surfing. This shows that the organisers were negligent towards safety of the spectators. Had the organisers made sure there was no crowd surfing happening in the mosh pit, Mike would not have been allowed to undertake the activity and hence would not have been injured.
2. The concert was attended by almost 20,000 people of whom 2,000 to 3,000 were in the mosh pit area. Even then, there were only ten security men in the mosh pit area, which is clearly insufficient to handle a crowd in such large numbers. This again shows the lack of observance of duty of care on part of the organisers which they owed to the spectators.
3. The organisers had not even made proper safety arrangements in the concert location. Security men took 10 minutes to reach Mike and remove him to safety. Had there been proper safety passages and more security personnel, Mike probably would not have been injured so badly.

From my preliminary research on such matters, I have been able to find a few defences which may be sought by the defendants against our arguments. You may please advice on the same as well.

1. The defendants may allege that Mike undertook the act of crowd surfing at his own behest even after being warned by the organisers through the sign board. The defence of voluntary assumption of risk is available in Section 5M of the Civil Liability Act, 2002. This could seriously hamper our claim for compensation.
2. The defendants could also allege the Mike undertook dangerous recreational activity which involved an obvious risk and hence they are not liable to be held negligent. A dangerous recreational activity is defined in Section 5K of the Civil Liability Act, 2002 and the defence is available in Section 5L. If the defendants are successful with the use of this defence, our claim for compensation may be entirely turned down.

I request you to please advise us in this matter and give your opinion as to what would be the best way to proceed. I look forward to an early response.

Thanking you.

Yours sincerely,

Jason

References

Articles:

1. Villa, Dominic. (2009). Liability for Personal Injury Arising from the Supply of Recreational Services. Australian and New Zealand Sports Law Journal. 4(1) p.55

Cases:

1. AC Billings & Sons Ltd v. Rodem  (1958). A.C. 240
2. Hackshaw v. Shaw (1984). 155. CLR. 614
3. Phillips v. Daly [1989]. Aust. Torts Reports. 80-234

Statutes:

1. New South Wales. Civil Liability Act 2002.

[1] “An occupier is any person who has occupation or control, whether it is partial or whole, of land or a structure standing on the land”, AC Billings & Sons Ltd v. Rodem  (1958) A.C. 240