Risk management for event organisers from a legal perspective

Extracts from a paper presented at an Events Industry Association WA seminar titled Legal Rights and Responsibilities on 27 October 2015 at Ascot Racecourse. The presentation focused on the concepts of duty of care and negligence.

Duty of care

Clear and long standing principles have been set out on this issue. The main case is Donoghue v Stevenson1. This case developed the idea of owing of a duty of care to others. Mrs Donoghue was drinking a bottle of ginger beer which contained a dead snail. She got gastroenteritis and fell ill, and she sued the brewer of the ginger beer, Mr Stevenson. The House of Lords held that he owed a duty of care to her, which was breached by the presence of the dead snail in the bottle, because it was reasonably foreseeable that failure to ensure the safety of the ginger beer during manufacture and bottling would lead to harm to someone who drank it, if contaminated.

The case established the concept of ensuring the safety of others who could be put in harm's way if it is reasonably foreseeable to us that an action or a failure to take some action on the part of an individual could lead to harm.

In the context of an event, the existence of this duty of care creates a significant obligation on organisers to get things right.

After a plethora of what were considered to be "soft" decisions in favour of plaintiffs and after the spectacular collapse of HIH Insurance in 2001, the WA State Government enacted the Civil Liability Act 2002 (Act) and this legislation now generally governs this area.

Civil Liability Act

Duty of care

Under Section 5B:

A person is not liable for harm caused by that person's fault in failing to take precautions against a risk of harm unless: the risk was foreseeable; the risk was not insignificant; and in the circumstances, a reasonable person in the person's position would have taken those precautions. In determining whether a reasonable person would have taken precautions against a risk of harm, the Court is to consider: the probability the harm would occur if care were not taken; the likely seriousness of the harm; the burden of taking precautions to avoid the risk of harm; and the social utility of the activity that creates the risk of harm. This part covers the forseeability of events and how easy it would be to guard against them. For example, cabling for loudspeakers left unguarded in a public access way at an event would be likely to cause injury if care was not taken by, say, covering them up or routing them overhead. If someone tripped and fell there might also be no injury but again, a more serious injury could quite easily be sustained. The burden of taking precautions is low in this case and depending on the type of event, the social utility argument may also be relevant. The number of different factual situations to which these issues might have to be applied is huge, and depends on things like the type of event being staged, the time of day, whether alcohol was being served, the age of the audience/participants, the weather and the venue, along with many other factors.

Section 5B had its beginnings in the case of Wyong Shire Council v Shirt2. In this case the plaintiff was gravely injured after water skiing in a lake. The water was very shallow in some places, and that is why the plaintiff was injured. The defendant had erected a 'Deep Water' sign close to where the plaintiff was injured, which was meant to serve as a border and to state that beyond that sign, the water got shallower. The defendant was found liable. The Court held that reasonable foreseeability in a breach of duty of...