Introduction
In recent times, the issue of spectator violence in sporting events has come to the forefront, leading to the furore over crowd management and crowd safety. There have been multiple instances of harm being caused to spectators at major sporting arenas, the notable examples being the Hillsborough disaster in 1989, the Heysel tragedy and the recent instance of spectator violence at Port Said, Egypt. The fact that liability exists is undeniable, but what needs to be determined is the extent of such liability of the event organisers for the activities in the premises; and whether the event organisers are responsible for the safety of the spectators. This has been discussed through cases and legislations of various jurisdictions hereunder.
Liability under Tort Law
The liability for issues dealing with crowd management and crowd safety can be addressed under tort law. The general rules of tort law such as negligence and duty of care can be applied to cases involving mishaps in sporting events. The basis of the tort of negligence is a claim that the defendant failed to observe the necessary standard of care owed to the claimant and this negligent act caused the claimant’s injuries. The tort of negligence was developed through the ‘neighbourhood principle’ laid down in the case of Donoghue v. Stevenson ([1932] AC 562): consequently, as applied to sports, a sports participant must take all objectively reasonable care to avoid causing foreseeable injury to the other players.
The principle with regard to duty of care applied in the context of sports was established in the case of Rootes v. Shelton ([1968] ALR 33). The Australian High Court in this case, held that just because an injury occurred in the context of sport or a game this was not sufficient to exclude it from the operation of the laws of negligence; and that simply because an activity contained certain inherent risks this did not eliminate a duty of care.
There are potentially two defences in cases dealing with negligence in sports. The first one is the ‘assumption of risk’ or the inherent risk defence, also known as ‘volenti non fit injuria’. The assumption of risk doctrine can be described as the idea that an individual is barred from recovery for injuries resulting from an activity in which the individual realized the risks, implicitly or expressly, and nevertheless voluntarily participated. The other defence available is the general tort law defence of consent. Consent may be express or implied. A player’s participation in a sport may be treated as implied consent.
However, this was not upheld in Lowe v. California League of Professional Baseball ((1997) 56 Cal. App . 4th 112), where a spectator at a baseball game sued for injuries he sustained when he was struck by a foul ball while attending the game. The court held that generally baseball team owners owed no duty to the plaintiff to protect him from foul balls under the doctrine of assumption of risk; however, “the defendant did owe a duty not to increase the inherent risk to which the spectator at the game was regularly exposed and which a spectator would assume”.
Recently, in the case of Sarah Weber Brisbin v. Washington Sports and Entertainment Ltd. (422 F. Supp. 2d 9), the US District Court granted summary judgment in the favour of the owner of a sporting arena, as the plaintiff failed to establish the standard of care by which to measure the owner’s crowd control and further because there was no evidence that the crowd was unruly.
United Kingdom
The first recorded example of stadium occupiers being held liable for a defective stand was in the case of Francis v. Cockrell ([1870] QBD 501). A part of the stand collapsed and the court upheld a claim against the occupiers even though the negligence had been on the part of the builders. The courts held that a contract existed between the spectator and the occupier with an implied term ensuring a reasonable standard of safety. Today, it is likely that such a claim will not be upheld against the occupiers.
Section 2 of the Occupier’s Liability Act, 1957, mandates that an occupier of premises owes the same duty, the ‘common law duty of care’, to all his visitors, except in so far as he is free and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. In the case of White v. Blackmore ([1972] 2 QB 651), it was held by the Court of Appeal that warning notices placed at the entrance of the venue stating that the organisers would not be liable for accidents to spectators however caused, had effectively avoided liability.
The Guide to Safety at Sports Grounds published by the Department for Culture, Media and Sport, also known as the Green Guide, is a comprehensive guide on crowd management and crowd safety. Although the Green Guide is not enforceable by itself, many of its recommendations have been included in safety certificates issued under the Safety of Sports Grounds Act, 1975 or the Fire Safety and Safety of Places of Sport Act, 1987.
Bolton v. Stone ([1951] UKHL 2), is one of the earliest cases, where the principle of occupier’s liability was upheld. In the present case, the trustees of a field where cricket was played were held responsible for the negligent action of persons who used the field in the way that it was intended to be used.
The Hillsborough disaster, as it is commonly called, took place in 1989. 96 persons perished while hundreds were injured in an instance of previously unseen spectator violence. In the years that followed, the steps taken included the Taylor Report for which Taylor LJ was appointed to inquire into the events and make recommendations about the needs of crowd control and safety at sports events. In the Hillsborough Independent Panel Report, which was released on September 12, 2012, the disaster was attributed to multiple failures by emergency services and public bodies.
Liability of Organisers
United States
The issues of crowd management and crowd safety are given due importance in the United States of America (“USA”).
The case of Gallagher v. Cleveland Brown Football Company ((1996) 74 Ohio St.3d 427), illustrates the legal implications surrounding improper seating arrangements in a sporting event. In this case, the plaintiff, a television sports caster alleged that the defendants, a professional football team, corporation, and stadium were negligent in failing to provide him with a safe place to videotape the game, because of which, he was required to kneel in an unprotected area of the field, making him prone to collisions with oncoming players. This case effectively illustrates the issues concerning assumption of the risk and depicts the elements of the law associated with this defence. The Supreme Court of Ohio held that “only those risks directly associated with the activity in question are within the scope of the assumption of the risk defense”. Thus, no duty is owed by the event/venue manager to protect a plaintiff from such a risk. Additionally, primary assumption of the risk “prevents a plaintiff from establishing the duty element of a negligence case and so entitles a defendant to judgment as a matter of law”. In the instant case, the defendants conceded that a duty was owed to the plaintiff to warn of hidden dangers of which the defendant had actual knowledge. The event/ venue managers were ultimately held responsible for improper standards of crowd management.
Australia
The legislative framework and enforceability surrounding crowd management and crowd safety is far more advanced in Australia compared to other jurisdictions. There have been legislations in place addressing the issue of crowd management, safety, liability and other issues. The central legislation in this respect was the Major Events (Crowd Management Act), 2003, which was repealed by the Major Sporting Events Act, 2009.
New Zealand
In the case of Evans v. Waitemata Pony Club ([1972] NZLR 773 (NZ)), a horse which was tethered to a branch, broke free causing injury to a group of spectators, due to the inadequate provision of hitching rails and no separate enclosure for competing horses. The organisers were found liable for damages because they did not meet their responsibility to ensure the area and modes of operation were reasonably safe.
Liability of other entities
In certain situations, the liability for crowd management or crowd safety can be assigned to entities other than the event organisers, such as public authorities like the police, government, legislative or other statutory authorities or organizations and sportspersons that indulge in participator violence. However, the event organisers in such cases may continue to be liable for vicarious or contributory negligence. In the case of Watson v. British Boxing Board of Control ([2001] QB 1134), the governing body was held responsible as an important part of its role was to produce safety guidelines for bouts and the Board owed a duty of care to the claimant; which was breached by the inadequacy of the guidelines.
Conclusion
In the Indian legal context, there have been no legislation, regulation or rulemaking on the subject matter of event organisers’ liability for crowd management and crowd safety in sporting events. Although not as part of a sporting event, there have been a few instances of demand for crowd management in and around public spaces such as temples and other public places. The Kerala High Court held that earnest efforts be made towards crowd management and implementation of disaster management for the Sabari Mala Temple. In the future, such regulations seeking effective measures for crowd management and safety and allocation of liability either to the organiser, or such other entity as it may concern, may be endorsed for sporting events as well.
With the marked increase in the volume of sporting events held in India, it is inevitable that the issue of liability in the context of crowd management and crowd safety will crop up; and it has become imperative that the legislative, regulatory and enforcement machinery to deal with these issues be well oiled.
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