The legal liability of amusement parks when tragedy strikes
I will never forget the feeling of wonder and exhilaration that I experienced when I walked in to Disneyland in 1982 as a young twenty-something on his first trip overseas. My brain was telling me that Mickey Mouse was a man in the suit, but my heart was still palpitating at the marvelous fantasy world that Disney had created.
The tragic accident at Dream World, on the Gold Coast, this week brings in to sharp focus that the fun and excitement at amusement parks does come with risk. Yes, you are more at risk of death or injury driving to and from the amusement park than inside the amusement park, but the risk exists and the operators and their insurers are well aware of it. Unlike many other forms of personal injury law, there is an overlap and an interrelationship between the law of tort/negligence and the law of contract with amusement parks. In relation to the law of negligence, amusement parks have a duty of care to ensure that any ride is as safe as possibl,e and in particular that the ride has been properly designed, maintained, operated and checked.
However, when you purchase a ticket to ride, you also enter into a contract with the operator. Your consideration is the experience of the ride and the operator’s consideration is your money. I would argue that it is an implied term of that contract that the equipment that you are using has been properly designed, maintained, operated and checked. Hence, if you suffer an injury as a result of a ride not being properly designed, maintained, operated or checked, you can probably sue the operator of the ride in both contract and negligence but you will need to prove that you have suffered a significant injury as a result of the experience, that the equipment was not properly designed, maintained, operated and checked and that the ride failed for that reason.
The bottom line is that there has to be a failure of care by the operator that causes significant injuries. A significant injury that is compensable means an injury that impairs you substantially for a period of seven days. Hence, regardless of the circumstances, you cannot sue for regurgitating your lunch after a ride even if there was a failure of care by the operator.
So what if there is no failure of care by the operator in relation to the equipment itself, but you still suffer an injury following a ride? What are your legal rights?
Rollercoasters and other high-velocity rides push the boundaries of physical experience and can be very frightening. The line between fear and exhilaration is a fine line and not everyone enjoys every ride. Furthermore, some rides are not age appropriate or suitable for people with certain pre-existing health issues. Operators are aware of this and protect themselves against legal liability by providing warning signs either upon entry at the park itself or at the ride that warns people not to take the ride if they suffer from certain pre-existing conditions or unless they are of a minimum age. If you suffer from a chronic illness such as epilepsy or you have an orthopaedic problem and the warning sign on the ride indicates that you should not take the ride if you suffer from this condition, you are at your own risk if you take the ride and suffer an epileptic seizure or aggravate your pre-existing orthopaedic problems.
Of course, this concerns injuries that you know you have before you take the ride. Sometimes, the excitement of a ride can trigger a medical condition about which the person was not aware before they got on the ride, in particular, severe coronary artery disease which progresses to a heart attack as a result of the excitement of the ride. While a person may not be aware that they have coronary artery disease until such time as a cardiovascular episode occurs, they would be aware they smokes, are overweight, their age, and could be aware of any family history of heart attacks, hypertension and high cholesterol levels. In those circumstances, it would be wise for a person with any combination of risk factors for coronary artery disease not to ride on the extreme rollercoaster.
Sometimes, the ticket and sometimes the warning signs have what are called exclusion clauses, which is where the operator is attempting to exclude liability under the contract that you have with the operator for any problems that occur as a result of the ride. Most people caught up in the excitement of the amusement park experience rarely take the time to read the fine print on perhaps the back of a ticket or on a sign setting out the exclusion clause. However, exclusion clauses are not blank cheques for operators to exclude all liability. Generally, the Courts will say that the only liability that is excluded is liability arising out of the normal experience of the ride where there is no equipment failure. The Courts will not allow operators to contract out of providing safe equipment.
The Civil Liability Act 1936 (SA) also excludes liability in negligence for what is described as an “obvious risk”. An obvious is risk is defined as a risk that in the circumstances would have been obvious to reasonable persons in the position of that person. It includes risks that are matters of common knowledge and the risk may be obvious even though it is of low probability. What will constitute an obvious risk in taking a ride on an amusement park? One example might be a risk that you might feel a bit dizzy when you get off or the risk that you might get motion sickness and vomit. Faulty equipment would not be an obvious risk. However, injuries suffered because you have removed a restraint on the ride or stood when you are supposed to sit could be obvious.
Of course, none of these things occurred to me at the age of 23 when Space Mountain beckoned. It is simply a question of whether I was scared enough not to take the ride itself simply because of the way it looked. However, at 57, you look at the world differently. You have to weigh up the potential exhilaration of the experience against the risk that you might come out of the ride with a headache, dizziness or a heart attack without the operator having done anything wrong. When you are young, it is the fun that is the priority. But as you age, other priorities emerge. In summary, the operator has a duty to provide equipment that is designed, maintained, operated and checked regularly and will be held liable for any injuries from breaching that duty. You have a duty to yourself to heed the warnings about ride suitability and behaviour about which you are warned by the operator and make an informed decision about whether the experience is worth the risk.