Duty of care owed to stunt performers by event organisers

A spectacular crash at a Monster Truck event in Gippsland Victoria in November 2015, raises questions about the extent of a duty of care owed to motocross riders (and other high-risk activity performers) and the consequences when a stunt performer voluntarily assumes the risk of injury. We explore the result of a civil litigation/common law case after a crash at the event resulted in significant injury.

Jayden Archer was a talented motocross rider. On about 400 occasions he had launched from jumps and soared through the air to the applause of the crowds below.

In 2015, the 19 year old had agreed to perform at a “Monster Truck and FMX Spectacular” at the Korumburra Showgrounds in Gippsland, Victoria.

Troy Garcia was the promoter and manager of the event. He was also the driver of a monster truck.

The event included monster trucks, FMX performances, a quad bike and ‘razor’ performances, a ‘rollover truck’ driven by ‘Psycho Sam’, performances by a ‘stunt clown’, a crane that lifts a car into the air before dropping it, a ‘drag tractor’, and fireworks to conclude the event.

It promised to be quite a show, even before Jayden had agreed to organiser Troy’s invitation to perform a couple of days earlier.

At 6.00 pm on the night, there was a parade of all the performers and their vehicles.

After the parade, the monster trucks completed their first performance, followed by the two FMX performers and next, Jayden and his friend. The first set of jumps by Jayden and the other FMX performers occurred at a distance of 25m.

Over the next 15 to 18 minutes Jayden took part in a performance with 10 to 12 jumps.

Once he had finished his first set, the ramps were shortened to allow quad bikes and the stunt clown to perform.

Once they were finished, it was time for Jayden to start his second round of jumps.

The stunt clown warned Jayden that the ramps were short but Jayden replied that his friend had measured the ramps.

Jayden took his place at the top of the ramp. As he sailed past the end of the ramp, he knew he was in trouble. He’d overshot and was about to land on the flat ground below, falling from his bike and impacting hard on the space beyond the ramp.

Supreme Court of Victoria, which handed down its decision in February 2022.

It was accepted by the defendant, Troy, that he owed a duty of care to Jayden and the other performers, including a duty to take reasonable steps to minimise the risk of injury.

The Court found that Troy’s duty in practical terms was to:

1. tell Jayden that the ramps would be used by other performers and that this would require the down ramp to be moved during the event;
2. give Jayden enough time to familiarise himself with the ramp movement system, practice the system and to make changes to that system if required; and
3. ensure that during the event, the ramp was moved by someone who was competent to safely move it.

Troy did not however owe a duty to ensure that Jayden did not make a mistake. He did not owe a duty to supervise Jayden’s jumps. And his duty did not extend to ensuring that Jayden wasn’t injured.

Did Troy breach his duty in the way that he placed and moved the ramps? Were Jayden’s injuries caused by Troy’s negligence in moving and placing the ramps?

The Court looked carefully at this issue in determining whether Jayden was entitled to compensation.

In making its determination, the Court also considered that Jayden was not an employee of Troy and so he was not entitled to workers compensation benefits and that Troy was not solely responsible as an employer, for Jayden’s safety.

In determining Troy’s liability for Jayden’s injuries, the Court found that it was more likely than not that:

1. Jayden was aware that the ramp would be moved during the event;
2. Jayden was at a meeting earlier that day where the ramp system was discussed and that he was involved in that discussion;
3. during that meeting, paint markings were made to show the variable distances of the jumps;
4. after the meeting, the riders practiced their jumps with the ramps being moved according to needs of the various performers;
5. during the first set of jumps, Jayden and the other FMX riders had successfully completed jumps with the ramps 25m apart;
6. after the first set of jumps the ramps were shortened by a “stunt clown” at the event who then performed on the shortened ramps on a quad bike;
7. the ramps were not properly reverted to 25m, in part because of the direction of Jayden that ramps had already been measured;
8. because of this mistake, the distance between the ramps was less than 25m, causing the accident and Jayden’s injuries.

Troy was successful in the case.

As a result of the Court’s findings about what happened on the day of the crash, the Court determined that Troy had not breached his duty of care to Jayden and that, in particular, Jayden had been made aware that the ramps would be used by other performers and that because of this, the ramps would be moved during the event. By requiring Jayden and the other performers to attend and practice earlier in the day, Troy had given them enough time for all performers to familiarise themselves with the ramp system, to practice and to make any changes to the system.

The Court then went on to find that even if Troy had negligently caused Jayden’s injuries, Troy would not be liable to pay compensation to Jayden because by going ahead with the jump (despite being warned that the ramp was in the wrong place), Jayden had voluntarily assumed the risk of injury.

The voluntary assumption of risk acts as a complete defence to any compensation claim made by an injured person.

The Transport Accident Commission provides benefits and compensation, by way of a TAC claim, for people injured as a result of the driving of a motor vehicle in Victoria (and in some rare cases, outside Victoria).

So, why wasn’t Jayden able to claim medical expenses, wages loss and lump sum compensation under the TAC scheme?

The answer is likely to be found in s37 of the Transport Accident Act in which the TAC is not liable to pay any benefits or compensation for injuries arising from an organised race or speed trial.

Further Jayden’s vehicle being unregistered and on private property at the time of the crash may have also prevented him from obtaining TAC benefits and supports.