Tourist Breaks Back on Sentosa Ride Law Analysis Essay Example for Free

Tourist Breaks Back on Sentosa Ride Law Analysis Essay Factual Summary of Case Australian tourist, Michael McCarthy, suffered a fall and broke his back while riding Sentosa’s MegaZip, which is a flying fox adventure ride run by Flying Dragon Adventures (FDA). The riders would initially slide down the zipline fast and would be slowed down by a braking mechanism as they approach the landing platform. However, in this case, McCarthy was travelling towards the landing platform at a faster speed than usual. As a result, he crashed onto the platform and broke several vertebrae in his back. He felt incredible pain and could not breathe for a minute and a half. McCarthy had no immediate medical help as there was no medical staff on-site. He only received assistance half an hour later and was taken to Singapore General Hospital 1 hour 15 minutes later. He received 35 stitches to his back and spent 5 days in and out of the intensive care unit. As for the ride, McCarthy satisfied safety requirements of being at least 0. 7m tall and less than 140kg in weight. This was the first accident in its two-year history of operation. Before the accident, the ride had been taken by at least 200,000 visitors in total and was already taken by 140 people on that day. Alexander Blyth, managing director of the ride, believed that all safety procedures were followed, that nothing failed and nothing snapped. The ride also requires customers to sign indemnity forms, in which contains an exemption clause that states that they are not responsible for any deaths or personal injuries unless through gross negligence. Blyth reported the case to the Building and Construction Authority (BCA), the regulatory body for amusement rides. Lawyers are attempting to seek compensation for McCarthy’s injuries, as they question the validity of the exclusion clause in the indemnity form by bringing up the Unfair Contract Terms Act (UCTA). Following McCarthy’s injuries, McCarthy wants to claim his recoverable losses. It can be assumed that FDA is using its exemption of liability clause as a defence. McCarthy’s lawyers are stating that the exemption clause is invalid under section 2(1) of the UCTA, which states that â€Å"a person cannot exclude or restrict liability for negligence in relation to personal injury or death†. The Contract Before riding, McCarthy was made to sign an indemnity form. The terms of the indemnity form could be regarded as the express terms of the contract between McCarthy and FDA. A contract was formed between both parties when McCarthy signed the indemnity form. Since, the express terms to the contract were introduced before the contract was formed, they are, prima facie, binding to both parties. There was an exemption clause in the contract stating that FDA is not responsible for any deaths or personal injuries unless through gross negligence. Crucial Questions Before we speculate on the legal outcome of the case, a few crucial questions have to be asked. 1. Was FDA negligent? If so, this would render their exemption clause invalid, and they will be made liable for McCarthy’s losses. 2. Did FDA breach any implied terms in the contract? 3. Is BCA liable to any extent? If so, to what extent? Before the crucial questions are asked, it is important to consider the section of The Amusement Ride Safety Act (2011) which states the scope of responsibilities of parties with statutory responsibilities. They are as follows. Parties with statutory responsibilities The Amusement Rides Safety Act (ARSA) defines statutory duties and liabilities for the following stakeholders to ensure proper accountability for the safety of rides: a. Person responsible (i. e. FDA): The person responsible, who is primarily the holder of an operating permit, will be the person who has the charge, management or control of the ride. He will have overall responsibilities for all matters concerning ride safety. b. Ride manager: The ride manager, who is employed by the holder of an operating permit, will manage and oversee daily and routine operations and maintenance of the ride. He has to possess prescribed technical qualifications and experience. c. Qualified person (QP): The qualified person, appointed by the applicant of the permit or the holder of the permit, will carry out specific technical duties, such as certifying technical compliance with design codes, supervising ride installation or modification and conducting annual inspections to ensure ride safety. Was FDA negligent? The court could question whether FDA was negligent in declaring the true safety limits of the ride and if the ride manager was negligent in handling the situation. The safety limit that was declared could have been that the system would not suffer any breakage or malfunction at the stipulated weight but the braking system was unable to be effectively utilized to ensure the safety of the user. In addition, the ride manager could arguably be negligent in the handling of the situation in not pulling on the emergency stop that should have been installed in every amusement ride to stop the ride in the event of an adverse incident. In the event that the ride manager had been negligent in due diligence, the ride manager would also be liable for breaching section 17(1)(a) or ARSA. There are a few possible outcomes regarding negligence on the part of the FDA, and the possibilities of each outcome will be examined. The first possibility is that the court could reason that the FDA was negligent in checking that the braking system was functioning properly and at optimal level. It could state that the braking mechanism is a very integral and crucial component to the system, and hence negligence in the area of ensuring the functionality of the braking system could amount to negligence in ensuring the safety of the system as a whole. In addition to this, the court could also rule the FDA was negligent in ensuring adequate safety limits for the ride. If this was the case, then it is likely FDA will be held fully liable for McCarthy’s recoverable losses. This is because its exemption clause would then be invalid, by virtue of section 2(1) of the UCTA. The second possibility could be that the court could consider contributory negligence as a defence. This however, would be almost impossible because it would be almost impossible for FDA to prove that there was a degree of negligence on the part of McCarthy. It was most likely that McCarthy had to comply with the necessary safety measures before riding, such as wearing a helmet and safety harness. As such, it would be almost impossible for the court to hold both McCarthy and FDA partially liable for McCarthy’s recoverable losses. Did FDA breach any implied terms? If FDA had breached any implied terms in the contract, and McCarthy suffered losses as a result, then it follows that McCarthy can sue FDA for his recoverable losses. The Duty of Care The duty of care can be an implied term in the contract between McCarthy and FDA, even if it was not expressly provided for in the contract. This term would be implied by statute, by virtue of section 13(1)(b)(i) of the ARSA. In addition to the exemption clause being invalid due to negligence, the courts could also rule that FDA’s negligence could have resulted in it breaching its duty of care when the braking mechanism failed to work properly and McCarthy was injured. Furthermore, despite the dangerous nature of the ride, FDA did not have an on-site medical team to ensure that immediate action could be taken in the event of an accident. This is a breach of an implied term for FDA to provide for the safety of its customers in the event of an adverse incident. This term is implied by statute; according to regulation 16(6)(b) of ARSA, â€Å"The operator of an amusement ride shall ensure that at all times when the amusement ride is in operation there are in attendance to render first aid when the necessity arises, a sufficient number of persons who are properly trained by a first aid training organisation acceptable to the Commissioner;† FDA can be held liable for McCarthy’s recoverable losses based on the breach of these implied terms alone. Is BCA liable? Under the ARSA, it states that all amusement rides has to be assessed and certified by a Qualified Person (QP), which must be an amusement ride specialist engineer registered under the Professional Engineers Board. However, as the MegaZip ride involves an aerial ropeway, it is further classified as a major amusement ride under the ARSA. With it being a major amusement ride, the QP is also required to engage and consider the advice and opinion of a conformity assessor (CA). The CA has to carry out procedures such as inspections, tests and certifications to determine if the design and specifications, the proposed installation method or programme or the proposed modification method or programme relating to a major amusement ride or the major modification thereof conform to any technical standard or requirement. Besides technical support, the CA will complement the qualified person with expertise in nontechnical but critical aspects of ride safety such as ride management (e. . layout of queue areas) and crowd control (e. g. access routes and barriers). In order to ascertain whether BCA is liable for the accident, it is important to determine if the accident arose as a result of: 1. QP and CA’s inadequate safety inspections, overlooking of fundamental technical faults and establishing poor safety standards during construction. 2. FDA’s lack of day-to-day management of ride safety. In order to ascertain if the accident occurred due to the QP and CA’s lack of rigorous inspection on the ride, we must determine if they approved the ride without proper assessment of its safety. If the accident arose due to the fault of QP and CA’s poor safety assessment and haphazard approval of the ride, then some degree of liability may fall onto the QP and CA. With this assumption, FDA could then argue that the accident was caused by the QP and CA’s negligence in highlighting and rectifying safety issues during construction. FDA could state that their ride was certified by the QP and CA, assuring FDA that the ride was acceptable and followed all safety aspects. In addition, if FDA was certified through a document of approval signed by the QP and CA, FDA could use this certification as evidence in court to back up their case. This is due to the fact that it would be unfair for FDA to take up the liability if we were to consider that FDA followed all of BCA’s ACRA requirements and sought necessary approval by the QP and CA for the ride. However, the possibility of the scenario above is rather small as it is most likely that at the point of construction, all safety limits proposed by the FDA met the safety requirements of BCA and that the QP and CA properly checked and certified the ride. As the QP and CA’s duties were only restricted to the period of construction, it was the FDA’s responsibility to ensure that the day-to-day operations of the ride were well within the safety limits and that regular maintenance was conducted on the ride. In addition, considering that the accident took place two years after the construction, it would be unfair to attribute blame onto BCA, as the ride would have undergone much wear and tear and weathering. Furthermore, BCA does not have proper control over FDA’s maintenance of safety standards beyond the initial construction phase of the ride. Also, as BCA is a statutory body in ensuring that operators of amusement rides complies with the safety regulations, it would be unreasonable to expect them to be responsible for all safeties of all rides at every point in time. In addition, its role does not extend to ensuring that the ride’s safety features are continuously maintained. As such, it is extremely difficult to hold BCA liable for the accident to any degree, because the onus lies on the FDA to ensure the constant safety of the rides beyond the construction phase. Our Final Evaluation In conclusion, it is highly likely that the court would rule out that FDA was negligent in verifying the safety of the ride, and hold FDA liable for McCarthy’s losses. Assuming McCarthy’s weight was within the true weight limit of the ride, and the braking system of the ride did malfunction on that day, it is most likely that FDA will be held liable as the onus of verifying the efficiency of the brakes is solely on FDA. Should the braking system have been working well that day, but McCarthy’s weight was not within the true weight limit of the ride, it is also most likely that FDA will be held liable in this case as the court can then rule that FDA was negligent in determining the true safety limits of the ride. In saying this, we are assuming that McCarthy was not negligent himself in adhering to any of the safety procedures (e. g. wearing safety harness etc. ). Hence we can assume that there was no contributory negligence on the part of McCarthy. This, in turn, is also not likely as it was not stated in the facts of the case. We can also assume that BCA will also not be held liable to any extent at all, as the onus of ensuring the day-to-day safety of the ride system is on FDA. In a nutshell, from our points of evaluation, we can conclude that the the court will most likely rule that FDA was negligent, be it in verifying the physical safety of the system, or verifying the true safety limits of the system. In committing an act of negligence, the FDA’s exemption clause will be rendered invalid, by virtue of section 2(1) of the UCTA. On these grounds alone, FDA will likely hold liability for McCarthy’s injuries. In addition, FDA’s negligence can also be ruled out to be in breach of the implied duty of care. On these separate grounds alone, it is also likely that FDA can hold liability for McCarthy’s injuries. As such, we can conclude that the likely legal outcome will be that FDA will be held liable for McCarthy’s recoverable losses. If ruled in McCarthy’s favor, it is likely that operations of the ride will be suspended until all investigations and modifications to the ride have been made and verified to be safe. By section 30 of ARSA, FDA â€Å"shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 12 months or to both†. FDA would also be held liable for all costs with regards to McCarthy’s personal injury.