After attending a concert like Astroworld and witnessing the tragedies that occurred, would you accept a refund of the ticket price, or would that be settling and accepting compensation?
Around 275 cases are reported to have commenced following the death of 10 people at Astroworld Festival in Houston during a performance by Travis Scott, founder of the festival. The plaintiffs of the lawsuits, who number approximately 1,250, include the families of the victims and other attendees who suffered injuries.
The organisers of the festival have been sued. Many of the lawsuits also name Scott as a defendant personally, alleging that he incited the crowd or encouraged the violence. Much media attention has been focused on Scott’s previous conduct and comments he has made in the past which may be evidence of this ‘incitement’ (for example, in a 2015 video titled ‘How to Rage with Travis Scott’, Scott says: “Since I was six, I wanted to be a f***ing wrestler…So in performances I always wanted to make it feel like it was the WWF”).
Scott’s lawyers have already responded to at least 11 lawsuits against him denying the allegations and seeking to dismiss the lawsuits. If you’re like us, you are wondering how Scott and the festival organisers will argue that they are not liable, and whether they will seek to rely on the organiser’s terms and conditions to exclude or limit their liability.
The festival organisers initially indicated that they will be issuing full refunds to attendees and setting up a health fund to help with costs for medical expenses. But if you accept the refund, could you be prevented from making a claim for further compensation?
In Australia, a crowd rush incident at Falls Festival in Lorne in 2016 resulted in a class action against the organisers. In this case, the parties suffered varying degrees of injuries, but no fatalities. The Falls Festival organiser agreed to a payout of close to $7 million to settle the matter.
The liability of an organisation to compensate its attendees will depend on various factors, including their relevant terms and conditions. Generally, and in Australia, the organiser of an event will owe a duty of care to the attendees as well as owing an express or implied duty under contract (vis a vis the purchase of a ticket) to exercise due care and skill in organising the concert. A person who attends a concert and who suffers damage due to either a breach of contract or a breach of duty can seek compensation for that damage, including for physical and mental harm. However, to some extent, a party can limit and exclude its liability by expressly stating in the contract (in this case, the terms and conditions of the ticket) that certain liability is limited or excluded.
That said, not all limitation of liability clauses will be enforceable. For example, in Australia it is not always possible to exclude liability for negligence by contracting out of it. A lot will turn on how the limitation of liability is worded and whether the language used is clear enough.
Going back to the Astroworld cases, Scott and organisers may seek to limit their liability by relying on limitation or exclusion clauses in their terms and conditions. It may be that they seek to rely on a clause in their terms and conditions which states that their liability to compensate an attendee for a breach of contract will be limited to the refund of the ticket price.
If such a clause were enforceable, this may prevent some festival attendees (for example, people who witnessed others being injured and killed) from obtaining compensation in the order they might otherwise expect. An injured attendee would need to argue that the clause was only intended to limit the organiser’s liability in circumstances such as event cancellation, and that injuries caused by moshing and crowd rushes are not captured by the limitation.
If the event were in Australia, an injured attendee could rely on the Australian Consumer Law (ACL) to argue that a clause limiting the organiser’s liability for moshing injuries is void (i.e. has no legal effect). One possible argument under the ACL may be that the term is an unfair
term and therefore void. Alternatively, it could be argued that the term excludes a consumer guarantee under the ACL (for example, the guarantee that services will be supplied with due care and skill) which would render the term void. It would largely depend on the construction (wording) of the clause and the terms and conditions read as a whole.
We’ll be keeping an eye on what transpires over the coming weeks.
*Please note; At the time of publishing, this article was written with the relevant known public facts available. This is an ongoing dispute that is yet to be settled.
Published on 13th December 2021.