Motorbike stunt performer voluntarily assumes risk after disregarding warning from stunt clown

25 March 2022

Mr Archer (the Plaintiff), a freestyle motocross rider who was injured while performing tricks at the Korumburra Showground in 2015, failed in his claim against Mr Garcia (the Defendant), a monster truck driver, and the promoter and manager of a monster truck and freestyle motocross show.

In Issue

The Supreme Court of Victoria considered:

  1. whether the Defendant was liable in negligence and/or contract; and
  2. whether the Plaintiff voluntarily assumed the risk of injury after disregarding a stunt clown’s warning about changes to a ramp.

The background

The Plaintiff was engaged to perform motocross jumps and tricks during a show at the Korumburra Showground on 28 November 2015. The Plaintiff, an experienced and skilled motorbike stunt performer, successfully completed his first performance set jumping 75 feet. After the first jump, the ramps were repositioned 55 feet apart, for other performers.

The events that followed were disputed between the parties, however, ultimately the Court accepted that prior to his second jump, the Plaintiff and another well regarded performer (Mr Schubring) repositioned the ramps intending them to be 75 feet apart. Moments before commencing his second set the Plaintiff was intercepted by Mr Bowen, a ‘stunt clown’, who warned the Plaintiff that the distance between the ramps was too short for the performance. The Plaintiff disregarded the warning on the basis that it had been measured by Mr Schubring and proceeded to attempt the jump. Unfortunately, the distance was less than the expected 75 feet and the Plaintiff landed directly on the level ground beyond the down ramp after being thrown off his motorbike, resulting in a fractured cervical spine, a crushed larynx and injured ankles.

The decision at trial

Justice Incerti found that the defendant:

  1. owed the Plaintiff a common law duty to take reasonable care in organising the event (as occupier, organiser and principal), notwithstanding that freestyle motocross riding is inherently dangerous;
  2. discharged his duty by assigning responsibility for moving the ramps to Mr Schubring and the Plaintiff;
  3. did not have a duty to ensure that the Plaintiff, an independent contractor, did not make a mistake, nor to ensure that the Plaintiff was not injured; and
  4. did not otherwise breach his duty of care, and did not assume a more onerous duty under contract.

Ultimately, the Supreme Court of Victoria found that even if the Defendant had breached his duty, the Plaintiff voluntarily assumed the risk of injury by disregarding Mr Bowen’s warning.

Implications for you

The case is a reminder that where an activity is in the hands of specialist independent contractors who are competent (and where those activities are not interdependent with the activities of others) there will not be a duty to supervise by a principal, unless the potential for confusion exists between contractors.

In the present example the defendant took measures to provide for performers to communicate with other performers including the plaintiff about set up for events. As a result, the court found the defendant not liable for the plaintiff’s mistaken assumptions about the measurements of the ramp, because it had appropriately mitigated the risks arising from uncertainty about roles between performers.

Archer v Garcia [2022] VSC 57

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