Mr Solomon N'Jie - Sol Management Services
A Defence Strategy for Litigation Claims through Effective Crowd Safety Management Practices
A key question every event organiser should ask themselves before allowing the public into their event is; would your event plan and response to more serious crowd safety related incidents, stand up to independent scrutiny, litigation or survive an inquest?
In my role as a Crowd Safety Management Expert I deal with the aftermath of events that go wrong and cause harm to members of the public. Writing the reports for the courts and lawyers involves a close examination of the documentation relating to event planning, staffing, roles & responsibilities, training, communication, delivery processes and event logs.
While reading through the bundles sent by lawyers, it is striking how many events do not have a full set of risk assessed documentation with a process to deal with unplanned changes during the event. It is important to realise that major event incidents are frozen in time and get unpicked by the legal profession, experts and the media. Remember the current Hillsborough inquest is looking at that disaster through the prism of legislation, guidance and best practice in 1989.
The Attorney Steve Adelman summed up the legal process when he said; “When lawyers retrospectively review a set of facts, which happens in every lawsuit, we first argue about what a hypothetical reasonable person would have done under those facts. The parties' duelling standard of care experts advocate for what they believe "reasonable" conduct would have been. Then the lawyers compare the litigants' (mis)conduct against this purportedly objective standard”.
Many studies have been done about what causes accidents and it has been shown that injuries invariably result from a sequence of factors, often referred to as the domino effect, the last act being the injury itself. It was Toft (1990) who said that “near misses should not be shrugged off but instead be treated as fortunately benign experiences, since if the same events were to repeat themselves in less forgiving circumstances the disaster might ensue”. Accidents and injurie can often be prevented if action is taken at any point during the sequence, but this requires good planning and event delivery with competent staff.
Crowd safety management planning and preparation can be distilled down to a number of processes that all events should follow. A prominent Statement of Intent at the beginning of any Crowd Management document, clearly laying out responsibilities for planning, delivery and monitoring crowd safety, enables all parties to completely understand the terms of the proposed agreement. It should also cover what the supplier is not responsible for, helpful with framing responses to complaints or litigation actions.
The starting point for a crowd safety management plan is information gathering to fully understand the attraction, particularly the performers and crowd, their profile and demographic, needs, expectation and likely behaviour. Questions arising over the venue such as realistic capacity, unique or adapted premises and suitability for event use should be tackled early. Other influences that could potentially affect the planning process such as weather, transport issues, conflicting events and media hype should also be looked into.
Event organisers have a duty of care to staff and spectators and should take reasonable steps to ensure their safety. Therefore, a risk assessment process must feature prominently in any crowd safety management plan. Understanding how and why incidents may occur at an event requires a little detective work using techniques such as Extreme Value Analysis (EVA), a two level system of analysis adapted by Mick Upton, when planning for crowd safety at organised public events. EVA is simply a method of estimating the probability of a rare event happening and can be used as a first step in the process of assessing risk, to try and ensure accidents from the past are not repeated in the future.
Based on the information gathered, predictions can then be made on the likely crowd behaviour during each event phase e.g. Arrival, Ingress, Movement, Egress and Dispersal. Venue footprint design considerations, information, communication, staffing levels and management processes can then be developed. A suitable risk assessment should take place throughout this process to validate and ensure crowd safety.
A plan is only as good as the staff that implement it. ‘You should provide an adequate number of staff to ensure effective crowd management’ (Managing Crowds Safely HSE). Implementing a check-in system to make sure the correct number of staff with appropriate qualifications, skills and knowledge are present on the day, is essential. Briefing, deployment and the ability to maintain constant communication, to ensure staff efforts are aligned with the event needs is important, while monitoring for signs of capability mismatch.
A management structure with the ability to detect incidents, assess them and determine the correct course action should also be in place. Crowd management is a team effort, no single person can reasonably be expected to undertake strategic, tactical and operational tasks on an event that can involve large numbers of staff working across a wide area where a number of different activities are likely to be taking place (Mick Upton 2015). There is a requirement to record reportable injuries, diseases or dangerous occurrences in a consistent and accurate manner. Applicable responses to incidents should also be documented together with appropriate radio traffic logs. David Masters HM Coroner for Wiltshire Inquest into the Hercules crash of January 2005 made the point; “I believe that the ability to retrieve and view documents which record key decisions is not just important, but essential – and equally important is the rationale behind them.”
Contingency plans must be developed to respond effectively to health and safety incidents and other emergencies that may occur. The plan needs to be proportionate to the level of risk presented by event activities and the potential extent and severity of incidents. It should include procedures to be followed by staff in an emergency using the resources available onsite. Gaining agreement with the local authority and emergency services, to be clear about roles and responsibilities with an agreed hand over process to establish primacy for the incident, should be sorted before the event.
Can all this planning, preparation and managed delivery make any difference to a civil litigation claims? Let us consider an interesting case where the plaintiff claimed damages for injuries sustained whilst she was attending an ice hockey game at the Odyssey Arena between Belfast Giants and Cardiff Devils. During the warm up she was sitting as a spectator when she was struck on the forehead by a puck which left the ice rink. This girl received a nasty laceration above her eye which required suturing and has left a scar of which she is conscious. She was claiming an award in this case of £30,000.
The judge in his summing up said: “It does not of course necessarily follow from the fact that the plaintiff was struck that the defendants are liable. The question is whether the defendants took such care as in all the circumstances was reasonable to see that the plaintiff would be reasonably safe in spectating. The duty of care is therefore only to take reasonable steps in the circumstances. It does not extend to ensuring the safety of a visitor such as the plaintiff in every circumstance. Unfortunate accidents will always happen. In this case, I am satisfied that the duty of care was properly taken by the defendants to ensure that the arena was as safe as reasonably possible for the plaintiff”
Mark Scoggins Solicitor Advocate and a lead in Health and Safety and Environmental Law put it most eloquently when he said; “No record, no proof, you lose the argument”
Sol Management Services
Sol Management Services provide Crowd Safety and Event Management Services. This includes the integration of drone related planning and delivery activities across the events industry.