Newcastle Entertainment Security Pty Limited v Simpson

Background 41 The plaintiff suffered the injuries the subject of this claim when he attended a concert performed by Pantera held at the centre. Pantera is an internationally renowned heavy metal grunge band which was touring Australia in November 1994. 42 The promoter hired the centre for the concert. The hiring was the subject of a written contract entered into with the centre manager in about August 1994 (the hiring contract). Under the terms of the hiring contract the promoter was granted a non-exclusive licence to use the premises. The centre manager retained possession of the centre and had the sole right to direct crowd control and oversee security. 43 The centre manager had a long term relationship with the security firm, who had provided security services at all events at the centre prior to the Pantera concert. For the purposes of providing security for this concert, they entered into a contract dated 1 November 1994 (the security services contract). 44 The terms of the hiring contract and the security services contract are relevant to a number of issues between the parties, including whether there is a contractual right of indemnity in favour of the centre manager against the security firm, and whether the promoter is entitled to an indemnity against the centre manager. 45 The centre is a multi-purpose centre located within the Newcastle Showground. It was described by one witness as a "big basketball court". On the night of the concert it was set up so as to provide a stage, tiered seating for over 3,000 patrons and a 'mosh pit'. 46 Approximately 2,400 tickets were sold for the concert. There were two supporting acts which performed prior to Pantera coming on stage. Pantera's performance commenced about 9.30pm. Initially, the plaintiff, who was then aged 16, was seated to watch Pantera. About twenty minutes into the performance, in the company of a friend, he went down to the dance floor area in front of the band, known as the mosh pit, to get closer to the band. This area was crowded and the plaintiff became separated from his companion. In the mosh pit, the audience was dancing and some patrons were also engaged in crowd surfing. Mosh dancing and crowd surfing are, apparently, notorious features of concerts such as this. His Honour found and it is not disputed that these 'self entertainment' activities were in fact promoted as part of the evening's activities. 47 His Honour described mosh dancing and crowd surfing in the following terms: "Mosh dancing, as I understand it, involves simply a movement of one's body up and down and swaying from side to side which does not require the society of a partner. Crowd surfing involves an activity wherein a person is lifted so that he is held overhead with his body parallel to the ground and as that person lays on his back he is passed from hand to hand by a number of hands lifted in that fashion towards the stage and over the barrier." 48 That suffices to introduce these two activities, although it will be necessary to deal more specifically with the evidence as to crowd surfing later in these reasons. 49 When the plaintiff moved down into the mosh pit his intention was to get closer to the band. He moved through the crowd and got to within two or three metres of a crash barrier which was positioned between the mosh pit and the stage. Many of the males in the crowd were bigger and older. The plaintiff noticed a few people crowd surfing. He then began to make his way back to his seat through the densely crowded area, but had not moved very far when he was then involuntarily hoisted up by some members of the audience and passed over the heads of people in the crowd. He resisted the movement toward the stage, but was ultimately passed to the front of the crowd to the barrier. In all, he was aloft for about five seconds. 50 The trial judge found that at that point: "Those holding him had let go of him as he reached the barrier. … he wasn't received or met by a security officer. He wasn't lifted to the floor behind the barrier, he simply didn't receive the assistance and as a result he fell and his face came into violent contact with that barrier. As a result of which his two upper incisors were knocked out." (emphasis added) 51 The trial judge concluded that: "Having regard to the number of security men available, the lighting, and the space there is simply no explanation for the plaintiff's accident, other than some inadvertence or negligent conduct on the part of [the appellant]. There was an obvious and acknowledged duty to the plaintiff which was breached by [the appellant]." 52 The security firm challenges the trial judge's finding that those holding the plaintiff "let go of him" at the barrier. Rather, it alleges that the only finding available on the evidence was that he was "thrown". The security firm also submitted there was no evidence to support the trial judge's finding of inadvertence or negligence; that, at the most, the evidence gave rise to competing inferences, including an inference that through no fault of the security officers, the plaintiff was not seen. It was submitted, therefore, that the finding that the security officers were inadvertent or negligent was no more than speculation, so that his Honour erred in finding a verdict against the security firm.