Personal injury following an accident can cause serious upheaval and significant financial hardship to families, especially in the case of serious injuries. When the injury occurs on someone’s premises, it may be possible to recover compensation from an occupier.

But can you claim against an occupier after someone else on the premises causes personal injury? 

This article recaps the occupiers’ duty of care under the Occupiers Liability Act (OLA). It also looks at a recent decision of the Supreme Court of British Columbia, in which a woman injured by a flaming guitar stunt brought a claim against the band involved and the concert promoter who leased the venue.

Occupiers’ duty of care to see that people will be reasonably safe

Under the OLA, an occupier of premises must take reasonable care to see that a person and their property will be reasonably safe in using the premises. The duty applies in relation to the condition of the premises, activities on the premises and conduct of third parties on the premises. 

“Occupier” is defined as a person who is in physical possession of premises or has responsibility for and control over the condition of premises, the activities conducted, and persons allowed to enter the premises. 

The OLA contains several exceptions. For example, an occupier has no duty in respect of risks willingly assumed by that person other than a duty not to create a danger with the intent to do harm to the person or their property or act with reckless disregard to the safety of the person or integrity of their property.

Plaintiff suffered serious burns after flaming guitar stunt at concert

In Langston-Bergman v Orchard, the plaintiff attended a concert by the band Boogie Monster in Chinatown, Vancouver. A concert promoter was renting the venue, and there was no security. 

After the set finished, an incident occurred, which was described by Justice Slade in the following terms:

“As Jimi Hendrix famously did on stage at the end of a set, [the band’s guitarist] laid his guitar on the floor, poured a liquid on it from a water bottle and ignited it. There was, by the plaintiff’s account, a “huge flame”.”

The guitarist appeared to panic and dropped the bottle, kicking it away. The flaming liquid extended to the plaintiff’s standing, and she suffered serious burns to her legs.

The plaintiff sued the guitarist, the band’s other member (the drummer), and the promoter. The guitarist did not appear at trial.

Promoter denied guitarist permission to perform stunt inside venue

According to the drummer, when they arrived at the venue earlier that night, the guitarist placed buckets of water in the performance area. Fearing the guitarist was planning the fiery stunt, he confronted him, and the guitarist said he would raise it with the promoter.

The drummer saw the guitarist speak to the promoter but didn’t overhear the conversation. The guitarist later told him that the promoter had said “no” but offered him the option of performing the stunt outside.

Guitarist liable in negligence but drummer had no responsibility for the injuries suffered

Justice Slade found that “little discussion” was needed in finding the guitarist liable for the plaintiff’s injuries. The proximity between the guitarist and the crowd gave rise to a duty of care not to create a risk of harm. It was foreseeable that igniting a flammable liquid in the middle of a closely grouped gathering of people would create a risk of harm.

His Honour decided that the drummer was not liable for negligence. The drummer believed that the guitarist would not proceed with the stunt after he objected and was denied permission by the promoter, and this belief was reasonable.

Promoter was an occupier; had duty to see that attendees would be reasonably safe

The concert promoter leased the premises and operated it as a venue for the performance of Indie Rock music. The parties agreed that he met the definition of an occupier under the OLA. He had a least “some degree of day-to-day control” over the premises.

Justice Slade explained that, under the OLA, it was the promoter’s duty to see that those attending the concert would not be exposed to the risk of injury due to the band’s actions. His Honour said that the relevant question was whether the promoter took adequate measures to ensure that the guitarist did not perform the stunt. 

Promoter liable for failing to provide direct and visible supervision

The promoter argued that the guitarist’s actions were unforeseeable, given that he denied him permission to perform the stunt. 

Justice Slade explained that the promoter had been put on notice of the guitarist’s wishes to perform the stunt and would have known that performing the stunt outside after the performance would not be an attractive alternative. The premises lacked safety measures, including security personnel.

His Honour found that the promoter failed to meet the standard of care and that it was foreseeable that the guitarist might proceed with the stunt despite being denied permission. Justice Slade concluded:

“In the present circumstances the applicable standard of care called for the exercise by [the promoter] of vigilance to ensure that the stunt not be performed. Direct and visible supervision of [the guitarist] during his performance was not provided. Despite the foreseeable risk that [the guitarist] would perform the stunt, the audience was not restrained from coming into close proximity with [the guitarist].”

Justice Slade awarded the plaintiff damages of slightly over $200,000.

Contact Meridian Law Group in Vancouver for Representation in Personal Injury Claims

The talented and determined personal injury lawyers at Meridian Law Group in Vancouver provide skilled representation and pragmatic advice for clients involved in accidents. They advise on claims against occupiers when the injury is sustained on premises. 

Located in downtown Vancouver, the firm proudly represents clients throughout West Vancouver, North Vancouver, Coquitlam, Penticton, Kelowna, Richmond, New Westminster, Burnaby, Surrey, Langley, and White Rock. To arrange a confidential consultation for your personal injury matter, please call 604-687-2277 or reach out online.