Here’s a word for any event organiser to consider: negligence

COVID-19 is, as befits a global pandemic, creating pandemonium across the globe. 

As perfectly described by Crikey’s Charlie Lewis on Twitter, “2020 is increasingly becoming just a series of audience suggestions at a shitty improv night”.

Such a situation will naturally produce some stark contrasts. While the US closed off Europe, India closed its borders and Italy closed itself down. Football matches were played to empty stadiums, and the NBA didn’t happen at all.

And while large crowd events everywhere were being cancelled, one headliner was until the last second still going full speed ahead. I speak, of course, of this weekend’s Melbourne Formula One Grand Prix, which after much to-ing and fro-ing (including the idea it would be raced sans fans) was cancelled this morning.

The event had already attracted controversy after the suspicion that it was the only reason Australia hadn’t yet hit Italy with a flight ban as it had China, South Korea and Iran (that and, you know, racism). 

Despite a spike in cases of coronavirus making Italy only second to China, the Ferrari F1 team was able to fly in from that hot zone unimpeded. Just a temperature check on arrival, no quarantine, no worries.

Not terribly surprisingly, eight members of visiting F1 teams (not Ferrari) went into self-quarantine, suspected of being COVID-19 positive. Then the McLaren team pulled out altogether, citing public safety. 

This morning, with organisers under intense pressure, nobody seemed to know whether the event would go ahead or not — until the race organisers canned it.

On past performance, Melbourne could have expected more than 300,000 spectators to crowd together for the spectacle, many from overseas, all engaging in the very opposite of that concept we’re rapidly learning — “social distancing”.

The GP story exemplified the enormous credibility gap that Australian governments are opening up for themselves as they try to control COVID-19 without killing the economy. 

“I’m going to the footy this weekend” said Scott Morrison, while every medical expert in the country was calling very loudly for nobody to go to the footy at all.

Consequently, grand prix or no, many large crowd events are still going on with the imprimatur of the government. Many schools remain open and there is no official line on social distancing for us to follow.

So, say there is an outbreak of community-spread COVID-19 infection, and it ends up being traced back to an event which attracted thousands of people and had gone ahead in the face of multiple warnings about the public health risk? 

I know what public opinion would say about that, but what would the law add to the conversation?

Essentially the legal issue here is negligence. This has three elements: the existence of a duty of care; a breach of that duty (that’s the negligence); and a loss caused by the breach.  

As a general rule, some categories of people always owe a duty of care to certain other categories. An employer has a duty of care to its employees, and an occupier of land to its invitees. 

The existence and extent of the duty can be altered by contract, as might happen between a venue owner and those who hire the venue.

Legal liability is also heavily affected by what is known, what should be known or what should safely be assumed. If the event had been scheduled a month ago, nobody would have suggested its cancellation. Now, there is a lot of information known to the organisers, including explicit medical advice, that is saying the holding of the event will create a health risk to those who attend.

That knowledge can shift the existence and content of the duty of care that the entities staging the event may owe to their guests. While the law does have a fair bit to say about the obligation that grown up people have to take sensible care of themselves, as well as their ability to consent to well understood risks, it applies a pretty low bar when it comes to apportioning legal blame when injury or illness occurs. 

Basically, it’s not hard to be found liable in negligence when you’re the one with deep pockets.

If the event were to go ahead and people got the virus because it turned out that squashing them together was a really bad idea, then the one thing we can guarantee is that there will be law suits to follow. The organisations and government bodies who are running, promoting or allowing the event to go ahead may find themselves heavily exposed.

It may be likely that no more than a few attendees contract the virus. But keep this in mind: a plaintiff need only prove that their loss flowed from the negligent act and was reasonably foreseeable as a consequence. 

Since we know that each person infected by COVID-19 is likely to pass it on to several others, and they to several more, and so on, the liability risk for a negligent host has almost limitless potential.

Two points: first, the biggest legal story to wash out from COVID-19 is probably going to be cascading class actions that will run for years and cost squillions. 

Second, it’s a brave event organiser who is still contemplating opening the gates.