Legal Analysis of the Article, Tourist Breaks Back on Sentosa Ride

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  • Topic: Contract, Contractual term, Tort
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  • Published : October 4, 2012
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Legal Analysis on “Tourist Breaks Back on Sentosa Ride” Article Sherlyn Goh, Nathanael Sim, Tay Wenyao, Shi Jinhua, Tong Mingshuo

Factual Summary of Case Australian tourist, Michael McCarthy, suffered a fall and broke his back while riding Sentosa’s MegaZip, which is a flying fox adventure ride run by Flying Dragon Adventures (FDA). The riders would initially slide down the zipline fast and would be slowed down by a braking mechanism as they approach the landing platform. However, in this case, McCarthy was travelling towards the landing platform at a faster speed than usual. As a result, he crashed onto the platform and broke several vertebrae in his back. He felt incredible pain and could not breathe for a minute and a half. McCarthy had no immediate medical help as there was no medical staff on-site. He only received assistance half an hour later and was taken to Singapore General Hospital 1 hour 15 minutes later. He received 35 stitches to his back and spent 5 days in and out of the intensive care unit. As for the ride, McCarthy satisfied safety requirements of being at least 0.7m tall and less than 140kg in weight. This was the first accident in its two-year history of operation. Before the accident, the ride had been taken by at least 200,000 visitors in total and was already taken by 140 people on that day. Alexander Blyth, managing director of the ride, believed that all safety procedures were followed, that nothing failed and nothing snapped. The ride also requires customers to sign indemnity forms, in which contains an exemption clause that states that they are not responsible for any deaths or personal injuries unless through gross negligence. Blyth reported the case to the Building and Construction Authority (BCA), the regulatory body for amusement rides. Lawyers are attempting to seek compensation for McCarthy’s injuries, as they question the validity of the exclusion clause in the indemnity form by bringing up the Unfair Contract Terms Act (UCTA). Following McCarthy’s injuries, McCarthy wants to claim his recoverable losses. It can be assumed that FDA is using its exemption of liability clause as a defence. McCarthy’s lawyers are stating that the exemption clause is invalid under section 2(1) of the UCTA, which states that “a person cannot exclude or restrict liability for negligence in relation to personal injury or death”. The Contract Before riding, McCarthy was made to sign an indemnity form. The terms of the indemnity form could be regarded as the express terms of the contract between McCarthy and FDA. A contract was formed between both parties when McCarthy signed the indemnity form. Since, the express terms to the contract were introduced before the contract was formed, they are, prima facie, binding to both parties. There was an exemption clause in the contract stating that FDA is not responsible for any deaths or personal injuries unless through gross negligence. Crucial Questions Before we speculate on the legal outcome of the case, a few crucial questions have to be asked.

1. Was FDA negligent? If so, this would render their exemption clause invalid, and they will be made liable for McCarthy’s losses. 2. Did FDA breach any implied terms in the contract? 3. Is BCA liable to any extent? If so, to what extent? Before the crucial questions are asked, it is important to consider the section of The Amusement Ride Safety Act (2011) which states the scope of responsibilities of parties with statutory responsibilities. They are as follows. Parties with statutory responsibilities The Amusement Rides Safety Act (ARSA) defines statutory duties and liabilities for the following stakeholders to ensure proper accountability for the safety of rides: a. Person responsible (i.e. FDA): The person responsible, who is primarily the holder of an operating permit, will be the person who has the charge, management or control of the ride. He will have overall responsibilities for all matters concerning ride safety....
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