Randyll Newsham, an exotic dancer, performed at the Naughty but Nice Sex Show in Vancouver. He claimed to have slipped and fallen on an ‘oily substance’ during his performance, which he alleged was body paint left on the stage after an earlier demonstration. He sued the organiser of the show, alleging that inadequate care had been taken to ensure safe performance conditions and seeking damages for pain and suffering, loss of income and cost of care: Newsham v Canwest Trade Shows Inc, 2012 BCSC 289. Canwest denied liability on the basis of a waiver of liability in the standard-form exhibitor contract which Newsham had signed in order to rent a booth at the show. It was, however, a bit more complicated than that: Newsham argued that in addition to his exhibitor’s contract for two booths (where he displayed unidentified ‘products’), he had a separate contract under which the booth rental fee was waived in exchange for his agreement to perform on stage; this collateral contract, he said, superseded the exhibitor contract and its waiver. He also claimed either not to have read or understood the waiver clauses.
Brown J of the BC Supreme Court found that even if the terms of a collateral contract could be established, there was no reason to conclude that the terms of the exhibitor contract had somehow been excluded. But did the exhibitor contract contain an implied term that Canwest would provide a safe and secure environment at the show? Not really, because Canwest had that obligation in any event, under the Occupiers Liability Act (OLA). The judge found, however, that Canwest had failed to make the waiver clauses sufficiently clear to Newsham, as required under the OLA. While Canwest owed Newsham a duty of care, there was sufficient evidence to suggest that he had not complained of a slip after his performance but not enough to establish that there was, in fact, something slippery underfoot. Even if Newsham’s version of the facts was accepted, it was possible that he had slipped on the baby oil he had applied to his body before his performance or was susceptible to injury because of a fall on stage at a previous gig. Newsham failed to show that Canwest had breached the standard of care, but wouldn’t have been able to establish causation even if he had.
[Link available here].