Litigation and Protests

By now an ocean of ink has been spilt in the wake of the killing* of George Floyd. I haven’t added to it. If anything can be learned from the matters of <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1041,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf">pell-v-r-2020-94-aljr-394</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/pell-v-r-2020-94-aljr-394.pdf&quot; class="wp-block-file__button" download>Download</a></div> Pell v R and <a rel="noreferrer noopener" href="http://&lt;!– wp:file {"id":1042,"href":"https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot;} –> <div class="wp-block-file"><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf">maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported</a><a href="https://stephenthelawyer.files.wordpress.com/2020/06/maryland-v-goodson-baltimore-city-circuit-court-williams-j-23-june-2016-unreported.pdf&quot; class="wp-block-file__button" download>Download</a></div> Maryland v Goodson it’s that public passion does not necessarily translate into legal outcomes.

Be that as it may. There is one side of matters that has had me thinking, which is the potential litigation fallout. In particular, cases where participants in the protests find themselves suffering loss or damage

It seems to me someone like the poster above would be in a challenging legal position in seeking compensation from the organisers of a protest, and in particular one where the protest morphed into a riot. The most obvious analogy I can think of is that of sporting injuries, where players are generally taken to consent to the sort of harms (for want of a better word) which are an inherent part of the game (Smith v Emerson). On one view of the matter, the risk of a protest – especially one with angry and upset people – becoming violent may be an inherent danger of demonstrations. On the other hand, the consent posited does not extend to acts done solely with the intention of causing harm (McNamara v Duncan).

Further, deliberate harm is not considered to be susceptible to a defence of voluntary assumption of risk (Sibley v Milutinovic). What might be a more interesting question is whether a person can be taken to have engaged in contributory negligence by remaining after a demonstration has already deteriorated into indiscriminate actions as in the case of Ms Tauss mentioned above.

* I say killing rather than murder quite consciously and deliberately. Not knowing what the elements of murder are in Minnesota law it seems unwarranted for me to pre-judge the matter.