Interview: ABC’s Laura Tchilinguirian and Legal Practice Director Jeff Garrett discuss the wrongful death lawsuit against Disney

Laura: Now to an interesting case, a legal case coming out of the United States. Disney World is arguing that a man cannot sue the media and entertainment giant over the death of his wife because of terms he signed up to in a free trial of the streaming platform Disney Plus. The man filed a wrongful death lawsuit against Disney after his wife’s death last year when she suffered a severe allergic reaction to something she ate at a restaurant inside the theme park in Florida. He wants Disney to pay him 50, 000 US Dollars plus his legal fees, but Disney is trying to stop the case from entering the courts. To explain how and why, we’re joined by the Legal Practice Director and Head of the Compensation Law Department at Attwood Marshall Lawyers, Jeff Garrett. Jeff, good afternoon.

Jeff: Afternoon, Laura.

Laura: Now, this is a fascinating legal case. What argument is Disney using to stop it from entering the courts? 

Jeff: Yes, well, it can only happen in America, Laura. The terms and conditions of the app that the husband signed up to some years before this, provide that if there’s ever a dispute between him and Disney, that it will be resolved by way of arbitration.

And that’s the dig here. It’s not that the action is barred completely, just that any dispute has to be resolved by going to arbitration.

Laura: And how would that, how would that arbitration work from what you understand?

Jeff: Well, in the, in America, it’s similar to over here, we go before an arbitrator. They, the thing is they miss out on a trial, a common law trial in the US, which over there, if you, you can get, punitive damages and you hear of some of the awards that are made over there by juries. So, it takes that out of it and that’s why they have a gripe in relation to this condition in the app, but it is, quite outrageous, really, that they could rely on online terms and conditions that you would normally sign when you join up to watch Disney programs.

It’s just crazy.

Laura: I want to dig into that a little further, but am I right in thinking that or understanding that the arbitrator would be appointed by Disney? 

Jeff: Well, the parties usually have to agree on the arbitrator, but an arbitration process is just that, you know, it’s taken out of the courts.

There is an usually an independent arbitrator is appointed to determine the case. The problem with it is the arbitrator’s decision is usually binding and that deprives you of your right to take a matter to trial. And as I said before, in the US, that could mean a big difference in relation to any damages that are awarded.

Laura: I’m fascinated because this man had signed up to a trial to Disney Plus in 2019, so wouldn’t his agreement to those terms and conditions have expired when his free trial did? 

Jeff: Probably, and the whole thing is that is a contract law argument, Laura. So you’d have to look at the terms and conditions and, you know, how it was signed.

Indeed, whether he’s even bound by something like that, because over here in Australia, we have the same thing. We have terms and conditions, they won’t let you click on the button to install or to agree to it until you’ve read the terms and conditions. I defy anyone to say that they’ve read those terms and conditions.

I’m a lawyer and I don’t read them.

Laura: Well, I have Disney Plus and I’ve never read the terms and conditions. So, I’ve heard it’s 15 pages long, more than 7, 000 words, and would take the average reader about 59 minutes to read in full. Generally, is that length required to protect a company or are they just getting too long just for the sake of making sure you don’t read them?

Jeff: Yeah, look, I think there’s something in that, Laura. Everything that you deal with these days, whether it’s online paperwork that you’re given, even for an invoice that’s sent to you, it has all of these terms and conditions attached to them. As I said before, I’m a lawyer. And a lot of it, you get lost in that.

So how could a lay person, without any legal training or knowledge, even begin to know what’s in those documents? So, I think that the reality is that if you are injured, even though you signed one of these indemnities or exclusion clauses or whatever in these terms and conditions, my general advice to people is normally, that’s not going to help them if you are injured or they have been grossly negligent, as seems to be the case here.

So, I’m not, I wouldn’t be too concerned about those things depriving people of their rights. In this case, though, it’s a fairly narrow focus because it’s arbitration versus going to court.  That these terms and conditions are alleged to have taken away from them.

Laura: That’s, that’s an issue here. Companies are really asking for your trust, aren’t they when they, ask you to agree to their terms and conditions, can they put whatever they like in it? Do you have any leg to stand on if you choose to argue against them later? 

Jeff: Yeah, I think you do, Laura. It depends on the extent of the exclusion that they’re trying to wrangle into the document, the more outrageous it is, the less likely it is to bind the person who has allegedly agreed to those terms and conditions.

And we have consumer protection here in Australia with our legislation. So, you know, that’s a commonwealth law that applies to all consumers. So, you do have that statutory protection that you can refer to if ever any of these things come up here.

Laura: Even if you’re signed up to an American company like Disney Plus?

Jeff: Well, that’s another, that’s another point. The Australian consumer law does apply to international providers. However, the enforcement of that in Australia could well be a moot point. You could have to go into America or another country to attempt to enforce your rights over there.

Laura: Now, Jeff, if the court agrees that the family can’t take legal action and does need to go through arbitration as Disney wants, do you expect that other companies might look at amending their T&Cs to include this clause as well?

Jeff: Yeah, sure. I think that, particularly when you’ve got the potential liability of the type that we are discussing here, and that’s personal injury, really, then yeah, why, why not? They would certainly do that in America because, arbitration versus court system is a vastly different outcome for them.

Laura: What do you think this looks like in the court of public opinion, Jeff? It’s not, it’s not really a great look for Disney, regardless of the outcome.

Jeff: No, if you think of Disney’s brand and its general positioning in the consumer market, it’s a bad look and you wonder why they would have taken this stance and let it get to this.

You know, if you think of everything that’s good about Disney and, you know, Walt Disney and all of us have got very fond memories of this. This is really inconsistent with their positioning in the marketplace.

Laura: Obviously, you can’t look into a crystal ball, but how do you see this playing out? 

Jeff: I think given the public backlash, they’ll settle it for sure.

Laura: Okay, well I guess we’ll wait and see. Jeff Garrett, thank you. Fascinating conversation. 

Jeff: Yeah, my pleasure, Laura.

Laura: All the best. That is Jeff Garrett there, Legal Practice Director and Head of the Compensation Law Department at Attwood Marshall Lawyers.