In the recent decisions of Brand v No Limits Track Days [2020] and Wells v Full Moon Events and Dave Thorpe Honda Off-Road Centre Ltd [2020] the Courts have provided re-assurance to motorsport activity operators on the extent of the duty owed to participants who freely engage in activities that involve inherent risks.

In Brand the Claimant, who was participating in an open session of a motorcycle track day, suffered life-changing injuries when he collided with a participant that was completing sighting laps on circuit. He alleged that it was inherently dangerous for the Defendant track day operator to allow sighting laps to take place during an open track day session. The Defendant argued that this was acceptable and relied on the absence of any expert evidence to support the Claimant’s case. Further, it argued that causation had not been proven as the Claimant could not show that the act of holding a sighting lap concurrently with a group session had any causative effect - the mechanical failure of the motorcycle struck by the Claimant was an intervening act.

The parties agreed:

• The Defendant owed a duty to take such care as was reasonable in the circumstances to see that the Claimant was not exposed to a foreseeable risk of injury in track day motorcycling.
• The Claimant consented to risks inherently involved in track days (Wattleworth v Goodwood Racing Co Ltd [2004]).
• The Claimant did not have to prove that the Defendant ought to have foreseen the precise manner in which the additional risk of injury arose but the Claimant had to establish the Defendant ought to have foreseen that its acts or omissions may have exposed the Claimant to an additional risk of serious injury over and above those inherent in track day motorcycling.

Based on the evidence, the Claimant failed to prove the accident was caused by anything other than an unforeseeable mechanical failure of the motorcycle he struck. Further, it was held the risks associated with sighting laps involving riders from the same experience level taking place at the same time as an open group session were not as great as might first appear on the basis participants in a track day session should expect riders to be riding at a range of speeds and, in the instant case, the difference in speed between the session and sighting laps was not as great as that claimed by the Claimant’s witnesses.

The Judge took into account the dicta of Sedley LJ in Craven v Riches [2001] who stated:

“ . . . the defendants' undoubted duty of care extended to preventing the avoidable obstruction of faster riders by slower ones not of course by making everyone go at the same speed, but by ensuring, if they could, that a fast rider did not come upon a slow one in circumstances in which he might not have time to take avoiding action.”

Once accepted that sighting laps could take place at the same time as an open group session, the Judge confirmed it inevitable that a decision as to whether it was appropriate in an individual case must be left to the instructor taking the particular group or rider on to the track for the sighting laps. In the instant case the instructor’s evidence was that he properly assessed the rider that was struck and therefore the claim failed.

In Wells, whilst participating in an Enduro day (a non-competitive off-road motorcycle ride across approximately 20 miles of varying terrain) organised and led by the Defendant, the Claimant suffered catastrophic injuries when he fell from his motocross bike after, he alleged, he struck an object concealed within a muddy puddle. The Defendant did not admit the circumstances alleged, its case being that, even if the Claimant was able to prove he struck a concealed object in the water, there was no duty owed given it was an obvious risk to an adult that muddy water on the tracks used may conceal objects.

The Claimant alleged that the Defendant had breached an implied term of its agreement with him to organise the Enduro day with due regard to his safety. Amongst other things, the Claimant argued the Defendant should have undertaken a Risk Assessment of the tracks being used, which would have led to it identifying the concealed object that caused the incident.

The Defendant admitted a duty to organise the event with due regard to participants’ safety but denied that the accident was due to any negligence or breach. It relied on the signing-on form completed by the Claimant in which he accepted that the activity was hazardous.

Based on the evidence the Claimant failed to prove that he had struck an object concealed in the water which was large enough to cause his fall, it being more probable the fall was caused by the way he negotiated the puddle. On this basis the claim failed.

Helpfully, the Judge went on to consider liability had the case been proven. He noted Lord Hoffman’s often quoted observations in the case of Tomlinson v Congleton BC [2004] that, “ . . . it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely chose to undertake upon the land. If people want to climb mountains, go hang-gliding or swim or dive in ponds or lakes, that is their affair . . . " and, “ . . . the question of what amounts to “such care as in all the circumstances of the case is reasonable" depends upon assessing, as in the case of common law negligence, not only the likelihood that someone may be injured and the seriousness of the injury which may occur, but also the social value of the activity which gives rise to the risk and the cost of preventative measures. These factors have to be balanced against each other.”

In Tomlinson the Claimant broke his neck swimming in a disused quarry, disregarding notices warning that the water was dangerous, and that swimming was not permitted. In Wells the Claimant sought to distinguish Tomlinson on the basis the Defendant council had not participated in the activity being undertaken. Having considered the relevant case law the Judge in Wells adopted the reasoning in the case of Clarke v Kerwin t/a Dirtbikeaction [2018] where the Judge confirmed:

“In my view, this case turns, at the end of the day, on the evidence and on my findings as to how the accident happened and what caused it. If the cause was inherent in the intrinsic risks that the Claimant willingly accepted in taking part in the event then he can have no valid claim. If, though, it was caused in whole or part by some breach of the duty of care owed by the Defendant he is entitled to succeed subject to any finding of contributory negligence.”

Taking into account the Claimant’s experience and the signing on form he completed prior to the activity the Judge was satisfied that the Claimant had accepted that there was an inherent risk in motorcycling off-road sport and that he was aware of those risks, including the risk that there may be objects concealed in puddles. He accepted that undertaking detailed risk assessments, which ordinarily would be regarded as part of the off-road experience, would negate the experience of an Enduro Day and would not be a reasonable requirement to impose on the Defendant. In this regard he took into account the social value of an Enduro Day as a reasonable sporting or recreational activity. The principles set out by Lord Hoffman in the case of Tomlinson applied. There was no duty on the Defendant to protect against the risk that the muddy water on the track may contain a concealed object as that risk was inherent and obvious to the Claimant in the Enduro Day activity which he had freely undertaken.

Conclusion

The decisions provide good ongoing examples of the Courts taking fully into account the principle that those participants that engage in activities that involve an inherent risk of injury freely accept the risks arising from those activities, as long as those risks are brought to their attention. They do not negate the duty of care on Defendant operators or organising bodies nor the requirements to undertake a reasonable risk assessment associated with the sport and highlights the importance and benefits of operating within a best practice system.

The decisions provide useful guidance to those that organise, operate and engage in such activities and give some comfort on the principles the Courts will apply when dealing with such cases.

Should you require any further advice in relation to cases that arise from within the sporting arena please do not hesitate to contact either Bilal Mirza or Richard Rowe whose contact details are below.