The low road, the high road or the highway to hell?

The inherent risks of a sporting event and competitor conduct remain crucial when establishing liability.

Clarke v John Kerwin t/a DirtBikeAction [2018] WL 02022880

Executive summary

Although an organiser of a sports event had clear duties to the participants, they had accepted the inherent risks of the sport by taking part and their own conduct was a fact that had to be considered.

The facts

The court was concerned with an incident that occurred during the “K2 Rally”, an all-terrain motorcycle event in Northumbria organised by the defendant. The claimant came off his motorbike early in the event on a left hand bend and was left with serious injuries to his spine. The rally was over a 65 mile course through Forestry Commission land and partly on public roads. This was the claimant’s first event whereas his friend possessed experience of such rallies. It was not a race as such but an opportunity for the riders to test their skill and endurance as well as the reliability of their bikes as they took on an off-road course that presented many natural hazards. There was a purported speed limit of 25mph.

The claimant alleged that the defendant had failed to carry out a proper inspection and risk assessment of the course which meant that the purported hazard that caused the accident, an open ditch on the outside of the bend, would have been marked. Other criticisms encompassed the inadequacy of the rider briefing and a failure to enforce the speed limit.

The defendant argued that the claimant was the author of his misfortune and had voluntarily participated in an activity which carried an inherent risk and risk of injury. Further, the defendant alleged that the claimant was riding too quickly for the conditions and lost control during an overtaking manoeuvre. At trial the defendant abandoned a pleaded reliance on terms and conditions seeking to exclude liability and the maxim of volenti, a decision clearly deemed sensible by the court.

The defence was not assisted by the defendant’s decision to destroy whatever records he had relating to the event by the time the claim was received although he had given impressive evidence on the organisation of the event and it the course being inspected and tested. Further the marshal, a motor cycle police officer, called to give evidence was referred to by the court as being honest and impartial.

This was contrasted with the claimant’s key witness, his friend who joined him at the event, who was described by the judge as “self-opinionated and arrogant “. He had not attended the driver’s briefing and professed to be unaware of the contended speed limit, advising that he would not have seen the point of taking part if that was the case. He placed his own speed between 30 and 50 mph. The claimant also conceded in cross-examination that he was going too fast for the conditions. The hospital records noted him as having crashed at 50mph. Head-cam footage of the event from another competitor showed the course and the natural hazards faced was also produced, and demonstrated the locus was nothing out of the ordinary for such an event.

Judgment

The judge, cited the landmark decision of the Court of Appeal in Tomlinson v Congleton BC [2004] and the observation of Lord Hobhouse “…it is not, and should never be, the policy of the law to require the protection of the foolhardy or reckless few to deprive, or interfere with, the enjoyment of the remainder of society …”.

Those who entered this event knew what it entailed, the judge noting the event’s promotional film which had as a soundtrack AC/DC’s epic anthem “Highway to Hell”. This was dirt bike riding where riders expected and wanted challenges and to take them on at speed. The open culvert or ditch was not such a hazard to warrant a specific warning. The judge concluded that the sole cause of this unfortunate accident was the claimant’s own stupidity and his decision to overtake on a bend at a “dangerously high speed”.

Comment

The judge stated that the case turned on the evidence. The defendant was able, with strong lay evidence on the organisation and running of the event, to overcome the seeming lack of documents and a formal risk assessment. The judge clearly found contemporary footage of the event from the “head-cam” of great assistance in understanding the nature of the event. Thus it may be those who are advising or insuring those who organise such events could incorporate the recommendation to have someone ride the course and film it.

It would also be prudent to retain all records if there has been an incident notwithstanding the defendant was here able to circumvent that issue. Furthermore, and although not pivotal to the judge’s thinking, it would also be wise to make driver’s briefings compulsory.

Although a first instance decision it is a worthy addition to the line of authorities in the sport and leisure arena. From Tomlinson through to Poppleton to Caldwell, these decisions should hopefully stiffen the resolve of insurers in this arena when confronted with such claims. They merit careful investigation but the courts have shown that in this area they are prepared to find that an individual willingly taking part in an event should also accept the inherent risks in that event.

If you have any questions or would like to know more about this update or any other issues, please contact Partner Bruce Ralston. 

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