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Weightmans’ sports team High Court success – the known unknowns

Weightmans' success in High Court judgment of Christopher Wells v (1) Full Moon Events Ltd and (2) Dave Thorpe Honda Off-Road Centre Ltd.

Saul Burton reports on the recent High Court judgment of Christopher Wells v (1) Full Moon Events Ltd and (2) Dave Thorpe Honda Off-Road Centre Ltd [2020] EWHC 1265 (QB).

On 26 September 2015, Chris Wells and his brother attended the Dave Thorpe Off-Road Centre in South Wales for an organised and expert led Enduro Day. For the uninitiated, these are challenging off-road motorbike rides over varying terrain including narrow tracks, open grassland, rocky trails, and muddy paths through forests and byways open to the public. The itinerary for the event stated:

“…EXPERT riders are in for a treat. Using the wealth of skill and experience of our team, we will put the most experienced riders to the test. Options are virtually unlimited and while always safe, we will provide you with a tough but memorable and challenging adventure…”

As is now so often the case, when signing up for the event, participants are asked to complete a registration form which states:

“Motorsports are hazardous and participation may result in injuries and/or fatalities.

  1. I acknowledge that I shall be attending a physically demanding hazardous and dangerous event and that I am aware of the associated medical and physical risks involved as a result of my attendance at the event
  2. I voluntarily assume the risks resulting from my attendance at the event”.

On his attendance at the centre on the morning of the event the claimant further signed a Declaration of Indemnity which stated:

“I am aware that motorsport is dangerous and may involve serious injury or death.”

The day was effectively split into 3 parts: an initial assessment of the rider’s skill, followed by a long morning ride and then a shorter afternoon ride. The claimant was an experienced rider, and so following the assessment he and his brother were placed into the experienced, more challenging group.

The route was challenging, not least of all because of the wet conditions. There were steep inclines with Welsh slate and slag heaps; muddy ruts and deep puddles.  

Towards the very end of the day, the claimant was led along a byway open to all traffic (“BOAT”). He had lost sight of the group leader and as such was riding alone. He approached and then rode through a puddle within the middle of the BOAT which, on the claimant’s case, concealed a submerged rock which he struck, lost control and fell. Tragically he then collided with a nearby tree and sustained a catastrophic and life changing spinal injury.

Proceedings were brought and ultimately heard before Deputy High Court Judge Michael Bowes QC at Winchester District Registry. In summary, it was the claimant’s case that the defendant was negligent because:-

  • the track had not been adequately risk assessed, and had it have been, the presence of submerged rocks would have been identified;
  • the claimant was led down the track despite the concealed danger;
  • failed to warn the claimant of the concealed danger; and
  • failed to instruct the claimant to avoid riding through the puddles.

Put simply, the claimant alleged that he had not been warned about the possibility of submerged and concealed hazards in deep puddles.

The defendant relied upon the well-established and now long standing authorities which confirm that (1) there is no duty to warn against risks that are inherent in the nature of the activity and (2) there is no duty to warn against risks that are obvious.

In the matter of Tomlinson v Congleton Borough Council [2004] 1 AC 46, the defendant local authority was not liable to the claimant who dived into disused quarry, despite warning signs that it was dangerous.  Lord Hoffman stated:

"[45] I think 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."

The claimant sought to distinguish Tomlinson, on the basis that the defendant was not the occupier of the land, but the organiser of the event. By reference to the itinerary which stated “…Options are virtually unlimited and while always safe…”  the claimant argued that following the judgment of Poppleton v Trustees of Portsmouth Youth Activities Committee [2009] PIQR P1 the defendant “…has in some relevant way assumed responsibility for the claimant’s safety…”.   

Poppleton involved a claimant who was an inexperienced climber, and who on an indoor climbing wall attempted to jump from one wall to another. He lost his grip and landed on his head, rendering him tetraplegic. He alleged that the thick safety matting was a hidden danger or trap since it might induce people to act in a careless way, and he had not been warned that that the thick safety matting did not wholly remove the danger. On appeal, the claim was dismissed.

HHJ Bowes QC rightly highlighted that it is important to read the judgment in  as a whole, and quoted the relevant paragraph in full:

“ I add that a duty may also exist where the defendant has in some relevant way assumed responsibility for the claimant's safety,  as  in  Fowles  v  Bedfordshire  ‘CC  —  see  especially Millett L.J. at [20]–[24]. The same may be said of Perrett v Collins and Watson v British Board of Control [2001] P.I.Q.R. P16, in each of which the relevant defendant was exercising a degree of regulatory control. By contrast, in Evans v Kosmar Village Holidays [2007] EWCA Civ 1003, it was held, following the approach in Tomlinson, that the defendants' duty of care did not extend to a duty to guard the claimant against the risk of diving into the pool and injuring himself. That was an obvious risk of which he was well aware.”

The claimant further sought to distinguish these judgments on the basis that the hazard was hidden, by virtue of the fact that the alleged rock was submerged in water, and he did not know it was there.  Under cross examination, the claimant accepted that with all of his experience, he knew that there might be something concealed within a muddy puddle.

On the basis of the evidence, HHJ Bowes dismissed the claim, finding, inter alia:

“I am satisfied on the basis of claimant’s own evidence, the signing on form and the Indemnity signed by the claimant that he fully accepted there was an inherent risk in motorcycling off-road and that he was aware of those risks.

In my judgment it was an obvious risk to an adult (as accepted by the claimant) that muddy water may conceal objects.”

HHJ Bowes went on to find:

“I accept the defendant’s submission that undertaking detailed risk assessments, identifying all hazards, guarding against all hazards, instructing experienced riders on how to negotiate all sections of the course or expressly to avoid parts of the course 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, I have taken into account the social value of an Enduro Day as a reasonable sporting or recreational activity.”

For completeness sake we would also point out the judge did not accept the claimant had proved that he had hit the concealed rock in the puddle and, furthermore, had there been a breach of duty that it was causative of the accident.

Conclusion

This judgment once again reinforces the principle established in Tomlinson and reinforced by Poppleton that there is no duty to warn adults against risks that are obvious, or ordinarily inherent in the activity being undertaken. Adults undertake hazardous recreational activities at their own risk, and in these circumstances there is no duty upon the organiser to risk assess and warn against every feasible danger as, to do so, would negate the recreational benefit of the event.

This judgment reminds organisers of sporting and adventurous activities, and participants alike, of the importance of clearly worded declarations accepting those risks and understanding risks are being accepted. It is not sufficient for a claimant to say that he had not been warned against a risk that could reasonably be expected in the activity or event being undertaken.

Bruce Ralston, Partner and Saul Burton, Associate, acted for the Defendant. Roddy Macleod Partner acted for the Defendants in Tomlinson and Poppleton.

If you would like to discuss further please contact Saul Burton, Associate on saul.burton@weightmans.com or Bruce Ralston, Partner on bruce.ralston@weightmans.com.

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