Clarke v John Kerwin (t/a Dirtbikeaction), Carlisle County Court, (Judge Hughes QC), 26/4/2018
This is an interesting BLM case where the judge was required to consider the nature and extent of the duty of care owed to participants by the organiser of a sporting event, and to what extent participants accept the risk of injury by taking part in such an activity.
The claimant participated in a two day motorcycle rally event through the Kielder forest, organised by the defendant. The claimant registered for the event online and paid a fee for participating. On arrival at the event, the claimant was required to register and was handed a booklet providing details of the event rules, including the speed limit for the course which had been set by the Forestry Commission, together with general warnings and advices and the need to take care and keep a proper lookout for hazards, including other users of the forest.
This was said to be the claimant’s first off-road motorcycle event and he submitted that he was relatively inexperienced.
The claimant’s accident occurred when he attempted to overtake another rider, at speed, on a bend. It was accepted that the claimant’s bike left the surface of the road and went into a ditch, propelling him over the handlebars. As a result, the claimant landed heavily and sustained serious injuries to his spine and left wrist.
The claimant alleged that the defendant was negligent, and in breach of the Management of Health and Safety at Work Regulations 1999 for failing to carry out a proper inspection and risk assessment in relation to the course. It was submitted that if this had been done, the defendant would have noted the potential hazard of the open ditch and would have provided warning notices and/or signage to warn of this hazard or arranged for a different route to be used.
The claimant specifically stated that he had been “blinded” by dust thrown up by the motorbikes ahead of him, and which he was attempting to overtake and the hazard created by the open ditch had been exacerbated by the dusty conditions.
The defendant denied liability for the accident on the basis that the claimant was the author of his own misfortune and had chosen to participate in an activity that involved inherent risks, which he had voluntarily accepted. Also, the defendant argued that the claimant was, on his own account, driving in excess of the speed limit and in any event too fast for the conditions and lost control of his motorbike when recklessly attempting to overtake.
The judge noted that the real issue to be addressed was the balance between the extent of the duty of care owed by the defendant and the degree of risk that the claimant had willingly accepted by taking part in the event.
The judge stated that organised sporting events give rise to a risk of injury which cannot be effectively guarded against and which the “… the participant must be taken to be aware of and to have willingly accepted, from the risk of being hit by the ball in a game of cricket to being involved in a collision with another car motor racing.”
The judge stated that there would be no valid claim if the accident had happened as a result of an inherent and intrinsic risk that the claimant had willingly accepted. However, the position would be different if the accident was caused in whole or in part by the defendant’s breach of duty of care owed to the claimant.
The judge found that the course had several natural hazards that participants needed to be aware of and avoid, which included potholes, uneven surfaces, boulders, drainage channels, gullies and ditches of the type which the claimant rode into.
It was held that “… it would have been wholly unrealistic for the defendant to have erected a warning sign for each and every natural hazard on the course as these types of hazards were an intrinsic part of the character of the terrain and ones which any rider exercising reasonable care should have appreciated without the need for any warning.”
The judge noted that the scene of the accident was far from unusual and concluded that the open ditch was not a hazard for which warning signs were necessary. Also, he was satisfied that the claimant would have been aware of the contents of the leaflet provided by the defendant if he had chosen to read it.
The judge reviewed headcam footage of the course on the day of the event which had been downloaded to social media by another competitor. It showed there were insufficient levels of dust to seriously impede the vision of the claimant unless he had been travelling far too close to other motorbikes.
The judge concluded that the claimant had lost control of his motorbike because he was attempting to overtake his friend at excessive speed around the bend. It was the claimant’s own evidence that he was “blinded” but he still chose to perform the overtaking manoeuvre and did not reduce his speed. It was held that the claimant should have adjusted his speed to meet the conditions he was facing in the same way any motorist would do on an open road.
The judge held that the defendant was under no duty to the claimant to enforce the speed limit that had been set by the Forestry Commission and any failure to enforce the speed limit was not a causative factor for the accident occurring. The sole cause of the accident was determined to be the “dangerously high speed at which the Claimant attempted to overtake … causing him to lose control and veer off the road, and ending up crashing his bike into the ditch.” In short: “It was caused by his own stupidity”.
The claim was dismissed.
What this means for you
In what is a welcome judgment, particularly for those responsible for organising sports and leisure activities, it is a reminder that event organisers do not have an absolute duty to protect participants against every risk of injury. Instead, a reasonable duty of care is owed, based on what steps were reasonable to take in the circumstances, taking into account the specific activities expected to be undertaken.
In this case, the defendant was not responsible for providing warning signs in respect of every hazard that a participant could come across and it was specifically noted that the hazard in question, being an open ditch, was a natural hazard that was common to this type of terrain.
It was the claimant’s recklessness when, despite being “blinded” by dust, he attempted to overtake at excessive speed. Whilst there was no duty to enforce the speed limit set by the Commission, it was not a causative factor; the defendant was under no duty “to protect the claimant from his own foolhardiness” instead, the claimant’s recklessness created an intervening act that broke the chain of causation.
Authored by BLM Professional support solicitor Sophie Houghton and David Spencer, partner.