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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Wells v Full Moon Events Ltd (t/a Dave Thorpe Honda Off-Road Centre) & Anor [2020] EWHC 1265 (QB) (19 May 2020) URL: https://www.bailii.org/ew/cases/EWHC/QB/2020/1265.html Cite as: [2020] EWHC 1265 (QB) |
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QUEEN'S BENCH DIVISION
WINCHESTER DISTRICT REGISTRY
Strand, London, WC2A 2LL |
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B e f o r e :
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CHRISTOPHER ANDREW ![]() | Claimant |
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- and – |
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(1) FULL MOON EVENTS LTD t/a DAVE THORPE HONDA OFF-ROAD CENTRE (2) DAVE THORPE HONDA OFF-ROAD CENTRE LIMITED |
Defendants |
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Graham Eklund QC and Stephen Innes (instructed by Weightmans LPP) for the Defendants
Hearing dates: 25th – 28th February 2020
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Crown Copyright ©
Covid-19 Protocol: This judgment will be handed down by the judge remotely by circulation to the parties' representatives by email and release to Bailii. The date and time for hand-down will be deemed to be Tuesday 19th May 2020 on 10am
Michael Bowes QC:
Introduction
The Pleadings
"(1) It and/or they failed, by its employees, servants or other agents, including Mr Owen, to carry out a detailed examination and risk assessment of the track before using the same.
The nature of the case hereunder is that upon such an examination and risk assessment the First and/or Second Defendant would have ascertained that there were rocks concealed under the surface of the muddy water standing in the ruts. Riders would be unaware of the rocks which would be liable to cause substantial difficulties to riders such as the Claimant.
Consequently, the First and/or Second Defendant should either have rejected the track as a route back to its premises or at the very least have warned riders to avoid the water-filled sections of the ruts since they were likely to contain concealed obstacles.
(2) By its and/or their employee, servant, or agent, Mr Owen, led the Claimant's group down the track despite the dangers concealed below the muddy water in the ruts and across large areas of the track.
(3) It and/or they failed to warn the Claimant and the rest of his group of such dangers.
(4) It and/or they failed to instruct the Claimant and the rest of his group to avoid the water filled sections of the ruts.
(5) It and/or they failed to provide an experienced instructor such as Stephen Sword.
The nature of the case hereunder is that the use of this track without any warnings and instructions as to the dangers indicates that Mr Owen was not an experienced instructor.
(6) It and /or they failed in the premises to arrange the Enduro Day with adequate regard to the safety of the Claimant."
" By reason of the Signing on Form and the Declaration and Indemnity signed by the Claimant, the Claimant confirmed that he was aware:
(1) Motorsport, including Motocross/Enduro/Trials was and is dangerous and hazardous and participation might result in injuries and/or fatalities.
(2) That he was attending a physically demanding hazardous and dangerous Event."
The evidence: general
The operation of the Bull MX Centre
The Enduro Day
The Claimant's experience as a motorcyclist
"As I had many years' experience of riding sports bike, trials bikes and motocross bikes, I considered myself to possess the skills to describe myself as experienced and competent – a good all-rounder."
The Enduro Day: declaration and assessment
The Defendant's signing on form & declaration
"MOTORSPORTS ARE HAZARDOUS AND PARTICIPATION MAY RESULT IN INJURIES AND/OR FATALITIES.
'By signing the declaration below you are providing full, factual and honest information. You have understood and accept the terms and conditions below. Please note that this document creates a legally binding agreement between you and THE DAVE THORPE HONDA OFF-ROAD CENTRE (the 'Organiser') in relation to your participation…
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 in as a result of my attendance at the Event.
2. I voluntarily assume the risks resulting from my attendance at the Event…".
On 26th September 2015, the Claimant signed the Defendant's Declaration and Indemnity. The Declaration and Indemnity stated (in part):
"I am aware that motorsport is dangerous and may involve serious injury or death."
The Itinerary
"…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"
Q: You accepted that risk off-road?
A: I accept there are risks that may cause you to fall.
The Enduro Day before the Claimant's accident
The Enduro Day: the accident
The Claimant's account of the accident
"Q And I think you would accept if there are rocks which extend to the right under the water that would be a hazard?"
A Potentially rocks that I can't see and would take into account whether that might become a hazard."
"Q With all your experience and puddle after puddle would know might be something concealed?
A There may be something concealed.
Q Don't need warning?
A I don't need a warning about that."
"Q And Mr Anderson suggests what might have happened is - para 4.19 at [D18] [read out] "The rocks which projected…"
A Could have projected into the water
Q "…could front wheel…" - agree?
A Could cause wheel to be turned right or left
Q "…precipitating a fall" - agree?
A I agree with that
Q Agree with Anderson that may have happened because riding and came into contact with [rocks] extending in under the water from the right-hand side and struck one of those rocks?
A That's correct
Q I think you agree the possibility of those rocks was obvious because abutted each other?
A Possibility that rocks may extend into water
Q And have to take account of?
A I'd try to take account of."
"I don't think I made a mistake. Likelihood is that there was something more significant that I didn't anticipate that caused me to strike [it] and knock the handlebars out of my hands."
Expert evidence on behalf of the Claimant: Mr Christopher Anderson
"The question whether Christopher collided with tree 'A' or tree 'B' cannot be determined. The speed at which he collided with the tree is not known and the extent of any interaction with the ground and the motorcycle during his movement from the incipient stages of the fall to his rest position, cannot be determined. This makes it impossible to perform a calculation to determine exactly where the fall process began.
However, if he had been standing on the pegs of the motorcycle, as he says, such that his fall height had been around 1½ metres, he would likely have taken at least ½ second to fall to the ground. Thus, supposing that he had not fallen to the ground much before striking the tree, he likely would have begun to fall at least 2½ - 4½ metres from the tree. That would be more consistent with a fall beginning close to the rocks at 'Y'. It would be less consistent with a fall beginning near the rock at 'X'."
"4.19 The rocks which projected into the rut, hidden by the muddy water, could turn the front wheel to one side (to the left), precipitating a fall of the motorcycle and rider towards the right.
4.21 Untoward engagement with the rocks on the eastern shore might have unbalanced the machine and rider, leading to fall."
"Q And it would have been possible for him if he had done that and then struck the rocks in that curve rock face that would give rise to the mechanism at 4.19?
A That's a possibility yes"
The conduct of the Enduro Day and Mark Owen's competence as an instructor
David Thorpe
1. Carrying out a detailed examination and risk assessment would be impracticable and unnecessary.
2. The track where the accident occurred was a public byway in its natural condition which had been ridden down countless times by other groups in all sorts of conditions without problems. He had ridden down that track himself on many occasions in all sorts of conditions without ever thinking there was danger. He would have been very content to lead the riders down the track.
3. There was no need to instruct or warn the Claimant (or the riders generally) to avoid the water filled sections of the ruts. It was up to the riders as to whether they rode in the ruts and as to the route they took through the water or around it. The ruts were frequently ridden through; it was safe to ride through them while retaining control, as had been done on countless occasions in their experience. If a rider was not comfortable about riding through muddy water which might conceal objects beneath the surface, an alternative route could just as easily be ridden. Part of the Enduro experience was that the riders would have to make judgements for themselves as to the particular route which he or she would take at any particular location of the trail or track.
Kevin Wolstenholme
Julian Boland
Mark Owen
Expert evidence on behalf of the Defendant: Mr Brian Higgins
1. The whole off-road day was organised to a high standard.
2. The accident location was not unusual as a typical part of an Enduro or Trail course. Mr Owen had sufficient experience of riding this course to lead the Claimant and others in the group of reasonably experienced riders on 26th September 2015.
3. The Claimant's accident was caused purely by rider error.
Has the Claimant proved that he struck a concealed object in the water?
i) Mr Owen rode safely through the same rut just seconds before the Claimant attempted to go through.
ii) Mr Owen had ridden safely through the puddle on many occasions as had probably hundreds of other riders.
iii) Mr Owen had never seen any rocks other than those which were embedded and with which the motorcycle's suspension could easily cope.
iv) The best evidence (which came largely from Mr Anderson, the expert instructed by the Claimant) is that the water level at the location where the accident was probably precipitated was in the order of 8cm, possibly extending to 12cm. A motorcycle with suspension of around 30cm on its front forks would easily have coped with that size of obstruction.
v) If any rock was in the rut in the relevant position, either it would have been around that size or less than the depth of the water (in order to be concealed), in which case the bike would have easily coped with it, or if it was larger such that it would cause a problem to the motorcycle, it would have been visible above the surface and could have been noticed and avoided.
vi) Mr Anderson's evidence was that the rocks which projected into the rut, hidden by the muddy water, could turn the front wheel to one side (to the left), precipitating a fall of the motorcycle and rider towards the right (report, 4.19) or untoward engagement with the rocks on the eastern shore might have unbalanced the machine and rider, leading to fall. He agreed this could happen if there were no rocks present in the water at the time of the accident, but the Claimant took a line which resulted in him striking the rocks in the curve shown between positions X and Y on his plan.
vii) In cross-examination the Claimant agreed with Mr Anderson's report (4.19) that the accident may have happened because he had come into contact with rocks extending in under the water from the right-hand side.
viii) The probability is that the Claimant did not strike a large concealed object with which the motorcycle's suspension was unable to cope, but struck the rocks on the eastern side of the puddle, due to his own error.
Discussion on the legal principles
1. There is no duty to warn of or protect against risks that are inherent in the nature of the activity, to which the participant may be considered to have consented.
2. There is no duty to warn of or protect against risks that are obvious.
3. In determining whether there was a breach of duty, the court has to weigh the risk of injury against the social benefit of the activity.
"[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."
" [46] I find it difficult to express with appropriate moderation my disagreement with the proposition of Sedley LJ, ante, p 62 para 45, that it is "only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability". A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877 ) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Comr of Police of the Metropolis [2000] 1 AC 360 "
"[34] …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."
"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] PIQR 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 waswell
aware."
"But the core of the reasoning in Tomlinson's case [2004] 1 AC 46, as in earlier cases such as Ratcliff v McConnell [1999] 1 WLR 670 , was that people should accept responsibility for the risks they choose to run and that there should be no duty to protect them against obvious risks, subject to Lord Hoffmann's qualification as to cases where there is no genuine and informed choice or there is some lack of capacity. That reasoning was held to apply in relation not only to trespassers but also to lawful visitors to whom there is owed the common duty of care under section 2(2) of the Occupiers' Liability Act 1957 —a duty which, by section 5 of the 1957 Act, can be owed to contractual aswell
as to noncontractual visitors. I do not see why the reasoning should not also apply to persons to whom there is owed a duty of care in similar terms under a contract of the kind that existed in this case."
"The claimant was an adult. She did something which carried an obvious risk. She chose, voluntarily, to dive when, how and where she did, knowing the risks involved, as she acknowledged on the first day of the trial."
Application of the legal principles to the facts
"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."
The Claimant's acceptance of risk
The obvious nature of a concealed hazard in the water
The Claimant's skill and experience
The Defendant's conduct of the Enduro Day
Breach of duty
Causation
Conclusion