The Court also provided a useful summary of occupiers' legal duties in this area, stating that an event coordinator does not owe a duty of care to warn a participant of an 'inherent and obvious' risk. Considering the nature of activities which the Claimant had 'freely undertaken', the Court found the Tomlinson principles applied. Such risks did not warrant a risk assessment nor constitute a breach of duty in failing to compete one.
On the day of the incident, the Claimant was following an instructor down a public byway in the concluding stages of a motorcyclist event. When navigating his way down the road, he drove through a puddle and allegedly struck an object hidden in the muddy water causing him to lose control of his motorbike. As a result, he sustained catastrophic injuries.
The experienced motorcyclist brought a claim against the Defendant for failing to organise the day 'with due regard to the safety of the Claimant'.
The Claimant and his expert were unable to provide any substantial evidence as to how the accident occurred, the Claimant's speed or the obstacles (seen and unseen).
Although the Claimant had signed a form of Declaration and Indemnity acknowledging the motorsport's dangerous nature, the itinerary of the day allegedly extended the Defendant's duty of care to keep the Claimant 'always safe'. This duty was compromised, according to the Claimant, by:
the absence of a detailed risk assessment of the byway; and
the lack of warning/guidance about the risks of hidden hazards
Although the Defendant admitted the obligation to organise the day with adequate regard to the Claimant's safety, the Defendant denied:
any breach of contract or duty of care due to the hazardous nature of the event's activities; and
any duty to warn of the risk that muddy water might contain hidden obstacles.
The claim failed. The Judge was not satisfied the Claimant had discharged his burden of proving he lost control upon striking an obstacle in the water. He found it 'more probable' the Claimant struck an obstacle elsewhere as indicated by the Claimant's expert.
Despite this finding, the Judge ultimately found that risk of an object being concealed in a puddle of water was considered 'inherent and obvious'. He considered the simple application of the Tomlinson principles to show the Defendant owed no duty to warn the Claimant of such a risk.
The Judge found the true cause of the accident to be the Claimant's own decision-making.
This, he said, was regardless of whether or not the Defendant had a duty to inform the Claimant of the risk. Had it been a breach of duty to not give any warning of the risk, 'it would have been of no assistance to the Claimant who was already aware of what he would have been warned of, and therefore there could be no breach'.
That the risk was obvious 'to an adult' counted against the Claimant's years of experience, as the Judge found on the basis of fact that the cause was the Claimant's manner of negotiating the puddle.
'It was not necessary for the Defendant to carry out a risk assessment nor to give any warning in relation to the obvious risk . as that risk was both inherent and obvious'.
The balance of obligation between the Claimant and the Defendant over the Claimant's safety was struck between what is and is not obvious. The scope of the Defendant's duty to keep the Claimant reasonably safe did not extend to risks of which the Claimant was 'already aware'.
It was part of the activities of the event for participants to follow their instructor and decide for themselves how to negotiate the terrain. To take detailed risk assessments of all the hazards and guard against all of them was considered as having a negative impact on the experience of the event and its social value.
What can we learn
The application of Tomlinson has been sustained to protect defendants from onerous obligations to warn of obvious and inherent risks (see English Heritage v Taylor (2016) and Edwards v Sutton (2014)).
The judgment will come as significant relief for sporting and recreational event organisers. Had liability been extended to circumstances such as this, many activities would become economically uninsurable and unworkable in practice.
As with previous cases involving injured thrill-seekers, defendants should consider the scope of dangers for which they have assumed responsibility to protect participants. There is a scale of apportionment of liability between active and passive participants: the more active the participant in decision-making involving obvious risks, the more responsibility they assume.
The case reiterates the importance of the 'social value' of an activity, apply the Tomlinson principles. It's clear the umbrella of social value can shelter relevant 'reasonable sporting or recreational activity' but it remains untested how strong the element of social value must be to qualify. Further cases testing the boundaries are likely.
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