A reminder that participants are held to accept the risks that are inherent within the activities in which they freely choose to participate.
Experience days and events are big business, whether given as a gift or a self-indulgence to tick off the bucket-list. They come in many shapes and sizes, from vineyard tours, dinner cruises and opera, to hair raising power boating, skydives and track days.
For the latter class of thrill seekers bigger is always better, but this can be a challenge for organisers who want to make their experiences accessible yet exciting to as wide a range of customers as possible, from novices to hardened adrenaline junkies.
This issue arose in the unreported case of Richard Walsh v M A Extance Ltd (2023), a two-day liability only trial before HHJ Carter at Burnley County Court.
Courtesy of his friend, the claimant won a trip to Spain for an experience event described as "... 3 days of dirt bike heaven on some of the most amazing trails Spain has to offer. From dried-up river beds and forest tracks to the top of the Sierra Cabrera mountains...". Requirements to attend the Spain trip were relatively simple: participants needed a valid motorbike licence as many of the tracks were public highways.
After around 2½ hours riding, the claimant fell when he encountered undulating mounds, said to be in the region of 3 feet high. He lost control and collided with a small embankment at the side of the track. The claimant stated that the reasons for his fall were:
- The induction had not included any advice on how to ride over such mounds
- He had not been made aware that the mounds were there
- He had not been warned of the danger presented by such mounds
- He advocated that the lead riders should have stopped and guided him over the mounds.
Expert liability evidence on behalf of both parties agreed that the route was suitable for the claimant. The defendant's expert opined that the accident was simply due to rider error.
Experience and induction
The claimant was an experienced road rider but had little off-road experience. Before setting off to the Spanish sunshine, participants were invited to attend the defendant's centre in Wales for an introduction to off-roading and to familiarise themselves with the equipment, which the claimant did as part of a 'stag-do'. By his own evidence he was provided with a detailed induction, hints and tips along the way on how to deal with tricky sections of the course, and assistance was provided when needed. It was estimated that the day in Wales involved about 4 hours of riding.
However, the claimant pleaded that the induction in Spain was far less detailed than it had been in Wales and limited to a very brief reminder of the bike's controls and riding etiquette. He argued at court that he expected a thorough and detailed induction and that he was not sufficiently advised of the nature of the terrain that they would encounter; he was not told of the likelihood of dusty conditions; the route was not martialled; nobody advised him how to tackle specific obstacles and the route was too difficult for a person with his limited experience. His case was that that as an inexperienced rider he should have been assisted around the route, with a lead rider stopping to help at every potential obstacle.
The defendant's evidence was that this was a simple route selected and suitable for novices, and given their prior experience in Wales a detailed assessment of each riders' abilities was not necessary. There were 3 instructors for 6 riders and so help was always on hand if or when needed. Although the route was not subject to a written risk assessment it was ridden regularly and well known to the lead riders, and despite being well used for several years there had been no other accidents.
What did the judge say?
The judge accepted the evidence that the induction in Spain was limited, but that must be looked at again the background that the claimant was an experience road rider who had attended a previous off-road day in Wales and was aware of the inherent risks associated with off-road riding. The claimant was aware that he was able to stop and ask for help along the route if needed. In these circumstances, the judge rejected the claimant's arguments and agreed that a simplified and limited briefing was sufficient and adequate.
Interestingly, the judge also expressed a view that there were obligations on a claimant: where a participant is aware of the risks, he must be satisfied that he is qualified and capable of safely taking part in the event. Had the claimant had any concern that he was out of his depth the onus was upon him to speak up and ask for additional support if needed.
The judge accepted that the accident was caused by rider error and that the defendant had provided proper instruction. The claim was dismissed.
This case follows a long string of authorities that remind us that participants are held to accept the risks that are ordinarily inherent within the activities in which they freely choose to participate: see Wells v DTHORC (2020)
Whilst an organiser must be able to demonstrate that the risks have been assessed and are proportionate and appropriate, an obligation to minutely control and sanitise thrill-based and adrenaline-fuelled activities and events would damage and undermine the legitimate social value of reasonable recreational and sporting activities.
Saul acted for the defendant in the case of Wells v DTHORC.
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