In an interesting survey of the principles giving rise to duties of care and vicarious liability, Mrs Justice Swift has handed down a liability judgment in a catastrophic injury case brought against various categories of defendant.  The claimant was injured when her scarf got caught up in the rear axle of a 4-stroke engine go-kart.  She had been one of a party of six friends in their twenties who took a kart belonging to one of them for recreational use on a newly-constructed local car park which they used.  The basis for her complaint against all defendants was that the kart was unsafe in its design because it had inadequate guards in place for the moving parts at the rear of the machine. 

The first defendant was the manufacturer of the kart.  The kart was manufactured in compliance with regulations in force at the time, but more stringent requirements for guards subsequently came into force.  The claimant discontinued against the manufacturer before judgment.

The third defendant was the owner of the kart.  He was not an experienced racer but he did own two karts.  He had acquired this one in a straight swap of a previous one for this one.  He was a builder with a very basic knowledge of motor mechanics.  He was blamed for (1) failing to warn the claimant to remove her scarf and (2) allowing the claimant to use the kart without an adequate guard in place for the moving parts.

The judge held that the claimant’s scarf was not trailing or loose when she got into the kart and there was nothing to make the risk of entanglement reasonably foreseeable to the third defendant.  What is more, it would not be fair, just and reasonable to impose a duty on the third defendant in respect of a potentially hazardous feature of the machine (the fact of moving parts) which was as obvious or hidden to him as it was to the claimant.  This was a group of friends getting together recreationally, not in any organized or commercial venture.  Echoing Lord Hoffman’s speech in Tomlinson (his tirade against the nanny state), the judge said:

I consider that it would impose an undue burden of legal responsibility on those who wish to share such equipment with other[s] who might wish to use it.  The imposition of such a burden would have potentially far-reaching consequences for those engaging in recreational activities with friends and acquaintances.

The third defendant had bought the kart from two men who were directors of a company (the second defendant) which operated a commercial karting centre.  The claimant contended that it was in reality the company which had transferred ownership of the kart to the third defendant, but this was rejected on the facts.  The claimant’s alternative argument was that the company was vicariously liable for the two men when they transferred ownership in the kart to the third defendant, and that they had breached a duty of care to the claimant by allowing it to be supplied for use without risk assessing it and making it safe to be used.

The judge held that there was no common law duty on the two men who supplied the kart to go beyond the regulations applicable to it.  What is more, it would not be fair, just and reasonable to impose a duty owed to an indeterminate number of future users in perpetuity.  Nor would there have been vicarious liability in any event, since the transaction played no role in the second defendant’s business. 

See: Poole v Wright & ors [2013] EWHC 2375 (QB), decision of Swift J.