Hood v Forestry Commission [2017] Preston County Court (District Judge Burrow)

The facts

The claimant was injured whilst using a mountain bike trail at Grisedale Forest which was operated by the defendant. At the time of the accident the claimant was leaning on his bike and was turning to his right in order to leave the boardwalk when he alleged that the rear wheel of his bike slipped off the boardwalk, causing him to fall from his bike and to suffer serious leg injuries.

The claimant argued that the boardwalk was unsafe and that the cross-hatching or grove scoring to prevent slippage had worn. Also he alleged that the boardwalk had not been properly maintained and no other safety measures had been carried out to prevent cyclists from coming off the trail.

Liability was denied on the basis that the boards were anti-slip and the cross-hatch scoring was an additional, but not necessary, safety measure that had been added at a much later stage. Also the defendant argued that mountain biking carries with it an inherent risks and dangers, which the claimant had voluntarily accepted when using the trail.

Findings

The court unsurprisingly concluded that the defendant clearly owed a duty to the claimant under section 2 of the Occupiers’ Liability Act 1957 (“OLA 1957”) to take such care, as in all the circumstances, was reasonable to see that they were reasonably safe whilst on the bike trail.

It was held that on the balance of probabilities it was more likely than not that the accident was caused due to the claimant misjudging his route of exit from the boardwalk and not due to any failure on the part of the defendant. The court reached this finding on the basis that that the mountain bike trail was described as a “red trail” and signage was in place notifying people that it was difficult and suitable for proficient mountain bikers with good off-road riding skills. The court also focussed on the fact that the signage warned that the trail had “challenging climbs, tricky descents and technical features…” and that the claimant had read this signage.

As a result, it was held that the claimant was fully aware and accepted the risk of riding along the trail. Also the claimant had described the trail as being “good” and was on it for a considerable period of time prior to the accident. Further, other riders had used the trail that day with no problems and it was seen that there had been no real deterioration to the route.

Further, the court reiterated the fundamental principle that the duty placed on occupiers is not absolute and is instead to “take reasonable care in all the circumstances”. On the facts, it was held that the cross-hatching was visible and although it was worn it was not the only mechanism that was in place to provide protection from slipping. It was also noted that the trail had operated without the cross-hatching for a period of six years and the boardwalk was to be completely removed just a few days after the accident for other unrelated reasons.

The court concluded that the defendant’s duty under section 2 of the OLA 1957 did not require the installation of the cross-hatching or grooving. It was held that this was an additional, non-compulsory, safety measure to prevent slipping but the defendant did not have to guard against the risk of slipping at all costs.

It was stated that these types of courses are there to provide a thrill to participants and to impose such a high burden on an occupier to protect against every risk would be too great, would take the thrill away and would result in these activities being considered too dangerous to operate. As a result, the claim was dismissed.

What this means for you

This is a welcome judgment where the court made clear that occupiers do not have an absolute duty to protect visitors against every risk of injury. In this case, it was seen that use of the boardwalk trail carried with it inherent risks that the claimant was fully aware of. Also there was signage in place that advised of the type of terrain, warned the claimant that the course was difficult and noted that the course was designed for more proficient and experienced riders.

It should be noted that the court took into account that the claimant had read the signage and had negotiated the rest of the course without incident. Also, it was seen that the grooving or cross-hatching was an additional safety feature, which the defendant had not been under an obligation to install.

This case applied some of the principles in the recent High Court case of Maylin v Dacorum Sports Trust t/a XC Sportspace [2017] EWHC 387 (QB), where it was held that participants accepted the risks when carrying out sporting activities, which posed obvious and inherent dangers.

In this case, the court took a common sense approach by not wanting to place too onerous obligations on sports and activity providers to carry out every possible step to protect participants against every possible risk, especially in circumstances where these risks could be considered obvious.

This case may have been dealt with differently, had the defendant failed to use signage or provide warnings to riders in respect of the nature and difficulty level of the trail. Also, it should be noted that the trail was not seen to be in a state of disrepair but had there been a specific defect that had caused the accident, then liability could have possibly attached, if the defendant had or ought to have been on notice of the defect but failed to repair it.

It is recommended that sports and leisure operators have records of maintenance and inspection in relation to the facilities, equipment, courses etc. that are used by members of the public. Also suitable supervision, guidance and signage should be put in place to assist with minimising the number of accidents and to assist with defending these types of claims.