Poole v Wright and others [05.08.13]
Owner of kart not liable in negligence for catastrophic injuries sustained in a social setting; in the circumstances the imposition of a duty of care would not be fair, just or reasonable.
In what will be seen as a common sense judgment in most quarters, and come as a relief to anyone who shares their leisure equipment with friends, Mrs Justice Swift decided that it would not be fair, just or reasonable to impose a duty of care on the owner of equipment being used in circumstances where:
- The equipment is provided by a private individual for the enjoyment of other adults without any form of reward.
- There is no foreseeable risk of injury.
- The equipment does not suffer from any hidden defect.
- To do so would impose a greater responsibility on the owner than the manufacturer of the kart.
Swift J considered that the imposition of such a duty would potentially have far-reaching consequences for those engaging in recreational activities with friends and acquaintances.
On 13 April 2009 the Claimant suffered catastrophic injuries whilst driving a go-kart when a scarf that she was wearing became entangled within machinery at the rear of the kart.
The Claimant was with a group of friends at a newly constructed car park. The Claimant’s only previous experience of driving a kart had been at a birthday party when she was about 12 years old. Before she started driving the kart, the owner of the kart, Mr Abbott ascertained that she was a car driver and pointed out the controls. A short time later, the Claimant’s scarf became wound round the rear axle of the kart, pulling her head and body back.
There was no guard in place to shield the rear machinery of the kart. The Claimant considered that a guard should have been in place, or else that she should have been provided with a clear warning of the risks she was undertaking by driving the kart whilst wearing her scarf, given the exposed machinery.
The Defendants were as follows:
- The manufacturer of the kart, Mr Wright.
- The operator of a commercial karting centre, Chequered Flag Karting Ltd. Mr Jackson and Mr Shaw, who became directors of this company, had previously owned the kart.
- A private individual, Mr Abbott who acquired the kart by way of an exchange from Mr Jackson and Mr Shaw.
During the liability trial, the Claimant discontinued her claim against the First Defendant. In pursuing her claim against the manufacturer of the kart, the Claimant sought to argue that the governing bodies for karting and motorsport (CIK-FIA and MSA) had misinterpreted their own regulations; an argument which was doomed to fail. The rules and regulations of sport are not subject to strict legal interpretation.
Swift J dismissed the Claimant’s claims against the Second and Third Defendants:
Second Defendant: there was no evidence to show that the Second Defendant supplied the kart to the Third Defendant. The kart had been purchased by Mr Jackson and Mr Shaw in their personal capacities before they became directors of the Second Defendant. There was therefore no duty of care owed by the Second Defendant by virtue of any contract of supply.
The Claimant also claimed that the Second Defendant could be vicariously liable for Mr Jackson and Mr Shaw’s breaches of duty.
The Judge found that Mr Jackson and Mr Shaw did not owe a duty of care to the Claimant because the risks associated with the exposed machinery were not foreseeable. Further, there were no regulatory provisions governing the purchase, sale or use of such a kart and it would not have been fair, just or reasonable to bridge this gap by imposing a common law duty.
The Second Defendant would not have been vicariously liable for any such breach of duty in the circumstances because the buying, selling and exchange of karts formed no part of the Second Defendant’s business.
Third Defendant: the Third Defendant did not owe the Claimant the duties of care alleged. Prior to the accident, the scarf was not prominent and was neatly tied above chest level. It would not have been conspicuous and it was entirely plausible that the Third Defendant would not have noticed it. The Claimant’s scarf did not give rise to an obvious risk that should reasonably have been foreseen by him.
The fact that the kart had moving parts and that, when sitting in the kart, the Claimant would be near to those moving parts, should have been obvious to all, including the Claimant, yet she did not seem to perceive any risk.