Occupiers' Liability: The Inherent And Obvious Risks Of Navigating Puddles

• Published date: 17 June 2020
• Author: Clyde & Co LLP
• Subject Matter: Insurance, Transport, Rail, Road & Cycling, Insurance Laws and Products
• Law Firm: Clyde & Co

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.

Background

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:

1. the absence of a detailed risk assessment of the byway; and

2. 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:

1. any breach of contract or duty of care due to the hazardous nature of the event's activities; and

2. any duty to warn of the risk that muddy water might contain hidden obstacles.

Judgment

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.

Cause

The Judge found the true cause of the accident to be the Claimant's own decision-making.

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