Volenti defence fails in Super Bike Championship accident claim

In the recent case of Shane Byrne v Motorsport Vision Racing Limited, Motorsport Vision Limited, the Motorcycle Circuit Racing Control Board Limited [2024] EWHC 2966 the claimant was a professional motor bike racer and was participating in a test day at the Snetterton motor racing circuit. The claimant was a major figure in the sport and had won numerous races previously at the track in question. As he was completing his second lap of the day he came off the track at a corner, crossed a verge onto a grassed run off area. The claimant assessed that he as not going to be able to slow the bike down sufficiently to avoid a collision with the safety barrier in front of him so he deliberately jumped from the bike, and rolled into the safety barrier. He sustained serious injuries as a result.

The controlling body for competitive motorcycle racing in Great Britain is the Auto Cycle Union Limited ('ACU'). However, the ACU granted the fourth defendant - the Motorcycle Circuit Racing Control Board Limited ('MCRCB'), the right to be the controlling body of national level motorcycle circuit road racing on permanent race circuits owned or controlled by members of the Association of Motor Racing Circuit Owners ('AMRCO'). The track was owned by the second defendant, MotorSport Vision Limited. MotorSport Vision Racing Limited, a subsidiary of the second defendant, was the commercial, media and organisation right holders for the series and organised the BSB Championship this test day related to. The claimant had discontinued against the third defendant before trial.

The first and second defendants admitted that they were occupiers of the track. It was however argued that the claimant "willingly accepted" the risks which have resulted in the injuries he sustained and as such no duty of care was breached. The question was therefore what level of risk was willingly accepted. The claimant had alleged signed a 'signing-on form which stated that "MOTOR SPORT CAN BE DANGEROUS AND INVOLVE INJURY OR DEATH…1)  I accept the competition in motorsport may involve the risk of injury or death and I agreed to take part at my own risk…3)  I confirm that I understand the nature of the competition I am entering and I am competent to take part…5)  I will satisfy myself (by sighting lap or otherwise) before taking part that the venue and track are acceptable to me with regard their features and physical layout..6)  I will NOT take part if I have any doubt about my ability or safety including in relation to the safety of the venue and/or weather conditions." No signed copy was however produced. Further the judge noted that the claimant was not an expert in track design and construction. Although he had walked around the course before, he was focused on the track surface and did not know about the different types of barrier design and their appropriate application. The judge therefore rejected the proposition that the claimant (or indeed any of his fellow competitors) willingly accepted the risk of colliding with the barrier as it was designed at Turn 3 in circumstances as occurred in this incident. He also rejected the proposition that the claimant willingly accepted that the barrier he collided with provided him with a sufficient level of protection from serious injury.

Under the Occupiers Liability Act 1957 the first and second defendants had to take such care as in all the circumstances of the case was reasonable to see that the claimant would be reasonably safe in using the track for the purposes he was invited or permitted to be there. The first defendant owed that duty to the claimant as the organiser of the test day and the second defendant as the owner/designer/creator of the circuit. The fourth defendant was the governing body of this form of motorcycle racing. It controlled whether or not a test day could take place at a particular circuit on a particular day. It was the body which appointed a Safety Delegate to undertake track inspections and risk assessments. It decided if a license should be granted to a race track so as to permit its use and could direct the first and second defendants to provide additional measures so as to protect the public, marshals, riders etc. before it was prepared to provide a licence to authorise a track for BSB Championship use. The Court therefore concluded that there was a relationship of close proximity between its activities and the foreseeable consequences of their decisions for BSB Championship riders to make it fair, just and reasonable for the law to impose a duty of care in these circumstances.

The barrier hit by the claimant was a type D barrier, which the claimant's expert asserted was an extremely hard barrier designed for cars to hit, not humans. The claimant submitted that on a track built for motorcycle racing as well as car racing, Turn 3 should have offered additional protection, such as type A devices that were said to minimise impact rebound and generate a cushioning effect. The court agreed with that conclusion and that it was a breach of the duty of care and it was negligent not to have concluded that type 'A' additional protective devices were required on the outside barrier at Turn 3 for this test day. All 3 Defendants were found liable for the claimant’s injuries as a result.

Forbes comment – A claimant cannot contract out of the risk of personal injury but if you intend to rely on a waiver form as evidence of acceptance of risk, a copy of the signed document should be retained. Careful consideration also needs to be given as to the risks that a business is asking a claimant to assess and it is important to remember that a court will not expect them to look at facilities in the same way that an expert may. If you have any concerns about activities being carried out at your premises please do not hesitate to contact Forbes should you require advice on your risks in this regard.