Slack v Glenie & Ors

Under the Occupiers Liability Act 1957, a participant in a dangerous sport may still be entitled to reasonable safety against an additional hazard created by the premises. Voluntary participation does not establish acceptance of a risk which the participant neither knew nor could reasonably be expected to know, particularly where the facility failed to meet accepted safety standards. An occupier may be vicariously liable for negligent advice given by an employee, even where that employee has greater expertise. Contributory negligence remains a matter of apportionment. The court upheld equal responsibility between the claimant and the defendants.

The claimant suffered severe injury when a motorcycle and sidecar combination left a race track at Matchams Leisure Park and struck an inner fence. The first defendant owned and occupied the park; the second defendant promoted and controlled admission to the event.

The High Court found both defendants liable, subject to 50% contributory negligence, and apportioned responsibility between them at two-thirds to the first defendant and one-third to the second defendant. The first defendant appealed, seeking exoneration or a greater reduction. The claimant cross-appealed, seeking a lower reduction. The central issues were duty of care, breach, voluntary assumption of risk and contributory negligence.

1. Appeal and cross-appeal dismissed. The claimant was not a trespasser. The second defendant had ostensible authority from the first defendant to admit riders, and the first defendant had not effectively communicated any limitation on that authority.
2. The inner fence was an unacceptable hazard for motorcycle and sidecar racing. The evidence included the FIM track standards, accepted safety practice elsewhere and expert evidence. The absence of a clear in-field meant that it was foreseeable that visitors would not be reasonably safe. The first defendant therefore breached the common duty of care under section 2(2) of the Occupiers Liability Act 1957.
3. The first defendant was vicariously liable for the negligent advice of Coombes, his employee. Reliance on an employee with greater expertise did not relieve the employer of liability. The first defendant also personally failed to take reasonable care by not investigating the FIM standards and by disregarding warnings about the danger.
4. The defence under section 2(5) of the Occupiers Liability Act 1957 failed. The claimant accepted the ordinary risks of the sport and knew that the fence existed, but he did not know, and could not reasonably have been expected to know, that the obstructed in-field constituted an unacceptable hazard. The reasoning in Simms v Leigh Rugby Football Club Ltd was inapplicable because that case concerned risks associated with a facility complying with governing-body standards. The principle in White v Blackmore was applied: a participant does not willingly accept injury caused by an organiser’s negligent failure of safety.
5. The claimant’s choice of an inexperienced and unfamiliar passenger and his failure to disconnect the power when control was being lost amounted to serious contributory negligence. Nevertheless, the absence of a clear in-field was a major cause of the accident and injuries. The equal apportionment of responsibility was therefore upheld.

Costs orders were made against the appellant, and permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division): appeal and cross-appeal dismissed; the High Court’s findings on liability and contributory negligence upheld.
• Queen’s Bench Division, before HH Judge Graham Jones: judgment for the claimant against both defendants, damages to be assessed subject to 50% contributory negligence; liability between defendants apportioned two-thirds to the first defendant and one-third to the second.