Poole v Wright (t/a Simon Wright Racing Development) & Ors

A person who lends or supplies potentially dangerous leisure equipment in a social setting does not automatically owe a duty to protect adult users against obvious risks. The Caparo requirements of foreseeability, proximity, and fairness, justice and reasonableness must be considered together. A duty may arise where equipment has a hidden defect, but not merely because its visible moving parts are unguarded. The absence of statutory regulation or guidance does not itself justify imposing a broad common-law duty on private individuals. Nor does an employee’s opportunity to arrange a personal transaction at work establish vicarious liability. Liability requires a sufficiently close connection between the transaction and the employee’s authorised duties.

The claimant suffered catastrophic spinal and other injuries when a scarf became entangled in the rear axle of a go-kart. The kart had been manufactured as a racing kart, later acquired by two individuals associated with a commercial karting centre, and exchanged with the third defendant for recreational use. The claimant sued the manufacturer, the commercial karting company and the private owner. She discontinued the claim against the manufacturer during the liability trial.

The issues were whether the commercial company had supplied the kart or was vicariously liable for the individuals’ conduct, whether the private owner owed duties to prevent the claimant using the kart or to require removal of her scarf, and whether any alleged breach caused the accident.

1. Claims dismissed. The claimant’s claims against the second and third defendants failed. The evidence established that the kart remained the personal property of Mr Shaw and Mr Jackson and was exchanged by them personally. It never became an asset of the second defendant. There was therefore no contract of supply between the second defendant and the third defendant.
2. The court applied the three-stage approach in Caparo Industries Plc v Dickman [1990] 2 AC 605. Foreseeability alone was insufficient. The proposed duty on private individuals to investigate and modify second-hand machinery for all possible future users would be burdensome and far-reaching. It was neither fair, just nor reasonable.
3. The third defendant did not owe the claimant the alleged duties. The general risks of driving a kart were obvious to an adult of full capacity. The scarf, as found, was neatly arranged and did not present a reasonably foreseeable entanglement risk. The kart had no hidden defect. The social and recreational circumstances did not create an assumption of responsibility or reliance.
4. The court considered the restricted duty applicable to obvious risks described in Mitchell v Glasgow CC [2009] UKHL 11 and Tomlinson v Congleton Borough Council [2004] 1 AC 46. The hidden-defect example in Coughlin v Gillison [1899] 1 QB 145 did not apply. The reasoning in Trustees of the Portsmouth Youth Activity Committee v Poppleton [2008] EWCA Civ 646 supported the conclusion that no duty to train or supervise arose.
5. The second defendant would not have been vicariously liable. Applying Mattis v Pollock [2003] 1 WLR 2158, the personal exchange of privately owned property was neither within Mr Shaw’s employment nor closely connected with his authorised duties. The location of the transaction and the customer relationship were fortuitous.
6. The court found that removal of the scarf would have prevented the accident, but no relevant duty or breach was established.