Poole v Wright (t/a Simon Wright Racing Development) & Ors [2013] EWHC 2375 (QB)

[2013] EWHC 2375 (QB)Case No IMA90691IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue Manchester Civil Justice Centre1 Bridge Street WestVenue ManchesterM60 9DJDate 05/08/2013
Before
THE HONOURABLE MRS JUSTICE SWIFT DBE
Between
SOPHIE POOLEClaimant
Nicholas Braslavsky QC and Stephen Maguire (instructed by GLP Solicitors) for ClaimantOliver Campbell (instructed by RPC) for First DefendantStephen Worthington QC and Gary Thornett (instructed by Berrymans Lace Mawer) for Second DefendantNigel Poole QC and Claire Steward (instructed by Price Slater Gawne,Solicitors) for Third DefendantHearing Hearing dates: 22 April – 26 April 2013 (in Manchester) and 9 May 2013 (in Chester)
JudgmentThe Honourable Mrs Justice Swift DBE :THE CLAIM
[1]On 13 April 2009, the claimant, Miss Sophie Poole, who was then 21 years old, suffered catastrophic injuries whilst driving a go-kart (henceforth referred to as the “accident kart” or “kart”) owned by Mr David Abbott (the third defendant). Her injuries were caused when the scarf she was wearing became entangled in the moving parts at the rear of the kart and tightened round her neck, pulling her backwards and resulting in severe damage to her spine together with other injuries. She claims damages for those injuries and for consequential loss and damage.[2]The claimant commenced proceedings against three defendants: a) The manufacturer of the accident kart, Simon Wright Racing Development, the trading name of Mr Simon Wright (the first defendant); the first defendant is a former international kart racer and his main business is the manufacture of karts for racing; b) Chequered Flag Karting Limited (the second defendant), the operator of a commercial karting centre, which hires out karts for members of the public to drive on the indoor track at its premises at Guiseley, West Yorkshire. Mr Christopher Shaw and Mr Graham Jackson, who subsequently became directors of the second defendant, purchased the accident kart some years after its manufacture; c) The third defendant, a private individual, who acquired the accident kart by way of an exchange, his intention being to use it for recreational purposes.[3]All three defendants denied liability and alleged contributory negligence on the part of the claimant. Each of the defendants made additional claims for indemnity or contribution against the other two defendants.[4]A split trial was ordered. Between 22 and 26 April 2013, I heard evidence on the issue of liability. Just after the conclusion of the evidence, I was informed that the claimant had discontinued her claim against the first defendant. Thereafter, counsel for the claimant and the second and third defendants prepared written submissions. I heard supplementary oral submissions on 9 May 2013.

THE HISTORY OF THE ACCIDENT KART

[5]The accident kart was a 160 cc twin-engine four-stroke Honda Pro Kart which had been manufactured by the first defendant in 1997 for use as a racing kart. Although the kart had undergone some changes (including renewal of its bodywork) during the period of more than 11 years between its manufacture and the claimant’s accident, the first defendant was able to identify it from its chassis number. His records showed that he had sold the kart on 21 December 1997 to a firm called Kartal Motorsport. Documents retained by Kartal Motorsport included a sales invoice for the kart dated 23 December 1997 giving the name of the purchaser as “Mr S Ponsonby”. The invoice stated that the kart had been supplied with two Honda engines and tyres. It seems likely that, although Mr Ponsonby bought the kart from Kartal Motorsports, it was delivered to him or collected by him directly from the first defendant.[6]It is not known what happened to the accident kart after it was purchased by Mr Ponsonby in December 1997. All we know is that, at some time before April 2008, it was purchased by Mr Shaw and Mr Jackson.[7]Between the end of April 2008 and the middle of October 2008, the third defendant, who had visited the second defendant’s karting centre once or twice as a customer, saw the accident kart on display there and raised with Mr Shaw the possibility of exchanging it for a two-stroke racing kart which he already owned. It was agreed that a “straight swap” of the two karts should take place. As a result the accident kart passed into the possession of the third defendant. The accident occurred some months later. THE CIRCUMSTANCES OF THE ACCIDENT The witnesses[8]The evidence relating to the circumstances of the accident came from the claimant and the third defendant, together with the four other people who were present at the time. The claimant gave oral evidence. She also relied on the evidence of Mr Andrew Carrack, Miss Jo Lorryman and Mr Craig Turner whose witness statements were agreed and admitted in evidence. The claimant elected not to rely on the evidence of Miss Claire Jackson, the third defendant’s partner, whose witness statement had been disclosed. Instead Miss Jackson was called as a witness for the third defendant. The evidence about

THE CIRCUMSTANCES OF THE ACCIDENT

[9]Save for one issue (i.e. the way in which the claimant was wearing her scarf) the circumstances in which the accident occurred were uncontroversial.[10]On the morning of 13 April 2009, Easter Monday, the claimant and her then boyfriend, Mr Carrack, decided to visit the third defendant, who was a friend of Mr Carrack. Mr Carrack took with him his model helicopter. At the third defendant’s house, they met the third defendant and his girlfriend, Miss Jackson, together with another couple, Mr Turner and Miss Lorryman. It was decided that the six of them would take the third defendant’s two karts and Mr Carrack’s helicopter and use them on a large, newly constructed car park situated near to the third defendant’s home in Guiseley. All the members of the group were in their twenties; the claimant was the youngest.[11]The third defendant took the two karts on a trailer behind his car and the three couples met up at the car park. The car park was not yet in use although the laying of the surface was complete. There was at least one Portakabin (presumably for the use of construction workers) still on site. The car park was surrounded by a temporary wire mesh fence with a gap at the entrance through which the third defendant and his companions were able to gain access. It was common ground that the third defendant had not sought nor obtained the permission of the owner to use the car park.[12]After the third defendant and his companions arrived at the car park, the karts were unloaded. The third defendant was the first to drive one of the karts. He completed a few laps round the car park to ensure that the surface was suitable for the karts. Other members of the group then took turns to drive them whilst Mr Carrack flew his helicopter.[13]After a time, it was the claimant’s turn to drive one of the karts. Her only experience of driving a kart had been on one previous occasion at a birthday party when she was about 12 years old. The third defendant ascertained that she was a car driver and pointed out the accelerator and the brake pedals. He warned her not to press both pedals simultaneously and demonstrated how to start the engine. The claimant began to drive round the car park whilst the third defendant went to watch Mr Carrack flying his helicopter. The claimant was wearing jeans and a “V” necked sweater. At the time she started to drive the kart, she was also wearing a scarf, although there is some uncertainty about exactly when she put it on.[14]Miss Lorryman was driving the other kart. Before Miss Lorryman started to drive the kart, the third defendant told her to take off the long coat she was wearing in case it got trapped in the moving parts of the kart. In oral evidence, he explained that he was concerned about the risk that the lower part of her coat might get caught in the underside of the kart. Miss Lorryman complied with his instructions and her turn passed without incident.[15]A short time later, Miss Lorryman noticed that the claimant was leaning back in the kart at an unnatural angle. Miss Lorryman realised that something was wrong and screamed. She and the other members of the group ran over to the claimant. They found that the claimant’s scarf had become wound round the rear axle of the kart, pulling her head and body back. She was not breathing. The third defendant and Mr Carrack tried to free her by tearing her scarf but were unable to do so. Eventually, the third defendant managed to lift the kart and unravel one end of the scarf from round the claimant’s neck. The other end was left wound round the rear axle. He got her out of the kart, laid her on the ground and carried out cardio-pulmonary resuscitation. He managed to re-establish her breathing before the emergency services arrived and they took over her care. Once her condition had been stabilised, she was taken by air ambulance to hospital where her injuries were treated.[16]Police offices attended and took photographs of the scene of the accident, including photographs of the end of the scarf still wound round the rear axle of the kart: see TB2/218-223.

RACING KARTS

[17]The accident kart had been designed and manufactured for the purpose of racing and was very different from the type of karts (known as “commercial karts”) available for hire at commercial karting centres such as that operated by the second defendant. By way of background, it is necessary to say something about the regulatory framework for kart racing and the manufacture of racing karts.

The regulatory framework for kart racing

[18]The worldwide governing body for four-wheeled motorsport, including kart racing, is the Federation de Internationale l’Automobile (FIA). The specialist division of the FIA which is directly responsible for kart racing worldwide is the Commission Internationale de Karting (CIK-FIA). In each country, the authority of the FIA is devolved through a national organisation which, in the UK, is the Royal Automobile Association Motor Sports Association (MSA). The FIA publishes regulations for the organisation of competitive motor sports events, including karting events, and each national organisation publishes its own regulations based on those laid down by the FIA. The regulations of the MSA are published annually in its Competitors’ Yearbook (also know as ‘the Blue Book’) and are subject to constant review and revision by the MSA Sports Council whose members take advice from a number of specialist committees and advisory panels.[19]All major kart racing events in the UK are organised in accordance with the MSA regulations. The MSA takes responsibility for the training and registration of race officials and marshals who take part in the organisation of MSA events. The MSA also operates a scheme for the licensing of drivers competing at such events. Race tracks where MSA-affiliated events are held are subject to a system of regular inspection and licensing and persons who wish to organise a MSA-affiliated event must obtain a permit in order to do so. MSA stewards inspect racing venues immediately before a race meeting is held there and submit a report on the organisation of the race meeting when it is completed.[20]The MSA regulations include highly detailed technical specifications (including specifications relating to safety features) for different classes of racing kart. At MSA-affiliated race meetings, every kart is inspected by a scrutineer before it is permitted to race. A kart that does not conform exactly to the MSA specifications will not be permitted to compete. The MSA regulations require kart drivers to wear helmets, boots and close-fitting overalls of a type specifically approved by the MSA. They also deal with safety matters such as the type of safety barriers to be used on kart race tracks and the provision of emergency care in the event of an accident.[21]Mr John Symes, Technical Director of the MSA, who gave evidence for the first defendant, explained that the regulatory framework created by the MSA was designed to provide a “multi-faceted approach” to managing the risks inherent in the sport of kart racing. The intention is that, when all the various component parts of the regulatory system are in place, the risk of serious injury or death is reduced to a minimum, although it can never be eliminated altogether.[22]There are a number of more informal kart racing events which are not run under MSA regulations. These are likely to be attended by young or less experienced drivers and/or those whose karts are not of the requisite standard for high level competition.

The requirements for racing karts

[23]All karts competing at MSA-affiliated racing events must have a rigid tubular frame and no suspension of the wheels. The MSA specifications state that kart engine(s) must drive the rear wheels only and those rear wheels must be joined by a single piece rear axle with no differential between them. Certain other features are mandatory; these include a deformable nose cone, deformable side panels and a rear bumper of a prescribed design and specification. The MSA specifications are intended to facilitate fair competition (by ensuring that no kart is adapted so as to give its driver an unfair advantage) and also to minimise the risk of injury associated with the sport of kart racing.[24]A new racing kart suitable for MSA-affiliated competitions is an expensive item. The current cost of a basic racing kart starts at about £2,500, excluding engine(s), tyres, a seat and other accessories. Racing karts are designed with a view to achieving maximum performance. Most racing karts have powerful two-stroke engines and are capable of reaching very high speeds. Their frames are light and, because the karts have no suspension, they are subject to a high degree of wear and tear. As a result, a racing kart will not generally remain in a sufficiently good condition to compete at top class level for more than one season, possibly less. During its racing life, the kart will require high levels of maintenance and regular replacement of parts such as tyres and brake pads. Racing karts which become unfit for high level competition are often sold to individuals for use at more informal, non-MSA affiliated, racing events or for purely recreational purposes.

Moving parts

[25]All karts have a number of moving parts, although the configuration of those parts may not be identical on each kart. The photographs at TB6/29 show the position of the moving parts at the rear of the accident kart. The layout of the moving parts is typical of many racing karts. When the accelerator pedal is pressed, the chains, the driven sprockets, the rear axles and the rear wheels will be driven by the twin engines. The direction in which each chain and driven sprocket will rotate when powered by the corresponding engine is shown on photograph 8 at TB6/31.

Guarding of the moving parts of the accident kart

[26]At the time of the accident, the only form of guarding covering any of the moving parts at the rear of the accident kart consisted of two narrow metal strips (“chain strips”) which were positioned over the top and rear of the two driven sprockets and chains. Those chain strips can be seen in the photographs at TB6/29 and (from the side) in photograph 6 at TB6/30. The evidence was that chain strips of the type shown in the photographs would have been fitted to the accident kart at the time of its manufacture. It is probable that the chain strips depicted in the photographs were not the original chain strips fitted in 1997. However, the original chain strips would have been similar in appearance.

The regulatory framework covering the guarding of the moving parts of racing karts

[27]Despite the fact that the claimant has now discontinued her claim against the first defendant, it is necessary to consider briefly the regulatory framework governing the guarding of the moving parts of racing karts. This is because it is contended on behalf of the claimant that the regulatory framework is relevant to the duties owed to her by the second and third defendants.

The Machinery Directives and the Supply of Machinery (Safety) Regulations

[28]The claimant’s primary contention against the first defendant at trial was that he was in breach of the Supply of Machinery (Safety) Regulations 1992 (the 1992 Regulations). The 1992 Regulations were enacted to give effect in English law to the provisions of the Machinery Directive 89/393/EEC issued by the European Parliament and Council in 1989 (the 1989 Machinery Directive).[29]The obligations contained in the 1989 Machinery Directive and the 1992 Regulations were imposed on the manufacturer/producer of the relevant machinery. The claimant’s contention was that the 1992 Regulations imposed on manufacturers stringent requirements for the provision of guards over the moving parts of karts, including racing karts. There can be no doubt that, if racing karts had fallen within the type of machinery covered by the 1992 Regulations, the fitting of chain strips like those which were fitted to the accident kart when it was manufactured in 1997 would not have fulfilled those requirements. A far more comprehensive guard would have been required. However, when the provisions of the 1989 Machinery Directive and the 1992 Regulations were subjected to careful examination in the course of the trial, it became clear that racing karts belong to one of the classes of machinery excluded from their ambit. The matter was put beyond doubt by guidance on the interpretation of the 1989 Machinery Directive published by the Commission of the European Communities in 1993. Thus the claimant’s case against the first defendant based on a breach of the 1992 Regulations was bound to fail.[30]Racing karts were also excluded from the type of machinery covered by the provisions of the 2006 Machinery Directive (2006/42/EEC), which replaced the 1989 Machinery Directive in 2006, and the Supply of Machinery (Safety) Regulations 2008 (the 2008 Regulations), which came into force on 29 December 2009 and replaced the 1992 Regulations. Furthermore, like their predecessors, those provisions also applied only to the manufacturers/producers of machinery, not to those who might later supply machinery which had already been put into service.[31]There are no other statutory provisions governing the provision of guards on racing karts. Instead, they are manufactured in accordance with the technical specifications laid down by the MSA.

The MSA regulations

[32]I have already referred to the detailed technical specifications published by the MSA for karts participating in MSA-affiliated racing events. Those specifications are intended to give effect to the CIK-FIA regulations although they are not identical with them in all respects. The evidence was that UK manufacturers of racing karts design and produce their karts so as to conform to MSA regulations in the expectation that those who purchase their karts intend to use them to compete in MSA-affiliated racing events.[33]Before 1997, there was no requirement in the MSA regulations for any of the moving parts at the rear of a racing kart to be guarded. In its 1997 Blue Book, the MSA introduced (at paragraph 15.5.2) a requirement for a guard to be fitted above the transmission. The claimant alleged that the chain strip fitted to the accident kart at the time of its manufacture did not comply with the requirements of paragraph 15.5.2. It was contended that paragraph 15.5.2 should have been interpreted as requiring the provision of a moulded guard covering the top of the driven sprockets and extending more than half way down their sides.[34]The first defendant’s case was that, after the publication of paragraph 15.5.2, he modified the design of his karts so as to fit chain strips, but no other form of guarding of the moving parts. In doing so, he acted in the same way as every other manufacturer of racing karts. He considered that he had properly implemented the requirements of paragraph 15.5.2.[35]At the trial, a considerable amount of time was devoted to exploring with the experts and other witnesses the precise meaning of paragraph 15.5.2 and of the (slightly different) version of the guarding requirement contained in the corresponding regulation published by the CIK-FIA in 1997. However, this debate proved somewhat sterile since it was quite clear that, whatever views might be held by others, the MSA and the CIK-FIA had at all times interpreted their 1997 regulations as requiring only the provision of chain strips such as those fitted to the accident kart.[36]Mr Symes, who has been employed by the MSA since 1992, gave evidence to that effect. I also heard evidence from two witnesses concerned in the manufacture of racing karts, both of whom supported the evidence of the first defendant that, prior to 2005 (when the CIK-FIA and MSA guarding requirement changed), no manufacturer of racing karts provided any form of guarding of the transmission apart from chain strips. In addition, I was shown a number of photographs from karting magazines published in the early 2000s which depicted leading competitors in national and international race events driving karts fitted with no form of guard apart from chain strips. Furthermore, the evidence was that moulded guards of the type that the claimant contended should have been fitted by the first defendant from 1997 onwards were not in fact available in the UK until the mid-2000s.[37]The claimant contended that the CIK-FIA and the MSA had interpreted their own regulations incorrectly. It was argued that the first defendant should have disregarded their interpretation and should have concluded that paragraph 15.5.2 of the 1997 MSA regulations required him to source and fit moulded guards covering the top of the driven sprockets and extending more than half way down their sides. Alternatively, he should have carried out his own risk assessment which, if properly conducted, would have led to a similar result. A moulded guard of the type advocated by the claimant would not, of course, have complied with the MSA’s own interpretation of its specifications for racing karts. Such a guard would not have been acceptable to the scrutineers who inspected karts at MSA-affiliated events and would therefore have had to be removed for racing purposes. Nevertheless, it was argued that, by failing to fit moulded guards, the first defendant was in breach of the ‘correct’ interpretation of paragraph 15.5.2.[38]That argument was, as the claimant’s advisers must eventually have recognised, doomed to failure. The regulations produced by the CIK-FIA and the MSA were not statutory provisions subject to strict legal interpretation. They were formulated by those organisations for the governance of the sport of kart racing and bore the meaning that the organisations intended them to have. It is clear from what happened after the introduction of the guarding regulation set out at paragraph 15.5.2 that scrutineers at MSA-affiliated events interpreted the regulation as requiring only the provision of chain strips. The same view was taken by the national motor sports organisations in other countries. The first defendant – in common with every other manufacturer of racing karts – complied with that requirement. He cannot be said to have been in “breach” of the MSA regulations or in any way at fault for complying with the MSA’s own interpretation of them.[39]The evidence was that the primary purpose of the requirement for chain strips was to stop oil being sprayed up from the chains and, if a chain broke, to prevent the broken pieces from being thrown out and causing injury. In addition, the chain strips provided some protection against the entanglement of hair or loose clothing in the moving parts at the rear of the kart. However, that protection was very limited since the chain strips did not cover the sides or underside of the sprockets.[40]In 2005, the CIK-FIA and the MSA amended their guarding specifications so as to make compulsory the provision of a more comprehensive guard covering the transmission, chain (or belt), engine sprockets and rear axle sprockets/gears and providing protection over the top and both sides of the chains and sprockets extending to at least the lower plane of the rear axle. Those more stringent requirements resulted in the fitting by manufacturers of racing karts of the type of moulded plastic guards that the claimant had contended should have been fitted by the first defendant from 1997 onwards. Moulded guards of that type were by that time available for purchase in the UK. Such a guard is illustrated in the advertisement placed in a karting magazine in January 2005 by a firm called Kart Smart: see TB1/160.[41]The MSA regulations governing the guarding of moving parts have been revised and strengthened since 2005. Even now, however, they do not require the extent of guarding which is generally recognised as being appropriate for commercial karts. In particular, there is still no requirement for the rear axle of a racing kart to be guarded.

COMMERCIAL KARTS

[42]Commercial karts are generally used by members of the public who attend a karting centre for the purpose of leisure and entertainment and may have had no previous experience of driving a kart. Commercial karts are designed to withstand daily use and to be economic to run and maintain. They have a similar frame to that of a racing kart but generally have a more robust and heavier construction. They are usually fitted with single four-stroke engines and are often speed-controlled so are not capable of reaching the high speeds attained by racing karts. Karting centres range from those at fairgrounds, where the karts are restricted to slow speeds, to those which run competitive events for corporate clients, where the speeds will be higher.[43]The MSA regulations do not apply to commercial karts and the MSA has no involvement with the commercial karting sector. The Health and Safety Executive (HSE) produces a number of publications relating to karts and their commercial use. One of those publications, entitled “Go-Karts – Guidance on Safe Operation and Use”, published in 2000, gives guidance on, inter alia, the design, manufacture and supply of karts. The publication makes clear that the guidance does not apply to karts used in competitive motor sports events regulated by a recognised motor sport governing body such as the MSA. The guidance advises designers and manufacturers of commercial karts that all dangerous moving parts and hot surfaces should be guarded to the standards contained in the relevant British Standards to prevent direct user contact or entanglement of body parts, hair or loose clothing. It advises that this will mean that guards have to be provided for the drive-shafts, disk brakes, engine cooling fan, transmission gear and hot exhaust parts. Photograph 10 at TB6/32 shows a typical commercial kart with a “skirt type” guard fitted round the perimeter of the kart and covering the sprockets, the chains, the brake unit and the rear axle.[44]It can be seen that the guard shown in photograph 10 at TB6/32 affords a considerable amount of protection against the risk of loose clothing or some part of the driver’s body coming into contact with the moving parts behind the driver’s seat. It does not, however, entirely eliminate the risk since it would still be possible for loose clothing to become entangled with the rear wheels or the underside of the moving rear axle of the kart.[45]In addition to the guarding of karts, commercial karting centres will usually require customers to wear protective overalls and helmets and will issue safety instructions, including instructions about the removal of loose clothing.

FORMER RACING KARTS

[46]I have mentioned previously that racing karts whose condition has deteriorated to an extent that makes them unsuitable for high level competition are often purchased by individuals for racing at a lower level or for non-competitive recreational purposes. Whilst the karts are being used for MSA-affiliated racing, they will have to meet the current MSA specifications, including the specification for guarding of the moving parts. Once they cease to be used for that purpose, they are no longer subject to MSA regulations. They will not have been designed or manufactured for the purpose of recreational use, with appropriate guarding, but may nevertheless be used for recreational purposes without all the other safeguards which are in place at MSA-affiliated events. This may pose a particular problem where the kart in question was manufactured for racing at a time when the requirements for fitting guards were significantly less stringent than they later became.[47]The accident kart was an example of such a kart. At some time in its life – probably before 2005, since it had not been adapted to comply with the 2005 MSA specifications – the accident kart must have ceased to be used for MSA-affiliated racing and have begun to be used for more informal competition and/or recreational purposes. That would have been well before it was sold to Mr Shaw and Mr Jackson. Yet its state of guarding remained the same. There was no regulation requiring it to be changed. The regime in place for regulating karts used in commercial centres does not apply to karts which are in private hands and used for private leisure purposes. Moreover, there appears to be no official guidance or advice for individuals who might purchase former racing karts as to the adequacy of the guarding of racing karts or the need to change it. In short, there is a gap in the regulatory system into which karts such as the accident kart fall.

THE RISK OF ENTANGLEMENT

[48]I heard some evidence about previous accidents involving entanglement of hair or clothes in the moving parts of karts. An American study of kart-related injuries and deaths to children reported in September 2000 cited four such accidents throughout the US over the previous 10 years. Three of those occurred whilst using so-called “fun-karts”. In the report of the fourth accident, the type of kart was not specified but it was said to have been fitted with guards and a roll bar. In the late 1990s, again in the US, karts were recalled by six manufacturers because of accidents caused by entanglement of hair or clothes in the rear axle. It is clear from the relevant documents that the karts involved had been sold to the public as “toys”, rather than for serious competitive or other purposes.[49]My attention was also drawn to 12 other reported entanglement accidents which had occurred all over the world between 1996 and 2010; five of those accidents had occurred after the claimant’s accident. It seems likely that all the accidents occurred at commercial karting centres.[50]Of the lay witnesses who gave evidence at trial, the first defendant’s evidence was that he had never previously been aware of a karting accident caused by entanglement during his 38 years of involvement with karting. Mr Timothy Gillard, who had a similar period of involvement in the sport and is also a manufacturer of racing karts, was aware of only one entanglement accident which he had read about in the general press. Mr Michael Stuart Smith is a manufacturer of both racing and commercial karts. He was aware of three entanglement accidents, all of which occurred at commercial karting centres. Two of those accidents involved commercial karts which he had manufactured and which had been fitted with the usual comprehensive “skirt-type” guard. Mr Smith emphasised that, even with a “skirt-type” guard in place, there was still the potential for loose hair or clothing to become caught by the underside of the rear axle or wheels.[51]The evidence suggested that there have been relatively few serious entanglement accidents although the incidence appears to have increased in recent years, no doubt because of the growth in popularity of karting. When the risk does materialise, however, the results - as in the present case - can be catastrophic. THE EVIDENCE RELATING TO THE SECOND DEFENDANT The witnesses

THE EVIDENCE RELATING TO THE SECOND DEFENDANT

[52]The evidence relating to the involvement of the second defendant came from Mr Austin Ramsden (Managing Director of the second defendant), Mr Jackson (who gave evidence on the claimant’s behalf) and the third defendant. The second defendant had disclosed a witness statement from Mr Shaw but he was not called to give oral evidence.

The second defendant’s business

[53]The evidence was that, in 2007, Mr Jackson was working as a motor mechanic in his own vehicle repair business. Mr Shaw, who was a car dealer, was a customer of his. The two of them discussed the possibility of setting up a commercial indoor karting centre. Their search for a suitable site led them to some former mill premises at Guiseley which were owned by Mr Ramsden. In late 2007, the three men held discussions and agreed to go ahead with establishing a karting centre. Neither Mr Jackson nor Mr Ramsden had had any previous experience of karting. Together with Mr Shaw, they visited a number of other commercial karting centres in order to find out more about the commercial karting business. Meanwhile, they put in train the necessary planning and other formalities and began to clear out the Guiseley premises preparatory to designing and laying out a karting track and other facilities for their customers.[54]In early 2008, the karting track was laid out and the second defendant purchased a fleet of commercial karts manufactured by a firm named Sodi. The karts resembled, but were not identical to, the kart illustrated on the front page of the Sodi user maintenance guide (the “Sodi manual”) at TB4/2. They were fitted with a “skirt-type” guard enclosing the moving parts, as shown in the illustration.[55]The second defendant had previously been registered under a different name which was changed to Chequered Flag Karting Limited on 29 January 2008. Mr Ramsden had been a director of the original company and remained a director of the second defendant. On 28 March 2008, Mr Shaw and Mr Jackson joined him as directors of the second defendant, holding 20% of the shares each, with the remaining 60% being owned by Mr Ramsden. The second defendant opened for business on 30 April 2008. Mr Jackson assumed responsibility for maintenance of the karting track and the karts, whilst Mr Shaw had primary responsibility for ‘front of house’, which included giving safety briefings to customers before they drove the karts. The contents of the Sodi manual were used as a basis for the safety briefings.[56]In 2008, the manual referred to would have been an earlier edition than the version at TB4/2 (which is dated September 2009) but it is not suggested that the contents were materially different. The manual referred on a number of occasions to the risk of entanglement. At TB4/7, it warned:
“Long hair sticking out of the helmet and (or) loose clothes expose the driver to a risk of serious or even fatal injuries, by winding around rotating parts of the go-kart”
The same warning was repeated twice on the following page (TB4/8), together with further advice to:
“Stop immediately all drivers who despite the safety instructions, have had long hair sticking out of the helmet, or loose clothes”
It is to be noted that these warnings were still considered necessary despite the extent of guarding in place on the Sodi karts.[57]The second defendant’s karting centre has operated continuously since it opened in 2008. The evidence was that it continues to use the original fleet of Sodi karts and has not sold any of the original karts or purchased any further karts. It is not in the business of buying, selling or exchanging racing karts for use in its business or for any other purpose.

The acquisition of the accident kart

[58]Mr Jackson’s evidence was that, at some time whilst the Guiseley premises were being prepared for the karting operation, but before he and Mr Shaw became directors of the second defendant, Mr Shaw had mentioned to him that he knew of someone who had a kart for sale. He and Mr Shaw went to see the kart (the accident kart) and purchased it. He paid about £750 in cash for the kart and Mr Shaw later repaid his half share. Mr Jackson’s evidence was that he and Mr Shaw had bought the kart with the sole intention of using it for the purpose of designing the indoor karting track at the Guiseley premises. Mr Jackson said that, from the time of its purchase, the kart was kept at those premises.[59]Mr Jackson said that, by the time the accident kart was purchased, he was aware of the difference between racing and commercial karts. He knew that the kart was a racing kart and unsuitable for use in a commercial karting centre. Neither he nor Mr Shaw had intended that the kart should be used by customers of their new business. He said that, although the kart was a racing kart, it was old and was not fast. It had been cheap and he had judged that he and Mr Shaw would not lose money by buying it. He had thought that, when they no longer needed it for the purpose of the business, they could sell it or use it for display purposes. He said that the two of them also owned another old kart which they used for designing the layout of the track but I heard no details about the purchase of that second kart.[60]It was the evidence of both Mr Ramsden and Mr Jackson that, when Mr Jackson and Mr Shaw became directors of the second defendant, they did not seek any re-imbursement of the cost of the kart despite the fact that they had, according to Mr Jackson, purchased it solely for the purposes of the second defendant’s business.[61]Mr Ramsden’s evidence was that he received the claimant’s solicitors’ pre-action protocol letter in November 2010. It alleged that the second defendant had supplied the accident kart to the third defendant. He was puzzled at this allegation and had checked the second defendant’s records, which contained no entry suggesting that the second defendant had supplied a kart to the third defendant. He asked Mr Shaw whether he knew anything about such a transaction. He said that Mr Shaw had told him that he and Mr Jackson had bought the kart in question long before the second defendant came into existence. They had bought it as a “boy’s toy”, intending to race it at informal non MSA-affiliated events which were regularly held at a local airfield. In the event, they had not used it for that purpose.[62]Mr Jackson denied that it had ever been his or Mr Shaw’s intention to race the kart. His evidence was that it would not have been possible for them to do so at weekends, when the relevant events were held, because of the demands of the new karting business.

Use of the accident kart at the second defendant’s premises

[63]In his witness statement, Mr Jackson described using the accident kart, together with the other kart owned by Mr Shaw and himself, “a few times” in the old mill building at the Guiseley premises, in order to work out how the karting track should be configured. His evidence was that this was in early 2008. He said that, after a few occasions, he and Mr Shaw had realised that the kart was too fast for the task. He said that one of the Sodi karts had arrived by that time, so they used the Sodi kart for the purpose instead. In oral evidence, Mr Jackson said that the accident kart had not been too fast for Mr Shaw and himself; he commented that it had been “fine” as far as he was concerned. However, it had been too fast for “others who might try to use it”. I did not understand that comment or who those “others” might have been.[64]Mr Ramsden’s evidence was that he had first become aware of the accident kart when Mr Jackson and Mr Shaw brought it to the Guiseley premises. He denied that they had previously stored it at the premises. He said that, at that stage, the original floor of the old mill building was still in place. Mr Ramsden recalled Mr Jackson driving the kart which was, he said, “completely uncontrollable”. He said that, as soon as Mr Jackson attempted to drive the kart, the wheels started to spin round and it went out of control. Mr Ramsden attributed this to a combination of factors, in particular the fact that the kart was “obviously very powerful” and the floor was smooth and slippery. He observed that “it rapidly became clear that a racing kart should not be used anywhere near those premises”. He said that it was also clear that the floor surface was unsuitable for karting and would have to be changed. A new floor was subsequently laid. According to Mr Ramsden, the accident kart was never used at the premises again.[65]Mr Ramsden did not accept that, on the occasion he had described, the kart had been used in connection with the design of the track. He said that the incident had occurred a long time before the track was laid. Before that was done, the existing floor had to be dug up and a new floor installed. In any event, the designs for the layout of the track were initially drawn on paper and then, when the new floor was complete, the proposed layout was marked out on the ground. At that stage, the second defendant had borrowed a Sodi kart from a local dealer in order to test the proposed layout before the track was laid out permanently.[66]It was common ground that, shortly before the opening of the second defendant’s karting business, the accident kart was placed on the roof of the reception area and decorated with lights in order to form part of a display. A photograph of that display featured on the second defendant’s web site.

Transfer of the kart to the ownership of the third defendant

[67]The third defendant’s evidence was that, having seen the kart on display at the second defendant’s premises, he became interested in acquiring it. At that time, he owned two karts which he used for purely recreational purposes. One of the karts had a two-stroke engine and was too powerful and fast for him; he also suspected that it was going to be too expensive for him to maintain. His second kart was a four-stroke Honda Pro Kart identical to the one on display at the second defendant’s premises and would be more evenly matched with it than with his two-stroke kart. He thought that the fact that the two karts were identical would mean that he could save money on spare parts.[68]The third defendant said that he told Mr Shaw his position and explained that his two-stroke kart was too fast for his purposes. He discussed with Mr Shaw the possibility of exchanging karts. The kart on display seemed to him to be in a good condition. Mr Shaw confirmed that that was so and told the third defendant that the kart had been serviced and that he had replaced any parts that needed it. He did not specify which parts had been replaced. The third defendant had brought his two-stroke kart into the second defendant’s premises for Mr Shaw to see and the exchange was agreed. The third defendant said that he had believed that his kart was worth more than the kart he would be acquiring in the exchange but nevertheless he agreed to do a “straight swap” of the karts. It is common ground that Mr Shaw did not alert the third defendant to the absence of guarding of the moving parts of the kart.[69]Mr Jackson’s evidence was that he was not present during the discussions between Mr Shaw and the third defendant. Mr Shaw had told him about the proposed exchange and had asked him if he was happy about it. Mr Jackson had agreed that it should go ahead. He said that, at that time, Mr Shaw’s son was showing some potential at karting and Mr Jackson and Mr Shaw had intended to rebuild the kart acquired as a result of the exchange for him to use for racing. Mr Jackson’s evidence was that Mr Ramsden had not been involved in the decision to exchange karts with the third defendant, since the accident kart had belonged to Mr Shaw and himself, not to Mr Ramsden.[70]Mr Ramsden confirmed that he had played no part in the exchange of karts with the third defendant and had not been consulted about the exchange before it took place. He said that, since the accident kart was not part of the stock owned by the second defendant, he would not have expected to be consulted about the transaction. The second defendant’s accounts, which have been disclosed, contain no reference to the purchase or disposal by exchange of the accident kart. The first time Mr Ramsden became aware of the exchange of karts was when he noticed that the accident kart been removed from display. His recollection was that this had been some time in June 2008, quite shortly after the karting centre opened for business.[71]The third defendant’s evidence was that, during his discussions with Mr Shaw, he did not really think about who owned the accident kart; he had just assumed that the kart belonged to the second defendant and Mr Shaw had not said anything to suggest otherwise. He did not suggest that the question of who owned the accident kart was of any significance to his decision to agree to the exchange of karts. At trial, his position was that he took a neutral position as to whether in fact and in law it was the second defendant or some other person(s) who had supplied the accident kart to him.

Events after the transfer of ownership of the accident kart to the third defendant

[72]After the exchange of karts, the kart which had previously belonged to the third defendant was stored in a garage at the second defendant’s premises. There was no evidence that it was used there.[73]Mr Ramsden’s evidence was that, initially, the karting centre was not as successful as had been expected. As a result, by October 2008, it was decided that the business could not continue to employ Mr Jackson. Mr Jackson was informed that his employment was to be terminated, severance terms were agreed with him and, on 14 October 2008, he resigned as a director of the second defendant.[74]Perhaps not surprisingly, Mr Jackson was somewhat bitter about the decision to terminate his employment. At some time in October 2008, he went to the second defendant’s premises to collect his personal belongings. Mr Ramsden’s evidence was that he had seen Mr Jackson load the kart which had been exchanged for the accident kart into the back of his van and take it away, together with some tools belonging to the second defendant. He said that he and Mr Shaw had discussed what he had seen. Mr Shaw had told him that he was not going to pursue Mr Jackson for his share in the kart which Mr Jackson had removed. Mr Ramsden had made a similar decision in relation to the tools belonging to the second defendant.[75]In evidence, Mr Jackson denied that he had removed from the second defendant’s premises either the kart belonging to Mr Shaw and himself or any tools belonging to the second defendant. He said that, on the contrary, he had left a lot of his own belongings there but had decided not to seek to claim them or his half share in the kart. He said that he had lost about £10,000 as a result of his involvement with the second defendant so that the loss of his share in the kart was “neither here nor there”.

Findings of fact

[76]I found Mr Ramsden an impressive witness who had a good knowledge and recollection of the relevant events. I am satisfied that he was doing his best to give an accurate and honest account of those events and I regard his evidence as reliable. Mr Jackson was less impressive. I had the feeling that he was at times motivated more by a desire to exculpate himself than to give an accurate account of events. Where there was a dispute in the evidence of the two men, I unhesitatingly prefer that of Mr Ramsden.[77]The claimant accepted, as was inevitable given the evidence of Mr Jackson, that the accident kart had been purchased by Mr Jackson and Mr Shaw in their personal capacities before they became directors of the second defendant. It was further accepted that the second defendant did not reimburse Mr Jackson and Mr Shaw for the purchase.[78]I do not accept Mr Jackson’s evidence that he and Mr Shaw bought the accident kart with the specific intention of using it for the purpose of planning the layout of the indoor karting track, i.e. for the second defendant’s business. The suggestion is intrinsically unlikely. To purchase a kart for that specific purpose would have been an unnecessarily expensive way of proceeding. A former racing kart would not in any event have been appropriate for the purpose. The obvious solution would have been to borrow a commercial kart of the type which their future customers would be driving. According to Mr Ramsden, whose evidence on this point was not challenged, that was what was eventually done. I note also that Mr Shaw and Mr Jackson also owned another kart, presumably purchased on a separate occasion from the accident kart. There was no suggestion that their second kart had also been purchased specifically for the purpose of the second defendant’s business, although Mr Jackson’s evidence was that it had been used at the second defendant’s premises. To buy two karts for the purpose of planning the layout of the karting track would have been an extraordinary extravagance.[79]I accept Mr Ramsden’s evidence that there was an incident, which occurred well before work on the karting track began, when Mr Jackson (and possibly Mr Shaw as well) drove the accident kart at the Guiseley premises. I find that the primary purpose was to try out the karts in the old mill building, rather than to carry out any serious work of planning the karting track. I accept Mr Ramsden’s evidence about the difficulties in controlling the kart experienced on that occasion. I consider that Mr Jackson was deliberately minimising those difficulties. I am satisfied that, because of them, the accident kart was driven at the Guiseley premises on only one occasion, not on a few occasions, as Mr Jackson claimed.[80]I regard it as probable that Mr Jackson and Mr Shaw purchased the accident kart with a view to competing in informal kart racing events, but that, for some reason (possibly lack of time), they did not pursue this intention. My view about this derives support from Mr Jackson’s evidence that it was their intention that the kart which they acquired by the exchange with the third defendant should also be used for racing events, albeit by Mr Shaw’s son rather than by Mr Jackson and Mr Shaw themselves.[81]I accept Mr Ramsden’s evidence that, when Mr Jackson collected his belongings from the second defendant’s premises in October 2008, he also removed the kart that he and Mr Shaw had acquired by means of the exchange of karts. I am satisfied that he took it because of his bitterness towards Mr Shaw and as some recompense for the money he believed that he had lost as a result of his association with the second defendant’s karting business. The parties’ cases The claimant’s case

The parties’ cases

[82]By the stage of submissions, the claimant’s case against the second defendant was put on three alternative bases.[83]It was contended first that the accident kart became an asset of the second defendant’s business and that it was the second defendant – not Mr Jackson and Mr Shaw in their personal capacities – who was responsible for supplying it to the third defendant. As the supplier of the kart to the third defendant, the second defendant was under a duty to ensure that the kart was safe and that it did not contain defects which would put future users at risk of injury. The claimant argued that the second defendant was in breach of that duty by supplying a kart which was dangerous and defective in that it was not fitted with a full transmission guard over its rear moving parts or, at the least, a moulded guard which would have complied with the specifications introduced by the MSA in 2005.[84]Second (and on the basis that I were to conclude that the accident kart never became an asset of the second defendant’s business and that it was Mr Jackson and Mr Shaw in their personal capacities – not the second defendant – who were responsible for supplying the kart to the third defendant), it was contended that the second defendant was vicariously liable for the breach by Mr Shaw and/or Mr Jackson of their duty of care in supplying a kart with unguarded moving parts. Third, it was alleged that the second defendant was directly liable for allowing a kart with unguarded moving parts to be supplied.[85]In her Particulars of Claim, the claimant had also alleged that the second defendant should have warned the third defendant about the risks associated with the lack of guarding of the moving parts of the accident kart. By the end of the case, however, the claimant no longer relied on that allegation, no doubt as a result of a recognition on the part of her advisers that it was wholly inconsistent with their contention made against the third defendant that his experience of machinery should have made the risk entirely obvious to him.[86]In opening the case for the claimant, Dr Braslavsky also submitted that the second defendant had been in breach of the 1992 Regulations: see paragraph 29 of this judgment. In the event, that submission was not pursued since the 1992 Regulations (and their successor, the 2008 Regulations) do not apply to a supplier of second hand machinery, only to the manufacturers/producers of such machinery.

The second defendant’s case

[87]The second defendant’s case was that it did not own the accident kart, had never acquired it as an asset and was not a party to the supply of the kart to the third defendant. In any event, the second defendant owed no duty of care to the claimant and, even if it did, there could have been no breach of such a duty. Vicarious liability for any breach of duty on the part of Mr Jackson and/or Mr Shaw was denied. Discussion and conclusions Who supplied the accident kart to the third defendant?[88]The first issue to be determined is whether the second defendant supplied the accident kart to the third defendant.[89]I do not accept the contention made on behalf of the claimant that, despite having been purchased by Mr Jackson and Mr Shaw, the accident kart at some point became an asset of the second defendant. There is no evidence to support that proposition. I have found that the purchase of the accident kart by Mr Jackson and Mr Shaw was unconnected with the second defendant’s business. The mere fact that the accident kart was driven once and then displayed for a short time at the second defendant’s premises and may have been assumed by visitors to belong to the second defendant does not mean that it did in fact become an asset of the second defendant’s business.[90]It certainly does not appear to have been the perception of Mr Jackson or Mr Shaw that the accident kart had become the second defendant’s asset. They saw no reason to involve Mr Ramsden in the exchange of the accident kart and appear to have believed that the kart which they acquired as a result of the exchange was their joint property, not that of the second defendant. Mr Ramsden shared that view. Had he regarded the accident kart, and/or the kart which replaced it, as a company asset I have no doubt that he would have ensured that their disposal and/or acquisition were properly recorded in the second defendant’s accounts.[91]I am satisfied that ownership of the accident kart remained with Mr Shaw and Mr Jackson at all times between its purchase and the exchange with the third defendant. There is no evidence of a transfer of assets to the second defendant and positive evidence that no such transfer occurred. I find that the agreement to exchange was made by Mr Shaw and Mr Jackson in their personal capacities and not by the second defendant. The fact that the claimant assumed at the time of the exchange that he was dealing with the second defendant does not affect the position. That being the case there was no contract of supply as between the second defendant and the third defendant and no duty of care arising from such a contract.

Vicarious liability for the negligence of Mr Shaw and Mr Jackson

[92]The contention that the second defendant was vicariously liable for the breach of duty of Mr Shaw and Mr Jackson involves consideration of three separate issues: i. Did they owe a duty of care to the claimant as a future user of the accident kart? If so what was its scope? ii. If so, were they in breach of that duty? iii. If so, was the second defendant vicariously liable for their breach?

The existence and scope of a duty of care

[93]The claimant alleges that the suppliers of the accident kart owed a duty to the third defendant, as the purchaser of the kart, and also to the claimant, as a future user, to carry out a risk assessment which would have led to the conclusion that the unguarded moving parts of the kart gave rise to a foreseeable risk of injury, and thereafter to fit the kart with, preferably, a guard enclosing the whole transmission or, failing that, at least with a moulded guard which would have met the specifications set out in the 2005 MSA regulations.[94]Dr Braslavsky submitted that the imposition of a duty of care in these circumstances would meet the three-stage test set out by Lord Bridge in Caparo Industries Plc v Dickman and others [1990] 2 AC 605. In that case Lord Bridge observed that, whilst foreseeability of damage is a necessary prerequisite for the existence of a duty of care, the existence of such a duty cannot be derived from foreseeability alone. He went on at 617-618:
“… What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist between the party owing the duty and the party to whom it is owed a relationship characterised by the law as one of “proximity” or “neighbourhood” and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope upon the one party for the benefit of the other.”
[95]Dr Bravlavsky argued that, at the time of the exchange of karts, Mr Shaw and Mr Jackson were well aware of the difference between karts manufactured for racing and commercial karts. They would also have been aware of the nature and extent of the guards fitted to the Sodi karts used in the second defendant’s business. They should have contrasted the guards fitted to those karts with the state of the accident kart, where the only form of guard was the chain strips. Dr Braslavsky referred to the prominent warnings about the risks of entanglement contained in the Sodi manual. He suggested that, since Mr Shaw had been responsible for the safety briefings given to customers at the second defendant’s premises, he would have had particular reason to be aware of safety issues. Mr Shaw and Mr Jackson knew that the third defendant wanted the accident kart for unregulated recreational use with friends and should therefore have foreseen that the unguarded moving parts would present an obvious risk of entanglement to any person who used the kart.[96]As to the other requirements for the existence of a duty of care, Dr Braslavsky submitted that there was sufficient ‘proximity’ between Mr Shaw and Mr Jackson, as suppliers of the accident kart, and the claimant, as a future user, to give rise to such a duty and that it was fair, just and reasonable that the law should impose such a duty on them.[97]Mr Shaw and Mr Jackson were private individuals. They were not involved in the regular purchase and sale of karts for gain. The transaction with the third defendant was casual in nature and no money changed hands. They were supplying to another private individual a kart which had been manufactured many years previously. I accept that, as a result of their association with the karting centre, they would have been aware of the risk of entanglement of clothing and hair in the moving parts of the karts used in a commercial setting and of the need to protect inexperienced customers from harm. However, they had no other specialist knowledge about the risk of entanglement, about accidents involving entanglement or about the requirements for guarding for racing karts. It was conceded on behalf of the claimant that Mr Shaw and Mr Jackson would not have been familiar with the provisions of the 2005 MSA regulations and of the requirements for guarding contained therein. They had purchased the accident kart with the chain strips in place and no other form of guarding and were unaware that, had the kart been intended for MSA-regulated events, it would not have complied with those requirements.[98]There is no evidence that the unguarded moving parts of the accident kart had presented any problem to Mr Jackson or Mr Shaw or that they had received any warning about the risk presented by the moving parts when they purchased the kart. They are unlikely to have been wearing loose clothing when they drove the kart and there would have been no risk of their hair becoming entangled in its moving parts. I consider it most unlikely that it would have occurred to them that those moving parts would present such a risk to the third defendant, especially since the third defendant obviously had some knowledge about karts and had made it clear that he already owned a kart that was identical to the accident kart. At the time that the exchange was made, it is highly improbable that Mr Shaw and Mr Jackson would have been considering the question of who else might use the kart in the future and whether the unguarded moving parts might present a risk of injury to them.[99]The supply of second hand karts such as the accident kart is not covered by the safety requirements contained in the 1992 and 2008 regulations. There are no regulatory provisions governing the sale of second hand racing karts by individuals. Nor is there any published guidance or advice on the topic. The effect of the current legislative framework is to impose obligations in relation to the safety of machinery on designers, manufacturers and producers of machinery, not on suppliers of second hand machinery.[100]The imposition of a common law duty of care on a supplier of second hand machinery (in particular a private individual) to research any possible risks associated with the relevant machinery and then to take all necessary steps to modify or adapt the machinery to reduce or remove those risks before supplying it to a third party would be very burdensome indeed and would have far reaching effects on many everyday transactions. The supplier would have to consider a number of factors that might give rise to risk. These factors would include the circumstances in which the machinery might be used in the future and by what types of person. The question would also arise as to how far the supplier would have to go to deal with the risk. In this case, the claimant contended that either a “skirt-type” guard of the type usually fitted to commercial karts or a moulded guard which would have been compliant with the 2005 MSA regulations should have been fitted to the accident kart. In the absence of any regulations, guidance or advice, how would a private individual decide which of those standards he/she should meet? The answer might of course differ according to the use to which the kart was going to be put. For example, it seems unlikely that the “skirt-type” guard used on commercial karts would have been suitable for the uneven tracks on which the third defendant used his karts.[101]If the claimant’s submissions are correct, the duty would not be limited to the third party to whom ownership of the machinery was transferred, but would also be owed to any person who might use the machinery in the future. Thus (assuming that the accident kart was not subsequently fitted with a guard) Mr Jackson and Mr Shaw would owe a duty of care to all users of it in perpetuity, regardless of how many hands it had passed through in the meantime and despite the fact that they had had no relationship at all with that user and would have no control at all over the way in which the kart might be used or who would use it.[102]I am satisfied that no duty of care arose in this case, whether owed to the third defendant or to the claimant. I do not consider that, in the particular circumstances of this case, the risks associated with the lack of guarding of the accident kart ought reasonably to have been foreseen by Mr Shaw and Mr Jackson. In addition, whilst the relationship between them and the third defendant may have been sufficiently proximate to give rise to a duty of care if the other necessary ingredients had been present, that is not the case with the claimant. She was member of an indefinite group of an indeterminate number, all remote from Mr Shaw and Mr Jackson.[103]Nor do I consider that it would be fair, just or reasonable to impose such a duty upon Mr Shaw and Mr Jackson. The position is that there are no regulatory provisions governing the purchase, sale or use of former racing karts for recreational purposes. This may be a gap in the regulatory framework but it would not be fair, just or reasonable to attempt to bridge that gap by imposing a common law duty on individuals in circumstances such as these.

Breach of duty

[104]In the event that I had found that a duty of the nature alleged did exist, Mr Shaw and Mr Jackson would have been in breach of that duty. There would have been no difficulty in sourcing or fitting the requisite guard which would have been reasonably cheap. As it is, no question of breach arises.

Vicarious liability

[105]The claimant alleges that since, at the date of the exchange, Mr Shaw and Mr Jackson were directors and employees of the second defendant, the second defendant was vicariously liable for the alleged breach of duty of either or both of them. It is submitted that, in making the exchange of karts, Mr Shaw was acting in the course of his employment or, if he was not, that the acts/omissions relied on were so closely connected with his employment that vicarious liability arose. In the light of my previous findings, it is unnecessary for me to dwell on this issue in any great detail.[106]The test for vicarious liability was confirmed by the Court of Appeal in the case of Mattis v Pollock [2003] 1 WLR 2158. Giving the judgment of the Court,

Judge LJ (as he then was) at paragraph 19 formulated the question thus:

“.. was the [act or omission] “so closely connected” with what [the defendant] authorised or expected of [the wrongdoer] in the performance of his duties as doorman in his nightclub, that it would be fair and just to conclude that [the defendant] is vicariously liable for the damage [the claimant] sustained when [the wrongdoer] stabbed him.”
At paragraph 20, Judge LJ noted that the fact that an employee had been acting exclusively for his own benefit did not necessarily preclude a finding of vicarious liability.[107]The claimant relies in particular upon the fact that the exchange of karts took place at the second defendant’s premises where the accident kart was displayed. It was submitted that Mr Shaw’s employment with the second defendant gave him the opportunity to enter into the exchange with the third defendant who was a customer of the second defendant’s karting business.[108]The buying, selling and exchange of karts formed no part of that business. It is therefore difficult to see how the exchange of a kart owned by Mr Shaw and Mr Jackson negotiated by Mr Shaw in his personal capacity could possibly be regarded as having been conducted in the course of his employment. Nor does it seem to me that it can be said to have been “closely connected” with the work that he was authorised or expected to do. His main task was “meeting and greeting” customers at the karting centre, delivering safety briefings and generally ensuring the smooth running of the ‘front of house’ activities. It was never envisaged that the buying and selling or exchange of karts would be part of his duties. The place where the transaction took place was entirely fortuitous. Mr Shaw could have taken the kart to his home, advertised it and made the exchange there. I do not consider the factors relied on by the claimant are sufficient to establish the “close connection” with Mr Shaw’s authorised duties for the second defendant which would be required for a finding that the second defendant was vicariously liable for his actions. Nor does it seem to me fair or just that an employer such as the second defendant, which is not involved in buying, selling or exchanging, should be held vicariously liable for breaches of duty connected with any sale or exchange by its employees of their own property to third parties which happens to occur on its premises.[109]Had the issue arisen, I would not have found the second defendant vicariously liable for any breach of the duty on the part of either Mr Shaw or Mr Jackson.

The second defendant’s liability for allowing the sale to take place

[110]The allegation that the second defendant was nevertheless negligent in permitting the kart with unguarded moving parts to be supplied from its premises does not seem to me to add to the allegations with which I have already dealt and must fail for the same reasons. Causation[111]A further issue arose in relation to the second defendant. The claimant’s contention was that, if the accident kart had been fitted with a “skirt-type” guard, then the accident would have been prevented. It was further submitted that even if it had been fitted with the less comprehensive moulded guard required by the 2005 MSA regulations, the accident would still have been prevented.[112]I do not think that it was in dispute that, if a “skirt-type” guard had been fitted to the accident kart, the accident would not have happened. However, as I have indicated, it seems to me highly unlikely that the fitting of a “skirt-type” guard would have been acceptable to the third defendant. Therefore, it is necessary to consider what the position would have been had a moulded guard been fitted.

The expert witnesses

[113]Expert evidence was called on this and other issues. That evidence came from Mr Warren Lister who was instructed on behalf of the claimant; Mr Neil Arthur for the first defendant; and Mr Steven Rawden for the second defendant. All three experts are chartered engineers whose CVs suggest that they have considerable practical and forensic experience. They all provided Reports, together with supporting documents, in advance of the hearing and participated in a Joint Meeting which resulted in a Joint Statement.[114]I regret to say that Mr Lister’s evidence was not of the quality to be expected of an independent expert with a duty to assist the court. Cross-examination revealed a number of serious deficiencies in his Reports. For example, he had relied on the provisions of both the 1992 and 2009 Machinery Directives as against the first defendant, despite the fact that the accident kart was sold by the first defendant in 2008, well before the 2009 Machinery Directive came into force. He drew attention to the fact that the 2009 Machinery Directive excluded “motor vehicles exclusively intended for competition”, but suggested that the exclusion did not apply to the accident kart because it was foreseeable that, after its racing career, it would not be used for competition alone. He then quoted that part of the guidance on the interpretation of the 2009 Machinery Directive which appeared to support that view. However, he omitted the highly significant sentence which followed and which stated that the “main criterion” to be applied in order to determine whether a vehicle was intended exclusively for competition was whether it was designed (as the accident kart had been) according to technical specifications laid down by one of the officially recognised racing associations. He was unable to suggest any reason why he should have omitted that sentence. When dealing with the 1992 Machinery Directive, Mr Lister failed to mention the exclusion of “means of transport” into which the accident kart plainly fell. Again, Mr Lister was able to offer no explanation for that omission.[115]When discussing in his Report whether or not the chain drive fitted to the accident kart by the first defendant in 1997 complied with the guarding requirement contained in the MSA regulations then in force, Mr Lister referred to the requirement that “a guard above the transmission is compulsory”. He then went on to quote what he described as the “engineering definition” of the term “transmission”, but omitted to refer to the definition of “transmission” contained within the MSA regulations themselves. The latter definition was plainly the one which was relevant for the purpose of construing the MSA guarding regulation but it was considerably narrower than the “engineering definition” quoted by Mr Lister and therefore less helpful to his client. When asked about this, he responded that he did not think it was necessary to refer to the MSA definition and regarded his failure to do so as acceptable.[116]There were many other examples of the selective and partisan approach adopted by Mr Lister. However, I shall mention just two further instances of his unsatisfactory behaviour. He seems to have adopted the role of private investigator into the claimant’s case. At some stage, he telephoned a man called “Steve” at a commercial kart racing track in Yorkshire. Based on information he received from “Steve”, he suggested in his Report that the second defendant (or Mr Shaw) operated that karting track in addition to the Guiseley premises. He suggested that this would have given the second defendant “specific and detailed knowledge” about racing karts. The suggestion that either the second defendant or Mr Shaw operated a karting enterprise other than that at the Guiseley premises was denied by the second defendant and Mr Lister later withdrew it. It is difficult to see how Mr Lister can have believed that it was within his remit as an independent expert to seek, or to report without proper verification, what was subsequently shown to be groundless tittle-tattle.[117]By October 2010, the accident kart was in the possession of the claimant’s solicitors who had instructed Mr Lister. At this time, no letter before action had been sent to the first defendant. Mr Lister was fairly confident from the chassis number of the accident kart that the first defendant had manufactured it but wanted to make sure and to find out some other details about the condition in which the kart had been sold. Posing as an enthusiast who was intending to restore the kart to as-new condition, he emailed the first defendant, seeking the information he wanted and requesting a list of parts. That was an inappropriate action for an independent expert to take. When he was asked about the matter in oral evidence, Mr Lister claimed that he had done nothing inappropriate or misleading since he had in fact been considering having the kart restored to its as-new condition. This was a bizarre claim and one that I was entirely unable to accept.[118]I am afraid that I regarded Mr Lister’s evidence as unreliable in its entirety. It is a pity that the claimant’s advisers did not recognise its unreliability earlier since a good deal of time and expense in pursuing the case against the first defendant could thereby have been spared.[119]So far as the other two experts are concerned, I considered that, unlike their colleague, they were doing their best to assist the court and, where there was a difference of view between them and Mr Lister, I accepted their evidence.

The manner in which the entanglement occurred

[120]When the claimant’s companions went to assist her, they found that one end of her scarf was wrapped round the rear axle of the kart. The photographs taken by the police show its position round the axle when they arrived: TB2/218-223. All the experts agreed that the scarf was long enough for one end to reach down to and wrap directly round the rear axle. It is reasonably clear from the condition of the scarf that the end which became wrapped round the rear axle was the “north” end as shown on the diagram at TB6/16a.[121]Based on Mr Lister’s evidence, the claimant’s case is that it is probable that, before becoming wrapped round the axle, the scarf became “snagged” on a protruding object or edge, namely the damaged edge of the chain protector disc or a protruding bolt attaching it to the sprocket, i.e. in an area that would have been covered by a moulded guard. Mr Lister claimed that his thesis derived support from the pattern of holes in the fabric of the damaged scarf. He suggested that the holes formed a ring which mirrored the pattern of the bolts on the sprocket. He said that he could not think of anything else that would account for the pattern of holes.[122]Mr Arthur and Mr Rawden did not agree that any conclusions as to where the initial contact between the end of the scarf and the moving parts of the accident kart had occurred could be drawn from the damage to the scarf. Mr Arthur did not agree that the holes in the scarf formed a ring and said that, in any event, if the scarf had initially become caught on one or more of the bolts of the moving sprocket, one would expect the holes to be in a straight line, rather than a ring. His view was that the holes were in a random distribution and were likely to have been caused by the fibres of the fabric breaking under tension as the end of the scarf wound around the axle. He pointed out that there were holes at the other (“south”) end of the scarf from where Mr Lister’s “ring” of holes was situated. On any view, those holes could not have been caused by contact with a bolt or sprocket. That demonstrated that the holes referred to by Mr Lister might well have had a different cause.[123]Both the defendants’ experts acknowledged that it was possible that the scarf could have snagged on a bolt or bolts or the chain protector. However, they considered that, in that event, it is likely that the scarf would have come into contact with the in-running nip at the bottom of the sprocket, below the level of the guard. That was because the chain revolved anticlockwise and would have tended to push the scarf away from the upper part of the chain, drawing it in at the bottom. Mr Lister disagreed with this view.[124]I accept the evidence of Mr Arthur and Mr Rawden that the damage to the scarf is not helpful in determining the precise mechanism of the accident. The “ring” of holes to which Mr Lister referred was not evident to me and indeed it seemed to me that, as Mr Arthur had said, the holes were spread randomly. I was not impressed either by the suggestion made by Mr Lister that the way in which the scarf would have fallen or been blown made it more likely that it would have made initial contact with moving parts other than the rear axle. It is impossible to say how the scarf came to be loose, whether because of the effect of wind or turbulence or because the claimant herself rearranged it in some way. All that is known is that the scarf became wound round the rear axle. Anything else that might have occurred is pure speculation. There is insufficient evidence to cause me to conclude that it became snagged on some other moving part before the axle or that, if it did, the snagging occurred in such a position that it would have been prevented by the fitting of a moulded guard. THE THIRD DEFENDANT The evidence relating to the third defendant The witnesses

THE THIRD DEFENDANT

[125]In addition to those lay witnesses to whom I have already referred, the experts gave some evidence about the claimant’s scarf which, by the time of the trial, they had been able to examine.

Before the accident

[126]The third defendant was aged 28 years at the time of the claimant’s accident. He left school at the age of 16 and got a job as a labourer on a building site, where he learned the art of bricklaying. Thereafter, he attended evening classes in all aspects of building. He is now a qualified joiner, plasterer, electrician and plumber and works as a self-employed builder. He is accustomed to using various types of machinery (e.g. wood and metal working machines) in the course of his work. His evidence was that he is capable of carrying out fairly simple maintenance jobs on his work van but is not a skilled mechanic.[127]In his spare time, the third defendant enjoyed riding motorcycles, both recreationally and in competitions such as trials and motorcross events. He also owned at least one quad bike. However, he wanted to find an interest which he could share with his friends, most of whom did not have motorcycles. He and his friends had visited commercial karting centres in the past and enjoyed the experience. Some time in 2008, therefore, he purchased two karts from a friend. Those were the karts described at paragraph 67 of this judgment; one of them (the kart with the two-stroke engine) was later exchanged for the accident kart. The third defendant said that the other kart (the Honda Pro Kart with the four-stroke engine) had chain strips over the driven sprockets, but no additional form of guarding; he could not remember whether the two-stroke kart had any form of guarding. He did not receive any user manuals or other information when he bought the karts.[128]The third defendant’s evidence was that he had assumed that both the karts had been originally built for racing. At the time, he knew very little about organised racing save that there were strict rules about making adaptations to karts. He had never taken part in kart racing and did not intend to use his karts for any form of organised racing. His object was to have two machines on which he and his friends could have fun.[129]After buying the karts, the third defendant obtained permission to drive them around the private roads on a local estate where building was in progress. The third defendant’s evidence was that he had not driven either of the karts very often before the exchange of karts took place. When he did so, he would wear old work clothes. He would sometimes take a friend with him and they would have an impromptu race. However, the two karts were unevenly matched and the two-stroke kart was too powerful for him.[130]The third defendant believed that the exchange of karts took place in the late summer of 2008 although, as I have said, Mr Ramsden estimated the time as June 2008. On any view, however, the third defendant acquired the accident kart more than six months before the claimant’s accident. His evidence was that, during that period, he had driven the accident kart on only a few occasions, usually with a friend. He had become familiar with its controls and performance. He said that he never drove at more than about 30-35 m.p.h. He had carried out no repairs or alterations to the kart prior to the accident. The evidence about the claimant’s scarf The scarf

The evidence about the claimant’s scarf

[131]Following the accident, the police retained possession of the scarf which the claimant had been wearing at the time of her accident. It became available to the parties only just before the experts’ Joint Meeting which took place on 28 January 2013. The experts examined the scarf at that Joint Meeting and set out details of its dimensions in their Joint Statement.[132]The scarf was boldly patterned in a dark pink and black check and had originally been square in shape, each side measuring 105-107 cm (41.4”-42.2”), with tassels in each corner which were 8cm-9.5cm (20.29”-24.1”) long. The diagonals of the scarf (including the length of the two corner tassels) had originally measured somewhere between 171cm and 178 cm (67”-70”). The reason why the original measurements can only be estimated approximately is that, in the course of the accident, the scarf was pulled tightly across one of its diagonals. As a result it was stretched so that, at the time it was examined, it was approximately diamond-shaped. The longer (stretched) diagonal (including the length of the two corner tassels) measured 195cm (77”). The scarf (which I have examined) is made of heavy cotton material and is quite bulky.

The claimant’s photograph

[133]Whilst the claimant was at the third defendant’s house on the day of the accident, she was struck by the size of his wall-mounted flat screen television and took a photograph of it on her mobile phone. The photograph shows the claimant’s reflection in the dark television screen. Unfortunately, the image of her is very vague and dark and it is impossible to see exactly what she is wearing. During the trial, I was able to view a ‘jpeg’ copy of the photograph on a laptop. The strong impression I gained was that the scarf was not covering the area from the claimant’s bust to her waist, although it was not possible to detect whether it was being worn higher up on her chest. It is of course possible that the claimant was not wearing the scarf at all when she took the photograph, but put it on at some later stage before the accident happened.

The evidence of Mr Carrack, Mr Turner and Miss Lorryman

[134]Of those witnesses who were present at the time of the accident, neither Mr Carrack nor Mr Turner mentioned in their witnesses statements seeing the claimant’s scarf before the accident occurred. In her witness statement, Miss Lorryman said that she did not recall the claimant wearing a scarf and therefore assumed that the scarf “must have been tied and arranged quite neatly around her neck”.

The statements of the third defendant and Miss Jackson

[135]Miss Jackson gave a statement to the police on the day of the accident in which she referred to the claimant’s scarf as a “neckerchief”. The third defendant also gave a statement to the police that same day in which he said:
“If I would have seen Sophie wearing the scarf I would have taken the scarf off her but I didn’t see it.”
[136]When the claimant first consulted solicitors with a view to making a claim arising from her accident, it was not at first contemplated that the third defendant would be joined as a party to such a claim. On 3 December 2010, he provided a witness statement at the request of the claimant’s solicitor. In March 2011, he attended a meeting with the claimant’s solicitors and junior counsel (the latter attending by telephone). Before the meeting, the third defendant had been told that a claim might be made against him. He was concerned about his position and suggested that he should get his own legal representation. His evidence was that he had been assured that the question of a claim against him would be best discussed at a meeting with the claimant’s solicitor. At the meeting, the third defendant was told that he would be receiving a letter of claim alleging that the kart he had provided for the claimant’s use had been defective. He was however assured that this was merely a route to a claim against the second defendant, who would be liable to indemnify the third defendant in respect of any liability that might be found against him. The third defendant was asked to provide further details of the transaction with Mr Shaw and his insurance particulars and did so.[137]In August 2011, the claimant served Particulars of Claim which contained far more extensive allegations against the third defendant than had previously been suggested. Not surprisingly, he feels aggrieved about his dealings with the claimant’s legal representatives and the fact that he was dissuaded from obtaining his own legal advice at that stage. More significantly for the issues I have to decide, however, he makes the point that, during those dealings, no mention at all was made about any liability which the third defendant might have for failing to warn the claimant about what is now said to be the obvious danger of entanglement posed by her scarf.[138]In his witness statement of 3 December 2010, the third defendant said that he remembered that the claimant had been wearing “a small neck scarf, just a little triangle around the front of her neck”. He said that he had not seen anything hanging loose or down her back and was not sure how the scarf had been tied. His evidence was that, during his dealings with the claimant’s legal advisers, it was never suggested to him that his recollection was wrong and/or that she had been wearing the scarf in some other way.[139]Miss Jackson also gave a witness statement to the claimant’s solicitors dated 9 November 2010. In it, she said:
“[The claimant] was wearing a neck scarf which was a little triangle at the front of her neck … it was tied neatly in place and there was nothing hanging down the back but it was sitting on her collar bone and was a couple of inches in length.”
The contents of that witness statement were relied upon by the claimant until the opening day of the trial when Dr Braslavsky indicated that he would not be calling Miss Jackson. She gave evidence for the third defendant.[140]On 1 June 2012, the third defendant, who by then had solicitors acting for him, made a further witness statement, in which he said that the description of the claimant’s clothing contained in his previous statement had been taken from the photograph of her reflection in his television. (Bearing in mind what I have said about the quality of the claimant’s image in that photograph, I found that a surprising assertion.) He went on to say:
“I do not recall the scarf being loose or trailing down. I had suggested that one person take off a loose coat in case it got caught up. Had Sophie’s scarf seemed to be as loose I would have suggested she take it off. I remember at the time wondering how a scarf that small had been caught up in the mechanism as it did as the distance between her neck and the axle was quite big.”

The claimant’s evidence

[141]The claimant’s witness statement for these proceedings was dated 6 June 2012, more than three years after the accident. She has no memory of the circumstances of the accident and her recollection of the events on the car park immediately before the accident occurred seem to be somewhat patchy. In her witness statement, she referred to the photograph she had taken at the third defendant’s home and said that it showed her reflection and what she was wearing that day. Again, I find the reference to the photograph puzzling since the photograph I was shown does not show that level of detail. In oral evidence, she agreed that the reflection shown in the photograph was not clear enough for her to make out what she had been wearing and said that she had not used the photograph to ascertain what she had been wearing on the day of the accident.[142]The claimant then went on to describe her clothing (in particular the way she was wearing her scarf) in some detail. The witness statement suggested that her description was derived at least in part from what she had seen in the photograph. She said:
“I was wearing jeans, a V neck jumper and a black and pink scarf. My scarf was the size of a head scarf. It was in fashion then to wear these scarves in a certain way. The scarf was a square piece of material which was folded into a triangle. The large triangle would sit in front of the neck and the two ends were crossed behind the neck and pulled to the front. The ends would sit at about chest height on each side of the triangle piece of material. There was no material at the back of the scarf [sic] except the material tied closely around the neck.”
It is to be noted that the claimant’s witness statement was couched in terms of the fashion of the day and how the scarf “would” be worn; she did not assert that she actually remembered wearing the scarf in that way.[143]On the same day as the claimant’s witness statement was signed, the claimant responded to a Notice to Admit served by the third defendant. Her Responses contained a similar description of the arrangement of her scarf to that in her witness statement. They also contained an admission that the manner in which she was wearing her scarf at the material time was such that it did not pose an obvious hazard.

Mr Rawden’s photographs

[144]Mr Rawden, the second defendant’s expert, produced his Report in October 2012. Having read the claimant’s description of the arrangement of her scarf on the day of the accident, he produced a number of photographs from the internet of a model wearing a scarf in what he believed was a similar style to that described: see TB6/84. In those photographs, the scarf covered the whole of the model’s top half and extended down almost to her waist. Mr Rawden observed that, if the claimant was wearing her scarf at the time she took the photograph at the third defendant’s home, she could not have been wearing it in the style shown on TB6/84.

The claimant’s photographs

[145]On 28 March 2013, after the scarf had been recovered from the police, a series of photographs was taken of the claimant’s solicitor wearing it: see TB1/126a-b. The claimant’s evidence was that the scarf had been arranged under her direction so as to resemble as closely as possible the way she recollected wearing the scarf on the day of her accident. The style was similar (although not identical) to that shown on Mr Rawden’s photograph. The scarf was folded once along the diagonal and the middle point of the resultant triangle lay over the wearer’s chest, extending down over the chest almost as far as waist level. The other two ends of the triangle were crossed over behind the wearer’s neck and passed over her shoulders, so that they hung down on either side of her chest. The long tassels extending down from the corners of the scarf reached to her waist.

The oral evidence

[146]In her oral evidence the claimant said that, although her memories of the events of the day were “very vague”, she did remember “to some extent” how she had arranged her scarf. She confirmed that the style shown in Mr Rawden’s photographs was “very similar” to the way she was wearing it. She said that the photograph at TB1/126a best illustrated the way she had arranged her scarf on the day of the accident. She was adamant that Miss Jackson’s description of the way she was wearing her scarf was not right.[147]Miss Jackson’s evidence was that she remembered the arrangement of the claimant’s scarf as being much smaller than was shown in the photographs at TB1/126a or TB6/84. She believed that the claimant was mistaken in her recollection and that she had folded and re-folded the scarf to form a much smaller triangle than that depicted in the photographs. She believed that the lowest part of the scarf had been only a few inches below the claimant’s neck.[148]The third defendant’s oral evidence about the claimant’s scarf was not consistent. Initially, he said that he did not notice that she was wearing a scarf when he was telling her about the controls of the kart. Shortly afterwards, he said that he seemed to remember her scarf coming to a triangular point to a level similar to that between the second and third button of the shirt he was wearing when giving evidence. Later he said that he had noticed, both when the claimant was at his house and at the car park, that she was wearing a scarf and accepted that she had been wearing it in a similar way to that shown in the photograph of her solicitor at TB1/126a although he said it had appeared rather smaller than in the photograph and he seemed to remember it coming to a triangular point higher up than shown there. He said that he did not remember the ends of her scarf hanging down her front as in the photograph.

Findings of fact

[149]I am confident that the claimant has given what she believed to be an accurate description of the way in which she was wearing her scarf at the time of the accident. However, I note that the first description she gave was three years after the accident in June 2012. At that time, she was suggesting that her scarf extended down to about chest height. Since then, following the production of Mr Rawden’s photographs and those taken of her instructing solicitor wearing the scarf, her evidence has developed to the point where the scarf is said to have extended down to about waist level. In her evidence, she conceded that her memory was vague and that she could remember how she was wearing her scarf only “to some extent”. She did not appear to remember when she put the scarf on, e.g. whether before or after she took the photograph at the third defendant’s house. Whilst I do not doubt that she now believes that she was wearing the scarf as shown in TB1/126a, I consider that her evidence is the product of a great deal of ex post facto reconstruction of the circumstances of her accident, rather than any actual memory of the day in question. I do not therefore believe that any reliance can be placed on her evidence about the arrangement of the scarf.[150]Leaving aside the third defendant, the evidence of the other four witnesses who were present at the time of the accident does not support the claimant’s evidence that, when she got into the accident kart, her scarf was arranged as shown in the photograph at TB1/126a. Those four witnesses would have had every reason immediately after the accident to consider how she had been wearing her scarf before it occurred. Yet three of the witnesses could not apparently recall that she had been wearing a scarf at all. It is highly unlikely, if the scarf had been arranged as shown in TB1/126a, that Mr Carrack, Mr Turner and Miss Lorryman would have failed to remember the fact.[151]Miss Lorryman inferred from the fact that she could not remember the scarf that it must have been arranged neatly round the claimant’s neck. That seems a reasonable inference and would accord with the description given by Miss Jackson of “a little triangle … sitting on her collar bone … a couple of inches in length”. Miss Jackson’s description was also consistent with her reference in her police statement to the claimant wearing a pink and black “neckerchief”. A scarf arranged in the style shown at TB1/126a could not sensibly be described as a “neckerchief”, whereas that would be an appropriate way of describing the style which she described in her later witness statement.[152]I do not accept the suggestion made on the claimant’s behalf that, in describing the claimant’s scarf as she did, Miss Jackson was merely seeking to assist the third defendant’s case. The first description was given to the police shortly after the accident at a time when it is highly unlikely that the potential consequences of the accident would have occurred to her. Her witness statement was given on behalf of the claimant at a time when no claim against the third defendant was being threatened. Far from immediately dismissing Miss Jackson’s evidence as partisan, the claimant’s legal advisers were content to rely on it right up to the time of the trial. Miss Jackson impressed me as an honest witness who was doing her best to assist the court.[153]The third defendant also impressed me as a very decent, straightforward man. He behaved with great presence of mind and resolution at the scene of the accident and may well have saved the claimant’s life. Subsequently, he managed with considerable difficulty to recover the accident kart from the person to whom he had sold it so that it could be examined for the purpose of these proceedings. He was and remains devastated by the accident and its consequences and continues to suffer profound distress at what has happened. I am satisfied that he was doing his best to give an honest and accurate account of what had happened and was striving to be fair.[154]The third defendant’s evidence about the scarf has also developed over time. In his long and detailed police statement, which appears to have been accurate in every other respect, he said that he had not seen that the claimant was wearing a scarf. By the time he made his witness statement on behalf of the claimant, his description was very close to that given by Miss Jackson in her witness statement made a few weeks previously, namely “a small neck scarf, just a little triangle around the front of her neck”. His oral evidence was somewhat inconsistent, as I have already described. At one point, he suggested that he did not remember seeing a scarf; at another he described the “little triangle” previously referred to; at yet another, he agreed that the scarf was arranged in a similar manner to TB1/126a except smaller, higher up and without the ends hanging down. I am satisfied that his evidence about the scarf, like that of the claimant, did not represent his actual memory but was the product of repeated discussions and ruminations about the events of the accident during the four years that have elapsed since it happened. I am satisfied that the true position was that described by the third defendant to the police, namely that he had not noticed the claimant’s scarf at all before the accident occurred.[155]I do not accept that the claimant’s scarf was in the style shown in the photographs at TB6/84 or TB1/126a. If it had been, I am satisfied that all the claimant’s companions on the day of the accident would have remembered it clearly. I accept Miss Jackson’s evidence that it was much less prominent and was neatly tied above chest level. Arranged in that style, the scarf would not have been conspicuous and it is entirely plausible that the claimant’s other companions (including the third defendant) would not have noticed it at all.[156]I find that it is probable that, having folded the scarf once across the diagonal, the claimant then rolled or folded it along the diagonal to reduce the size of the triangle of material, before wrapping it round her neck and tying it or tucking in the ends to secure it in position. I am satisfied that, despite its bulk, this could have been done. If the scarf had been left completely loose, as shown in the photographs TB6/84 or TB1/126a, it is difficult to see how one end could have become tightly wrapped round her neck when the other end was caught in the rear axle since there was nothing to restrain it. It is far more likely that the scarf would just have slipped off altogether. If it were arranged as I have suggested, however, and one end had worked loose and was caught by the wind, it is only too easy to see how it could have reached the rear axle, leaving the other end wound round the claimant’s neck. The parties’ cases The claimant’s case

The parties’ cases

[157]On behalf of the claimant, it was submitted that the third defendant had a considerable amount of knowledge of karts, derived from his previous ownership of karts (including at least one racing kart) and his visits to commercial karting centres where he would have had safety briefings. In addition, he was knowledgeable about machinery generally and had experience with other motor sports vehicles, namely trial bikes. Given that knowledge, the claimant contended that the third defendant must have been aware of the dangers of entanglement presented by the unguarded moving parts of the accident kart.[158]In those circumstances, it was contended, the third defendant owed a duty of care to the claimant to take all reasonable steps to avoid foreseeable injury. In particular, he owed her a duty: a) not to allow her to drive the kart in its unguarded condition; and/or b) if he did allow her to drive the kart, to instruct her to remove any loose clothing, in particular her scarf. It was argued that, by failing to do either of those things, the third defendant was in breach of duty.

The third defendant’s case

[159]The third defendant’s case was that, given the circumstances in which the kart was being driven, he owed no duty of care to the claimant to decline to allow her to use the kart or to supervise or instruct her in its use. If such a duty did exist, the third defendant was not in breach thereof. He was not aware that the moving parts of the kart should have been guarded and had not been warned of that fact by the second defendant or anyone else. The fact that there were moving parts was obvious and the claimant did not need to be warned of the fact. The claimant’s scarf was tied neatly and did not present an obvious hazard.[160]The third defendant further submitted that, if the third defendant was found to have been negligent, there should be a finding of contributory negligence against the claimant.

Discussion and conclusions

[161]In determining whether or not the third defendant owed a duty of care to the claimant, it is necessary to consider again the three-stage test set out in Caparo: see paragraph 94 of this judgment.[162]There are obvious risks associated with driving a kart. The kart might collide with another vehicle or with a fixed object. The driver might lose control of the kart; he or she might be thrown out. The possibilities give rise to a risk of serious injury. On the day of the claimant’s accident, only two karts were being driven on a large open space with no other vehicles and few other fixed objects in the area. Nevertheless, some level of risk remained.[163]The general risks associated with driving a kart must have been clear and obvious to the claimant, who was an adult of full capacity. She exercised a free choice to assume those risks when she accepted the third defendant’s invitation to drive one of his karts. The mere fact that some risk of harm from an activity can be foreseen is not sufficient to found a duty of care on the part of the person who provides the means for undertaking that activity; see the judgment of Lord Hope in Mitchell v Glasgow CC [2009] UK HL 11 at paragraph 15. A duty to protect against obvious risks exists only in very restricted classes of case: see Lord Hoffman in Tomlinson v Congleton Borough Council [2004] 1AC46 at paragraph 46.[164]In the current case, the claimant contended that another risk - the risk posed by the unguarded moving parts of the kart - existed, which should have been foreseeable (indeed obvious) to the third defendant, but was not obvious to the claimant.[165]I accept that the third defendant, whilst not an expert in the operating of karts and their use for racing, was aware of the existence and position of the unguarded moving parts at the rear of his karts. I accept also that, by reason of the safety briefings he had previously received, he should have been aware in general terms that there was a risk of loose clothing or hair becoming entangled in the moving parts of karts. In reality, since he had short hair and wore clothing which did not give rise to any risk of entanglement, I regard it as unlikely that he had ever given much consideration to the risk. When an obvious risk was presented to him – as with Miss Lorryman’s coat – he recognised it and warned her about it. I accept his evidence that his concern in relation to the coat related to entanglement with the underside of the kart, not the moving parts at the rear. If Miss Lorryman were in the kart and sitting on her coat, it is difficult to see how her coat could have come into contact with the moving parts at the rear. I am satisfied that the third defendant’s concern in Miss Lorryman’s case was more likely to have been about the risk of damage to the coat or the kart than injury to Miss Lorryman.[166]I do not accept that the claimant’s scarf, arranged as I have found it was, gave rise to a risk of entanglement that should reasonably have been foreseen by the third defendant. I note that the regulations contained in the MSA Competitors and Officials Yearbook for 2008 did not ban the wearing of scarves altogether. Regulation 103 provided:
“Trailing or loose scarves are not permitted.”
I have found that, when she got into the kart, the claimant’s scarf was neither trailing nor loose. Nor was there any reason to believe that it would become loose.[167]I regard it as significant that none of the other persons present recognised the existence of a risk. Mr Turner had previous experience of driving karts with the third defendant and, as a maintenance engineer, was likely to have had some knowledge of the risks associated with moving machinery. Miss Jackson had driven a kart on at least one previous occasion and had noticed that the claimant was wearing a scarf. Yet it did not occur to either of them that the claimant might be at risk from her scarf. It does not seem that the claimant herself perceived any risk. She would have been aware of how her scarf was tied and was in the best position to know whether it was liable to become loose. The unguarded moving parts behind her seat were there to be seen and, even if she had not noticed them, she could not have failed to have been aware, when sitting in the seat of the kart, of her proximity to the kart’s wheels which would be moving once she began to drive. The fact that neither she nor anyone else recognised the risk of entanglement strongly suggests that the risk was not reasonably foreseeable to the third defendant.[168]The claimant was one of a small group of people whom the third defendant had invited to drive his karts. However, this is not a case where the claimant and the third defendant were in the type of relationship (e.g. employee/employer; occupier/visitor; fellow road users) where a duty of care would usually exist. The accident happened in a purely social situation when a number of adults had met together for recreational purposes. The third defendant permitted his friends and acquaintances to use his karts without financial reward.[169]It may well be that, even in a social situation, an owner of equipment which has a potentially dangerous defect which would not be readily apparent to another person to whom he lent the equipment would be held to owe a duty of care to that other person to warn him of the defect: see Coughlin v Gillison and another [1899] 1QB 145. However, that is not the case here. The accident kart had no hidden defect. The fact that it had moving parts (including its wheels) which were unguarded and would be in close proximity to a driver seated in the kart was plain for all, including the claimant, to see.[170]In circumstances other than the ‘hidden defect’ case, the imposition of a duty of care in circumstances such as these, where leisure equipment is provided by an individual in a social setting for the enjoyment of other adults without any form of reward, would not in my view be fair or reasonable. I consider that it would impose an undue burden of legal responsibility on those who wish to share such equipment with other who might wish to use it. The imposition of such a burden would have potentially far-reaching consequences for those engaging in recreational activities with friends and acquaintances.[171]It is contended on behalf of the claimant that, knowing that the moving parts of the kart were unguarded, the third defendant should not have permitted the claimant (or, presumably, any other person) to drive it. This is despite the fact that there are in existence no regulations governing the use of karts which were originally manufactured for the purpose of racing and no restrictions on selling, purchasing or using such karts for recreational purposes. Nor does it appear that there is any advice or guidance available for private individuals who might purchase former racing karts for recreational use. In those circumstances, I do not consider that the imposition of such a duty would be fair or reasonable. It would be seeking once again to bridge a gap in the regulatory framework by imposing on private individuals who have purchased former racing karts a duty which had not applied to the manufacturer of the kart.[172]As to the duty to instruct the claimant to remove her scarf contended for by the claimant, it is necessary to consider whether or not there had been an assumption of responsibility by the third defendant and reliance on him by the claimant. For the third defendant, Mr Poole argued that there had not been any such assumption of responsibility or reliance. The third defendant had merely informed the claimant which pedal was which. Other than that, he had not assumed any responsibility for instructing, supervising or advising the claimant, nor was he obliged to do so. Mr Poole relied on the dictum of May LJ in Trustees of the Portsmouth Youth Activity Committee v Poppleton [2008] EWCA Civ 646 at paragraph 20:
“There being inherent and obvious risks in the activity which Mr Poppleton was voluntarily undertaking, the law did not in my view require the appellants to prevent him from undertaking it, nor to train him or supervise him while he did it, or see that others did so. If the law required training or supervision in this case, it would equally be required for a multitude of other commonplace leisure activities which nevertheless carry with them a degree of obvious inherent risk – as for instance bathing in the sea. It makes no difference to this analysis that the appellants charged Mr Poppleton to use the climbing wall, nor that the rules which they displayed could have been more prominent. I would therefore dismiss the cross appeal”
In Poppleton, the claimant had fallen from a climbing wall provided for paying participants at a commercial activity centre.[173]Mr Poole argued that, given that the owners of the climbing wall in Poppleton, who were involved in a commercial enterprise, were held to have no duty to train or supervise their customers, there can have been no such duty on the part of the third defendant, who was acting in a purely social setting.[174]There is no evidence that the third defendant said or did anything to suggest that he had assumed responsibility for the claimant’s safety, nor that she relied upon him. He did not present himself as an expert in the field of karting, nor did she suggest that she regarded him as such. She did not ask him for advice or information and, apart from telling her which pedal was which, he did not volunteer it. He did not, for example, offer any warning about how fast she should go. The claimant was content to drive the kart without seeking advice or guidance from the third defendant.[175]On behalf of the claimant, it is argued that the risk of entanglement of her clothing in the moving parts of the accident kart was not “obvious” to the claimant, although it should have been so to the third defendant. I do not accept that contention. The fact that the kart had moving parts (including the wheels) 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. So far as the specific risk posed by her scarf, I have found that the way in which the claimant was wearing it did not give rise to a risk that would have been “obvious” to the third defendant.[176]For all those reasons, I conclude that the third defendant did not owe to the claimant the duties of care alleged and cannot therefore have been in breach of any such duty.

Causation

[177]It was submitted by the third defendant that, even if the third defendant had instructed the claimant to remove her scarf, she may have declined to do so and thus the accident may not have been prevented. I cannot accept that submission. I am satisfied that the claimant, like Miss Lorryman, would have complied with the third defendant’s instruction and that the accident would in that event have been avoided.

Conclusion

[178]It follows from my findings that the claimant’s claims against the second and third defendants must fail. I recognise that the outcome of this case will be a great disappointment to the claimant and I am deeply sympathetic to her plight. However, my conclusion is that she suffered a tragic accident in circumstances which cannot properly be attributed to the fault of any of those involved.[179]The first defendant has made karts for a number of leading kart racers and it was clear from the evidence that he has an excellent reputation in the karting world. I should make clear to all that the discontinuance of the claim against him amounts to an acceptance by the claimant and her advisers that the claimant’s accident cannot properly be attributed to any fault on his part.