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Owner of a go-kart deemed not liable for catastrophic injuries sustained by an acquaintance when using it

Owner of a go-kart deemed not liable for catastrophic injuries sustained by an acquaintance when using it.

SOPHIE POOLE v (1) SIMON WRIGHT (T/A SIMON WRIGHT RACING DEVELOPMENT) (2) CHEQUERED FLAG KARTING LTD (3) DAVID ABBOTT (2013)

[2013] EWHC2375 (QB)

QBD (Swift J) 05/08/2013

PERSONAL INJURY – NEGLIGENCE ACCIDENTS: DUTY OF CARE :      VICARIOUS LIABILITY : WHETHER OWNER OF GO-KART LIABLE FOR INJURIES   SUSTAINED BY ACQUAINTANCE WHEN USING IT

The owner of a go-kart was not liable in negligence to the claimant, who had suffered catastrophic injuries after her scarf became entangled in the moving parts at the rear of the kart while she was driving it.

The claimant (P), who had suffered catastrophic injuries while driving a go-kart, brought a claim in negligence against, among others, the second defendant karting-centre operator (C) and the third defendant (D), the owner of the kart. On the day in question, P and her boyfriend decided to visit D, who was a friend of her boyfriend's. It was decided that they and three others would go to a car park nearby and use D's two karts. Before one of them started to drive the kart, D told her to take off the long coat she was wearing in case it got trapped in the moving parts of the kart. P's 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. The kart was a former racing cart which D had acquired from C or two of its directors (J and S) over six months before the accident occurred. The kart's moving parts were guarded only by chain strips; the kart was not subject to regulations made in 2005 which required the installation of a more comprehensive guard.

HELD: (1) As to any liability C might have, the first issue was whether it had supplied the kart to D. P had not made out her case that the kart had become an asset of C's; instead, it had remained the joint property of J and S, and the transaction with D had been made in their personal capacities. That being the case, there was no contract of supply as between C and D and no duty of care arising from such a contract. P had alleged in the alternative that C was vicariously liable for the breach of duty of J and S; it was therefore necessary to decide whether they owed a duty of care to P as a future user of the kart. The answer was no. It could not be said that the risks associated with the lack of guarding of the kart ought reasonably to have been foreseen by J and S. Further, while the relationship between them and D may have been sufficiently proximate to give rise to a duty of care if the other necessary ingredients had been present, that was not the case with P: she was a member of an indefinite group of an indeterminate number, all remote from J and S. Nor would it would be fair, just or reasonable to impose such a duty on J and S. The position was that there were no regulatory provisions governing the purchase, sale or use of former racing karts for recreational purposes. That might be a gap in the regulatory framework but it would not be fair, just or reasonable to attempt to bridge it by imposing a common-law duty on individuals in circumstances such as these (see paras 90-92, 102-103 of judgment). (2) D also was not liable in negligence. P was one of a small group of people whom he had invited to drive his karts. However, this was not a case where he and P were in the type of relationship where a duty of care would usually exist. The accident happened in a purely social situation when a number of adults met for recreational purposes. D permitted his friends and acquaintances to use his karts without financial reward. It might well be that, even in a social situation, an owner of equipment which had 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. However, that was not the case here. The accident kart had no hidden defect. The fact that it had moving parts which were unguarded and would be in close proximity to a driver seated in the kart was plain for all, including P, to see. In circumstances other than the "hidden defect" case, the imposition of a duty of care in circumstances such as these, where leisure equipment was provided by an individual in a social setting for the enjoyment of other adults without any form of reward, would not be fair or reasonable. It would impose an undue burden of legal responsibility on those who wished to share such equipment with others 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. Further, P's scarf did not give rise to a risk of entanglement that should reasonably have been foreseen by D. When P got into the kart, her scarf was neither trailing nor loose, nor was there any reason to believe that it would become loose (paras 166, 168-170).

Judgment for defendants

Comment: this was a very interesting case, with two points worthy of note.  The first is that the judgement fell outside any legislation, such as Sale of Goods or Consumer Protection.  The claimant was clearly trying to get the claim on a statutory footing, but the Judge was not persuaded.

Secondly, the Court did not feel appropriate that the duty of care extended to adults in social settings where there was no hidden defect in the machine/kart.  Whilst this seems to be a common sense conclusion, our inclination is that an appeal is almost inevitable in view of the catastrophic injuries.

END