Certain sporting activities are inherently dangerous, horse riding, rugby and motor racing for example. By participating in a dangerous sport, that person consents to the risk of injury arising from the risks associated with that sporting activity, for example football is a contact sport which involves tackling – a person would have no claim against an opponent if they were injured in a challenge for the ball – unless it could be shown that the tackle was entirely reckless or was done with malicious intent, such that it was something more than an error of judgement.
There are certain risks or events that a person would not consent to by participating in a dangerous activity, however, those things would have to be something that would not be a usual or expected risk for that particular activity and the threshold to meet is a high one. Using football as an example again, a player would consent to the risk of accidental injury through being tackled, however would not consent to being punched in the face by an opposing player.
The recent case of Shane Byrne v. Motorsport Vision Racing (2024) is an unusual one.
Shane “Shakey” Byrne is a six-times British Superbike Champion and during a test session at Snetterton Circuit he lost control of his Ducati motorbike at the Palmer Corner section of the circuit. He jumped from his bike and tumbled across a grass run-off area and sustained serious injuries as a result of coming into contact with the barriers of the circuit.
Accidentally losing control of a bike is a risk that one would accept by participating in the dangerous sport of motorbike racing – riders routinely push their bikes to the limit – so injuries sustained as a result of these accidents would be consented to by the participant and there would be no claim for injury against the circuit owners.
This case is unusual in that the evidence presented by the medical expert for Mr Byrne was that his falling from the motorcycle to the ground and tumbling towards the barrier did not cause him serious pain or injury – he was accustomed to coming off his motorcycle a number of times each year – but the severe pain and injuries came from the impact with the barriers of the circuit. It was the impact with the barrier that materially caused the infliction of his injuries.
The question was whether the barriers were reasonable to ensure that riders were reasonably safe while using the circuit.
The barriers used by the circuit were ‘Type D’ barriers which are a series of tyres bolted together. The Court held that the use of these barriers was not sufficient to discharge the duty of care an Occupier and that ‘Type A’ barriers should have been used on the corner of the circuit where the accident happened. Type A barriers are air-filled barriers which act as shock absorbers. The evidence before the Court was that if Mr Byrne had collided with a Type A barrier he would not have sustained the serious injuries that he did on the day.
This case highlights that even where there is a dangerous sport or activity being undertaken, the organiser still has a duty to take reasonable steps to ensure that if an accident does happen the safety measures put in place are reasonable and do not cause additional danger to the participants.
