By Frances Lawley
The claimant sustained serious personal injuries in a mountain biking accident whilst on a ‘beginners skills course’ taught by the defendant. The course was described as “…ideal for the complete novice or those wishing to progress their riding. Our aims are to enable the participant, to ride more technically demanding terrain in a safer/controlled manner.”
Whilst the claimant was not entirely new to mountain biking, his experience was limited to using his mountain bike on roads and bridleways and he was found to be a novice for the purposes of this course.
The passage of time had an effect not only on the witness evidence as to the precise instructions given (namely as to what route to take, what speed to maintain and where to keep eye level whilst riding) but also on the precise layout of the accident locus. Nevertheless there appears to have been a large quantity of evidence before the court including photographs and YouTube footage of cyclists using the route in question and of the defendant’s tuition. The court also had the benefit of expert evidence for both sides.
The defendant relied on his written terms and conditions and guidance given on his website including the recommendation that students should not go beyond their capabilities. In this sense, the case is a caution against over-reliance on such written warnings unless they are specifically brought to the attention of students. This was the case despite the fact that the claimant was a practicing lawyer. At paragraph 76 is the following:
Although one can of course be critical of the claimant, especially perhaps as a lawyer, for not having properly read either the terms and conditions on the website or the pre-ride safety check list, I note that none of the participants gave evidence that they had read the terms, nor that they expressly recalled the defendant pointing out to them that, if they had any doubts, they could get off their bikes and walk. In these circumstances, although this may well be something which the defendant normally says to those attending his courses, and certainly he would have been prompted to do so since the date of the accident, I accept the evidence from the claimant that the defendant did not make this clear to him at any stage of the course.
Ultimately, the extent of the defendant’s tuition, in particular his failure to carry out an assessment of the claimant’s skill prior to the commencement of the course and his failure to give clear instruction on the particular decent, was criticised and primary liability fell on the defendant. At paragraph 96 is the following:
I consider that the defendant is at least in part liable to the claimant for this accident, in that the accident was caused by his failure to carry out his tuition with reasonable skill and care, so as to enable the claimant to ride down the slope in safety. In summary, I consider that, having failed to carry out an adequate assessment of the claimant’s individual skill level at the commencement of the course, he thereafter progressed the tuition which he provided to the group, without sufficient regard to the claimant’s capabilities; in that he failed to make sufficient assessments of the claimant’s ability to undertake the skills he was being taught, failed to teach the skills required to negotiate the slope where the accident took place in safety, and thereafter permitted the claimant to attempt to negotiate the descent of the slope down the main route, and, on his second descent, encouraged him to do so at a speed which was likely to enhance the risk of serious harm being caused to him.
On the issue of contributory negligence comparison was drawn with the case of Anderson v Lyotier (t/a Snowbizz) and Portejoie  EWHC 2790 (QB) in which the claimant was a participant in a mixed ability skiing lesson and was injured on an off-piste section having failed to notify the instructor of his lack of ability. In that case (at paragraph 142) Foskett J held the following:
In my judgment, it would be wrong to hold that a skier, even in the case of a relatively inexperienced skier who is under the supervision of a ski instructor, abdicates all personal responsibility for deciding whether to do or not to do something the instructor suggests. The consensus of all the witnesses who spoke on the matter during the trial was that there is a strong element of trust placed by a skier in the instructor. That is plainly so. However, it is not the same as a child placing total reliance on his or her parent or teacher. The process involving adults must be a collaborative one. I do not think that the law requires (and, if it did, for my part I would say that it would be adopting the wrong policy) that the instructor takes total responsibility in a situation such as that which obtained in this case. In my judgment, if an instructor does suggest something to a skier under his supervision that the skier believes to be beyond what it is reasonable for him to attempt, there is an onus on the skier to say so. There may be cases where further discussion will resolve the concerns of the skier – or the instructor will agree that what he has suggested is too risky. However, I do not consider it is, objectively speaking, reasonable for the skier not to say something in that situation. The human reaction not to want to appear awkward, difficult or, as Mr Foxon put it, “faint-hearted” is quite understandable from a subjective viewpoint; but objective analysis does suggest that serious concerns must be ventilated.”
In the case at hand the index accident occurred on the claimant’s second attempt at the slope and it was apparent to other members of the group that he was hesitant on the first attempt. He could assess his ability to carry out the second attempt by reference to the first. Having said this, the defendant gave him reassurance after his first attempt and advised that he carry out his second attempt at greater speed. This gave false reassurance. In balancing these factors, contributory negligence was assessed at 20%.
This case represents an interesting assessment of the role of tutor and adult student in the case of dangerous activities. The judgment was based on large quantities of witness evidence and evidence of mountain biking practice generally including from two experts in the field. It must always be remembered that outcomes depend on the factual circumstances before the court, particularly the precise assessment of contributory negligence.