Sources: Full case report – http://www.bailii.org/cgi-bin/markup.cgi?doc=/scot/cases/ScotCS/2009/2009CSOH39.html
Opinion of Lady Clark of Calton in the cause of Pearce v. Ferguson & Another  CSOH 39
This case is an ex tempore oral opinion given by Lady Clark of Calton in the Scottish Court of Session (Outer House) in order to advise the parties. The issue relates to a negligence action for personal injuries during a test session ahead of a motor race at Knockhill Racing Circuit.
Although the defendant tried to argue that the claimant was a voluntary participant and motor racing carried an inherent risk , this was rejected by the court. In particular, at  it was noted that ‘it is not a matter within judicial knowledge as to what risks or dangers might be common or expected or exist by participating in test sessions at Knockhill Racing Circuit. I certainly cannot conclude that it is within judicial knowledge that the pursuer had voluntarily agreed to the risks of an accident of the type averred or that such accidents were part of the common risks of the sport at that particular racing circuit. I am of the opinion that evidence would be required about this.” (I’m guessing then that Lady Clark will not be watching the Hungarian Grand Prix this weekend!)
The opinion concluded at  with the rejection of the defence’s plea for a summary dismissal, and the note that it will only be possible to establish whether the defendant was in breach of his duty once the full facts have been established. We now wait for the full trial….