Tag Archives: Smith v. Finch [2009] EWHC 53 (QB)

Bicycle races are coming your way so forget all your duties, oh yeah!: An analysis of Reynolds v Strutt & Parker LLP [2011] EWHC 2263 (QB)

September 20, 2011

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The dangers of relying on Queen lyrics as legal precedent is illustrated in the personal injury case of Simon Reynolds (a 49yr old property consultant), who suffered head injuries when he fell from his bicycle following a collision with another rider in a team-building race on 19th June 2008. 

BACKGROUND

The race was part of a team-building event for the 35 staff working in the Canterbury office of Strutt & Parker (a national property consultancy and estate agency). Following a normal morning of work, 30 of the staff met in the boardroom to be divided into six teams of five for a mystery treasure-trail around East Kent, culminating in a trip to Fowlmead Country Park for the second stage of the day.

For those that have never been, Fowlmead Country Park is set amongst 200 acres regenerated from the shale spoil of the former Betteshanger Colliery site, and contained a 2 mile long tar macadam-surface road and cycling track. The idea was to run three types of events, an active and energetic event (the bicycle race), a harmonious and steady event and a thoughtful and considered event.

Each team would effectively sub-divide itself into two pairs and a single person to compete in these events, although it was stressed at the High Court that the purpose of the event was for fun and enjoyment rather than as a competitive and regimented exercise like many traditional team-building days. By the time, the groups reached Fowlmead, many were quite rowdy, having consumed Peroni beer along the route for refreshment.

The bicycle race was held in heats of two teams of two riders, the objective being to finish either 1st, 2nd or 3rd, with the losing team of two being eliminated. The claimant was in the last of the three preliminary heats. Unfortunately, this proved to have quite a competitive undercurrent to it, with tension at the starting line as the claimant jostled for position in a narrow gap, despite the startline for the four riders being 8m wide! [18]. The claimant led for the start and was on target for a first place finish, when 20-25m down the finishing straight, he deliberately leaned to his right to cut up his closest rival, Alistair Cracknell, who was attempting to pass him down a gap on the inside. Cracknell lost control of his bike and in the resulting collision, the claimant was also thrown from his bike and suffered head injuries.

In echoes of recent overtaking manoeuvres (and collisions) in Formula One, the Court held that the claimant made a deliberate decision to behave in an aggressive manner, reckless as to the consequences [26]. This positioning by moving to the right despite there being no racing line or need to do so on a finishing straight is a key factor behind the accident and also immediately distinguishes the case from Caldwell v. Maguire and Fitzgerald [2001] EWCA 1054 where the claimant was not aware of the position of the horses behind him going into a tight left hand bend. As such, the court held that the claimant should hold the greater proportion of the blame and found him two thirds liable.

During the course of the case, a number of questions were raised:

  • Was the event part of the claimant’s employment? (which would bring him under the more favourable duties owed by the Health and Safety at Work Act 1974)
  • Should all the riders have been provided with mandatory cycle helmets to wear?
  • Had the defendants adequately assessed the risks of the event?

 

DO ALL ESTATE AGENTS RACE BIKES AT WORK?

While both sides accepted that there were corresponding common law (negligence) and statutory (health and safety) duties, the question of whether the event constituted ‘work’ was important for establishing the extent of the duty, as statutory duties in this instance were arguably stricter [34]. Unsurprisingly perhaps, the defendants argued that the event was not compulsory and that,

“the afternoon was intended to afford entertainment and enjoyment to staff in a social atmosphere, and for no part of their work.” [3]

By contrast, the claimant suggested that all employees were expected to attend, the event was managed and organised by the employer, would be to the employers benefit by fostering an esprit de corps and that there was no deduction from their salaries [35].

The Court struggled to pinpoint any case or principle on the limits of employment, trying unsuccessfully to apply traditional vicarious liability and the Salmond “close connection” tests [35]. Oliver Jones QC (sitting as the Judge) finally concluded that a jury would:

 “simply say that the defendant’s staff were not engaged in any job for their employer; they were just having a good time, until, that is, the claimant, of course, sustained his unfortunate accident.” [37]

With respect though, it is difficult to see how this conclusion can be justified, indeed it is internally inconsistent with the conclusions over the employer’s assessment of risks and their duties under the Compensation Act (see later). How can an employer be liable for the organisation and management of an event [40], yet their employees not be engaged in a ‘work activity’ whilst attending it? When my employer arranges team-building events or away days, attendance is expected, especially if they fall on traditional working days. I thought that Lister v Hesley Hall Ltd [2002] widened the scope of employment and vicarious liability, not narrowed it to only traditional working activities. I can hear the reverberations across golf courses all around the country. The effect of this Reynolds definition of employment is that while you are concluding business deals or networking on the golf course, you may not actually be working!

The judgment also continues at [38] to suggest that justness and reasonableness would be offended if the Health and Safety at Work Act and associated provisions were ever intended to be applied to cases such as these. While it is true that the drafters of the Acts probably didn’t envisage bicycle racing estate agents and property consultants, however if these activities were being carried out as part of an employer-organised event, why shouldn’t they apply? Indeed isn’t that the subtext behind paragraph [46]?

“I have been referred to and considered the terms of section 1 of the Compensation Act 2006. Whilst the reward of employees by employers in ways such as that chosen in this case is a desirable activity, I am quite satisfied that requiring employers to take reasonable precautions for their employees’ safety will not discourage employers from doing it, or discourage employees from taking part. On the contrary, fun activities are likely to be more attractive if employees are assured that their safety has properly been considered.”


IS CYCLING DANGEROUS?

Crucially, the case hinged around the duty of Mr Church and Mr Backhouse (senior partners at the defendants) to arrange and to organise the event, and to ensure that their employees were reasonably safe in engaging with the activities laid on [40]. The problem was that the defendants risk assessment extended to prohibiting a proposed mountain biking activity as being unsafe [12]. They did not consider any of the risks associated with falling off a bike, or colliding with other riders during the race [24]. (As a very new cyclist, I can testify that both of these risks are patently obvious, indeed anybody that has watched me ride might even go as far as to say expected!) To suggest that the defendants were naïve in this respect is somewhat of an understatement. I accept that one might expect all riders in a professional race to be competent and to a certain extent this is self-selecting (although one only has to note Bradley Wiggin’s recent injury to see that collisions are a part of even professional races). In the current case though, the teams were randomly chosen with no pre-checks or the riders’ competency, indeed the cycle race did not even have a written risk assessment. While it is obvious that the defendants were not aware of the risks, this omission could have been identified had they sought the advice of the Fowlmead management in the risk assessment process, or as the Judge put it:

“This is not a matter of wisdom with hindsight. Where those who are unfamiliar with the organisation of a potentially dangerous activity do not themselves have training or experience in that activity, it is common sense to seek advice and assistance of those who do; in this case, the management of the facility they were going to use.” [42]

Given the failure to perform an adequate risk assessment, the Court was left with little choice but to conclude that:

“Neither partner organising the event had the necessary skill or knowledge to make either a suitable or sufficient assessment of risks associated with bicycle racing, and for that reason, completely overlooked what was, in my judgment, the most obvious of risks in any racing competition, namely the risk of collision between competitors.” [28]

Even then, by itself, this failure was not a direct cause of the injury to Mr Reynolds, however following Uren v Corporate Leisure UK Limited [2011] EWCA Civ 66, a failure to carry out an adequate risk assessment could be indirectly causative of the injury if the precaution it should have identified (cycle helmet) would have avoided the injury [41]. Sadly this was the case here.

SHOULD YOU WEAR A HELMET WHEN CYCLING?

While there is no law that suggests that the use of a cycle helmet is compulsory, the Health and Safety Executive (HSE) recommended their use and helmets were available at the event. Personal injury case law on cycling, most recently, Smith v Finch [2009] EWHC 53 QB (discussed in detail on this blog) also suggests that the failure to wear a helmet when cycling casually on the roads could amount to contributory negligence. Given that finding, it should come as little surprise that this principle is extended to sport:

“Those who engage in competitive racing, even for fun, or perhaps because it is fun, should be held partly to blame for the failure to protect themselves.” [45]

Because the claimant did not wear a helmet, despite suitable equipment being offered and available to him (even though only 1 other rider availed himself of a helmet), the Court held that this constituted contributory negligence.

My advice to any cycling event organisers – make sure that your riders wear helmets and don’t take Queen lyrics too seriously! 

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Should you wear a helmet every time you cycle?

March 31, 2009

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Source: http://www.independent.co.uk/news/uk/home-news/outrage-at-ruling-on-helmets-for-cyclists-1645736.html; http://news.bbc.co.uk/1/hi/uk_politics/3563671.stm; http://www.cyclistsdefencefund.org.uk/cycle-helmets-and-law; http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492

 

Read the full case report of Smith v. Finch [2009] EWHC 53 (QB) here: (http://www.ctc.org.uk/resources/Campaigns/0902_Smith-v-Finch-judgment_brf.pdf)

 

 The case of Smith concerns a cyclist (Robert Smith) who was struck and knocked off his bike by a motorcyclist (Michael Finch), while making a turn at a junction. At face value, this seems simply a run-of-the-mill traffic collision case, indeed the exact facts of the incident were disputed and the defendant argued that it was the claimant who was responsible for causing the collision by pulling out as he did. The case is important however because the defendant also argued that in the event that he should be found liable, the claimant should have his damages reduced for being contributory negligent for not wearing a cycle helmet and it is this part of the decision that has provoked the most controversy.

 

After listening to various witnesses give evidence, the court found in favour of the claimant, stating that in all likelihood, the defendant had been driving at an excessive speed and had ridden much too close to the claimant as he tried to overtake him [38]. Ultimately, the claimant also succeeded in rejecting any allegations of contributory negligence as the court found that the mechanics of his head injury would not have been reduced or prevented by a helmet [56]. The court did however suggest that in other cases, a deduction could be made.

 

In particular, the court at [43] stated that: “as it is accepted that the wearing of helmets may afford protection in some circumstances, it must follow that a cyclist of ordinary prudence would wear one, no matter whether on a long or a short trip or whether on quiet suburban roads or a busy main road.”

 

The court concluded that given the concern of the government and road safety campaigners was to reduce road accident casualties, “the cyclist who does not wear a helmet runs the risk of contributing to his / her injuries” [45] even if the initial cause of the collision was not their fault.

 

Although roundly criticised in the press, at face value, the approach of the court does seem to agree with Dr Julian Fulbrook’s 2004 article on “Cycle helmets and contributory negligence” published in 3 JPI Law 171-191. The article suggests that an automatic 25% deduction for not wearing a cycling helmet was wholly unjustified. Dr Fulbrook did however suggest that there were limited instances where a helmet could have prevented an injury and on these occasions, damages could be reduced by 10-15%.

  

Note the comments though of Martin Porter QC (http://www.newlaw-directories.co.uk/jobboard/cands/newsview.asp?id=1492 /159 New Law Journal (2009) 337) Who argues that Smith departs from the previous High Court case of A (a child) v Shorrock [2001] All ER (D) 140 (Oct) where Judge Brown stated that if he had found liability against the defendant, he would have made no deduction for contributory negligence for failing to wear a cycle helmet as there was no fault: the use of a helmet not being mandatory and the type of cycling by the claimant not being unusually hazardous.

 

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