Burke v Mullaly

• Jurisdiction: Ireland
• Judge: Mr. Justice Hanna
• Judgment Date: 13 January 2017
• Neutral Citation: [2017] IEHC 1
• Docket Number: [2014 No. 10724 P.]
• Court: High Court
• Date: 13 January 2017

[2017] IEHC 1

THE HIGH COURT

Hanna J.

[2014 No. 10724 P.]

BETWEEN

STEPHEN BURKE

PLAINTIFF

AND

STEPHEN MULLALLY, MICHAEL MCGINN,

NORTH DUBLIN MOTOCROSS LIMITED

AND

THE MOTORCYCLE UNION OF IRELAND LIMITED T/A

MOTORCYCLING IRELAND

DEFENDANTS

Tort – Damages & Restitution – Personal injuries – Collision with bike on racing track – Lack of flag marshal – Lack of negligence – Issue of liability

Facts: The plaintiff had filed a claim for damages against the defendants for sustaining life-threatening chest injury, multiple rib fractures and a collapsed lung at a motor-cross event. The plaintiff claimed that even though he had fallen from his bike in a bit to make a double-jump, he could not have sustained serious injuries had the collision with the first defendant's vehicle not happened. The plaintiff argued that the defendants were negligent in not providing flag marshals on the day of the accident. The plaintiff claimed that he would not have attempted the double-jump had he been warned by the flag marshal about the presence of the first defendant's bike.

Mr. Justice Hanna dismissed the plaintiff's claim. The Court found that the plaintiff, being an experienced biker, knew the practices and rules of the practice session at the race track. The Court, after assessing the engineer's evidence, concluded that since the plaintiff and the first defendant were racing almost at the same time in close proximity with each other, the flag marshal's presence would not have made any difference. The Court held that when the plaintiff's bike had taken the jump, the first defendant's bike was starting on the relevant ramp and given the speed at which both the bikers were riding, the alleged accident could not have been averted even after adopting the best possible practices. The Court found that the defendants were not negligent in organising the practice session.

JUDGMENT of Mr. Justice Hanna delivered on the 13th day of January, 2017

General background

1 The plaintiff in this case was born on 25th November, 1987. He is a Mullingar man and lives there to this day. After an uneventful education he left school and, since that time, he has worked as a brick layer having been apprenticed to that trade. He was keen on sport. He was heavily involved in kayaking and has instructed others in this pursuit at home and abroad. Another great passion of his is the world of motor bikes in general and motocross in particular. His engagement over many years in this sport ultimately led him to the unhappy circumstances which give rise to this case. From an early stage in his life he always had bikes. He used to go on trips with friends riding over rough terrain through forests and the like. His most recent acquisition to pursue this sport was a Honda 250cc motorbike. He always utilised the necessary protective gear. Some years ago, a motocross track opened near to his home and he was a regular attender, practising hard with a view to increasing his skills and progressing through the amateur ranks of motocross.

2 Motocross is an exciting and spectacular sport. A non participant can readily perceive the sheer thrill and excitement enjoyed by its' aficionados at whatever level of involvement. During the course of the hearing, the courtroom was shown a video demonstrating what occurs at motocross events, be they practice or racing sessions. Though this video demonstration was with specific reference to the locus in quo, it amply demonstrated two things. Firstly, it is easy to appreciate the sheer thrill and exhilaration it excites in both participant and spectator. Secondly, as skill and competition levels increase, it is unquestionably a dangerous sport carrying with it the ever present risk of injury, even serious injury and perhaps worse. The sport, therefore, is controlled and supervised by both international and national bodies and both spectator and driver safety inter alia would seem an obvious priority at all levels of the sport from the most junior participants (starting from around six years of age) up through ranks apparently determined by perceived advancing experience and achievement. It is, however, undoubtedly the case that with the best will in the world, accidents can and do happen no matter what level of skill is attained by participants. A regulatory framework exists for the promotion and running of this sport and the various events, practice or racing. The material international body, the Federation Internationale de Motorcyclisme (FIM) sets out written standards, inter alia, for the conduct of the sport. In turn, the Motor Cycle Racing Association of Ireland issues handbooks governing the sport and the running of various events. These regulations or guidelines are put into effect by the local club. This club and the material national organisation are joined as parties in these proceedings along with the second named defendant, Mr. Michael McGinn. As chairman of the local club, the third named defendant, Mr. McGinn gave evidence at the trial in his own behalf and as representative of all other defendants apart from the first named defendant, Mr. Mullally. Mr. McGinn was the steward of the course present in that capacity on the day of the matters complained of.

3 On the 19th January, 2014, the plaintiff took part in a practice motocross event at a race track in Gormanstown, Co. Meath. This track was laid out in a disused quarry. That afternoon, as the practice session was drawing to a close, the plaintiff fell from his bike while negotiating a double jump on the eastern (sea) side of the course. He was then struck by another motor cycle driven by the first named defendant, Mr. Mullally, who was travelling behind him. The plaintiff suffered a life threatening chest injury, multiple rib fractures, a collapsed lung and bleeding into his chest. He sustained a fracture of his left clavicle, a fracture of his left shoulder blade and a left sided brachial plexus injury. As a consequence, he has been left with a severe brachial plexus injury, chest wall deformity, breathlessness and chronic neuropathic pain with life long implications and it is common case between the parties that he will require some level of on-going assistance for the rest of his life. The plaintiff seeks to recover damages for negligence and breach of duty and has brought these proceedings against Mr. Mullally, the motorcyclist who collided with him, the local and national organisations governing the sport and Mr. McGinn, the chairman of the local club, cited as second named defendant. The case proceeded before me over six days. Much of that time was taken up with medical and related matters dealing principally with the question of the extent of future assistance which the plaintiff might require and the future costs thereof together with the impact of the injury on the plaintiff's employment prospects and such implications as that might have for his future earning capacity. There is no doubt as to the significance of the extremely serious injuries which the plaintiff suffered in physical and psychological terms. The main conflict between the parties revolves around the issue of liability. A number of observations are appropriate.

(a) No issue arose as to the condition or structural suitability of the racing track. It was common case between the parties that the track was both suitable and appropriately maintained for the conduct of the sport and for the practice session in particular which was in progress when the plaintiff met his unfortunate accident. Indeed two days prior to the accident the track was graded, a process where a machine, similar to that of a bulldozer, uses a blade to level the terrain and fill in lower points on the ground.

(b) It is not disputed that there was a substantial number of people there on the day of the accident although the numbers had significantly dwindled by the time the accident occurred. The crowd comprised participants, officials of varying type and degree and spectators who, it being a practice session rather than a racing event, comprised family members, supporters and, no doubt, a coterie of devotees of the sport.

(c) There is controversy as to the presence of juvenile participants in the practice session. The plaintiff maintains some were present. The defendants deny this. The court was told that the juniors, riding automatic, low-powered bikes and would practice or race on a foreshortened course. Again, the existence and location of such a foreshortened course was in dispute. The adult participants, obviously, drove much bigger and more powerful machines. The plaintiff was riding a Honda 250cc bike. Mr. Mullally, on the other hand was riding a 450cc machine which was slightly heavier than the plaintiff's bike and obviously more powerful. Participants in the session would have been riding bikes of different capacity and weight although machines with greater power and substance might not necessarily be the most effective in competitive racing. Experienced competitors might use bikes of the capacity of the plaintiff's machine against more powerful motor bikes to tackle more effectively the terrain presenting to competitors in races.

(d) Competitors were graded into three categories, namely A, B and C. Grading would be arrived on the basis of performance including lap times over the season. At race meetings, according to Mr. McGinn, competitors would often been drawn from all three categories to race against each other.

(e) This brings us to the substantial area of controversy in the case. As in any sport, publicly run events bring with them their cuadrilla of officialdom. In motocross, this can be extensive. Under the supervision and control of the clerk of the course are gathered, inter alia, the time keepers, officials, marshals and para-medical attendees. In the latter case these services were provided by the Red Cross on a voluntary basis....